Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

The applicant seeks appointment as the sole guardian of the minor child, Roxanne Chantal Van Vuuren, born 1 December 1994. She is the mother of the child.

Her marriage to the girl's father was terminated by consent by order of this Court on 7 August 2002 in case number HC2367/2002. The order adopted the detailed consent paper that was executed by the applicant and her former husband in Harare and Johannesburg, respectively.

This Court assumed jurisdiction on the basis of the additional grounds found in section 3(1)(c) of the Matrimonial Causes Act [Chapter 5:13].

Apparently, as appears in his affidavit of waiver that was executed in Johannesburg, he was not domiciled in Zimbabwe, a country he had left in 1998. She was, inter alia, awarded custody of the minor child.

She launched the present application on 1 April 2008….,.

Paragraphs 11 and 13 of her founding affidavit are the mainstay of her application. I reproduce them hereunder:

“11. It has become necessary that I apply for the minor child's passport and get her a visa so that she can pursue her education outside Zimbabwe and have the benefit of better educational facilities. However, to be able to apply for the minor child's passport and visa, respondent will be required to sign the application forms. This has proved to be extremely difficult as I do not have any contact or communication with him. Without the respondent's signature, the immigration authorities demand that I furnish them with legal documentation to prove that I am the minor child's guardian or to get the respondent to sign up the documents.

13. I submit that it is in the best interest of the minor child if sole guardianship is awarded to me, in that:

13.1. It will be easy to obtain her student permit in the United Kingdom where she can have access to better living and educational facilities and conditions.

13.2 It will remove the barrier of having to trace the respondent's whereabouts so as to make joint decisions regarding the child, a situation that is not expedient in cases of emergency or ordinary course of the child's livelihood. In any event, respondent having deserted the matrimonial home and having shown no indication of seeking to re-establish any connection with the minor child there is doubt that the respondent will be agreeable to make joint decisions with me.

13.3 The respondent has not involved himself, in any way, in any decisions regarding the up-bringing or nurturing of the child and has no contact with the child or myself.

13.4 Notwithstanding the existence of a court order for maintenance respondent never paid maintenance for the minor child.

13.5. At this age, the child cannot identify her father let alone identify with him.

13.6 Respondent has elected to abandon his right of guardianship over the child.”

As framed by the applicant, these two paragraphs seek to cast the burden of proof on the respondent by blaming him for failing to, firstly, communicate with her, and, secondly, exercise his guardianship role....,.

It seems to me that she bears the onus of proving, on a balance of probabilities, that the respondent, as the guardian, has refused to perform the functions of guardianship or has, in his role as a guardian, been irresponsible and neglectful of the child's interests. See Ryan v Ryan 1963 R & N 356 (SR)…., and NCUBE in Family Law in Zimbabwe…,.

HH134-12 : EVANGELIST SANDE (nee NYAMANGUNDA) vs TAKAWIRA KIZITO SANDE
Ruled By: CHITAKUNYE J

In 1989, the plaintiff and defendant married each other in terms of customary law. Their marriage was however not registered. After a period of about ten years living together in the manner of husband and wife they decided to have their marriage solemnized in terms of the Marriages Act [Chapter 5:11] of the laws of Zimbabwe. Their marriage was thus solemnized on 11 February 1999 at Harare in terms of the Marriages Act. That marriage still subsists.

Their marriage was blessed with two children who were born in 1991 and 1998 respectively.

After a period of about ten years from the year their marriage was solemnized, some unhappy differences between the parties became unbearable and the plaintiff opted to seek a decree of divorce. On 9 April 2010, the plaintiff sued the defendant for a decree of divorce and other ancillary relief.

The plaintiff alleged that the marriage relationship has irretrievably broken down to an extent that it cannot be restored to a normal marriage relationship for the following reasons:

(1) The defendant is verbally abusive towards the plaintiff and generally disrespectful;

(2) The defendant is not financially responsible;

(3) The defendant has lost all love and affection for the plaintiff; and

(4) The defendant has a child born to an adulterous relationship with another woman.

As a consequence of this, the plaintiff believed the marriage has irretrievably broken down. She therefore sought a decree of divorce.

During the subsistence of the marriage the parties acquired movable property of which she sought to be awarded most of that property.

She also sought an order awarding her custody of the minor child with the defendant being ordered to pay monthly maintenance for the upkeep of that child.

She further sought an order for costs.

The defendant, in his plea, denied being abusive and financially irresponsible. He however did not deny that he fathered a child as a result of an adulterous relationship he had with another woman. He equally did not deny that the marriage has irretrievably broken down.

The defendant raised a claim in reconvention.

In his claim, he sought an order distributing the movable property according to his own schedule. He alleged that the parties also acquired an immovable property, namely, Stand No.458 Glen Norah A, Harare. He thus sought an order awarding him that immovable property.

The plaintiff's plea to the defendant's claim for the immovable property was to the effect that that immovable property was bought by the plaintiff alone and not by the parties. It should therefore be awarded to the plaintiff.

At a pre-trial conference, most of the issues were settled. The parties agreed that:

(1) The marriage between them has irretrievably broken down and so a decree of divorce should be granted;

(2) Custody of the minor child, Charmaine Tadiwanashe Sande (born 30 January 1998), be awarded to the plaintiff with the defendant exercising reasonable rights of access.

(3) The defendant pays maintenance for the minor child at the rate of USD50 per month and that he buys a set of school uniform for the child twice a year;

(4) The defendant shall contribute towards the adult child's University education;

(5) The manner of sharing of all the movable property.

The issues referred for trial comprised:

(1) Whether or not the defendant is entitled to claim a share in the immovable property known as Stand 458 Glen Norah Township of Glen Norah, Harare.

(2) If the defendant is entitled to a share in the said immovable property, what share is he entitled to?

(3) Whether or not there should be an award of costs against the defendant.

The plaintiff gave evidence and tendered a number of documentary exhibits in support of her case. The defendant thereafter gave evidence contending that he is entitled to a 60% share of the immovable property....,.

The contentious issue pertains to the immovable property, namely, Stand number 458 Glen Norah A, Harare.

From the evidence adduced in court it was common cause that the parties' first immovable property was a residential Stand in Ruwa. That Stand was bought after the defendant obtained a loan from his employer. Though the parties are not agreed as to the eventual contribution of each one, they are, however, agreed that the Stand was registered in their joint names and that both of them directly contributed to its purchase price. This Stand was sold after the purchase of Stand 458 Glen Norah A (the immovable property in question).

The immovable property in question was acquired in 1999 whilst the Ruwa Stand was sold, at the earliest, in 2000, as that is the year the defendant's loan towards that Stand was paid off. The parties are however not in agreement on the manner in which the proceeds from the sale of the Ruwa Stand were utilized.

The defendant contended that part of the proceeds went towards clearing the balance of the plaintiff's loan for the purchase of the Glen Norah house, partly towards the purchase of a pick-up truck, and the balance towards improvements to the Glen Norah house.

The plaintiff denied that any of the proceeds went towards the Glen Norah house. She maintained that the defendant used all the proceeds, including her 50% share, towards the purchase and repairs to a pick-up truck the defendant stubbornly bought.

The plaintiff argued that she should be awarded the immovable property because she is the one who bought it and she will be the one staying with the children.

She tendered documents showing that she applied for a mortgage loan from her then employer, Standard Chartered Bank. She was granted the loan in the total sum of $455,000 to enable her to buy Stand number 458 Glen Norah A, Harare. This amount comprised the full purchase price of $435,000 and transfer fees. The loan was to be repaid through deductions from her salary over a period of 300 months. She repaid the loan in about five years due to additional income she got from her employment such as staff bonus and profit sharing scheme that her employer devised for its employees. She argued that during the period of loan repayment the defendant did not assist her at all. The defendant had in fact been against the idea of the plaintiff purchasing the house. The plaintiff categorically refuted the defendant's contention that proceeds from the sale of the Ruwa stand were used to pay off her loan.

The plaintiff also tendered the agreement of sale and the Deed of Transfer both showing that they were in her name as the purchaser and owner.

The defendant's evidence was to the effect that he contributed about 80% of the purchase price for the Ruwa Stand whilst the plaintiff contributed about 20%. For the Glen Norah house, the plaintiff's contribution was about 20% by way of loan from her employer and the balance of the purchase price was from proceeds of sale of the Ruwa Stand. He contended that his contribution in the Glen Norah house must be assessed on the basis of his greater contribution in purchasing the Ruwa Stand which, in turn, was a greater contribution towards clearing the plaintiff's loan. In the circumstances, he believed he deserved a 60% share in the Glen Norah house.

The defendant did not however have any documentary proof of his assertions. The defendant's excuse for lack of such proof was that the plaintiff had destroyed all the documents to do with the Ruwa Stand.

At the end it became a question of his word against the plaintiff's word as supported by her documents.

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

In the instant case, whichever way one looks at the facts – either from the position of the issues agreed at the joint pre-trial conference, or the legal position as perceived, the plaintiff has hopelessly failed to discharge the onus to have the defendant visited with liability. Consequently, the plaintiff's claim is dismissed with costs.

Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

Whether the first defendant was aware of the legal wrangle between the plaintiff and the second defendant and third defendant and thus a mala fide or a bona fide purchaser of the propertyThis issue arose from the averment that was first made by the plaintiff's husband in his founding affidavit that the first defendant was ...

Whether the first defendant was aware of the legal wrangle between the plaintiff and the second defendant and third defendant and thus a mala fide or a bona fide purchaser of the property

This issue arose from the averment that was first made by the plaintiff's husband in his founding affidavit that the first defendant was a tenant at the property at the time he had the legal dispute with the second defendant. The plaintiff's husband further averred that he had personally alerted the defendant of the dispute and warned him against purchasing the property. He labelled the first defendant a mala fide purchaser. The first defendant disputed the allegations in his opposing affidavit and deposed that he was a bona fide purchaser.

The onus to show that the first defendant was a mala fide purchaser lies on the plaintiff. She was not personally involved in the dispute between her husband and his brother. She did not know the first defendant until the pre-trial conference of 1 April 2010. Her husband, who alleged that he alerted the first defendant of the dispute at the time that he appealed to the Supreme Court against the first judgment, died before he could testify.

There was no evidence demonstrating that the first defendant was a tenant at the property or that he was aware of the pending appeal in the Supreme Court other than the averments to that effect in the answering affidavit of the plaintiff's husband. The evidence of the first defendant's witness Chiedza Chemere showed that the plaintiff's husband regularly visited the property in 2000 riding a motor cycle or driving a car; and on such visits he would advise the tenants thereat that the property was his before sprinkling some water thereon. This period, of his incessant and relentless visits, coincided with the period of the appeal that was pending in the Supreme Court. The first defendant confirmed that these visits and claims continued even after he took occupation. Further, the first defendant averred that he talked to the tenants when he viewed the property. He made the offer to purchase after he was shown exhibit 4, the document from the City of Harare which identified the second defendant and his wife as the holder of the rights, title and interest in the property. No evidence was called by either party on the report that the first defendant received from the tenants. Regard being had to the evidence of Chiedza Chemere on the behaviour and claims of ownership of the house by the plaintiff's husband; it seems to me that the tenants would naturally have advised him of that conduct and those claims. In addition, his avowed disinterest in visiting the property between the date of purchase and occupation betrayed his prior knowledge of the plaintiff's claim in the property. He only went to the property after the registration of title because he believed that would defeat the plaintiff's entitlement in the property.

The probabilities confirm that he must have been aware of the claims of the plaintiff's husband to the property when he purchased the rights in the property on 6 December 2000. The plaintiff averred that she was told by her husband that the first defendant was aware of his claims to the property. The onus to prove that the first defendant was a tenant at the property rested on the plaintiff. She did not call any evidence to show that he resided at the property. She did not know the tenants at the property. She thus relied on the first hand hearsay of her husband. While the plaintiff failed to prove that the first defendant was a tenant, I am satisfied that that she has proved, on a balance of probabilities, that he was aware of the claim of the plaintiff's husband to the ownership of the rights, title and interest in the property.

A consequence of this finding is that the first defendant was a mala fide purchaser.

The above finding would form an adequate ground to grant judgment in favour of the plaintiff. However, it is on the basis that I might be wrong in holding that the first defendant was a mala fide purchaser, that I proceed to determine the second issue referred to trial.

HH38-12 : PAUL CHIONISO MAWACHA AND CECILIA MAWACHA vs STERBY NHAMO AND INNOCENT NHAMO AN ANOTHER
Ruled By: KUDYA J

The onus to establish that he was known to..., lay with the plaintiffs. They failed to discharge that onus.

HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

..., I consider this unchallenged evidence..., as common cause.

HB10-12 : NOBERT KATERERE vs STANDARD CHARTERED BANK ZIMBABWE LTD
Ruled By: NDOU J

The onus is on the plaintiff. It is common cause that the alleged Agreement was not in writing. The question, therefore, is whether the plaintiff has adduced evidence which on a balance of probability proves the existence of the alleged Agreement...,. The evidence for the defendant is documentary evidence and knowledge of the banking policies ...

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

Fraud should not only be pleaded but must be proven. The cession involved a third party who is the secretary of the board of the municipality who would not have approved it if there was fraud. There is a presumption of regularity.

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

The late Job Bruno Kadengu died testate on 25 March 1990. His Will contained the following clauses:

“2. The expression 'Executors' or 'Executor' wherever used in this Will mean either Executors or Administrators or Trustees or any two or all of these offices as may be appropriate in the circumstances and in the context thereof and the term 'Executors' includes the singular and the term 'Executor' includes the plural.

5. My Executor shall take possession of all my property, whether movable or immovable, of whatsoever nature and sort, and wheresoever situate, and whether the same be in possession, reversion, remainder or expectancy, and, after paying thereout all my just debts and taxes payable by reason of my death, and the expenses of the administration of my Estate, then he shall pay and apply the same as hereinafter directed.

6. I hereby direct that my Executor shall purchase a house in the northern suburbs of Harare and I desire that such house be large enough and commodious enough, in the discretion of my Executor, to comfortably accommodate my wife, OLGA, and any dependent children born of me and my said wife who may survive me. I hereby give and bequeath to my said wife the said house as a special legacy. I further give and bequeath to my said wife, as a special legacy (or special legacies), all the household furniture and effects of which I may die possessed and effects of which may, at the time of my death, be situate in the residential property where my said wife and I may be living as at the date of my death. The legacies referred to in this paragraph shall be conditional upon my said wife, OLGA, surviving me for a period in excess of thirty (30) days.

7. I record that I own a certain farming property situate near Rusape. Provided that my mother shall survive me for a period in excess of (30) thirty days and provided that I still own the said farming property as at the date of my death, I hereby give as special legacies to my mother all the farming implements, livestock and other movables which may belong to me at my death and which may be situate on the said farm as at the date of my death. I further hereby give and bequeath to my said mother a life usufruct in respect of the said immovable farming property but subject to the provisions contained in the immediately subsequent paragraph hereof pertaining to my sister, ROSA CHIMAMBO. I direct that the dominium in the said farming property shall be assumed and taken by my Trustee appointed hereunder who shall deal with the same as directed hereunder.

9. After discharging my debts and taxes, and paying the legacies and providing for the aforesaid usufruct, and, generally dealing with my directives detailed hereinabove, my Executor shall sell and liquidate and turn into cash the entire balance of my Estate and my Executor shall hold the resultant monies in his own name as Trustee of a Trust Fund and he shall apply the income and capital thereof as hereinafter directed. The successor in office as Trustee of my Trust Fund shall be the Senior Partner for the time being of the said Messrs Gollop & Blank.

10. My Executor, as Trustee, in such manner as he shall, in his absolute discretion, from time to time think fit, pay and apply the income of my Trust fund to or for or towards, the benefit, maintenance, education, and advancement of my said wife, OLGA, my said mother and any and every child born of my union with my previous wife and any and every child born of my union with my said wife, OLGA, and, without derogating from the generality of the aforegoing, the following persons; viz.”

The appellants were among the persons listed under paragraph 10.

It is common cause that Gregory Slater who was appointed executor of the Will failed to complete the administration thereof before he fled the country on allegations of misappropriation of funds and that Messrs Gollop and Blank renounced their appointment as executors and trustees of the estate on 5 September 1997.

The assets of the estate were given as 4,000 shares in Paradise Park Motel (Pvt) Ltd and a certain piece of land in the district of Makoni called Alloa Farm.

The Master, in an attempt to speed up the administration of the estate, on 2 July 1999, appointed the second respondent as executor dative of the estate.

It seems that the second respondent was unable to remedy the problems left unresolved by Gregory Slater, and, on 28 September 2000, the first and the second appellants wrote to the Master complaining of the second respondent's inaction and his failure to wind up the estate in accordance with the wishes of the testator.

The letter did not achieve the desired result, and, on 24 March 2003, the appellants made an application to the High Court seeking the following order:

“IT IS ORDERED THAT:

1. The Trust which was to be set up in terms of Clause 9 of the Will be and is hereby abandoned.

2. The deceased's 4,000 shares in Paradise Park Motel (Pvt) Ltd shall be sold to the best advantage of the beneficiaries.

3. A large enough and commodious enough house shall be purchased for the first Respondent and her minor children from the proceeds of the sale of Paradise Park Motel (Pvt) Ltd. The Master of the High Court (the third respondent) shall determine whether the house which the estate shall be purchasing for the first respondent and her children is 'large enough and commodious enough'.

4. After purchasing the house described above for the first respondent and her children, the residue shall be equally distributed among the surviving beneficiaries. The shares of the beneficiaries who are outside the country or who are not part (sic) to these proceedings shall be…,. (illegible).

5. The immovable property, situate in Makoni District, namely, Alloa Farm, held under Deed of Transfer 7689/81 shall not be sold. It shall be retained as the family home to be registered in all beneficiaries names or to be registered in the name of the nominated beneficiary in trust for the rest of the beneficiaries.”

It was their contention that the intention of the testator, as expressed in clause 9 of the Will, could no longer be implemented because of the abdication of Gregory Slater and the renunciation by Gollop & Blank. They alleged that they could not agree on a suitable substitute, and, in any event, some of the beneficiaries could not be located while others were resident outside Zimbabwe.

On 23 July 2003 the appellants obtained a default judgment in the terms set out above. This order was, however, rescinded, by consent, and the matter was argued before the court a quo.

The second respondent, the executor dative, alleged that the estate was illiquid making it impossible for him to discharge his mandate. It was his view that the ownership of the 4,000 shares should be determined before the estate could be wound up.

The three issues argued by the parties before the court a quo were as follows:

1. Whether or not the estate can no longer be wound up in terms of the Will because some clauses have become irrelevant;

2. Whether or not the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased's estate; and

3. Whether or not Alloa Farm can still be dealt with in terms of the Will....,.

The court went on to decide the issues before it and found against the appellants on all three issues....,.

I turn to the final issue, which is whether the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased estate. The learned Judge dealt with the matter thus:

“The applicants referred to affidavits by the first respondent in which she stated that the shares belonged to the estate. They also attached the First Interim Liquidation and Distribution Account laid for inspection on 4 December 1992 and the subsequent First and Final Liquidation and Distribution Account of 1 November 1996 in which the shares are reflected as being assets belonging to the estate as proof that they are estate property.

In paragraph 13 of the Founding Affidavit, the applicants aver that the shares belong to the Estate.

In response, in her opposing affidavit, the first respondent averred that those shares in Paradise Park Motel (Pvt) Ltd had not been paid for at the time the testator died and that he never owned them. She then goes on to state that they never became part of the estate.

Apparently, the sellers of the shares invited interested beneficiaries to participate in Paradise Park Motel (Pvt) Ltd. None was interested save the first respondent who negotiated transfer to herself and who took transfer.

In their answering affidavit, the applicants insisted that the shares form part of the estate - no doubt on the basis of the earlier statements on oath to this effect by the first respondent.

The applicants did not dispute the averment that the letter of 23 April 2002, by Messrs Gill, Godlonton & Gerrans, was written in response to the one by their then erstwhile legal practitioners, Messrs Musunga & Associates, over the transfer of an immovable property associated with Paradise Park Motel (Pvt) Ltd. This letter, on page 74 of the record, indicated that the agreement referred to was entered into between Auto Export/Import (Pvt) Ltd and Auto Import/Export (Pvt) Ltd as purchaser and that transfer could only be effected to Paradise Park Motel (Pvt) Ltd and not the estate.

The applicants did not lay facts before this court on the status of Paradise Park Motel (Pvt) Ltd other than averments of the first respondent's sworn affidavit to the effect that that she would become co-director with the testamentary executor in this company which was part of her late husband's estate.

The letter from Gill, Godlonton & Gerrans seems to suggest that post-payments on the purchase price were paid by the first respondent.

There would be need to lead evidence on the true circumstances surrounding the shares in question.

It may very well be that the shares belong to the estate notwithstanding that in terms of section 104(1) of the Companies Act [Cap 24:03] the holder of a certificate duly signed and with the seal of the company is presumed to be the owner of the shares on a prima facie basis.

This, however, is an area where further evidence will be needed.

If so advised, it seems to me that this is an issue to be pursued by the second respondent with the Motel and the first respondent.

When the applicants brought the application, it must have been in their contemplation from the contents of the letter from Gill, Godlonton & Gerrans that a dispute of fact would arise on the question of shares. They did not cite the company. These factors are fatal to the present application. I would thus dismiss the request to hold that the 4,000 shares belong to the estate in the absence of further evidence.”

It appears to me that the dispute as to the ownership of the shares is bona fide and not merely illusory. In such a case, the onus is on the appellants to satisfy the court that the matter could be resolved on the affidavits without the risk of injustice to the other party: see Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…,.

This they failed to do.

I cannot fault the learned Judge for finding himself unable to resolve the dispute on the papers without hearing evidence. In choosing to proceed by way of court application the appellants, aware of the dispute of fact, took the risk of failing to discharge the onus on them to convince the court that the matter could be determined without calling evidence.

In the premises, I would uphold the decision of the learned Judge on this issue as well.

HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

The standard of proof in criminal proceedings is ordinarily proof beyond reasonable doubt whereas that for civil wrongs is proof on a balance of probabilities.

HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA
Ruled By: MAVANGIRA J

The denials by the defendant of the plaintiff's claim that he would expend his attentions and finances on his various adulterous relationships, and neglected his family, are baseless and ought to be dismissed as untrue. The probabilities tend to support the plaintiff's testimony as to the defendant's wayward conduct in the various respects that she stated.

HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS
Ruled By: PATEL J

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.The first and second respondents are directors of the third respondent, which is also a safari operator.The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for ...

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.

The first and second respondents are directors of the third respondent, which is also a safari operator.

The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for managing all safari operations in Zimbabwe.

Background

The applicants were granted two written concessions to operate hunting safaris in the Rifa Safari Area for a period of 10 years expiring on the 31st of December 2007.

Before this date, on the 18th of October 2007, the National Parks and Wildlife Management Authority (the Authority) conducted an auction for a new 5 year concession in respect of the applicants' concession area. At that auction, the applicants were prevented from bidding for the concession because they had failed to furnish the requisite Bank guarantee.

According to the first applicant, he then approached the first respondent who undertook to bid on behalf of the applicants after exhausting the respondents' own bidding limit.

The first respondent won the final bid for the sum of $750 billion.

The first applicant then thanked him and was congratulated by all present for having retained the concession.

Subsequently, on the 20th of October 2007, the respondents reneged on their arrangement and sought to retain the concession for themselves.

The respondents deny the applicants averments.

They contend, that, all bidders at the auction were fully aware of the Bank guarantee stipulation, as was clearly stated in the National Parks and Wildlife Management Authority's prospectus, and that there was no arrangement between the parties prior to the auction.

They did, subsequently, discuss the possibility of sub-letting part of the concession area to the applicants but nothing concrete materialised thereafter.

They further aver, that, if their Concession Agreement with the National Parks and Wildlife Management Authority (the Authority) were to be cancelled, they would suffer irreparable harm.

The National Parks and Wildlife Management Authority (the Authority) avers, that, the application is fatally defective in that it does not cite the Minister of Environment and Tourism (the Minister) as required by the Parks and Wildlife Act [Chapter 20:14].

Moreover, the Parks and Wildlife Act stipulates a maximum period of 10 years for hunting concessions and, therefore, the applicants cannot be granted any further extension.

On the 19th of February 2008, the applicants filed an urgent application to assert their rights, and, on the 22nd of February, they were granted a Provisional Order interdicting the respondents from evicting the applicants from the Rifa Safari Area and from interfering with the applicants' operations in that area.

They now seek a Final Order confirming the above relief, and, further interdicting the respondents from exercising any rights in the applicants' concession area pending the determination of Case No. HC891/08.

In that case, the applicants seek the setting aside of the written concession granted by the National Parks and Wildlife Management Authority (the Authority) to the respondents in November 2007. The Concession Agreement was signed by the Minister on the 10th of January 2008...,.

The issues for determination herein, as I perceive them, and as concurred by counsel, are as follows:

1....,.

2....,.

3. Whether there was a clear agreement between the applicants and the respondents whereby the first respondent was to bid on behalf of the applicants at the auction.

4. Whether the agreement between the applicants and the respondents, if any, was legally binding and enforceable as against the National Parks and Wildlife Management Authority (the Authority)....,.

Agency Agreement between the Parties

The affidavit evidence filed by the parties is markedly conflicting as to what precisely transpired during the bidding process at the auction held in October 2007.

Nevertheless, the applicants' version of events is strongly supported by the affidavits deposed to by several independent individuals who were present on the day.

These corroborating affidavits (by Messrs. Evans, Jolliffe, Fundira, Townsend, Dziya and Duckworth) confirm, firstly, that, the first applicant and the first respondent had concluded some arrangement for the latter to bid on behalf of the former, and, secondly, that the first applicant was congratulated by those present for having retained his concession.

Having regard to the foregoing evidence, the applicants' version in this respect is more credible than that of the respondents.

Accordingly, on a balance of probabilities, it is reasonably clear, that, there was an agreement between the parties the effect of which was that the first respondent would act as agent for the applicants in the bidding process at the auction.

Whether Agreement Legally Binding and Enforceable

In terms of the prospectus governing the auction conducted in October 2007, the conditions for participation which are presently pertinent were as follows:

(i) Firstly, only citizens or representatives of wholly owned Zimbabwean companies with no relevant criminal records would be permitted to bid.

(ii) Secondly, all current hunting concession holders “with the exception of the current concession lessee” (viz. the first applicant) were not allowed to participate.

(iii) Thirdly, bidders were required to submit proof of funds by way of a Bank guarantee to be furnished to the National Parks and Wildlife Management Authority (the Authority) two hours before the auction; prospective bidders who failed to do so would not be allowed to bid.

(iv) Fourthly, the National Parks and Wildlife Management Authority (the Authority) reserved to itself the right to vet all bidders.

It is also necessary to consider the concession conditions of sale set out in the prospectus. These conditions directed all participants to obtain auction participation forms on payment of the prescribed fee and to pay a refundable participation deposit of $20 million. At the conclusion of the auction “the highest accepted bidder will be declared the purchaser, subject to the reserve price [and] further vetting” and immediate payment of a surety deposit of $5 billion followed by payment for the concession itself within 14 days.

Although the registration status of the third applicant was questioned by counsel for the first, second, and third respondents by dint of a typographical error in the founding affidavit, I am satisfied that the third applicant is not a South African entity but a company registered in terms of the laws of Zimbabwe.

What is more relevant in casu is the applicants' contention that they were assured by the National Parks and Wildlife Management Authority (the Authority) that they would not be required to provide any Bank guarantee in order to be able to bid at the auction.

Apart from this bald assertion, there is no documentation to support this contention.

Moreover, the above-cited conditions for participation make it clear that all prospective bidders, including the first applicant qua current concession holder, were obliged to provide the requisite Bank guarantee, failing which they would not be allowed to bid at the auction.

Equally significantly, the applicants have proffered no evidence whatsoever that they paid the stipulated auction participation deposit.

Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

On 26 August 2005, the plaintiff issued summons out of this court seeking an order setting aside the appointment of the first defendant as Chief Nyajina-designate; directing that the second and third defendants take into account and abide by the values, traditions, and customary principles of succession of the VaZumba ...

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.

The letter of explanation was not placed before me and it was not until after some months that the matter was then brought to my attention. In the event, it was set down before me in chambers to be argued as an urgent application.

The respondents indicated a desire to file affidavits in opposition and it was agreed between the parties that the best way was for the matter to be dealt with as an opposed application. The parties thereafter filed their documents, including heads of argument, and the matter was then argued in court.

On the date of hearing, counsel for the applicants made reference to a number of authorities to which I had no access. He promised to avail them to me shortly thereafter, but, it was not until 31 May 2007 that this request was complied with. It was, as a consequence, virtually impossible to render a judgment soon after the hearing as I then was heavily committed in other duties.

I turn now to the application before me.

The applicants are unions representing members in the employ of the second respondent. The first respondent is a medical aid society set up for the benefit of the employees of the second respondent and would appear to have been set up by virtue of a Collective Bargaining Agreement between the second respondent and its employees.

It is common cause that the first respondent was collecting subscriptions from the employees and the second respondent. Benefits which the employees received were not related to the level of payment by the beneficiary and it was, consequently, a fact that the second respondent was operating as a welfarist society with its members being afforded the same benefits.

In August 2006, the second respondent put into effect a three-tier system where benefits were structured according to the level of contributions paid by respective members.

Following representations made to the second respondent, the changes were not put into effect immediately as the parties attempted to find a common position. However, at the end of August 2006, the second respondent gave notice of its intention to put the changes into effect at the beginning of October 2006. The changes were put into effect and the system is now operational.

In view of the reasons I alluded to earlier, an attempt to have a temporary interdict stopping the implementation was still-born. It therefore only leaves the final relief for determination.

The terms of the final relief are in the following terms:

1. That the implementation and execution of the tiered system by the first respondent, effected on 1 October 2006, be and is hereby set aside.

2. That the first respondent be and is hereby ordered to cease/stop and be inducted from implementing the tiered system introduced on 1 October 2006.

3. That the first respondent pays the costs of suit.

Extensive heads of argument were filed on behalf of the parties. In addition, both counsel addressed the court orally.

Counsel for the applicants argued that there were three issues for determination:

(i) The first issue was whether or not the first respondent had powers, in terms of its Constitution, to alter the medical aid scheme in existence since its inception. Counsel invited me to look at the narrow positivist meaning of clause 11(2) as well as the context of the agreement.

(ii) The second issue was whether or not the Board of the third respondent had issued a directive to the first respondent following upon a meeting held on 20 October 2006; and

(iii) The last issue was whether or not the applicants had a legitimate interest to be heard before a decision was made to link benefits to subscriptions.

Counsel for the respondents argued almost on the same premise as counsel for the applicants viz whether the second respondent had the power to introduce the benefit structure that it did.

His argument was that the applicants had considered the structure of the third respondent in isolation of the statute. He submitted that the first respondent had the power to alter the benefits accorded to its members. In so far as the third respondent was concerned it was his contention that it had not issued a directive to the first respondent to stop implementing the alteration in the benefit structure. Lastly, it was argued, on behalf of the first respondent, that, the provision of medical services by the first respondent to members of the applicants was not a condition of service and that therefore there was no need for the applicants' members to be consulted prior to the implementation of the changes.

I think the logical place to start in this matter is the examination of the relationship between the applicants and the first respondent.

The first respondent was established by the National Industrial Council for the Railway Industry in 1970. One of its objects was to afford members the facility of obtaining medical and surgical treatment for themselves, and their dependants, including the provision of drugs and medicines.

According to the Constitution in terms of which the first respondent was set up, its members comprised of the following; employees of Railways, employees of National Railways of Zimbabwe, Railmed, National Railways of Zimbabwe Pension Fund, RAE, RAU, RAYOS, REC, RMS, and Z.A.R.W.U. who are entitled to membership in terms of their conditions of employment.

Also included in the list of people entitled to be members are pensioners of the various institutions described above and the widows or widowers of those persons who had been in employment in the same and were members of the first respondent.

The applicants, being unions, are representing the persons employed by the various bodies I have referred to. Except for those employed by the first respondent, none of the members of the applicants can say that they are employees of the same. The greater number of the applicants' members therefore are employed by the other bodies.

Going by the objects of the Constitution of the first respondent, the applicants' members have a relationship with the first respondent whereby the latter has undertaken to afford the members facility for the provision of medical and surgical treatment as well as drugs and medication. Nowhere in their papers have the applicants' alluded to any other contract with the first respondent except for the provision of the services I have described above.

Yet, in addressing the question of the first respondent's actions in altering the benefit structure being offered to their members, the applicants contend that the actions of the first respondent are in fact an alteration of their conditions of service.

In order to dispose of the issue of the relationship between the applicants and the first respondent, it then becomes necessary to arrive at a decision as to the meaning to be ascribed to the phrase “conditions of service.”

When one is in service, one is in employment, and, therefore, conditions of service are the same as conditions of employment. In the case of OK Bazaars (1929) Ltd v Madeley NO & Anor 1943 TPD392, conditions of employment were described as:

“Conditions of employment in the present context means simply the terms, either express or implied, contained in a contract of employment.”

The terms and conditions of the employment contracts of the applicants' members are not in the purview of the first respondent. In my view, conditions of service can only exist where services of a personal nature are rendered, the one being the employer the other the employee.

We do not have services of a personal nature being rendered by the applicants' members to and on behalf of the first respondent.

I presume that the contracts of employment provide for contributions by the employer for subscriptions to a medical aid society. Beyond that, I refuse to go as the contracts are not before me and any further comments on my part would be mere speculation.

The point is made by counsel for the applicants that the effect of the alteration put in place by the first respondent was to fundamentally alter the structure of the Medical Fund from one based upon the principle of equal contributions from the employer and employee and equal unlimited benefits to a new principle of a scheme based on full recovery.

I accept that the entitlement to the medical aid benefit, on the basis of the equal contribution with the employer and attendant benefits is a condition of service. I do not accept, as contended by counsel for the applicants, that receiving equal benefits with other members where the one pays less than another member is a condition of service.

However, the linking of the benefits to the level of subscriptions paid by the first respondent's members does not affect the terms on which the members of the applicant are afforded employment by their respective employers.

The level and extent of benefits afforded to members is within the discretion of the first respondent and the employer has no input in such assessment.

There is no suggestion that under the new scheme the employer will contribute less than it has been contributing, because if that were the case then the applicants' members would have been on very firm ground in arguing that their conditions of service had been altered.

All the scheme does is to ensure that a contributor obtains services according to the level to which they can contribute in terms of subscriptions. The employer's obligation is not lessened in any manner as he is still obliged to contribute in equal measure to the contributions made by the member.

The condition of service is the entitlement to membership in terms of the contract of employment coupled with the employer's obligation to contribute an equal measure as the employee.

Since the employer does not determine the level of benefits afforded by the first respondent, the fact the benefits are reduced does not alter the conditions of service which remain unchanged. I am unable to find, therefore, that, the scheme has the effect of altering the conditions of service of the first respondent's members.

I move on.

The next issue I have to determine is whether the first respondent has the power, under the Constitution, to alter the benefit scheme in the manner that it did.

The powers of the first respondent must, of necessity, be examined in the conjunction with the provisions of the Medical Services Act [Chapter 15:13] (“the Act”) which regulates the manner in which medical aid societies conduct their business as well as the manner in which they are managed.

Although the first respondent, as an entity, was set up in 1970, which was prior to the promulgation of the Medical Services Act, its registration was deemed in terms of section 17 of the Medical Services Act.

I start with the definition section which not only describes a medical aid society but also specifies its purposes. The definition in section 2 of the Medical Services Act is as follows:

“…, any association or organization which accepts subscriptions from members or other persons wholly or mainly for the purposes of -

(a) Paying any expenses incurred by such members or persons, and, additionally, or alternatively, their dependants or employees, in respect of medical or dental treatment; and

(b) Meeting the whole or part of any expenses incurred by such members or persons, and, additionally, or alternatively, their employees, in respect of medical or dental treatment.”

The registration of a medical aid society is provided for in section 9 of the Medical Services Act.

Section 9(5) of the Medical Services Act provides that the Secretary shall be satisfied in relation to the following before he can register a medical aid society:

(a) The minimum cover for medical services to be provided by the medical aid society is adequate for the purpose of meeting the costs of medical services at such level as may be prescribed; and

(b) Adequate financial provisions have been made for the proper maintenance of the medical aid society.

In terms of section 10 of the of the Medical Services Act, the Secretary is empowered to cancel the registration of any medical aid society which fails to comply with the provisions of section 9(5).

My view is that the powers granted to the first respondent, in terms of the Constitution, have, of necessity, to be considered in conjunction with the provisions of sections 9 and 10 of the Medical Services Act.

The Constitution provides for the creation of a Board to administer the affairs of the first respondent. Ten members are required to sit on the Board; five of whom shall be appointed by National Railways of Zimbabwe and the last five from the other entities mentioned earlier on in the judgment, from those institutions whose employees or members are entitled to membership of the first respondent.

Clause 11, from which the Board derives its powers, is phrased thus:

“Powers and Functions of the Board of Management

(1) Subject to the provisions of the Medical Services Act, the regulations made in terms thereof and any other law, it shall be the duty of the Board to administer the affairs of Railmed in a judicious manner at all times and always to act in the best interest of both Railmed and its individual members and to implement the directives of the Secretary responsible for the Health Ministry and REC as may be given from time to time.

(1) It shall have the power to:

(a) Formulate and issue Rules of Railmed to include the schedule of rates payable by different categories of members;

(b) Modify, amend, repeal, substitute or suspend any or all of such Rules where general or specific circumstances require such action;

(c) Determine the range and scope of benefits to be afforded by Railmed; and

(d) Refuse, terminate or restrict benefits in respect of any beneficiary who contravenes any Rule of Railmed.”

Although they have been placed before me, I have not been referred to the Rules of Railmed specifically and I cannot comment further on them other than to say that the first respondent does have the power in formulating such Rules to regulate the rates payable by the different categories of members which, of necessity, taking into account the different levels of employees in the undertakings must go with a medical aid society.

In real terms, the first respondent would have to set the level and range that each category of membership would have to pay as subscription for the services to be availed to such member.

It follows, therefore, that, the rates of contributions set by the first respondent would then have a bearing on the range of benefits that can be accorded for the categories of rates of contributions set in the Rules. It is only fitting, therefore, that consistent with the power to regulate the schedule of rates of contributions to be paid by the various categories of the members, the first respondent also be endowed with the power to regulate the range and scope of the benefits to be afforded by Railmed.

I cannot see the practical effect of a medical aid society having the power to set the schedule of rates of contributions to be paid by the different categories of members but not having the power to set the range and scope of the benefits to be afforded to the membership. It would, in my view, be only logical that the range and scope of benefits be set and then the contributions be calculated. The one cannot exist independently of the other.

I venture to suggest, that, in arriving at the benefits and contributions that are attendant thereon the Board of the first respondent has to bear in mind the provisions of the Medical Services Act, in particular that it act in the best interests of the members and the society itself.

I am fortified in this view by the intent of the first respondent as spelt out in its objects - that, primarily of providing members the facility of obtaining medical and surgical treatment for themselves and their dependants, including the provision of drugs and medicines.

The objects of the first respondent would not be met if the first respondent were curtailed in its power as to what benefits it can offer to its members. If that were a matter for the decision of the REC then the latter would have been specifically accorded those powers.

It has not.

It merely has the power to make decisions of a strategic nature.

This brings me to the next rung. Is the decision regarding the extent of benefits to be afforded to the members of the first respondent one that can be termed strategic in nature?

According to counsel for the applicants, even though the first respondent had the power, under its Constitution, to determine the range and scope of the benefits to be afforded to its members, it did not have the power to change the society from a welfarist one to one run on market principles with the aim of full cost recovery.

I find it hard to comprehend why the restriction on the power afforded to the first respondent, under the Constitution, was framed in such a vague manner.

If it was the intention that the REC gives directives of a long-term plan to the first respondent it was simpler, in my view, to have phrased it as such.

Counsel for the applicants went further and argued that the three tier system that was adopted by the first respondent was not a mere scheduling of the rates and contributions or the mere determination of the range of scope of benefits, but, was rather the essence and product of the first respondent's strategic recovery plan which was prepared in 2004 and commissioned in 2005. He premises his view on the argument that the entitlement to medical benefits is a condition of service.

I have already found that the medical benefit is not a condition of service, but that what was a condition of service was the entitlement to membership and the concomitant contribution by the employer on behalf of the employee.

It is pertinent to note that the contracts of employment where the conditions are spelt out were not displayed to the court as much of the argument is based on the alteration of the same.

The Constitution does not define what it means by strategic.

From the argument pursued by counsel for the applicants, it is clear that the meaning he ascribes to strategic is to do with an alleged alteration of conditions of service.

I have above already discussed on whether the introduction of the three-tier system of benefits, by the first respondent, constituted a change in the members conditions of service and my conclusion was that it did not constitute such.

I turn next to the question whether or not the REC issued a directive to the first respondent.

The REC wrote two letters to the first respondent subsequent to the adoption by it of the three tier system of benefits. The first letter to the first respondent was phrased as follows:

“RE: INTRODUCTION OF THE THREE-TIER SYSTEM EFFECTIVE 1 OCTOBER 2006

1. On 20 October 2006, the Railway Employment Council met and decided as follows:-

1.1 The introduction of the proposed Three-Tier Scheme is to be suspended with immediate effect, viz from the 20th instant and it shall remain so suspended until you are advised to the contrary in due course.

1.2 The suspension is intended to enable the Railway Employment Council to have the matter resolved and you are advised accordingly.

2. In the meantime, the deductions for the remission to you shall be as hitherto was the case before the purported introduction of the Three Tier System by yourselves.”

The letter was written by the chairman of the REC, and, on receipt of this letter, the chairman of Railmed sought clarification, as, in his view, it appeared that the four trade unions and NRZ had not resolved to direct the Board of Railmed to suspend the Three-Tier System.

A letter was dispatched from the office of the chairman of the REC in the following terms:

“I merely advised you that the feeling in Council was that the introduction of the proposed three-tier system be suspended with effect from the 20th instant. This was necessary in order to enable the members of the Council to reach an agreement.

However, you may choose to ignore my advice but you do not have any reason to misunderstand what I said.

I never pretended to say that the trade unions and NRZ resolved to direct the Railmed Board to suspend the three tier system. I have no power to direct any member or constituent member of the REC to do anything.”

What emerges from the last quoted letter is that the Board of the REC had not passed a resolution which would have issued a directive to the first respondent to suspend the introduction of the three-tier system.

It also emerges clearly from the chairman's letter that he was talking about a feeling in Council. There had been no agreement that the three tier system be suspended.

The letter from the chairman is very clear and it seems to me that if the applicants wish to contradict him and put forward a version that differs from his statement in the letter then they should have produced minutes of the meeting where the directive was given.

HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA
Ruled By: KUDYA J

The bulk of the evidence led by either party centred on the events that took place on 18 June and 22 June 2009...,. The onus to establish what transpired lies with the plaintiff. The plaintiff estimated that more than 20 owners and tenants attended the first meeting...,. He set out the purpose of the meeting. He ...

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge.

Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate at Rotten Row Magistrates Court in Harare on 14 January 2009 in the case of Manuel Chinanzvavana & Eight Ors No.8801-5/08. She was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Act”). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.”

The applicant alleged, in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).

Two grounds were used to justify the request:

(i) The first was that the institution of the criminal prosecution was rendered invalid by the pre-charge ill-treatment to which the applicant was subjected. It was argued that the manner in which she was apprehended by State security agents and treated in detention, prior to being brought to court on the charge, constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under section 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by section 15(1) of the Constitution.

The argument was that the uncontested behaviour by State security agents, in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody, rendered the institution of the criminal prosecution an abuse of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody.

The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.

(ii) The second ground was that the decisions made by the public prosecutor, to charge the applicant with the criminal offence and to bring the prosecution proceedings, were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment.

It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.

The assumption was that section 15(1) of the Constitution contains a rule that prohibits the admission or use, in legal proceedings, by public officials responsible for the initiation and conduct of criminal prosecution, and judicial officers, of information or evidence of the crime obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment.

The contention was that reliance on information or evidence of the crime obtained from the applicant, or a third party, by torture, inhuman and degrading treatment was a breach of the exclusionary rule and unlawful.

It also engaged the responsibility of the State in the violation of section 13(1) of the Constitution.

The effect of the argument was that the decision to charge the applicant with the criminal offence, and the institution of the prosecution of it, was not based on a reasonable suspicion of her having committed the criminal offence. The criminal prosecution was therefore not authorized by section 13(2)(e) of the Constitution.

The magistrate was of the view that the raising of the question as to the contravention of the applicant's fundamental rights was not frivolous or vexatious. He referred the question to the Court for determination.

The relief sought by the applicant was an order of permanent stay of the criminal prosecution....,.

The facts on which the determination of the question as to the contravention of the fundamental rights referred to in the order was based, were conveyed by oral testimony given by the applicant in the Magistrates Court. They were also conveyed through the affidavit deposed to by her on 12 January 2009 as well as by the arguments addressed to the Court by counsel on behalf of the applicant.

The truthfulness of the evidence conveyed by the means and methods referred to was not contested by the respondent.

The evidence is to the following effect:

On 3 December 2008, at 5am, the applicant was in bed at the family home in Norton. In the house were her son, nephew, and an employee. The son came to the bedroom and said there were people at the gate to the premises who wanted to talk to her. She woke up in a night dress only. The son came back saying he understood that the people were members of the police. Wearing a night dress only she walked to the kitchen where she met seven men and one woman in plain clothes. They said they were members of the police - but did not produce identity cards to show that they were police officers. Two of the men took positions on each side of the applicant. They each held her by the hand and led her to a Mazda Familia motor vehicle that was parked at the gate. In the car was another man.

The applicant asked her captors for permission to go back into the house and dress properly. She was, instead, pushed into the rear seat of the car. She was ordered to lie on the back seat between two men with her face on the lap of one of them. The man on whose lap she was forced to put her face had a gun across his thighs. Across the floor of the car in front of the rear seat there was another firearm. A jersey was used to blindfold her. She could hardly breathe as the jersey was pressing against her nose. When she complained of suffocation the tightness of the jersey was loosened a little bit.

She said she was terrified by what was happening to her.

The car was driven for about 40 minutes before it was stopped at a secret place. During the journey, the car radio had been switched on to produce a very loud sound. She was led out of the car into a room where she was told to sit on a chair. A woman gave her a dress which she said she reluctantly put on in place of the night dress.

After 30 minutes of their arrival at the secret place, the applicant was taken to another room and told to sit on the floor with legs stretched forward. When the blindfold was removed, six men and one woman started interrogating her. She was told to agree to become a State witness in the case under investigation or be killed. She was asked to give the name of an ex-police officer who visited her work place seeking financial assistance to go outside the country.

The questions sought to solicit from her information to the effect that she had used her organisation's funds to enable the ex-police officer to go outside the country and undergo military training in insurgency and terrorism.

The applicant said when she told the interrogators that she could not remember the name of the ex-police officer who had visited her office in 2008, one of the men took a piece of a hose-pipe about one metre long. Another man took a coiled piece of iron. The two men took turns to beat her with these objects several times on the soles of her feet using severe force. She said her assailants were quite zealous in what they were doing. She yelled in pain. When the first stretch of beatings ended, a woman brought her pants to wear.

The interrogation and beatings stopped in the afternoon of the first day at the secret place.

She was blindfolded and taken to a room in which she was kept in solitary confinement. The blindfold was removed each time she was in solitary confinement.

In the evening of the first day of her arrival at the secret place she was blindfolded and taken to a room. She was made to sit on a chair. When the blindfold was removed she saw the same people who had interrogated her earlier that day. When the interrogation commenced she was ordered to lift both legs and place the feet on the edge of a table.

She did as ordered.

Two men struck the soles of her feet repeatedly with severe force using the same objects used to beat her in the morning. She said her feet felt very sore. She could hardly walk the following day.

On 4 December 2008, the applicant was interrogated in the morning and afternoon without being beaten. In the evening she was told that as she was not co-operative, a decision had been made that she be surrendered to a merciless group of men and women. A blindfold was put around her head. She said she was gripped by fear. She thought she was going to be killed as she was pushed into a car and told to lie face down on the rear seat.

The motor vehicle was driven for a considerable time before being stopped at a secluded place. There was a sound of shuffling movement of people outside the car. She thought her captors were preparing to execute her. The car suddenly reversed and then drove on. The captors asked about her workplace. They alleged that she worked for Voice of America Studio. She said she told them she worked for Voice of the People. The car got back to the secret place at 1:00am.

In the morning of 5 December 2008, the applicant was taken to an interrogation room. When the blindfold was removed she saw Rodrick Takawira, who was her workmate, in the same room. One of the interrogators said to her:

“You have been lying all along, Rodrick has told us everything.”

Rodrick was taken out of the room.

One of the men brought gravel and put it on the floor to form mounds. She was told to pull up her dress above knee-level and kneel on the gravel. The interrogation began and continued with her in that position. She said she was injured on the knees and felt severe pain. Each time she tried to move the knees to relieve the pain the interrogators ordered her to move back into position.

She remained in that position for one hour.

The applicant said the interrogators wanted her to say that she had assisted Ricardo Hwasheni to go to Botswana for military training so as to carry out insurgent and terrorist activities in the country. She said she told the interrogators that she had a brief interaction with Ricardo when he visited their offices asking for assistance to leave the country. She said she told the interrogators that she referred Ricardo to Fidelis Mudimu who worked in the counselling services unit of the organisation.

On the fourth day, she was blindfolded and taken to a room where she was made to sit on a chair. When the blindfold was removed she saw nine men and one woman sitting at a conference table. One of the men had interrogated her before. They said they wanted to know more about Zimbabwe Peace Project and documents it had in its possession on human rights violations in the country. They asked about her interaction with Ricardo Hwasheni.

She said she told the interrogators that she had told Ricardo that her organisation did not give money to people who wanted to go out of the country. They asked her why she did not ask him which country he wanted to go to. When she said that was not her business, the interrogation became very aggressive.

The applicant said the men became visibly angry. One of them threatened to make her suffer. He said they were going to make her defecate.

Shaking with fear, and not sure whether she would come out of the room unhurt, she was given a paper and told to write a statement. The interrogators told her to write about the trip she had made to Botswana.

She did as told.

The next day she was told that there were some things the interrogators wanted deleted from the statement. She removed from the statement what the interrogators did not want and added what they said was to be added to the statement.

She said she wrote the statement in the manner her interrogators wanted before signing it.

According to her, it was not true that she had referred Ricardo Hwasheni to Fidelis Mudimu of the counselling unit. She said she did not make the statement freely and voluntarily. The statement contained what she was told to write by her captors because she believed that would make them release her.

On 14 December 2008, the applicant was taken to a conference room where there was a cameraman. The men and women who had interrogated her were present. The cameraman was introduced to her. She was told that she was to be video recorded whilst making a statement about how she met Ricardo Hwasheni. It was said a decision was to be made on the basis of the statement whether to prosecute her or turn her into a State witness.

After saying what the interrogators wanted her to say, she was blindfolded and taken to the room where she was kept in solitary confinement. She was held in solitary confinement, incommunicado, until 22 December 2008.

On 22 December 2008, the applicant was blindfolded and taken, by car, in the company of Rodrick Takawira, to a place where they were turned over to a police officer called Magwenzi. The police officer told them not to remove the blindfolds before those who brought them left. She said when the blindfold was removed she recognised the place where they were left by their captors as Braeside Police Station.

She was detained there.

The police later obtained, from a magistrate, a warrant authorising a search to be carried out at her house in Norton. She was taken to the house. For the first time she saw members of her family.

Whilst under the custody of her captors she had not been allowed to communicate with members of her family or her lawyer.

The search of the house did not yield anything relevant to the allegation that she recruited Ricardo Hwasheni to undergo military training for purposes of carrying out insurgency and terrorism in the country.

On 23 December 2008 she was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The facts on which the charge was based were extracted from the applicant by interrogation at different times during the period of detention extending from 3 to 14 December 2008.

On the basis of the information on which the charge was brought against the applicant, the public prosecutor instituted the criminal proceedings.

The applicant was then brought before the magistrate for remand pending trial.

The public prosecutor did not adduce evidence challenging what the applicant said happened to her from the time she was kidnapped to the time she appeared before the magistrate....,.

Section 15(1) of the Constitution provides that:

“(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.”...,.

According to the applicant..., the provisions of section 15(1) of the Constitution..., recognises that the prohibition contains a rule, by which it imposes an obligation on public officers charged with the responsibilities of initiating and conducting criminal prosecution, and judicial officers who preside over them, not to admit or use information or evidence obtained from an accused person or any third party by torture, or inhuman or degrading treatment.

Three issues arise in this context for determination. They are:

(i) Whether or not section 15(1) of the Constitution contains a rule prohibiting the admission or use, in any legal proceedings, of information or evidence obtained from an accused person or defendant, or any third party, by infliction of torture or inhuman or degrading treatment.

(ii) On whom does the burden of proving the essential elements of the rule lie and what is the standard for the discharge of the onus....,.

ONUS

The Court takes the second point for determination.

Its decision is that the onus is on the applicant to establish, on a balance of probabilities, that the information or evidence of the crime used by the public prosecutor to charge her with the criminal offence and prosecute her for it was obtained by the infliction of torture, inhuman and degrading treatment at the hands of the State security agents prior to the charge being brought against her.

The reason for the decision is that it is the accused person, or defendant, who has to raise the question of contravention of fundamental rights by the State. It is he or she who would have knowledge of what was done to him or her and what information was extracted as a result of the ill-treatment.

It was then for the State to prove, beyond reasonable doubt, that the decision to charge the applicant with, and prosecute the criminal offence, was taken upon consideration of independent information or evidence of the crime lawfully obtained and on which reasonable suspicion of her having committed the criminal offence was based.

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

MALABA DCJ: I have read the opinion expressed by the learned CHIEF JUSTICE. I regret that I am unable to agree with the decision that section 39(2) of the Constitution, as read with Standing Order No.6 of the House of Assembly Standing Orders ("Standing Order 6"), by implication, compels the nullification of the election upon proof that the Clerk of Parliament ("the Clerk"), who was under the obligation to conduct the election of the Speaker of the House of Assembly ("the Speaker") by a secret ballot, unlawfully counted invalid votes as secret ballots.

This case came to the Supreme Court by way of an appeal against the judgment of the High Court. The court a quo dismissed with costs an application for an order declaring that the election of the second respondent as the Speaker of the House of Assembly ("the House") on 25 August 2008 is null and void and set aside.

The applicants, who are members of the House who had taken part in the election of the Speaker, disavowed the application as an application for review. The substance of the relief sought and the reliance on the provisions of section 4(1) of the Administration of Justice Act [Chapter 10:28], however, show that it was an application for review.

The applicants alleged, in effect, that the Clerk who, as the administrative authority, was given the power to conduct the election of the Speaker by a secret ballot, in accordance with the machinery prescribed under section 39(2) of the Constitution, as read with Standing Order 6, failed to act in accordance with the requirements of the rule against counting invalid votes as secret ballots, and, as a result, affected their rights or legitimate expectation in the election.

A perusal of the papers filed in support of the application shows that the relief was sought on two grounds:

(i) The first ground was that there was "noise, utter chaos, and disorder" in the Chamber of the House at the time appointed by the Clerk for the holding of the election of the Speaker such that the environment never became conducive for conducting the election by a secret ballot....,.

On the first ground, the first applicant, in the founding affidavit, said that there was "too much noise in the House" at the beginning of the process for the election of the Speaker.

The intention was to show that the Clerk was unable to manage the activities of the members according to the prescribed procedure for the achievement of the purpose of the electoral law.

He said the noise was caused by members belonging to MDC-T party who were pacing up and down the Chamber conferring noisily with each other in support of the second respondent. He said that was done "in a manner that created utter disorder and raised very serious tensions in the House."

After describing how the Honourable Biti displayed the ballot paper, after he had cast his vote in the polling booth, so as to disclose to others for whom he had voted, before folding the ballot paper up and depositing it into the ballot box, the first applicant said, in paragraph 32 of the founding affidavit:

"Honourable Biti's shocking and unprecedented conduct caused more than a fracas in the House as Honourable Members started shouting objections and counter objections, including trading insults, at the top of their voices, while the voting process degenerated into total disorder…,."

In paragraphs 3.9, 3.10, 3.15, 5, 6, and 11 of the opposing affidavit the Clerk said:

"3.9 The mood and atmosphere in the House of Assembly, on the occasion, was neither unique nor unprecedented. Members of the House of Assembly were meeting together for the first time after a fiercely contested general election. As can be expected, under the circumstances, the conversation was lively and the exchanges exuberant. There was a fair amount of good-humoured raillery, including political taunting, verbal sparring and bantering, all done by Members from all the political parties represented in what appeared to be a good spirit of joviality. This kind of conduct is not unusual in our Parliament or any other Parliament for that matter, and, accordingly, I did not consider it a cause for concern on this occasion.

3.10 It is my submission that what has been described by (the) applicant as 'gross disorder, chaos or fracas' in the House was actually nothing more sinister than increased hustle and bustle in the House, in turn the result of the increase in number of Members of the House (an increase in the membership from 150 to 210 as a result of Constitutional Amendment No.18)…,.

3.15 Notwithstanding the environment in the House that I have described in paragraphs 3.9 and 3.10 of this affidavit I was able to manage the entire proceedings of the day according to my present programme without a hitch of any kind. It is, therefore, my submission that quite contrary to (the) applicants' allegations of 'utter disorder and fracas' the proceedings progressed exceptionally smoothly…,.

5. I deny that at the time immediately before the elections took place there was too much noise and there existed a state of utter disorder in the House. I also totally deny witnessing any manifestation of serious tensions. What I did witness in the House was the atmosphere that I have described in paragraphs 3.9 and 3.10 of this affidavit.

6. Save to confirm that I did call the House to order whenever I deemed it necessary, and, by so doing, achieved a continuing level of order which enabled me to discharge my obligation and safeguard the progress and integrity of the voting process as well as all other proceedings of that day the contents of this paragraph (25 of the founding affidavit) warrant no comment….,.

11. I totally deny that there was total disorder in the House which I failed to control. If such a state of disorder had existed, the process of voting would have been impossible - which it was not. Generally, Members remained in their places, heard their names being called, followed the order on the list, approached, took possession of the ballot papers, and proceeded to vote privately. After voting they resumed their places without impediment in an exceptionally orderly manner given their numbers and the congestion in the Chamber."

The court a quo found, on the facts, that there was not so much noise as to cause chaos or utter disorder, as described by the first applicant.

The finding was justified by the evidence.

The relevance of raising the issue of noise was to show that the Clerk was disabled from performing his duties to conduct the election of the Speaker by a secret ballot. The applicants did not refer to specific duties the Clerk failed to perform because of the noise. To the contrary, the facts showed that all the Members who were present and desirous to vote did so.

Each of the two hundred and eight members received a ballot paper from the Clerk and went into the polling booth where he or she marked his or her vote on the ballot paper in secret. Some of the members came out of the polling booth with their ballot papers folded to conceal the vote and dropped the ballot papers into the ballot boxes after exhibiting the official stamp on the back to the Clerk. Other members came out of the polling booth with their ballot papers unfolded and displayed them to others so as to disclose for whom they had voted before folding them and dropping the ballot papers into the ballot box.

All the members responded to the alphabetical order in which their surnames were called.

They could not have done that in the context of the environment of chaos or utter disorder described by the applicants.

The first applicant conceded, in paragraph 25 of the founding affidavit, that the Clerk occasionally intervened to restore order when it was necessary to do so.

It was indeed the duty of the Clerk to maintain order during the electoral process.

By that admission, the first applicant corroborated the Clerk, who said that he was able to act and control the situation when he considered that the noise would interfere with his ability to conduct the election by a secret ballot as required by the law.

The Clerk was not a mere moderator. He was the governor of the electoral process for the purposes of securing the proper conduct of the election. As such, his evidence had to be accorded appropriate weight, where it was supported by that given by the applicants.

It is of interest to note that the Minister of Youth Development, Indigenisation and Empowerment, the Honourable Kasukuwere, and the Honourable Member, Mr Zhuwawo, admit, in the affidavits filed in support of the applicants, that when they called out to draw the attention of the Clerk to the objections they were raising to what they considered was a violation of the requirements of a secret ballot by members of the MDC-T party, who displayed their ballot papers to others so as to disclose for whom they had voted, the Clerk told them not to make noise.

According to the two members, what was shouted were objections to the conduct of displaying ballot papers. The objections were not intended to obstruct the Clerk in the conduct of the election. They were not the confused and undesirable sounds characteristic of noise. The environment cannot be accurately described as characterized by complete absence of order.

In view of the fact that all the two hundred and eight members went through the process by which they gave their votes on the ballot papers and dropped them into the ballot boxes, with some displaying their ballots to others so as to show for whom they had voted, the allegation that there was so much noise that the atmosphere was not conducive for conducting the election of the Speaker by a secret ballot was not substantiated. The atmosphere was characterised by the factors described by the Clerk, which enabled him to conduct the election of the Speaker fairly and efficiently.

The first ground on which the application for relief was based was not proved.

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

SANDURA JA: I have read the judgment prepared by CHIDYAUSIKU CJ, but respectfully disagree with it.

The judgment is based on the principle that a peremptory enactment must be obeyed or fulfilled exactly, and that in respect of a directory enactment substantial compliance therewith will suffice.

That principle was disapproved of and abandoned by this Court, about twenty-two years ago, in Sterling Products International Ltd v Zulu 1988 (2) ZLR 293 (SC).

At 301B-302B GUBBAY JA …, with the concurrence of McNALLY JA and MANYARARA JA, said the following:

"The categorisation of an enactment as 'peremptory' or 'directory', with the consequent strict approach that if it be the former it must be obeyed or fulfilled exactly, while if it be the latter substantial obedience or fulfilment will suffice, no longer finds favour.

As was pertinently observed by VAN DEN HEEVER J (as he then was) in Lion Match Co. Ltd v Wessels 1946 OPD 376 at 380 the criterion is not the quality of the command but the intention of the legislator, which can only be derived from the words of the enactment, its general plan, and objects.

The same sentiment was expressed by MILNE J in J.E.M. Motors Ltd v Boutle & Anor 1961 (2) SA 320 (N) at 327 in fine – 328B.

This approach received the imprimatur of the South African Appellate Division in Maharaj & Ors v Rampersad 1964 (4) SA 638 (A), where, after concluding that the provision with which he was concerned was imperative, VAN WINSEN AJA went on to enquire whether the failure in strict compliance therewith was fatal. He propounded the following test at 646C-E:

'The enquiry, I suggest, is not so much whether there has been "exact", "adequate" or "substantial" compliance with this injunction, but, rather, whether there has been compliance therewith.

This enquiry postulates an application of the injunction to the facts and a resultant comparison between what the position is and what, according to the requirements of the injunction, it ought to be. It is quite conceivable that a Court might hold that, even though the position as it is, is not identical with what it ought to be, the injunction has nevertheless been complied with.

In deciding whether there has been a compliance with the injunction the object sought to be achieved by the injunction and the question of whether this object has been achieved are of importance.'…,.

See also Shalala v Klerksdorp Town Council & Anor 1969 (1) SA 582 (T) at 587H-588B; Nkisimane & Ors v Santam Insurance Co. Ltd 1978 (2) SA 430 (A) at 433H-434E; and, more recently, Ex p Dow 1987 (3) SA 829 (D) at 831B-D.

Judges in this country also have not been slow to move away from the traditionally strict approach. See Swift Transport Services (Pvt) Ltd v Pittman NO & Ors 1975 (2) RLR 226 (GD) at 228C-229C, 1976 (1) SA 827 at 828; Macara v Minister of Information, Immigration and Tourism & Anor 1977 (1) RLR 67 (GD) at 70H; Ex p Ndlovu 1981 ZLR 216 (GD) at 217F-G.

Testing the matter then in the manner approved by these authorities, one is constrained to discover the object of section 3(1) of the Regulations to determine whether that object is fundamental to the policy of the enactment, and, if it is, to decide whether it is defeated or frustrated by the non-compliance complained of. The degree of observance and non-compliance is another relevant consideration."

In that case, GUBBAY JA was considering whether section 3(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 ("the Regulations") (now repealed) had been complied with.

The facts in that case are set out in the headnote, which, in relevant part, reads as follows:

"In July 1987, the appellant, the respondent's employer, suspended the respondent from her employment without pay, pending the outcome of the appellant's request to the Ministry of Labour for her dismissal on the grounds of having stolen a confidential document from the company. The relevant section of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations required that (the) application be made to a labour relations officer, but, the appellant applied to an acting regional hearing officer in the Ministry…..,."

Having found that the object of the requirement of section 3(1) of the Regulations (i.e. that upon suspension of an employee without pay and other benefits the employer was to apply forthwith to a labour relations officer for an order or determination terminating the contract of employment) was predominantly the protection of the interests of the employee, that that object was not frustrated or materially impaired by the employer proceeding in the manner it did, and that the degree of non-compliance was by no means great, the Court held that section 3(1) of the Regulations had been complied with.

In my view, the principles set out in the above authorities are the principles which should be applied in the present case in order to determine whether Standing Order No. 6 ("the Standing Order") was complied with in the election of the Speaker.

In this regard, the following questions arise for consideration –

1. What is the object sought to be achieved by the Standing Order?; and

2. Was that object achieved in the election of the Speaker?

I shall deal with the questions in turn.

What is the object sought to be achieved by the Standing Order?

The Standing Order reads as follows:

"If more than one person is proposed as Speaker, the Clerk shall conduct the election of the Speaker by a secret ballot."

In my view, the object sought to be achieved by this Standing Order is the same as the object sought to be achieved by the secret ballot system all over the world. It is to protect the voter, mainly against intimidation and victimisation, by enabling him or her to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she has voted.

The secret ballot system, in this country, has its origin in the Ballot Act 1872, which introduced a secret system of voting in Parliamentary and Municipal elections in Great Britain. Before the Ballot Act was enacted, in 1872, Britain had an open system of voting in Parliamentary and Municipal elections.

In Parliamentary elections, the voter would go onto a platform at the polling station and announce his choice of candidate to an officer, who then recorded it in what was called a Poll Book. Intimidation and victimization were rife. Employees were required, by their employers, to vote for particular candidates or lose their employment. The same applied to tenants. If they did not vote as the landlord wanted them to vote, they were evicted from the premises they occupied. In the circumstances, there was a growing demand for the protection of the voter against intimidation and victimisation by enabling him to vote freely and in secret. As a result, the Ballot Act 1872, which introduced a secret system of voting, was enacted in order to meet that demand.

The Act required that Parliamentary and Municipal elections be by secret ballot. Subsequently, when this country became a colony of Great Britain the secret ballot system was introduced in the country.

In my view, the object sought to be achieved by the secret ballot system in Great Britain is the same as the object sought to be achieved by the Standing Order. That object is fundamental to the policy of the Standing Order.

Was the object sought to be achieved by the Standing Order achieved in the election of the Speaker?

In my view, there can be no doubt whatsoever that the answer to that question is in the affirmative.

All the two hundred and eight Members of Parliament ("MPs") present marked their ballot papers in the secrecy of the polling booths. Each MP was protected against intimidation and victimization, and was enabled to vote freely and in secret for the candidate of his or her choice, without fearing that other people would know for which candidate he or she had voted.

Some MPs emerged from the polling booths with their ballot papers folded, whilst others emerged from the polling booths not having folded their ballot papers. However, there was no evidence suggesting that any MP who had wanted to keep his or her ballot paper folded at all times outside the polling booth had been prevented from doing so. In addition, no MP ever complained to the Clerk of Parliament that he or she had been compelled to display his or her marked ballot paper to any other person.

However, assuming that it is correct that the six MPs who displayed their marked ballot papers did not comply with the Standing Order, the object sought to be achieved by the Standing Order was, nevertheless, not defeated or frustrated by the non-compliance complained of.

Of the two hundred and eight MPs who voted, only six (i.e. about 2.9 percent of the total) displayed their marked ballot papers before depositing them in the ballot boxes, whilst two hundred and two (i.e. about 97.1 percent of the total) voted in accordance with the provisions of the Standing Order.

Quite clearly, the degree of non-compliance was insignificant, whereas the degree of compliance was nearly one hundred percent.

In the circumstances, as the object sought to be achieved by the Standing Order was achieved and not defeated or frustrated by the non-compliance complained of, and, as the degree of the alleged non-compliance was insignificant, it follows that the Standing Order was complied with in the election of the Speaker.

Finally, I would like to comment on section 177 of the Electoral Act [Chapter 2:13] ("section 177 of the Act"). It reads as follows:

"An election shall be set aside by the Electoral Court by reason of any mistake or non-compliance with the provisions of this Act if, and, only if, it appears to the Electoral Court that –

(a) The election was not conducted in accordance with the principles laid down in this Act; and

(b) Such mistake or non-compliance did affect the result of the election."

Section 177 of the Electoral Act has its origin in the Ballot Act 1872 ("the Ballot Act"), which introduced the secret ballot system in Britain. Section 13 of the Ballot Act provided as follows:

"No election shall be declared invalid by reason of a non-compliance with the rules contained in the First Schedule to this Act if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the result of the election."

Subsequently, section 13 of the Ballot Act was reproduced, in almost identical language, by the Legislature of the Colony of Southern Rhodesia, in the Electoral Act 1928. Section 60 of that Act read as follows:

"No election shall be set aside by the court by reason of any mistake or non-compliance with the provisions of this Chapter, if it appears to the court that the election was conducted in accordance with the principles laid down in this Chapter, and that such mistake or non-compliance did not affect the result of the election."

Thereafter, section 60 of the Electoral Act 1928, was reproduced, in almost identical terms, in every Electoral Act enacted in this country, as can be seen from the following provisions –

1. Section 85 of the Electoral Act 1938;
2. Section 85 of the Electoral Act [Chapter 2];
3. Section 88 of the Electoral Act 1951;
4. Section 182 of the Electoral Act 1969;
5. Section 156 of the Electoral Act 1979;
6. Section 38 of the Electoral Amendment Act 1987;
7. Section 142 of the Electoral Act 1990;
8. Section 149 of the Electoral Act [Chapter 2:01]; and
9. Section 177 of the Electoral Act [Chapter 2:13].

Thus, the principle that an election will not be set aside by the court for non-compliance with the provisions of the electoral law if the election was conducted in accordance with the principles of the electoral law, and the non-compliance did not affect the result of the election, is well-established and has been part of the electoral law of this country for at least eighty-two years.

It is based on common sense, for there would be no good reason for setting aside an election on the basis of an irregularity which did not affect the result of the election.

However, as I have already determined that the election of the Speaker was conducted in accordance with the principles of the Standing Order, and, as it was common cause that the non-compliance complained of did not affect the result of the election, the only remaining issue for me to determine is whether the principle that the court would not set aside an election on the basis of an irregularity which did not affect the result of the election, applies to the election of the Speaker.

I have no doubt in my mind that it does. In fact, there is no logical reason whatsoever why it should not apply.

In my view, the fact that the Standing Order does not state the principle is of no significance. The principle is based on common sense, and common sense dictates that if an irregularity does not affect the result of the election, it cannot form a basis for the nullification of the election.

In addition, when the Standing Order was drafted, Parliament must have been aware that the principle had been part of the electoral law of this country for a very long time, and must have felt that there was no need to include in the Standing Order an obvious principle based on common sense. In any event, one would not expect the sort of details which usually appear in a statute to be set out in a Standing Order.

Finally, I would like to comment on the following statement in the majority judgment:

"It is unacceptable that Parliament should seek to salvage a shambolic and chaotic election of a Speaker through the doctrine of substantial compliance."

In my view, the description of the election as "shambolic and chaotic" is not borne out by the finding made by the learned Judge in the court a quo, which was as follows:

"As regards the conduct of the election in casu, generally, the papers before the Court evince several conflicts of fact as to what transpired at the time. The applicants' assertions that the proceedings were brazenly unruly are squarely rebutted by the averments of the first respondent. In this situation, the approach to be adopted was explained by GUBBAY JA (as he then was) in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S) at 339, as follows:

'It is, I think, well established that in motion proceedings a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact.'

Having regard to the overall scenario prevailing in the House on the day in question, it seems reasonably clear that the election proceedings under review were not conducted in an ideal manner. Nevertheless, despite the imperfections alluded to above, it cannot be said that the process was so disorderly as to be utterly chaotic. On the contrary, all the Members in the House were duly called upon to vote and were able to cast their votes in the polling booths provided.

Taking into account the usual volatility associated with the conduct of Parliamentary business generally, I am inclined to take the robust view that the election proceedings, as a whole, were sufficiently regulated to enable the election to take place to a satisfactory conclusion."…,.

In any event, as the appellants elected to proceed by way of motion proceedings in the court a quo, any disputes of fact between the parties had to be resolved in favour of the respondents: see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A).

In this regard, it is pertinent to note that the allegation that the election was chaotic was denied by the respondents.

Accordingly, I would dismiss the appeal with costs.

HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

As regards the amount that was allegedly misappropriated..., the plaintiff stated that the misappropriation took place between 2001 and 2002. The defendant handed all the books of account to Ian Figg, who in turn surrendered everything to Erasmus, Murphy and Associates, a private secretarial company, who in turn handed all to Lorraine Castedo. In the absence of reconciliation ...

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

I accordingly have no hesitation, whatsoever, in holding that the plaintiffs have proved their case against the defendant on a balance of probabilities. For that reason, they are entitled to damages in lieu of specific performance.

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

The plaintiff's claim was for specific performance of an agreement of sale for the cession of personal rights and interests held jointly by the first defendant and second defendant in a property known as 5706 Muroro Crescent, Glen Norah B, Harare.

The plaintiff asserted that he entered into the agreement with the first and second defendants on the other hand through the agency of PMA Real Estate Agency (Pvt) Ltd.

The first defendant denied that he ever entered into an agreement of sale with the plaintiff. He denied authorising PMA Real Estate Agency to sell his rights and interests in House No.5706 Muroro Crescent Glen Norah B, Harare.

The first defendant, Zondai Chimbwanda, and the second defendant, Givemore Karimazondo, are joint holders of certain personal rights and interests in the property known as No.5706 Muroro Crescent, Glen Norah B, Harare in equal shares. As holders of equal shares in the said property they agreed between themselves to dispose of their rights and interests in the property. Pursuant to this understanding, the second defendant approached PMA Real Estate and granted them a mandate to sell the said rights and interests.

At the material time, the first respondent was out of the country in Botswana.

In completing the mandate to sell form, the second defendant endorsed both the first and second defendants names as holders of rights and interests in the property.

That form was however signed by the second defendant only.

PMA Real Estate Agency proceeded to advertise the property and the plaintiff expressed interest. On 16 August 2005, the plaintiff executed an irrevocable offer and acceptance form in which he offered a purchase price of $220 million. On 17 August 2005, the second defendant appended his signature to that form in acceptance of the offer as seller.

Thereafter, on 18 August 2005, an agreement of sale was drawn up by PMA Real Estate Agency. The agreement of sale was executed by the plaintiff and the second defendant.

The plaintiff paid a deposit of $214 million to PMA Real Estate and the balance was to be paid in instalments.

The purchase price was subsequently revised upwards to Z$260 million.

The plaintiff paid the balance of the purchase price to PMA Real Estate Agency. The agreement of sale was amended to reflect the new purchase price of Z$260 million (see exb. 5).

It is common cause that when the parties entered into the agreement of sale they knew that the agreement was conditional on the first defendant ratifying the agreement upon his return from Botswana.

The first and second defendants subsequently sold the same rights and interests in the property in question to the third defendant, in September 2005, for the price of Z$350 million.

The third defendant duly paid the purchase price and has since taken occupation of the property.

His effort at obtaining cession was stalled when PMA Real Estate Agency advised the fourth respondent that the same property had been sold to the plaintiff and so no cession should be effected.

The plaintiff therefore brought this suit against the first and second defendants seeking:-

(1) Cession of Stand No.5706 Muroro Crescent, Glen Norah B, Harare into his name, alternatively;

(2) The sum of Z$15 billion being the cost of a house similar to Stand 5706, as at the date of the summons, being 14 November 2007.

The first defendant denied that he had ever agreed to the purchase price purportedly paid to PMA Real Estate by the plaintiff and he also contended that he never ratified the agreement of sale.

The second defendant, in his plea, conceded that he had entered into that agreement conditional on the first defendant ratifying it.

The issues for determination were essentially three, namely:-

(1) Whether there was a binding agreement of sale between the plaintiff and first and second defendants or not;

(2) If the answer to the above is in the affirmative, whether the third defendant was himself an innocent third party purchaser.

(3) If so, who between the two purchasers has dominant rights over the property in dispute.

It is pertinent to note that a conditional sale can only be valid/binding where the condition precedent has been fulfilled.

It is the fulfilment of the condition that gives life to such an agreement.

In casu, the plaintiff and PMA Real Estate were made aware that whatever they were entering into with the second defendant was conditional upon the second defendant ratifying such agreement.

In this regard, it may be noted that ratification is the act of adopting a contract or other transaction by a person who was not bound by it originally: see Osborne's Concise Law Dictionary, 6th Edition, by J. BURKE.

The prerequisite of ratification may be stated as follows:-

“1. The contract must be professedly made on behalf of the principal.

2. There must be a competent principal at the time of the contract.

3. The contract must not be void.

See CHESHIRE, FIFOOT and FURMSTAN's Law of Contract, 11th Edition…,.

Ratification may be express or tacit. Ratification may be implied from an act or conduct showing an interest to adopt the contract.

In casu, the plaintiff alleged that the first defendant ratified the agreement of sale that had been entered on his behalf as joint-holder of rights and interest by the second defendant.

In support of his case, the plaintiff gave evidence and called two witnesses from PMA Real Estate Agency, namely, Simon Mukondo and Jerry Ndemera.

The first defendant gave evidence. The second defendant did not avail himself for trial though he had participated in the proceedings up to the pre-trial conference stage.

In his evidence, the plaintiff alluded to the fact that he himself never came into contact with the first defendant. His assertion that the first defendant ratified the agreement of sale was based on reports he received from PMA Real Estate Agency. He thus could not vouch for certainty that the first defendant, either by word of mouth or in writing, ratified the agreement.

All the documentary exhibits he tendered in support of his case did not have the first defendant's signature.

The conduct that he could only refer to was again based on reports he received from PMA Real Estate that the first defendant had given his consent to the agreement of sale subject to an upward increase in the purchase price.

He had no direct evidence of the first defendant ratifying the Agreement of Sale.

Mr Simon Mukondo gave evidence next. He is a co-shareholder in PMA Real Estate Agency. He is also the Principal Registered Agent of PMA Real Estate Agency.

His evidence was to the effect that PMA Real Estate Agency was given mandate to sell by the second defendant. The second defendant had made it clear the rights and interests were jointly held. That mandate to sell was signed by the second defendant as seller. The co-holder of rights and interests, the first defendant, did not sign the mandate to sell and did not, in his own right, give such mandate.

The second defendant did not provide a power of attorney, or some other written authority, from the first defendant, for him to dispose the first defendant's rights and interests in the property in question.

Despite this omission, PMA Real Estate Agency proceeded to advertise and sell the rights and interests as instructed by the second defendant. This, PMA Real Estate did on the second defendant's word that he had such mandate and that the first defendant would ratify the agreement of sale upon his return from Botswana.

The agreement of sale was executed on 18 August 2005.

It was Mr Mukondo's evidence that on the next day after execution, Mr Jerry Ndemera and the second defendant approached him in his office. They advised him that the two of them had been in touch with the first defendant on the phone who was still in Botswana. They advised that the first defendant had dictated terms for them to re-do the agreement. They had the dictated terms on a piece of paper. That piece of paper was tendered into evidence as part of the plaintiff's bundle of documents. The document in question is on page 7 of the said bundle. The terms on the document were that:

1. That the selling price should be increased to Z$260 million;

2. That the payment would be strictly cash of Z$220 million and balance of Z$40 million would be paid in two instalments in the months of September and October; and

3. That the seller who was present tenant would vacate when schools calendar for 3rd term 2005 ended;

4. The last point was that once the last payment was done, in October, the seller would become a tenant paying rent.

As at that stage, when these terms were brought to his attention, Mr Mukondo had not seen or spoken to the first defendant.

Mr Mukondo said that he saw the first defendant for the first time when the first defendant came with the second defendant in the company of a woman he thought/believed was the first defendant's wife.

When this trio came, the first defendant demanded to be paid the purchase price. They refused to release the money to him contending that they could not do so before cession. The first defendant had then offered that cession be done that same day but this was not done. The first defendant had then said that if he was not paid on that day then the purchase price would go up.

The first defendant was not made to sign the Agreement of Sale or any other document relating to the Agreement of Sale of his rights and interests in the property in question.

The next witness was Mr Jerry Ndemera. At the material time he was employed by PMA Real Estate Agency as Sales Manager.

In his evidence, Mr Ndemera confirmed that PMA Real Estate Agency dealt with the second defendant upon the second defendant's word that he had the mandate to sell from the co-holder of rights and interests in the property.

There was no request or insistence on the second defendant furnishing the requisite power of attorney or and other written authority from the first defendant.

PMA Real Estate Agency were spurred to act simply on the second defendant's assurance.

It was not till after the Agreement of Sale had been concluded that he saw the first defendant.

On his first meeting with the first defendant, the first defendant did not agree with what had been entered into. According to Mr Ndemera, the first defendant came to see him on the day page 7 of the plaintiff's bundle of documents was written.

Mr Ndemera contradicted Mr Mukondo's evidence on how this document came to be.

His evidence was to the effect that this document was written by the first defendant on the day the first defendant came to their offices. He is the one who in fact provided the first defendant with the piece of paper to write on when the first defendant indicated there were some terms to be changed.

The contradiction was in that Mr Mukondo had said Mr Ndemera had indicated to him that the first defendant had dictated those terms on the phone from Botswana and not that the first defendant had come to their offices.

Despite Mr Ndemera's contention that this document was written by the first defendant, he was unable to explain why the first defendant did not append his signature thereto. Instead, the signature thereon is that of Mr Ndemera, just as he had signed for the second seller in exhibit. 1, the Agreement of Sale.

If indeed the first defendant had, on this occasion, ratified the Agreement of Sale, albeit with an increased purchase price and additional terms, he would at least have signed on this document to signify his approval of the transaction, if those terms were accepted by the plaintiff.

It was Mr Ndemera's evidence that the first defendant must have come to their offices on 2 or 3 times. Somehow, he was not made to sign the Agreement of Sale which the plaintiff says he had ratified.

It may also be noted that both Mr Mukondo and Mr Ndemera indicated that when the first defendant came to PMA Real Estate offices he demanded payment. When asked to sign the Agreement of Sale, the first defendant said he wanted to be paid before he could sign.

This, in my view, is inconsistent with a party who had ratified the agreement and had assumed his obligations as contained in the Agreement of Sale.

Further, both Mr Mukondo and Mr Ndemera admitted, that, when the first defendant came in the company of his wife, this was after a PMA Real Estate employee had been to the first defendant's residence with an armed police officer. At that residence, they had forced the first defendant's mother to append her signature to a document tendered in as exhibit. 8.

That document invited the first and second defendants to come and activate the process of transfer.

The visit by the first defendant and his wife was therefore to complain about that visit by a PMA Real Estate employee and the armed police officer. This is the visit Mr Mukondo apparently recalled.

It is clear to me, that, though the first defendant visited PMA Real Estate Agency offices he never signed the Agreement of Sale or any document showing that he consented to the sale of his rights and interests in the property in question.

He never ratified the Agreement of Sale in writing.

The tacit ratification that Mr Mukondo and Mr Ndemera alluded to needed to be proved.

The conflict in the evidence of Mr Mukondo and Mr Ndemera, as key witnesses to the issue of ratification, on such aspects as who authored the document on page 7 of the plaintiff's bundle of documents, the number of visits made by the first defendant to PMA Real Agency, and the fact of a PMA Real Estate Agency employee visiting the first defendant's residence in the company of an armed police officer to force matters, creates doubt on the credibility of their testimony.

They did not impress me as reliable witnesses.

They may have had cause to believe the second defendant when he told them that he had the first defendant's mandate to sell and that the first defendant would ratify the Agreement of Sale, but, that was not adequate. They ought to have obtained consent or mandate from the first defendant himself to proceed with the sale.

They could easily have demanded that the second defendant furnishes them with a Power of Attorney for them to action the second defendant's mandate to sell.

Equally, when the first defendant availed himself at their offices, they ought to have clarified the issue by ensuring that he ratified the agreement in an unequivocal manner. To seek to rely on tacit ratification or consent to the agreement was always going to be difficult.

The onus is on the plaintiff to prove, on a balance of probabilities, that the first defendant ratified the Agreement of Sale for it to be binding on him.

A careful analysis of the evidence adduced in court on this issue does not show that the plaintiff discharged such onus.

The evidence showed that when the second defendant entered into the Agreement of Sale he made it clear that he was also doing so for and on behalf of his co-holder of rights and title and that the co-holder would have to come and ratify the agreement. The first defendant was a competent co-holder to ratify the agreement had he wanted to. The Agreement of Sale was not void. It was capable of ratification.

The failure is on the fact that the plaintiff has not proved, on a balance of probabilities, that the first defendant adopted the agreement of sale.

As the Agreement of Sale was conditional upon the first defendant's ratification, it follows that there was no valid agreement of sale to bind the first defendant.

In the circumstances, the first defendant was free to enter into a sale agreement with anyone that the joint holders of rights and interests in the property preferred.

In this case, they sold their rights and interests to the third defendant. There was no legal impediment to such a transaction.

The plaintiff's remedy, if at all he felt hard done, is against those who led him to part with his money when the agreement had not been ratified.

Accordingly, the plaintiff's claim is hereby dismissed with costs.

HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

The applicant herein is the registered owner of an immovable property commonly known as 425 Dandaro Village. The applicant has owned the property since April 2004. In this matter, the applicant is seeking the eviction of the respondent from the premises. The respondent is opposed to the granting of the relief being sought....,. The respondent contends, further, that ...

HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA
Ruled By: MAKARAU JP

The plaintiff is a Commissioner in the Zimbabwe Republic Police. The defendant, a duly qualified dental surgeon, was, at the material time, also a member of the Zimbabwe Republic Police. She practiced her dentistry at the Police Camp Hospital and also at her surgery in town. In June 2007, the plaintiff consulted the defendant complaining of sensitivity to ...

In June 2007, the plaintiff consulted the defendant complaining of sensitivity to his teeth. She examined him at the police hospital and later invited him to her surgery where she carried out some work on him. The work entailed extracting a tooth that was embedded in his gum. The extraction was not successful and she referred him to Professor Chidzonga, a specialist in the field, who finally extracted the tooth and also found out that, in the process, the plaintiff had suffered a fractured jaw. When the plaintiff's superiors visited him at his house, a decision was made that he be flown to South Africa for further management and treatment. He was duly attended to in South Africa and the fracture was reduced.

On 24 January 2008 the plaintiff issued summons out of this court against the defendant. He alleged that she had been negligent and had caused the fracture in his jaw. He claimed against her the sums of R10,000= for pain and suffering, R10,000= for loss of comfort and R78,000= as special damages.

The suit was defended.

In her plea, the defendant denied that she was negligent as alleged or at all. She further denied knowledge of the injury sustained by the plaintiff, and, in particular, that she fractured his jaw and suggested that this occurred at Professor Chidzonga's surgery where the tooth was extracted.

At the pre-trial conference of this matter, the parties settled the issues for trial as follows:

1. Whether or not the defendant undertook to perform surgery on the plaintiff with such professional skill as is reasonable for a qualified dentist?

2. Whether or not the defendant carried out the surgery on the plaintiff negligently as alleged by the plaintiff?

3. Whether or not the plaintiff suffered damages as a result of the defendant's negligence, and, if so, the quantum thereof.

At the trial of the matter, the plaintiff gave evidence. His evidence was as follows.

In early 2007, he visited the Police Camp Hospital. He was complaining of sensitivity in his teeth. He sought professional assistance from the defendant. She advised him that he required a dental cleaning session and that she needed to examine the exposed roots of his teeth. On the first visit, she applied some medication to his gums. She did not have adequate equipment at the hospital and could offer him treatment at her surgery. He accepted the offer. A week later he visited her surgery and she requested him to have an x-ray. A week later she called him and advised him that she had discovered a buried molar on the right side of his mouth. The tooth had to be extracted. On 26 June, he attended at her surgery for the tooth to be extracted. After taking him through the process, the defendant attempted to extract the tooth using a variety of tools. After some time he grew tired and was also in pain. She advised him that she had almost exposed the tooth. He then felt a sharp pain and told her to stop. He had been on her chair for two and a half hours. She advised him that he now required theater and she would refer him to Professor Chidzonga. She telephoned Professor Chidzonga's surgery and explained to them what she had already done. She wrote him a letter of referral and he left her surgery. He could feel that his jaw was heavy. It was painful.

At Professor Chidzonga's place he was taken into the consulting room, and, by that time, he could not talk. Professor Chidzonga took a small x-ray of the area. He then extracted the tooth in about 20 minutes. He suspected that the plaintiff had fractured his jaw. He could not develop the xray at that time and allowed the plaintiff to go home on a prescription for a mouth wash, a pain killer, and some antibiotics.

As he was driving home, he sent a message on his mobile phone advising the defendant that he was in terrible pain and was suspected of having fractured his jaw. His mouth was now quite heavy and he had to keep on holding his lower jaw. He was also bleeding profusely.

When he reported back to Professor Chidzonga's rooms the following day, the fracture was confirmed. Professor Chidzonga cleaned his mouth and immobilized the jaw. He placed him on a special diet and prescribed more medication.

The Commissioner-General of police visited him at home. At this time his entire face was swollen. He was incoherent. Arrangements were made for him to be flown to South Africa where he was accompanied by his wife.

In South Africa, the wires that had been used by Professor Chidzonga to immobilize his lower jaw were removed and replaced by bracelets. He was placed on a liquidized diet. On 29 July, he returned to the clinic in South Africa where a few of the bands holding his jaw together were removed. He could open his mouth by a fraction and could now use a spoon to eat porridge and yoghurt. In August, all the bands were removed and he was referred for physiotherapy. Around September, he returned to have all the bracelets removed. He was still on physiotherapy. He had to return for reviews in September and December 2007. In January 2008, he attended the final physiotherapy session here in Zimbabwe.

At the time of testifying, he could not chew hard things with his right hand side. He still felt some numbness in the side which he hoped would go away after some time.

The witness then applied to have affidavits by the three medical practitioners who attended to him in South Africa adduced into evidence. Also adduced were various documents, including air tickets from Harare to Johannesburg and invoices for the services rendered him in South Africa.

The witness gave his evidence well. He is fairly articulate. His responses to questions put to him under cross-examination were forthright. He did not seek to exaggerate. It is my finding that the witness was honest and truthful.

The plaintiff called Professor Median Chidzonga. He holds qualifications in dentistry and is a professor in maxillo-facial, oral and dental surgery. He has specialized in facial surgery and has thirty years experience under his belt. His evidence was as follows.

The plaintiff was referred to him by the defendant who wrote a note to him explaining that he should continue with the removal of a wisdom tooth that she had started working on as the plaintiff was now in severe pain.

After sitting the plaintiff in the chair, he took a radiograph of the site and then proceeded to examine him. He saw a socket where an incision had been made. He attempted to remove the tooth and it was during this process that he noticed that the jaw was not moving in unison. He requested the plaintiff to go for an x ray of the jaw. The following day the plaintiff brought back the x-ray and it showed that there was a fracture passing through the socket where he had removed the tooth. He reduced the fracture by wiring. He also obtained the results of the first radiograph he had taken when the plaintiff first visited him. It also showed that there was a fracture. Based on that radiography, he was of the view that the jaw was fractured before he started working on the plaintiff.

He further testified that it is not normal for jaws to be broken during tooth extractions. It is however possible. The possibility of this happening can be assessed through x-rays of the area taken before the extraction.

He was aware that the plaintiff later sought medical attention in South Africa. He was also aware that what was done in South Africa is similar to what he did on the plaintiff in reducing the fracture. The equipment used in South Africa is not available in this country but the expertise is.

Under cross-examination, the witness testified that the breaking of a jaw during a tooth extraction does not, in itself, denote negligence. Each case must depend on its facts. Even where a practitioner exercised all due care, at times, a jaw could still break.

Regarding the plaintiff's subsequent visit to South Africa to seek medical attention, he was of the view that this was not necessary as he could have attended to the plaintiff himself had the deteriorating condition of the plaintiff been brought to his attention.

The evidence of this witness was of great benefit to the court and great reliance shall be placed upon it in the resolution of the matter. He is an expert in his field and I would have been unable to form some of the conclusions I formed in this matter without his expert opinions.

After the evidence of this witness, the plaintiff closed his case.

The defendant testified. She narrated most of the facts that are common cause in this trial as to how the plaintiff approached her for assistance and what she did up to the time she referred the plaintiff to Professor Chidzonga. Regarding the allegation that she was negligent, her evidence was as follows;

The plaintiff's tooth was a difficult one. She did the best that she could to extract it without resorting to surgery. During the process, the plaintiff did not bleed profusely as he alleges. She however was putting water into his mouth during the process.

She was not aware that she had fractured the plaintiff's jaw during the extraction. Had she known, she would have put it in her referral letter to Professor Chidzonga. She only received a report from Professor Chidzonga who stated that, during the time he was extracting the tooth, he felt an abnormal movement to the jaw. She personally did not feel such movement.

The witness also gave her evidence well. Her evidence was, in the main, common cause with that of the plaintiff up to the time the plaintiff left her surgery. I have no reason to disbelieve her.

The defendant also called one Lewis Chidzambwa. He is a Dentist, holding a degree from a university in Finland. He has ten years experience.

The testimony of this witness was of a very general nature. He gave the court his views on what can cause pain to a patient undergoing tooth extraction, how each case is unique, and how fractures can occur in patients.

I found the evidence of this witness to be educative in a very general way.

After this witness was stood down, the defendant closed her case....,.

The plaintiff alleges that the defendant fractured his jaw during a tooth extraction. He further alleges that the fracturing of the jaw was as a result of negligence on the part of the defendant. Finally, the plaintiff alleges that, as a result of the fracture to his jaw, he suffered the various damages whose heads appear in his summons.

The factual issues that fall for determination in this matter present themselves to me as;

(i) Firstly, whether it was the defendant who fractured the plaintiff's jaw; and

(ii) If so, whether such fracturing was as a result of negligence on her part; and, again

(iii) If so, what damages did the plaintiff suffer?

I now turn to the first issue. It is to determine whether the fracture in the plaintiff's jaw was caused by the defendant.

I do not have any direct evidence in answer to this issue. The x-ray that was taken of the tooth area, after the defendant had referred the plaintiff to Professor Chidzonga, was not produced to show whether or not the jaw was fractured before Professor Chidzonga started working on the plaintiff. What was adduced into evidence was a photocopy of the x-ray which did not show anything. The copy of the x–ray was not accompanied by any report explaining the picture, and, as was correctly stated by Professor Chidzonga in his evidence in chief, the photocopy was not useful at all.

The plaintiff was of the firm belief that he suffered the fracture whilst receiving attention from the defendant. He is of this belief because he felt a sharp pain after an hour of drilling and wedging and he stopped the defendant from further proceeding. When he left the defendant's place, he was now holding his lower jaw. He urges me to infer that the sharp pain marked the point when his jaw fractured.

This is a reasonable belief on the part of the plaintiff but it is not the only reasonable inference that one can draw from the facts.

It is common cause that the plaintiff was under a local anesthetic that was now wearing off. The tooth extraction was causing him a lot of pain. The sharp pain could have been pain from the process which would have otherwise been masked by the anesthetic had it been working.

Professor Chidzonga testified that it was during the process of extracting the tooth that he noticed that the jaw was not moving in unison. He did not notice this during the examination of the plaintiff before he commenced the extraction. He then informed the plaintiff that he suspected a fractured jaw. The fracture was only confirmed the following day from xrays.

As indicated above, it would have made my task easier had the plaintiff produced the original x-ray that was taken prior to Dr Chidzonga commencing work on him. The absence of the x- ray and the evidence by Dr Chidzonga that he only noticed the irregular movement of the jaw during the extraction places me in a position where I cannot confidently hold that the jaw was broken at the defendant's surgery. This is compounded by the fact that neither Professor Chidzonga nor the plaintiff asked for leave to and opportunity to replace the useless photocopy with the original x-ray and no explanation was tendered for this omission.

Further, it was Professor Chidzonga's evidence that the x–ray that he took would only show the tooth and nothing much. He was not asked whether it would show the jaw and the fact that he referred the plaintiff to another facility for a bigger picture that would show the jaw seems to suggest to me that the radiograph that he took did not. In any event, neither the plaintiff nor Professor Chidzonga asked for time and opportunity to have the original radiograph adduced into evidence and no explanation was tendered for this omission.

I am unable to come to a conclusion as to where and when the fracture occurred from the evidence adduced before me. It could have occurred at the defendant's surgery. It could have occurred at Professor's Chidzonga's.

On the one hand, I have the testimony of the plaintiff feeling the sharp pain and the testimony of Professor Chidzonga that when he looked at the radiograph that he had taken in his surgery, he observed a fracture. This evidence seems to suggest that the fracture may have occurred at the defendant's. On the other hand, I have the missing radiography and the testimony of the defendant that she did not notice the irregular movement of the plaintiff's jaw when she was working on his tooth or else she would have included that in her written report to Professor Chidzonga.

Further, I have the testimony of Professor Chidzonga that he only noticed the irregular movement of the plaintiff's jaw when he was in the process of extracting the tooth. I also have his evidence that the x-ray he took in his surgery is of a localized nature, showing the tooth area, hence his request to the plaintiff for him to attend the Avenues Clinic for a bigger picture showing the jaw area as well. The learned professor was not asked on whether the localized x-ray he took would show the jaw area as well and to what extent. In my view, the fact that he referred the plaintiff for a bigger picture tends to suggest his one would not show the fracture to the jaw.

I have no crystal ball to gaze into for an answer to this issue. In my view, the balance of probabilities tilts in favour of no party and remains even to the detriment of the plaintiff who bears an onus to establish the facts that he relies on for his claim.

Assuming that I have erred and there is ample evidence upon which a superior court will find that the defendant did indeed fracture the plaintiff's jaw, I will proceed to give my opinion on the next issue which arises. This is to determine whether the defendant was negligent, as alleged, or at all, assuming she did fracture the plaintiff's jaw.

HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU
Ruled By: GUVAVA J

The plaintiff and the defendant are husband and wife. They married each other on 8 January 1993 in terms of the Marriage Act [Chapter 5:11]. The marriage was blessed with three children, Frank (born 6 March 1993), Margret (born 23 September 1997), and Emmanuel (born 24 June 2005). During the subsistence of the marriage, the parties acquired both movable and an immovable property known as Stand 2209 Prospect Township of Stand 2899 Prospect Township measuring 860 square meters commonly known as Stand 2209 Mainway Meadows, Waterfalls Harare (the property).

On 20 January 2007, the plaintiff issued summons seeking a decree of divorce on the basis of irretrievable breakdown, custody of two of the minor children, and division of the parties' matrimonial assets.

The defendant, whilst conceding that the marriage had broken down, disputed the reasons given by the plaintiff and counterclaimed for custody and maintenance of the minor children. She also disputed the suggested distribution by the plaintiff of their assets.

At pre-trial conference, the parties agreed on the distribution of their movable assets and decided to refer seven issues to trial. At the hearing, the parties abandoned three of the issues and only the following issues were referred for determination:

1. Which of the parties should be awarded custody of the minor children?

2. Which party is to be responsible for the maintenance of the minor children and related matters?

3. Whether the Hyundai Excel motor vehicle, registration number AAG 3526, constitutes matrimonial property which is subject to distribution, and, if it constitutes matrimonial property, how is it to be distributed?

4. What is the best way of distributing the matrimonial home between the parties?...,.

In relation to the claim for custody, the plaintiff testified as follows;

He is employed as Deputy Director in the Ministry of Health and Child Welfare. He earns a salary of Z$2,600 and a monthly allowance of US$100. He has three minor children with the defendant who are Frank aged 16, Margaret aged 12, and Emmanuel aged 4. He would like custody of the two eldest children. The youngest child is 4 years old and he would like the defendant to have custody of the child....,.

He stated that the eldest child was at a boarding school and therefore only came home during the holiday. Frank, at 16 years of age, would require his father's directions as he enters into manhood. He stated that Margaret was at a day school which is near their home and if the defendant gets custody of her she would have to change schools. In his opinion, the defendant would be a bad influence on the children. He has been looking after their needs in terms of the children's fees and uniforms. All three children are on his medical aid scheme.

The plaintiff further testified that the defendant was not a fit and proper person to be awarded custody of the two elder children because she had tried to poison him in the presence of the children. He produced a report compiled by the Government Laboratories that showed that they had examined a substance which contained camphor. The report described camphor as a poison. He said that he had found the substance in the possession of the defendant. He stated that the camphor was mixed with his food and when he ate it he vomited. He however stated that he did not go to hospital nor report to the police until after about two months.

He also told the court that she had tried to commit suicide when his mother wanted to take one of their children to the rural areas. In his opinion, she was so unstable that she could not be entrusted with the children.

The plaintiff also called his father, Mr Rugare Chinyavanhu.

He told the court that he was called to the plaintiff's home because there was a dispute in December 2006. The plaintiff was alleging that the defendant was trying to poison him. He stated that they called the defendant's parents so that she could be questioned in their presence. He stated that she then told them that she had put a substance in his food. In cross examination, he said that the defendant stated that she was trying to save her marriage. He confirmed that the plaintiff and the defendant had had problems previously and he had been called to assist.

The defendant testified that she is employed as a secondary school teacher. She wanted custody of all the minor children. She stated that she could pay for the children's daily needs and clothing but she would want the plaintiff to look after their full school account. In that respect she was no longer claiming a monthly allowance from the plaintiff for maintenance for the minor children.

She denied that she had tried to poison the plaintiff. She stated that whilst the plaintiff had vomited after eating the food she had prepared he was drunk on that day and that could have caused him to throw up. She admitted having burnt some incense which did contain camphor for the purpose of chasing away evil spirits. She apologized to the plaintiff's family for having burnt the incense without her husband's permission and not for trying to kill him. She stated that although the case was later reported to the police the prosecutor withdrew the charges against her and she was never prosecuted. She also denied that she tried to commit suicide. She explained that she had told the plaintiff that she was not happy with his mother taking the child, who was about one year and three months at the time, to the rural areas.

The defendant stated that she did not consider it proper to separate the children as had been suggested by the plaintiff. One of the children, Margaret, was a girl who was entering puberty and would need her mother's love and guidance during that period. She also stated that the plaintiff's moral conduct was reprehensible as he had an adulterous relationship with their maid who was looking after the children. She also states that he is unduly harsh with the children. She gave an example of how he assaulted their eldest child with an electric cable all over his body.

In determining an issue of custody, the court must be guided by the principle of what is in the best interest of the children.

In Hackim v Hackim 1988 (2) ZLR 61 the court held that in considering the best interest of the child a court should take into account such factors such as the sex, age, health, educational needs of the child and the social and financial position of each parent as well as the character, temperament and past behaviour towards the child.

In assessing the evidence, I was of the view that the plaintiff had not established that the defendant was not a fit and proper parent to have custody of the minor children;

(i) Firstly, the plaintiff alleged that she was suicidal and had tried to poison him so she could also kill the children.

However, he is prepared to let the defendant have custody of the youngest child who is least able to protect himself against the defendant's excesses whilst he has the elder children. In my view, if the plaintiff was convinced that the defendant was a danger to the children he would not wish her to have custody of any of the children at all.

(ii) Secondly, the allegation of attempted murder has not been substantiated at all.

The defendant was never prosecuted for the offence.

The plaintiff himself did not even go to hospital after the alleged attempt to his life. The report to the police was made two months later - almost as an afterthought. In spite of these allegations, the plaintiff has continued to live in the same house as the defendant to this day. The plaintiff's father, in his evidence, said the defendant stated that she was trying to save her marriage not to kill the plaintiff.

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE
Ruled By: GOWORA J

He who avers must prove.

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

Counsel for the applicant submitted that not all the requirements of lis alibi pendens were met in this case, and, in particular, that the parties' are not the same, maintaining that Bishop Kunonga is not the applicant – “He is only its Chairman. You do not find the status of a party in the deponent that ...

“He is only its Chairman. You do not find the status of a party in the deponent that subscribes to that party's affidavit. Moreover, 1^st -11^th respondents, apart from being parties in Case No. HC 6544/07, are not parties in this application. For one to be a party, one needs to be cited, not merely mentioned in the body of the affidavit. These persons only appear in the body of the affidavit as trustees, and not in their individual capacities, as is their citation in Case No. HC 6544/07.”

However, in my view, this is only a purely technical change in the designation of the parties while the parties remain substantially the same in all matters – Thorsen v Coopsamy 1936 NPD 636.

The eighth to eleventh defendants in case HC 6544/07 are financial institutions who are not active in the litigation, and have opted to abide by the court's decision. The fact that the financial institutions are not cited in the two applications does not change the fact that the parties in the applications, and the action, are virtually the same.

Therefore, I am satisfied that all the basic requirements for the plea are present.

The critical issue in this matter, however, is how the court should exercise its discretion relative to the plea of lis pendens. Where does the balance of convenience and equity lie? Does it lie in stopping the applications and allowing the trial to proceed, or can the issues raised in all the matters be fairly, conveniently, equitably, and expeditiously, disposed of on the basis of the averments and affidavits filed of record in the applications?

In order to answer the above question, it might be useful to use a hypothetical situation which might be regarded as fairly comparable to the factual situation in this case.

Suppose a husband has issued summons against his wife, to whom he is married in a monogamous relationship, seeking an order against her continued use of their marital name, that she should stop holding herself out as his wife, that she should surrender all assets under her control, and possession, by virtue of the marriage, and interdicting banks from accepting her instructions in relation to their joint accounts, arguing that she has left the matrimonial home and eloped with a lover. Suppose again, that after pleading to the merits, the wife files a court application for a declaratory that she is still formally married to the husband, and is entitled to hold certain assets, and transact in the joint accounts by virtue of her extant marriage. And suppose, finally, the wife files an urgent application to stop the husband from immediately contracting another marriage, and the husband raises the plea of lis pendens.

Would it be more equitable, and convenient, to stay the applications, and wait for the issues to be resolved at a trial to be held at a future date, way after the proposed marriage, or would the court be justified in disposing of the issues by hearing the applications?

In my view, if the matters are capable of resolution on the papers, it would appear that it would be beneficial for both parties to have a declaration of their rights made upfront. Then, if the finding is that the marriage to the wife no longer exists, the new marriage can be celebrated without the cloud of disputation. If, on the other hand, the court finds that the marriage to the wife is still extant, then the husband would be saved from entering into a bigamous relationship, and a long but inconclusive trial would have been avoided. The husband, of course, would still retain the right to proceed against the wife regarding her indiscretions, either by formally suing for divorce, or in one way or another, reconciling with her.

I have already commented on the unique feature of this case, that the plea has been raised as against both the court application and the urgent chamber application, and that both applications, and, indeed, all three matters, are intrinsically linked so that one cannot decide one matter without that decision affecting the other matters. Thus, the urgent chamber application seeks, as interim relief, an order interdicting the consecration of a new Bishop for the Diocese of Harare, while in the final relief, and the application, the applicant seeks a declaration that he is still the Bishop of Harare, and in the action, the plaintiff seeks, among other things, an interdict preventing the first defendant from holding himself out as the Bishop of Harare.

The consecration has been scheduled for 23 July 2009.

If the plea is upheld, then the rights of the parties relating to the urgent application would not be determined before the consecration – with irreparable harm to the applicants.

If, on the other hand, the matters are heard, then the respondent, if successful, would proceed with the consecration without the cloud of disputation, but even if unsuccessful, would not lose the right to institute disciplinary proceedings against the applicants for whatever wrong they are deemed to have committed.

The balance of convenience and equity, on this ground of urgency, and interrelatedness of issues, in my view, is with the applicants, all other things being equal.

The five days trial, which was scheduled for 6 July 2009, has been postponed indefinitely...,.

The matters in issue are important issues of faith for a large number of people who regard themselves as Anglicans in Zimbabwe, the Central African region, and, indeed, the world over. In Diocese of Harare v Church of the Province of Central Africa & Anor 2008 (1) ZLR 139 (S), the Chief Justice underlined the urgent need to resolve the various disputes between the protagonists in all the matters that have been litigated upon. If the matters can be resolved on the papers, in my view, it would be more expeditious to proceed on the basis of the applications than to wait for a new trial date to be set. I am fortified in this conclusion by the fact that not only is the rescheduling of the trial beset by the unfortunate circumstances noted above, but there is the additional complication that allowance has to be made for some witnesses to come from outside the country, and that there is a point in limine to be argued before the commencement of the trial on the challenged locus standi of the plaintiff...,.

The manner in which the locus standi of the plaintiff is challenged, and responded to in the replication, is the mirror vision of the same challenge, and response, in the two applications. In fact, the issue of locus standi of one, or the other, of the parties lies, at the centre of the whole dispute in all three matters...,.

I am also further fortified in my conclusion about the inconvenience of upholding the plea by the fact that the evidence which is sought to be led at the trial consists of information which is already filed of record by way of affidavits, and documents, in the applications...,. Beyond what is already available on record, very little additional evidence, it seems, would be forthcoming at the trial itself. Now, if the issue can be determined on the basis of the affidavits, and documents, filed of record in the applications, there appears to be very little reason why such a decision should be postponed until a trial is held, which would not put the court in any materially better position to make the decision.

HB44-09 : MUSA MAPHOSA vs NDABA HLABANGANA
Ruled By: KAMOCHA J

The plaintiff failed to discharge her onus of proving that there was damage caused during the tenure of the defendant. If the defendant had caused any damage to the premises, the plaintiff would have confronted the defendant about it immediately. She would also have reported the matter to the police without any culpable delay. In the ...

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

I now turn to consider whether or not the occupation of the property by the first and second defendants is unlawful, whether or not the Agreement of Sale between the first and second defendants and the third defendant still subsists, and whether or not, in purchasing the property from the third defendant, the plaintiff was ...

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

It was submitted on the plaintiff's behalf that even is this court were to find that the first and second defendants had proved that their Agreement with the third defendant was not validly cancelled, and that the plaintiff had no bona fide and reasonable belief that it had been validly cancelled, the court had ...

HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET
Ruled By: PATEL J

Balance of ConvenienceIn any event, even if I am wrong as to the first respondent's prospects of success on appeal, it remains necessary to consider the balance of convenience and the potentiality of prejudice to the parties in casu.According to the papers before the court, at the time of instituting this application, the applicant had emplaced ...

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

In its plea, the second defendant denied the contract in toto and put the plaintiffs' to the proof thereof.

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.The applicants challenge the validity ...

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.

The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.

The applicants challenge the validity of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i)...,.

(ii)...,.

(iii)...,.

(iv) Whether the first respondent conducted the election of the Speaker properly and procedurally and whether Members belonging to the MDC-T party displayed their votes to their colleagues in Parliament.

(v) Whether the requirements of a secret ballot, as enjoined by the Standing Orders and the Constitution, were violated.

(vi) Whether the above irregularities, if any, justify setting aside the election of the second respondent as Speaker....,.

Conduct of Election

At the beginning of the election in casu, the first respondent laid out, in some detail, the procedure to be followed. However, during the election process, there were several deviations from the procedure prescribed, as appears from the papers and exhibits filed herein. In particular, some Members folded their completed ballot papers outside the polling booth and several MDC-T Members openly displayed their ballot papers to their colleagues. Again, most of the Members did not leave the Chamber after casting their votes.

All in all, it would appear that the first respondent did not stamp his authority on the conduct of the proceedings and was unable to prevent or stop the above-mentioned irregularities.

In his opposing papers, the first respondent explains that the membership of the House of Assembly had increased from 150 to 210 Members, all of whom were now elected and the majority of whom were opposition MDC Members. These factors contributed to a more exuberant atmosphere in the House which affected the dynamics of the election process. However, according to the first respondent, the proceedings were not disorderly or chaotic and all the Members in the House were able to vote freely and without any impediment.

Violation of Secret Ballot Requirements

Counsel for the applicants submits that the displaying of votes by participants in any election, as a matter of principle, violates the secrecy of the ballot because the votes displayed become known and influence the voting behaviour of the other participants.

In the specific case of an election to the position of Speaker, there are several compelling reasons for maintaining the secrecy of the ballot. On the one hand, the person elected to that position should remain unaware of how particular Members voted in order to retain his or her impartiality in the proceedings of the House. On the other hand, Members should be able to elect a Speaker endowed with the requisite authority and independence without fear of sanction from their political party or constituency. Moreover, according to the Lectric Law Library Lexicon (at www.lectlaw.com), the term “secret ballot” is defined as:

“The expression by ballot, voting machine, or otherwise but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.”

As against this, counsel for the first respondent contends that only 6 out of the total number of 208 Members were specifically identified by the applicants as having displayed their votes. Therefore, there was substantial compliance with the secret ballot requirement. In any event, she submits that the definition relied upon by the applicants is overly theoretical and technically deficient. A more functional definition is provided in Webster's New College Dictionary with the following essential elements:-

The provision of official ballot papers printed at public expense; on which the names of the nominated candidates appear; which are distributed only at the polling place; and which are marked in secret.

Again, in Steel and Engineering Industries Federation & Others v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (TPD)…, the requirements for a secret ballot were held to be as follows:-

Only those qualified must vote; the number of votes cast and the votes for and against must be counted; each voter must be able to vote privately and in secret; only the votes of eligible voters must be counted.

In essence, so long as voters are able to cast their votes in secret, they are entitled to voluntarily display their votes to others, in keeping with the freedom of expression guaranteed by section 20 of the Constitution.

Counsel for the second respondent also relies on Steel and Engineering Industries Federation & Others v National Union of Metalworkers of South Africa (2) 1993 (4) SA 196 (TPD) for the proposition that the requirements of a secret ballot are designed to protect voters from having to display their votes. Therefore, a voter can waive the secrecy of his own vote by free choice. This is a right vested in the voter himself.

In the instant case, the crucial question is whether or not it was reasonably possible for the Members in the House to cast their votes in secret.

In this regard, he submits that all the Members marked their ballots in secrecy within the polling booths provided. None of the Members complained of having been coerced or pressurised to expose their votes. Moreover, the applicants' claim that the majority of the MDC-T Members displayed their votes is not borne out by the evidence. In any event, those Members who did display their votes did so purely voluntarily without complaining that their voting rights had been violated. In short, such voluntary disclosure did not violate the secrecy of the election vote.

Whether Setting Aside of Election Justified

As regards the conduct of the election in casu generally, the papers before the Court evince several conflicts of fact as to what transpired at the time. The applicants' assertions that the proceedings were brazenly unruly are squarely rebutted by the averments of the first respondent.

In this situation, the approach to be adopted was explained by GUBBAY JA in Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…, as follows:

“It is, I think, well established that, in motion proceedings, a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently, there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and not merely an illusory dispute of fact.”

Having regard to the overall scenario prevailing in the House on the day in question, it seems reasonably clear that the election proceedings under review were not conducted in an ideal manner. Nevertheless, despite the imperfections alluded to above, it cannot be said that the process was so disorderly as to be utterly chaotic.

On the contrary, all the Members in the House were duly called upon to vote and were able to cast their votes in the polling booths provided. Taking into account the usual volatility associated with the conduct of Parliamentary business generally,

I am inclined to take the robust view that the election proceedings, as a whole, were sufficiently regulated to enable the election to take place to a satisfactory conclusion.

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

In essence, the plaintiff is alleging a short delivery of the diesel that it ordered and paid for. To prove its case, all the plaintiff had to do was to set up its paper trail showing the order, proof of payment on that order, and the deliveries received against that order thereby revealing the alleged non-delivery of the diesel duly ordered and paid for. This may sound simple, and, in my view, it is indeed a simple exercise where proper and comprehensive records are kept of all transactions of this nature – something that I expected an establishment of the plaintiff's stature to do.

It became apparent, however, during the trial that the plaintiff did not keep a comprehensive paper trail of each order of diesel made, from the date of order to the date and place of delivery. What the plaintiff sought to do at the trial was to show a general deficiency between the total of all orders allegedly made and deliveries received – without necessarily showing which particular orders were paid for but were not received at all, or were received in part.

In my view, having chosen to show a general deficiency, the plaintiff bore the onus of showing, accurately, what it is that it ordered and paid for to establish the opening entry of the account as it were. Having done so, it still would have borne the onus of proving what was delivered, again, accurately, to establish the closing entry of the account, thereby revealing the deficiency claimed. Anything short of this would be fatal to its claim.

During the trial, the plaintiff's second key witness conceded that the plaintiff did not have a full set of documents relating to four of the transactions listed in its summary of transactions as the files for these transactions had gone missing. As indicated above, he only adduced into evidence fourteen files instead of nineteen. The transactions for which no documents were adduced into evidence relate to invoices number 8 dated 2 April 2001; number 1039 dated 4 May 2001; invoice number 1061 dated 4 May 2001; and invoice number 13861 dated 10 December 2001. There was no evidence adduced before me in respect of these transactions to show that either the order had been made or that payments had been made in respect of the orders. All I had was the evidence of the witness that these were valid transactions for which he could not produce supporting documents.

On the basis of the above, it is my finding that the plaintiff failed to prove the accurate quantity of diesel that it ordered from and paid for. It has also failed to prove that the diesel that it ordered was not all delivered. In the result, I make the following order -

1. The defendant is absolved from the instance.

2. The plaintiff shall meet the defendant's costs of suit.

HH68-10 : ALVIN CRISP vs STELLA MARY MASVIKENI
Ruled By: MUSAKWA J

The defendant also sought an order for the plaintiff to account for rentals in respect of the Chisipite property. However, it is not clear which period the defendant wanted the plaintiff to account for. If it is the period prior to February 2009, before the introduction of multiple currencies, the plaintiff's evidence was that he used ...

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a)...,.

(b)...,.

(c)...,.

(d) Whether part of the amount claimed by the plaintiff before the Frankfurt Regional Court had prescribed at the time that the claim was instituted....,.

Prescription of Claim

According to the defendant, part of the loans founding KFW's claim had prescribed under the law of Zimbabwe by the time that KFW instituted proceedings in the Frankfurt court.

In this regard, the defendant refers the Court to the loan repayment schedules set out in the two loan agreements (Nos. F2971 and F3040) and contends that all the amounts due for repayment on or before 31 September 2001 had prescribed at the relevant time. The defendant further contends that the judgment of the Frankfurt court itself, delivered on 25 July 2006, had prescribed within three (3) years and that the plaintiff's action in this Court, filed on 15 October 2009, was instituted out of time.

I must confess that I find it somewhat difficult to comprehend the defendant's contentions on prescription.

First and foremost, the defendant is unable to state, with any certainty, when the proceedings in the Frankfurt court were instituted, and, therefore, what the cut-off date should be for the purposes of prescription before that court.

Secondly, even if the cut-off date argued for by the defendant is accepted, I note that the repayments due on or before that date constitute only about 20% of all the repayments owing to KFW.

Thirdly, the schedules referred to deal only with capital repayments and there is no indication as to the quantum of interest payable on the loans and the due dates for payment of such interest.

Finally, the ruling of the Frankfurt court (at p.4 of the certified translation) refers to a letter of demand for all amounts owed by the defendant, exceeding Euro 50 million, while the amount actually claimed by KFW in the Frankfurt court is no more than Euro 6.6 million (together with interest).

On these facts, it seems to me virtually impossible to ascertain precisely what amounts were owed under the loan agreements and when such amounts became due and payable. Therefore, without further documentary and oral evidence being lead, any attempt, at this stage, to determine what has prescribed would be an exercise in utter futility.

In any event, quite apart from the aforementioned evidential difficulties, there is considerable merit in the plaintiff's submission that prescription is a substantive matter, and, as such, falls to be determined by the lex causae and not the lex fori: see Laurens N.O. v Von Hohne 1993 (2) SA 104 (W)…,.

Under the loan agreements in casu (Article 10.2 of Loan No. F2971 and Article 9.2 of Loan No. F3040) the loans are governed by the law of the Federal Republic of Germany.

It is that law that is the lex causae and it is that law that determines the question of prescription.

In this regard, the defendant has not adduced any evidence as to the German law of prescription.

SC49-13 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs CHINA SHOUGANG INTERNATIONAL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSWAYO JA

Standard Chartered Bank Zimbabwe (“the appellant”) or (“the Bank”) is a commercial bank registered and operating in Zimbabwe.

The respondent is a company duly incorporated in terms of the laws of Zimbabwe and was carrying on business in Redcliff, Zimbabwe. It is a foreign investor whose specific purpose was the refurbishment of the blast furnaces of a Zimbabwean steel manufacturing company popularly known as Ziscosteel.

In October 2007, the respondent held two accounts with the Kwekwe branch of the appellant. As at 9 October 2007, there was, in the two accounts, an aggregate credit balance of US$47,739=86.

In terms of a directive issued by the Reserve Bank of Zimbabwe (sometimes referred to herein as “the RBZ”) sometime in October 2007, the appellant transferred, to the RBZ, the total credit balance of US$47,739=86 from the two accounts.

The directive does not form part of the record, but, it is common cause that it was purportedly issued in terms of section 35(1) of the Exchange Control Regulations 1996, SI109 of 1996 (“the Regulations”).

When the respondent demanded payment to it of the monies deposited in the accounts, the Bank refused to repay. It claimed that the intervention of the Reserve Bank of Zimbabwe (RBZ) had rendered it impossible for it to comply with its contractual obligation to make payment to the respondent.

The respondent applied to the High Court for an order compelling payment.

It alleged, that, the monies were wrongfully and unlawfully debited from its account without its consent and approval. It claimed, that, in terms of the law of banking, the Bank was contractually bound to repay the credit balances on demand.

The Bank contended, in its defence, that, upon receiving the directive by the Reserve Bank of Zimbabwe (RBZ), the funds held in the respondent's accounts ceased to be the property of the Bank and became that of the RBZ. It was contended further, that, the intervention of the Reserve Bank of Zimbabwe (RBZ) constituted an Act of State, and, therefore, a supervening impossibility which discharged the appellant from its obligations to the respondent.

The learned Judge granted the application. It is against his judgment that the Bank now appeals.

The main issue which falls for determination in this appeal is whether the Bank is liable to pay to the respondent the aggregate amount of US$47,739=86 transferred by it to the Reserve Bank of Zimbabwe.

THE LAW

The general rule relating to deposits made in a Bank account by a customer is that the money becomes the property of the Bank which can use such deposit as it pleases so long as it pays to the depositor, on demand, the equivalent of the amount deposited in the account.

In Standard Bank of South Africa v Echo Petroleum CC, Case No.192/11 (2012) ZASCA 18 (22 March 2012)…, it was said:

“The general rule is that, moneys deposited into a bank account fall into the ownership of the bank. The resulting credit belongs to the customer, the bank having a contractual obligation to pay the customer, on demand, and to honour cheques validly drawn on the account to the extent that it stands in credit.”

See also ABC Bank v Mackie Diamonds SC23-13; Foley v Hill (1848) 2 H.L. Cas 28.

The legal relationship between a Bank and its customer, whose account is in credit with it, is that of debtor and creditor.

Although the customer 'deposits' money to the credit of his account with the bank, the transaction is not one of depositum, but of loan: see Burg Trailers SA (Pty) Ltd v ABSA Bank Ltd 2004 (1) SA…,.; Ormerod v Deputy Sheriff, Durban 1965 (4) SA 670 (D)…,.; Absa Bank Ltd v Intensive Air (Pty) Ltd & Ors 2011 (2) SA 275.

If this legal position is followed to its logical conclusion, then, the deposits were the property of the Bank and what the Bank paid to the Reserve Bank of Zimbabwe (RBZ) was its own money.

That the Bank parted with the deposits in the account was of no import to the respondent whose right to be paid the equivalent of the deposits, on demand, remained unaffected by the Bank's dealings therewith.

The transfer to the Reserve Bank of Zimbabwe (RBZ), in terms of its directive, did not, therefore, extinguish the Bank's contractual obligation to make payment to the respondent.

THE DEFENCE

The Bank contends, that, it is discharged from its contractual obligations to the respondent by reason of a supervening impossibility otherwise known as a vis maior or casus fortuitus, namely, the Reserve Bank of Zimbabwe (RBZ) directive.

In support of its stance, it relies on the judgments in Peters, Flamman & Co v Kokstad Municipality 1919 AD 427 and Bob's Shoe Centre v Henneways Freight Services (Pty) Ltd 1995 (2) SA 421 (A).

The brief facts of Peters, Flamman & Co v Kokstad Municipality 1919 AD 427, as summarised in The Law of Contract in South Africa 3ed by RH CHRISTIE…, are that the appellant firm was contracted to light the streets of Kokstad for a period of years. During the currency of the contract, in wartime, the partners were interned as enemy aliens and their business wound up under the relevant war legislation. The Municipality's claim for damages for breach of contract and forfeiture of the firm's plant under a clause of the contract was rejected by the Appellate Division. At pp434-5 of the judgment of the court, SOLOMON ACJ remarked as follows:

“…,. Nor is it necessary to consider generally what are the circumstances in which it can be said that a contract has become impossible of performance. For the authorities are clear, that, if a person is prevented from performing his contract by vis maior or casus fortuitus, under which would be included such an Act of State as we are concerned with in this appeal, he is discharged from liability.”

In Bob's Shoe Centre v Henneways Freight Services (Pty) Ltd 1995 (2) SA 421 (A) the appellants were contracted to clear and deliver a consignment of shoes to the respondents factory in the city. A fire consumed the warehouse where the shoes were warehoused. The shoes were destroyed and it became impossible to complete performance of the contract.

Clearly, the facts of both these cases are distinguishable from those in casu.

The appellant herein has not shown, that, for some reason beyond its control, it cannot, from its resources, repay the debt. It has not proved impossibility.

It goes without saying, that, in order for its defence to succeed, the appellant must do more than merely allege impossibility. The impossibility must be proved, that is, it must be clear from the evidence that performance is impossible, not merely undesirable or uneconomical: see The Law of Contract in South Africa 3ed by R H CHRISTIE…,.

As has been shown above, the credit balance in the respondent's account is a debt that the appellant owes to the respondent.

The appellant has placed no evidence before the court which would establish that it has become impossible for it to make payment of its debt.

HH149-10 : FOOLPROOF ENTERPRISES (PRIVATE) LIMITED vs SURFACE INVESTMENTS (PRIVATE) LIMITED
Ruled By: KUDYA J

The plaintiff demonstrated, on a balance of probabilities, that it delivered dwarf coal to the defendant's premises. It was not disputed that the weighbridge tickets that were raised by the defendant described the product that was delivered as dwarf coal. The evidence adduced by Patience Muyambo was at variance with the standard operation manual that was adverted to by the defendant's Managing Director. Indeed, if visual sighting was the basis of identifying the product as dwarf coal, the persons who identified it as such should have been called by the defendant to describe what they saw. It was apparent from Maurice Chinyani's evidence that the heap he showed to Patience Muyambo could not be mistaken for dwarf coal.

The probabilities favour the plaintiff's version. The defendant consumes 25 tonnes of coal per day. Its' employees must have a general idea about the nature of the coal it uses. It is unthinkable that they would have identified grey ash as black and shiny dwarf coal, or failed to notice, on offloading, that what was purported to be coal was ash. The defendant did not explain why it did not immediately notify the plaintiff that it had delivered a substandard product when it made such a discovery but was content to mislead the plaintiff that payment had been made. It did not explain why it raised the issue of the standard of the product when the plaintiff, with the help of the police, insisted on payment. The impression created by the defendant's failure to timeously inform the plaintiff of the unsuitability of its deliveries was that the plaintiff delivered the correct product. It could very well have been consumed by the defendant in the ordinary course of its production processes. One cannot rule out that the plaintiff was then shown the by-product of that industrial process as the coal it had delivered some two weeks before.

In my view, the findings of credibility and the probabilities demonstrate that the coal delivered by the plaintiff was dwarf coal and was suitable for its intended purposes. Accordingly, it is ordered that:

The defendant shall pay to the plaintiff:

1. The sum of US$8,769=44 together with interest at the prescribed rate from the date of the service of summons to the date of payment in full.

2. ...,.

HH173-10 : TAMBUDZAI MAFUSIRE vs LEWIS GREYLING and ELGREY INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

The plaintiff issued summons claiming damages arising from a motor vehicle accident which occurred on 18 May 2007. The plaintiff's claim is founded on allegations that the accident was solely due to the negligence of the first defendant in that:

(a) He attempted to overtake another vehicle in the face of the plaintiff's vehicle;

(b) He drove at an excessive speed; and

(c) That he failed to take evasive action or act reasonably when an accident was imminent.

The defendants denied that the first defendant was negligent.

They pleaded that the plaintiff was driving at an excessive speed in the circumstances and failed to take evasive action to avoid the accident when it was imminent. The defendants pleaded, in the alternative, that, there was contributory negligence on the part of the plaintiff.

The defendants filed a counter-claim also claiming damages arising from the accident.

The following facts are common cause:

The collision between the parties' motor vehicles occurred at approximately 11am on 18 May 2007 on the 11km peg along the Mazowe-Mvurwi road. The plaintiff was driving a Mazda 929 and was proceeding from Harare to Concession. The first defendant was driving a Toyota Hilux pick/up truck owned by the second defendant and was proceeding from Concession to Harare.

The first defendant was driving the truck during the course of his employment with the second defendant.

The description and topography of the scene of the accident was that there was a blind rise at the scene and an embankment on either side of the road. There was tall grass on the verge of both sides of the road. There was a railway crossing in the direction from Harare just before the scene of the accident and a curve just after the railway crossing.

At the time when the accident occurred, there was a lorry in the first defendant's lane. The point of impact was on the outer edge of the plaintiff's side of the road. Upon impact, the plaintiff's vehicle veered to the incorrect lane and hit into the lorry. The defendant's vehicle landed in the embankment. The plaintiff applied brakes before impact resulting in skid marks extending for 36 metres. The first defendant also applied brakes resulting in skid marks extending for 33 metres. Both parties sustained severe injuries requiring their hospitalization for some days. Their vehicles were extensively damaged.

On 25 June 2007, the first defendant paid an admission of guilt fine of ZW$2,500.

Two main issues were referred to trial:

(i) The first issue for determination is who between the plaintiff and the first defendant caused the accident.

(ii) The second issue relates to the quantum of damages due and payable by the party found at fault.

Liability

The plaintiff testified, in her evidence-in-chief, that, on 18 May 2007 she left Harare for Concession where she was going to collect her daughter from Barwick School, 100km from Harare. When she came to the railway crossing she stopped and only proceeded after she satisfied herself that it was safe to do so. She suddenly noticed a large lorry in the other lane travelling slowly in the opposite direction.

She was, at this stage, travelling at about 50km/hr.

At about the same time, she observed the first defendant's vehicle in her lane coming from the opposite direction overtaking the lorry. The vehicle was between 20 and 30 metres away. The speed of the other vehicle was such that the first defendant could not go back into his lane. The first defendant must have been travelling at about 60km/hr. She had not been able to see the vehicle earlier because of the tall grass on the verge of the road. When she realized that an accident was imminent, she applied brakes fully, and, at the same time, moved to the extreme left in the hope that the other vehicle would be able to pass between her vehicle and the lorry. The other vehicle however moved to its extreme right in the same direction she was moving resulting in the collision. The collision occurred at the far edge of the road.

It was her evidence that the first defendant caused the accident in that he encroached into her lane as he was overtaking the lorry. He was also travelling at an excessive speed and failed to avoid an accident when it seemed imminent.

Under cross examination, the plaintiff contradicted her evidence-in-chief and her summary of evidence.

Although in her evidence-in-chief she had said she was going to Barwick School to collect her daughter, she had difficulties in explaining why, in her summary of evidence, she had stated that she was going to attend a parents meeting. She stated that she left Harare at around 10am because the meeting was at 11am; yet, in the summary of evidence, she had stated that she left home at 8:30am.

Her explanation for the contradiction was that she had left her home at 8:30am to buy groceries first for use in Harare but left Harare for the school at around 10am. However, this explanation does not appear in the summary of evidence.

In the summary of evidence, she stated that because she left at 8:30am for an 11am meeting, she was not in a hurry and was travelling at a safe speed of 90km/hr.

The accident occurred at about 11am and about 50km from the school.

If she were to abide by her summary of evidence, it would have meant that despite travelling at 90mk/hr, she had only travelled a distance of 50km in two and a half hours.

The fact that the time the accident occurred is the time when the meeting was supposed to commence, at a place 50km away from the scene of the accident, clearly indicates that she was already late for the meeting and discredited her statement in the summary of evidence that she was not in a hurry. It leads to the inescapable conclusion that she must in fact have been in a hurry and was travelling at a faster speed than she disclosed so as to be in time for the meeting.

The plaintiff also gave contradictory evidence on whether or not the lorry in the first defendant's lane was moving or stationary.

Although in her evidence in chief she had stated that the vehicle was moving slowly, she changed her evidence under cross-examination and stated that she thought that she had seen it moving slowly but could no longer recall whether or not it was stationary.

In her evidence-in-chief, she stated that she saw the first defendant's vehicle when it was already overtaking the lorry. However, it appears that she had seen the first defendant's vehicle well before he had commenced to overtake the lorry.

In her summary of evidence, she had stated as follows:

“3.5 Behind it (the lorry) the Plaintiff noticed some movement which, whilst not very apparent, was incongruous to the movement of the Mercedes Benz truck aforesaid.

3.6 In a flush, whilst the Plaintiff was still trying to figure out the movement behind the truck, and whilst she was still about 30 or so metres away from it, The First Defendant's vehicle zoomed into her lane of travel, and like a missile, shot at her vehicle.”

In answer to the question, under cross examination, on whether or not she saw the defendant's vehicle behind the lorry she stated:

“That is why I said I saw some movement, maybe the tyres under the lorry.”

It appears that she therefore contradicted herself that she first saw the first defendant when he was already overtaking the lorry. She, again, could not satisfactorily explain the contradiction.

There is a presumption that events are clearer nearer to the date of accident.

The fact that there were major shifts in the plaintiff's oral evidence and her summary of evidence raised the suspicion that her oral testimony had been altered to cover up for the loopholes that were in her summary of evidence. This, in my view, tainted her credibility.

The plaintiff also had difficulties in justifying the 36 metre skid marks if she had been travelling at between 40 to 50km/hr.

It is common cause that the skid marks were made from the time when she first saw the first defendant to the point of impact.

She had just left a railway crossing where she testified that she had come to a stop. She was gathering speed when she saw the first defendant's vehicle about 20 to 30m away. Her vehicle was moving at 40-50km/hr. The two vehicles were approaching each other.

The 20 to 30m distance, from the first time she first saw the first defendant overtaking the lorry, would have been reduced significantly to less than 30m if the first defendant was travelling at the speed she estimated to be 65km/hr. The skid marks would therefore have been certainly less than 36 meters.

The plaintiff failed, again, to explain how she caused the 36 metre skid marks over a distance of less than 30 metres.

If I were to believe that she was travelling at 40 to 50km/hr and had reduced her speed further when she applied her brakes over a distance of 36 metres, the plaintiff could not explain how, upon impact, her vehicle pushed the first defendant's vehicle down an embankment.

The only inference to be drawn from these factors is that she was travelling at a high speed.

Arising from the above contradictions, I am of the view that the plaintiff was not a truthful witness.

She sought to underplay the speed she was travelling at.

She had just come from a railway crossing and was going up a blind rise with tall grass on the verge obscuring her vision. She had seen a movement behind the lorry and yet did not reduce her speed at that stage despite her limited vision.

It is therefore my finding that she was travelling at a high speed under the circumstances.

The second witness was Sergeant Fanizo Felix. He was the investigating officer.

He testified that he arrived at the scene of the accident about half an hour after the accident had occurred. Although the plaintiff and the first defendant had already been taken to hospital, the vehicles had not been moved.

The lorry which had occupied the first defendant's lane had been moved some distance away from the scene. He observed two sets of skid marks made by the plaintiff's and the first defendant's vehicles. The plaintiff's skid marks measured 36 metres and the first defendant's 33 metres.

He was advised by the witnesses who had observed the accident that the lorry had been stationery.

The witnesses indicated that the plaintiff had been speeding and he formed the same view because of the long skid marks. He however was of the view that the first defendant had also been speeding and was the proximate cause of the accident as he did not exercise due caution when he overtook the stationary lorry and that the accident occurred in the plaintiff's lane.

The first defendant approached him stating that he wanted to pay a fine which he freely did on 25 June 2007.

The witness was not shaken under cross-examination.

He conceded that the first defendant could not move back into his lane when he was overtaking because it was occupied by the lorry. He however, maintained that the first defendant should have proceeded when it was safe to do so.

The evidence of this witness contradicts the plaintiff's evidence that she was travelling at a safe speed. It further contradicts the plaintiff's evidence that the lorry was in motion.

This witness attended the scene soon after the accident, before any of the witnesses had been influenced by any of the parties to testify in their favour. In fact, the parties had been incapacitated and taken to hospital when he attended the scene of the accident.

I therefore do not have a basis for disbelieving his evidence.

The first defendant denied liability in the main and pleaded, in the alternative, that, the plaintiff contributed to the collision.

He testified that he joined the main road from a side road at about 400m from the point of impact. He was travelling at a speed of 65km/hr. As he approached the scene of accident, and at the start of a curve, he observed a stationary lorry occupying the entire left lane. He reduced speed and engaged the third gear. He moved slightly into the right lane in order to see if the lane was clear so that he would pass the lorry safely. He did not see any vehicle approaching from the other direction. He had reduced the speed of his vehicle to 20 to 30km/hr. He increased when he started to pass the lorry.

As he was now passing the lorry he observed an oncoming vehicle.

The vehicle was travelling at a very high speed straddling the centre line and therefore encroaching into his lane. He could not move back into his lane as he was now passing the lorry. He applied brakes, and, at the same time, moved to the extreme right side of the road and pulled off the road intending to give way to the oncoming vehicle to pass between him and the lorry. He could not move any further off the road because there was an embankment on his right hand side.

The plaintiff moved back to her lane at the same time as he moved to the extreme right and applied her brakes. The plaintiff's vehicle skidded out of control towards where he had stopped his vehicle. The two vehicles collided on the verge of the road, off the plaintiff's lane. As a result of the impact, his vehicle was pushed for about five meters backwards and landed in the embankment.

Two days after he was discharged from hospital, following the accident, he was invited to Mazowe Traffic Police to give his statement. He stated that when he first wrote the statement he did not include the distance that he was travelling at when the accident occurred. He inserted the speed of 65km/hr upon inquiry by the police. He had intended to insert it as the speed that he was travelling at when he first saw the lorry. He attributed the error to the trauma he was going through and the sedation he was under.

He admitted to paying an admission of guilt fine on the advice of Sergeant Fanizo. He was told that if he went to court and was convicted he would pay a heavy fine and lose his driver's licence. Sergeant Fanizo advised him that it was better for him to admit that he was driving without due care and pay a nominal fine than go through the inconvenience of a trial.

He confirmed that he gave a statement to the police at the scene of the accident when he went to make indications.

He testified that after he had paid the admission of guilt fine, he visited his lawyers on a different issue. He explained to his lawyer about the accident. Upon advice, he then realized the implications of his admission of guilt. He then deposed to an affidavit and gave it to Mazowe Traffic Police section seeking to change his plea.

There were contradictions in the first defendant's evidence which became apparent under cross examination.

Whilst in the Traffic Accident Book (TAB) he stated that he was overtaking the lorry at a speed of 65km/hr, in his oral evidence, he sought to reduce the speed to 20-30km/hr. In the Traffic Accident Book (TAB), he stated that the speed would have been 20-30km/hr at the point of collision, yet, in evidence, he stated that he was stationary.

The first defendant could not have been travelling at a speed of 20 to 30km/hr as he had increased speed when he commenced overtaking the lorry.

The skid marks that were observed by Sergeant Fanizo, extending for some 33 metres, were not consistent with a vehicle that was travelling at a speed of between 20 and 30km/hr.

The first defendant therefore also sought to minimize the speed that he was travelling at before impact.

The difference between the plaintiff's and first defendant's skid marks is only three metres. Just like the plaintiff, the first defendant was also driving at a very high speed.

In fact, the statement by the first defendant, in the Traffic Accident Book (TAB) that he was travelling at a speed of 20-30km/hr at the point of impact contradicts his evidence-in-chief that the impact occurred after he had stopped.

The fact that he was still in motion is consistent with the plaintiff's evidence and the indications by Sergeant Fanizo of the point of impact on the road. The averments by the first defendant, that he was stationery, cannot therefore be true.

I therefore find that the first defendant was travelling at an equally high speed under the circumstances.

The first witness who was called by the first defendant was Tongai Mutapanyama.

He testified that on the day in question, he was in the company of his friend, Maxwell Munyanga. They were walking in the direction of Harare. They passed a stationary Mercedes Benz lorry which had stopped in the lane facing Harare. He observed the plaintiff's vehicle proceeding from Harare towards Mvurwi. The vehicle was travelling at a very high speed. He commented on the speed and that it was being driven by a woman.

He then heard the screeching of brakes and observed the first defendant's vehicle coming from the direction of Mvurwi towards Harare. The first defendant's vehicle went off the road towards the right side and stopped. The plaintiff's vehicle skidded off the road and crushed into the first defendant's truck. Upon impact, the plaintiff's vehicle veered towards the lorry and hit it and then landed in the ditch. When the police arrived, the lorry had been moved because it was blocking free flow of traffic.

Under cross examination, Tongai Mutapanyama estimated that the plaintiff was travelling at the maximum speed the vehicle could go. He denied indicating to the police that the vehicle was travelling at 140km/h as contained in his statement to the police. He assumed that the police recorded that speed because he had stated that the vehicle was going “at its fastest speed”. He testified that the lorry had stopped nearer the centre line.

The second witness was Maxwell Muyanga. His evidence was substantially the same as Tongai Mutapanyama's evidence.

The plaintiff submitted that the two defence witnesses could not be believed as there was evidence that they discussed their evidence before the trial.

The plaintiff did not elaborate the basis for the alleged connivance.

HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

The mode of payment of the purchase price would be one of the terms that the parties would have agreed upon when concluding the Agreement of Sale. In this instance, the applicant has not been able to establish on the papers what the parties had agreed to in relation to the payment.

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

Disposition All of the issues for determination in casu were raised by the defendant in order to resist the plaintiff's claim for ejectment. Each of these issues constitutes a special defence in respect of which the onus of proof, on a balance of probability, lies squarely on the defendant. See M.B. Investments (Pvt) Ltd v Oliver ...

HH147-10 : LAWRENCE SHUMBAYAONDA vs MADHATTER MINING (PRIVATE) LIMITED
Ruled By: HUNGWE J

As for the entitlement to the Isuzu KB320 registration 780-824W, the plaintiff came nowhere near proving this as an entitlement. It remains the company's property. In the result, the plaintiff's claim is dismissed with costs. On the other hand, I find that the defendant's counterclaim succeeds with costs. It shall so be ordered.

HH125-10 : SNOCROSS INVESTMENTS (PVT) LTD vs IRVINES ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

It was agreed at the pre-trial conference, held on 28 April 2010, that the onus to establish the overpayment was on the defendant. At the trial, the duty to begin fell on the defendant. In the bid to prove its counter-claim, the defendant called the evidence three witnesses, and produced seven documentary exhibits. The defendant's witnesses ...

HH202-10 : OBRIDGE ENTERPRISES (PVT) LTD vs PULWICK ENTERPRISES (PVT) LTD
Ruled By: KUDYA J

At the commencement of the trial, I ruled that the defendant had the duty to begin as the evidentiary onus to show that it returned 2,484 bags of mealie meal to the plaintiff lay on it.

HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

Counsel for the plaintiff said, in casu, all the plaintiff had to do was to establish, on a balance of probabilities, that there were amounts of money still outstanding in terms of the loan facility. He submitted that given the circumstances of the case “the plaintiff was entitled to judgment in the sum of US$80,421=84 ...

Counsel for the defendant correctly submitted that it was the plaintiff's duty to prove its claim on a balance of probabilities. The plaintiff, he argued, had failed to prove its case. He said within a space of three months after the issuance of the summons the plaintiff had, without leave of court, produced three different figures as follows -

“9.2.1. As of 17 May 2010: USD83,953=02;

9.2.2 As of 18 2010: USD88,452=;

9.2.3 As of 19 May 2010: USD99,383=52.”

All in all, counsel for the defendant submitted that the plaintiff had, on a balance of probabilities, failed to prove its case. It had failed to produce documents in support of its claim; failed to prove that it had Reserve Bank of Zimbabwe authority/approval for the drawdowns; failed to seek the leave of court in order to procedurally alter its pleadings; and failed to rectify the invalidity of the summons by filing a certificate signed by a Manager/ Accountant.

2. The plaintiff does not have the requisite proof to prove the claim

In its plea the defendant avers as follows -

“Defendant denies that the sum of US$80,421=84 (eighty thousand four hundred and twenty one United States dollars and eighty four cents) or any sum at all is owed to the plaintiff.”

However, notwithstanding the above, evidence before the court shows that -

(a) There was an accepted facility which was renewed in June 2004.

(b) Drawdowns were indeed made on the facility and each party kept its own records.

(d) A balance of US$57,353=03 was tendered as a settlement amount.

(e) Up until 2008 there was never an averment to the fact that the plaintiff had contravened the terms and conditions of the facility letter by using incorrect interest rates.

(f) Mr Neil James Bruce, who only came onto the scene in 2008, admitted that the defendant kept its own records which it had used to arrive at the figure of US$35,000= and, indeed, the settlement figure of US$57,353=03. However, no records of the transactions were placed before the court. There was no evidence of that in defendant's bundle of documents.

(g) The plaintiff produced a schedule attached to the summons which shows that, apart from the last payment of US$20,000= paid on 11 November 2009, the defendant had, up to 30 April 2008, effected a total of thirty two (32) payments in varying amounts. This probably accounts for the sum of US$233,000= which the defendant says it paid. The defendant was definitely paying towards known drawdowns. (i.e. the seven drawdowns listed at p4 of this judgment).

(h) In making the thirty two (32) payments referred to in (g) above, the defendant never questioned the libor rates that were used by the plaintiff. The rates were only questioned when Mr Neil James Bruce took over in 2008 and when the defendant was in default.

(i) Expert witness called by the defendant testified that the libor rates he obtained from Bloomberg were higher than the Reuters rates but never produced the Bloomberg rates.

(j) The plaintiff admitted that the schedules used in court reflected amounts higher than the amount on the summons. This, the plaintiff explained, was so because the outstanding balance(s) continued to accrue interest.

I agree with the above explanation in paragraph (j) above relating to why the amount on the summons was rising. I actually found it unfortunate for the defendant's counsel to expend a lot of his time on that issue….,.

A consideration of the above factors, and the submissions by counsel for both parties, leads me to the conclusion that the plaintiff has, on a balance of probabilities, proved its claim against the defendant. I agree with counsel for the plaintiff's reliance on Miller v Minister of Pensions (1947) Z ALL ER 372 where LORD DENNING stated -

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it is more probable than not', the burden is discharged...,.”

Without carrying out a reconciliation exercise of figures for the parties, which I believe I am being asked to do, I believe, upon taking into account the factors listed above (a-j), it is more probable than not that the defendant owes the plaintiff the amount claimed.

View Appeal
HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED
Ruled By: KUDYA J

THE RESOLUTION OF THE ISSUE OF LIABILTY I proceed to determine the issue of liability in the light of the evidence led and the submissions made at the trial. Whether or not the accident was caused either as result of the negligence of the first defendant or the condition of the tractor and trailer; or by both. The onus ...

THE RESOLUTION OF THE ISSUE OF LIABILTY

I proceed to determine the issue of liability in the light of the evidence led and the submissions made at the trial.

Whether or not the accident was caused either as result of the negligence of the first defendant or the condition of the tractor and trailer; or by both.

The onus to prove that the collision was caused by the first defendant's manner of driving or by the use of an unroadworthy trailer and tractor lies on the plaintiff.

It was common cause that the first defendant neither possessed a driver's licence nor a permit issued in terms of section 8(2)(a) of the Road Traffic Act [Chapter 13:11] to drive a tractor on public roads. It was also common cause that he was driving the tractor in the middle of his lane of travel and not on the extreme left of that lane. The plaintiff failed to establish how the failure to hold a drivers' licence or permit affected the manner in which the first defendant drove the tractor and trailer that night. Counsel for the plaintiff argued that as the second defendant was driving a slow-moving vehicle, he ought to have hugged the extreme left of the lane. He contended that had the first defendant done so, the plaintiff would have been able to drive on without fear of a head on collision with the oncoming vehicle.

The first defendant explained that the local police had, in outreach programmes that targeted tractor drivers in the area, exhorted them to drive in the middle of their correct lane to avoid accidents caused by drivers who sought to squeeze through as the plaintiff wanted to do on the fateful night. It seems to me that once the second defendant was on the road, he had the same legal rights, privileges and responsibilities conferred on any driver by the law. He was entitled to drive on the left lane.

It was the first defendant and Lovemore Ndodo's uncontroverted testimony that two other vehicles had overtaken the tractor and trailer while traveling in the middle of its lane without any mishap. It was apparent from the plaintiff's version that the tractor driver maintained a steady course. The plaintiff neither stated nor suggested that the second defendant meandered from his initial course into the plaintiff's path when he commenced to overtake. It was submitted that he failed to keep a proper control of the tractor after the accident because it stopped 81m from the scene of the accident and on the opposite side of the road. It was common cause that after impact the drawbar of the trailer disengaged from the tow-hitch and the tractor engaged the neutral gear. The careening of the tractor off course did not cause the collision; rather it was caused by the collision. The second defendant explained that he was shocked and dazed by the collision but he still managed to stop the tractor on the other side of the road without any mishap.

It seems to me that the first defendant's manner of driving both before and after the collision cannot be faulted. The plaintiff failed to establish negligence in the manner the second defendant drove the tractor and trailer.

The plaintiff further contended that the collision was caused by the unroadworthiness of the trailer.

It was common cause that the trailer did not have any rear lighting. It was common cause that there was a reflex reflector in the form of a chevron pattern which was 1,7m long and 19cm wide that was affixed some 1,3m from the ground-level. Neither the trailer nor the tractor was registered. The first defendant conceded the shortcomings that were on the trailer. Both the first defendant and Lovemore Ndodo maintained that the headlamps of the tractor were on as were the four hazard flashing lights on the big wheel of the tractor. The hazards were flashing as a warning to traffic behind and in front that there was danger lurking on the road. That these lights were functioning was affirmed by the Farm Manager. Although the plaintiff suggested that they were switched on by the Farm Manager at the request of the attending police officer, he confirmed that they were functioning.

The plaintiff failed to explain why he did not observe these flashing hazard indicators. He suggested that his view was obstructed by passengers who were seated inside the trailer. He failed to explain why he failed to observe the amber light waves that were cast by the flashing hazard indicators. In his declaration, the plaintiff portrayed the impression that he did not observe the flashing hazard lights. I did not believe his testimony that the hazards were off. It seems to me that he saw the tractor in time and commenced to overtake. It was only while he was doing so that he realized that he had misjudged the distance of the oncoming vehicle and he had no option but to drive under the right hand side of the trailer towards the rear.

In my view, the accident was not caused by the unroadworthiness of the trailer.

If the methodology used by the plaintiff in calculating his speed was correct, he was traveling at a speed of between 140km/h and 160km/h. At such a speed, indeed, the trailer would have suddenly appeared as an apparition. He drove at an excessive speed, failed to keep a proper lookout and attempted to overtake when it was not safe to do so. I am satisfied that he was racing after the other two vehicles that overtook the tractor. He must have seen them overtaking the tractor.

It seemed to me that the defendants were correct in their averments and testimony that the plaintiff was the sole cause of the accident.

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

Felix Dzumbunu was asked to produce, but could not, documentary proof that the Z$6,6 million was returned to Denrose Real Estate. He was however surprised by the suggestion that the plaintiff had never received that money as the agents in their correspondence never disputed that they had received the money. The said correspondence was not, however, produced ...

HH240-10 : DOREEN SAGANDIRA vs PATRICK SAGANDIRA
Ruled By: MAVANGIRA J

It is at this stage also appropriate to comment about the defendant's allegation that the plaintiff stole some money from the Drought Relief Programme and that this is the money which she later claimed to have invested in the family's business. The plaintiff denied the allegation. The defendant did not place any evidence before the court ...

HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA
Ruled By: CHITAKUNYE J

It may also be noted that in his evidence in court the plaintiff still did not adduce such evidence as to answer the issues referred to trial on his claim.

HH252-10 : MUNYUKI ROBERT ARMITAGE CHIKWAVIRA vs PRODUTRADE (PRIVATE) LIMITED and REGISTRAR OF DEEDS, HARARE
Ruled By: GOWORA J

As to what the applicant's obligations as a surety under the contract he signed I am of the view that that is the dispute that has been brought to court by the respondent in the damages claim filed against the applicant. It seems to me that the interpretation of the Suretyship Agreement has not ...

HH268-10 : TOTAL ZIMBABWE (PRIVATE) LIMITED vs APPRECIATIVE INVESTMENTS (PRIVATE) LIMITED
Ruled By: KUDYA J

The parties differed on whether or not the defendant was aware of the rentals that were due in foreign currency before the service of summons. The pith of Lovemore Tichaona Kuwana's evidence was that he personally handed the statements of rentals due to the defendant's Managing Director, Ronald Mhlanga, on the due dates until the lease ...

The parties differed on whether or not the defendant was aware of the rentals that were due in foreign currency before the service of summons.

The pith of Lovemore Tichaona Kuwana's evidence was that he personally handed the statements of rentals due to the defendant's Managing Director, Ronald Mhlanga, on the due dates until the lease was cancelled on 28 July 2009.

Ronald Mhlanga denied ever receiving the statements and indicated that he only became aware of the amount that the plaintiff unilaterally imposed when he was served with the summons.

Each party relied on the correspondence exchanged between them to support its averment.

The onus, on a balance of probabilities, to show prior knowledge of the amount of rental due per month lay on the plaintiff.

Lovemore Tichaona Kuwana testified that when the defendant failed to pay up he arranged a meeting with Ronald Mhlanga for payment of the outstanding rentals and for the execution of a new lease agreement. He relied on the tone of the letter written by Mushangwe and Company Legal Practitioners, engaged by the defendant on 15 May 2009, as indicative of the defendant's prior knowledge of the amount of rentals due. It reads in the relevant part:

“He further advises us that it was agreed by the parties that should the above request be met, our client will start paying his rentals. To date no response had been given to our client and he is, too, anxious to meet his obligation of paying you rentals.”

The plaintiff responded to that letter on 28 July 2009 and disputed the existence of an agreement to forego rentals due until the issues of the formalization of parking space, its request for a longer lease and exclusive use of the premises were agreed.

Counsel for the plaintiff contended that the term “rentals” in that letter was used in its technical sense of being synonymous with the actual amount of money demanded by the plaintiff. He further argued that the defendant had prior knowledge of the amount claimed by the plaintiff otherwise it would have asked in that letter what the monthly rental payable was.

Counsel for the defendant contended that “rentals” was used in its wide and generic sense of an unquantified and unknown amount of money that the defendant would pay after agreement was reached between the parties. He further contended that the letters written by Chikumbirike and Associates for the defendant on 30 July and 29 September 2009, and the plea, demonstrated that the defendant was ignorant of the actual amount of monthly rental demanded by the plaintiff.

The difficult task of assessing the credibility of Lovemore Tichaona Kuwana and Ronald Mhlanga and the probabilities in order to determine this issue was minimized by the admission made by Ronald Mhlanga, under the heat of searching cross examination, that he was aware of the amount of monthly rental that was unilaterally set by the plaintiff in foreign currency before 5 May 2009…..,.

In the result, I was satisfied that Lovemore Tichaona Kuwana was a credible witness.

I discerned from his testimony that he verbally conducted most of the business communication between the plaintiff and the defendant with Ronald Mhlanga. He represented the plaintiff in 28 different leases involving workshops and service stations. The probabilities show that the plaintiff, being in the business of making an income from the lease of workshops and service stations, would naturally have demanded a specific sum of monthly rentals from the defendant in foreign currency. In my view, the defendant scuttled the meetings of 5 and 15 May 2009 because it had prior knowledge of the amount of monthly rentals demanded by the plaintiff. The letter from Mushangwe and Company Legal Practitioners demanded that the plaintiff stop all direct communications with the defendant and requested that all future meetings be arranged with Mushangwe and Company Legal Practitioners. It revealed that the plaintiff had, in the past, arranged for similar meetings which had failed to take place. I was satisfied from the tone and timing of that letter that the defendant was unwilling to agree to the amount of rentals payable because it was already aware of the figure demanded by the plaintiff.

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Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN Ruled By: KUDYA J

HH134-12 : EVANGELIST SANDE (nee NYAMANGUNDA) vs TAKAWIRA KIZITO SANDE Ruled By: CHITAKUNYE J

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO Ruled By: BERE J

Appealed HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS Ruled By: KUDYA J

HH38-12 : PAUL CHIONISO MAWACHA AND CECILIA MAWACHA vs STERBY NHAMO AND INNOCENT NHAMO AN ANOTHER Ruled By: KUDYA J

HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE Ruled By: KUDYA J

HB10-12 : NOBERT KATERERE vs STANDARD CHARTERED BANK ZIMBABWE LTD Ruled By: NDOU J

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER Ruled By: MUTEMA J

Appealed SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE Ruled By: BHUNU J

HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA Ruled By: MAVANGIRA J

HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS Ruled By: PATEL J

Appealed HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O. Ruled By: KUDYA J

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL Ruled By: GOWORA J

HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA Ruled By: KUDYA J

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS Ruled By: KUDYA J

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED Ruled By: BHUNU J

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE Ruled By: CHITAKUNYE J

HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING Ruled By: GOWORA J

HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA Ruled By: MAKARAU JP

HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU Ruled By: GUVAVA J

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE 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

HB44-09 : MUSA MAPHOSA vs NDABA HLABANGANA Ruled By: KAMOCHA J

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS Ruled By: KARWI J

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS Ruled By: KARWI J

HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET Ruled By: PATEL J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAKARAU JP

View Appeal HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO Ruled By: PATEL J

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD Ruled By: MAKARAU JP

HH68-10 : ALVIN CRISP vs STELLA MARY MASVIKENI Ruled By: MUSAKWA J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED Ruled By: PATEL J

SC49-13 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs CHINA SHOUGANG INTERNATIONAL Ruled By: ZIYAMBI JA, GARWE JA and HLATSWAYO JA

HH149-10 : FOOLPROOF ENTERPRISES (PRIVATE) LIMITED vs SURFACE INVESTMENTS (PRIVATE) LIMITED Ruled By: KUDYA J

HH173-10 : TAMBUDZAI MAFUSIRE vs LEWIS GREYLING and ELGREY INVESTMENTS (PVT) LTD Ruled By: CHATUKUTA J

HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS Ruled By: GOWORA J

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA Ruled By: PATEL J

HH147-10 : LAWRENCE SHUMBAYAONDA vs MADHATTER MINING (PRIVATE) LIMITED Ruled By: HUNGWE J

HH125-10 : SNOCROSS INVESTMENTS (PVT) LTD vs IRVINES ZIMBABWE (PVT) LTD Ruled By: KUDYA J

HH202-10 : OBRIDGE ENTERPRISES (PVT) LTD vs PULWICK ENTERPRISES (PVT) LTD Ruled By: KUDYA J

HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED Ruled By: MTSHIYA J

View Appeal HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED Ruled By: KUDYA J

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT Ruled By: MAVANGIRA J

HH240-10 : DOREEN SAGANDIRA vs PATRICK SAGANDIRA Ruled By: MAVANGIRA J

HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA Ruled By: CHITAKUNYE J

HH252-10 : MUNYUKI ROBERT ARMITAGE CHIKWAVIRA vs PRODUTRADE (PRIVATE) LIMITED and REGISTRAR OF DEEDS, HARARE Ruled By: GOWORA J

HH268-10 : TOTAL ZIMBABWE (PRIVATE) LIMITED vs APPRECIATIVE INVESTMENTS (PRIVATE) LIMITED Ruled By: KUDYA J

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Law Portal
Zimbabwe

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

HH134-12 : EVANGELIST SANDE (nee NYAMANGUNDA) vs TAKAWIRA KIZITO SANDE
Ruled By: CHITAKUNYE J

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

Appealed
HH211-10 : VIRGINIA CHIKADAYA [in her capacity as The Executrix Dative of Cyril Chikadaya] vs CLADIOS CHENGA and ZAKEYO CHIKADAYA and BEAUTY MPOFU and REGISTRAR OF DEEDS
Ruled By: KUDYA J

HH38-12 : PAUL CHIONISO MAWACHA AND CECILIA MAWACHA vs STERBY NHAMO AND INNOCENT NHAMO AN ANOTHER
Ruled By: KUDYA J

HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

HB10-12 : NOBERT KATERERE vs STANDARD CHARTERED BANK ZIMBABWE LTD
Ruled By: NDOU J

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA
Ruled By: MAVANGIRA J

HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS
Ruled By: PATEL J

Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA
Ruled By: KUDYA J

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

HH112-09 : DR. J L MAVURUDZA AND MRS MAVURUDZA vs MEIDLER POOLS AND CONSTRUCTION (PRIVATE) LIMITED
Ruled By: BHUNU J

HH123-09 : JOHN MANATSA vs ZONDAI CHIMBWANDA and GIVEMORE KARIMAZONDO and WILLARD DZOMBA and CITY OF HARARE
Ruled By: CHITAKUNYE J

HH130-09 : INVICTUS (PRIVATE) LIMITED vs SCHALK LESSING
Ruled By: GOWORA J

HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA
Ruled By: MAKARAU JP

HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU
Ruled By: GUVAVA J

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE
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

HB44-09 : MUSA MAPHOSA vs NDABA HLABANGANA
Ruled By: KAMOCHA J

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

HH19-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs M.C.R. VENGESAYI and THE MINISTER OF LANDS IN THE OFFICE OF THE PRESIDENT AND CABINET
Ruled By: PATEL J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

HH68-10 : ALVIN CRISP vs STELLA MARY MASVIKENI
Ruled By: MUSAKWA J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

SC49-13 : STANDARD CHARTERED BANK ZIMBABWE LIMITED vs CHINA SHOUGANG INTERNATIONAL
Ruled By: ZIYAMBI JA, GARWE JA and HLATSWAYO JA

HH149-10 : FOOLPROOF ENTERPRISES (PRIVATE) LIMITED vs SURFACE INVESTMENTS (PRIVATE) LIMITED
Ruled By: KUDYA J

HH173-10 : TAMBUDZAI MAFUSIRE vs LEWIS GREYLING and ELGREY INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

HH197-10 : ABDULLAH ISMAIL KASSIM (in his capacity as Executor Dative of the Estate of Ralph Simon Lapin) vs MATTHEWS MUKWAWAYA
Ruled By: PATEL J

HH147-10 : LAWRENCE SHUMBAYAONDA vs MADHATTER MINING (PRIVATE) LIMITED
Ruled By: HUNGWE J

HH125-10 : SNOCROSS INVESTMENTS (PVT) LTD vs IRVINES ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

HH202-10 : OBRIDGE ENTERPRISES (PVT) LTD vs PULWICK ENTERPRISES (PVT) LTD
Ruled By: KUDYA J

HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

View Appeal
HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED
Ruled By: KUDYA J

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

HH240-10 : DOREEN SAGANDIRA vs PATRICK SAGANDIRA
Ruled By: MAVANGIRA J

HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA
Ruled By: CHITAKUNYE J

HH252-10 : MUNYUKI ROBERT ARMITAGE CHIKWAVIRA vs PRODUTRADE (PRIVATE) LIMITED and REGISTRAR OF DEEDS, HARARE
Ruled By: GOWORA J

HH268-10 : TOTAL ZIMBABWE (PRIVATE) LIMITED vs APPRECIATIVE INVESTMENTS (PRIVATE) LIMITED
Ruled By: KUDYA J