This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details....,.

The applicant's draft order was couched thus:

“TERMS OF FINAL ORDER SOUGHT

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

1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

Pending determination of this matter, the Applicant is granted the following relief:

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

But, there was a problem with that.

From the papers, it was not Phillip Chiyangwa's company that was doing the harm complained of - it was him personally.

But, he was not a party to the application.

Secondly, and more importantly, what really was being sought was an interdict to stop Phillip Chiyangwa from making police reports against the applicant's Management Committee.

There was attached to the founding affidavit, a document headlined “WANTED BY POLICE”.

Below were pictures of six named individuals and six other names without pictures to them. The six pictures included that of the deponent to the founding affidavit, one Benny Tangai Matenga (“Matenga”).

According to the applicant, the pictured and named individuals were the applicant's Management Committee.

The document offered a reward to anyone who reported them to the police.

However, before me, there was no telling whether the document had been from Phillip Chiyangwa himself or the police.

Also attached to the applicant's papers was another document headlined “PUBLIC NOTICE - WARNING MBAVHA KU SOUTHLEA PARK.”

“Mbavha” is Shona for thief or thieves.

In essence, the document informed the public, that, it had come to the attention of the first respondent that the named individuals, and other “unscrupulous” elements, were illegally selling residential Stands to unsuspecting members of the public.

The document said a report had been made to the police and that only the company could legitimately issue title deeds over the property.

In his affidavit, Phillip Chiyangwa said those individuals were the so-called land barons who had illegally sold off pieces of land from his company's property and whom he had reported to the police.

The point is: it is everyone's right to report what they may perceive to be criminal conduct.

The interim order sought was manifestly incompetent.

In substance, it was sought to gag someone from exercising his right or freedom.

Although not really conceding the point, counsel for the applicant seemed to appreciate the difficulty.

She sought to amend the draft order so that the interdict would read something like this:

“…, to restrain the first respondent from interfering with the applicant's operations at the property; or disposing of any Stands thereon and from harassing the applicant's members and from publishing any false statements pending the determination of the main case….,.”

The first respondent opposed the proposed amendment.

Among other things, counsel for the first respondent pointed out, that, it was the applicant, not the respondents, that was selling off units of land.

In my view, the proposed amendment still amounted to the same thing.

The applicant's real case was that it was for Government to answer why it was ditching its members.

But, no relief was being sought against the Government.

Furthermore, other than the two documents aforesaid, and the single allegation in the founding affidavit to the effect, that, such documents had been flighted in the media by the first respondent, there was nothing else said or shown that amounted to harassment.

The applicant made an application seeking the following order:

“IT IS HEREBY ORDERED THAT:

1. The cancellation of the Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a nullity, of no force and effect.

2. The Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.

3. The 1st respondent shall pay costs of suit on a higher scale of attorney and client.”

The application is opposed by the first respondent, the City of Mutare.

On 20 July 2016, Clayhill Trading (Private) Limited entered into an agreement of sale of a piece of land, namely, Stand No.11234 Darlington Extension, Mutare Township, measuring 1,1759 hectares, with the applicant and her late husband, Washington Jekanyika.

The purchase price was US$62,000.

Clause 3 of the agreement of sale stipulated the payment plan: US$20,000 was payable against the signing of the agreement; US$20,000 was payable three (3) weeks after the signing of cession papers; the balance of US$22,000 was going to be liquidated through monthly instalments of US$4,000 commencing 30 September 2016.

The preamble to the memorandum of agreement of sale between the seller and buyer provided, that, the buyers had to demand transfer from the Municipality of Mutare of such immovable property so purchased by the buyer; however, the seller was responsible for the payment of all cession costs, including the City Council's cession fees and capital gain tax, if any (clause 8 of the agreement of sale).

During the same year, 2016, the first respondent, City of Mutare, entered into an agreement of sale with the applicant and her husband.

Under clause 2 of this agreement, the purchase price “was the intrinsic value paid by Clayhill (Pvt) Ltd.”

Clause 14 thereto stipulates, that, the purchasers shall demand transfer of the Stand from the seller upon completion on the main building.

The agreement of sale does not state any conditions for breach or grounds for cancellation of the agreement of sale.

On 24 September 2019, the City of Mutare wrote a letter to the applicant's legal practitioners indicating that the agreement of sale between itself, the applicant, and her husband had been cancelled.

The first respondent alleged in the letter the applicant's late husband, Mr W. Jekanyika had misrepresented to the City Council that he had fully paid the purchase price of the property to the developer, Clayhill and that Clayhill had since cancelled the first agreement of sale.

As a result of the “fraud” committed by the purchasers, the first respondent was cancelling the agreement of sale.

A lot of correspondences were exchanged between the City Council's legal practitioners and the purchasers lawyers but nothing came out of the correspondences until the applicant approached this court.

Clayhill (Pvt) Ltd had since issued summons against the purchasers claiming an amount of US$28,000 for arrear payments.

It is important to note, that, there is no allegation nor prayer by Clayhill for the cancellation of the agreement of sale or a misrepresentation on the part of the applicant and her late husband.

The first respondent, in its opposing papers, contends, that, the applicant's application should fail for failing to join Clayhill Trading (Private) Limited as a party to the proceedings.

As already addressed in the foregoing above, the first respondent went on to state, that, the applicant and her husband breached the terms of their agreement with Clayhill by failing to pay the full purchase price and that led to the cancellation of the agreement of sale by letter of 21 November 2016 written by Clayhill Property Development: hence, the agreement of sale between City of Mutare and the applicant and her husband was a nullity, because, at the time it was drafted, the City Council did not hold any rights, interest or title in the Stand; instead, such rights were vested with Clayhill; and, as such, the cancellation of the agreement was above board; and, before the cancellation of that agreement, the applicant's legal practitioners were fully appraised of the whole scenario of the events.

To the respondent, the relief being sought by the applicant has no basis.

The second respondent is an estate of the late Washington Jekanyika. The executor had notified the Registrar of the court that he will abide by the decision of this court.

Both the applicant and first respondent had raised preliminary points in their respective papers; and, I directed the legal practitioners to holistically address the court by commencing with points in limine and then the main issues....,.

On the merits of the application, the following issues are uncontroverted, in my respectful view:

(1) The applicant and her husband, the late Washington Jekanyika, purchased Stand No.11234 Darlington Extension, Mutare for $62,000; paid cash of $20,000 upon signing of the agreement of sale; and, from the calculation between the cost price and balance being claimed on the summons alluded to above, it is clear that the applicant paid another instalment of $14,000, to make a total of US$34,000.

(2) At the agreement of sale between Clayhill Trading (Private) Limited and the applicant, another agreement of sale was concluded between City of Mutare, the applicant, and the late W. Jekanyika.

(3) The applicant took occupation of the purchased Stand and started to develop it.

(4) The selling company is suing the applicant for an amount of $28,000 as balance outstanding. The company (Clayhill Trading (Private) Limited) is not praying for the cancellation of the agreement of sale on grounds of fraudulent misrepresentation nor for the cancellation of sale between the City of Mutare and the purchaser.

(5) In terms of the agreement of sale concluded between the applicant and City of Mutare (first respondent) there is virtually no clause pertaining to which conditions would justify cancellation of the contract concluded between the parties. Though not addressed by the parties, it appears the first respondent was paid by the developer before the developer (Clayhill Trading (Private) Limited) was allowed to offer such Stands for sale to the public.

(6) City of Mutare remained the title holder, both for purposes of cession or transfer; that is why the second agreement of sale, between the applicant and the first respondent, had to be drafted.

Transfer of ownership between City of Mutare and the applicant would only be processed after the property had been fully developed.

All these aspects are common cause and this court asked the first respondent its basis for opposing the application.

If Clayhill Trading (Private) Limited is fully paid the balance, it means the matter between it and the applicant would have been resolved; and, by necessary implication, the subject Stand has to remain with the applicant and the estate of her husband.

After going through the opposing papers filed on behalf of the first respondent, it is apparent, that, the first respondent, mero motu, proceeded to cancel the agreement of sale it had entered into with the purchaser without having heard from them.

That was not proper: see See U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H) per MAKARAU JP…,.

As long as the administrative authority is involved in making such decisions, it is required to comply with the dictates of administrative justice; that requirement applies even when the first respondent was acting in terms of a contract: see U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H)…,.

The first respondent was duty bound to hear the applicant and her husband first and even ask them to reduce their response in writing.

No such evidence was produced by the first respondent.

Hence, cancellation of the agreement was arbitrary and cannot be allowed to stand.

The first respondent also contended, that, what prompted her to cancel the agreement was that the late Washington Jekanyika fraudulently did not disclose that he had not fully paid the purchase price to Clayhill Trading (Private) Limited.

This court will not dwell much on this issue simply because the first respondent stated, that, it learnt this from Clayhill Trading (Private) Limited; and, as already covered hereinabove, the summons issued by Clayhill Trading (Private) Limited do not allude to any fraud on the part of W. Jekanyika - what Clayhill Trading (Private) Limited needs is its payment of the balance of $28,000.

In any case, fraud should not only be pleaded but must be established by way of tangible evidence.

I am hence satisfied, that, the first respondent failed to justify its cancellation of the agreement of sale with the applicant and her husband on a balance of probabilities; there is no condition which could have been relied upon in the agreement of sale, which, if breached by the purchasers, could have justified the cancellation of such a contract: see Muzondo and Others v Usayiwevanhu and Others HH107-12; SPF & Anor v LBCCT/ALB & Anor 26492/13 [2016] ZAG PPHC 378; Chikwanira v Mutonhora & Anor HH224-16; Mkandla & Anor v Ncube & Anor HB93-14.

The applicant prayed for costs on a punitive scale of attorney-client.

A lot of correspondence between the first respondent's office and the applicant's legal practitioners exchanged hands, including documents pertaining to the matter; more particularly, the summons issued by the developer Clayhill Trading (Private) Limited where it was claiming $28,000 from the purchasers.

Surely, at that stage of proceedings, and letter written by the applicant's lawyers to the first respondent about that, should have caused the first respondent to reconsider its stance about the application.

It did not.

Even after heads of argument were filed and served on the first respondent, it persisted with the opposition of the application.

The court is aware, that, any order of costs adversely affect the rate payer; but, the aptitude of the first respondent's action Clerk exhibits a nonchalant attitude bordering on recklessness and abuse of court process - all done in the name of public entity whose resources should better be ploughed towards service delivery than defending indefensible, unilateral, and unjust conduct by its officials.

This judgment must be brought to the attention of the Mayor and councillors, to censure, in the strongest terms, the behaviour of the Town Clerk: see Binza v Acting Director of Works & Anor 1998 (2) ZLR 364 (H).

In future, legal costs of this type should be met by the city official personally; however, in this case, the first respondent stated, that, he was authorised to oppose the matter by the Council, so, the Council/public entity will be ordered to pay the applicant's wasted legal costs.

As a result, the following order is granted:

1. The cancellation of the Memorandum of Agreement of Sale of Stand 11234 Darlington Extension, Mutare Township, measuring 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is a nullity, of no force.

2. The Memorandum of Agreement of Sale of Stand No.11234 Darlington Extension, Mutare Township, measuring approximately 1,1759 hectares, entered into by the City of Mutare and Washington Jekanyika, jointly together with Cheneso Muvandi, is declared valid.

3. The first respondent to pay the applicant's costs on attorney-client scale.

This is an application for an interdict in which the applicants seek a mandatory interdict against the respondents (Minister of Justice, Legal and Parliamentary Affairs, Minister of Finance and Economic Development, Attorney General of Zimbabwe and Gift Marunda, former COPAC National Co-odinator) compelling them to pay the applicants their end of project benefits as per their promise.

The applicants are all former employees of the Constitution Parliament Select Committee (COPAC) mandated to draft the Constitution of Zimbabwe.

The Constitution Parliament Select Committee (COPAC) winded up their activities in 2013 by drafting a draft Constitution and submitting a report to the Parliament of Zimbabwe. COPAC, through the fourth respondent (Gift Marunda), submitted a list, with names of the beneficiaries who were to be paid, to the first respondent and they were paid.

The list did not include the names of the applicants, resulting in them not receiving any payment.

The applicants approached this court seeking a mandatory interdict compelling the respondents to pay them their end of project benefits....,.

Counsel for the applicants submitted, that, the application meets the requirements of a mandatory interdict in that the applicants have a clear right to be paid their end of year project just like their colleagues who were paid.

He further submitted, that, a clear right arises from the fact that the respondents never disputed that the applicants are entitled to their end of project benefits.

He further submitted, that, injury on the applicants exists on the basis, that, the applicants were unfairly differentiated from their colleagues and this infringed upon their right to equality.

He further submitted, that, there is no other available remedy available to the applicants other than an interdict compelling the respondents to pay the applicants their end of project benefits.

Counsel for the first and third respondents further submitted, that, the applicants anticipate a right to payment because payments were made to other members, but, they have not established that they have a clear right.

She further argued, that, what the applicants have is a financial interest which alone does not suffice to satisfy the requirements of a mandatory interdict.

The issue in this matter is whether a mandatory interdict can be granted in favour of the applicants.

In determining whether a mandatory interdict can be granted to the applicants, there are certain requirements that must be met. In Setlogelo v Setlogelo 1914 AD 221…, INNES JA accepted that:

“The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonably apprehended, and the absence of similar protection by any other ordinary remedy.”

The requirements of a mandamus or mandatory interdict were enunciated by GUBBAY J in Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S)…, wherein it was held that:

“An application for a mandamus or 'mandatory interdict' as it is often termed, can only be granted if all the requirements of a prohibitory interdict are established. These are:

1. A clear or definite right – is a matter of substantive law.

2. An injury actually committed or reasonably apprehended – an infringement of the right established and resultant prejudice.

3. The absence of a similar protection by any other ordinary remedy. The alternative remedy must -

(a) Be adequate in the circumstances;

(b) Be ordinary and reasonable;

(c) Be a legal remedy; and

(d) Grant similar protection.”

The above explanation highlights, that, the requirements for a mandamus, or mandatory interdict, are the same as those for a prohibitory interdict.

In Oil Blending Enterprises (Pvt) Ltd v Min of Labour 2001 (2) ZLR 446 (H) CHINHENGO J described a mandatory interdict in the following terms:

“A mandamus or mandatory interdict is a judicial remedy recognized under our law: see Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S). It is applied against public authorities. It is an order which requires a public authority to comply with a statutory duty imposed upon it or one which requires a public authority to perform some act which remedies a state of affairs brought by its own unlawful administrative action (L BAXTER on Administrative Law at p687).

It is, therefore, a judicial remedy available to enforce the performance of a specific statutory duty or to remedy the effects of an unlawful action already taken.

In this application, I am concerned with the former – to order or not to order the respondent to perform a specific statutory duty placed upon him. The remedy will be granted where the public authority is under a clear duty to perform the act ordered.”

CB PREST in The Law & Practice of Interdicts, Juta 1993…, provides that:

“The word 'clear' relates to the degree of proof required to establish the right and should not be used to qualify the 'right' at all. The existence of a right is a matter of substantive law. Whether that right is clearly established is a matter of evidence. In order to establish a clear right, the applicant has to prove, on a balance of probability, the right which he seeks to protect.”

In my view, in order for an application for an interdict to succeed, the applicant must establish the following criteria which has been established in terms of case law, that is;

1. A clear right which must be established on a balance of probabilities;

2. Irreparable injury committed or reasonably apprehended; and

3. The absence of a similar protection by any other remedy.

Counsel for the applicants contended, that, the applicants have a clear right to be paid their end of project benefits just like their colleagues.

Counsel for the first and third respondents submits, that, the applicants anticipate a right to payment on the basis that their colleagues, who were members of the Constitution Parliament Select Committee (COPAC) were paid.

They claim a financial interest.

The learned authors, HERBSTEIN and Van WINSEN, Civil Practice of the High Courts of South Africa, 5th Edition, Volume 1 at p1458 stated the following about a financial interest:

“The right which the applicant must prove is also a right which can be protected. This is a right which exists only in law, be it at common law or statutory law. The right that forms the subject matter of a claim for an interdict must thus be a legal right. A financial or commercial interest alone will not suffice. The right must be the one that is enforceable in law.”

Further down on the same page, they state:

“In order to decide whether a right has been established, one must look to the branch of substantive law concerned. When the right is one that arises automatically in law, it is not necessary for the applicant to allege any facts in order to establish the right.”

From the above, it is clear that all that the applicants have established is a financial interest and that will not suffice to satisfy the requirements of a mandatory interdict.

It was incumbent upon the applicants to establish that they have a legal right.

Their right had to be either founded in statutory law, whereby they would be required to cite the relevant statute or in common law whereby they would cite the relevant principle of law.

As HERBSTEIN and Van WINSEN, Civil Practice of the High Courts of South Africa, 5th Edition, Volume 1…, stated, one must look at the branch of substantive law concerned; in other words, identify the branch of substantive law such as contract or delict where their right is predicated on.

From the above, it is clear, that, the applicants have failed to establish a clear right at law entitling them to seek a mandatory interdict.

To merely allege that some of their colleagues were paid is not sufficient.

They could have been wrongly paid, and, that does not entitle the applicants to payment.

Having been satisfied that the applicants failed to meet the first requirement of a mandatory interdict, which is a clear right, it will not be necessary for me to deal with the other requirements.

The court is satisfied, that, the applicants have not successfully managed to satisfy the requirements for a mandamus or mandatory interdict to be granted in their favour. In the result, I will make the following order:

(1) The application is dismissed.

(2) The applicants to pay the first and third respondents costs.

On 12 November 2019, the court sitting at Mutasa Magistrates Court granted a judgment in favour of the respondent herein and ordered as follows:

1. That the defendant be ordered to pay US$314,112=68.

2. That the defendant be ordered to pay interest at a present rate.

3. That the defendant pays costs of suit.

On 18 November 2019, the appellant noted an appeal against the whole final judgment and outlined the grounds of appeal as follows:

“GROUNDS OF APPEAL

1. The court a quo's finding is grossly erroneous in that it orders the appellant to pay interest twice to the respondent, contrary to the basic tenets of the law.

2. The award of 0.1% on the gross revenue to the respondent, by the court a quo, is erroneous and ought to be impeached on the following basis:

(a) That it was not sought and pleaded in the summons; and

(b) There is no evidence that supports the award.

3. The court a quo committed a gross misdirection in calculating 10% commission based on an incorrect figure.

4. The court a quo erred and committed a gross irregularity in failing to make a finding that the respondent was in breach and thus was not entitled to the commission awarded to it.

5. The court a quo erred and grossly misdirected itself in making a finding that the respondent reduced the tax obligation of the appellant to Zimbabwe Revenue Authority for the year 2013.

6. The court a quo grossly erred in awarding the claim in the denomination of United States Dollars instead of Real Time Gross Settlement denomination.

7. The court a quo erred in misinterpreting the meaning of 10% of the reduced debt.

8. The court a quo erred in making a finding a fact that the appellant was liable to pay to the respondent, a position of the various amounts claimed contrary to evidence on record that the respondent did not have expertise to carry out such works and that there was non-compliance by the respondent to cause a certificate to be issued by the respondent's accountants certifying reasonable terms of the amended agreement of service.”

The appellant prayed that the appeal succeeds and the order of the court a quo be set aside and substituted by one dismissing the plaintiff's claim with costs.

On 28 November 2019, the respondent filed a cross-appeal and sets out the grounds of the cross appeal as follows:

“GROUNDS OF APPEAL

1. The court a quo grossly misdirected itself in terms of the law wherein it granted costs of suit on ordinary scale despite the parties having agreed, that, in the event of litigation, costs were to be granted on attorney-client scale.

2. The court a quo grossly misdirected itself at law by failing to grant interest of 5% per month from the date of default to date of full payment which interest had been agreed by the parties.

3. The court a quo grossly misdirected itself in terms of the law by failing to grant the respondent the sum of US$500 being the agreed amount for monthly service fees which the respondent had proved to be due to it and appellant had not contested.

4. The court a quo grossly misdirected itself at law by failing to grant collection commission in terms of the Law Society By-Laws which the parties had agreed upon and respondent had claimed in the summons.

5. The court a quo grossly misdirected itself by erroneously calculating the 10% tax reduced fees for the year 2013.”

The respondent prays, in its cross-appeal, that, the cross appeal be upheld and that the relevant part of the judgment of the court a quo be set aside and substituted with the following:

“(a) The appellant be and is hereby ordered to pay costs of suit on attorney-client scale.

(b) The appellant be and is hereby ordered to pay interest at rate of 5% per month from the date of default until the date of full and final payment of the debt as agreed between the parties.

(c) The appellant be and is hereby ordered to pay US500 to respondent being the outstanding service fees for monthly returns VAT, PAYE and QDP.

(d) The appellant be and is hereby ordered to pay collection commission in terms of the Law Society By-Laws as agreed between the parties.

(e) The appellant be and is hereby ordered to pay for the tax reduction fees in the sum of the amount of US$40,848=21 for the year 2013.”

The plaintiff (now respondent) is Clearsky (Private) Limited trading as Fool-vest Financial Services, a company duly registered in terms of the law of Zimbabwe. The defendant (appellant) is Ayan Trading (Private) Limited, a company incorporated in terms of the laws of Zimbabwe whose registered business office is 113 Herbert Chitepo Street, Mutare.

Sometime in 2016, the appellant instructed the respondent, a tax accounting services contract and entered into a written agreement and key to the agreement:

(i) The respondent was to offer tax accounting service to the appellant.

(ii) The tax management fees for tax year 2009 to 2013 would be charged at 10% of the tax debt reduced for each year under audit.

(iii) The appellant would pay US$500 per month as services fees for monthly returns of VAT, PAYE and QPD.

(iv) Preparation of ITF12C Returns, including amended ITF12 for the previous years would be charged at 0.1% of Annual Gross Revenue.

(v) US$25 per hour would be charged for attending meeting and preparation of reports or any other correspondences.

(vi) That 5% interest per month shall accrue against any outstanding amount in the event of default of payment by the appellant.

(vii) That, in the event of termination of services, the respondent shall charge fees for service rendered until such termination and the appellant shall be liable to pay 10% of the tax debt reduced at the time of termination which shall be due and payable forthwith.

The respondent rendered its services to the appellant from the date of the agreement until 26 June 2017 when the appellant terminated the contract.

During the term of the contract, the respondent would raise its fees from time to time, but, the appellant defaulted payment such that interest, at the rate of 5% per month, had been accruing on the outstanding amount.

At the time of termination of the agreement, the appellant was cumulatively liable to the respondent in the sum of US$554,065=93 inclusive of default interest for services which had been rendered to the appellant.

In terms of the agreement between the respondent and the appellant, the parties agreed, that, the appellant shall be liable to pay costs of suit on a legal practitioner-client scale together with collection commission in terms of the tariff of the Law Society of Zimbabwe.

The respondent claimed for the following:

(a) Payment of US$554,065=93 by the appellant, being the outstanding fees for the services rendered to the appellant by the respondent.

(b) Collection commission in terms of the Law Society by-laws.

(c) Costs of suit on legal practitioner-client scale.

(d) 5% interest per month to be calculated on the outstanding amount on 27 June 2017 until full payment of the outstanding amount.

The appellant, in its plea to the respondent's claim, denied entering into any agreement with the respondent.

It further denied, that, the respondent was in the business of offering tax accounting services and lacked technical expertise to carry out such tax accounting services.

It denied that the respondent satisfied its mandate towards the appellant.

The appellant also denied that there was never any reduced tax debt after audit by Zimbabwe Revenue Authority (ZIMRA) during the period in question which entitled the respondent to a 10% charge on reduced debts.

The appellant contended, in its plea, that, the respondent did not specifically plead such reduced tax debts to justify the amount of $50,000; the appellant also blamed the respondent for miscalculating the amount.

The applicant further denied that the respondent rendered services to it.

The appellant pleaded, that, the respondent did a dis-service for it and contemplated a counter claim.

The agreement alluded was relating to provision of financial services as opposed to attending to Zimbabwe Revenue Authority (ZIMRA) tax matters.

It denied that any invoices were raised and denied owing the respondent any money.

It stated in its plea, that, the respondent was liable to it in the sum of US$6,000,000 (six million dollars).

It prayed that the respondent's claim be dismissed with costs on attorney-client scale.

It is necessary to briefly look at the respondent's evidence.

Daniel Mahonye, testifying for the respondent, told the court a quo, that, in 2016, the respondent was engaged by the appellant to do tax services; the operative agreement was signed on 1 April 2016 but was to become effective with effect from 1 July 2016.

He reiterated the terms of the agreement, that, the appellant was going to pay a premium of 10% of the reduced tax debt for the period stretching from 2009 to 2013. The appellant also agreed to pay the $500 per month for the services performed by the respondent in meeting the appellant's obligations towards the Zimbabwe Revenue Authority (ZIMRA).

The respondent prepared ITF12C as well as amended ITF12C returns and reiterated, that, the appellant undertook to pay 0.1% of the gross revenue for year accruing to the appellant, and, according to his evidence, the total for such gross revenue from 2010 to 2016 totalled $295,070=11.

Interest on that capital debt due to the respondent from the annexed schedule attached to the respondent's summons added up to $149,956=60.

In 2013, the Zimbabwe Revenue Authority (ZIMRA) raised a debt of $408,482=08 and the respondent's charges, according to the agreement, was 10% which computes to an amount of $40,848=20 due to the respondent.

Much of Mr Mahonye's evidence on these figures was not controverted by the appellant during trial and we take it as issues of common cause and should not detain us....,.

The appellant submitted, that, the respondent did not plead to the issue of 0.1% of the annual gross revenue in its summons. Its claim was for $554,065=93 being the outstanding fees for the services rendered to the appellant; hence, the court erred in granting the amount of US$295,070=11.

The appellant further added, that, the court a quo could not have granted that relief mero motu, hence, in doing so, it committed a gross misdirection.

It was further submitted on behalf of the appellant, that, the court erred in granting an order where the respondent had not disclosed any cause of action. There was no evidence in the plaintiff's bundle of documents to show the gross revenue upon which 0.1% was calculated from.

The respondent opposes that ground of appeal.

It contends, that, the amount of $554,065=93 owed to it included the 0.1% gross revenue; the 0.1% annual gross revenue was cumulatively included. The respondent added, that, on p31 of its bundle of documents, it shows how the amount of $295,070-11 was arrived at.

The respondent went on to lead evidence, in court, to prove that amount; it submitted the matter of 0.1% gross revenue was debated from the start, stretching to the closing submissions of both parties, and, hence, the trial court had to make a decision in that aspect as argued by the respondent.

The respondent also alluded to the judgment of the court a quo, on p20 of the record of proceedings, where it dealt with the 0.1% gross revenue.

The question for determination is whether the court a quo granted a relief which had not been pleaded by the respondent, or, alternatively, whether there was no evidence adduced by the respondent to be relied upon by the trial court?

On p31 of the record of proceedings is an annexure attached to the respondent's summons commencing action; the first column of that document shows a computation of how the amount of $295,070=11 was arrived at.

Paragraph 3 of the agreement between the appellant and the respondent provides for the ITF12C and amended ITF12C returns from 2010 to 2013 where the respondent was entitled to 0.1% of the annual gross revenue.

Page 20 of the record, the judgment of the court a quo, extensively dealt with that aspect.

The bundle of documents discovered by the respondent shows the type of work done by the respondent and the annual gross revenue for each year from 2010.

On page 386 of the record, during the re-examination of Mr Nyabvure, by the appellant's counsel, the following exchange occurred:

“Q: How was plaintiff supposed to be paid by the defendant?

A: $6 million of 10% for tax reduced, 0.1% of annual gross revenue, $25 per hour for attending meetings at ZIMRA and $500 per month.”…,.

The $295,070=11 is the total of the annual gross revenue claimed by the respondent in its papers and admitted by the appellant.

The summons, the declaration, as well as the annexures of the respondent refer to the amount.

The appellant's plea is poorly drafted, in our respectful view, and it is but a bare denial.

The appellant did not ask questions to Mr Mahonye about the 0.1% of gross revenue - if it did, it did not seriously do so.

So, we conclude, that, what is not challenged is indeed admitted: see Tetrad Investments Bank Limited v Bindura University 2009 WSC–5 and Fawcett Security Operations (Private) Limited v Director of Customs & Excise & Ors 1993 ZLR 121 (S).

The appellant pleaded to the respondent's declaration without asking for further particulars, more particularly, asking the respondent how that amount of $554,065 was arrived at.

We infer that it had understood the respondent's nature of claim: see Sakunda Energy (Private) Limited & Anor v Mayor Logistics (Pvt) Ltd HH226-18.

The appellant proceeded to make submissions relating to that claim and the court a quo believed the respondent and awarded the order relating to that aspect.

We failed to understand the basis upon which the appellant attacked the trial court. The second ground of appeal, we conclude, lacks merit.

The applicants applied for a decree of perpetual silence against the respondents.

They submitted, that, these constituted a nuisance to them. The respondents, they said, took them to the Magistrates courts, this court, and the Supreme Court with no end in sight. They stated, that, the respondents took them to court on not less than forty (40) occasions. They averred, that, they have been subjected to a series of abusive criminal and civil proceedings. They said, despite repeated dismissal of their claims by the courts, the respondents maintained the position, that, the judgments which were entered against them were ineffectual. They complained that the respondents were harassing and vexing them. They insisted that the court should protect them as well as itself from the abusive conduct of the respondents. They moved the court to grant them the decree.

The respondents opposed the application.

They moved the court to examine the cases which formed the basis of the application in relation to their cause.

They denied that they were always in the driving seat when the cases which the applicants made reference to found their way to the court(s). They stated, that, the applicants filed some of the cases with the court(s). They said all the cases upon which the current application rests had a bearing on a mine tribute agreement which the fourth applicant (John Richard Needham Groves) concluded with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd). The fourth applicant, they said, concluded the tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd [“the company”].

They submitted, that, they should not be silenced for their effort to assert their right in the tribute agreement. They moved the court to dismiss the application with costs.

At the centre of the parties dispute is Dodge Mine [“the mine”]. It lies in Shamva District under Mashonaland Central Province. It has six claims. These are lucrative, according to the evidence filed of record.

The fourth applicant and his partner used to own and work the mine. They worked it under the name Chiroswa Syndicate. The fourth applicant later sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). This was after his partner had left the syndicate. The first applicant is currently the owner of the mine.

The issue of the mine has seen the parties take each other to court on thirty (30), and not forty (40) occasions.

The applicants filed actions and/or applications against the respondents on nine (9) occasions. The respondents filed actions and/or applications on sixteen (16) occasions. The following five (5) cases were not accounted for: HC233/13, HC5669/13, HC5460/13, HC6842/14 and HC308/12.

The court could not tell which party filed what action or application in respect of the mentioned five (5) cases. What it could tell, however, was that the parties have been in and out of courts on thirty (30) occasions.

The relief which the applicants moved the court to grant to them is not new to the jurisdiction of this court.

In Mhini v Mupedzamombe 1999 (1) ZLR 561…, GARWE J…, had the occasion to deal with an issue which was similar to the present one. The learned judge quoted with approval what CURLEWIS J said in Brown v Simon 1905 TS 311…, wherein he remarked that the procedure:

“…, affords a useful means of bringing to a conclusion all threatened actions, and, in our opinion, it is applicable under due safeguards not only to cases where a claim has been made or an action threatened publicly, but, to every case where by demand or threatened action there has been a disturbance of, or interference with, the quiet enjoyment of another's rights.”…,.

In Corderoy v Union Government [Minister of Finance] 1918 AD 512, which GARWE J was pleased to make reference to in Mhini v Mupedzamombe 1999 (1) ZLR 561, the South African Appellate Division held, that, when there has been repeated and persistent litigation between the same parties, in the same cause of action, and in respect of the same subject–matter, the court can make a general order prohibiting the institution of such litigation without the leave of the court, but, that power extended only to prevent abuse of its own process without being concerned with the process of other courts.

The paucity of case authorities on the current subject is ample evidence of the fact that the relief, whilst recognised at law, is seldom resorted to.

It is only granted where a party succeeds in showing the court, that, the defendant or respondent is a serial litigator who has the tendency to abuse not only the court but also its process and his adversary.

It is important for the court to examine and establish the fact of whether or not the respondents fall into the category of serial litigators who abuse the applicants, the court(s), and their processes.

The dispute of the parties has its origin in the judgment of PATEL J…,.

The learned judge had the occasion to hear and determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the company”] and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) brought before him under case number HH2612/11. The company and the second respondent had sued the following three parties – the Minister of Mines, one Morris Tendayi Nyakudya and the latter's company, Vambo Mills (Pvt) Ltd. They succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted from the mine where they were operating in terms of an expired tribute agreement. They successfully moved the court to order the Minister of Mines to refer the tribute agreement, which they had concluded between them, to the Commissioner of Mines for approval and registration.

A reading of PATEL J's judgment, under HH261-11, tends to suggest, that, it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd. It is also not a far-fetched suggestion, that, Chiroswa Mills (Pvt) Ltd moved to enter into the second tribute agreement of the mine with the second respondent.

The abovementioned observations find support from the fact, that, it is Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from the mine. The company worked hand-in-glove with the second respondent to achieve its desired end-in-view.

The impression which the company created in the mind of the respondents, at the time, was that it owned the mine. It could not successfully evict those from the same if it was not the owner of the mine. It would have had no locus standi to do so.

It is common cause, that, the fourth applicant (John Richard Needham Groves) owned Chiroswa Minerals (Pvt) Ltd. He, in appreciation of his good working relationship with the first respondent (Peter Valentine), donated 50% of his shares in the company to the first respondent. The first respondent, it is not in dispute, was or is the Managing Director of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The above observed matters do, in the court's view, account for the misunderstanding which later ensued between the fourth applicant (John Richard Needham Groves) and the respondents (Peter Valentine and Base Mineral Zimbabwe (Pvt) Ltd).

These, the first respondent in particular, must have laboured under the genuine but mistaken belief that they, or he, as a 50% holder of shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not only in the company but also in the mine which the company owned.

The first respondent's belief in the mentioned regard finds support from a reading of MATANDA-MOYO J's judgment under case number HH557-14.

The first respondent (Peter Valentine) had, in the case, sued the first, second and fourth applicants (Mabwe Minerals (Pvt) Ltd, Tapiwa Gurupira and John Richard Needham Groves). He moved the court to set aside the agreement of sale of the mine which the fourth applicant had concluded with the first and the second applicants. He claimed that he owned 50% of the mine. He challenged his omission from participating in the sale of the mine. He insisted that the sale was, on the mentioned basis, null and void and had, therefore, to be set aside.

It is such belief, as has been stated in the foregoing paragraphs, which caused the respondents to file one suit after another with the courts.

They worked on the impression which had been created. They believed that they, or one of them, owned 50% of the shares in the company which owned the mine. They, therefore, made every effort to assert what they believed belonged to them.

The respondents belief was shattered when MATANDA-MOYO J ruled, to their disappointment, that, Chiroswa Syndicate, and not Chiroswa Minerals (Pvt) Ltd, owned the mine.

The respondents could not, under the stated circumstances, be said to have engaged themselves in a wild goose chase, as it were. They honestly believed, in the court's view, that, they were pursuing a genuine cause. They believed, further, that, the fourth applicant (John Richard Needham Groves) and the company were treating them unfairly. They, therefore, made effort to have their case determined by the courts.

The respondents unrelenting effort to assert their right, in what they believed belonged to them, took their case to a higher level in 2013.

In a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent filed under case number HC5208/13, TAKUVA J remained alive to the judgment which PATEL J delivered under HH261-11.

The learned judge ordered the Minister of Mines, one Obert Mpofu, and the Commissioner of Mines, a Mrs E Kahonde, to process the tribute agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) concluded as at the time of PATEL J's judgment and to have the same registered at the offices of the Mining Commissioner.

The order contained a stiff sanction which the Minister and the Commissioner would suffer if they did not comply with it. They would each be held to have been in contempt of court and be committed to thirty (30) days imprisonment.

It was as a result of TAKUVA J's order that the Mining Commissioner did, on 13 February 2014, register a tribute agreement in favour of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The fourth applicant represented the company and Chiroswa Syndicate in the tribute agreement which the parties registered with the Mining Commissioner. The first respondent represented the second in the same. The tribute was or is to endure for a period of three years. It would, therefore, expire on 13 February 2017.

Given the above described set of circumstances, it would be difficult, if not impossible, for one to suggest, as the applicants did, that the respondents were or are a nuisance to them.

The applicants, the fourth applicant in particular (John Richard Needham Groves), conveyed an impression to the respondents. These believed him, only to discover, at a later stage, that, he was hunting with the hounds and running with the hares, so to speak.

He dined and wined with them, as it were. He later switched his allegiance from them and proceeded to work with the applicants against them.

The fourth applicant was undoubtedly the main cause of the parties misunderstanding.

He, through his Chiroswa Minerals (Pvt) Ltd, worked with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) to evict persons who were at the mine from the same. He agreed to enter into a tribute agreement of the mine with the second respondent. He sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). He sold his 50% shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant (Tag Minerals Zimbabwe (Pvt) Ltd).

He consulted no one in this complicated matrix which he created, not for himself, but for the respondents.

The court was not amused by the fourth applicant's manner of dealing with his business partners.

It viewed the applicants effort to conceal certain matters from it with serious disquiet.

They attached to the application a wrong tribute agreement. The agreement showed its life span as commencing on 14 December 2011 and expiring on 14 December 2014. They did not make any reference to the correct tribute agreement which was registered at the Mining Commissioner's offices on 13 February 2014. They plucked off the last page of PATEL J's judgment i.e. the page on which the learned judge's order was recorded. They made an effort not to disclose the existence of TAKUVA J's order under HC5208/13.

In acting as they did, the applicants aim and object were to paint the picture which showed, that, the respondents were a rogue element which must be placed under leash all the time, so to speak.

They, unfortunately for themselves, over-did their trick to a point where their story remained difficult, if not impossible, to believe.

They were ably legally represented in this and other actions or applications. Their legal practitioner should have been more candid with the court than he did. The court, therefore, viewed the conduct of the applicants and their legal practitioner with displeasure.

The respondents could not be faulted for having made an effort to assert their right in what they believed belonged to them. They cannot be blamed for asserting their right in the tribute agreement which was registered in the second respondent's favour on 13 February 2014.

That agreement is still extant. It will only expire on 13 February 2017.

The application cannot, on the basis of the foregoing, be allowed to stand.

A decree of perpetual silence, as I understand it from the papers which were placed before me, is a very extraordinary remedy. It seeks to make a person not deaf but dumb before the court which perpetually silenced him. Its aim and object are to bar him from instituting any criminal or civil proceedings against the party in whose favour the bar operates. It bars him from litigating or prosecuting except with the leave of a judge or the court, and for good cause shown, as well as on notice to his adversary. It sees him as a serial litigator who abuses the court, its process, and his adversary with no end which is of any benefit to him being ever in sight.

Its extraordinary character lies in that, once it is granted, it deprives a person of his constitutional right to litigate or to prosecute.

It can, for the mentioned reasons, be granted only in exceptional circumstances.

The respondents in casu were not shown to be a set of serial litigators. They were not shown to have been suing or prosecuting the applicants with no end in sight which was not of benefit to them. They had, and still have, a clearly defined cause which they were, and are, enforcing. They took the long road to realise their intended benefit because of unsound advice which their erstwhile legal practitioner continued to dish out to them. He made them use the wrong method to achieve their lawfully acquired right.

They should not, therefore, be made to suffer for the sins of their legal practitioner.

Indeed, the courts expressed their displeasure against the legal practitioner when they ordered him to pay costs on two separate occasions. Such was the height of the courts lack of amusement on the work of the respondents legal practitioner.

If he had sat down to reflect, as he should have, he would have realized that something was not sticking in the manner that he approached the case of his clients.

The court has considered all the circumstances of this case. It is satisfied that the applicants were not able to discharge the onus which rested upon them. Their application stood on nothing. They made their case less credible by concealing vital evidence which related to the application.

The application is, accordingly, dismissed with costs on a higher scale.

The applicants justification for bringing the same application before another judge, TAGU J, in a space of less than a month was that, as I understood it, and in my own words, they had appealed to the Supreme Court against the decision of MATANDA-MOYO J.

It was argued, that, in accordance with the common law rule that an appeal suspends the decision appealed against, the judgment of Her Ladyship had automatically been suspended and that the status quo ante obtained.

Counsel for the applicants submitted, that, the pendency of an appeal finds a prima facie right. For support, he referred to the case of Timothy Sean White v Zenzo Ntuliki HB147-15.

The applicants position was, that, unless the respondents were barred, they would continue to purport to run the affairs of the first applicant, yet, the judgment of MATANDA-MOYO J had been suspended by the appeal. Unless they obtained leave to execute, the argument concluded, the respondents had no business purporting to be the management committee of the first applicant.

The applicants argument on this point was manifestly scrambled.

The respondents claim to office was not by virtue of the judgment of MATANDA-MOYO J. It was by virtue of the vote of no confidence on 25 April 2015. The learned judge, TAGU J, did not decide the issue. Neither have I.

It was simply not before us.

I accept, that, in paragraph 7 of their notice of opposition, the respondents stated unequivocally that they had been voted into office following the passing of the vote of no confidence. I am also aware, that, the applicants purported to refute that claim in their answering affidavit. But, they merely made a fleeting reference to it. Through the fourth applicant, Andrew Marauka, here is how the applicants responded:

“4. AD PARA 7–12

The purported mandate of the 1st to 5th respondents was later revoked at a meeting of 1st Respondent's [sic] members: see Annexure A; and, this position remains the true position to date and unchallenged clearly putting pad [sic] to the issue of whether or not the Respondents have a mandate to run 1st Applicant's affairs.”

But, there was no Annexure A attached. There was nothing more said about the so-called meeting of “…, the 1st Respondent's members…,.” that allegedly had revoked the respondents mandate and had put paid to the respondents ambition to control the affairs of the first applicant.

But, most importantly, an application stands or falls by its founding papers.

In Bayat v Hansa 1955 [3] SA 547 [N] the principle was summarised as follows…,.:

“[A]n applicant for relief must [save in exceptional circumstances] make his case and produce all the evidence he desires to use in support of it, in his affidavits filed with the notice of motion, whether he is moving ex parte or on notice to the respondent, and is not permitted to supplement it in his replying affidavits [the purpose of which is to reply to averments made by the respondent in his answering affidavits], still less make a new case in his replying affidavits.”

It is quite clear, that, the applicants in this case had no interest in the court prying into the propriety of the vote of no confidence.

The case of Timothy Sean White v Zenzo Ntuliki HB147-15 that counsel for the applicants referred to was irrelevant.

The issue there was quite different. Therein, the respondents had wanted to execute a certain order of the Magistrate's Court despite an appeal that was pending against it. This court barred them pending the determination of the appeal.

In casu, the respondents were not at all trying to execute any court order.

Even if one accepts, that, the operation of the judgment of MATANDA-MOYO J was automatically suspended by the appeal against it, and that the status quo ante obtained, the question is: what was this status quo ante?

Counsel for the applicants conceded, quite correctly, that, it was the vote of no confidence.

When the parties appeared before Her Ladyship, the vote of no confidence was the one obtaining. Evidently, the applicants did not wish to have it adjudicated upon. They concealed it from the court. However, the court picked it up, and, on the basis that it existed, but that it had been deliberately concealed, the urgent chamber application was dismissed.

So the appeal, and the resultant suspension of Her Ladyship's judgment, had no practical effect on the status quo ante.

On this basis alone, namely, that, even if it were to be accepted that one's election into the management committee of a co-operative society is a right accruing to oneself, in one's personal capacity, for the purposes of an interdict, I would dismiss the application because no such right has been established.

This is an appeal against the whole judgment of the High Court handed down on 8 September 2020, declaring “that payment by the applicant (respondent) of the sum of RTGS$235,620=99 together with interest at the prescribed lending rate calculated from 19 February 2020 to the date of final payment shall be the full and final settlement of the respondent's (appellant's) debt.”...,.

This is an appeal against the whole judgment of the Labour Court (the court a quo) which allowed two appeals filed in that court by the first and second respondents in terms of section 98(10) of the Labour Act [Chapter 28:01].

It set aside the two awards made in favour of the appellant, and, in their place, substituted them with an order dismissing the appellant's claims before the arbitrator.

The first respondent is a medical aid society registered in terms of the Medical Services Act [Chapter 15:13]. The second respondent is the investment vehicle of the first respondent. Both respondents are managed by two separate boards of directors.

It is common cause, that, the appellant was the Chief Executive Officer of the first respondent in terms of a contract of employment. He also drew a salary from the second respondent in unclear circumstances.

He attained the retirement age, of 60 years, in December 2013 in terms of the Retirement Policy of the Society 4/2003 of the first respondent.

On 14 March 2013, both boards of directors of the respondents unanimously extended the appellant's tenure of office by a further ten years.

The new contract commenced from 1 January 2014 and would end on 31 December 2024.

At the beginning of 2014, the appellant commenced the extended employment contract. The parties also reached an agreement that the appellant's monthly salary would be US$60,000 per month effective January 2014 along with other benefits. It was later reduced to US$43,000.

Following allegations that the appellant was taking an exorbitant salary of US$92,000 every month, before allowances, without the knowledge of the full Board, other than two of its members, the boards withdrew their earlier decision of extending the appellant's contract of employment.

They relied on the provisions of the Retirement Policy to rescind the extension of the employment contract.

The appellant was thus requested to take a pre-retirement paid leave.

In response, the appellant, through a letter dated 20 February 2014, addressed to the first respondent, claimed that he had a subsisting contract of employment for a period of ten years which commenced on 1 January 2014.

He insisted that the contract had not been terminated in any way, and, consequently, he would abide by it and continue to execute his duties in terms of the same until its expiry.

No such letter was written to the second respondent.

Consequently, a dispute arose between the appellant and the first respondent.

On 17 February 2015, the dispute between the appellant and the first respondent was referred to compulsory arbitration. The terms of reference were as follows:

“(a) To determine whether or not the claimant's (the appellant in this matter) contract of employment was lawfully terminated;

(b) The appropriate remedy.”

On 14 March 2015, a dispute in the matter between the appellant and the second respondent was referred to compulsory arbitration. It is not clear from the record how the dispute had arisen. The terms of reference were as follows:

“(a) Whether or not the appellant's contract of employment was enforceable against the second respondent;

(b) If so, whether or not the claimant's contract of employment was lawfully terminated and the remedy thereof.”

On 14 April 2015, the arbitrator issued awards in respect of both matters.

In the matter between the appellant and the first respondent, the arbitral award was to the effect that the contract of employment between the appellant and the first respondent still subsisted and thus remained in force. He further ordered that the first respondent pay the appellant all salaries and benefits from the date these were last paid at the salary scale of US$92,000 per month.

In the matter between the appellant and the second respondent, the arbitral award was to the effect, that, the appellant's contract of employment was enforceable against the second respondent and that the contract was never terminated thereby rendering the appellant entitled to payment of salaries and benefits as claimed.

Aggrieved, the first and second respondents independently appealed against the two arbitral awards to the Labour Court, under LC/H/348/15 and LC/H/349/15 respectively. The two appeals were consolidated for the sake of convenience.

The first respondent, in its heads of argument before the court a quo, in which it was the first appellant, argued that the arbitrator made a determination that ran foul of the issue presented before him.

It submitted, that, the issue before the arbitrator was whether or not the employment contract between the first respondent and the appellant was lawfully terminated. Thus, it insisted that the arbitrator fell into error when he determined that there was a valid and enforceable contract between the parties whereas it was common cause between the parties that no contract still existed.

The first respondent contended, that, the arbitrator was bound by the terms of reference and had no authority to re-format the issues as presented to him by the parties.

It was also the first respondent's case that no evidence was tendered to justify the amount of US$92,000 per month which was awarded to the appellant by the arbitrator.

The second respondent largely associated itself with the arguments made by the first respondent regarding the arbitrator straying from the terms of reference.

In addition to that, the second respondent submitted that the arbitrator missed the import of the issues referred to him and came to the conclusion that there existed a contract of employment between the appellant and the second respondent.

The second respondent further submitted, that, it was simply the investment vehicle of the first respondent and used to contribute to the appellant's salary at the request or on the instructions of the appellant. Thus, it was the second respondent's submission that these remittances did not make it the appellant's employer.

Per Contra, the appellant submitted that the arbitrator correctly determined the issues before him.

He submitted, that, the issues referred to the arbitrator were whether or not the appellant's contract of employment was lawfully terminated and to determine the appropriate remedy. He further submitted, that, determining whether or not the contract was valid was the first stage of inquiry which would then lead to the conclusion of whether or not the same was lawfully terminated.

Regarding the second respondent, he submitted that the evidence placed before the arbitrator, of termination of the contract in the form of a letter, was not sufficient enough to prove that the same was terminated in terms of the law.

The appellant insisted that a contract of employment could only be terminated by mutual consent, death, dismissal through a formal disciplinary hearing, or resignation.

Thus, he proffered that a valid contract still existed as the second respondent failed to prove termination.

The appellant further submitted, that, the second respondent was his employer, by extension, as management of the same reported directly to him. It followed that his contract of employment with the second respondent was valid and enforceable.

The court a quo examined the terms of reference as placed before the arbitrator by the parties.

With respect to the first respondent, the court reasoned that it was clear in the parties minds that the contract of employment had been terminated and what required determination was whether or not such termination was lawful.

The court further reasoned, that, the arbitrator fell outside the terms of reference by making a determination that the contract of employment still subsisted and remained in force.

The court relied on the case of C Kambuzuma and Ors v The Athol Evans Hospital Home Complex SC118-04 in its reasoning that the arbitrator ought to have confined himself to the terms of reference and not go further than that.

In addition, the court a quo held that the arbitrator, by making a finding that there was still a valid contract in existence between the parties, effectively made a new employment contract for the parties, contrary to the Supreme Court decision in the matter between Kundai Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397.

With respect to the second respondent, the court a quo made a finding, that, as was apparent from the record, the second respondent did not extend the appellants tenure.

It effectively concluded, that, there was nothing to enforce between the appellant and the second respondent as there was never an employment contract between them. Consequently, the court found that there was nothing to terminate and therefore the appellant was not entitled to anything from the second respondent.

In the result, it allowed the appeals and set aside the arbitral awards.

This prompted the appellant to note the present appeal on the following grounds:

“1. The court a quo misdirected itself and erred at law in finding that the decision of the arbitrator, that there was still a subsisting contract of employment between the appellant and the first respondent, was outside the arbitrator's terms of reference.

2. The court a quo erred by making a determination that there was no binding contract of employment between the appellant and the second respondent.”

In addressing the first ground of appeal, counsel for the appellant made the following submissions:

The issue before the court was a question of interpretation of the terms of reference. The terms of reference were quite straightforward and had inherent in them two questions, namely:

1. Has the contract of employment been terminated?

2. If so, was the termination lawful?

A term of reference, in terms of the Labour Act [Chapter 28:01] (the Act) is statutorily regulated and must be interpreted in terms of the scheme under Part XII of the Labour Act.

What has to be resolved is the dispute that was referred to conciliation.

The court a quo fell into error by treating this as voluntary arbitration, in which the terms of reference were as a result of the meeting of the minds of the parties. To the contrary, this was a compulsory arbitration in terms of the Labour Act where the labour officer formulates the terms of reference after taking into account the nature of the dispute between the parties.

A labour officer referring a dispute to compulsory arbitration cannot create a new dispute for the parties as was held in Tafadzwa Sakarombe & Anor v Montana Carswell Meats SC44-20.

As regards the appellant's second ground of appeal, counsel for the appellant made the following submissions:

A resolution by one party to terminate its contractual obligations cannot bind the innocent party to the contract.

It was a serious misdirection by the court a quo, that, the appellant was bound by the decisions of the respondents in respect of the contract between the parties.

Further, a contract need not be in writing. There is no doubt that an oral contract of employment existed between the appellant and the second respondent.

The court a quo relied on the absence of a written contract to determine that there was no contract between the appellant and the second respondent. From the circumstances, including the payment of salary and the duties of the appellant vis a vis the second respondent, there is no doubt that a contract existed between the parties.

Counsel for the respondents submitted:

In respect of ground one, that, the issue before the arbitrator was to determine whether or not the contract of employment was lawfully terminated. The arbitrator went on to determine that there was a valid contract of employment between the parties, which was not an issue placed before him.

The conduct of the arbitrator was tantamount to making a contract for the parties, which he or any court or tribunal cannot do as a matter of law.

As regards the purported contract of employment between the appellant and the second respondent, that the appellant could not point to a single document that suggested that there was a contract between him and the second respondent.

The only contract produced was the one between the appellant and the first respondent.

The argument by the appellant, that there is an oral contract, is startling. He failed to present evidence before the court a quo, and this court, to prove that there was an oral contract. Thus, there was nothing to enforce between the appellant and the second respondent.

1. Whether or not the court a quo erred in finding, that, the arbitrator acted outside his terms of reference in concluding that a contract of employment between the appellant and the first respondent still subsisted.

2. Whether or not the court a quo erred in finding, that, the appellant did not have a binding contract with the second respondent.

The matter before this Court pertains to compulsory arbitration which derives from statute. It only arises after the failure of conciliation and the issuing of a Certificate of No Settlement (L MADHUKU, Labour Law in Zimbabwe...,.). This was provided for in terms of section 93(5) of the Labour Act [Chapter 28.01] before the amendment to the section.

The author, L MADHUKU, Labour Law in Zimbabwe…, puts it this way:

“This new scheme focuses on the nature of the dispute in determining whether or not to refer it to compulsory arbitration. Disputes of interest depend on whether or not an essential service is involved;...,. A dispute of interest, outside the essential service, cannot be referred to compulsory arbitration in the absence of agreement by parties.”

Crucial to mention are provisions of section 98 of the Labour Act. The relevant parts read as follows:

“93 Effect of reference to compulsory arbitration under Parts XI and XII

(1) In this section 'reference to compulsory arbitration' in relation to a dispute, means a reference made in terms of paragraph (d) of subsection (1) of section eighty-nine or section ninety-three.

(2) Subject to this section, the Arbitration Act [Chapter 7:15] shall apply to a dispute referred to compulsory arbitration.

(3) Before referring a dispute to compulsory arbitration, the Labour Court or the labour officer, as the case may be, shall afford the parties a reasonable opportunity of making representations on the matter.

(4) In ordering a dispute to be referred to compulsory arbitration, the Labour Court or labour officer, as the case may be, shall determine the arbitrator's terms of reference after consultation with the parties to the dispute.”

In Ballantyne Butchery (Pvt) Ltd t/a Danmeats v Edmore Chisvinga & Ors SC 2015 (1) 335, SC06-15..., this Court held that:

“Where a dispute is referred to compulsory arbitration by a labour officer, section 98(4) of the Labour Act [Chapter 28:01] enjoins the officer to determine the arbitrator's terms of reference, after consultation with the parties to the dispute.”

The same point was made in Metallon Gold Zimbabwe (Pvt) Ltd & Anor v Collen Gura 2015 (1) 509, HH263-16..., where it was held that:

“However, the procedure for submission is that the matter commences with conciliation before a labour officer in terms of section 93 of the Labour Act. When conciliation fails, the labour officer then refers the dispute to compulsory arbitration in terms of section 98. In doing so, the labour officer consults the parties for the arbitrator's terms of reference to be drawn. The arbitrator is confined to the agreed terms of reference during the arbitral process;..., if the arbitrator goes beyond the terms of reference that may be a ground for objection to the registration of the arbitral award.”

It thus follows, that, in settling the terms of reference for compulsory arbitration, the parties have a role to play. They are consulted by the Labour Court or the labour officer, as the case may be.

It is an established principle that an arbitrator is not allowed to venture outside the terms of reference when making a determination.

The law on arbitration, and terms of references, was succinctly captured at pp10 to 11 in the case of Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Chiedza Mugavha SC62-19 as follows:

“As regards the jurisdiction and powers of arbitral tribunals, it must be emphasised that the arbitration process, generally, is a voluntary and consensual process, both at common law and under the Arbitration Act [Chapter 7:15].

This is made clear by section 4(1) of the Act which stipulates that 'any dispute which the parties have agreed to submit to arbitration may be determined by arbitration'. Moreover, by virtue of section 4(3) of the Act 'the fact that an enactment confers jurisdiction on a court or other tribunal to determine any matter shall not, on that ground alone, be construed as preventing the matter from being determined by arbitration'.

According to BRAND: Labour Dispute Resolution (2nd ed. 2008) at p.163:

'In private arbitration, the arbitration agreement plays a pivotal role. It embodies a description of the dispute to be referred to arbitration, it names the arbitrator, it specifies the terms of reference and arbitrator's powers, it sets out the process before the actual hearing, and, finally, it describes the process to be followed during the hearing.'

In similar vein, as was stated in Total Support Management (Pty) Ltd & Anor v Diversified Health Systems (SA) (Pty) Ltd & Anor 2002 (4) SA 661 (SCA) at 673H-I:

'The hallmark of arbitration is that it is an adjudication, flowing from the consent of the parties to the arbitration agreement, who define the powers of adjudication, and are equally free to modify or withdraw that power at any time by way of further agreement.

It is thus axiomatic that the jurisdiction and powers of an arbitrator are determined by agreement between the disputant parties. The terms of reference define the dispute to be resolved and the manner in which it is to be resolved. The arbitrator's mandate flows from and is limited by the terms of reference.

To put it differently, the arbitrator derives his jurisdiction and powers from the arbitration agreement between the parties.

The position is no different under section 93(1) of the Labour Act.

The jurisdiction and powers of an arbitrator are established and assumed by dint of the agreement of all the parties involved and their voluntary submission to the arbitral process and its jurisdiction. The arbitrator is not endowed with jurisdiction by the labour officer or conciliator. It is the disputant parties themselves who vest the arbitrator with jurisdiction, notwithstanding any preceding or parallel lis or contestatio between them. In other words, it is the voluntary and consensual nature of arbitration that determines the scope of the arbitrator's jurisdiction and powers where any matter is referred to arbitration in terms of section 93(1) of the Labour Act.'”...,.

The above-cited case establishes that the principles applicable to private or voluntary arbitration are the same as those applicable to compulsory arbitration in terms of the Labour Act.

However it must noted, that, there is a slight difference in that in respect of private arbitration there is complete party autonomy with no room for intervention by the arbitrator.

Section 93(2) of the Labour Act, however, gives the Labour Court, or the Labour Officer, the right to intervene and determine the terms of reference - in consultation with the parties.

The arbitrator ought not to mis-characterise the disputes between the parties.

In Alliance Insurance v Imperial Plastics (Pvt) Ltd SC30-17..., the learned MALABA DCJ..., cited with approval the case of Inter Agric (Private) Limited v Mudavanhu & Ors SC09-15 wherein the respondent, alleging unfair dismissal, filed a grievance with a labour officer, and, failing conciliation between the parties, the labour officer referred the matter to compulsory arbitration. MALABA DCJ opined:

“Article 34(2)(a)(iii) of the Arbitration Act states that an arbitral award can be set aside if it contains submissions on matters beyond submissions for arbitration. In Inter-Agric (Pvt) Ltd v Mudavanhu & Ors SC09-15, at p3 of the cyclostyled judgment, GOWORA JA said:

'In addition, at law, the arbitrator was only competent to determine the dispute between such parties as had been referred to him by the labour officer. Thus, he was confined to his terms of reference. He had no mandate beyond that which had been referred to him.'”...,.

See also Augur Investments OU v Fairclot Investments (Private) Limited t/a T & C Construction & Anor SC08-19.

What emerges from the above authorities is that the arbitrator, in determining the dispute referred to him, is confined to the terms of reference settled for him or her by the Labour Court or the labour officer in consultation with the parties.

He is not allowed to stray outside those terms of reference. For emphasis, he has no mandate beyond that which has been referred to him or her.

The appellant argues that the misdirection in this regard is two-pronged:

1. That, the resolution by one party to terminate its contractual obligations cannot bind the innocent party to the contract and that it was a serious misdirection to say that the appellant was bound by the decisions of the respondents in respect of the second contract between the parties.

2. That, a contract of employment need not be in writing, and thus, it was a misdirection by the court a quo to find, that, since there was no written contract of employment between the appellant and the second respondent there was no contract to speak of.

It was counsel for the appellant's contention, that, the appellant was employed by the two respondents.

He further submitted, that, the court a quo did not lay a basis for interfering with the factual findings made by the arbitrator.

Per contra, counsel for the respondents submitted, that, the appellant did not have a contract of employment with the second respondent. He could not point to a single document which indicated that he had a contract with the second respondent.

Further, she submitted that this was a factual finding correctly made by the court a quo.

It is thus necessary, yet again, to refer to the terms of reference as placed before the arbitrator. These were:

1. Whether or not the Claimant's contract of employment is enforceable against the Respondent.

2. If so, whether or not the Claimant's contract of employment was lawfully terminated and the remedy thereof.

The arbitrator found that the contract was enforceable, that it was never terminated, and that the claimant is entitled to payment of salaries and benefits as claimed.

The court a quo made a finding that there was a contract of employment between the first respondent and the appellant and not between the second respondent and the appellant.

It further found, that, what was clear from the correspondence between the appellant and the Board, regarding his retirement and extension of the retirement age, were between the appellant and the first respondent.

The court a quo, in reaching its finding that there was no contract of employment between the appellant and the second respondent, made reference to letters and correspondence filed of record and remarked:

“What is important to note is that the appellant's Board observed that the respondent had reached retirement age. The Board then resolved to extend the respondent's (appellant in this matter) tenure with the society (PSMAS) (1st appellant) for a further ten years. The extension contract was not with the 2nd appellant. That Board thereafter reversed its decision and decided to abide by the provisions of the enabling Retirement Policy of the Society 4/2003.”

Further down, the court stated;

“From what is on record, there was a contract between respondent and the Society i.e. the first appellant and the respondent but not between 2nd appellant and the respondent.

That being the position, there was nothing to enforce between respondent and the 2nd appellant. Nothing was terminated.

Under the circumstances, it is my respectful view, that, the Learned Arbitrator fell into error when he determined that there was an enforceable contract of employment between the parties i.e between respondent and the second appellant. My finding is that there was no separate binding contract of employment between the 2nd appellant and the respondent.”…,.

I find nothing to confirm the existence of a contract of employment with the second respondent either, and, there are strong indications that there was no such agreement.

Indeed, the appellant has not set out what the terms of this agreement with the second respondent are.

I opine, that, if there was a written contract between the appellant and the first respondent, then, there would have been a written contract between the appellant and the second respondent as well.

As already alluded to earlier on, not a single letter was written by the appellant seeking to enforce a contract of employment against the second respondent.

Thus, the court a quo's finding that there was no contract of employment between the appellant and the second respondent, and, consequently, that there was no entitlement for payment of the alleged salary due to him, cannot be faulted.

It is an established principle in our law that an Appellate Court cannot interfere with the exercise of discretion by the court a quo and the factual findings made by it unless those findings were grossly unreasonable and the decision is so outrageous in its defiance of logic that no sensible person, who would have applied his mind to the question to be decided, could have arrived at it.

This position was discussed and justified in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)..., where KORSAH JA remarked:

“…,. An Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied, that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

It is my view, that, the court a quo had a basis to interfere with the factual findings of the arbitrator.

From what is on record, there is nothing to indicate that there was a contract between the appellant and the second respondent, written or otherwise.

The appellant in the “Claimant's Address” to the arbitrator did not state whether he had a contract with the second respondent. He did not plead the terms of the oral contract - if indeed it existed. He did not complain about unlawful termination of his contract with the second respondent.

He just claimed non-payment of salaries.

The arbitrator arrived at a decision without regard to the evidence before him, which is a ground for interference with a factual finding. Thus, the decision of the court a quo is unassailable.

In light of the above, the second ground of appeal, being un-meritorious, must fail.

This is an appeal against part of the judgment of the High Court sitting at Bulawayo, dated 2 May 2019.

The court a quo granted the following order:

1. That, the purported Deed of Sale concluded by the parties on 26 January 2010, in respect of a portion of Umguza 100 Acre Lot 5A be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That, the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That, the plaintiff be and is hereby ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That, the prescribed rate of interest be levied on the amount under (3), supra, with effect from 24 June 2015 to the date of full payment.

5. That, the plaintiff pays costs of suit.

The part under appeal relates to paragraphs 3, 4 and 5 of the order. The appellant is also aggrieved by the court a quo's failure to pronounce itself on the claim for eviction in that order.

The facts that are relevant to this appeal are common cause. The appellant sadly passed away on 24 August 2019, before the appeal was heard. He was, by order of this Court, substituted, on 22 July 2020, by his duly appointed executor dative, who also happens to be his son.

The appellant is the registered title holder of Umguza 100 Acre Lot 5A in the District of Bulawayo measuring 67,2123 hectares held under Deed of Transfer No.74/91 (the immovable property). It is situated in the outskirts of Bulawayo and falls under the administrative jurisdiction of the Umguza Rural District Council.

On 17 August 2000, the appellant sought, but failed, to obtain a sub-division permit for the property into units of less than five (5) hectares. The responsible authority adjudged any plots that were less than five (5) hectares not to be viable for agriculture.

The respondent resided on a fully developed six (6) acre plot in the vicinity of the appellant's immovable property.

On 12 January 2010, in anticipation of an agreement of sale to be consummated with the appellant, the respondent sold his plot for the sum of R225,000.

On 26 January 2010, the parties concluded a written agreement for the sale of 10 acres (4,047ha) of the immovable property (the plot) for the sum of US$20,000.

A deposit of US$10,000 was to be paid before the respondent could take occupation.

The balance was payable at the rate of US$2,000 per month from 1 May 2010.

The other terms and conditions of the agreement were that the respondent would “pay the cost of all transactions connected with the transfer of the property, all charges of capital gains, and draw electric power to the homestead of the seller.”

The respondent duly paid the deposit and took occupation on 1 April 2010.

His building plans were approved by the Umguza Rural District Council on 3 April 2010. He constructed a three bedroom cottage and a four bedroom main house in 2010. In 2011, he installed electricity infrastructure for his two dwellings and the appellant's homestead but only drew electricity to his dwellings. He flushed a borehole previously sunk by the appellant, constructed two (2) septic tanks and two (2) blair toilets. He also put up a perimeter fence around “his” plot.

It was common cause that he expended the total sum of US$34,158=75 and R2,220 on these developments.

The relationship between the appellant and the respondent deteriorated soon after the respondent took occupation of the property.

The appellant refused to accept the instalments tendered by the respondent and demanded that the respondent keep his money while he kept his land.

The respondent tendered the balance of the purchase price, and, when it was rejected, he issued summons for specific performance in HC491/11.

Thereafter, with the help of their legal practitioners, a compromise was reached between the parties but was not honoured.

In the result, the appellant then sued the respondent for the payment of the balance of the purchase price, in the sum of US$10,000, in HC2828/12.

During this tumultuous period, unbeknown to the respondent, the appellant sought to regularize the sale of the plot by applying for a subdivision permit to the department of Physical Planning Offices in Bulawayo on 10 January 2011.

It was only in or about October 2012 that the respondent became aware that the appellant did not have a sub-division permit entitling him to subdivide the immovable property and sell the plot.

On 27 February 2013, acting on the appellant's request, the respondent paid US$550 to the appellant's former legal practitioners for the processing of a belated sub-division permit.

Notwithstanding that the immovable property measured 67,2123ha, a permit for the subdivision of the immovable property into two Stands measuring 4,047 and 37,6961 hectares was duly issued on 29 April 2013.

The permit, however, turned out to be a fake document.

Acting on the erroneous belief that the permit was genuine, on 6 June 2013 and 30 January 2014, the respondent paid US$5,000 and US$4,000, respectively, towards the purchase price.

The respondent, therefore, paid to the appellant a total sum of US$19,000 for the purchase of the plot.

He, in addition, expended US$34,158=75 and R2,220 in the development of the immovable property.

By the time a pre-trial conference was held a quo, both parties had withdrawn their earlier actions against each other.

At the pre-trial conference, the parties agreed, inter alia, that their agreement of sale was invalid and illegal for breaching section 39(1)(i) and section 40 of the Regional, Town and Country Planning Act. This was because it had been concluded without a subdivision permit.

Consequently, the appellant tendered the purchase price of US$19,000 and sought the eviction of the respondent from the plot.

He also claimed an ascertainable amount for unjust enrichment for the period of the respondent's stay to the date of his eviction.

The quantum for the enrichment claim was based on what the appellant perceived to be the reasonable rentals that the respondent would have paid for the occupation of the property.

He, therefore, claimed US$18,000 for the occupation of the plot from March 2010 to April 2015 and “holding over damages at the rate of US$10 per day…, from 1 May 2015 to the date of vacation” and costs on the higher scale.

The respondent contested the action.

He disputed being unjustly enriched and averred, that, he was a bona fide occupier by virtue of the invalid agreement. He also averred, that, in the absence of a lease agreement, the appellant did not have a valid cause of action for the payment of reasonable rentals and holding over damages.

He, in turn, counter claimed for unjust enrichment for the improvements he had made on the immovable property.

He averred that the appellant was enriched at his expense by these improvements.

He further alleged that the appellant was enriched by the payment of US$19,000 towards the purchase price and US$550 for the procurement of the subdivision permit.

The respondent, therefore, sought the repayment of the denominated amounts; a refund of the expenses incurred in erecting the electricity infrastructure; and the depreciated replacement cost (being the current cost of reproduction or replacement of an asset less deductions for physical deterioration, obsolescence and optimization) of the improvements he made on the plot.

He specially entreated the court to award him “such payments as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.”

He also sought interest at the prescribed rate from the date of summons to the date of payment in full and costs on the higher scale.

In his plea to the counter-claim, the appellant, again, tendered the refund of US$19,000.

He disputed to being unjustly enriched by the developments made by the respondent on the immovable property. He averred, that, the respondent had failed to draw electricity to his homestead and had fraudulently facilitated the issuance of the fake permit. He also alleged that the respondent's dwellings were constructed without his authority and that he was therefore a mala fide occupier. Lastly, he stated that these dwellings would not be useful to him.

The two issues referred to trial a quo where whether or not:

1. The appellant was entitled to a reasonable rental arising from the respondent's occupation of the plot; and

2. The defendant has been unjustly impoverished, and plaintiff unjustly enriched, as a result of the alleged developments made by the defendant upon the plot; and, if so, the quantum thereof.

The court a quo confirmed the invalidity of the agreement of sale on the ground that it was contrary to the mandatory dictates of sections 39(1)(i) and 40 the Regional, Town and Country Planning Act.

The confirmation was in accordance with established authority emanating from this Court in such cases as X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S) and City of Gweru v Kombayi 1991 (1) ZLR 333 (S).

It held, on the authority of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, that a lease agreement could not possibly be extrapolated from the invalid agreement of sale; and, resultantly, dismissed the claim for rentals and holding over damages sought by the appellant in the main.

It is clear from a reading of the judgment, that, the court a quo did not relate the request for reasonable rentals and holding over damages to the appellant's own enrichment claim against the respondent.

The appellant pleaded such a cause of action.

He testified during the trial, that, the respondent derived benefit from the farming activities he conducted on the plot. He also asserted that another benefit that accrued to the respondent was in the form of rental savings that he would have been obliged to pay elsewhere but for his stay on the plot.

These assertions were not, and could not, be controverted by the respondent.

However, it appears that counsel for the appellant misconceived the appellant's case and did not pursue the claim to fruition.

The court a quo, on the basis of credibility findings and the probabilities of the case, further found the respondent to have been a bona fide occupier and the appellant a mala fide seller.

Consequently, it relaxed the in pari delicto rule in favour of the respondent.

It, thus, held that the appellant had been unjustly enriched at the expense of the respondent, who was concomitantly impoverished by the transaction.

The court a quo, therefore, upheld the respondent's counter claim.

In computing the measure of the benefit that accrued to the appellant, the court a quo applied the pari delictum rule.

In the exercise of its broad discretion, it relaxed the pari delictum rule in a bid to do justice between the two protagonists.

It had no difficulties in finding the appellant to have been enriched in the sum of US$19,550 constituted by the payments towards the purchase price and the facilitation of the procurement of the sub division permit.

The correctness of this finding is beyond question.

After all, the appellant did not retract his tender of US$19,000, and conceded the payment of US$550 for the stated purpose.

The parties disagreed on whether or not the respondent was entitled to compensation for the improvements that he made on the immovable property.

The appellant submitted a quo that the respondent was not entitled to the value of the improvements:

(i) Firstly, because the respondent had not properly framed them under the enrichment cause of action in his pleadings.

(ii) The second was that the improvements were not, nor would they be, useful to him.

He, in any event, agitated for their urgent removal from his property.

The court a quo held, that, while on the pleadings, the cause of action for the improvements was poorly and inelegantly framed, the respondent had obliquely included them in his enrichment cause.

Further, that the purported defective pleadings had, in any event, been amplified and cured:

(i) Firstly, by the inclusion of the developments in the second issue referred to trial at the pretrial conference; and

(ii) Secondly, by the overwhelming evidence adduced by the respondent at the trial together with the scope and tenor of the questions asked and answers rendered during cross examination.

The court a quo also held, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S)…, that usefulness was to be measured objectively, and not subjectively, on the basis of added value.

It, therefore, found the improvements to be objectively useful to the appellant. It also found that they could not be removed because they were fixed to the immovable property.

The court a quo estimated the added value of the improvements at $125,000 and not US$132,833=33 claimed by the respondent.

It adopted the lowest depreciated replacement value of $90,000 provided in one of the three valuation reports produced in January 2018. The court a quo then added the depreciated replacement value of the plot, estimated in two of the valuation reports at $35,000, to this figure.

It, therefore, awarded the aggregate amount of $125,000 to the respondent as a fair and equitable amount that adequately represented the enrichment that accrued to the appellant and constituted his concomitant impoverishment.

Lastly, the court a quo declined to immediately evict the respondent from the immovable property on two grounds:

(i) The first was that he had a real improvement lien on the property, dischargeable on full payment of the award.

(ii) The second was that the respondent had invested all the resources he had on the plot.

To evict him from the plot, empty-handed, would not only be intolerable, but, would consign him and his family to the indignity of homelessness and destitution.

I quote below the concluding remarks of the court a quo in this regard. At p15 of its cyclostyled judgment, it stated that:

“This Court firmly believes that this is a proper case to exercise its discretion in the interest of equity and fairness by ordering that the defendant be evicted only upon payment of the full compensation ordered by the court per the defendant's counter-claim. This is mainly because the defendant has a real lien over the portion of the land in issue.”…,.

Notwithstanding the firm belief, the court a quo omitted to make the contemplated order of eviction in the final order that issued.

The appellant initially raised six grounds of appeal. At the commencement of the appeal hearing, in Bulawayo, counsel for the appellant moved for the deletion of the second ground of appeal and the amendment of the fourth ground.

Counsel for the respondent did not oppose the amendments.

We, accordingly, granted the amendments by consent of the parties.

Resultantly, the following five grounds of appeal remained in contention:

1. The Honourable Court a quo misdirected itself in law in holding, that, despite the respondent's failure to plead unjust enrichment with regards to the improvements upon the property at issue, such failure to specifically plead unjust enrichment was curable by the evidence.

2. The court a quo misdirected itself at law by failing to order either for or against the appellant on a claim of eviction of the respondent from the appellant's land when such a claim was put before the court a quo for determination by that court.

3. The court a quo misdirected itself in its application of the law in awarding what amounts to contractual damages in the relaxation of the in pari delicto principle in that the court a quo relied on valuations provided by the respondent, when, in fact, the court a quo could only have relied on the actual proof of expenditure upon such land having been pleaded and proof provided.

4. The Honourable Court a quo erred in ordering that interest on the judgment debt be paid by the appellant from 24 June 2015, when, in fact, the valuation relied upon for the monetary award in issue was done in 2018.

5. The Honourable Court a quo misdirected itself at law by ordering that the appellant pays the costs, when, in fact, the appellant was partially successful in the court a quo.

The relief sought from these grounds of appeal was:

(i) Firstly, that the appeal succeeds with costs.

(ii) Secondly, that the judgment a quo be altered by setting aside the paragraphs relating to the payment of the sum of $125,000, interest, and costs. These were to be substituted by an award for the payment of the purchase price paid of $19,000 and the actual expenditure proved to have been incurred in the improvements to the immovable property in the sum of $34,158=75 and ZAR2,220. The interest on these sums was to run from the date of the order and each party was to bear his own costs.

The appellant further sought the inclusion of an order of eviction to the substituted order.

The issues that arise from the grounds of appeal are these:

1. Whether or not the court a quo erred in finding that the respondent had proved his case and was therefore entitled to damages for unjust enrichment.

2. Whether or not the court a quo erred in relaxing the pari delicto rule and in awarding the respondent compensation in the nature of contractual damages.

3. The date on which interest should commence to run and the appropriateness of a cost order against the appellant a quo.

During counsel for the appellant's oral submissions, it appeared to the court that the parties required an opportunity to attempt settlement of the matter. Counsel for the respondent was amenable to such a course of action.

The parties requested for a period of three (3) weeks to pursue the attempt at settlement.

We accorded them the opportunity to do so. The matter was accordingly postponed for continuation in Harare on 24 August 2020.

The attempt at settlement was, however, not successful.

The appeal proceeded in Harare.

Mr G Ndlovu, substituted Mr Masiye-Moyo as counsel for the appellant at the resumed hearing.

Counsel for the appellant made the following submissions:

That, the court a quo erred in awarding compensation for improvements under the enrichment cause in circumstances where the respondent had not specially pleaded such a cause.

While he conceded that the respondent had, in oral testimony, specifically premised his claim for compensation for the improvements on unjust enrichment, he argued that oral testimony could not, in law, cure such a glaring defect in his pleadings.

We directed counsel for the appellant's attention to the averments, as amended by consent of the parties at the hearing a quo on 16 January 2018, embodied in paragraphs 3, 4 and 5 of the respondent's counterclaim (on p40 of the record of proceedings) and paragraph 4.1 of his replication to the appellant's plea in reconvention (on p48 of the record of proceedings).

Counsel maintained, that, these averments did not specifically plead unjust enrichment in respect of the improvements but only did so in regard to the purchase price and the amount paid to procure the subdivision permit.

Counsel for the appellant further argued, that, as no contractual rights could ever arise or be enforceable from an illegal agreement, it was incompetent:

(i) Firstly, for the respondent to pray for “contractual damages” under an enrichment claim; and

(ii) Secondly, that while the court a quo correctly relaxed the in pari delicto principle in this case, it was also incompetent for it to award such “contractual damages” to the respondent.

The court a quo had done so, the argument went, by awarding compensation which included the amount of money that the respondent would require to purchase a piece of land similar in size to the one he had lost; and, by further awarding an aggregate sum which would enable the respondent to erect structures of an equivalent value to the improvements.

He contended, that, an award of compensation based on improvements was limited to the actual expenses incurred by the respondent.

He also contended, that, it was against public policy, and therefore improper, for any court of law to accord judicial recognition to and approval of an illegal and void agreement. To do so would undermine the tenets of public policy upon which the in pari delicto principle was premised.

Lastly, he conceded that an improvement lien constituted part of our law.

He, however, argued that such a right of retention could not avail any party whose improvements flowed from an illegal agreement.

Concomitantly, the court a quo, therefore, misdirected itself in failing to grant the order of eviction to the appellant.

Counsel for the respondent made contrary submissions:

(i) Firstly, he contended that the respondent had actually pleaded unjust enrichment not just for the actual expenditure he incurred in purchasing the plot, in procuring the permit, and drawing electricity to the appellant's homestead, but, also for the improvements.

(ii) Secondly, that, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S) and Derby Farms (Pvt) Ltd v Chirunga HH82-07…, once the court relaxed the in pari delicto rule it had the further discretion to do justice between the parties by awarding an equitable amount of the value added by the improvements. In so doing, the court could consider the real and not the nominal value of the improvements.

He argued, that, in Reza v Nyangani 2001 (1) ZLR 202 (S), this Court had ignored the exact expenditure that had been incurred in favour of the depreciated replacement value of the improvements. This was because, by the time the dispute was adjudicated, the actual expenses were too negligible while the depreciated replacement value, which catered for the fall in the value of money, represented the fair and equitable value added to the property by the improvements.

He, therefore, contended, that, the respondent was entitled to the value added to the immovable property by the improvements and not just the actual expenditure he had incurred.

Hence, his submission that the correct value added to the immovable property by the improvements was constituted by the depreciated replacement value of such improvements.

Finally, he submitted that the invocation of the improvement lien was again an exercise of the court's discretion, which the appellant had not, and could not, impugn on any of the irrationality grounds known to our law articulated in the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

He, however, conceded, in exchanges with the court, that the court a quo failed to capture the conditional eviction of the respondent in the operative part of its order.

He entreated us to exercise the powers conferred on the Supreme Court by section 22(1)(b)(ix) of the Supreme Court Act [Chapter 7:13] to “correct” the order and achieve justice between the parties.

In reply, counsel for the appellant, argued that both this Court and the High Court had adopted the depreciated replacement value in decided cases because of the endemic hyperinflation that characterized the local economy at the time.

He sought to distinguish the two cases cited by counsel for the respondent from the present case on the basis, that, this country did not experience similar inflationary pressures but was stable between 2010, when the actual expenses were incurred, and 2019, when the enrichment order was granted.

Counsel for the appellant, however, conceded that this Court could, in terms of section 22(1)(b)(ix) of the Supreme Court Act, correct the omission to grant the conditional eviction in the operative part of the order of the court a quo rather than remit the case for this to be done.

The requirements for an action of unjust enrichment were set out by ZIYAMBI JA in Gamanje (Pvt) Ltd v City of Bulawayo SC94-04…, in the following terms:

“The requirements for an action for unjust enrichment are:

(i) Firstly, that the defendant has been enriched by the receipt of a benefit;
(ii) Secondly, that he has been so enriched at the expense of the plaintiff;
(iii) Thirdly, that the enrichment is unjustified (in the sense that it would be unjust to allow the defendant to retain the benefit);
(iv) Fourthly, that the enrichment must not come within the scope of one of the classical enrichment actions; and
(v) Fifthly, there must be no positive rule of law which refused an action to the impoverished person.

See Industrial Equity v Walker 1996 (1) ZLR 269 AT P 300; See also Wille's Principles of South African Law, 8th edition, at pp633-5.”

To the same effect is Du PLESSIS in his seminal work The South African Law of Unjustified Enrichment, Juta, 2012…, where he writes that:

“To succeed with a claim based on unjustified enrichment, the plaintiff must meet four general requirements, or, as it is sometimes said, four general elements of enrichment liability have to be present. (i) First, the defendant must be enriched;
(ii) Secondly, the plaintiff must be impoverished;
(iii) Thirdly, the defendant's enrichment must be at the plaintiff's expense; and
(iv) Finally, the defendant's enrichment must be unjustified, which means that it must be without legal ground (sine causa).”

In the court a quo, and in this Court, the appellant conceded that the respondent had pleaded and proved unjust enrichment in respect of the part payment of the purchase price in the sum of US$19,000.

Counsel for the appellant, however, argued a quo, and in this Court, that, the respondent was not entitled to the measure of enrichment based on the valuations produced a quo:

(i) Firstly, because unjust enrichment was not specifically pleaded and could not, as held by the court a quo, be properly cured by evidence.

(ii) Secondly, because the award granted a quo was for contractual damages and not for unjust enrichment....,.

Whether or not unjust enrichment exists is a factual finding: see Evans v Rapper SC55-04…,.

In the present matter, the court a quo made the factual finding that the appellant had been enriched at the expense of the respondent and was therefore entitled to recoup the value of the enrichment.

That finding has not, and on the facts, cannot be impeached by the appellant.

The existence of the improvements was not disputed a quo. Nor were the valuation reports, on which they are all itemized, controverted.

Indeed, the appellant accepted, that, the respondent expended US$34,158=87 and R2,220 in making the improvements.

I am satisfied, that, the court a quo correctly found that the respondent had proved his case for unjust enrichment on a balance of probabilities.

It seems to me, therefore, that the first ground of appeal was misconceived and cannot succeeded.

This is an appeal against the whole judgment of the High Court (court a quo) dated 18 October 2018. The court a quo granted an application for absolution from the instance made jointly by the respondents, granted claims in reconvention, and ordered the appellant to pay costs of the counterclaims on a legal practitioner and client scale.

The court a quo erred in this regard and the appellant was correctly aggrieved by the judgment of the court a quo.

There is no evidence in the record that the first, third, fourth, fifth, sixth, and seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) had filed counterclaims and the court a quo erred in granting counter claims that were not before the court.

Although the second respondent was properly before the court a quo, the requirements for the grant of absolution from the instance were not met.

Accordingly, the judgment must be vacated. I set out hereunder the reasons for this finding.

The appellant is a registered commercial bank operating in Zimbabwe. The first respondent is a private company registered in accordance with the laws of Zimbabwe. The third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) are private individuals who bound themselves as sureties and co-principal debtors in respect of a loan granted to the first respondent. The second respondent is a private limited company duly incorporated in Zimbabwe.

The appellant issued summons against the respondents on 13 March 2017 for the payment of US$368,706=62 being capital and US$20,654=10 being interest on the sum of US$368,706=62 at the rate of 18% per annum, which rate was subject to change from time to time, with effect from 26 November 2016 to date of payment in full and costs of suit on a legal practitioner and client scale.

At the commencement of trial, by consent of the parties, the claim was amended to read as follows:

“(i) By deletion of the capital amount of US$368,706=62 and the substitution thereof with the amount of US$361,034=23.

(ii) By deletion of the interest amount of US$20,654=10 and the substitution thereof with the amount US$28,246=49.”

The total amount claimed by the appellant amounted to US$389,362=72.

In its particulars of claim, the appellant averred that in or around November 2015, the appellant and the first respondent entered into an agreement in terms of which the appellant extended to the first respondent a loan for the sum of US$373,000.

The loan was accessed through the first respondent's operating account and was for the purpose of assisting the first respondent in financing its working capital requirements.

Interest was to accrue on the facility at the rate of 12% per annum subject to change from time to time and 18% per annum in the event of default by the first respondent in making due and punctual payment of any instalment.

The loan advanced was repayable to the appellant as follows:

“(a) US$2,000 on the 30th November 2015;

(b) US$1,500 on the 30th December 2015;

(c) US$2,000 on the 30th January 2016; and thereafter

US$15,200 per month with effect from the 28th of February 2016 until full payment.”

It was a term of the agreement, that, in the event of the first respondent defaulting in making due and punctual payment of any instalment, the total outstanding amount would immediately become due and payable.

The second, third, fourth, fifth, sixth and seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) bound themselves jointly and severally as sureties and co-principal debtors with the first respondent for payment of any and all monies due to the appellant.

The respondents defaulted in making due payment of the loan under the agreement giving rise to the total outstanding amount claimed by the appellant of US$389,362=72.

All the respondents jointly entered an appearance to defend, and, in their plea, denied that the amount claimed by the appellant arose from the agreement dated 2 November 2015.

The first respondent denied owing the appellant any money as it argued that the loan advanced through the loan agreement was repaid in full on the 30th of December 2015. The first respondent further denied owing the appellant any interest under the loan facility and maintained that the appellant actually recovered more interest from it than was lawfully due.

The second to the seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that all the suretyship deeds held by the appellant were void for vagueness as they covered an unlimited liability. They contended, that, a suretyship deed must contain a limit in monetary terms so as to be valid.

The second respondent (Penniwill (Pvt) Ltd) averred that the deed of suretyship between it and the appellant was void as it was not authorised by its Board of Directors.

The first respondent (Formscaff (Pvt) Ltd) further stated, that, the acknowledgment of debt executed by it in favour of the appellant was unenforceable as it was not signed by its representatives.

The second respondent (Penniwill (Pvt) Ltd) also averred, that, it never authorised the registration of a mortgage bond in favour of the appellant over its property known as Subdivision A of Subdivision H of N'Thaba of Glen Lorne situate in the District of Salisbury held under Deed of Transfer number 1998/95 ('the property').

Together with its plea, the second respondent (Penniwill (Pvt) Ltd) filed a claim in reconvention against the appellant and averred, that, the appellant fraudulently procured a suretyship and mortgage bond in its favour over the second respondent's property. The second respondent prayed that the suretyship deed and mortgage bond be cancelled.

The appellant entered a plea against the claim in reconvention and denied all the averments made by the respondents.

On 30 May 2017, the third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) indicated their intention to apply to amend their pleas and file a claim in reconvention at the pre-trial conference.

The amendments sought alleged that all the respondents purported suretyships had expired by effluxion of time, having been signed more than three years before the loan was granted. It was also averred, that, the suretyships were in contravention of section 12 of the Moneylending and Rates of Interest Act [Chapter 14:14] ('the Moneylending Act') and, as such, were invalid and unenforceable.

In the proposed claim in reconvention, the third to seventh respondents sought an order that their respective suretyships be declared null and void.

The second, third and fourth respondents (Penniwill (Pvt) Ltd, Rodney Callaghan and Millicent Callaghan) prayed that the mortgage bonds in their names be cancelled.

There is, however, no evidence in the record that the amendment was ever granted at the pre-trial conference or at the trial.

On 27 July 2017, the parties signed a Joint Pre-Trial Conference Minute and the issues for determination by the court a quo were stated as follows:

“1. Whether 2nd, 3rd, 4th, 5th, 6th, and 7th Defendants Deeds of Suretyship are valid and enforceable.

2. Whether 2nd Defendant's 1st and 2nd Mortgage Bonds (numbers 1557/13 and 1656/13) in favour of Plaintiff are valid and enforceable or whether they should be cancelled.

3.Whether 1st Defendant is indebted to Plaintiff under the Loan Agreement dated 2 November 2015 in the sums of US$368,706=62 as capital and US$20,654=10 as interest, and, was there novation or termination of the loan agreement.

4. Whether 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants, jointly and severally, one paying the others to be absolved, are indebted to Plaintiff as alleged or at all.”

At the trial, the appellant led evidence through two witnesses, namely, Mr. C. Gunundu (Gunundu) the appellant's Account Relationship Manager and Mr. V.S. Nyangulu (Nyangulu) a registered legal practitioner and conveyancer.

Mr. C. Gunundu testified, that, the appellant and the first respondent had a long business history spanning many years. They agreed that the Bank would advance a loan to the first respondent which loan would, in turn, re-finance the existing loan already held by the first respondent.

He further testified, that, the first respondent and its sureties had failed on numerous occasions to fulfil the loan obligations which it owed to the appellant. The new arrangement was meant to assist the respondents.

Gunundu maintained, that, the surety deeds and mortgage bonds made by the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) in the appellant's favour were all valid and properly constituted. He further maintained, that, the sureties were open and unlimited, and, as such, covered all the money obtained through loans by the first respondent from the appellant.

The second witness, Mr. V.S. Nyangulu, testified that the mortgage bonds he registered on behalf of the second respondent (Penniwill (Pvt) Ltd) in favour of the appellant were valid and were registered after due process and Board resolutions had been passed.

At the close of the appellant's case, the first to seventh respondents (Formscaff (Pvt) Ltd, Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) made an application for absolution from the instance.

In making the application, the first and third to seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that the appellant sued the respondents on a cause of action which had already been discharged on 31 December 2015.

They also alleged that their sureties were not valid.

In making its application, the second respondent (Penniwill (Pvt) Ltd) averred that the appellant failed to prove a valid cause of action that the mortgage bonds against its property, registered in favour of the appellant, were valid.

In response to the applications for absolution from the instance, the appellant argued that the applications were frivolous.

It vehemently denied receiving any payment from the first respondent in repayment of the loan. It also maintained that all the documents in respect of the security for the loan were valid and that the obligation of the sureties had not been extinguished by prescription or on any other basis.

The court a quo, in dealing with the matter, found that the appellant's first witness Mr. C. Gunundu (Gunundu) was not a credible witness and that he contradicted himself on material issues.

The court further found, that, the appellant failed to prove a prima facie case against the respondents.

The court went on to find, that, the first respondent repaid the loan of US$350,000 on 31 December 2015 as evidenced by the appellant's own books of account and statements.

The court a quo also found, that, the suretyships made in favour of the appellant by the second to seventh respondents were invalid and unenforceable as they were not in compliance with section 12 of the Moneylending and Rates of Interest Act. Further, that, the sureties did not relate to the 2 November 2015 loan facility, and, as such, could not be relied upon by the appellant in making a cause of action for the repayment of a loan under that facility.

The court a quo further held, that, the mortgage bonds executed in the second respondent's name were invalid as they were not made in compliance with the law and that the sureties and mortgage bonds could not be held to have an unlimited clause to their operation as such a clause was contrary to public policy.

The court concluded, that, as the appellant had failed to prove a prima facie case against the respondents, the respondents claims in reconvention had merit and that there was no need to put the respondents to their defence.

In the result, the court made the following order:

“1. The application for absolution from the instance, made by the defendants, succeeds with costs.

2. The surety ships (sic) in favour of the plaintiff entered into by 2nd, 3rd, 4th, 5th, 6th and 7th defendant and plaintiff be and are hereby cancelled.

3. The mortgage bonds passed by 2nd, 3rd and 4th defendants in favour of plaintiff, namely, Numbers 2416/2011, 4889/2011, 1557/2013 and 1656/2013 be and are hereby cancelled.

4. The plaintiff to pay costs of counterclaim to the defendants on attorney-client scale.”

Dissatisfied with the decision of the court a quo, the appellant noted the present appeal on the following grounds of appeal:

“1. The court a quo erred in holding that any amounts which were due to Appellant under the agreement dated 2 November 2015 were repaid in full and that Plaintiff sued on a cause of action that was discharged in full on the 30th of December 2015, in so doing, the court a quo failed to appreciate that the agreement (dated 2 November 2015) was entered into to enable the 1st respondent to settle previously existing debts.

1.1 The court a quo erred in strictly evaluating and rejecting the appellant's evidence and effectively demanding of it more than a prima facie (sic) as if it had (sic) evidence from defendants.

1.2 The court a quo erred in granting respondents 1, 3 to 7 counter-claims which were not before it.

1.3 The court a quo erred in granting the counterclaims by respondents 1, 3 to 7 when those respondents had not moved it to grant same as at that stage.

1.4 The court a quo erred in itself cancelling the parties agreements when it was not a party thereto and in violation of the sanctity thereof.

2. The court a quo erred in holding that:

(a) The Suretyship agreements executed by 2nd, 3rd, 4th, 5th, 6th and 7th Respondents did not relate to the agreement dated 2 November 2015, and that neither did they cover any amounts due thereunder.

(b) The Suretyship agreements had prescribed. In so holding, the court a quo grossly failed to appreciate that, at law, a Surety's obligations only arise upon demand.

(c) The 2nd, 3rd, 4th, 5th, 6th and 7th Respondents were released from their Suretyship due to material variation of the principal obligation, when this was not pleaded and no evidence proving actual prejudice was placed.

(d) That 2nd, 3rd, 4th, 5th, 6th and 7th Respondents suretyship agreements were void for being contrary to public policy.

3. In agreeing with 2nd, 3rd, 4th, 5th, 6th and 7th Respondents entire submissions on the application for absolution from the instance, the court a quo grossly erred in holding 2nd to 7th Respondents averment that the suretyship agreements are invalid for violation of Section 12 of the Money Lending (sic) and Rates of Interest Act [Chapter 14:14].

4. The court a quo erred in holding that the Mortgage Bond passed by 2nd Respondent, and 3rd and 4th Respondents are invalid and grossly failed to appreciate, that, at law, the Mortgage Bonds are valid as an instrument of both debt and hypothecation.

5. Consequent to the gross misdirection referred to in Paragraph 1, 2, 3 and 4 above, the court a quo erred in granting 1st to 7th Respondents application for absolution from the instance and entering Judgment in favour of Respondents as per their claim in reconvention for cancellation of the suretyship agreements and Mortgage Bonds.

6. The court a quo erred in awarding costs against Appellant in respect of the Respondents claim in reconvention on a higher scale, when there was no legal basis for so doing.”

On the merits, counsel for the appellant argued that it was improper for the court a quo to grant counterclaims that were not filed in terms of Rule 121 of the High Court Rules 1971 ('the High Court Rules').

Counsel further argued, that, the judgment of the court made factual findings without hearing the evidence of the first respondent. The factual findings could only have been made after hearing the defence case.

He also argued, that, the inference drawn by the court in respect of the statement of account was not the only inference in the circumstances of the case, and, in any event did not prove that the debt owed by the respondents had been repaid.

It was also counsel's argument, that, the appellant proved a prima facie case in establishing that the loan facility was disbursed to the first respondent and it was for the respondents to prove that the loan was repaid in full.

He prayed that the appeal be allowed with the matter being remitted to the court a quo for continuation of trial and an order for costs.

Per contra, counsel for the first, third to seventh respondents argued that the court a quo correctly found that the appellant failed to establish a prima facie case as there was no valid cause of action.

Counsel further argued, that, the documentary evidence produced before the court a quo showed that the loan was repaid in full on 31 December 2015, and, as such, the appellant had no basis to sue.

He also argued, that, the appellant's witness, Gunundu, contradicted himself in his evidence, and, as such, a prima facie case could not have had been established by the appellant.

Counsel further argued, that, the purported sureties made in the names of the third to seventh respondents were invalid and void.

Counsel prayed for the dismissal of the appeal.

Counsel for the second respondent also prayed for the dismissal of the appeal and argued, that, the appellant had no cause of action against the second respondent as no loan facility was ever advanced to it.

Counsel submitted, that, the loan was repaid on 31 December 2015 and that the appellant had admitted that this was the position in evidence.

He further submitted, that, there was no valid mortgage bond in the name of the second respondent upon which the appellant could execute. The mortgage bond made by the second respondent, in favour of the appellant, related to a 2011 loan facility and not the 2015 loan facility.

Counsel further maintained, that, the second respondent had only one director in Zimbabwe, and, as such, no valid resolution could have been made in the absence of the second director. As such, counsel argued that the power of attorney and mortgage bond were not properly executed.

It is my view, that, the appellant's grounds of appeal raise a single issue, i.e. whether or not the court a quo erred in granting the application for absolution from the instance.

The cause of action of the appellant, against the first respondent (Formscaff (Pvt) Ltd), was based on a credit facility dated 2 November 2015. It was alleged that the first respondent had failed to repay the loan advanced to it under that facility.

The cause of action as against the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) was based on the various surety and mortgage bonds filed of record which were made in favour of the appellant by the respondents at different times.

The court a quo, in granting the respondents application for absolution from the instance, found that the loan advanced to the first respondent was repaid on 31 December 2015. The basis of this finding was an accounting entry made by the appellant in its statement of accounts, which showed a credit entry in the sum borrowed as having been paid.

On the basis of this entry, the court reasoned that there was no cause of action upon which the appellant could claim as there was no outstanding debt.

The law to be applied in an application for absolution from the instance is well settled. In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…, the Court held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him:” see also Oesthuizen v Standard General Versekeringsmaa & Kappy BPK 1981 (A) 1035 (H)).”

In Gordon Lloyd Page & Associates and Rireira & Another 2001 (1) SA 88 (SCA)…, it was held that:

“The test for absolution to be applied by a trial court at the end of plaintiff's case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H in these terms:

'…, when absolution from the instance at the close of plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but, whether there is evidence upon which a court applying its mind reasonably to such evidence could or might (not should or ought) find for the plaintiff…,.'

This implies that the plaintiff has to make out a prima facie case in the sense that there is evidence relating to all elements of the claim…,.”

Absolution from the instance is thus granted by the court when an application has been made by a defendant at the close of a plaintiff's case who fails to prove a prima facie case.

A prima facie case was noted in Fillieks and Others v S [2014] ZAWHC 34 as follows:

“Prima facie evidence, in its more usual sense, is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive and the party giving it discharges his onus…,.”

In granting the application for absolution from the instance, the court a quo thus had to be guided by the question of whether or not the appellant made out a prima facie case against the respondents on the basis of which the court could or might have found for the appellant.

The appellant's cause of action was based on the credit facility which it advanced to the first respondent on the 2nd of November 2015 for the sum of US$350,000. The purpose of the facility was to assist the first respondent in financing its working capital requirements.

The facility further provided, under clause 6, that, the security for the amount advanced as the loan was secured by sureties and mortgage bonds registered in the names of the respondents in favour of the appellant.

Under clause 12 of the facility, all previous facility letters advanced to the first respondent, by the appellant, were cancelled.

The accounting statements of the appellant, filed of record, show that on 17 November 2015, under transaction number LD1532460482, and described as “Loan Drawdown” the appellant credited the first respondent's account with the sum of US$350,000. On the 30th of December 2015, under transaction number LD1532460482 and described as “Payment of Principal” the sum of US$350,000 was reversed from the first respondent's account into the appellant's account.

The first respondent remained with a debit balance of US$375,671=35.

The appellant's witness, Gunundu, explained that the first entry meant that the appellant was crediting the first respondent with the proceeds of the loan. The second entry showed that those proceeds were meant to pay off an existing debt that the first respondent already had with the Bank.

It is important to quote the exchange between counsel for the appellant and the witness where he states that:

“Q. If you move further down, you will see that the same $350,000 appears on that page?

A. Yes, the second entry for $350,000 which in this instance now appears as a debit on the borrowers account, was passed on 30th December 2015. The second entry that was passed by the Bank on the 30th of December 2015 for 350,000 entailed that the Bank was now debiting the customer's account to confirm that this was now a new loan agreement with terms as contained in the facility letter offer of 2nd November 2015.”

The first respondent however maintained the argument a quo, and before this Court, that, the loan was repaid on the 30th of December 2015 under the transaction description of “Payment of Principal”.

On the basis of the above exchange, the court a quo found that the witness of the appellant did not establish its claim at all. The court concluded that Gunundu was not a credible witness and found that the appellant had failed to make out a prima facie case upon which the respondents could be placed on their defence.

It is our view, however, that the court a quo fell into error in arriving at this finding.

It should be noted from the onset, that, the appellant and the first respondent have had a long standing relationship of a banking nature.

The record shows, that, from 2011 to 2015, when the credit facility which is the subject of this appeal was entered into, the appellant was advancing the first respondent different loan facilities and overdrafts.

These loan facilities were advanced on the basis of the securities which were made by the second to seventh respondents.

For over five (5) years, the appellant was advancing money to the first respondent on the basis of those securities with no issues arising.

Emails filed of record further show correspondence between the third respondent (Rodney Callaghan), the first respondent's Finance Manager, one Jill Ngwerume Gunundu, on behalf of the appellant, and Nyangulu, which correspondence shows how some of the securities were registered.

Emails between Rodney Callaghan and Darryn Blumears (acting on behalf of the second respondent) are also part of the record which shows the parties acknowledging that certain sums of money were owed and that the respondents would raise money to pay the debts.

Although these emails were written in 2013 to 2014, this confirms the nature of the relationship between the appellant and the respondents, and that, as at 2014, there was a debt owed to the appellant.

Having found that there existed a banking relationship between the appellant and the respondents, the next question relates to the credit facility advanced to the first respondent on 2 November 2015 and whether or not that facility was repaid.

There is no documentary evidence in the record which shows that the first respondent wrote to the appellant seeking a refinancing loan to cover its existing debts.

However, given the history between the parties on how the appellant advanced several loans to the first respondent over the years, it can be taken that the first respondent must have approached the appellant seeking a loan to repay its outstanding debts.

A reading of the appellant's accounting statement shows, that, before the “loan drawdown” was made to the first respondent's account, the account showed a debit balance of US$367,981=74. When the loan sum was deposited, the balance was reduced to US$17,981=74. This means that the loan reduced an existing debt. When the loan was reversed back to the appellant's account on 30 December 2015, the balance returned to US$375,671=35.

This summary shows, that, the loan was advanced by the appellant to refinance an existing debt.

The credit facility, though not clearly labelled as a refinancing loan, appears to have been made in order to give the first respondent time to repay the loan. This explains the creation of a repayment plan on how the first respondent would repay its debt.

In my view, the credit facility, though not specified as a re-financing loan, must have been made for the purpose of extending the period in which the first respondent had to repay its debts.

It is important to borrow the words quoted with approval by GUBBAY CJ in Chikoma v Mukweza 1998 (1) ZLR 541 (SC)…, wherein the Court noted that:

“Not to be overlooked, as well, are the wise words of Lord Wright in Hillas & Co. Ltd v Arcos Ltd [1932] All ER Rep 494 (HL) at 503I; (1932) 147 LT 503 (HL) at 514:

'Businessmen often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is, accordingly, the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary, the court should seek to apply the old maxim of English Law, verba ita sunt intelligenda ut res magis valeat quam pereat.'

See also Burroughs Machines Ltd v Chenille Corp of SA (Pty) Ltd 1964 (1) SA 669 (W) at 670G-H.”

Thus, essentially, what was before the court a quo was a claim for the repayment of a loan.

The appellant had a duty, after all the evidence had been led by both the appellant and the respondents, to prove its case on a balance of probabilities.

The argument in the respondents plea, that the loan was repaid in less than a month, does not carry much weight and is an argument which the respondents had to prove in evidence.

It is important to note, that, there was nothing in the record showing a deposit from the respondents to indicate that the first respondent had paid off the loan.

The court a quo fell into error in making its decision solely on the entry made on 30 December 2015 in the appellant's statement of account.

That entry had to be read in conjunction with all the facts of the matter and the banking history which existed between the parties.

The first respondent never denied owing the appellant, but, rather, denied the sum claimed by the appellant and averred in its plea, that, if at all it owed the Bank, its debit balance was less than US$109,000.

All these are issues which the court a quo could not determine without putting the first respondent to its defence.

The court a quo further erred in making a finding that the appellant's witness was not a credible witness in circumstances when it had not heard evidence from the respondents. This was a clear error as there was nothing upon which the court could measure the appellant's evidence.

In Megalink Investments (Pvt) Ltd v Reserve Bank of Zimbabwe HH04-17…, the court held that:

“I need to point out, too, that, at this stage, the court is not so much concerned with questions of the credibility of the witnesses and the probabilities of the case as there is nothing to measure those aspects against in the absence of the defendant's evidence. The court, at this stage, is presented with only one side of the story which alone must be examined to determine whether the requirements for absolution have been satisfied.”

In the case of Professor Charles Nherera v Jayesh Shah SC51-19, GARWE JA…, quoted the case of Supreme Service Station 1969 (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1, in which BEADLE CJ highlighted some of the considerations that a court, faced with an application for absolution from the instance, ought to bear in mind.

He pointed out, that, the court should always bear in mind that the defendant has not yet given evidence, or been cross-examined. Thus, the court should not dismiss the plaintiff's evidence unless it is glaringly incredible.

The court a quo thus misdirected itself by making a finding on the credibility of the appellant's witnesses in the absence of evidence from the respondents witnesses.

Gunundu explained how the transactions under the credit facilities were made and how they operated. He further explained how the appellant had always worked with the first respondent in trust and on the basis of the securities which had been lodged with the Bank by the first respondent over the years.

It seems to me that his evidence was sufficient to establish a prima facie case for the appellant with regard to whether or not the respondent owed the appellant.

It is common cause that the respondents agreed to be sureties and co-principal debtors in the event that the first respondent failed to repay the appellant. The security documents are part of the record. They have the signatures of the respondents.

In making its claim in reconvention a quo, the second respondent averred that the mortgage bonds in favour of the appellant were fraudulently acquired by the appellant.

Nyangulu testified on how he processed the registration of the mortgage bonds through the Bank. Counsel for the second respondent however put him to task on the effect of the mortgage bonds registered against the second respondent's property in favour of the appellant.

The court a quo reasoned, that, as Nyangulu had admitted, under cross examination, that there may have been shortcomings in the manner in which the mortgage bonds were registered, therefore they were invalid.

However, the record shows, that, as at 29 May 2014, Darryn Blumears, in an email to Rodney Callaghan, was having conversations as to “a figure breakdown for the loan against Pagomo”.

Pagomo was one of the properties upon which a mortgage bond was registered by the second respondent in favour of the appellant.

On the same day, in an e-mail from Rodney Callaghan to Darryn Blumears, he was informed that:

“The total loan is $450,000 to NMB of which $325,000 is against Pagomo and the balance of $125,000 is against Tarlington Road.”

This email is just but one of the correspondence in the record which suggest that there existed debts between the first respondent and the appellant and that those debts were covered by securities in the form of sureties and mortgages.

This evidence, in my view, shows that there was an acceptance by the respondents that the loans were covered by the sureties and mortgage bonds. Thus, any denial of the proposition by the appellant that the mortgage bonds were valid should have been contradicted by the respondents in evidence.

It should also be noted, that, in making their pleas a quo, the respondents jointly made averments with regards to the sureties and mortgage bonds.

Of note, are the material allegations made by the respondents that the surety signed by the second respondent was signed by the daughter of the third and fourth respondents without a valid Board resolution for her to do so. Further, the acknowledgment of debt was not signed by the first respondent and that an official of the appellant fraudulently made the third and fourth respondent's daughter sign as surety on behalf of the second respondent.

It was further averred, that, the appellant thus registered unauthorised mortgage bonds against the second respondent.

All these averments made by the respondents in their pleas raise issues which were disputed by the appellant and therefore needed to be proved by way of viva voce evidence from the respondents.

As such, the court a quo could not grant absolution, as it did, without allowing the respondents to take to the stand to prove their claims....,.

Let it suffice to say, though, that, the requirements for the application of section 230(1) of the Customs and Excise Act have not been met in this case.

In that regard, I agree with counsel for the appellant that the pre-requisite juridical facts required for the section to be engaged are patently absent.

The respondent did not lead any evidence showing that it paid any additional duty.

In the absence of proof of payment of additional duty, among other things, section 230(1) of the Customs and Excise Act could not be triggered. This is so because it is intended for a seller who has paid additional duty, subsequent to the fixing of the contract price, to recover it from the purchaser.

On 13 March 2017, the plaintiff issued summons claiming against the defendants, jointly and severally, one paying the other to be absolved, payment of:

(a) US$368,706=62 being capital;
(b) US$20,654=10 being interest;
(c) Interest on the sum of US$368,706=62 at the rate of 18% per annum subject to change from time to time with effect from 26 of November 2016 to date of payment;
(d) Costs of suit on a legal practitioner and client scale and collection commission as provided for under the law society of Zimbawe by-laws (1982).

At the commencement of trial, on 27 August 2018, by consent of all the parties, the claim was amended in paragraph 16 of the declaration as follows:

(i) By the deletion of the Capital amount of US$368,706=62 and the substitution thereof with the amount of US$361,034=23.

(ii) By the deletion of the interest amount of US$20,654=10 and the substitution thereof with the amount US$28,246=49.

The total amount being claimed by the plaintiff coming up to US$389,362=72.

The plaintiff's claim, as amplified in the declaration, is premised on the following synopsis:

“9. In or about November 2015, at Harare, Plaintiff and first defendant entered into an agreement in terms of which plaintiff extended to first defendant a loan of US$373,000. The loan was accessed through first defendant's operating account.

10. Interest was to accrue on the facility at the rate of 12 per cent per annum subject to change from time to time, but, in the event of first defendant defaulting on making due and punctual payment of any installment, the arrears were to attract interest at the rate of 18 per cent per annum subject to change from time to time, further, first defendant agreed to pay bank charges regarding the administration of the account.

11. The loan advanced of US$373,000 was repayable to plaintiff as follows:

(a) US$2,000 on the 30 of November 2015;
(b) US$1,500 on the 30 of December 2015;
(c) US$2,000 on the 30 January 2016; and, thereafter, US$15,200 per month with effect from the 28 of February 2016 until full payment.

12. It was a term of the agreement that in the event of first defendant defaulting on making due and punctual payment of any instalment, the total outstanding amount thereunder would immediately become due and payable.

13….,.

14. Second, third, fourth, fifth, sixth and seventh defendants bound themselves jointly and severally as sureties and co-principal debtors with first defendant for payment of any and all monies due to plaintiff by first defendant.

15. On diverse occasions, defendants defaulted on making due and punctual payments under the agreement resulting in the total outstanding amount under the agreement, as at the fifth of November 2016, in the sum of US$389,360=72 falling due and payable on the 25th of November 2016.”

All the seven defendants deny that the amount of US$373,000 the plaintiff claims arises from the loan agreement.

The first defendant denies that it is liable to the plaintiff for the capital sum of US$361,034=23 (as amended), or at all, arising out of the loan agreement signed on 16 November 2015 because only US$350,000 in capital was actually lent and advanced to the first defendant and the entire capital debt was repaid in full on 30 December 2015 - less than two months after 16 November 2015.

The agreement terminated in sixty (60) days in terms of the loan or facility agreement.

And the agreement does not have a survival clause.

Paragraph 24 of the facility cancels all previous agreements and this meant that even the balance on the first defendant's account is not covered by the agreement in question.

The first defendant denies liability under the facility and contended that the plaintiff actually recovered more interest than was lawfully due to it.

The first defendant also denies liability for any legal costs as it does not owe the plaintiff any money under the facility in question, and, if the plaintiff is successful, it would only be entitled to normal costs.

The defendants contend that all the suretyship deeds are void for vagueness in that they cover unlimited liability. The liability under suretyship must contain a limit in monetary terms.

The defendants further challenge the validity of the suretyship for they were not all authorized by the second defendant's Board of Directors. The second defendant challenges the company resolution for having been signed by an incompetent company representative.

The acknowledgement of debt alluded to by the plaintiff is challenged by the first defendant because it was not typed by its representatives. Equally so, the resolution signed by Ms Blumears was a nullity, the second defendant avers.

The first defendant denies defaulting payment. It denies owing the plaintiff any amount and also deny being liable to payment of the plaintiff's claims.

On 30 May 2017, the defendants sought to amend their pleas.

They added, that, if at all, the first defendant was liable ex contractu the loan agreement of 16 November 2015, the first defendant will dispute the amount owing since provisionally, as at the end of 2016, the first defendant's credits against debits had brought the first defendant's debit balance to less than US$109,000.

The defendants further contend, that, either the purported acknowledgement of debt or the loan agreement, or both, contravene section 12 of the Money Lending and Rates of Interest Act and consequently invalid and unenforceable.

The second defendant further pleaded that its act of suretyship fails to comply with the requirements of section 12 of the Money Lending and Rates of Interest Act for an instrument of debt as defined in that Act and the purported act of suretyship is therefore of no force or effect as an instrument of debt.

The second defendant's act of suretyship had expired by reason of the effluxion of time, having been signed more than three years before the grant of the loan as claimed for; it was signed on 23 May 2012.

The second defendant further pleaded, that, neither of the mortgage bonds filed reflect that they were surety bonds for debts owing by the first defendant to the plaintiff and accordingly do not bind the second defendant to the plaintiff for this purpose. Further, the mortgage bonds filed amount to a disposal of the whole or a greater part of the second defendant's assets in the absence of formal approval of a general meeting of shareholders as required by the Companies Act, and, for that reason, they are of no force or effect.

It reiterated that the registration of the mortgage bond in favour of the plaintiff was not authorised by the second defendant and that the plaintiff, as lender, clearly over-reacted and unlawfully requested the mortgage bonds.

The third, fourth, fifth, sixth and seventh defendants challenged the suretyships and validity of the mortgage bonds and contravention of the Money Lending and Rates of Interest Act.

Some of the suretyships were also signed long back, in February 2011; they had expired, the defendants aver.

The defendants pray for the plaintiff's claim to be dismissed with costs.

Due to the invalidity of the suretyships alleged in the pleas, the defendants pray that their respective purported suretyships be declared null and void and of no force and effect.

The second defendant, in its counter-claim, also prays that the plaintiff be ordered to issue formal consent according to deeds registry requirements for the cancellation of mortgage bonds registration nos 1557/2013 and 1656/2013 allegedly passed by the second defendant in favour of the plaintiff, and, with the said documents of consent, to release to the second defendant the deeds of the said mortgage bonds and deed of transfer no.1998/1975 made in favour of the second defendant on 7 May 1975.

The third and fourth defendants further pray that the plaintiff be ordered to issue formal consent, according to deeds registry requirements, for the cancellation of mortgage bonds reg nos. 2416/2011 and 4889/2011 allegedly passed by the third and fourth defendants in favour of the plaintiff, and, with the said documents of consent, to release to the third and fourth defendants the deeds of the said mortgage bond and deed of transfer no. 8573/95 made in favour of the third and fourth defendants on 15 December 1995.

The defendants jointly further pray for costs of suit in respect of this claim in reconvention.

The plaintiff, in its plea to the defendants claim in reconvention, contends that the defendants executed open guarantees which are valid, lawful, and enforceable.

It further avers, that, the second defendant's suretyship was and is properly constituted and was extended premised upon a valid resolution by the defendant company.

The acknowledgement of debt was also properly executed by the first defendant and is valid.

The plaintiff added that due process was equally provided in the execution on the guarantee by the second defendant, and the plaintiff was unaware that the third and fourth defendant's daughter unlawfully signed the guarantee and does not admit same.

The plaintiff denies that its representatives interfered in the execution of the guarantee by the second defendant. It argues that the guarantee is hence valid and enforceable.

The plaintiff contends further, that, due process was followed in the registration of the two bonds.

According to the plaintiff, the second defendant's resolutions were made and powers of attorney issued. The bonds were properly registered and are valid. As a result, according to the plaintiff, there is no legal basis on which the second defendant's guarantee and mortgage bonds should be cancelled.

The plaintiff prays for the dismissal of the defendant's claim in reconvention with costs.

1. Whether or not the first defendant is indebted to the plaintiff in the sum of US$361,024 as capital and US$28,246=49 as interest under and in terms of the loan agreement signed by the parties and dated 2 November 2015.

2. Whether or not the second, third, fourth, fifth, sixth and seventh defendants are jointly and severally liable together with first the defendant for the capital and interest amount claimed under and in terms of their respective deeds of suretyship.

3. Whether or not the second defendant's first and second mortgage bonds numbers 1557/13 and 1655/13, in favour of the plaintiff, are valid and enforceable, and whether or not the said bonds be declared null and void and cancelled.

On 27 August 2018, the plaintiff opened its case by calling Cuthbert Gunundu. He is a university graduate holding a Bachelor of Business Studies, a Masters Degree in Business Administration, a holder of a diploma certificate in Institute of Bankers of Zimbabwe, and is employed by the plaintiff as an Account Relationship Manager.

He has been employed by the plaintiff since January 2008.

His job entails managing customers account, more particularly the customer's operating account, receiving credit applications for borrowing to assess credit worthiness of the borrower and make recommendations to the Credit Committee, to approve or reject a credit application.

Once a resolution to lend to the customer is made, he will monitor performance of that client's account to ensure that the borrower performs in line with the terms of the facility.

When there is a deviation by the borrower, the witness would make recommendations for call up or otherwise of the debt.

These are the major roles of his job.

He knows the first defendant as a long outstanding customer of the plaintiff. The second to seventh defendants are guarantors to the first defendant. He testified, that, since 2011, when he was assigned to manage the first defendant's account, the plaintiff demanded the requirement of guarantees to safeguard its moneys loaned out.

From 2011, the plaintiff received guarantees, in terms of security guarantees as well as mortgage bonds against the third and fourth defendants properties. The security guarantees proferred by the third and fourth defendants were for unlimited lifespans until the defendants have paid their debts in full.

In 2013, the witness told the court that the first defendant approached the plaintiff for further borrowing and the first defendant's directors were advised, by the plaintiff, that, the plaintiff would need further security. At that stage, the third defendant indicated that it had associates to cover and provide security for the debt.

Sometime in 2015, the first defendant submitted an application to get assistance from the plaintiff through a loan to pay off its existing debt.

At that stage, the witness stated that the first defendant had failed to meet its obligations.

The first defendant then approached the plaintiff to access a loan whose proceeds the first defendant would then use to pay off its existing debts. That fresh application, of 2015, culminated into a fresh loan agreement which is the agreement dated 2 November 2015.

As at the date of the loan agreement, the witness told the court that the first defendant owed the plaintiff a total of US$373,000.

The terms of that loan agreement was that the Bank had to be secured, and, in terms of clause 6 of the agreement, the security was already in the hands of the plaintiff.

As a result of the 2 November 2015 agreement, the plaintiff advanced a loan to the first defendant to pay off the debt, a loan draw down of $350,000; and, that amount was to pay off the first defendant's outstanding debt.

On 30 December 2015, the second entry on the bank statement shows that there was a loan repayment of $350,000 and the witness told the court that to the plaintiff it was a debit to show that it was a new loan account.

The witness denies that the first defendant repaid the amount on 30 December 2015; there was no settlement on the account.

The witness denied the assertion made by the defendants, that, the plaintiff had sued under the wrong agreement.

He further added, that, the first defendant was using its operating account.

The witness also explained, that, the customer signed an acknowledgment of debt cited on pp10-12 of the plaintiff's bundle of documents, p202 of the record of proceedings. The document, the witness said, was executed by the third defendant and did so on behalf of the first defendant. He added, that, although the loan agreement shows a figure of $373,000 and the acknowledgement of debt bears an amount of $377,299=70 the two (2) documents relate to the same transaction.

Asked by the plaintiff's lawyer to explain, the witness stated that by 6 November 2015 the first defendant owed the plaintiff $377,299=70, the facility letter dated 2 November 2015 showed $373,000, and the acknowledgement of debt, dated 16 November 2015, was the date the acknowledgment of debt was executed.

The acknowledgment of debt was sent to the first defendant on 31 October 2015, and, by that date, the amount due to the plaintiff from the first defendant was $377,299=20; from time to time, the first defendant was periodically depositing money into the operating account and this resulted in gradual reduction of the first defendant's obligation.

However, from 2 November 2015 the first defendant failed to meet its obligations.

The witness further explained to court, that, the defendants provided two forms of security, the guarantees and mortgage bonds, contained on pp67-69 of the plaintiff's bundles.

The second defendant executed it for registration.

In 2012, the borrower applied for an increase to its loan facility and that is when the security was made.

The witness insisted that all the documents were properly executed and the resolution on p69 of the bundle was authentic and valid.

Mr Gunundu was cross-examined by counsel for the first, third, fourth, fifth, sixth and seventh defendants and was put to task to explain the capital debt of $373,000 and the $361,024 and also $350,000 and he had difficulties to explicitly define such figures.

Tasked to explain why the plaintiff would write on its statement that the second entry on the statement of 30 December crediting the first defendant's account with an amount of $350,000, the witness stated that it was a “confirmation” of the loan advanced to the first defendant.

Further, under cross examination, the witness averred that the loan agreement of 2 November 2015 permitted the plaintiff to factor in the old debts.

Pressed to explain clause 12 of the facility letter, on p16 of the record; that clause 12 cancels and invalidates all previous agreements, the witness admitted that the plaintiff was bound by that clause.

He could not produce a letter or application to show that the first defendant applied to the plaintiff for a loan to facilitate funding an existing debt.

Commenting on clause 2 of the facility letter relating to “working capital requirements” he testified that a letter application for a loan to pay off existing debt includes or encapsulates working capital requirements.

He failed to explain precisely the purpose of the loan, he could not satisfactorily explain the purpose of $350,000 whether it was for settling previous debts or was for working capital requirements; if it was for payment of old debts, then, it ceased to be for working capital.

On the aspect of surety, he agreed that the surety agreements violated section 12 of the Money Lending and Rates of Interest Act [Chapter 14:14] but insisted that they are valid.

The defendants, after signing the 2 November 2015 loan agreement, did not provide securities to cover the new loan.

On the aspect of the in duplum rule schedule, the witness computed the figures starting from 1 October 2015 and did not commence on 2 November 2015. The calculation patently included past debts and recapitalised the interest and he could not answer the question put to him, whether it was not proper to calculate the figures with effect from the date of the new loan.

He denied that the amount due to the plaintiff is at least $108,000 however the entries on the bank statement were debited based on the new loan not on the old debts.

He also admitted that the acknowledgment of debt, on p9 of the plaintiff's bundles was prepared by the Bank using a blank form which is later completed by the customer and the customer provides handwritten information to an existing format and the figure on the acknowledgement of debt $377,499=70 was written by the plaintiff.

He had difficulties of explaining the signature on the acknowledgment of debt.

The witness was referred to p6 of the bundle by counsel for the second defendant and asked to comment on the aspect of the declaration by the plaintiff, that, the plaintiff's claim is based on the 2 November 2015 agreement and no other, and he agreed.

He agreed with the second defendant's defence lawyer that the whole cause of action is premised on the 2 November 2015 agreement.

He agrees further that the $350,000 was for working capital.

He could not, however, agree that on 30 December 2015 the first defendant paid off the borrowed $350,000 clearly acquitted by the narrative.

He confirmed that the 2 November 2015 agreement is a stand-alone agreement and cancels all previous facility letters.

On the security and mortgage bonds, he concurred with counsel for the second defendant, that, the amounts of $437,500 was not registered for the 2015 November loan agreement but were meant for loans for 2013.

The mortgage bonds were executed for the 2013 agreement not for the 2 November 2015 agreement.

There was no accompanying resolution by the second defendant authorising the third defendant to represent the second defendant in any capacity, yet the 2013 agreement was totally distinct from the 2015 loan agreement.

The resolution captured on p70, the resolution by the second defendant's directors, was prepared by the plaintiff Bank and it does not authorise a power of attorney to pass a mortgage bond. It also does not provide for registration of a continuing covering bond, nor does it identify any property which is going to be covered by the mortgage bond.

Relating to the causa of the mortgage bond, he admitted that the second defendant was not indebted to the plaintiff.

On p99 of the record, it is clear that the second defendant was not granted any loan by the plaintiff and the $375,000 was not loaned to the second defendant by the plaintiff.

On p105, the clauses on the surety bonds do not reflect the truth about the entire transactions, the witness confirmed under cross-examination, because it appears that the surety bond was passed by the debtor itself.

The witness does not know as to who signed the documents and was not there when such documents were signed.

He was at pains in marrying the documents prior to November 2015 with the 2015 loan agreement which is the cause of action for the plaintiff.

He sought to rely on the clauses of the mortgage bond which speak of continuing cover and failed to explain the practicality of clause 12 of the 2 November 2015 agreement.

The witness had difficulties to explain what transpired relating to figures and signature on documents and legality of the documents contained on the plaintiff's bundle.

He did not impress as a good witness, moreso when he was subjected to a protracted cross-examination by the defendants legal practitioners. He did not fare well in evidence in chief and under cross examination.

He did not know much, even on basic issues of practices and interpretation of a simple loan agreement.

If clause 12 of the loan agreement cancelled all past agreements, how can the witness resort to previous debts to calculate the capital debt?

How can the witness “confirm” a loan facility after a month from the date the loan was signed and then enter into its own books the inscription “loan repayment $350,000?”

The capital sum of $373,000 keeps changing and no comprehensive statement to explain that continuous change of figures was produced and no good explanation by the plaintiff's witnesses was proferred.

This court cannot prepare a contract for the parties, it will interpret what is on paper and draw conclusions from such.

The duty to clarify the terms of the agreement lies with the plaintiff through its witness; Mr Gunundu left a lot of issues hanging.

The second witness to be called by the plaintiff was Mr V.S. Nyangulu, a registered legal practitioner, a Conveyancer and Notary Public.

He was conveyancer in the registration of the second defendant's first and second mortgage bonds (numbers 1557/13 and 1655/13) in favour of the plaintiff.

According to the witness, valid and proper resolutions were passed authorising him to attend to the bond registration process which was executed by the second defendants representatives. He added, that, all due process was followed pertaining to the registration of the mortgage bonds and there is no legal basis for their setting aside.

The witness also pointed out, that, on instructions, the Bank would normally send an e-mail stating that it wants to have a bond registered by him; the Bank will forward the copy of the title deed then he prepares the relevant papers. He would then prepare a power of attorney to pass a bond, a resolution by the company borrower, and send the papers back to the client Bank via email.

The Bank will download the documents, print them out, and send to client borrower for signing.

After all the papers are signed, the Bank submits them, together with the requisite on original title deeds, to the conveyancer who then lodges them with the Registrar of Deeds.

He is the one who prepared and registered all the documents on p294 of the record and the one on p293. Otherwise, all the other processes were done by the plaintiff.

He is the one who prepared the power of attorney which he filed with the Registrar of Deeds, including the mortgage bond on p303. He also prepared the resolution accompanying the power of attorney.

He admitted that the documents before the court, attached to the plaintiff's bundle, are mortgage bonds and not surety mortgage bonds; however, they are relevant to the loan under consideration and they are a continuous cover, the borrower will continue to draw money from the lender, and, according to Mr V.S. Nyangulu, paragraph 2 of Schedule of the Mortgage Bond provides for a continuing cover.

After the witness evidence, counsel for the first, third, fourth, fifth, sixth and seventh defendants did not have questions to the witness.

Counsel for the second defendant questioned the witness about the legal requirements of a mortgage bond as well as surety bonds, more particularly on the aspect of the causa which can either be a loan or a surety.

The witness acknowledged, that, the causa on both documents was not accurately captured and admitted that once the causa is defective the entire document is a nullity.

He was also put to task on the authenticity or otherwise of a power of attorney and/or a resolution and again admitted that the documents before the court had shortcomings.

A power of attorney must accurately describe the causa and prepared by an authorised person for a specific purpose. The resolution of a company must be prepared and signed by the appropriate agents and Directors of the body corporate.

The power of attorney on p293, the witness admitted, was not authorised. He also admitted that the second defendant, as a company, cannot execute any document and has to do that via an agent by power of a resolution and name a natural person, and, the plaintiff has failed to prove all these essential elements.

He further acknowledged, that, the power of attorney on p293, which authorized to pass a mortgage bond in the sum of $375,000 becomes the causa to pass a mortgage bond and not to pass a surety mortgage bond.

On p302 of the record, the witness does not know the identity of the person who executed the document, and, the power of attorney at p293 does not pass the test of a valid document.

At p294, the mortgage bond itself on the causa, the identity of the debtor is not correct; one cannot be both surety and borrower.

On p295, the declaration, which is the basis of the acknowledgment of debt, is falsely stated. Both the declaration and the causa are incorrect.

The effect is that the documents are a nullity and also subsequently invalidates the mortgage bond.

The witness also admits, that, on p302 of the record, authority that is given to a legal practitioner to pass a mortgage bond and not a surety mortgage bond. He also admitted on p303 the debtor shown there is not the correct one. The same applies to the declaration on p309. Both are invalid. He finally admitted that the power of attorney had shortcomings that go to the root of the documents.

The effect of the cross examination completely resulted in the destruction of the mortgage bonds, surety bonds, and requisite powers of attorney to pass mortgage bonds, more particularly, relating to the 2 November 2015 loan agreement.

The plaintiff then closed its case.

The first and third to seventh defendants indicated that they wished to make an application for absolution for instance. The second defendant also made the same indications.

In their application for absolution the first and third to seventh defendants argue that the issues for determination in this mater are:

(i) Whether or not the plaintiff led sufficient evidence, on the face of it, to establish its case against the defendants in respect of the pleaded cause of action.

(ii) Whether or not the plaintiff's evidence prima facie established valid sureties and mortgage bonds for that pleaded cause of action.

The cause of action pleaded by the plaintiff, the defendants submitted, against the first defendant is that in or about November 2015, at Harare, the plaintiff and the first defendant entered into a loan agreement in terms of which the plaintiff loaned and advanced to the first defendant the amount of $373,000 through the first defendant's operating account with the plaintiff and that the first defendant defaulted on making due and punctual repayment in terms of the agreement resulting in the first defendant owing the total sum of $389,360=72 made up of the capital sum of $361,034=23 and interest of $28,246=49.

The cause of action against the second and seventh defendants was pleaded as arising out of them having bound themselves jointly and severally, as sureties and co-principal debtors with the first defendant for the due payment of any and all monies due to the plaintiff by the first defendant under the loan agreement.

The plaintiff attached to its summons a statement of account pleaded to reflect the transaction history of the loan account. That statement of account showed that on 15 November 2015 the plaintiff credited the first defendant's operating account with the amount of $350,000 described as “loan draw down” under reference number LD 1532 460482, and, further, on 30 December 2015 the operating account was credited with the same amount of $350,000 described as “payment of principal” under the same reference number LD 1532460482.

The defendants submit, that, the net effect of these entries was to restore the first defendant's previous overdrawn overdraft facility.

The plaintiff also attached copies of surety agreements with the third to seventh defendants all of which predated the pleaded loan agreement having been made:

(a) By third defendant on 25 February 2011;

(b) By fourth defendant on 25 February 2011;

(c) By fifth defendant on 25 February 2011;

(d) By sixth defendant on 25 February 2011;

(e) By seventh defendant on 25 February 2011;

Further, the plaintiff's cause of action against the third and fourth defendants, the plaintiff attached mortgage bond numbers 2416/2011 and 4889/2011, dated 19 April 2011 and 4 August 2011 respectively, by the third and fourth defendants against a property they co-own as a certain piece of land situate in the District of Salisbury, called Stand 7 Greencroft Township Ascot of Subdivision A and B of Mabelreign measuring 2392 square metres.

The respective mortgage bonds contain the same causa clause stating that “the Appearer” declared that whereas that mortgagors have been granted certain loan credit and/or other facilities by NMB Bank Limited in respect of the mortgage bonds.

The two mortgage bonds also contain the same declaration stating that “the Appearer hereby acknowledged the mortgages to be truly and lawfully indebted and held firmly bound into and on behalf of the Bank in the capital sum arising from and being money lent and advanced or to be lent and advanced or re-advanced.”

The defendants submitted, that, Cuthbert Gunundu contradicted in material respects the particulars of the plaintiff's claim as pleaded and as amplified by the documentary evidence attached to the summons and declaration.

Under cross-examination by the defence, the witness insisted that the loan agreement was not to finance the first defendant's working capital needs but to refinance existing indebtedness; he could not, however, produce the written application made by the first defendant to refinance existing debt.

To Mr Gunundu, the loan described in the agreement of 2 November 2015 as being to refund working capital requirements meant the same thing as the refinancing of existing debt, and, further, that the narration on 31 December 2015 (there was debit entry of payment of principal) was a mere confirmation of the loan amount which had been credited on 20 November 2015.

According to the defendants, the documentary evidence produced by the plaintiff shows that the loan amount was repaid and narrated as such on 31 December 2015.

The defendants further submitted that the 2 November 2015 loan agreement was repaid and what may be owed to the plaintiff, by the first defendant, may be from the old debt.

The defendants argued that the plaintiff is estopped from disputing that the loan advanced on 2 November 2015 was repaid on 31 December 2015 and cited cases for that submission.

Similarly, the plaintiff is estopped from disputing that the loan was for funding the first defendant's working capital requirements.

The defendants went on to argue, that, the plaintiff cannot claim the amount of $361,034=23 as capital arising out of the loan agreement of 2 November 2015 because only $350,000 was credited to the first defendant's account under the loan agreement and the rest of the amount up to $361,034=23 relates to monies advanced earlier in terms of prior credit facility agreements otherwise not pleaded as part of the plaintiff's cause of action.

The amount of $361,034=23 being claimed relates to money advanced earlier than 2 November 2015 in terms of some other agreements, which amount clearly includes both old capital and old interest in circumstances where the plaintiff has not provided the in duplum schedule relating to those agreements.

The defendants also argue, that, the acknowledgement of debt, dated 6 November 2015, does not take the plaintiff's case any further.

In the declaration, the plaintiff has not pleaded any cause of action founded on the acknowledgement of debt. Secondly, as an instrument of debt, the acknowledgement of debt does not bind the first defendant because no evidence was led as to any resolution of the first defendant authorizing the acknowledgement, the acknowledgement does not bear the name of any official of the first defendant authorised to execute it, and who so executed it, and the acknowledgement was not executed by any official of the first defendant authorised or otherwise as it does not bear any such official signatures.

As a result of the foregoing, the third to seventh defendants argue that the plaintiff has not managed to prove their liability to it of the principal debt given that their liability is pleaded and arising out of them having stood as surety to the first defendant's indebtedness.

As the application for absolution relates to the registration of continuing covering mortgage bond which was not outlined, the third to seventh defendants submitted that the plaintiff produced a Board resolution dated 21 May 2012 which allegedly authorized it to register a mortgage bond against the second defendants property; that authority was not for a continuing covering mortgage bond.

None of the defendants ever authorised the plaintiff to register a continuing covering mortgage bond. The plaintiff was only authorised, by the surety mortgage bond, to register just one surety mortgage bond in respect of the loan that was advanced to the first defendant in 2012 and not any time thereafter.

The plaintiff's purported rights, arising from the registration of a continuing mortgage loan that was not authorised, cannot be saved from the inevitable consequences of invalidity; the defendants argued and they cited Elsie v Johnson ZW SC49-17.

The sureties executed by the third to seventh defendants were all executed on 25 February 2011 in respect of some facility arrangement availed to the first defendant in 2011 but in respect of which the plaintiff gave absolutely no evidence.

The plaintiff seeks that these sureties be held to bind the third to seventh defendants in respect of the loan agreement of 2 November 2015.

The defendants argued, that, the surety agreements cannot found a valid cause of action against the third to seventh defendants on account of the fact that having been executed on 25 February 2011 the underlying indebtedness arising out of them, as of that date, prescribed three years after 25 February 2011, that is, on 25 February 2014 by virtue of section 15(d) of the Prescription Act [Chapter 8:11].

The fact that the surety agreements are invalid because they contravene section 12 of the Money Lending and Rates of Interest Act [Chapter 14:14] in that they did not state the amount actually lent to the borrower.

Thirdly, the fact that the plaintiff did not obtain the consent of the third to seventh defendants when the terms of the first defendants indebtedness were materially altered when the plaintiff and the first defendant entered into the loan agreement of 2 November 2015 which was materially different from the overdraft facilities in respect of which they were or equally given in 2011.

On the issue of mortgage bonds, the third to seventh defendants submitted that a mortgage bond which contains a false causa and a false declaration is invalid, of no force or effect, and unenforceable; they referred the court to MHISHI M.L a Guide to the Law and Practice of Conveyance in Zimbabwe, 2004…,.

Mr Nyangulu did not refer to mortgage bonds executed over the property of the third and fourth defendants.

However, the defendants urge the court to equally apply the principle of the law relevant to the third and fourth defendants property which were executed or registered by Mr Sobusa Gula Ndebele who was not called by the plaintiff to give evidence.

The third to seventh defendants contend, that, the mortgage bonds relied upon in respect of third and fourth defendants are the same as those relied upon as against the second defendant.

Both bonds contain false causa and false declaration since they state that they are for monies lent and advanced to the third and fourth defendants when it is common cause that no monies were lent and advanced by the plaintiff to the third and fourth defendants.

Hence, the third and fourth defendants are that the mortgage bonds that were registered by Mr Gula-Ndebele, at the behest of the plaintiff or in favour of the plaintiff, as against the third and fourth defendant's Mabelreign immovable property, are invalid and of no force or effect and unenforceable against the two defendants.

The bonds allegedly also contravene section 45 of the Deeds Registries Act [Chapter 20:05] in that even therein there are continuing bonds, the third and fourth defendants liability under each of them is uncapped.

In any event, the unlimited surertyship agreement from which they are founded is contrary to public policy for its attempt to provide an unlimited surety.

The first and third to seventh defendants pray for absolution and also pray for the cancellation of the two (2) mortgage bonds registered against their Mabelreign property.

The second defendant also applied for absolution, and, in addition, it prays for the grant of its counter claim at the close of the plaintiff's case on the basis that the facta probanda has been resolved in its favour at the close of the plaintiff's case, and, as such, the second defendant believes that there is no need for evidence to establish the same.

According to the second defendant, the plaintiff's evidence has established the following:

1. That there was resolution to pass a mortgage bond in respect of the first bond;

2. That both mortgage bonds are generally covering bonds as opposed to surety mortgage bonds;

3. That the causa is money lent and advanced;

4. That the plaintiff never in fact lent and advanced any money to the second defendant;

5. That the causa in respect of the bonds is in fact false; and

6. That one cannot be a surety for one's own debt.

The second defendant further added, that, the plaintiff relies on the mortgages. The plaintiff had the onus of establishing that the mortgages were complete and regular on the face thereof. An incident of this onus was the duty to begin. The plaintiff failed to discharge this onus, it meant that the only material before the court is the second defendant's admitted claim.

The second defendant prays for a judgment in its favour.

The second defendant associates itself with the first and third to seventh defendants facts laying the basis for the application for absolution, inclusive of the submissions made by the first and third to seventh defendants.

However, the second defendant added that the plaintiff's case is that it entered into a facility agreement. That agreement resulted in the first bond, which was intended to be a surety mortgage bond.

The truth, according to the second defendant, is that no surety mortgage bond was registered, but a continuing general covering bond predicated on money lent and advanced.

It is common cause that no money was lent and advanced. The plaintiff never related with the second defendant.

The plaintiff testified, that, the first arrangement was not honoured; the result was a refinancing agreement, but, from the evidence led by the plaintiff, it did not consult the second defendant on the plaintiff's own case, there was novation, but it was novation without recourse to the surety discharges, the surety, and all security.

In any event, the plaintiff admitted that a new arrangement came into place, it would therefore not sue on the old arrangement.

On the face of the documentary evidence, the money advanced to the principal debtor was paid off within just over a month of the advance. The second defendant contends that the net effect of the evidence on the principal debt and alleged sureties is:

(a) The agreement between the plaintiff and the principal debtor was novated;

(b) The plaintiff's claim had been compromised as between the plaintiff and the principal debtor;

(c) The obligations between the plaintiff and the principal debtor were materially and prejudicially altered;

(d) There was prejudicial extension of time within which to meet the alleged conditions of the contract as between the plaintiff and the principal debtor;

(e) There was prejudicial agreement not to enforce as between the plaintiff and the principal debtor.

A guarantee extends to the obligations which flow from the contract itself, the suretyship agreement could not apply to that new agreement - a novation by the agreement between the parties.

The plaintiff's claim was grounded on the fact, that, this novation agreement between the plaintiff and the principal debtor was not effected as desired, but, a novation releases the surety.

The plaintiff is opposing the application for absolution.

The plaintiff submits that its claim against the first defendant is based on a credit facility agreement dated 2 November 2015. The amount available under the agreement was not exceeded US$373,000 and the repayment made was provided.

The credit facility cancelled all the previous agreements between the plaintiff and the first defendant and is the only source of any obligations currently due to the plaintiff by the defendants.

The plaintiff further contends, that, the first defendant was indebted to the plaintiff from a previous facility at the time the agreement dated 2 November 2015 was executed.

Mr Gunundu told the court the facility was availed to the first defendant to settle the previous debt which was now due. The plaintiff cites clause 12 of the agreement (2 November 2015) which cancelled all previous agreements.

It argued, that, the defendants are estopped from alleging the existence of any other valid agreement apart from this one - the cause of action.

According to the plaintiff, the credit facility dated 2 November 2015 was executed to enable the first defendant to settle a previously existing debt.

On the issue of clauses 2 and 3 of the agreement which states that the facility is for working capital requirements, the plaintiff submitted, that, there is a standard definition of the term 'Working Capital Requirements'.

To the plaintiff, such a term includes debt refinancing; the debtor would be freed from the obligation of settling a debt at once, thereby releasing funds for working capital.

The plaintiff admits that it credited the first defendant's account with a sum of US$350,000 on 20 November 2015. These were the loan proceeds from the agreement dated 2 November 2015. The same account was debited with a sum of US$350,000 on 30 December 2015 under the narration of “payment of principal”. To the plaintiff, it was a confirmation of the loan and the first defendant's debt under the agreement dated 2 November 2015.

The plaintiff insists that it has established a case on what it can and should succeed. It moves the court to put the defendants to their defence and explain their offer of $108,000, $250,000 and $292,000.

The plaintiff also contend, that, the acknowledgment of debt is not the cause of action but was of requirement of 2 November 2015 agreement and the acknowledgment reflects that the first defendant's name signed off on the acknowledgment, it is witnessed, and the witnesses are known, the amount of debt is reflected. The third defendant (Rodney Gallaghan) has to explain why he signed off the acknowledgment by writing “Formscaff (Private) Limited” and the witnesses have to explain.

On the issue of the third to seventh defendants suretyship agreements, the plaintiff argued that even though the suretyships were executed in 2011 they all cover current and future debts, they cover unlimited amounts, and they have unlimited lifespan hence the suretyship agreements are valid and enforceable.

To the plaintiff, the issue of prescription does not arise at all and the date of execution does not matter.

The plaintiff adds, that, section 12 of the Money Lending and Rates of Interest Act does not apply to the suretyships; they are not instruments of debt.

The plaintiff dismisses the defendants suggestion by all sureties, that, they should be released from suretyships because there was a material variation of the principal obligation.

It says that this point was not pleaded by the defendants and thus should not be considered.

The plaintiff urges the court to put the defendants to their defence so as to explain the signatures on the powers of attorney; the plaintiff makes the same averments relating to powers of attorney and the resolutions.

It wants the defendants to explain as to who signed the documents and relies on section 12 of the Companies Act.

The plaintiff further contends, that, the defendants attack on the causa on the mortgages bonds is misplaced and insist that the mortgage bonds are valid, and, further, submit that it may not be necessary to state the cause of debt in a bond.

It argues, that, there was no contravention of section 45 or any other provision of the Deeds Registries Act.

The mortgage bonds are continuing covering security.

To the plaintiff, clause 2 of each bond provides for continuing cover for the second, third, and fourth defendants liability to the plaintiff however arising, whether directly or indirectly. That would cover the second, third, and fourth defendants suretyships and such cover is to the value of each bond.

As for the counterclaim in respect of the second, third, and fourth defendants, the plaintiff submitted that the counter-claim cannot be granted in the absence of the establishment of their cause; they have to give evidence.

As a result, the plaintiff prays that the application for absolution be dismissed with costs since it is frivolous and misplaced.

An application for absolution from the instance is akin to and stands on much the same footing as an application for discharge for an accused person at the close of the case for the prosecution: see Gasycoyne v Paul & Hunter 1917 TPD 17 at 173; Supreme Service Station (1969) (Pvt) Ltd v Fox and Goldridge (Pvt) Ltd 1971 (1) ZLR (A)…,.; Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S)…,.

In the case of Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) ZLR (A) the court summed up the test in the following terms:

“The test therefore boils down to this. Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact and cannot be defined with any exactitude than by saying that it is the sort of mistake a reasonable court might make, a definition which helps not at all.”

See also Dube v Dube 2008 (1) ZLR 326 (H)…,.

In United Air Charters v Jarman 1994 (2) ZLR 341 (S)…, GUBBAY CJ stated:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application at the close of his case, if there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”

See also Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S)…,.; Manyange v Mpofu and Ors 2011 (2) ZLR 87 (H)…,.

Given the summary and extraordinary nature of absolution from the instance, the court will, where possible, lean in favour of continuing the case and hearing the defendant's evidence rather than dismissing the plaintiff's claim: see Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)…,.; Bailey N.O. v Trinity Engineering (Pvt) Ltd & Ors 2002 (2) ZLR 484 (H)…,.; Nestros v Innscor Africa Ltd 2007 (2) ZLR 267 (H)…,.; Manyange v Mpofu and Ors 2011 (2) ZLR 87 (H)…,.

In MC Plumbing (Pvt) Ltd v Hualong Construction (Pvt) Ltd 2015 (1) ZLR 134 (H) CHIGUMBA J succinctly outlined the test for absolution thus:

“My interpretation of the test to be applied to the question of whether to grant absolution from the instance to a defendant at the close of plaintiff's case is as follows:

1. The first question to be considered is whether there is any evidence, at the close of the plaintiff's case, upon which a court, directing its mind reasonably to such evidence, could or might find for the plaintiff?

2. The second question to be asked is whether there are any special considerations or reasons why the court should reject the evidence adduced on behalf of the plaintiff (for example, glaring inconsistencies or unacceptable variance with the pleadings filed of record).

3. The third question that may be asked is whether the plaintiff has failed to adduce any evidence or adduce insufficient evidence to establish an essential element of its claim.

4. Lastly, whether an overall assessment of all the evidence adduced on behalf of the plaintiff, the pleadings filed of record, the annexures, the exhibits, all the discovered documents, coupled with the viva voce evidence, fall short of establishing the plaintiff's case on the face of it (prima facie).”

The issues for determination in this application for absolution from the instance are:

(a) Whether or not the plaintiff led sufficient evidence, on the face, to establish its case against the defendants in respect of the pleaded cause of action.

(b) Whether or not the plaintiff's evidence prima facie established valid sureties and mortgage bonds for that pleaded cause of action.

(c) Whether the defendants counterclaims succeed once the application for absolution from the instance is granted.

The cause action pleaded by the plaintiff against the first defendant, that, in or about November 2015, the plaintiff entered into a loan and advanced to the first defendant the amount of US$373,000 through the first defendant's operating account with the plaintiff, and, that, the first defendant defaulted in terms of the agreement resulting in the first defendant owing the total sum of $389,360=72 made up of the capital sum of $361,034=23 and interest of US$28,246=49.

As already paraphrased herein above in the foregoing, the cause of action against third to seventh defendants was pleaded by the plaintiff as arising out of the five of them having bound themselves jointly and severally, as sureties and co-principal debtors, with the first defendant for the due payment of any and all monies due to the plaintiff by the first defendant under the loan agreement.

The 2 November 2015 loan agreement provided that the loan was repayable over a three year period expiring on 31 January 2018; the first defendant liquidating the debt in monthly installments.

Central to the application by the defendants is the statement of account reflecting the transaction history of the loan account. On that statement, shows that on 15 November 2015 the plaintiff credited the first defendant's operating account with the amount of $350,000 described therein as “loan drawdown” and on 30 December 2015, the operating account was credited with the same amount of $350,000 described as “payment of principal” under the identical reference number LD1532460482.

The problem arises as to the purpose of the $350,000.

The plaintiff's star witness, Mr Gunundu, told the court that the facility was availed to the first defendant to settle the previous debt which was now due, and, to the plaintiff, this is legally permissible; it cited the case of Commercial Bank of Zimbabwe v MM Builders and Suppliers (Private) Limited & Ors 1996 (2) ZLR 421 at 466D-E where GILLESPIE J stated;

“This is not necessarily to say that the parties are unable, ex post facto, that is once the 'debt' is called up to agree a novation of the debt.

That is, for instance, to contract a new loan in terms of which money is advanced by the creditor in an amount of the outstanding capital and accrued interest, up to the double, in order to permit of the repayment of the outstanding indebtedness; this new debt would then be repayable on agreed terms. This would be a true capitalization of the interest on the previous debt. It is the practice of Merchant Banks.

It is in conformity with the old Roman agreement as to anticismus.

If concluded knowingly by freely contracting parties, when the existing debt is called up, I can see no objection to that.

Whereas, an agreement in advance to waive the rule leaves the debtor exposed to precisely those perceived evils which the rule is formulated to combat; a novation after the event permits the debtor the informed choice of increasing his possible indebtedness or of taking advantage of the cessation of accrual of interest.”

On page 422C–D of the headnote the following appears:

“On the question of bank overdrafts, it was argued, per the Bank, that the in duplum rule did not apply to overdrafts. The basis of the argument was that each cheque drawn against the overdraft facility was in effect a separate loan, as is every debt arising out of charges, ledger fees, commission and the like. Each such 'loan' was totalled daily and interest accrued on the outstanding amount. At the end of the month, the interest itself was added to the total indebtedness. The interest was itself thus a loan and thus effectively capital. Alternatively, because interest is capitalized monthly it loses its identity as interest and becomes capital.

This argument was rejected on the grounds that debits from interest cannot be regarded as loans to customers and are jurisprudentially quite distinct from debits for advances or charges.”

Counsel for the plaintiff, in citing the above case, equated its scenario with facts of this matter, more particularly relating to the 2 November 2015 agreement.

I do not agree to that comparison.

The 2 November 2015 loan agreement was not dealing with a novation. The 2 November 2015 agreement pertains to the sum of $350,000 for working capital. There is no capitalization of interest mentioned in the 2015 November agreement which would have justified comparison of this matter to Commercial Bank of Zimbabwe v MM Builders and Suppliers (Private) Limited & Ors 1996 (2) ZLR 421.

The comparison is misplaced.

If the 2 November 2015 agreement was dealing with capitalization of interest, the agreement should have contained clauses to that effect, and the amount of such interest would have been computed and the extent of capitalization specifically spelt out.

The cause of action by the plaintiff relates to $350,000 loaned to the first defendant on 2 November 2015 and interest of US$28,246=49 calculated from the date of the loan.

Why would the plaintiff claim further interest if the interest was capitalized on 2 November 2015?

On the debiting of $350,000 on 30 December 2015, under the narration of “payment of principal” Mr Gunundu for the plaintiff testified, that, that entry was not a payment by the first defendant but a confirmation of the loan and the first defendant's debt under the agreement dated 2 November 2015.

The plaintiff's replication to the defendants plea, on page 26 of the record, does not show that the entry of $350,000 in the plaintiff's statements is a confirmation of the loan; the word confirmation appeared for the first time during hearing, when Mr Gunundu was giving evidence.

The first defendant, in its plea, had pleaded that it had repaid $350,000 on 30 December 2015 and the plaintiff, in its wisdom, did not see the importance of addressing that averment in its replication.

Why would the plaintiff wait for a month plus other days to 'confirm' the first defendant's loan? Why wait until 30 December 2015?

The witness, Mr Gunundu, as already outlined in the summary of the plaintiff's evidence above, had difficulties to explain this aspect in examination in chief and during cross-examination.

If it was a confirmation, why did not the plaintiff, on its entry, write the word 'confirmation' than to write 'repayment' which when ordinarily looked at by a lay person would mean that the first defendant repaid the $350,000.

I am convinced by the first defendant's submission that it repaid the $350,000 and the plaintiff's own books of account or statement conspicuously confirms that payment which tallies with the first defendant's plea.

That payment was made barely two (2) months after the date of the agreement and there was no need for calculation of the cost of the loan in the form of interest charges.

I do not agree with the plaintiff's contention that it was just a credit entry.

In any case, the evidence of Mr Gunundu, on that aspect, left a lot to be asked especially when the court looks at the narration accompanying that entry as well as the ledger entry number LD/532460482 bearing the amount of $350,000.

The evidence adduced on behalf of the plaintiff, the pleadings filed of record, the annexures, the exhibits, the viva voce evidence, the highlighted inconsistencies, and contradictions in the testimony of Mr Gunundu, fall short of establishing the plaintiff's case on the face of it.

The plaintiff submitted, that, the third to seventh defendants executed surety agreements, binding themselves jointly and severally as sureties and co-principal debtors with the first defendant for payment of the first defendant's debts to the plaintiff.

The plaintiff admits, unreservedly, that the suretyships were all executed well before the 2 November 2015 agreement - that was in 2011; but, however, avers that the sureties covered current and future debts, they covered unlimited amounts, and have an unlimited lifespan. As such, they were all valid and enforceable.

To the plaintiff, it does not see the question of prescription arising at all.

In this matter, the plaintiff further argues, that, the principal obligations, the credit facility dated 2 November 2015, the debt, will fall due on 25 November 2016. It is also argued by the plaintiff that section 12 of the Money Lending and Rates of Interest Act [Chapter 14:14] does not apply.

The suretyships signed by the third to seventh defendants were executed before the 2 November 2015 loan agreement was entered into, they do not form an instrument of debt, and do not have to comply with section 12 of the Money Lending and Rates of Interest Act, the plaintiff submitted.

On the other hand, the first and third to seventh defendants submitted, that, the sureties were all executed on 25 February 2011 in respect of some facility arrangement availed to the first defendant in 2011 but in respect of which the plaintiff seeks that these sureties be held to bind the third to seventh defendants in respect of the loan agreement of 2 November 2015.

They raise prescription computed from 25 February 2011 and expiring on 25 February 2014 by virtue of section 15(d) of the Prescription Act.

The third to seventh defendants also raise the invalidity of the sureties because they contravene section 12 of the Money Lending and Rates of Interest Act which provides that:

“Section 12(1) Every instrument of debt, other than a mortgage bond or general covering bond executed within Zimbabwe in respect of a loan of money, shall separately and distinctly set forth:

(a) That it is executed for money lent; and

(b) The amount actually paid to the borrower; and

(c) The rate of interest which is to be charged in respect of the loan.”

Section 12(2) of the Money Lending and Rates of Interest Act makes it a criminal offence for non-compliance.

It is clear that the 2011 sureties do not relate to the 2015 loan agreement, and, the alleged 2011 sureties which the plaintiff seeks to rely on for the 2015 agreement do not apply.

The amounts covered in the sets of documents, the sureties, and the loan agreement do not match. The sureties do not have a corresponding applicable rate of interest. The essential term of the suretyships have to be identified, included in writing, and these include the nature of the debt to be secured, its extent, and, these have to be embodied in the document, which is the suretyship.

In this matter, such a document or covenant is the 2011 suretyship agreement signed by the third to seventh defendants which apparently existed well before the 2015 loan agreement.

I conclude, that, the 2011 suretyships, signed by the third to seventh defendants, do not relate to the 2015 loan agreement.

I am also persuaded by the third to seventh defendants argument that section 15(d) of the Prescription Act applies to the suretyships.

CF FORSYTH & J T PRETORIUS, in Caney's The Law of Suretyship, 6ed…, had this to say:

“Prescription of the principal debt will extinguish that debt and thereby release the surety, this follows from the principle that the suretyship is accessory to the principal debt and that after its extinction there is nothing to support the suretyship.”

There is no averment in the plaintiff's pleadings that the first defendant failed to pay the principal debt loaned to it in 2011 leading to the third to seventh defendants signing those contracts, and, that the alleged breach was cured by the first defendant in entering into a fresh loan facility in 2015 so as to have a continuing cover emanating from the 2011 suretyships.

A suretyship must be for a definite period laid upon conditions agreed upon by all the parties and not to be inferred from previous documents at the option of a creditor.

The plaintiff also confronted challenges on the aspect of mortgage bonds.

Mr Nyangulu, the second witness called by the plaintiff, was placed in an embarrassing position when he was asked to comment on the legal effect of a false causa or false declaration in a mortgage bond: see MHISHI M.L. A Guide to the Law and Practice of Conveyancing in Zimbabwe, 2004…,.

Mr Nyangulu gave testimony in respect of mortgage bonds he had executed over the property of the third and fourth defendants. Those that were registered by Mr Sobusa Gula-Ndebele, and that witness, was not called.

However, the mortgage bonds contain false causa and false declarations. They refer to money lent and advanced to the third and fourth defendants, yet, no such money was lent and advanced to the third and fourth defendants by the plaintiff; hence, the third and fourth defendants Mabelreign immovable property's mortgage bonds are invalid.

I am persuaded by the third and fourth defendants argument that they also contravene section 45 of the Deeds Registries Act in that neither of them is uncapped.

The unlimited suretyship agreement from which they are founded is contrary to public policy for its attempt to provide an unlimited surety.

The second defendant agrees with the submissions made by the first and third to seventh defendants on the validity and legality of the suretyships and the mortgage bonds.

I have considered all the submissions made by the defendants and I am persuaded by them.

I am convinced, that, even though the plaintiff argues that there was novation, which have already been dismissed, novation without recourse to the surety discharges the surety and all security.

In any case, the 2 November 2015 loan agreement, clause 12 thereto, provides cancellation of all previous facilities and does not put a proviso or otherwise relating to the previous suretyships and/or mortgage bonds.

The plaintiff admitted, that, a new arrangement came into place and the plaintiff could not sue on the old arrangement.

In any case, the plaintiff's claim had been compromised as between the plaintiff and the principal debtor, the obligations between the plaintiff and the principal debtor were materially and prejudicially altered. There was a prejudicial extension of time within which to meet the alleged conditions of the contract as between the plaintiff and the principal debtor, and, finally, there was a prejudicial agreement not to enforce as between the plaintiff and the principal debtor.

In the matter of Webb v Shell Zimbabwe (Pvt) Ltd 1982 (1) ZLR 102 (SC)…, the court held that however wide and general a guarantee may be, it only extends to the obligations which flow from the contract itself.

As such, the suretyship agreement could not apply to that new agreement which was, in essence, a novation of the agreement between the parties; having entered into this novated agreement, the old obligation and all accessories thereto were destroyed and it was not open to the plaintiff to try to go back to such obligation to hunt for a surety thereto.

The other criticism of the plaintiff covers the power of attorney to register the mortgage bonds, and, Mr Nyangulu admitted to the shortcomings and there is no need to revisit such.

I have also examined the arguments advanced by the defendants pertaining to the counterclaims.

With respect to the third and fourth defendants, they are praying for cancellation of the two mortgage bonds registered against their Mabelreign property, and, the second defendant submits that Rule 437 of the High Court of Zimbabwe Rules lays down the principles to be applied in determining which party in a civil trial shall adduce evidence first.

The second defendant also avers, that, if the plaintiff's claim is dismissed there is no need for evidence to establish the same.

The second defendant goes on to submit, that, there has been a direct admission of the cause of action; the effect of the admission is that the plaintiff (in reconvention) does not have to prove that which is admitted.

In the matter of Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC25-12, MAKARAU JA said that:

“The importance of the admission is that it is thus seen as limiting or curtailing the procedures before the court, in that, where it is not withdrawn, it is binding on the court, and, in its face, the court cannot allow any party to lead or call for evidence to prove the facts that have been admitted.”

The second defendant was entitled to judgment upon the plaintiff's confession of its claim in evidence.

The plaintiff relies on the mortgages.

It had the onus of establishing that the mortgages were complete and regular on the face of them. An incident of this onus was the duty to begin. If it failed to discharge this onus, it meant that the only material before the court is the second defendant's admitted claim.

The second defendant would thus be entitled to judgment.

In Nkambule v Minister of Law and Order 1993 (1) SA 848…, it was stated that:

“In my view, the defendant did not discharge the onus resting on him. I would uphold the appeal with costs and amend the magistrate's order to read as follows: 'judgment is granted in favour of the plaintiff….,.'”

In Rabinowitz & Anor NNO v Ned Equity Insurance & Anor 1980 DFA 403…, the court said that:

“In my view, therefore, the first defendant did not discharge the onus of proving that the death was covered by the aviation endorsement; consequently, the plaintiff's entitled to judgment against the first defendant for the amount claimed.”

It is on this basis that the second defendant, as the plaintiff in reconvention, contends, that, its claim in reconvention is admitted and there is no need to lead evidence on matters that are admitted, and, as such, are common cause or cannot be seriously controverted.

On this point, the plaintiff submitted that the second, third, and fourth defendants have filed counterclaims which cannot be granted in the absence of the establishment of their case.

They have to give evidence.

The plaintiff opted not to cite any case law authority to counter what the defendant had submitted on the aspect of the necessity to call evidence of the plaintiff in reconvention where the defendant in reconvention has only admitted the shortcomings of the suretyships and the mortgage bonds.

Furthermoreso where the principal cause of action by the plaintiff in convention has been dismissed.

All the defendants have laid both factual and legal basis for their application for absolution and prayer for judgments on the counter-claim.

I am satisfied that the plaintiff sued on a cause of action that was discharged in full on 30 December 2015. The current claim is hence both invalid as well as excipiable. The claim was void ab initio.

The plaintiff contends that it has proved a prima facie case.

I do not agree.

A judgment cannot be granted on the basis of a claim and cause of action that ceased to exist.

When the loan arising from November 2015 agreement was fully paid on 30 December, the liability of the principal debtor, arising from that loan, was effectively discharged.

Where the principal debtor is discharged or released, then, the obligation of the surety ceased to exist because a contract of surety is accessory to the main contract: see Kilroe–Daley v Barclays National Bank [1984] ZASCA 90 1984 (4) JA 609…,.

Not even the argument that there was novation or a compromise of the loan agreement for which the suretyships were given can resurrect the plaintiff's dead case because novation or compromise discharges all sureties as well: see SW Adef (Pty) Ltd v Dyke N.O. 1978 (1) SA 9128…,.

In the matter of Gordon Lloyd Page & Associates v Rireira & Anor 2001 (1) SA 88 (SCA)…, it was stated:

“The test for absolution to be applied by a trial court at the end of plaintiff's case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G–H in these terms:

'When its absolution from the instance at the close of plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should or ought) find for the plaintiff….,.'

This implies, that, the plaintiff has to make out a prima facie case in the sense that the evidence relating to all elements of the claim…, to survive absolution because, without such evidence, no court could find for the plaintiff.”

Where the plaintiff has failed to prove a prima facie case against the defendants, on the basis of which the court could or might find for the plaintiff, there is no need to put the defendants on their defence.

There is nothing before the court that warrants the defendants being called upon to rebut.

1. The application for absolution from the instance made by the defendants succeeds with costs.

2. The suretyships in favour of the plaintiff entered into by the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th defendants be and are hereby cancelled.

3. The mortgage bonds passed by the 2nd, 3rd and 4th defendants in favour of the plaintiff, namely, Numbers 2416/2011, 4889/2011, 1557/2013 and 1656/2013 be and are hereby cancelled.

4. The plaintiff to pay costs of counterclaim to the defendants on attorney-client scale.

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills.

The court will briefly look at the points in limine raised by the respondents....,.

I will deal with these preliminary points at once.

The respondents alleged, that, in a bid to arrest the matter after they demanded the money they had given to Mr Makandiwa, Mr Makandiwa undertook, in writing, that he was going to pay all sums as would have been proved to have been offered in a letter marked “B”.

The court was unable to see the veracity of such allegations because the said letter was never attached to the opposing affidavit.

On the mala fide and abuse of court process, the respondents submitted that there are sinister agendas which the applicants hope to pursue.

None have been elaborated as a basis for bringing this application under Rule 75(1) of the High Court Rules; serve to say same would be exposed during cross examination.

This is an appeal against the entire judgment of the High Court delivered on 5 February 2020.

The court a quo held that eighty-five percent (85%) of Number 16 Hawkshead Drive, Borrowdale, also known as Lot 1 of Lot 4 of Lot FA Quinnington situate in the District of Salisbury, measuring 1,2770 Morgen held under Title Deed 3999/96 be awarded to the respondent as her sole and absolute share with the appellant being awarded the remaining 15 per cent share.

The appellant and the respondent married in terms of the Marriage Act [Chapter 5:11] in 1996. Both parties were business partners involved in the property sector. The appellant was into property development and the respondent was into real estate management. Both were directors of a company called Bern-win Development Company.

This company was liquidated, and the parties lost everything.

They were advised, by their lawyers, to separate their business properties from their family assets by forming Trusts.

Consequently, Mai-Kai Property Development Trust was formed in January 2000 and Paradza Trust in July 2000. The beneficiaries of both Trusts were Tsitsi Mutanga, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and Rusiya Mutekenya, who is the appellant's mother.

It was the intention of both parties that Paradza Trust be the asset holding Trust while Mai-Kai Property Development Trust would be the property selling Trust.

The proceeds of the business were pooled together and used to buy assets for the family which were registered under Paradza Trust.

Unfortunately for the parties, their marital relationship broke down and the respondent issued summons for divorce in which she cited irretrievable breakdown of the marriage as the cause for divorce. She further sought an order for distribution of the assets of the parties.

During the proceedings in the court a quo, the parties agreed on all ancillary issues including custody and maintenance of their children save for the distribution of one immovable property which is No.16 Hawkshead Drive, Borrowdale (hereinafter referred to as the property).

According to the appellant, the property was not an asset of the spouses.

He claimed, that, the property belonged to a private company called Brabourn Investments (Private) Ltd and that the company was wholly owned by Brabourn Trust of which the respondent was neither a trustee nor a beneficiary.

The appellant further claimed, that, the reason why the property could not be distributed in terms of section 7 of the Matrimonial Causes Act was that Paradza Trust had failed to raise the purchase price and hence the sale was not perfecta.

He also claimed that it was at that point that Brabourn Trust purchased the shares in Brabourn Investments (Private) Limited.

He however failed to produce evidence to the effect that Paradza Trust had failed to raise the purchase price and that the contract had been cancelled.

On 11 March 2015, the High Court granted part of the claim sought by Valentine Ziswa and his wife Margaret Ziswa (the cross appellants) against Graeme Shaun Chadwick and Landos (Pvt) Ltd (the cross respondents).

The court a quo dismissed the claims of the cross-appellants as against the second cross-respondent in their entirety and granted part of the claims as against the first cross respondent.

The cross appellants seek a reversal of the dismissal orders issued a quo.

The order issued by the court a quo reads as follows:

“In the result, it is ordered that:

1. The plaintiffs claims against the second defendant are hereby dismissed with costs.

2. The plaintiffs claim (a) against the first defendant succeeds only in the sum of $8,808 which the first defendant is directed to pay the plaintiffs.

3(a) The plaintiffs claim (e) partially succeeds to the extent of the 4km LTC Electric cable while the rest is hereby dismissed.

(b) The first defendant shall pay to the plaintiffs the sum of $84,000 being the replacement value of the LTC electric cable removed from the plaintiffs farm.

4. The first defendant shall pay the plaintiffs the sum of $780 being value of labour hired to clear tobacco stalks and related expenses.

5. The plaintiffs claims (b), (c), (d), (f), (g), (j) and (l) are hereby dismissed.

6. Absolution from the instance is granted in respect of plaintiffs claims (h) and (k).

7. The plaintiffs shall pay 20% of the first defendant's costs of suit.”

The first cross appellant is Valentine Ziswa (Ziswa) while the second cross-appellant is his wife, Margaret Ziswa. I will cumulatively refer to them in this judgment as the lessor.

The first cross-respondent is Graham Shaun Chadwick (Chadwick) and the second cross-respondent is Landos (Pvt) Ltd (the Company).

Graham Shaun Chadwick was a director in Landos (Pvt) Ltd, which he also used as his special purpose vehicle or agent to conduct his farming operations on Ziswa Farm (the farm) and on three other surrounding farms, namely, Gijima, Kelvin, and Landos.

On 20 March 2015, Graham Shaun Chadwick filed a defective Notice of Appeal against the cross appellants, which did not indicate the part of the judgment he sought to impugn.

He, thereafter, filed a contested chamber application for condonation and extension of time within which to appeal on 11 January 2018, which was dismissed with costs on 21 March 2018.

The effective disposal of the main appeal in this manner left the cross appeal pending.

On or before 1 September 2008, Valentine Ziswa and Graham Shaun Chadwick entered into a verbal agreement for the lease of the farm and the inventoried equipment. The description, quantities, and state of the leased equipment was recorded in the comprehensive inventory the parties drew in October 2008.

The tobacco season in Zimbabwe generally runs from September to August and sales generally take place between March and June.

Graham Shaun Chadwick was on the farm during the 2008-2009, 2009-2010, 2010-2011, and 2011-2012 seasons (hereinafter called the first, second, third, and fourth seasons, respectively).

On 9 January 2009, Valentine Ziswa and Graham Shaun Chadwick signed a 10-year lease agreement.

On the same date, Valentine Ziswa and his wife (the First Partner) executed a second “Joint Venture Agreement” (JVA) with Graham Shaun Chadwick (Second Partner) for the “long term development” of the farm.

The two agreements were backdated to 1 September 2008.

Graham Shaun Chadwick not only leased the farm and the inventoried property, but, in addition, undertook to erect permanent structures (in each season) of an equivalent value to the seasonal rental payable.

In terms of clause 1 and clause 2, Graham Shaun Chadwick leased “the land, together with all buildings and other permanent improvements and certain immovables” for the ten year period from 1 September 2008 to 31 August 2018 for the purpose of growing “30ha of tobacco, 40ha of maize, 20ha of wheat and any other crop agreed between the parties.”

In terms of clause 3, the rental payable would be “6 per cent on the US$ of the gross turnover of the crops produced on the said land inclusive of bonuses and hailstorm insurances.”

In respect of tobacco, the rent was to be paid into the lessor's FCA by stop order raised at the auction floor, and cash payments were to be made in respect of other crops.

In addition to the rental, Graham Shaun Chadwick would, in terms of clause 4(d), be responsible for the repairs and maintenance of tractors and the inventoried equipment leased to him with effect from 1 September 2008.

Lastly, clause 9 stipulated that:

“This agreement constitutes the entire agreement between the parties, and no representation or undertakings given by one of them to the other of them prior to the execution hereof, and no variation of the conditions hereof, shall have any force or effect unless recorded in writing and executed by the parties hereof.” (The underlining covers the handwritten portions of the otherwise typeset agreement).

The Joint Venture Agreement (JVA) substantially duplicates the lease agreement. Clause 3 thereof reads as follows:

“3. The rent payable by the lessee to the lessor shall be 6 per cent per centum of the gross turnover in respect of the crops produced on the said land, and payment of such rent/lease shall be secured by means of STOP ORDER given by the lessee in favour of the Company against proceeds of tobacco sold through TOBACCO SALES FLOOR. Such PAYMENT shall be executed and registered as soon (sic) may be after the signing of this lease. 31 MARCH, 3 APRIL, 6 END OF JULY. MAIZE 1.5 TON MONTHLY.” (The underlined words and figures are handwritten)

It was common cause that the two agreements are complementary and separate and distinct. The requirements of the Joint Venture Agreement (JVA) were additional to the rental payable.

It was also common cause, that, Graham Shaun Chadwick was an active councillor for the Zimbabwe Tobacco Association (ZTA) for six (6) years and had been its Vice-President for another two (2) years.

He introduced the Zimbabwe Tobacco Association (ZTA) proforma lease and Joint Venture (JV) agreements, and, together with Valentine Ziswa, supplemented and annotated the terms and conditions therein by hand.

Graham Shaun Chadwick grew maize during the first season only and abandoned it in subsequent seasons in preference to the more lucrative tobacco crop. He never grew wheat on the farm.

Graham Shaun Chadwick did not abide by the direct deduction method prescribed in the agreements. He did not disclose to the lessor his prior preferential stop order obligations to the Zimbabwe Leaf Tobacco Company (Pvt) Ltd.

By 10 May 2010, Graham Shaun Chadwick had repaired a weir, put in a pump and generator, laid underground irrigation pipes, erected a centre pivot, paid for the labour for the reconstruction of a burnt down tobacco barn “maintained” all 14 barns by putting in place the necessary appurtenances for curing tobacco, repaired furnaces and sheds, and, at a cost of US$2,700 constructed 11 two roomed staff houses.

By letter dated 22 February 2011, Graham Shaun Chadwick offered to increase lease rental to 8%.

The offer was not accepted.

Instead, the lessor made the counter offer proposed in the detailed draft agreement, which the lessor signed on 13 March 2011.

The counter-offer was, in turn, rejected by Graham Shaun Chadwick.

Between 10 January 2012 and 18 May 2012, the parties failed to amicably resolve the lessor's demands for arrear rentals, maintenance of the leased equipment, and the repatriation of leased property that Graham Shaun Chadwick allegedly took to other farms.

In frustration at the impasse, the lessor sought to exercise a lien over the tobacco produce that was on the farm.

They were, by consent, interdicted by Graham Shaun Chadwick and Landos (Pvt) Ltd, on 24 May 2012 in case No. HC5477/12.

On 10 June 2012, the Ziswas instigated the arrest of Graham Shaun Chadwick for theft of some of the 2008 inventoried property. The complete police docket, compiled by Sergeant N'andu (IO), was produced by consent as exhibit 5.

Sergeant N'andu (the IO) first attended at the farm on 12 June 2012. On 19 June 2012, he conducted a verification or “exit” inventory with Valentine Ziswa and a proxy of Graham Shaun Chadwick, at the direction of the Area Public Prosecutor for Rusape (APP).

By letter dated 2 July 2012, Graham Shaun Chadwick cancelled the lease agreement and immediately vacated the farm.

On 5 September 2012, the Area Public Prosecutor for Rusape declined to prosecute, adjudging the criminal complaint to be a civil dispute.

On 26 September 2012, the lessor issued summons against the defendants claiming an aggregate sum of US$456,699 under 13 heads. These comprised of the following claims:

(a) Arrear rentals of US$64,160 for the fourth farming season;

(b) A refund of rates and levies of US$1,980 paid to the Makoni Rural District Council for the fourth farming season;

(c) The lessor's share of the hailstorm insurance proceeds of US$5,500 in respect of the second farming season;

(d) The outstanding developments for the first three farming seasons, represented by the value of the centre pivot that was removed from the farm, in the sum of US$67,507;

(e) Other enumerated property valued at US$187,707 that was also removed from the farm;

(f) The estimated damages to recovered property of US$15,905;

(g) US$7,600 for the damage to the fence and gates on the farm;

(h) US$15,008 for the repairs to the damaged tobacco barns and flue pipes;

(i) US$780 for removing the fourth season tobacco stalks;

(j) US$26,313 for vandalized overhead water storage tanks, pipes, workers houses, electrical underground cables, dams, pump unit, boreholes, and transformer;

(k) US$15,000 for maize deliveries contractually due to the lessor during the second to fourth farming seasons;

(l) US$4,240 for the tobacco seedlings grown on the farm and sold to other farmers;

(m) US$45,000 damages for loss of income in respect of the 2012/2013 tobacco cropping season caused by the premature and abrupt termination of the agreements.

The lessor made the following contentions:

The two agreements had separate and distinct obligations. Landos (Pvt) Ltd had a direct and substantial interest in the two agreements, and was, together with Graham Shaun Chadwick, therefore liable for the various contractual breaches that gave rise to the 13 claims.

The lessor's documentary and oral evidence established both liability and quantum in respect of claim (a), (d), (e), (f), (g), (h), (j), (k) and (l) at the higher rate of 8 per cent and not at the 6 per cent in the two agreements.

The lessor abandoned claim (m) and conceded that Graham Shaun Chadwick and Landos (Pvt) Ltd be absolved from the instance in respect of claims (b), (c) and (i) on the ground that the lessor had failed to established the due amounts.

Graham Shaun Chadwick conceded that the annotations formed part of the terms agreed by the parties on 9 January 2009.

Counsel for Graham Shaun Chadwick argued, that, the lessor failed to establish both liability and quantum.

He submitted, on the authority of Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (S), that, the oral variation of the rental rate from 6 per cent to 8 per cent in violation of the non-variation clause (Clause 9 of both agreements) of the agreements was inefficacious and invalid.

He also relied on the twin principles of privity and sanctity of contracts enunciated in CHRISTIE: The Law of Contract in South Africa, 6th ed, 2010 Lexis Nexis…, to call for the dismissal of all the claims sought against Landos (Pvt) Ltd.

Counsel, however, conceded that Graham Shaun Chadwick was liable for unpaid rental of US$8,808 for the fourth season and US$36,000 for the LTC line [falling under claim (e)] and not the respective US$64,160 and US$84,000 sought by the lessor.

He further contended, that, as the lessor had failed to establish liability or where liability had been established, the quantum thereof in respect of claims (b), (c), (d), the remainder of (e), (f), (g), (h) and (j), the claims fell to be dismissed.

Counsel requested the court a quo to discard the evidence of the valuator for the reason that it was unconventional and unprofessional.

He argued, that, the valuation was in breach of the 'objective' and 'appreciable help' standards expected of expert evidence that are propounded in Stock v Stock 1981 (3) SA 1280 (A)…,; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)…,; and Menday v Protea Assurance Co. Ltd 1976 (1) SA 565 (E)…, and articulated in SCHWIKKARD & Van der MERWE's Principles of Evidence, Juta 2009…,.

He, therefore, prayed for the dismissal of claims (d) (e), (f), (g), (h) and (j), which rested on the valuator's computations.

Counsel further contended, that, the claims ought to be dismissed for the further reason that the lessor had not amended the quantum to reflect the new amounts touted by the valuator some of which were higher than the individual breakdowns set out in annexures 2 and 3 to the summons.

The court a quo made the following findings:

The only effectual agreements were the lease and the Joint Venture agreements dated 9 January 2009 and not the draft agreement of 13 March 2011.

The operational rental rate was 6 per cent and not 8 per cent. This was because the offer of 22 February 2011 had not been accepted nor had the non-variation clause been invoked.

Valentine Ziswa was an inconsistent, unreliable, untruthful, and greedy witness.

He prevaricated on whether the tenure of the agreements was 5 years, 8 years, or 10 years and whether the rental rate was 6 per cent, 8 per cent, or 10 per cent.

He was greedy because he unjustifiably claimed for municipal imposts, maize deliveries, seedlings, and hailstorm insurance proceeds, which were all not covered by the two agreements. He also demanded for the value of the centre pivot, which he had categorically rejected as constituting a permanent structure.

The court a quo also excoriated the valuator for flaunting his professional qualifications and experience at the expense of conventional valuation principles. It, therefore, discarded his depreciated replacement cost computations.

Graham Shaun Chadwick, whose demeanour was highly extolled, was found to be a truthful, good, and reliable witness.

His status as an accomplished tobacco farmer with 20 years experience, and who exuded confidence and conceded where he was liable, endeared himself to the court a quo at the expense of Valentine Ziswa whose penchant for renting out instead of farming on his own account was deplored by the court.

Notwithstanding the contrary general findings on credibility of Valentine Ziswa and the valuator, the court a quo believed Valentine Ziswa's oral testimony on the US$780 claim on tobacco de-stalking and the chartered accountant's valuation of the LTC line. It, however, dismissed the rest of their evidence on the valuation of all the other claims. It further held that seedlings were not a crop as they could not be sold at the auction floors.

The court a quo dismissed the claims against Landos (Pvt) Ltd on the twin basis of lack of privity of contract and sanctity of contracts.

It held, that, these cardinal legal principles could not be negated by Graham Shaun Chadwick's directorship of the company, his use of the company's letterhead in correspondence with the lessor and bank account to effect payment of his lease obligations.

It issued the order that I adverted to at the commencement of this judgment.

Aggrieved by the order granted a quo, the lessor appealed to this Court on the following grounds:

“1. The court a quo erred in not finding that the reduction of part of the agreement between the parties to writing and the existence of the non-variation clause notwithstanding, on the entirety of the evidence before the court, the agreement between the parties consisted in part of the written portion and in part of the oral agreement sworn to by the cross appellants.

2. The court a quo erred, for the stronger reason, in not finding that the second cross respondent was privy to the whole of the agreement between the parties and in dismissing the claim against it.

3. The court a quo erred in its treatment of the evidence and assessment of the cross appellants claim with the result, that, the court misdirected itself in its gratuitous conclusions on the first cross-appellant's demeanour and motives culminating in the rejection of the cross-appellants claims on this flawed basis.

4. The court a quo erred in not finding that the rent for the use of the cross-appellants farm varied from 6 per cent to 8 per cent of the gross annual turnover realised on the farm.

5. The court a quo erred, in any event, in accepting the appellant's bare testimony that the sum of US$21,000 paid to the cross appellants was towards the rental for the 2011-12 season and in deducting the same from the rental due and owing to the cross appellants.

6. The court a quo erred in its treatment of the evidence in concluding, that, the claim for the tonnage of maize was not within the parameters of the agreement of the parties and in rejecting the cross-appellants testimony regarding the quantum thereof.

7. The court a quo erred in holding, that, the claims for the centre pivot and generator did not fall within the parameters of the developmental agreement.

8. The court a quo erred in holding that the seedlings produced on the cross appellants farm, but sold elsewhere, were not produce for the purposes of the parties agreement, and in rejecting the cross-appellants quantification thereof.

9. The court a quo erred in finding, as it did, that there was no evidence to substantiate the cross appellants claim (e) (property removed and not returned) and claim (g) (removed and/or damaged fences and gates) and in finding the property could have been unusable.

The court a quo erred, in any event, in dismissing the said claims as opposed to granting absolution from the instance.

10. The court a quo erred in rejecting the evidence of Pange purely on the basis that he had used one as opposed to three quotations which had been sourced by the cross-appellants, and had applied the general accounting depreciation formulae without a physical examination of the property in question.

11. The court a quo erred in not awarding the claim for the irrigation pump, which the appellant conceded in his evidence and offered to compensate for the same.

12. The court a quo erred in accepting as true the appellant's testimony based solely on the fact that he managed to impress the judge in terms of his demeanour.”

The cross-appellants sought the success of the cross appeal with costs, the amendment of the judgment a quo by granting, jointly and severally, the one paying the other to be absolved:

(i) Arrear rentals of $67,502=40 for the 2011-12 season (being 8 per cent of gross realization of US$843,780 from sale of 205,800kgs at US$4=10 per kg);

(ii) Alternatively, judgment in the sum of US$50,626=80 being 6 per cent of the above gross realisation;

(iii) Judgment in respect of claims (d), (f), (j) and (i);

(iv) Judgment for the reduced sum of US$364,729 as particularised in exhibit 3; and

(v) Costs of suit against the cross respondents.

The issues that arise from the grounds of appeal are the following:

1. Whether the variation clause was waived by the parties to the lease agreement.

2. Whether the second cross-respondent was liable to the lessor's claims.

(a) Rentals for the fourth season (a portion of claim (a)).

(b) The value of the developments in lieu of the Centre Pivot (claim (d)).

(c) Damages for missing equipment (including the irrigation diesel pump whose liability was conceded) (claim (e)) and for damaged property and equipment on the farm (claim (f)).

(d) Repairs to tobacco barns (claim (h)).

(e) Vandalized overhead water tanks, reservoirs, boreholes, and staff houses and their connecting pump unit, cables, electrics, and pipes claim (j).

(f) Maize deliveries due for the second to fourth seasons (claim (k)).

(g) Value of tobacco seedlings (claim (l)).

3. Whether or not the court a quo properly exercised its discretion in respect of costs.

At the onset of his submissions before this Court, counsel for the lessor abandoned claims (b), (c) and (g).

He persisted with the appeal against the dismissal of the entire claim against the company, the part dismissed in respect of claims (a) and (e), and the dismissals against claims (d), (f) (h), (j), (k) and (l).

Counsel for the lessor contended, that, the dismissal of the lessor's claims against Landos (Pvt) Ltd was erroneous.

He argued, that, the resolution passed by Landos (Pvt) Ltd, on 18 May 2012, authorising Graham Shaun Chadwick to “represent the company in any legal matter against Mr and Mrs Ziswa” before the institution of action proceedings on 26 September 2012, showed that it had a direct and substantial interest in the two agreements.

He further argued, that, the main credibility findings in favour of Graham Shaun Chadwick and against Valentine Ziswa, upon which the court a quo premised its dismissal of the lessor's claims were, on the totality of the adduced evidence, irrational.

He argued, that, notwithstanding the embodiment of the non-variation clause in the lease agreement, the lessor had, contrary to the finding a quo, established that Graham Shaun Chadwick had, by conduct, waived the lease rental rate from 6 per cent to 8 per cent on the second and subsequent seasons.

He further argued, that, the valuation testimony of the chartered accountant had proved the damages suffered by the lessor as at the date Graham Shaun Chadwick cancelled the agreements and vacated the farm.

Lastly, he contended that the costs order granted a quo constituted a patent failure in the exercise of discretion warranting interference by this Court.

Per contra, counsel for Graham Shaun Chadwick and Landos (Pvt) Ltd vehemently supported the impugned findings and conclusions of the court a quo.

He argued, that, the claims against Landos (Pvt) Ltd were rightly dismissed because it was not privy to the lease agreements.

He strongly contended, that, having acted as an agent, it could not be sued either separately or together with its principal.

He further contended, that, the non-variation clause precluded the lessor from relying on any variation derived from an oral agreement or on the offer to increase the rate to 8 per cent which they did not accept.

He submitted, that, an oral agreement could not waive a non-variation clause.

He further contended, that, the court a quo had not relied on the demeanour of the witnesses only but also on the inconsistencies that characterized the evidence of the lessor's star witness, Valentine Ziswa.

Lastly, he contended that the valuator's testimony was rightly discarded for being both unconventional and unprofessional.

Counsel impugned his competence on two bases:

(i) The first was that he had relied on the quotations availed to him by Valentine Ziswa without conducting a physical inspection of the equipment.

(ii) The second was that he had further relied on internet sites, that he failed to disclose, in ascertaining the life span of some of the equipment listed in exhibit 3.

The appellant claimed rentals for the fourth season in the sum of US$64,160 as constituting 8 per cent of the gross proceeds of the tobacco produced on the farm in that season.

The duty to establish the gross tobacco realization lay with the lessor.

In the lease agreement, Graham Shaun Chadwick undertook to pay through a stop order system based on the tobacco sales sheet issued at the auction floor.

He did not honour the stop order payment method.

He was therefore unfaithful to his undertaking and falsely asserted that he abided by his contractual undertakings.

The lessor produced the 15 sales sheets availed to him by Graham Shaun Chadwick.

They relate to three (3) auction floors and cover the period between 6 February 2012 and 19 March 2012. Each auction floor issued the sales sheets in sequential order. The last in sequence captures the total number of bales “sold to date” their tonnage, average US$ price per kg, both the gross and net realization as at that date.

In respect of Tian Ze auction floor, sales sheet No.13 dated 19 March 2012 was the last in sequence. The total bales sold as at that date were 798 weighing 85,648kg at an average price of US$4=31 realising a gross amount of US$369,261=37.

The last sales sheet issued by the Tobacco Sales Floor was No.27 issued on 22 March 2012. The comparative figures were 823 bales weighing 70,211kg sold at an average price of US$2=59 and grossing US$182,002=08.

The single sales sheet from the Zimbabwe Tobacco Leaf was dated 12 March 2012. A total of 66 bales weighing 6,517kg were sold at USD4=11 per kg for a gross total of USD26,813=55.

The total tonnage sold as at 27 March 2012 was 162,326kg.

The rental computed at 6 per cent would have been US$34,684=59 while the rental at 8 per cent would have been US$46,246=13.

However, the import of case No. HC5477/12 was that Graham Shaun Chadwick still had unsold tobacco on the farm.

The thumb suck figures provided from the witness stand by Graham Shaun Chadwick, of 135,000kg sold at US$3=67 were a “monstrous” lie.

When he testified, he had the correct figures issued at the close of the fourth season. He chose not to disclose them at his peril.

The undisputed testimony of Valentine Ziswa, that, Graham Shaun Chadwick's section manager, Kerstell Gentenbach, advised him that the records on the farm showed that as at 19 June 2012, a total of 225,000kg had been baled was, in the circumstances plausible.

Valentine Ziswa, however, computed the rental due to the lessor on estimates of 205,800kg sold at an average price of US$4=10.

On these figures, a rental of US$50,626=80 would have been due at 6 per cent while US$67,502=40 would have been due at 8 per cent.

The court a quo erroneously accepted that US$21,000 was paid in respect of the fourth season rentals.

The evidence showed, that, Graham Shaun Chadwick did not have a history of making payment from the stop order sales. He appeared to have paid towards the closure of the selling season.

It cannot be coincidental that he paid US$21,000 between February and April 2012 after receiving the lessor's demand for payment in an equivalent amount.

It is apparent that the US$21,000 was paid to defray the outstanding rentals for the 2010-2011 season that had been demanded by the lessor.

I find that the lessor was entitled to 8 per cent of the established gross realization equivalent to US$67,502=40. However, after accounting for the US$8,808 ordered a quo in respect of this claim, the appellant would be entitled to US$58,694=40.

In the circumstances, the fifth ground of appeal is upheld.

On 24 July 2013, the High Court granted judgment in favour of the respondent herein. Consequent thereto, the court ordered that the appellant vacate premises known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare and pay the sum of USD22,730=99 being arrear rentals, and holding over damages in the sum of USD5,000 together with operating costs from 1 November 2011 to the date of eviction.

The court ordered the appellant to pay interest on the abovestated sums at a rate that is 5 percent above the lending rate of commercial banks, and costs of suit at the ordinary rate.

The appellant was aggrieved and noted an appeal against the whole judgment.

The respondent was equally unhappy with part of the judgment and noted a cross-appeal against the finding by the court that it was required to give the appellant fifteen (15) days notice of cancellation of the lease in the event of failure by the appellant to pay rent on due date.

In addition, the respondent particularly appealed against the finding by the court, that, the letter dated 26 September 2011 by the respondent did not constitute a cancellation of the agreement.

The appellant and the respondent are private limited companies duly registered as such under the laws of Zimbabwe and carrying on business as such within the country.

On or about 30 March 2010, the respondent and the appellant entered into a written agreement of lease in terms of which the former leased to the latter commercial property known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare.

The agreement was initially for a period of six months and was terminable on 31 August 2010.

Although the lease agreement suggests that it commenced on 30 March 2010, evidence from the appellant during the trial reveals that it first occupied the premises sometime in 2005.

This fact is, however, of no moment as it was never disputed that there was a subsisting lease between the parties.

It is worth noting, that, while there is no specific clause providing for the renewal of the lease, clauses in the agreement suggest that it was to endure beyond the stated period of six months.

Indeed, when the dispute erupted, the appellant had been in occupation of the premises for over twelve months.

After the lease period expired, the parties continued with the lease on the same terms and conditions.

This is because the accepted sum due as rental, at that stage, was USD5,000 - an amount far in excess of the USD1,000 stated in the original written lease.

Moreover, from the manner in which the proceedings in the court below were conducted, it can be inferred that the lease was still subsisting.

The terms and conditions of the lease agreement are the bone of contention between the two.

The terms of the agreement that are pertinent to the dispute are to be found in clauses 3 and 12 of the agreement and relate to the payment of rentals and operating costs.

The parties agreed that the appellant would pay monthly rentals within the first seven days of each month, together with operating costs at agreed rates.

The respondent alleged, that, the appellant was in breach of a material term of the agreement by failing or neglecting to pay monthly rentals and operating costs within the time stipulated in the lease agreement.

Due to the breach, the appellant allegedly incurred arrear rentals in the sum of US$22,730=99.

As a consequence of the breach, the respondent averred that it had cancelled the lease agreement, demanded vacant possession of the leased premises, and payment of the arrear rentals and operating costs.

The respondent posits, that, it did so by letter dated 26 September 2011 from its legal practitioners to the appellant cancelling the said agreement.

On 12 October 2011, the respondent issued summons against the appellant in which it claimed the following relief:

“(a) An order for the eviction of the defendant together with its tenants, assignees, invitees, and all other persons claiming occupation through it from the plaintiff's premises known as Shops 1 and 2 Benhay Art House, located at 120 Chinhoyi Street, Harare.

(b) Payment of the sum of USD22,730=99 in respect of arrear rentals.

(c) Payment of holding over damages at a monthly rate of USD5,000 together with operating costs from 1 November 2011 to the date of eviction.

(d) Payment of interest on the sums of money claimed herein at a rate which is 5 percent above the commercial bank minimum lending rate per month, or part thereof, calculated from due date to date of payment in full.

(e) Payment of costs at the scale of legal practitioner and client.”

It is common cause that the parties thereafter attempted to enter into without prejudice negotiations.

A Deed of Settlement was drafted which required the appellant to acknowledge its indebtedness in the sum of US$16,980 and to discharge its indebtedness at the rate of US$2,500 a month with effect from 1 November 2011.

Further, the appellant was to continue to pay monthly rentals of US$5,000 in accordance with the terms of the lease agreement.

The respondent's legal practitioners signed the draft Deed of Settlement. The appellant's legal practitioners did not.

As it had threatened, the respondent proceeded with the suit culminating in the holding of a pre-trial conference before a judge in chambers.

At the pretrial conference, the matter was referred to trial on the following issues:

1.1 Whether or not the respondent properly cancelled the lease agreement in respect of Shops 1 and 2 Benhay Art House, No.120 Chinhoyi Street, Harare.

1.2 Whether or not any agreement for the out of court settlement of this matter was concluded between the parties.

1.3 If so, what were the terms of the agreement?

2.1 Whether or not the respondent was entitled to an eviction order.

For the purposes of the trial, the court a quo formulated the issues that were before it for determination as:

1. Whether the respondent gave adequate notice of intention to cancel the lease agreement before the agreement was cancelled.

2. Whether there was a valid cancellation of the lease agreement between the parties.

3. Whether the parties entered into a separate agreement relating to the outstanding rent.

The court a quo found in favour of the respondent and issued the order referred to above.

In arriving at its decision, the court a quo noted that clause 3.2 of the lease agreement stipulated that rent was to be paid monthly in advance, at the latest by the seventh day of the month.

It also found, that, clause 12 stipulated that if rent was not paid as agreed, or where the tenant breached any other condition of the agreement and remained in default for a period of fifteen days after being given notice in writing by the landlord, then, the landlord could cancel the lease forthwith and retake possession of the premises without prejudice to any claim for damages.

The court also found, that, in the light of these clauses, the letter dated 26 September 2011 did not effectively cancel the lease agreement.

The court noted, that, instead, the letter gave the appellant three days to rectify the breach and that this period was contrary to the agreement which allowed for a period of fifteen days to remedy a breach.

The letter in question was delivered to the appellant on 27 September 2011. The court, therefore, found that, that is when the fifteen days contemplated by clause 12 began to run.

Consequently, the court concluded, that, the appellant had up to 12 October 2011 to remedy the breach.

Accordingly, the court a quo found, that, by 12 October 2011, when the respondent issued summons, it did so in compliance with the lease agreement as the fifteen days from the date the appellant received the letter had elapsed.

The court further found that the letter of 26 September 2011, by which the respondent said it cancelled the lease agreement, had the effect of placing the appellant in mora.

Thereafter, the court reasoned, the appellant had fifteen days from the date of being placed in mora to remedy the breach, failing which the respondent had the right to cancel the agreement.

The court further determined, that, there was no compromise agreement as, by the appellant's own admission, it failed to sign the Deed of Settlement.

The court a quo, therefore, granted the respondent's claim in its entirety.

The appellant has noted the present appeal on the following grounds:

“1. The court a quo erred in granting an order for the monetary claim as made out in the summons when it was apparent from the evidence that this money had been cleared.

2. The court a quo erred by extending the time of notice after it had made a finding that there was insufficient notice given.

3. The court a quo erred in finding, as it did, that notice, though insufficient, was given, when, in actual fact, the respondent cancelled the agreement of lease without giving the notice required in terms of the agreement.

4. The court a quo misdirected itself as it made a finding that there was no compromise reached by the parties because the Deed of Settlement was not signed by the appellant, yet, the Deed was for proof purposes only as the agreement had already been reached.

5. The court a quo erred, generally, by ordering eviction after the compromise and when the arrears had been cleared.

6. The court a quo erred by making a finding that the appellant's witness was not credible when he gave straight forward evidence.”

In its heads of argument, the respondent has conceded that its cross appeal was ill-founded. As a consequence, it was not proceeding to argue the same.

The concession is proper.

The cross-appeal sought to challenge findings of fact made by the court a quo without a corresponding prayer to alter the judgment itself.

The concession leaves only the main appeal for determination.

In my view, the remaining issues for determination, therefore, are the following:

(i) Whether the lease was properly cancelled;

(ii) Whether the court a quo should have ordered the eviction of the appellant from the premises;

(iii) Whether the parties reached a compromise; and

(iv) Whether the court a quo was correct to grant the monetary claim in its entirety....,.

I turn to consider the issue of the monetary award.

It is not in dispute, that, there were no arrear rentals outstanding by the date of trial. Therefore, the award by the court a quo of the monetary claim for arrear rentals was erroneous and must be set aside.

However, in view of the fact that the appellant remained in occupation after the cancellation of the agreement, it stands to reason that holding over damages would be due for payment.

Counsel for the appellant suggested, that, there was no evidence adduced as to what such holding over damages should be.

I am constrained to agree.

The claim in respect of holding over damages was not proved. The respondent did not lead any evidence establishing how much the holding over damages were.

Indeed, in his oral address, counsel for the respondent accepted that the entire monetary claim should be set aside.

The concession is well made.

This is an Urgent Chamber Application wherein the applicant seeks the following relief:

“1. The 2nd respondent and all persons claiming occupation through it shall remove or cause the removal of themselves and all such persons occupying the mining claim, being Valentine 56 held under registration number GA 2786.

2. Failing such removal, the Sheriff of this Honourable Court be and is hereby authorised and directed to evict the 2nd respondent and all persons claiming through and under them from the mining claim being Valentine 56 held under registration number GA 2786.

3. The 3rd respondent be and is hereby directed to provide an escort, and any other physical assistance necessary for the Sheriff, during the service and execution of this order.

4. The 2nd respondent and all persons claiming through and under him are interdicted and barred from continuing to carry out mining activities on the mining claim being Valentine 56 held under registration number GA 2786.

5. The 2nd respondent shall pay the costs of this application on the legal practitioner and client scale.”

It is important to give a brief background of how this matter, being an Urgent Chamber Application, took almost a month and a half to be heard.

The background is this:

The matter was placed before me on Tuesday 29 June 2021. I then instructed that the applicant serve same on the respondents together with a notice of set down for 5 July 2021. The matter could not be heard on that date as I had to attend a meeting in Harare. It was then postponed to 12 July 2021.

On that date, the parties agreed on an order by consent which was to the following effect:

“(a) All parties cease mining operations on Valentine 56 Mine claim and Valentine Q Mine claim forthwith.

(b) 4th respondent be and is hereby ordered to carry out a ground verification on the disputed ground and submit a report to this Honourable Court on the 16th of July 2021 and serve the parties.

(c) The court will set the matter down for finalisation.”

The parties arrived at this consent order so as to determine the real dispute between them with some measure of finality.

It being an order by consent, the court was of the view that this was premised on the parties desire to have an order dispositive of the matter.

That report was duly availed and the matter was set down for 29 July 2021. Counsel for the first and second respondents was, however, ill-disposed necessitating a postponement to 26 August 2021.

On 26 August 2021, counsel for the first and second respondents insisted on arguing the matter as originally filed, which was an application for spoliation.

This position was at variance with the consent order.

That being so because had counsel not consented to the 12 July 2021 order, the matter would have been argued on that date, and, given the requirements of a spoliation order, the referral of the matter to the fourth respondent would not have been necessary.

I must express my displeasure at the manner in which counsel appeared to be bent on stalling the resolution of the matter.

That said, I propose now to consider the matter on the basis of the spoliation application.

The applicant approached the court on the basis that it had been in peaceful and undisturbed possession of a mining claim known as Valentine 56 GA2786. It had been conducting exploration in the form of diamond drilling from 2020 until May 2021. The exploration results were to assist the applicant in determining how it was to proceed with its operations at this mine.

The drilling was temporarily ceased and it was at that time that the second respondent forcefully took occupation of the mine.

The applicant engaged the fourth respondent who issued an injunction ordering cessation of operations at the mining location.

Attempts to resolve the issue at that level hit a snag as the second respondent refused to submit itself to the process. Efforts to enlist the assistance of the police also hit a snag, culminating in the applicant approaching the court for a spoliation order.

The first and second respondents opposed the application.

One Thomson Moyo deposed to the opposing affidavit wherein he stated that he was representing the first and second respondents.

The first respondent authorised Thomson Moyo to so act through a Special Power of Attorney, which Special Power of Attorney however referred to Valentine Q GA5328 and not Valentine 56.

No issue was taken on this and I do not intend to dwell on it.

In opposing the application, the respondents took points in limine. These are:

1. The application purports to be one for spoliation, but, it is actually an application for eviction, and, as such, cannot be sought on an urgent basis.

2. The second respondent is an artificial person and so is incapable of despoiling the applicant. The application is therefore fatally defective.

3. There are material disputes of fact as the first respondent is the registered owner of Valentine Q mine and there is no clarity as to which mine the injunction issued by fourth respondent relates to.

4. The form used, and the certificate of urgency, are defective. The form is alien to the Rules, and the certificate of urgency does not show when the need to act arose, rendering it fatally defective.

As regards the merits, the respondents opposition referred to HC731/21 claiming that there was no forceful occupation of the applicant's claim and the first respondent is the registered owner of the claim, an issue which HC731/21 is meant to address. The first and second respondents have therefore not forcefully occupied the applicant's mining claim.

I propose to deal with the points in limine first: Heywood Investments (Pvt) Ltd t/a GDC Hauliers v Zakeo SC32-13.

These points in limine will not be dealt with necessarily in the order they were raised....,.

A company is a juristic person capable of suing and being sued. Fisani Moyo and Thomson Moyo are the people who claim to be owners of Valentine Mine.

In HC731/21, where Thomson Moyo is challenging the injunction issued by the fourth respondent, he described himself as the representative of Valentine Mine, a duly incorporated company under the laws of Zimbabwe with capacity to sue and be sued.

The applicant's complaint is that this company, through the agency of its representatives, have despoiled it of its possession of Valentine 56. Fisani and Thomson Moyo were cited as the natural persons who own the juristic person known as Valentine Mine.

There was an attempt by counsel for the first and second respondents to argue, that, Valentine Mine is a non-existent entity.

This argument does not make much sense, given that Valentine Mine is the name of the applicant in HC731/21, a court application which is yet to be heard.

So, is it being suggested that Valentine Mine is a juristic person for purposes of its own litigation but ceases to be one when it is the one being sued?...,.

Counsel's efforts to tweak the argument by introducing a new issue altogether, regarding the existence of this company, is telling.

Counsel sought to argue that Valentine Mine is just a trade name and not the name of the company.

Questions of law can be raised at any time but they should be valid questions of law.

In Muskwe v Nyajina and Others SC17-12 the court had this to say:

“Undoubtedly, a point of law can be raised at any time even though not pleaded. However, this is subject to certain considerations, one of which is that the court has to consider whether raising a point of law at this juncture would cause prejudice to the party against whom it is raised….,. The theme that runs through the principles is that a question of law can be raised at any stage of the proceedings, provided it does not occasion prejudice to the other party.”

Counsel sought to argue, that, because the relief sought is against Valentine Mine, which is a non-existent entity, it therefore means no relief can be obtained from “nothing.”

Were I to hold that such argument is valid, it would certainly prejudice the applicant.

However, in casu, it is not enough to merely state that this cited party is non-existent, without more. It is not even stated what the company name is, if it is not Valentine Mine.

Furthermore, that same entity has instituted action claiming to be a legal entity.

The first plaintiff is a farmer who owns Ziswa Farm (“the farm”) otherwise known as Farm 23 of Lawrencedale Estate in the District of Makoni, Rusape which farm he prefers to rent out while staying on it, as he currently rents it out to his neighbour, he having rented it out to the first defendant prior to that and yet to another person before the first defendant came in.

The second plaintiff is his wife, who, apart from the fact that she was cited as a party along with the first defendant in a joint venture agreement concluded between the couple and the first defendant, on 9 January 2009, has been cited in these proceedings in extremely unclear circumstances.

The first defendant is a commercial farmer, a tobacco grower of note, conducting such business generally at Landos Farm, Halfway House in Headlands and is a director of the second defendant, a duly incorporated company.

The plaintiffs instituted proceedings against the defendant, and, in their summons and declaration, they set out an array of claims, thirteen (13) in all, arising out of a lease agreement signed between the first plaintiff and the first defendant on 9 January 2009 on which date a second agreement titled “Memorandum of Joint Venture Agreement” was also signed between the first and second plaintiffs on the one hand and the first defendant on the other hand.

The plaintiffs averred, that, sometime in 2008 they had entered into a long term development lease agreement with the defendants for the use of the farm and that although the first defendant had signed as the tenant, the actual farming was done through the second defendant.

In terms of the lease agreement, the defendants were expected to put up and maintain infrastructure at the farm, like the construction of 44 houses for workers, dam, and barn construction.

The relationship between the parties deteriorated over time resulting in the defendants cancelling the lease agreement on 2 July 2012 before vacating the farm without notice.

The plaintiffs averred further, that, when the defendants vacated the farm they unlawfully removed certain items of property belonging to the plaintiffs valued at US$186,701 which amount they claimed.

The defendants badly damaged the plaintiffs property valued at $15,905.

They removed fences and gates as they vacated, whose value is $7,600.

During the tenancy, the defendants damaged four (4) barns which were falling at the time they left, while two (2) barns were badly cracked and supported by poles. This was in breach of the agreement of the parties requiring the defendants to keep the barns in good and perfect condition and to repair them to usable state when vacating.

The plaintiffs claimed $5,008 being the costs of repairing the barns.

In further breach of the agreement, the defendants left the farm without removing and destroying tobacco stalks from the land and seed beds which exercise the plaintiffs had to undertake at a cost of $780 including a fine paid to the Environmental Management Agency.

The plaintiffs claimed a sum of $26,313 being the value of their property and machinery including overhead water storage tank and pipes, workers houses, underground cables, water reservoir, cast iron pipes, pump unit, electricals at boreholes and at transformers.

The plaintiff averred further, that, in terms of the lease agreement, the defendants were obliged to deliver to them certain quantities of maize but failed to deliver 50 metric tonnes of maize worth $15,000 which amount the plaintiffs claimed.

They claimed a sum of $45,000 damages for loss of income for the 2012-2013 farming season they would have realised if the defendants had not prematurely terminated the lease agreement and without notice.

A sum of $64,160 was claimed for arrear rentals for the 2011-2012 tobacco crop, being 8% of the gross turnover in respect of crops produced at the farm in terms of the agreement given that 220,000kgs of tobacco were produced during that cropping season.

A sum of $1,980 refund of what the plaintiffs paid for rates and levies to Makoni Rural District Council was claimed, which should have been paid by the defendants in terms of the lease agreement.

The plaintiffs claimed $5,500 being their share of the hailstorm insurance claim made by the defendants to their insurers for the 2009-2010 and 2010-2012 seasons.

A sum of $67,506 was claimed as the value of a centre pivot and generator, which, although purchased by the defendants, they should have left at the farm for the plaintiffs benefit as part of the long term development of the plaintiffs farm.

They claimed $4,240 being 8% of the tobacco seedlings grown on their farm by the defendants.

The defendants have contested the claims, and, in their plea, they took issue with the citation of the second defendant as a party to the proceedings given that there was no agreement, of whatever nature, between the plaintiffs and the second defendant.

In respect of the first defendant, they averred that he complied with all the terms of his agreement with the plaintiffs and denied owing the plaintiffs any money.

The relationship between the parties suffered as a result of the plaintiff's endless interference with farming operations and peaceful enjoyment of the property resulting in a court order being sought and granted interdicting such interference.

The first defendant had to cancel the lease agreement after the plaintiffs had preferred false and malicious criminal charges against him.

The defendants averred that at the termination of the lease, a verification exercise was conducted by the parties which established that all the plaintiffs property had been accounted for, and, as such, none was removed or damaged.

In addition, the fact that the plaintiffs had forcibly taken possession of the farm and equipment, meant that the defendants could not be expected to account for the damage to any property during that period.

They denied vacating the farm secretly or removing fences and gates in the process, especially as the parties were aware of the termination and the defendants vacation of the farm. They denied vandalising any property and that the plaintiffs were entitled to any damages for loss of income.

The parties agreed on the issues for trial at the pretrial conference, which are captured in their joint pre-trial conference minute as:

(a) Whether there was an agreement between the parties as pleaded by the plaintiffs;

(b) Whether the defendants fully complied with the terms and conditions of the agreement;

(c) Whether some of the plaintiffs claims have prescribed, if so, which ones specifically; and

(d) Whether the plaintiffs are entitled to the claims set out in the summons.

Only the first plaintiff gave evidence while the second plaintiff chose not to. They also called witnesses, namely, Assistant Inspector Nixon N'andu, Canaan Nyamombe, and Fanuel Phange.

It was the evidence of the first plaintiff (Ziswa) that prior to the first defendant (Chadwick) approaching him in 2008 he had been leasing his farm to someone else, and that, after Chadwick left unceremoniously in July 2012, he again let out the farm to a neighbour of his, Mr Coleman of Mersy Farm, who, upon taking over, repaired the eight (8) barns which Chadwick had left in a falling condition.

Himself and Chadwick negotiated the lease agreement, which was reduced to writing; the latter having printed a standard form agreement obtained from the National Tobacco Association out of his computer.

He stated that they negotiated every clause, and, as they did so, they added annotations in long hand, which unfortunately were not initialled or counter-signed by the parties, although every page was initialled at the bottom.

After signing the lease agreement, they also prepared and signed a Joint Venture Agreement (JVA) at the instance of Chadwick who wanted it to be signed to protect the parties, given that politically leasing farms was unacceptable while joint venture agreements were tolerated.

As far as he was concerned, the real agreement between the parties was a lease and not a joint venture, which is why the Joint Venture Agreement (JVA) also spoke of a lease and rentals. He referred to both agreements which are part of exhibit 1.

Although both agreements were signed with Chadwick, the witness insisted that they were concluded with both Chadwick and the second defendant, Landos Farm (Pvt) Ltd (Landos) - a claim which is difficult to sustain given that Landos, as an incorporation, was not cited at all in both agreements.

He sought to hold Landos Farm (Pvt) Ltd liable because Chadwick introduced himself as its director and used its letterhead in correspondence.

Some payments were made by Landos.

His claim is based on both agreements.

He explained, that, while the written agreements were signed on 9 January 2009 he had already allowed the defendants to commence farming in August 2008 and that the written agreements only recorded what the parties had agreed.

It is significant that the lease agreement does not necessarily contain some of the necessary details, with the first clause omitting the name of the farm and its hectarage. It also omits the lease period and the date of commencement.

It only has the date of termination entered in pen.

On the various additions to the document, appended in barely legible ink, Ziswa said some were entered by himself while some were made by Chadwick as the two negotiated the terms of the agreement.

The lease provides, in clause 2, that the land was leased for purposes of growing tobacco on 30 hectares, maize on 40 hectares, 20 hectares of wheat or another crop agreed between the parties.

Ziswa said, practically, Chadwick only grew maize during the first year and did not do so for the remainder of the time he was on the farm, electing to concentrate on tobacco farming. He never grew wheat or any other crop for that matter.

The payment of rent is provided for in clause 3 which reads:

“The rent payable by the Lessee to the Lessor shall be 6% on the US$ of the gross turnover in respect of the crops produced on the said land, and, payment of such rent/lease shall be secured by means of direct payment into a FCA given by the lessee in favour of the Company against proceeds of tobacco sold through the Lessee's contract, and, in the case of other such as maize/wheat in equivalue (sic) it shall be executed and registered as soon as may be after the signing of this lease. An advance payment shall be discussed if necessary.”

Despite this provision, Ziswa testified that his claim was for 8% of the gross turnover which he justified by reference to a letter written by Chadwick, on a Landos letterhead, on 22 February 2011, which reads:

“Dear Mr Ziswa

I am writing to present my offer on the subject stated above. I am hoping my proposal will be acceptable to you and will be effective for the next three seasons.

I am proposing that I pay you 8% of the gross realisation from the tobacco sales as my joint venture offer. This will be for the sole use of your whole farm.

Please consider that this is the best that I can do. May I refer you to the cost of production document that I sent you earlier on. If I go beyond this offer, the whole enterprise ceases to be viable. I believe this offer presents a win win situation for both parties.

This really is the best that I can do. May you please inform me of your decision by or before 15 March so as to enable me to make preparations for the coming season.

Yours faithfully

Greame Chadwick”…,.

Although Ziswa said he accepted the offer, he did not say when and how this was done.

He did not produce any document of acceptance, neither did he expand on where the acceptance was communicated to Chadwick.

This gives credence to Chadwick's argument, that, his offer was never accepted and that the 6% contained in the lease agreement remained in force.

By holding that there was a dispute of fact because of the respondents special grant, the location of which was different from the appellant's mining claims, the court a quo undoubtedly misdirected itself.

As further evidence of the appellant's ownership of the said mining claims, the Ministry of Mines and Mining Development continued to collect money from the appellant for the purposes of renewing its certificate of registration.

Such payments can only be done by the holder of legal entitlement over a mining location.

This means, that, not only did the appellant get confirmation from the Ministry of Mines and Mining Development that it was the owner of the claims and had the right to mine them, but, that its registration was current.

The court a quo erred and misdirected itself by failing to appreciate that the letter from the Ministry of Mines and Mining Development was further confirmation of the appellant's legal entitlement to the mining claims.

As such, there was no dispute of fact.

This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 16 December 2021. The court a quo granted the respondent damages in the sum of US$30,000 for malicious prosecution and US$100,000 for malicious arrest and detention.

The damages were to be paid at the equivalent rate of the local currency of RTGS reckoned at the time of payment.

The respondent was the Chairman of the board of directors of Zimbabwe United Passenger Company ('ZUPCO'). He was also Vice-Chancellor of the Chinhoyi University of Technology and a member of the Zimbabwe Examinations Council and the Parastatals Advisory Council. He held various positions in other local and regional organisations.

The appellant had an interest in a company known as Gift Investments (Pvt) Ltd which supplied mini-buses to the Zimbabwe United Passenger Company (ZUPCO). The buses were supplied pursuant to a tender process approved by the State Procurement Board.

In November 2011, the respondent issued summons against the appellant claiming damages in the sum of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention, interest thereon at the rate of 5% per annum and costs of suit.

The respondent averred, that, the appellant had made allegations that he had, in his capacity as the Chairperson of the Zimbabwe United Passenger Company (ZUPCO) Board of Directors, solicited for a bribe from Gift Investments (Pvt) Ltd in order to facilitate the purchase, by ZUPCO, of 17 buses from the company.

The company had previously sold some buses to ZUPCO with the authority of the State Procurement Board.

Seventeen buses, painted in the corporate colours, remained in the company's stock. The Zimbabwe United Passenger Company (ZUPCO) had not placed an order for the buses which were not covered by the authority issued by the State Procurement Board.

He contended, that, the appellant made reports on the allegations to various people, high ranking Government officials, and institutions.

As a result of these allegations against him, he was arrested by the police on 21 March 2005 and detained on charges of corruption. He was arraigned before the Regional Magistrates Court, Harare for contravening section 3(1)(a)(i) of the Prevention of Corruption Act [Chapter 9:16]. The trial magistrate found him guilty and sentenced him to 3 years imprisonment of which one year imprisonment was suspended for a period of five years on condition of future good behaviour.

The effective sentence was 2 years imprisonment.

Aggrieved, the respondent filed an appeal before the High Court against both conviction and sentence.

On 19 November 2009, the High Court quashed the conviction and set aside the sentence. By then, the respondent had served the effective sentence of two years.

The claim for damages was instituted soon thereafter.

The respondent averred in his claim, that, he was subjected to humiliation from the time of arrest up to his acquittal. As a result of his arrest, prosecution, and imprisonment, at the instance of the appellant, he suffered injury to his reputation, both locally and internationally, and injury to his dignity. He was also deprived of his liberty. He lost his positions as the Vice Chancellor of Chinhoyi University of Technology and as the Chairperson of the Zimbabwe United Passenger Company (ZUPCO) Board of Directors.

The appellant admitted, in his plea, to having made the report to the police. He however denied having done so maliciously.

He averred that he only informed the police that the respondent had solicited a bribe from him, and the information was true.

He maintained that the decision to arrest the respondent was made by the police and not by him, after the police had formulated a reasonable suspicion that an offence had been committed. He also denied causing the prosecution of the respondent. He argued that the decision to prosecute the respondent was made by the Attorney General, in the exercise of his constitutional mandate. He averred that the decision to imprison the respondent was made by the trial magistrate after due consideration of the evidence placed before her during trial.

At the trial, the appellant applied for absolution from the instance at the close of the respondent's case. The appellant submitted, that, the respondent had no prima facie case against him. The court a quo granted the application. It held that there was evidence that the respondent had solicited for a bribe. It further held that the respondent failed to show how he had arrived at the damages he was claiming.

Disgruntled by the decision, the respondent noted an appeal before this Court under SC634/19. He argued that the court a quo had misdirected itself in granting the appellant absolution from the instance. This Court determined the appeal in (Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19) (Nherera v Shah).

The court made the following findings:

(a) In order to succeed in his claim for damages, the respondent was required to prove four requirements, being that:

(i) The arrest, prosecution, and detention were instigated or procured by the defendant;

(ii) There was no reasonable and probable cause for his arrest, prosecution, and detention;

(iii) The arrest, prosecution, or detention was actuated by malice; and

(iv) The prosecution failed.

(b) There was sufficient evidence before the court a quo, that, the appellant had instigated or procured the respondent's arrest. The appellant had admitted, in his plea, that he had informed the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, and the then Minister of State Security, Mr Goche. He had also admitted, in the plea, that he made a report to the police.

He further admitted that he was granted immunity from prosecution by the police and the Attorney General so that he would assist in the investigation of the allegations he had made against the respondent and assist in a successful prosecution of the respondent;

(c) There was no evidence suggesting that the respondent had attempted to solicit for a bribe from Gift Investments. The appellant did not, prima facie, have reasonable and probable cause for the respondent's arrest or prosecution;

(d) The court a quo seriously misdirected itself in relying on evidence adduced in the Magistrates Court during the respondent's prosecution which was not adduced and tested before it. This was particularly so where the criminal proceedings had been set aside by the High Court, on appeal, on 19 November 2009;

(e) The judgment of the High Court, quashing the respondent's conviction, was extant. The court a quo should not have ignored it. Following the judgment of the High Court, the requirement that the prosecution had failed had therefore been met;

(f) The question of malice could only be determined after the appellant's testimony in his defence. The appellant had disputed, during the cross examination of the respondent, that he had made a report to the police. There was therefore need for putting the appellant on his defence so that he would, among other issues, explain the inconsistency between his admission in his plea, that he denied under cross-examination of the respondent that he ever made a report to the police;

In the final analysis, the court held that the respondent had established a prima facie case against the appellant. It concluded that the court a quo ought to have dismissed the application for absolution from the instance. It ordered as follows:

“1.The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside and in its place the following substituted:

'The application for absolution from the instance be and is hereby dismissed with costs.'

3. The matter is remitted to the court a quo for continuation of the trial proceedings.”

After the above findings by this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the trial proceeded before the court a quo with the appellant testifying.

The appellant adopted his plea, his testimony in the criminal proceedings against the respondent in the Magistrates Court, and affidavit he deposed to on 27 July 2006 as part of his evidence on oath. His evidence was as follows:

In 2005, the respondent demanded a US$5,000 bribe, per bus, for the Zimbabwe United Passenger Company (ZUPCO) to flight a tender for the purchase of buses. He did not make a report to the police as alleged by the respondent. He, however, informed a number of people about the respondent's conduct. These included the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, the then Minister of State Security, Mr Goche, and some Central Intelligence Officers.

He informed the police, sometime in April 2005, that the respondent had solicited for a bribe in 2003 to facilitate the renewal of a lease agreement between Gift Investments and ZUPCO. He had paid the respondent and Bright Matonga a total of $20,000. The respondent was arrested in relation to the 2005 solicitation after he made reports to the Government officials.

At the conclusion of the trial, the court a quo made the following findings:

The findings by the Supreme Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19 were binding on it.

The Supreme Court had determined that the appellant placed information before a police officer that the respondent had solicited a bribe from him leading to the arrest, prosecution, and detention of the respondent. He did not, prima facie, have any reasonable and probable cause for doing so. The prosecution of the respondent had failed when his conviction was quashed on 19 November 2009. The respondent had, therefore, established a prima facie case on these issues.

The appellant was required to rebut the prima facie case.

As regards the appellant's testimony, the court a quo made the following findings:

The appellant was not a credible witness. He had admitted in his plea (which was now part of his evidence-in-chief) to making the report to the police leading to the arrest, prosecution, and detention of the respondent.

His oral evidence was inconsistent with his plea. The oral evidence was also at variance with his evidence during the respondent's criminal trial where he again admitted making the report.

It was common cause that the respondent was arrested, prosecuted, and imprisoned after the accusations of soliciting for a bribe were levelled against him by the appellant.

The appellant failed to disprove the prima facie case found to have been established by the respondent, on appeal, in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.

He had caused the arrest of the respondent without reasonable and probable cause and had done so in bad faith. His report to the police was therefore malicious.

The court a quo further held that the appellant's liability had been proved and the requirements for delictual damages satisfied.

It further held that the respondent suffered humiliation, ill-treatment in prison, and lost his employment due to the arrest, prosecution, and imprisonment.

The court a quo found, that, the respondent had not led evidence on how the sums of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention were arrived at. It however held, that, it still could make an award on the strength of relevant principles on the assessment of damages evolved from the jurisprudence coming out of our courts.

It held that the claim for $100,000 for malicious prosecution was extremely excessive, and, in its stead, awarded the respondent US$30,000. It also found the claim of US$300,000 for malicious arrest and detention to be excessive and awarded the respondent US$100,000 instead.

The court a quo further concluded that the damages would be paid in RTGS dollars at the interbank rate prevailing on the date of payment.

Aggrieved by the court a quo's decision, the appellant noted an appeal to this Court on the following grounds of appeal:

1. The court a quo erred and misdirected itself in law in holding that the dicta of this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, that there was, at the close of the plaintiff's case, a prima facie case (a test in any event not applicable to absolution from the instance) mitigating against the grant of absolution from the instance meant that if, in the court's opinion, the appellant had not controverted “the prima facie evidence of the plaintiff mutated to proof of the plaintiff's case on a balance of probabilities” in entertaining the first respondent's application as a court of first instance.

2. The respondent, having relied on the appellant's affidavit statement to the police, a statement that the appellant also adopted in his evidence before the court a quo in circumstances in which the High Court had found, on the basis of the same affidavit statement, in Zimbabwe United Passenger Company v Shah, which judgment was upheld on appeal to this Court, that the appellant had in fact paid a bribe to the respondent with whom he had a corrupt relationship, the court a quo erred in holding that the appellant had not controverted the “prima facie” evidence of the respondent.

3. A fortiori in holding as impugned in ground of appeal number 2 above, the court a quo infringed the appellant's right to the protection of the law guaranteed in section 56 of the Constitution of Zimbabwe.

4. For even the stronger reason, the court a quo erred in finding that the appellant's statement was not given in good faith and did not constitute reasonable and probable cause, but constituted a malicious and act wrongful instigating (sic) criminal proceedings against the respondent.

5. The court a quo, having held that the respondent had not led evidence on the financial prejudice he allegedly suffered in his defence of the criminal proceedings, or how he arrived at the sums claimed as damages, erred, in any event, in not granting absolution from the instance at the close of the trial in respect of the damages claimed.

6. The court a quo, having made a finding of the fact, and held in Nherera v Shah 2015 (2) ZLR 455 at 470C-D (H) that the respondent “did not attempt to show how the damages claimed were arrived at” which judgment was set aside on a different basis, and no further evidence having been led by the respondent since this finding, erred and misdirected itself and acted arbitrarily in awarding any damages.

7. In proceedings as complained of in grounds of appeal 5 and 5 (sic) above, the court a quo breached the appellant's right to the protection of the law protected and guaranteed in section 56(1) of the Constitution as well as the dictates of a fair trial contemplated in section 69(1) of the Constitution.

8. The court a quo erred in any event in awarding damages that are inconsistent with those awarded in comparable cases, and are, on the facts of the case, so outrageous that no court acting properly would have awarded the quantum of damages, and in a currency other than the legal tender of the Republic of Zimbabwe.

The appellant abandoned grounds 3 and 7 which were raising constitutional issues not dealt with in the court a quo.

Counsel for the appellant submitted, that, notwithstanding the decision in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the respondent did not establish his case on a balance of probabilities at the close of his case a quo.

Counsel argued, that, the Supreme Court had applied a wrong test in determining whether the appellant was entitled to absolution from the instance.

He argued that the respondent was required to establish whether, at the close of his case, there was evidence upon which a reasonable court, acting carefully, might have given judgment for the respondent on the issues before the court.

It was argued, that, the court had erroneously stated that the respondent needed to and had established a prima facie case.

It was further argued, that, the appellant had led evidence, in the form of a judgment of the High Court in Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 in which a finding had been made that the respondent had solicited from and was paid a bribe by the appellant.

It was further argued, that, this Court also held in Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20, that, the appellant had bribed the respondent and the then Chief Executive Officer of ZUPCO, in a bid to induce the renewal of a lease between Gift Investments (Private) Limited and ZUPCO from 01 January 2004 to 31 December 2009.

It was submitted, that, the facts in that case were centred on the same issues as in the present appeal.

It was further submitted, that, the findings in both Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 and Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20 constituted sufficient evidence to rebut the respondent's prima facie case.

It was argued, that, the findings in both matters established that there was a relationship of corruption between the appellant and the respondent.

Counsel argued, that, the appellant had rebutted the respondent's prima facie case and established, on a balance of probabilities, that, he had not maliciously instigated the respondent's arrest and subsequent prosecution and imprisonment.

Counsel for the appellant further contended, that, the court a quo erred in granting the respondent damages in circumstances where the respondent did not lead evidence justifying the quantum of such damages.

He argued, that, when the matter was remitted a quo, the respondent did not lead further evidence, and, particularly, on the damages that he sought.

It was further argued, that, the award for damages contravened the law in that it was denominated in United Dollars which was not the legal tender in use in Zimbabwe.

It was submitted that section 3(2)(b) and (c) of the Exchange Control (Exclusive Use of Zimbabwe Dollar for Domestic Transactions) Regulations 2019, Statutory Instrument 212 of 2019, SI212 of 2019 (the Regulations) proscribed settlement of any obligation, and demand of the payment of anything, in foreign currency.

Per contra, counsel for the respondent argued, that, the respondent was not a party to Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 and Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20.

It was further argued, that, the findings in those cases were not therefore applicable moreso as the respondent never had an opportunity to defend himself.

It was submitted that the findings related to the appellant's own confession to have paid the respondent a bribe. It was further submitted that the respondent could not be bound by the appellant's confession.

It was submitted, that, the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, being a judgment of the Supreme Court, was binding on the court a quo. The court a quo therefore did not misdirect itself when it held that it was bound by the Supreme Court judgment.

Counsel for the respondent submitted, that, the award of damages, by the court a quo, was made on the basis of the evidence on record as to the harm suffered by the respondent. He further argued, that, there was no need to lead evidence on the quantification of the damages as they could not be arrived at with mathematical precision.

He submitted, as regards the applicable currency, that the law does not preclude the granting of an award in foreign currency.

1. Whether or not the court a quo misdirected itself in holding that it was bound by the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.

2. Whether or not the court a quo misdirected itself in holding the appellant liable for damages for malicious arrest, prosecution, and detention.

3. Whether or not the court a quo misdirected itself in awarding damages in favour of the respondent in the absence of evidence from the respondent on how the damages were computed.

4. Whether or not it was competent for the court a quo to award damages denominated in United States dollars.

The appellant argued, that, the test in an application for absolution from the instance at the close of a plaintiff's case is not that there is a prima facie case, as held by this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.

It was submitted, that, the appropriate test is whether, at the close of the plaintiff's case, there is evidence upon which a reasonable court, acting carefully, might give judgment in favour of the plaintiff.

It was further submitted, that, the court a quo therefore misdirected itself in relying on the findings of the Supreme Court when it held that the respondent had established a prima facie case which the appellant was required to rebut in his evidence.

This Court set out, in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the four requirements that the respondent was required to establish in order to succeed in his claim. It remarked at para 58 that:

“[58] In order to get judgment in his favour, a plaintiff must prove four requirements. First, that the arrest, prosecution, and detention was instigated or procured by the defendant.

The word 'instigate' is wide enough to include the setting in motion of events that lead to the arrest of the person accused of criminal conduct.

Google defines 'instigate' to mean to bring about or initiate an action or result. It also means to put in motion, lay the foundations of, sow the seeds of, activate.

The word 'procure' means to persuade or cause someone to do something.

The law requires that a defendant must have been actively instrumental in setting the law in motion. Simply giving a candid account, however incriminating, to the police, is not sufficient.

The test is whether the defendant did more than tell the detective the facts and leave him to act on his own: Econet Wireless (Pvt) Ltd v Sanangura 2013 (1) ZLR 401 (S), 408AB; Bande v Muchinguri 1999 (1) ZLR 476 (H), 484.

Second, a plaintiff must prove that there was no reasonable and probable cause.

Third, that the arrest, prosecution, or detention was actuated by malice.

Lastly, that the prosecution failed.”

It held that the respondent had satisfied the first requirement. It held that the evidence led before the court a quo established that the appellant, prima facie, set in motion the events that resulted in the arrest of the respondent.

The respondent had testified that the appellant had admitted, in his plea, that he made the report to the police. He had also made a report not only to senior Government officials but also to the Attorney General's Office. He further approached the Reserve Bank Governor, and had been given the sum of US$5,000 in order to entrap the respondent.

The court thereafter concluded that the court a quo ought to have dismissed the application for absolution from the instance. It then allowed the appeal. It further substituted the court a quo's judgment with an order dismissing the application for absolution from the instance.

The Supreme Court had spoken.

Decisions of this Court are absolute, as the Supreme Court is the final court of appeal in all matters, except in matters of a constitutional nature.

The court, in Kasukuwere v Mangwana SC78-23…, quoted with approval the case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited & Anor 2018 (2) ZLR 743 (CCZ)…, wherein it was held that:

“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court, on a non-constitutional matter, is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct.

The correctness of the decision at law is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.”…,.

The Supreme Court decision, being final, was correct.

Because of the principle of stare decisis, the decision was binding on the court a quo. The principle of stare decisis is that a lower court cannot depart from findings on questions of fact and law made by a superior court: see Denhere v Denhere & Anor CC09-19; Diana Farm (Pvt) Ltd v Madondo NO & Anor 1998 (2) ZLR 410 (H).

The question pertaining to absolution from the instance at the close of the respondent's case, having been decisively dealt with by a Superior Court, the court a quo could not depart from the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.

It therefore correctly determined, that, it was bound and that put to rest the questions on whether the respondent had established a prima facie case that the appellant, without reasonable cause, caused the arrest, prosecution, and detention of the respondent by making a patently false report.

It is therefore an exercise in futility to delve into the submissions by the parties on the correctness or otherwise of the Supreme Court decision.

All that the court a quo was therefore required to do was to determine whether, following the appellant's evidence in rebuttal, the respondent had established his claim on a balance of probabilities.

The appellant argued, that, he led evidence that controverted the prima facie case held in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19 to have been established by the respondent.

It contended, that, the court a quo misdirected itself when it made a finding that the prima facie evidence of the respondent mutated, at the end of the trial, to proof on a balance of probabilities.

It further contended, that, the court a quo should not have found the appellant liable for damages for malicious arrest, prosecution, and detention.

At the conclusion of the trial, the court a quo considered the respondent's evidence together with the appellant's evidence. It arrived at the conclusion, that, the respondent had indeed established that the appellant had instigated the respondent's arrest, prosecution, and detention.

Its findings were distinct from, but consistent with, the findings of this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.

It related to the admissions made by the appellant in paragraph 5.1 of his plea, that he reported to the police that the plaintiff had solicited for a bribe and that the police did not have an obligation to act on the report unless they formulated a reasonable suspicion that an offence had been committed. It held at pages 7 to 8 that:

“None of the admissions made by the defendant were withdrawn, neither was there any attempt to amend the plea. More importantly, the defendant did not explain in his evidence, or in his closing address, why what was clearly a confessionary pleading could be contradicted by viva voce evidence given by the same pleader. The impression created by the defendant is that an admission made in pleadings could be cast away by the presentation of evidence contradicting it.

The law relating to admissions must be taken as settled in this jurisdiction.

A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party has made. By the same token, a party cannot be allowed to attempt to disprove admissions it has made.

This is by virtue of section 36 of the Civil Evidence Act [Chapter 8:01] which also makes it unnecessary for any party to civil proceedings to disprove any fact admitted on the record of proceedings. Subsection (4) of section 36 also makes it clear that it shall not be competent for any party to civil proceedings to disprove any fact admitted by him on the record of proceedings….,.

Accordingly, the fact that the defendant placed information before a police officer, and that he made a report that the plaintiff solicited a bribe from him is taken for granted. The plaintiff did not have to prove that fact. Equally, it was not competent for the defendant to attempt to disprove what was in fact admitted by him on the record of proceedings.

In any event, whatever my views may have been on the admission made would have counted for nothing because the Supreme Court has already made conclusive findings on it.”

The remarks by the court a quo clearly establish, that, the court did not mutate the findings of this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, that the respondent had established a prima facie case, to proof of his case on a balance of probabilities.

It arrived at its own separate decision.

The appellant, however, chose to harp on the remarks of the court a quo at p9 that:

“The Supreme Court has said so, and the prima facie evidence of the plaintiff mutated to proof of the plaintiff's case on a balance of probabilities.”

The appellant has, in no doubt, chosen to turn a blind eye to the context in which the remarks were made in paragraph 30. The remarks came at the end of an analysis by the court a quo of all the evidence that had been adduced before it.

The appellant therefore sought to gain mileage out of just that one sentence.

On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.

At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. Set out hereunder are the Court's reasons thereof.

The appellant is a prospective Presidential candidate in the forthcoming Presidential Election slated for 23 August 2023. The first respondent is a registered voter in Ward 1 Mhondoro Ngezi Constituency. The second respondent is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (the Constitution). It is responsible for the administration of elections in Zimbabwe. The third respondent is the Minister of Justice, Legal and Parliamentary Affairs. He is cited in his official capacity.

The facts founding the instant appeal are as follows:

On 21 June 2023, the appellant, amongst other prospective candidates, successfully lodged his nomination papers as a Presidential candidate before the Nomination Court. The first respondent became aware of the appellant's nomination and acceptance of candidature through the social media.

He took exception to the acceptance of the appellant's candidature.

In a letter dated 22 June 2023, addressed to the Chief Elections Officer, the first respondent stated, that, the appellant had not been resident in his constituency, and in the country, for a continuous period of eighteen (18) months.

He further stated, that, the appellant did not therefore meet the requirements set out under section 91(c)–(d) of the Constitution.

He also stated that section 23(1) and (3) of the Electoral Act [Chapter 2:13] (the Act) mandated that a registered voter ceased to be retained on the voters roll if he had not resided in that constituency for a continuous period of eighteen (18) months.

In reply to the letter, the second respondent advised the first respondent to approach the Electoral Court for relief.

The first respondent, thereafter, filed, in the High Court, an urgent court application under section 85(1)(a) of the Constitution alleging that his fundamental rights under section 56(1), section 67(1)(a) and 67(3) had been violated.

He contended, that, the decision of the Nomination Court to accept the nomination for candidature of the appellant violated section 91(1)(c)–(d) as read together with paragraph 1(2) of the 4th Schedule to the Constitution as read with section 23(3) of the Electoral Act.

The first respondent averred, that, he approached the High Court as he was of the view that the Electoral Court does not have the jurisdiction to issue declaratory relief.

He further averred, that, the Electoral Act and Electoral (Applications Appeals and Petitions) Rules 1995 (S.I.74A of 1995) (the Electoral Rules) did not provide him with any relief.

In opposing the application, the appellant raised several preliminary objections:

He stated, that, the court a quo did not have the jurisdiction to hear and determine electoral matters in which the Electoral Court has exclusive jurisdiction. He argued, that, the first respondent could have proceeded in terms of section 28(1) and 33(1) of the Electoral Act.

He further stated, that, the first respondent had no locus standi to bring the application.

The appellant further alleged, that, the first respondent approached the court a quo on wrong choice of law, and in violation of the principle of subsidiarity.

On the merits, the appellant stated that the first respondent failed to show how the decision of the Nomination Court violated his constitutional rights.

The appellant admitted that he temporarily left the country on medical grounds but denied that he was out of the country for a continuous period of eighteen (18) months.

The second respondent filed a notice indicating that it would abide by the decision of the court a quo.

On the preliminary points raised, the court a quo made the following findings:

(a) On jurisdiction, that it had jurisdiction in terms of section 171(1)(a) and (c) as read with section 85(1) of the Constitution;

(b) In respect to locus standi of the first respondent, it found that he had the locus by virtue of section 85(1)(a) of the Constitution, which accords an individual the right to approach a court alleging a violation of his fundamental rights;

(c) On wrong choice of law, it found that the Electoral Court does not have the necessary jurisdiction to issue declaratory orders. It further found, that, the application was not a review disguised as a declarator as the first respondent had no remedy of review under any other law; and

(d) On the question of breach of the principle of subsidiarity, it held that the first respondent had no other remedy under any other law but to approach a court under section 85(1)(a) of the Constitution.

On the merits, the court a quo made the following findings:

(a) That, once the first respondent had made a negative averment, which was admitted by the appellant, that the appellant had left the country, the onus shifted to the appellant to prove that he was not out of the country and his constituency for a continuous period of eighteen (18) months;

(b) That, the appellant had failed to discharge the reverse onus placed upon him;

(c) In interpreting section 23(3) of the Electoral Act, it held that once a person is absent from the country, and, therefore his/her constituency, for the prescribed period, he/she is deemed, by operation of law, to have ceased to be a registered voter.

It further found, that, cessation of registration as a voter in turn disqualifies one from nomination as a Presidential candidate;

(d) That, the appellant was not resident in the country, and, as such, not resident in his constituency for a continuous period of eighteen (18) months.

Accordingly, the court found, that, the appellant had ceased to be a registered voter, and, consequently did not qualify for nomination as a Presidential candidate.

Following the above findings, the court a quo issued the following order:

“IT IS DECLARED:

1. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 was a violation of the provisions of section 91(1)(c) and (d) read together with paragraph 1(2) of the Fourth Schedule of the Constitution of Zimbabwe 2013 as further read together with section 23(2) of the Electoral Act.

2. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is in violation of applicant's constitutional rights as set out in sections 56(1), 67(2)(a) and 67(3)(a) of the Constitution of Zimbabwe 2013.

3. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is declared null and void and of no force and effect and hereby set aside.

4. That, first respondent is not a candidate for election to the office of President of Zimbabwe in the elections scheduled to be conducted on 23 August 2023.

ACCORDINGLY, IT IS ORDERED:

5. Second and third respondents shall not include the name of first respondent in the preparation of ballot papers to be used in the elections scheduled to be conducted on 23 August 2023.

6. First respondent is interdicted from representing of holding himself out to the general public and electorate in Zimbabwe of abroad, whether physically or through any form of media, as a candidate for election to the office of the President of Zimbabwe in elections scheduled to be held on 23 August 2023.

7. Each party shall bear its own costs.”

Dissatisfied with the court a quo's decision, the appellant filed the instant appeal on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that it had the requisite jurisdiction to deal with the matter when the dispute before it clearly emanated from the Electoral Act [Chapter 2:13], and, in particular, sections 23, 28 and 33 thereof.

2. By finding that the 1st respondent had locus standi in judicio and adopting a liberal approach to it in a clearly non-constitutional matter, the court a quo committed an error at law which must be impeached by this Court.

3. By finding that the General Notice 1128-2023 made in terms of section 106 of the Electoral Act [Chapter 2:13] did not constitute law, the court a quo grossly erred and misdirected itself as it ignored the provisions of section 15A and 20 of the Interpretation Act [Chapter 1:01].

4. By entertaining the application on constitutional basis as it did, the court a quo erred and violated the constitutional principle of subsidiarity as it ignored specific provisions in the Electoral Act [Chapter 2:13], Administrative Justice Act [Chapter 10:28] and/or common law, which provide specific, adequate, and satisfactory remedies to the 1st respondent.

5. A fortiori, the court a quo erred in making an uncanny finding, that, the decision of the Nomination Court did not constitute a reviewable decision at law thereby dismissing the preliminary point that the application was a disguised review process.

6. The court a quo further erred in placing reverse onus to the appellant to prove his residence status in violation of the law and in complete disregard of the averments that were made by the 1st respondent in evidence.

7. Further, the court a quo erred in making a finding that the averments pertaining to the residence status of the appellant, as made by the 1st respondent, were in the negative thereby improperly applying the law.

8. Related to ground number 7 above, the court a quo grossly misdirected itself in making a factual finding that the appellant was not or has not been in the country for a period stipulated in section 23(3) of the Electoral Act in the absence of evidence establishing the same.

9. In taking purported judicial notice of the alleged absence of the appellant from Zimbabwe, the High Court erred, in using the principle of judicial notice to assist the 1st respondent in discharging an onus that he had miserably failed to establish on the founding papers.

10. The court a quo erred and misconstrued section 23 of the Electoral Act in deeming the appellant removed from the voters roll without having regard to section 28 of the same which posits a process which must be followed in removing a registered voter from the voters roll thereby disqualifying him as a Presidential candidate for the forthcoming plebiscite.

11. All in all, the court a quo erred at law by granting as it did, an unspeaking order with the result that no one knows what relief exactly was granted in the absence of an un-issued draft order which does not form part of the disposition of the judgment.

12. The court a quo erred at law in granting an application without making a positive finding on the infringement of section 67 of the Constitution.

The appellant prays that the appeal be allowed with costs and that the judgment of the court a quo, handed down under EC10/23, on 12 July 2023, be set aside and in its place and stead thereof be substituted with the following:

'IN THE MAIN, the court declines its jurisdiction.

IN THE ALTERNATIVE, the application is struck off the roll with costs.

IN THE ALTERNATIVE, the application is dismissed with costs on an attorney-client scale.'”

By consent, the above grounds were amended by adding the following:

“13. In dealing with the question of the perceived absence of the appellant from a constituency, and not cessation of residence in a constituency, the court a quo erred, and, by so doing, conducted a wrong enquiry leading to a judgment that is contrary to the dictates of section 23(3) of the Electoral Act.

The court a quo erred at law in disposing of the matter before it on the basis of perceived absence from a constituency when the law upon which the application was predicated, section 23(3) of the Electoral Act, relates to cessation to reside in a constituency, a totally different concept that has its own different requirements.”

Prior to the hearing of this appeal, the appellant had, by letter dated 21 July 2023, and addressed to the Registrar, requested the appointment of a five-member Bench to determine whether or not the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 was properly decided.

At the commencement of the proceedings, the appellant abandoned the request and submitted that the matter should proceed before the Bench as constituted.

Counsel for the second and counsel for the third respondent submitted that they would abide by the decision of the court....,.

The appellant submitted as follows:

The first respondent made a bare averment in his founding affidavit before the court a quo that the appellant was outside the country, without providing any evidence. This is a positive averment, and, therefore, the first respondent had the onus to prove that the appellant was out of the country.

Whilst conceding that the appellant was out of the country temporarily on medical grounds, the concession was not a basis for reversing the onus.

The court a quo was therefore wrong in finding that the appellant had reverse onus.

It was further submitted as follows:

The court a quo misconstrued section 23(3) of the Electoral Act. The said provision relates to cessation of registration as a voter as opposed to absence from the country and constituency.

The first respondent's founding affidavit was premised on absence.

The court a quo embarked on a wrong inquiry, whether the appellant was absent from the country and his constituency instead of inquiring into whether he had ceased to be a voter.

Further, that section 23 of the Electoral Act is not a deeming provision.

It does not render the appellant automatically removed from the voters roll.

Section 28 of the Electoral Act is the relevant provision that ought to be engaged in order to remove a registered voter from the voters roll - after complying with the procedure set out thereunder.

The failure by the first respondent to engage the procedure set out in section 28 of the Electoral Act was detrimental to his case.

In response, the first respondent submitted as follows:

The averment by the first respondent, that the appellant was not in the country, was a negative averment. Such an averment could not be proved by the first respondent.

Once the appellant conceded, as he did in his opposing affidavit, that he had indeed left the country it was incumbent upon him to state when he returned.

It was submitted, that, the interpretation of section 23(3) of the Electoral Act has been interpreted by the Constitutional Court in a number of cases, and the Supreme Court is therefore bound by the decisions in those cases.

The crux of the appellant's complaint on this issue is that the court a quo arrived at an incorrect factual conclusion regarding whether or not he was in the country and his constituency for a continuous period of eighteen (18) months.

This Court finds, that, the court a quo was correct in finding, as a fact proved, that the appellant was outside the country, and, therefore his constituency, for a continuous period of eighteen (18) months.

Section 91(1) of the Constitution sets out the factual premise that must be satisfied regarding the residency status of a Presidential candidate. It is worded as follows:

“91 Qualifications for election as President and Vice-President

(1) A person qualifies for election as President or appointment as Vice-President; if he or she —

(a) Is a Zimbabwean citizen by birth or descent;

(b) Has attained the age of forty years;

(c) Is ordinarily resident in Zimbabwe; and

(d) Is registered as a voter.”…,.

It is apparent from the above that a person aspiring to be a President must be ordinarily resident in Zimbabwe and must be a registered voter.

The question to be answered is whether the appellant was ordinarily resident in Zimbabwe and a registered voter at the time the Nomination Court accepted his nomination as a Presidential candidate for the forthcoming elections.

The first respondent's contention is that the appellant had not been resident in Zimbabwe for a continuous period of eighteen (18) months and had therefore been deemed to have ceased to be a registered voter.

The appellant conceded leaving the country, temporarily, for purposes of receiving medical care.

The Court agrees with the first respondent's submissions.

It is trite that what is admitted need not be proved.

Therefore, this Court holds that once the appellant conceded that he left the country, and, therefore, his constituency, the onus shifted to him to prove that he was not absent from the country and his constituency for a continuous period of eighteen (18) months.

This is so because this is information which is specifically within his knowledge.

As was stated in Musanhi v Mt Darwin Rushinga Co-operative Union 1997 (1) ZLR 120 the question whether an averment is positive or negative is not material. GUBBAY CJ remarked at p123 that:

“The learned Judge President took the view, that, as the respondent could not be required to prove a negative, that is, non-delivery, the onus was on the appellant to prove the deliveries on a preponderance of probabilities. This he had failed to do. Counsel for the appellant argued before this court, that, it is not a rule of our law that the onus of proof cannot lie upon the party who makes a negative allegation. It still has to be determined who can be said to assert and who to deny.

I agree with that submission.

It is not very helpful, in my opinion, to ask whether a party is making a positive or negative allegation. This is because by adroit linguistic manipulation a positive averment can always be couched into a negative statement: see Hoffmann and Zeffertt South African Law of Evidence 4ed at 511.

I prefer, and commend, the approach of Grosskopf JA in Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) where, at 392D-E, the learned Judge of Appeal remarked:

'It has often been said that determining the incidence of the onus of proof 'is merely a question of policy and fairness based on experience in the different situations:' Wigmore as quoted in Mabaso v Felix 1981 (3) SA 865 (A) at 873C and During NO v Boesak & Anor 1990 (3) SA 661 (A) at 673A.

As a matter of fairness and sound judicial policy, it seems reasonable, that, where one party has the means of establishing a particular fact and his opponent not, the onus should rather be on the former than on the latter. Although this factor would not be conclusive, it should, in my view, be accorded some weight. It was taken into consideration in Mabaso's case supra at 873E-F in determining the onus in civil cases where a defendant relies on self defence as a justification for what would otherwise be an assault.'

And continued at 393D-F:

'…,. It is not a principle of our law that the onus of proof of a fact lies on the party who has peculiar or intimate knowledge or means of knowledge of that fact. The incidence of the onus is determined by law. In many cases, the person burdened by the onus, as laid down in the sources of our law, may be required to prove a fact which is peculiarly within the knowledge of his adversary. This does not, however, mean that a court, where the incidence of the onus of proof in a particular situation is uncertain and has to be determined, may not have regard, inter alia, to matters of practical convenience and fairness such as the sources of knowledge available to the rival parties.'”…,.

The court a quo cannot be faulted for holding that the appellant had the onus of proving when he returned to the country as the evidence of his return was in his exclusive knowledge.

It is common cause that the appellant is not within the country.

The court a quo was correct in taking judicial notice, as this Court also does, of the fact that all the appellant's affidavits, in relation to this matter, are being notarised from South Africa.

The appellant failed to discharge the onus cast upon him.

The court a quo was therefore correct in making a factual finding that the appellant was not in the country, and his constituency, for a continuous period of eighteen (18) months.

It is trite that this Court does not lightly interfere with factual findings of a lower court: see Barros v Chimphonda 1999 (1) ZLR 58.

The court a quo thus properly exercised its discretion in making the factual finding, and, there is no basis upon which it can be impugned.

Section 23(3) of the Electoral Act provides:

“(3) A voter who is registered on the voters roll for a constituency, other than a voter who has been registered in that constituency in terms of the proviso to subsection (1), shall not be entitled to have his or her name retained on such roll, if, for a continuous period of eighteen months, he or she has ceased to reside in that constituency: Provided that nothing in this subsection shall prevent his or her name from being struck off such voters roll —

(a) On his or her being registered in another constituency; or

(b) If he or she becomes disqualified for registration as a voter.”…,.

The import of the provision was considered in the case of Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission & Ors 2017 (1) ZLR 7 (CC), wherein MALABA DCJ…, held at 10H-A that:

“Section 23(3) required that a voter be ordinarily resident in the constituency in which he or she was to vote for purposes of being qualified for registration on the voters roll for that constituency. If the voter became absent from the constituency in which he or she was registered as a voter for a continuous period of twelve months, his or her name had to be removed from the voters roll of that constituency as he or she would be deemed to have ceased being a resident of that constituency.”…,.

See also Shumba & Ors v Minister of Justice, Legal and Parliamentary Affairs 2018 (1) ZLR 509 (CCZ).

Thus, it is apparent that section 23(3) of the Electoral Act is a deeming provision.

The import of the provision is that cessation of registration on the voters roll is an inescapable consequence of one's absence from his constituency for a continuous period of eighteen (18) months.

In other words, once a registered voter is absent from his constituency for the prescribed period, he automatically ceases to be a registered voter.

The appellant's contention, that he was absent from his constituency on medical grounds, appears to be premised on section 33(3) of the Electoral Act which provides:

“(3) In determining the period of absence of any person for the purposes of subsection (2), no account shall be taken of any period during which the person -

(d) Resides outside Zimbabwe on account of ill health and disability.”

That section relates to instances where the voter registration officer considers whether a voter has become disqualified for registration as a voter.

In those circumstances, the onus lies on the appellant to prove the reason for absenteeism.

Apart from his mere say so, the appellant did not produce any evidence to show that he was temporarily absent from his constituency on medical grounds for the duration of the prescribed period.

As correctly found by the court a quo, the appellant failed to prove that he was out of his constituency on medical grounds.

Proof of his absence, on medical grounds, was within his personal knowledge.

The appellant's absence therefore resulted in him being deemed to have ceased to be a registered voter by operation of law.

Accordingly, there is no merit in the appellant's appeal on this issue....,.

In summing up, this Court has made the following findings, that:

1. It has jurisdiction to hear and determine the appeal;

2. The court a quo had the jurisdiction to hear and determine the constitutional application before it in terms of section 85(1) of the Constitution, and, the question of subsidiarity does not arise;

3. The Electoral Court had no jurisdiction to issue a declarator;

4. The first respondent had locus standi;

5. The court a quo made the correct factual finding, that the appellant was absent from the country and therefore absent from his constituency for a continuous period of eighteen (18) months;

6. The court a quo correctly interpreted section 23(3) of the Electoral Act, to the effect that the appellant's absence from his constituency for the prescribed period entailed cessation of his registration as a voter, and, consequently, disqualified him from nomination as a Presidential candidate.

The above findings of fact and law are dispositive of the appeal, and, it is therefore not necessary to relate to other issues raised by the appellant.

That being the case, and on the basis of such findings, the appeal cannot succeed. This being a constitutional matter, it is customary not to award costs.

It was for the foregoing reasons that this Court dismissed the appeal with no order as to costs.

The final argument taken by counsel for the appellant was that vindicatory relief could not have been granted where, as in casu, the amount owing was discharged in full in local currency on 6 December 2006.

He contended, that, the respondent declined to accept payment in local currency in preference to hard currency, at a time when payment in hard currency between two locals, for a local transaction, was prohibited by the Exchange Control Regulations.

It is noteworthy, that, while counsel for the appellant attacked the granting of the actio rei vindicatio, he did not impugn the court a quo's finding that the onus lay on the appellant to show that it had paid the purchase price for the immovable properties in full.

The contention, however, seeks the determination of whether or not the cheque payment of ZW$2,5m tendered on 6 December 2006, and rejected and returned on 12 December 2006, constituted payment in full of the amount owing.

The parties did not assist the court a quo establish the aggregate amount that was paid by the appellant towards the purchase price. Indeed, the court a quo held, at p19 of its judgment, that “it would be fair to say that witnesses for both parties struggled to state the precise sum due at any given time.”

It is necessary, at this stage, to tabulate the payments reflected, first, in the respondent's 'Schedule of Payments' of 3 May 2006, and, second, in the appellant's Settlement Schedule of 25 October 2006.

I have interpolated the United States dollar equivalent amounts of the local payments made at the auction conversion rates supplied by the Central Bank on 30 June 2010 for the period 29 November 2004 to 6 December 2006 (pp251-253 of the appeal record).

The sole witness for the respondent, Jose Vieira, testified that as at 7 November 2006, the appellant had, in respect of both agreements, paid a total sum of ZW$1,805,000,000 exclusive of the interest due for late payment.

He asserted, that, converted at the auction rate prevailing on the date of each payment, the said amount was equivalent to US$129,731. The amount owing as at that date was in the sum of US$570,269 which was equivalent to ZW$142,567,250,000.

The Zimbabwe dollar equivalent continued to balloon in tandem with the widening parity rate between the two currencies prospective to 1 February 2009 when Zimbabwe dollarized.

His testimony was at variance with the sworn affidavit of Luis Vieira dated 14 November 2005.

Luis Vieira asserted, that, the appellant had paid, as at that date, a total sum a ZW$1,930,000,000.

The sole witness called by the appellant, Danny Musukuma, produced the Schedule of Settlement, which showed that the appellant had, by 4 January 2006, paid a total sum of ZW$2,530,000,000 exclusive of the interest due for late payments (he testified that the appellant did not pay any amount on 29 November 2004. I have therefore excluded the purported globular payment of ZW$430,000,000 shown in the Schedule of Settlement in computing the amount that the appellant had paid as at 3 January 2005).

This was, when converted at the auction rate prevailing on each date of payment that was availed by the Central Bank, equivalent to US$242,624=25.

At the appropriate conversion rate, the ZW$500,000,000 that was rejected and returned on 2 August 2006 would have been equivalent to US$16,666=67, and, the cheque payment of ZW$2,500,000 (revalued) to US$83,333=33.

However, as the later amount was paid in place of the earlier amount, the total paid, inclusive of the rejected last payment, would have been the revalued sum of ZW$5,030,000 which would have been equivalent to US$325,952=58 computed as at the relevant conversion rate on the date of each payment.

In view of the congruence of evidence between the evidence of Danny Musukuma and Luis Vieira, I can safely find, that, as at 4 January 2006, the appellant had, in respect of both agreements, paid the aggregate principal sum of ZW$2,530,000,000. This amount was equivalent to US$242,624=25.

The amount due in United States dollars was US$457,375=75 while its equivalent local currency would only be known on the date of payment.

Clauses 2, 5 and 6 of the Agreement of Sale provided that:

“2. The Purchase Price payable by the Purchaser to the Seller is the sum of US$219,000 (Two Hundred and Nineteen Thousand United States Dollars), hereinafter referred to as the purchase price.

5. In the event of any default in payment of any portion of the purchase price, interest shall accrue with effect from the due date of payment on the outstanding balance of the Purchase Price from time to time at the rate of seven and a half per centum calculated on a daily basis.

6. The Zimbabwe Dollar equivalent of the United States Dollar shall be calculated at the auction rate prevailing in terms of the Zimbabwe Reserve Bank Auction System as at the effective date.”

Clauses 2 and 6 show, that, while the parties fixed the purchase price in United States dollars, they intended payment to be made in local currency at the auction rate applicable on the effective date.

The facts of this matter are aptly captured in two earlier judgments.

The first is a judgment of this court in Nherera v Shah 2015 (2) ZLR 455 (H) which granted absolution from the instance at the conclusion of the plaintiff's case. The second is a judgment of the Supreme Court, on appeal, in Nherera v Shah SC51-19 which allowed the plaintiff's appeal against the grant of absolution from the instance and remitted the matter to this court for continuation of the trial proceedings.

For completeness, and to put the matter in proper perspective, I will summarise those facts as follows:

On 30 November 2011, the plaintiff sued out a summons against the defendant claiming damages of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention.

The plaintiff alleged, that, on 21 March 2006, and on several diverse other occasions, the defendant had reported that he had solicited for a bribe in order to facilitate the purchase of certain buses from Gift Investments (Pvt) Ltd, a company in which the defendant had an interest, by Zimbabwe United Passengers Company (“ZUPCO”), another company in which the plaintiff was the chairperson of the Board of Directors.

The plaintiff alleged, that, when making the report, the defendant knew that it was false and malicious. All he intended to do was to coerce the plaintiff and Zimbabwe United Passengers Company (ZUPCO) to purchase his company's buses without following proper tender procedures.

The plaintiff averred, that, as a result of the defendant's report, he was arrested, prosecuted for contravening a provision of the Prevention of Corruption Act [Chapter 9:16] (now repealed), and sentenced to three (3) years imprisonment of which one year imprisonment was suspended on condition of future good behaviour.

It was further alleged by the plaintiff, that, on 19 November 2009, this court quashed the conviction on appeal and set aside the sentence.

By procuring his arrest, prosecution, and imprisonment, so the plaintiff alleged, the defendant maliciously caused him injury to his reputation, dignity, and liberty thereby entitling him to damages aforesaid.

In contesting the claim, the defendant denied instigating the plaintiff's arrest, prosecution, and detention.

He however admitted placing information that he held before a police officer in good faith, in the honest and bona fide belief that the plaintiff had solicited for a bribe. The act of conveying that information, so the defendant pleaded, was neither wrongful nor as result of a subjective malicious intent to injure the plaintiff.

According to the defendant, the decision to arrest was that of the police, upon a consideration of all the relevant information, and the formulation of a reasonable suspicion that the plaintiff had committed a criminal offence. The decision to prosecute was that of the Attorney General of Zimbabwe (now the Prosecutor General), in the exercise of a Constitutional mandate, and upon consideration of all relevant facts.

The defendant further averred, that, the decision to imprison the plaintiff was that of the trial magistrate, upon consideration of all the evidence placed before her and in the discharge of her lawful mandate.

He insisted that the information conveyed to the police was true and was conveyed in good faith in the discharge of a subject's obligation to adhere to the laws of Zimbabwe.

The defendant admitted in his plea, at paragraph 5.1 thereof, that he “reported to the police” that the plaintiff had solicited for a bribe as alleged. He asserted that he did no more than place a report before the police who were not obligated to arrest the plaintiff upon the making of such report. The police could only do so upon formulating a reasonable suspicion that an offence had been committed.

Regarding the quashing of the conviction, the defendant denied that it meant that the allegations he made were false or that the plaintiff had not solicited for a bribe, or that the report he made was malicious.

The issues for trial, as determined by the parties at a pre-trial conference held before a judge and set out in the joint pre-trial conference minute they signed, are as follows:

1. Whether the report to the police was the cause of the plaintiff's arrest, prosecution, and detention.

2. Whether the said report was made in good faith or whether it was false and malicious.

3. Whether the prosecution failed.

4. What damages, if any, were suffered by the plaintiff as a result.

Only two witnesses testified during the trial. The plaintiff stood against the defendant, with each of them testifying against the other.