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

View Appeal
HH321-17 : NORMAN MAFERERA vs SUSAN JANUARY
Ruled By: MATANDA-MOYO J

The plaintiff instituted eviction proceedings against the defendant before this court. He claimed for the eviction of the defendant from Stand No.936 Glen Norah Township, Harare and holding over damages of $330 per month from the date of summons to date of vacation. The plaintiff also sought an order for costs on a higher scale.

The plaintiff claimed that he is the owner of Stand 936 Glen Norah Township and that the defendant is unlawfully occupying the premises.

The defendant opposed the claim on the basis that she is lawfully occupying the property; it being owned by her late father, Bafion January.

The defendant claimed that the initial transfer of the property to Chabuka was done fraudulently, and, hence, any subsequent transfer should be declared null and void.

She denied that the plaintiff is entitled to any holding over damages.

She prayed that the plaintiff's claim be dismissed with costs.

At the pre-trial conference, the issues referred for trial were as follows;

(a) Whether or not the plaintiff is the lawful owner of Stand No.936 Glen Norah Township, Harare.

(b) Whether or not the plaintiff is entitled to holding over damages, and, if so, the quantum thereof.

The plaintiff led evidence on his own behalf. His evidence was that he bought the property from a Mr Felix Katsvamutima Shamuyarira in 2013 for $20,000. At the time of purchase, the property was in the name of Bafion January. At City of Harare there were documents indicating the property had been sold by Bafion January to Felix Katsvamutima.

This witness was advised that the property had to be transferred from Bafion January to Felix Katsvamutima before any transfer to him could be done. Mr Katsvamutima had the property ceded to him, and, thereafter it was ceded to the plaintiff. The rates and water bills were also changed to reflect the plaintiff's name.

The plaintiff insisted that as the owner of the property he was entitled to vindicate his property from the defendant.

The plaintiff said he wanted holding over damages in the sum of $330 per month from date of summons. He testified that the amount was the average rentals payable by tenants in that area.

Under cross-examination, the plaintiff said Felix Katsvamutima bought the house from Bafion January in 1991.On being asked why he failed to take cession of the house for so long this witness said Felix Katsvamutima informed him that he (Katsvamutima) had lost the documents pertaining to the property.

He also mentioned that Bafion January's two children, who witnessed the sale, did not appear on the house card kept at Council but the defendant's name appeared on the card.

When questioned whether he was aware that he bought property acquired fraudulently, this witness responded that if it were so the defendant would have made a police report.

This witness testified that the purchase price was only released to Mr Katsvamutima after cession had passed.

Felix Elijah Shamuyarira testified that he bought the property in question from Bafiona January in 1991. He explained that he grew up using his mother's surname, Chabuka. He later changed his name to his paternal one. Shamuyarira.

He produced documents to that effect.

When he purchased the house, he explained that Ellen Manyanga (Bafion January's ex-wife) and her brothers were in occupation of the house. They indicated they wanted to buy back the house from him. Ellen Manyanga and Bafion January had divorced when the house was sold to Felix Shamuyarira.

This witness only changed ownership with the Council on 3 October 2013. He explained that the delay in transferring property was due to lost documents. He only recovered the documents in 2012. He admitted that he sold the property to the plaintiff before changing ownership into his name. He testified that the sale was above board. Officials from the City council and he even visited the house and met with the defendant, who did not raise any objections when told that the house had been sold. The defendant even assisted this witness in evicting her uncles from the property. It was only after such eviction that the defendant moved into the property.

Under cross-examination, Felix Elijah Shamuyarira denied that he changed his name in order to steal the house. He insisted he bought the house and later sold it to the plaintiff who is the current owner of the house.

Susan Matanhire testified that she was a neighbour to the late Bafion January. Sometime around 2012 she was told that a letter had been received from Felix Elijah Shamuyarira who wanted to know the persons residing at the property. She sent word to the defendant who was then in the rural areas. The two proceeded to Felix Elijah Shamuyarira's offices. Felix Elijah Shamuyarira offered to assist the defendant to evict her uncles who were residing at the property. Thereafter, he indicated the keys were to be brought to him. This witness testified that after the uncles were evicted the defendant moved in.

Felix Elijah Shamuyarira was not happy with the move.

This witness and the defendant approached Felix Elijah Shamuyarira and requested him to assist in recovering documents from one Rashiwe. Felix Elijah Shamuyarira retrieved the documents. This witness heard from the defendant that the bills were coming in the name of Chabuka. After two months, bills were in the name of the plaintiff.

Under cross-examination, she admitted she would not know whether the property was sold or not as she was only a neighbour.

Winnie Musendekwa testified that the defendant updated her on developments relating to the property. She admitted that the defendant advised her that (she), the defendant, had been called by Felix Elijah Shamuyarira to discuss about the property. The defendant refused to go in the absence of her older siblings. This witness testified that she advised the defendant to check with the City Council on whether the property was sold. The defendant advised her that the file could not be located. This witness said she knew Bafion January divorced his wife and there was a court order which directed that the house was to be sold and money generated from the sale was to be shared between the two. However, she testified that Bafion January's wife was given money to pay off Bafion January.

She had no knowledge of how the house documents ended up with Felix Elijah Shamuyarira.

Under cross-examination, she admitted she was not aware of the house being sold. She admitted the estate was not registered.

The defendant testified that the property in question belongs to her late parents. In 2012 she was shown documents by Felix Elijah Shamuyarira that the property was sold to Chabuka in 1991. She first met Felix Elijah Shamuyarira at his offices in response to a letter he had written enquiring on residents at the property. Felix Elijah Shamuyarira was worried about the ballooned City Council bills. She said it was clear Felix Elijah Shamuyarira was not Chabuka. They discussed and Shamuyarira indicated that he would evict the persons occupying the premises. He stressed, though, that the keys were to be handed to him. Those persons were later evicted and the defendant moved into the house.

In January and February 2013 this witness noticed that Council bills were in the name of Chabuka. In March, the bills were reflecting the plaintiff's name.

Under cross-examination, she insisted that Bafion January could not sell the house without his wife's consent, hence the sale was fraudulent. She agreed that whilst the signature of Bafion January, appearing on the Agreement of Sale, was similar to that on the certificate of occupancy she still believed the agreement was forged. She admitted her parents were divorced then. She also admitted that the house was never part of her father's estate. When her mother passed on the house was also not registered as part of her mother's estate.

Analysis of Evidence

From the evidence led, it is common cause that the late Bafion January and his late wife had divorced – Harare Community Court case No.1098/90 refers.

According to that order, the house was to be sold with Bafion January's late wife getting two thirds from the proceeds.

The late Bafion January indeed sold the house to Mr Felix K Chabuka. The late Bafion January instructed his lawyers, Gutu and Jakachira, to defend any proceedings in relationship to the sale. The late Bafion January wrote a letter to that effect to his then lawyers on 23 April 1991. The lawyers had advised the late Ellen Manyanga, through a letter dated 10 April 1991, to collect her share of the money amounting to $3,333=33.

On 23 April 1991, the late Bafion January was responding to a letter from his lawyers that his late wife had the intention to buy the late Bafion January's share of the property.

This then bolsters the plaintiff's version that the said F.K. Chabuka delayed getting transfer in order to allow the late Bafion January's wife to buy back the property.

No evidence was placed before me, by the defendant, to prove that the late Ellen Manyanga bought back the property.

The defendant suggested that Mr Shamuyarira was not the same F.K Chabuka appearing on the Agreement of Sale. She made bold assertions that the said F.K. Chabuka was deceased. To that end, she suggested Mr Shamuyarira was a fraudster intending on defrauding her of the property.

Mr Shamuyarira, in rebuttal of such evidence, produced his birth certificate which showed that his birth certificate was initially registered with the names Felix Katsvamutima Chabuka. The surname was later altered to Shamuyarira from Chabuka; birth entry HRE6303/68 refers.

I am of the view that Mr Shamuyarira did manage to show that Felix Elijah Katsvamutima Chabuka and Felix Elijah Katsvamutima Shamuyarira is one and the same person.

The defendant's suggestion, that Mr Shamuyarira was not the same Chabuka who bought the property, falls away.

Of course, the mere fact that the agreement was concluded in 1991 and transfer only taken in 2013, some twenty two years later, required some explanation.

Mr Shamuyarira explained that, initially, he could not take title to the property as the late Bafion January's wife had wanted to buy back the property.

As I observed above, that has been corroborated by letters produced to that effect from the late Bafion January's lawyers. I have no reason to disbelieve that.

Mr Shamuyarira also explained that the documents were lost as their offices were burnt and they had to move offices. He stumbled upon the documents later.

The Agreement of Sale was produced before the court.

I took note that the signature appearing on the agreement resemble that of the late Bafion January. In any case, no plausible evidence was produced to show that the agreement was forged.

The suggestion was simply an attempt by the defendant to hold on to a property she knew was sold.

I do not, therefore, agree with the defence by the defendant that the property belongs to her late parents.

The evidence before me shows that the defendant's late father sold the house to F.K. Shamuyarira (then Chabuka). Evidence also shows that the said F.K. Shamuyarira paid for the property in full. The late Ellen Manyanga's two thirds share of the proceeds was deposited into Gutu and Jakachira lawyers' trust account.

That sale was lawful.

The plaintiff gave his evidence well. His evidence was simple and straight forward.

He testified that he bought the property from F.K Shamuyarira. F.K. Shamuyarira agreed that he sold the property to the plaintiff. Both parties agreed that the purchase price was paid in full. It is also common cause that cession was done to the plaintiff.

The plaintiff is the owner of the property.

On the other hand, the defendant's witnesses were not very useful. Their evidence did not deal with the crux of the matter; that is, that the late Bafion January did not sell the property.

The defendant's first witness admitted she had no knowledge of whether the property was sold or not. Equally, the defendant's second witness's testimony was speculative. She only said if the house was sold she would have known. She never said she had information that the house was not sold.

It also baffles one's mind why the defendant would not have reported to the police if she had evidence of fraud.

The defendant's evidence was also fraught with inconsistencies. For example, when she was called by Felix Elijah Shamuyarira to his office, where she admitted Felix Elijah Shamuyarira was concerned with the ballooned bills from City Council, she failed to explain why Shamuyarira would want to assist her and why he would be concerned with the high bill if he was not the owner. She never alleged she knew Shamuyarira before. She also failed to explain why she was supposed to surrender the keys to Shamuyarira.

The probable conclusion is that the plaintiff's version of events is the correct one.

Felix Elijah Shamuyarira called her to explain that he had bought the property and needed vacant possession of the same. The defendant's conduct, from 2012 to date, is not consistent with that of a person who believed there was a fraud.

From the evidence, I am of the view that the facts are that the property was sold to F.K. Chabuka in 1991 and F.K. Chabuka, now F.K. Shamuyarira, sold the property to the plaintiff.

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU
Ruled By: MAKONESE J

The applicant purchased House Number 24733 Gundwane Road, Pumula North, Bulawayo, at a public auction on 2 October 2013. The sale was conducted by the Deputy Sheriff Bulawayo pursuant to a judgment debt against the respondent involving a third party.The applicant duly paid the purchase price in the sum of ...

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.The factual circumstances of this matter are common cause.The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He ...

This is an appeal against the decision of the Labour Court which upheld the dismissal of the appellant from his employment with the respondent.

The factual circumstances of this matter are common cause.

The appellant was in the employ of Bindura Nickel Corporation Limited and served as a workers' committee chairman. He was dismissed from employment for disclosing confidential information during conciliation proceedings. He challenged his dismissal on the basis that it was an unfair dismissal and noted an appeal to the Labour Court. The Labour Court dismissed the appeal on the main ground that the appellant did violate the respondent's Code of Conduct in that he did not follow the laid down procedures on the obtaining and disclosure of confidential information.

The appellant was aggrieved by the decision of the Labour Court and has approached this Court on the grounds summarised below;

1. The court a quo misdirected itself and erred at law entirely in not finding that the disciplinary procedures set down in the Code of Conduct of the respondent were not followed thereby rendering the dismissal both substantively and procedurally wrong.

2. The court a quo further erred in rejecting the appellant's defence that the disclosure of the company information was not in breach of section 3(4) of Schedule 1 of the Employment Code of Conduct for the respondent as read with Part C 10.2.

3. The court a quo erred and misdirected itself at law in finding that the appellant was not unfairly dismissed.

Procedural Irregularities

The Labour Court did not address the issue of procedural irregularities in its judgment even though it had been raised as a ground of appeal.

Be that as it may, the appellant avers that the hearing authority that summarily dismissed him was not properly constituted, a circumstance that he argues rendered the disciplinary proceedings a nullity. The appellant, however, does not elaborate on this averment either in his grounds of appeal or in his heads of argument.

As correctly contended for the respondent, it is not enough to merely allege, as the appellant does in his heads of argument, that:

“In terms of the Code of Conduct for the respondent's entity, the hearing authority must be either, a Line Supervisor, Section Head, or Head of Department. This was not the composition of the Hearing Authority that dismissed the appellant.”

The appellant should have explained in what way he perceived the Code of Conduct to have been violated, at what stage of the proceedings this might have happened, and who, in his opinion, should have properly constituted the disciplinary authority.

The respondent, in any case, disputes that the disciplinary authority was not properly constituted....,.

I find..., that the appellant has failed to place before the court sufficient evidence for a proper determination of whether or not there was a fatal irregularity in the conduct of the disciplinary proceedings. The onus to prove his case on this point lay on the appellant, and it is abundantly clear that he has failed to discharge it.

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

The plaintiff's pleadings are a mess.

They do not comply with the strict requirements of the High Court rules. The face of the summons does not identify the 13 Others. The declaration does not do so either. In addition, it does not comply with the rules of court. It contains extraneous information and is argumentative in nature. A letter of suspension, three death certificates, a burial order and the Supreme Court judgment, SC66-02, concerning the plaintiff and the second defendant are attached to the declaration. It is in the format of a founding affidavit rather than a declaration.

When the defendants requested for further particulars, the plaintiff responded by applying for default judgment. The default judgment was refused and the plaintiff was directed to file the further particulars.

On receipt of the further particulars, on 11 January 2010, the defendants excepted on 13 January 2010. The plaintiff responded by excepting to the exception. It is unclear from the papers what became of the exception.

The defendants, however, proceeded to file a plea on 14 April 2010.

On 6 May 2010, the plaintiff filed a 23 paged document entitled “plaintiff's opposing affidavit to defendant's plea” and three further attachments. The plaintiff withdrew the notice of opposition in question on 24 May 2010 and proceeded to change what had been the opposing affidavit into a 23 paged replication.

Notwithstanding the state of the plaintiff's pleadings, the matter was referred to trial on 5 November 2010 on the defendants' pre-trial issues. The issues were:

1. Who are the plaintiffs in this matter.

2. Have they been lawfully dismissed.

3. If not, have they suffered any damages, and if so, in what amount and on what cause.

The pleadings are in such shambles because the plaintiff was not represented by a legal practitioner. Rather, he relied on his trade union styled Zimbabwe Federation of Trade Unions.

In order to determine the real issue between the parties, I condoned the state of the plaintiff's pleadings and proceeded with the trial.

At the commencement of trial, the only plaintiff in attendance was Shadreck Moyo. The other unnamed thirteen were in default. The trial proceeded on the basis that only one plaintiff was before the court.

This affected the claim in the summons.

On 16 November 2009, the plaintiff, Shadreck Moyo and 13 others, claimed damages and compensation and outstanding wages and salaries in the sum of US$3,5 million; a further sum of US$3,5 million for outstanding wages and salaries and compensation for loss of earnings for a period of 12 years, interest on these sums at the rate of 30 per centum per annum and costs of suit.

At the trial, the only plaintiff before me reduced the amounts claimed to US$275,375=08 for outstanding salaries and benefits and US$500,000 for general damages.

He set out the history of the matter, and, by consent, referred to exhibit 1, the 25-paged bundle of documents that the defendants intended to produce as an exhibit.

He was an employee of the second defendant.

On 3 and 4 December 1997, together with other employees, he participated in an illegal collective job action. On 5 January 1998, and in terms of section 3(1)(a) of the Labour Relations (General Condition of Employment) (Termination of Employment) Regulations S.I.371 of 1985, he was suspended from employment without pay or benefits pending an application to the Ministry of Labour for his dismissal.

On 6 January 1998, the second defendant, through its Chairman, the first defendant, applied to the Labour Relations Officer for an order terminating the employment of 15 employees amongst whom was the plaintiff.

A hearing was held, and, on 20 July 1998, the Labour Relations Officer ordered the reinstatement of all the 15 employees without loss of pay and benefits. The second defendant appealed to the Senior Labour Relations Officer. On 11 January 1999, the Senior Labour Relations Officer made the following determination:

“From the foregoing facts, the determination of the Labour Relations Officer is set aside in its entirety.

Appellant is granted permission to dismiss the 15 employees with effect from the date of suspension.

Appellant must pay the 15 employees all their terminal benefits within 14 days of receipt of this determination.”

The 15 employees appealed to the Labour Relations Tribunal.

On 25 September 2000, the Labour Relations Tribunal upheld the appeal of one of the 15 but dismissed the appeal of the other 14 - who included the plaintiff.

The 14 appealed to the Supreme Court, which dismissed their appeal in in its entirety on 18 June 2002 in the case of Shadreck Moyo and Thirteen Others v Central African Batteries (Pvt) Ltd SC66-02.

Shadreck Moyo averred that he only received a copy of the judgment on 3 September 2009 and not on any earlier date because his legal practitioner at the time, Mr Mabuye, of Mabuye and Associates, met an untimely death.

He alleged that, as he had not been dismissed from employment, he was entitled to damages in respect of lost earnings of US$275,375=08.

He produced exhibit 2 and 3 to justify his computation.

He averred that, by 30 October 2010, an employee in Grade 5 was in receipt of a salary of US$240=03. He used this salary to calculate what was due to him over the 155 months that he has been on suspension. He used the same salary to calculate his pay leave over the 12 years that he has been on suspension. He also used the same salary to calculate the thirteenth cheque bonus over 12 years. He stated that he was entitled to receive daily allowances at work for sadza, milk, tea and toiletries. He conservatively placed the cost at US$1 a day and multiplied this by the number of days he was supposed to be at work over the 12 year period.

On the general damages, he thumb sucked the figure of US$500,000 but based it on the prejudice that has visited the education of his children. He did not state the number of the children and how they were prejudiced.

Counsel for the defendant applied for absolution from the instance on two broad grounds:

(i) The first was that the plaintiff failed to disclose a cause of action; and

(ii) The second was that even if he did disclose it, he failed to prove the damages he is entitled to receive....,.

At the close of the plaintiff's case, both defendants applied for absolution from the instance.

(i)...,.

(ii) The second basis for absolution sought by the second defendant was that the plaintiff failed to prove its claims.

I agree with the submission....,.

The plaintiff did not justify why he chose a salary for a particular month for use over the period he believed he was entitled to loss of earnings.

He sought to rely on the provisions of section 22(1) of the Battery Manufacturing Industry Employment Regulations S.I. 665 of 1983.

However, that section deals with the calculation of a gratuity based on “the current monthly wage on termination.” It does not deal with the computation of loss of earnings over the period of suspension.

The insurmountable difficulty he faced was that a greater portion of the period that he claimed for loss of earnings, that is from 5 January 1998 to February 2009; the currency used in Zimbabwe was the Zimbabwe dollar.

He neither stated nor proved the amount due to him in local currency. He did not lay a basis for converting that amount into the current United States dollar dominated multi-currency regime.

Again, for the period from February 2009 to the date of his dismissal, it was his duty to establish and prove the actual amounts due to him as a Grade 5 employee of the plaintiff. He would have relied on information similar to the one captured in exhibit 3.

His evidence was woefully short in establishing the basis for awarding him general damages.

He based his claim on failure to give his children an education.

In my view, this was a novel ground.

General damages are often awarded for the hurt, pain, indignity, and injury the claimant suffers that he attributes to the wrongful actions of the defendant.

All I can say is that the plaintiff did not properly think through his claim for general damages. He failed to justify, establish, or prove it.

View Appeal
HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

The plaintiff sued the defendant by way of summons for the following relief;

(a) An order evicting the defendant and all those claiming occupation through him from the plaintiff's premises known as Number 20 Saint Stephens Road, Meyrick Park, Harare;

(b) Holding over damages in the sum of $500 per month with effect from 1 November 2011 to date of vacation or eviction; and

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

The plaintiff alleged that he is the owner of Number 20 Saint Stephens Road, Meyrick Park, Harare which is described as Stand 3206 Marbelreign Township 17 of Greeba of Mabelreign measuring 1,065 square metres, held under Deed of Transfer 4941/2011 dated 18 October 2011. The defendant is in occupation of that property. As a result of such occupation by the defendant, the plaintiff alleged he is suffering $500 per month holding over damages from 1 November 2011. The $500 represents the amount the plaintiff would realize from renting out the above property.

The defendant disputed the plaintiff's ownership of the property. The defendant, instead, claimed ownership of the property.

It is the defendant's case that if the plaintiff indeed holds title to the property then such title would have been fraudulently acquired. The defendant denied having transferred his property to the plaintiff nor to any other person. Instead, the defendant pleaded that he borrowed $19,000 from a certain Frank Buyanga. He was made to sign a purported Agreement of Sale in respect of the property, hence, after the defendant failed to settle the debt, Frank Buyanga sold the property to Gildastone Holdings (Pvt) Ltd who have a pending eviction matter before the Magistrates Court against the defendant. It is the defendant's case that if indeed the plaintiff purchased the property, then he was and is not a bona fide purchaser.

The defendant denied being liable for holding over damages, insisting he was the owner of the property, and also denied that the plaintiff was entitled to costs on a legal practitioner-client scale. He also prayed for dismissal of the plaintiff's claim with costs on a higher scale.

Without replicating, the matter was set down for pre-trial conference. The issues for trial were as follows;

1. Whether or not the defendant has a defence to the plaintiff's claim;

2. Whether or not the plaintiff is entitled to recover holding over damages in the sum of $500 from 1 November 2011 to date of eviction; and

3. Whether or not the plaintiff is entitled to costs on a higher scale of legal practitioner and client.

Mr Mosley Mashingaidze testified that he is a Logistics Manager for a transport company based in DRC. He testified that he is the registered owner of Stand 3206, Mabelreign Township. He produced the title deed which is in his name; namely, Deed of Transfer number 004941/2011. The transfer was done on the authority of High Court Order 3931/11 dated 19 July 2011. He said he bought the property for $55,000. Receipts to that effect were produced.

The plaintiff testified that he entered into an Agreement of Sale with Goldastone Holdings (Pvt) Ltd. The sale was concluded through Floburg Real Estate agents. This was after the sale of the property was advertised through the newspapers. He then sent his sister to view the house. Thereafter, he also came over to view the property. The property was occupied then and so he was able to view the house. No one told him that there was a dispute in relation to the property. The defendant was in occupation of the house at the time of viewing.

Around April 2010, two or three months after purchasing the property, this witness learnt that the defendant was claiming ownership to the property. To his surprise, the defendant sat back and did nothing to assert his purported rights....,.

The defendant was taken to task on whether he had told the plaintiff, during inspection, that there was a dispute, and his answer was, he did not....,.

The conduct of the defendant of sitting back and not doing anything until later on after receiving these summons tends to corroborate the plaintiff's story....,.

The defendant admitted that the plaintiff's sister and the plaintiff, at some point, viewed the house. However, he said they were advised of the dispute. The defendant did not call anyone to testify on that. At one point he said they were told by his wife. The defendant's wife never testified.

SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of the first respondent.

The alleged violation of the applicants' rights occurred in the course of the second respondent's employment with the first respondent.

THE FACTS

The applicants in this case are leaders of two different political parties. Both applicants wished to contest the Presidential Election conducted on 29 March 2008. The election which the respondents wanted to contest is complete and the outcome has been announced.

The applicants are seeking a declaratory order that their rights were violated.

Counsel for the applicants submitted that the outcome of this application has no bearing on the already completed election. He contends, however, that this application for a declaratory order is more than a mere academic exercise. He contends that a determination by this Court will provide a useful guideline for the future conduct of election officials.

Put differently, the completed electoral process will not be affected by the outcome of this case.

15 February 2008 was the nomination day for the Presidential Election conducted on 29 March 2008. All aspiring candidates wishing to contest the 29 March 2008 Presidential Election were required to file their nomination papers by four o'clock on the afternoon of 15 February 2008.

The first applicant avers that on 15 February 2008 he arrived at and entered the Nomination Court at or about 15:45 hours. This was fifteen minutes before the official closing time for nominations.

He submitted his nomination papers to the second respondent who advised him to wait until the official had finished attending to the second applicant. The second applicant at that time was filling in some forms.

He sat in the Nomination Court awaiting his turn to be attended to and to file his own nomination papers.

When the second applicant finished filling in his papers, he presented them to the second respondent, only to be told that the Nomination Court had closed and his nomination papers would not be accepted.

When the second applicant was told that his nomination papers could not be accepted, the first applicant moved forward to submit his own nomination papers as he had been advised to wait until the nomination officer had finished attending to the second applicant. The first applicant contends that upon presenting his nomination papers he too was told that his nomination papers could not be accepted as the Nomination Court had closed.

He protested at this turn of events to no avail.

What transpired thereafter is not entirely clear from the affidavits filed by the parties.

The first applicant sets out his version of what transpired in paragraph 11 of the founding affidavit, while the first respondent sets out its version of what transpired in paragraph 6 of the opposing affidavit.

The two versions do not present a clear chronology of the events which occurred thereafter.

Counsel for the respondents, in both the High Court and the Electoral Court proceedings, made certain submissions which were accepted by the applicants as correct. These submissions, to some extent, clarified what transpired after the rejection of the applicants' nomination papers.

View Appeal
HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

On 24 March 2003, three of the beneficiaries of the estate of the late Job Bruno Kadengu filed this application seeking the variation of certain clauses of the Last Will and Testament of the testator.

The application was served on the respondents on 2nd April 2003, 17 April 2003, and 16 March 2005 respectively.

The first respondent opposed the application on 18 August 2003 while the second respondent did so on 1st September 2003.

The testator died testate on 25 March 1990. He executed his 9-paged Will on 20 February 1990. It contains 20 clauses.

One Gregory Slater of Gollop and Blank legal practitioners of Harare was appointed the executor testamentary and was issued with Letters of Administration by the Master on 14 June 1990 in line with clause 3 of the Will.

Gregory Slater attempted to administer the estate DR No.665/90, but, by 30 September 1998 he had not finished doing so. He fled the country under allegations of misappropriation of funds.

Messrs Gollop and Blank proceeded to renounce their appointment as executors of and trustees to the estate on 5 September 1997.

The Master then appointed the second respondent as Executor Dative on 2nd July 1999.

The new executor failed to remedy the problems that Gregory Slater left unresolved. By 28 September 2000 the first and second applicants, together with Martin Kadengu, another beneficiary, wrote to the Master complaining of the inaction of the second respondent and his resultant failure in winding up the estate in accordance with the wishes of the testator.

The desired result was not achieved.

The applicants instituted the present application in the belief that:-

“This estate can no longer be wound up in terms of the Will as some of the clauses have become irrelevant with the passage of time whilst others have been overtaken by events.”

They referred to Clause 9 which dealt with the formation of a Trust whose trustee was to be senior partner in the law firm of Messrs Gollop & Blank which law firm had renounced their appointment as trustees and executors even before the Trust had been formed.

They pointed out that the beneficiaries had not, and could not, agree on a suitable substitute.

In any event, to them, the Trust would not achieve its intended purpose as some of the beneficiaries could not be located while others had left Zimbabwe.

They sought the dispensation of the formation of the Trust and the liquidation of the estate in a way consistent with the overall intention of the testator that a commodious enough house be purchased for the first respondent and the residue be shared equally to all the deceased's children.

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

They therefore prayed for the disposal of the 4,000 shares in Paradise Park Motel (Pvt) Ltd by private treaty, and that Clause 6 of the Will be implemented for “a large enough and commodious enough house be purchased for first respondent in the Northern suburbs of Harare” from the proceeds and that the residue be shared equally amongst the beneficiaries.

They further prayed for the registration of Alloa Farm, in the names of all the beneficiaries, as a family home which would not be sold and that costs be borne by the Estate in the event of the first and second respondents did not oppose the application.

On 23rd July 2003, a default judgment was entered by this court. It was ordered that:-

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

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

3. “A large enough and commodious enough” house shall be purchased for the first respondent and her minor children from the proceeds of the sale of the Paradise Park Motel (Pvt) Ltd. The Master of the High Court (3rd respondent) shall determine whether or not the house which the estate shall be purchasing for the first respondent and her children is large enough and commodious enough.

4. After purchasing the house described above for the first respondent and her children, the residue shall be equally distributed among the surviving beneficiaries. The shares of beneficiaries who are outside the country or who are not part of these proceedings shall be deposited with the Master of the High Court.

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

6. The costs of this application shall be borne by the estate.

Both parties were agreed that this order was rescinded by consent.

The first respondent, in her opposition, averred that the Will was valid and effectual and that the second respondent be afforded the opportunity to administer it and give effect to the deceased's wishes. She averred that improper conduct by Gregory Slater, or delays and inaction by the second respondent, were not recognized grounds for setting aside the Will.

She further averred that the shares in Paradise Park Motel did not belong to the estate as the deceased had not paid for them at the time of his demise. An open invitation was extended to those beneficiaries willing to participate in the purchase of these shares to do so but only the first defendant responded positively.

She produced a letter written to the applicant's then legal practitioners, of 23 April 2002, which indicated that a dispute existed as to the ownership of the shares.

Further, she averred that Alloa Farm be dealt with in terms of the Will.

The second respondent, on the other hand, in his opposition, noted that the estate was illiquid and this hampered his ability to discharge his mandate. He believed that the issue of the ownership of the 4,000 shares be determined first before the estate could be wound up.

Three issues were argued before me. These are:-

1....,.

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

The last issue for determination revolves on the ownership of the 4,000 shares in Paradise Park Motel (Pvt) Ltd; that is, whether these shares are part of the deceased's estate.

The applicants referred to affidavits by the first respondent in which she stated that the shares belonged to the Estate.

They also attached the First Interim Liquidation and Distribution Account laid for inspection on 4 December 1992 and the subsequent First and Final Liquidation and Distribution Account of 1st November 1996 in which the shares are reflected as being assets belonging to the estate as proof that they are estate property.

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

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

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

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

The applicants did not dispute the averment that the letter of 23 April 2002 by Messrs Gill, Godlonton and Gerrans was written in response to the one by their then erstwhile legal practitioners Messrs Musunga and Associates over the transfer of an immovable property associated with Paradise Park Motel (Pvt) Ltd.

This letter, on page 74 of the record, indicated that the agreement referred to was entered into between Auto Export/Import (Pvt) Ltd and Auto Import/Export (Pvt) Ltd as purchaser and that transfer could only be effected to Paradise Park Motel (Pvt) Ltd and not the Estate.

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

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

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

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

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

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

When the applicants brought the application it must have been in their contemplation, from the contents of the letter from Gill, Godlonton and Gerrans, that a dispute of fact would arise on the question of shares.

They did not cite the company.

These factors are fatal to the present application.

I would thus dismiss the request to hold that the 4,000 shares belong to the estate in the absence of further evidence.

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded.

In any event, according to the plaintiff's evidence, he paid the $50,000 without authority in order to create a conducive atmosphere for dialogue between the parties. He did not achieve that objective and there is no evidence that the defendant was enriched in any way.

Counsel for the plaintiff opposed the application, submitting that the plaintiff has shown, in his evidence, that the defendant was enriched by the payment made to the architects especially as the plans prepared are available and can be used.

No such evidence about the plans was led.

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

It is also trite that the burden of proof in all civil matters is proof on a balance of probabilities.

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

This is an application for stay of execution.

The first respondent was an Executive Dean in the Faculty of Commerce and Law of the applicant. At the end of his fixed term contract as Dean, a dispute arose on his status. The parties failed to agree on whether he automatically assumed his former post or whether his contract of employment was terminated.

Conciliation failed and the matter was referred to arbitration.

On 10 January 2011, the applicant was ordered to reinstate the first respondent as a Senior Lecturer, and, in the alternative, to negotiate his exit package in lieu of reinstatement. It was further directed that they approach the arbitrator if they failed to agree on the exit package.

On 2 February 2011, the applicant noted an appeal to the Labour Court against the arbitral award and applied for interim relief seeking the suspension of the award pending the appeal.

While these were pending in the Labour Court, the first respondent requested for the quantification of the exit package in lieu of reinstatement.

On 22 August 2011, the arbitrator quantified the amount in the sum of US$77,302.

On 26 September 2011, the applicant filed a combined application for review and an appeal with the Labour Court against the quantification.

On 27 September 2011, the first respondent, on notice to the applicant, applied in the High Court for the registration of the arbitral award. He served the applicant with the application for registration of the arbitral award on that date.

The applicant did not oppose the registration.

Instead, aware of the application in the High Court, it filed an urgent chamber application in the Labour Court, on 5 October 2011, seeking interim relief for the suspension of the arbitral award of 22 August 2011. The interim relief was granted by the Labour Court on 31 October 2011.

In the meantime, the award was registered by the High Court on 15 November 2011.

On 26 January 2012, the second respondent served a Notice of Attachment to remove the applicant's property for execution without any notice period.

The applicant launched the present application on 27 January 2012. I set it down for hearing on 1 February 2012.

The first respondent raised four preliminary points contesting the urgency of the matter.

I deal with each in turn.

(i)...,.

(ii)...,.

(iii) The third was that the applicant was coming to court with dirty hands.

The dirty hands policy was set out with clarity in Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity and Ors 2004 (1) ZLR 538 (S). The rationale for the rule being that a court of law cannot connive or condone open defiance of the law and that citizens are obliged to obey the law and argue afterwards.

The third preliminary point was based on the fact that when the Deputy Sheriff went to execute on the registered High Court order, the applicant stopped him by waving the interim relief granted by the Labour Court suspending the operation of the arbitral award pending appeal. The applicant proceeded to remove the items from the reach of the Deputy Sheriff before he could attach the property.

The contention by counsel for the first respondent was that the applicant deliberately frustrated the Deputy Sheriff from effecting a High Court order and thus acted in defiance of the High Court order.

As pointed out by GOWORA J, in Dhlodhlo v Deputy Sheriff Marondera & Ors HH76-11, it was improper to expect the Deputy Sheriff to choose sides by interpreting the law.

It was up to the applicant to bring an application such as the present to stop execution rather than defy the implementation of judgment that it did not oppose.

If the averment was correct, it is clear that the applicant had dirty hands.

Counsel for the applicant, however, argued that whether or not the Deputy Sheriff was stopped from attachment was a question of fact proved by evidence of his return of service.

In the absence of the return of service, or an affidavit from the second respondent, I am not prepared to non-suit the applicant.

I therefore dismiss the third preliminary point.

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

Some day in or around October 2003, a businessman, who still believes in customer care, moved down the fuel queue that had formed at his forecourt to ensure that no one was jumping the queue. He would stop and chat with this or the other customer. He came across a white gentleman who was sitting in his car and awaiting his turn to have his car refueled. He spoke to this gentleman.

He went back to his manageress and asked who the gentleman was. He was told that it was the plaintiff's Managing Director. The plaintiff had an account with the service station.

The businessman went back and made a suggestion to the gentleman. The suggestion was well received. The parties parted company on this happy note. Each had an understanding of what had been discussed in the fuel queue.

The businessman is the defendant before me and the content of the suggestion that he made to the gentleman in the queue is the subject of the dispute that I have to determine.

On 30 October 2006, the plaintiff issued summons against the defendant claiming the sum of $77,206=48 together with interest thereon at the prescribed rate from the date of summons to date of judgment in full and delivery to it of 3390,5 litres of petrol and 6,462 litres of diesel.

The claim was accompanied by the usual prayer for costs of suit.

In its declaration, the plaintiff alleged that it had an arrangement with the defendant to draw fuel from the main tank at his service station. It further alleged that in or about November 2003, the defendant established a separate and different facility whereby the plaintiff could draw fuel from a reserve tank, which arrangement entailed the plaintiff paying for fuel in advance and the defendant storing the fuel for the plaintiff in his reserve tank. Finally, it was alleged, in the declaration, that, as at January 2006, the defendant held a deposit of $7,206,477 in respect of fuel to be drawn from the main tank and 3390,6 litres of petrol and 6462,02 litres of diesel in the reserve tank, which, despite demand, the defendant failed to avail to the plaintiff, prompting the plaintiff to approach the court.

The claim was defended.

In its plea, the defendant admitted that he had an arrangement with the plaintiff but averred that at all times the fuel in both tanks belonged to him and he did not owe the plaintiff fuel but cash balances in respect of each facility. In particular, the defendant denied that the reserve tank facility was exclusively for the plaintiff or that the plaintiff purchased the fuel stored in that tank in advance and in bulk. He further averred that the reserve tank was simply a preferential arrangement for account holders in the event that he did not have fuel in his main tank.

As to why the defendant could not supply the plaintiff with the fuel for which he held deposits, the defendant averred that he had been compelled by the National Task Force to sell all the fuel he had in his tanks to the public. The plaintiff had tried to fill drums with the fuel that was due to it, but, due to volatility of the period, this was not advisable.

Thus, at the pre-trial conference of the matter, the following issues were identified for trial:

1. Is the plaintiff entitled to specific performance, and, on what basis, and in what quantity?

2. What were the terms of the facility agreement between the plaintiff and the defendant?

3. Whether the defendant received oral or written directive from the Ministry of Industry and International Trade to sell the diesel and petrol that the plaintiff alleges it was holding for the plaintiff?

4. Whether the defendant requested the plaintiff to secure alternative petrol and diesel storage facilities to the facilities available at the defendant's service station?

At the trial of the matter, the plaintiff called four witnesses.

First to testify was Michael John Derry. At the time, he was the National Sales Manager for the plaintiff. His evidence was to the following effect:

The defendant approached him one day whilst he was in the fuel queue at the defendant's service station. The plaintiff was an account holder with the defendant. In terms of the arrangement between the parties, the plaintiff would deposit some money with the defendant and would then draw down fuel. When the defendant approached him in the queue, he suggested that the plaintiff could deposit a sum of money with the defendant who would then purchase fuel for the plaintiff when he purchased his own.

The witness told the plaintiff's Managing Director about this suggestion and an arrangement was then put in place.

When the defendant did not have fuel in his main tank, the plaintiff would then draw its own fuel from the reserve tank. He did not know the finer details of the arrangement as this was handled by the administration section of the plaintiff. His understanding was that, in the second arrangement, the plaintiff purchased its own fuel which was stored by the defendant in a separate tank. When there was no fuel in the main tank, the plaintiff would then draw fuel from this side tank, which the plaintiff took to be its fuel.

The witness impressed me as honest and reliable. He was not shaken under cross-examination and I shall rely on his evidence to the extent that it reveals that an offer to treat was made by the defendant to the plaintiff.

The second witness to testify on behalf of the plaintiff was Kevin James Shadwell. He is the Managing Director of the plaintiff. His evidence was to the following effect:

Historically, the plaintiff maintained an account with the defendant in terms of which the plaintiff would pay a deposit down and then draw fuel against the deposit. Thereafter, Mike Derry approached him and advised him of the alternative arrangement that had been suggested by the defendant. He understood that this arrangement would guarantee supply.

Under normal circumstances, the plaintiff would continue to draw fuel from the main tank under the historic arrangement. Under the second arrangement, the defendant was offering the plaintiff a reserve tank in which the plaintiff would store its fuel and from which the plaintiff would only draw fuel in the event that there was none in the main tank.

He gave the approval for the arrangement and instructed the administration office to put the arrangement in place.

Thus, according to his understanding, while the plaintiff deposited for fuel in the main tank, it purchased outrightly the fuel in the reserve tank.

The plaintiff was under the impression that the fuel in the reserve tank was exclusively its, and, if there was more fuel in the tank than the plaintiff had purchased, this did not concern the plaintiff.

The witness did not personally discuss the details of the second arrangement with the defendant.

Sometime in August 2006, the plaintiff received a call from the defendant that there was no more fuel and that the fuel that had been stored in the reserve tank had been sold to the public.

The witness held two meetings with the defendant over the issue. The plaintiff could not collect fuel that was due to it in drums as it was seen as inappropriate at the time as there was a critical shortage of fuel countrywide.

At some stage, the plaintiff furnished the defendant with a letter authorizing the defendant to sell the fuel in the reserve tank to the public. The letter was meant to protect the defendant from the task force so that he would not be seen to be hording fuel in times of shortages. The plaintiff's understanding was that the fuel, once sold to the public at the instance of the task force, would be replaced by the defendant.

At no stage did the parties discuss the issue of storage charges for the fuel in the reserve tank.

In my view, the witness gave his evidence well. He was clear as to the understanding that the plaintiff had of the two arrangements that it had with the defendant. He was also clear that he personally got this understanding from the report that he received from the first witness and the subsequent conduct of the parties. At no stage did he personally discuss the terms of the agreement with the defendant. At no stage did either party seek to keep a contemporaneous record of what had been agreed upon.

The third witness for the plaintiff was Ephraim Kundishora Mawonedzo. He was employed by the plaintiff as the Administration and Human Resources Manager.

In November 2004, he was approached by the plaintiff's Managing Director who told him that the plaintiff had agreed on a better deal with the defendant that would cushion the plaintiff in times of fuel shortages. The Managing Director informed him that the offer for the better fuel deal was made to Michael John Derry by the defendant. The witness then made out a cheque to the defendant. He gave this to Dorcas, the manageress of the defendant's service station.

The cheque was sufficient to cover 5,000 litres of petrol and 5,000 litres of diesel.

When making the payment to the defendant he communicated that the cheque was for the reserve facility. Thereafter, the facility was put in place.

Sometime in April/May 2005, there was a critical shortage of fuel. The defendant expressed concern about keeping large quantities of fuel in the reserve tank. The witness then wrote a letter, addressed to 'whom it may concern', allowing the defendant to sell the fuel stored on behalf of the plaintiff in the reserve tank to the public. The letter was meant to protect the defendant from the task force. The witness was never told that the task force on fuel had visited the defendant's service station and had ordered that he disposes of all the fuel that he was holding in his tanks. The defendant should still have left enough fuel in his tanks to service the needs of the plaintiff as such fuel was on reserve.

In May or June 2005, he ran around trying to get clearance from the Ministry of Energy and from the police to allow the defendant to store the plaintiff's fuel in bulk. He was not successful.

When he returned to the defendant's service station, he was advised that all the fuel had been sold.

The second witness and he arranged to meet with the defendant who promised to give them fuel when next he received a delivery.

At one stage, the witness heard that the defendant was once again dispensing fuel from his station. When he approached the defendant for fuel, as per the promise, the defendant denied owing the plaintiff fuel but money.

The defendant then tendered a cheque to the plaintiff in full and final settlement of the balance owing. The plaintiff did not accept the cheques which it sent back to the defendant.

Regarding whether it would be impossible for the defendant to procure the fuel that the plaintiff was claiming, the witness was of the view that the defendant could easily do so as he is a fuel dealer and has access to fuel suppliers.

The plaintiff had dealt with the defendant for years without any problems, which is why the arrangement between the parties was not reduced to writing.

Under cross examination, the witness admitted that he was not party to the negotiation of the arrangements between the plaintiff and the defendant but was informed of the details of the arrangement by his Managing Director.

In my view, the witness was being truthful in his evidence. He was not shaken in cross–examination and I have no reason to disbelieve him.

After the evidence of Ephraim Kundishora Mawonedzo, the plaintiff called one Kedius Mpiningo. At the time of testifying, he was employed by the plaintiff as a Human Resources and Administration Officer, working directly under the last witness. His duties included keeping records and allocating fuel to the plaintiff's vehicles.

He joined the plaintiff on 15 July 2005, well after the dispute between the parties had arisen.

He was made privy to the details of the arrangement between the parties by his immediate boss and from the records that he found in the office.

The witness gave his evidence well. To the extent that he narrated to the court what he had been made privy to, I have no reason to disbelieve his evidence. It however does not assist me much in establishing what it is that the parties had agreed upon in the first instance…,.

After leading evidence from Kedius Mpiningo, the plaintiff closed its case, prompting counsel for the defendant to apply for the defendant to be absolved on the basis that the plaintiff had failed to lead evidence to establish the terms of the arrangement between the parties that it was relying on.

The application was resisted, and, after hearing submissions, I declined the application and indicated that my reasons would appear in the main judgment.

In declining the application for absolution from the instance, I was guided by the sentiments expressed by BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) to the effect that if the plaintiff has made out a case that the defence is something peculiarly within the knowledge of the defendant, justice demands that the defendant be placed on his defence.

In my view, since the alleged agreement between the parties was oral, and the parties had related under the agreement for a period, the defendant had to give evidence on his understanding of the terms of the arrangement between the parties, and, if his understanding coincided with that of the plaintiff in a material respect, then, the agreement between the parties would have been established.

The defendant gave evidence.

He used to run the service station in Hatfield known as H.E.R. Bonanza. One day, he was walking up and down the fuel queue that had formed at the service station. He saw the plaintiff's second witness in the queue and stopped to talk to him. When he had ascertained the identity of the plaintiff's second witness from his manageress, he approached him again and asked him if he would like to open an account with the defendant to save some time in the queue. The witness promised to get back to him. The plaintiff's representatives came back a few days later and an account was opened for them.

The defendant then detailed his understanding of how the arrangement between the parties would work. In his view, the arrangement was an advance deposit system where the plaintiff would pay, in advance, a deposit for fuel and against which deposit it would then drawdown fuel.

Later, the defendant decided that one of the pumps at the service station would service commuter buses, one would service the public, while one was reserved for account holders and friends. This was referred to as the reserve facility.

The reserve facility was set up due to shortages in the supply of fuel. The plaintiff and other account holders were asked to pay a separate deposit for the use of this reserve facility. The facility allowed them to draw fuel from the reserve tank in times of shortages.

His understanding was that the fuel was always his and did not belong to the plaintiff after a deposit for such fuel was paid. He was holding cash and not fuel on behalf of the plaintiff. The plaintiff did not pre-pay for the fuel.

The defendant is a confident man. He gave his evidence confidently. He clearly was mistaken when he testified that the man he spoke to in the fuel queue on the forecourt of his service station was the plaintiff's Managing Director. He spoke to Michael John Derry. Despite this mistake in his evidence, I found him generally honest and easy to believe.

The defendant called Dorcas Sibindi, the manageress at the service station during the relevant time. Her evidence was brief and concise.

She knew the second and third plaintiff's witnesses as the plaintiff was one of the account holders at the service station. The station operated three tanks; one for commuter buses, one for the public, and another for account holders.

In operating its account, the plaintiff would issue cheques in favour of the defendant and she would deduct from that deposit each time the plaintiff drew down fuel. The parties operated two schemes. The main tank was used when there were no queues on the forecourt. The reserve tank was used when queues had formed on the forecourt for the preferred customers to avoid the queues.

The plaintiff paid a deposit to the defendant for both schemes and drew down against such deposits. The defendant never kept any fuel exclusively for the plaintiff.

The witness was not as forthcoming in her responses to questions put to her under cross-examination, leaving me with the impression that she was not telling me the entire truth.

For instance, she could not remember how the letter authorizing the defendant to sell all of the plaintiff's fuel got into the file she kept for the plaintiff yet she managed the account and kept the file. She denied any memory of the letter and would have me believe that she merely saw it in the file at the time she handed over the file to the defendant in preparation for the litigation.

She also denied having spoken to Kedius Mpiningo on the phone about the details of the account.

I have found Kedius Mpiningo to be generally truthful and reliable, and, in my view, he would not have had any reason to lie about the telephone call, which is innocuous by all regards.

On the basis of the above, I shall only rely on the evidence of this witness where it is corroborated by some other reliable testimony.

After the testimony of Dorcas Sibindi, the defendant closed his case.

The issue that falls to be determined in this matter is, in my view, simple. It is to establish whether the terms of the agreement that the parties entered into entitles the plaintiff to delivery of fuel in the volumes claimed.

The issue is captured in very broad terms in the second issue settled at the pre-trial conference.

It is trite that having come to court to assert and enforce a contract, the plaintiff bore the onus of proving not only the terms of such a contract, but breach of a material term thereof.

The plaintiff asserts that the second arrangement was a reserve facility in terms of which it pre-purchased fuels from the defendant who was obliged to keep such litreage in reserve for the plaintiff.

This is the case that the plaintiff has brought to court.

Counsel for the plaintiff submitted, that, on the evidence led, I must find that the parties reached consensus ad idem on the above terms when the defendant met with Michael John Derry in the fuel queue.

I find myself unable to agree with that submission.

I have accepted it, on a balance of probabilities, that, the defendant met with Michael John Derry and not with Kevin James Shadwell on the day the proposal was put to the plaintiff to set up a reserve facility. The testimony of Michael John Derry as to what was discussed during this brief and impromptu meeting is quite clear and concise in this regard.

It is important, in my view, that I analyze the evidence of Michael John Derry in this regard critically for it forms the offer that was communicated to the plaintiff.

In the words of Michael John Derry, the defendant suggested that the plaintiff could put down a whole lot (deposit a sum of money with the defendant), who would then purchase fuel for the plaintiff when he purchased his own. This is what Mr. Derry heard the defendant to be saying.

The issue remains to be determined whether the offer by the defendant was understood and communicated in the terms in which it was made.

It is pertinent, in my view, to note, at this stage, that, no further discussion was held between Michael John Derry and the defendant on where and how this fuel would be stored for and behalf of the plaintiff and how the plaintiff would take delivery of same.

It s not in dispute that Michael John Derry did not accept the offer that the defendant had put to the plaintiff. He took the offer to Kevin James Shadwell, the plaintiff's Managing Director.

When he received the offer, Kevin James Shadwell understood the defendant to be offering them an alternative facility to the one existing. He understood that this arrangement would guarantee supply.

Under normal circumstances, the plaintiff would continue to draw fuel from the main tank under the historic arrangement. Under the second arrangement, the defendant was offering the plaintiff a reserve tank in which the plaintiff would store its fuel and from which the plaintiff would only draw fuel in the event that there was none in the main tank.

This is the offer that he gave instructions to the plaintiff's administrative staff to accept.

I have observed above that Kevin James Shadwell gave his evidence well but that he did not personally discuss the terms of the new “deal” with the defendant. He took his understanding from Michael John Derry and instructed that the offer be accepted as he understood it.

It is trite that accepting an offer that has not been made does not bring into being a contract: see Couve and Another v Reddot International (Pty) Ltd and Others 2004 (6) SA 425 (W) Bourbon-Leftley en Andere (Landbous) BPK 1999 (1) SA 902 (C).

A contract is brought into being by the acceptance of a matching offer.

It thus remains for me to establish whether the plaintiff has established that the offer that it accepted was the one made by the defendant.

Again, words used by the defendant become of paramount importance in this matter.

The defendant testified that the reserve facility was set up due to shortages in the supply of fuel. The plaintiff and other account holders were asked to pay a separate deposit for the use of this reserve facility. The facility allowed them to draw fuel from the reserve tank in times of shortages.

His understanding was that the fuel was always his and did not belong to the plaintiff after a deposit for such fuel was paid. He was holding cash, and not fuel, on behalf of the plaintiff and all other account holders. The plaintiff did not pre-pay for the fuel.

In such circumstances, can I say that there was a meeting of the minds of the parties sufficient to establish the terms and conditions of the agreement that the plaintiff alleges and relies on?

I think not.

This was an arrangement that was entered into on the basis of a single chance discussion between two persons who were not directly involved in the implementation of the arrangement.

The defendant understood he was simply offering a reserve tank facility to the plaintiff. The plaintiff understood it was being offered a pre-paid fuel facility. No contemporaneous document of the agreement was kept by either side and the misunderstanding was perpetuated over a period, giving each side comfort in the belief that its understanding of the arrangement was the one more from the passage of time and less from a shared intention and the observance of the requisite legal formalities.

It is trite, that, in actions based on contract, the party alleging the contract must be able to establish, by evidence, the communication of an offer and acceptance of that offer. This is what establishes the contract and a cause of action for the plaintiff.

Where the defendant denies making the offer alleged by the plaintiff, the onus rests on the plaintiff to prove, by his conduct, that the defendant made the offer.

Where, however, the evidence adduced by the plaintiff regarding the defendant's conduct is consistent with either of the party's understanding of the agreement, as occurred in this matter, the conduct of the defendant cannot act as proof of the common intention of the parties.

I have not been able to establish, from the evidence of the plaintiff, any conduct on the part of the defendant consistent only with and corroborative only of the plaintiff's assertions. To the contrary, the parties maintained the two facilities and the plaintiff drew down fuel from the reserve tank when there was no fuel in the main tank. According to the plaintiff, when doing so, it was drawing down on its fuel reserves. According to the defendant, the plaintiff was simply drawing down fuel in accordance with the second account facility that gave it preference over members of the public and those who only had access to the main tank.

On the basis of the foregoing, I am unable to find for the plaintiff, as, in my view, insufficient evidence has been led to prove the terms of the second facility.

In the result, I make the following order:

1. The defendant is absolved from the instance.

2. The plaintiff shall pay the defendant's costs.

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

These are twelve cases, which were consolidated into two matters, which were heard at the same time.For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita ...

These are twelve cases, which were consolidated into two matters, which were heard at the same time.

For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita Maseko.

The other matter involved what may be called the National Housing Fund (“NHF”) houses ((seven (7) defendants under HC2225/08). The seven defendants being Loida Nyathi, Everson Ndebele, Collen Ndebele, Phindile Ncube, Sihlobo Sibanda, Shadreck Ndlovu and Stephen Ndlovu.

The trial lasted twelve days, which is understandable, considering that there were two witnesses for the plaintiff and twelve (12) witnesses for the defendants i.e. all the defendants.

Two of the defendants had died by the time the trial commenced, and they were substituted by the executrix of their estates.

There was a bundle of documents with slightly over four hundred (400) pages as well as some more documents which were later introduced during the course of the trial. However, a closer analysis will show that the issues are fairly simple, and are similar in the seven National Housing Fund (NHF) houses and the five ZimSun houses.

Basically, it boils down to this:

(a) Is the plaintiff the owner of the twelve houses in question, or are the defendants the owners?

(b) If the plaintiff is the owner, then the plaintiff is entitled to an order for:-

(i) Evicting the defendants.

(ii) Damages.

(iii) Costs of suit.

(c) If the defendants are the owners, then they are entitled to transfer of these houses into their names with an order for costs against the plaintiff.

In essence, the defendants have to prove that there were valid contracts of purchase in respect of each of the houses in dispute. The houses concerned are the following:

Loida Nyathi - House 4251
Everson Ndebele - House 4255
Collen Ndebele - House 4247
Phindile Ncube - House 4242
Sihlobo Sibanda - House 4246
Shadreck Ndlovu - House 4241
Stephen Mpofu - House 4244
Alice Ndlovu - House 4403
Sivumo Ndlovu - House 4401
Smolita Maseko - House 4408
Kambashu Zex Raura - House 4407
Fred Khumalo - House 4400

All these properties are at Chinotimba, Victoria Falls.

Cut to the bone, in all instances, the plaintiff claims that these are pool houses for use by plaintiff employees. The plaintiff contends that the defendants were given these pool houses by virtue of their employment with the plaintiff. It further being contended that upon termination of such employment, each individual defendant will cease to occupy the property in issue.

This position does not apply to one of the defendants, Stephen Mpofu, who was never employed by the plaintiff. His case is different but the bottom line is that he was granted occupation through a lease.

Of the twelve defendants, only two, namely, Sihlobo Sibanda and Smolita Maseko are still in the employ of the plaintiff.

As alluded to above, the defendants' counter claim is for an order directing the plaintiff to take all necessary steps to transfer the various stands to each defendant on the basis that the defendants purchased the Stands on a rent-to-buy scheme.

This is denied by the plaintiff.

It is beyond dispute that these properties in issue are registered in the name of the plaintiff. The plaintiff is the registered owner of these twelve Stands. This point is admitted in paragraph 2.3 of each of the defendants' plea under HC2225/08 and paragraph 2.5 in each defendants' plea under HC2224/08.

There are documents from the Ministry of Local Government (“Ministry”) dated 20 July 2000 (pages 45 and 55 of the bundle of documents) which evince the transfer from the Ministry to the plaintiff.

This creates a problem for the defendants who contend the Stands still belong to the Ministry.

They, however, did not take any legal action against the Ministry to prevent the transfer of the Stands from the Ministry to the plaintiff. Be that as it may, I propose to consider the evidence adduced by the parties in turn.

Phillip Ndlovu

He testified on behalf of the plaintiff. He evinced that he has been the Chamber Secretary of the plaintiff since 2006. Whilst he was not employed by the plaintiff in the 1980s or 1990–1992, when most of the events occurred, from the official records available to him, and from his own investigations, the plaintiff was the legitimate owner of the houses in dispute.

He said that the defendants obtained the houses in question from the plaintiff, because of their employment with the plaintiff or because they were quasi-employees of the plaintiff such as Government teachers working at the plaintiff's schools.

In the case of Stephen Mpofu, he obtained the house because the plaintiff had previously made available accommodation to him. It is his testimony that there was a shortage of houses in Victoria Falls during the 1980s, 1990s and to date. This is evinced by documents like the minute from the parent Ministry dated 15 September 1997 produced as evidence. There are various Council deliberations and resolutions captured in the minutes filed of record which confirm the shortage. Such deliberations and resolutions centered around the necessity to provide the plaintiff's employees with accommodation.

There is a memorandum which goes further to explain that some employees were living in toilets on account of the shortage of houses. The National Housing Policy Frameworks for Zimbabwe: A Review of the Policies and Strategies, confirms the shortage.

The defendants also confirm the shortage and concede that they had to wait for some years before they were allocated the houses.

He said there must have been a connection between the defendants' employment with the plaintiff and the allocation of the houses.

This is an independent witness who spoke of matters which related to his professional responsibilities. He was expounding to the court what he knew and observed from the official records. He has no personal interest to pursue and no hidden agenda.

This is in stark contrast to the defendants who had an obvious massive financial interest in the outcome of this case, namely, to retain the houses which they had been informed, as early as 1993, were not theirs, but were in fact pool houses of the plaintiff.

This witness confirmed that all these disputed houses were registered in the name of the plaintiff. This is important as such registration is matter of substance and not form.

He explained that there were attempts to assist the plaintiff employees to acquire houses through CABS finance. These initiatives came to naught because they required the plaintiff to pay cash deposits on behalf of its employees. As the plaintiff is a creature of the Urban Councils Act, section 148 of the Act made such initiatives impossible.

The plaintiff could only act as a guarantor to the employees and not pay cash deposits on their behalf. In such an event, the plaintiff would still require ministerial approval. There is no record of such approval.

He also significantly testified that none of the defendants has written agreement evincing that they have become owners of these houses.

According to the plaintiff's record, there is nothing that shows that ownership of the houses was passed to the defendants. The defendants paid security deposits and monthly rentals and allied charges but not purchase prices for the houses.

The records clearly show that these are pool houses for use by those in the plaintiff's employ.

All the defendants were given notice to vacate these pool houses after they were allocated residential Stands of their own and they refused to do so. They have defiantly remained in occupation of the plaintiff's houses even when most of them have left the plaintiff's employ save for the two defendants still in the plaintiff's employ. They have not exhibited any contract of sale to the plaintiff.

In brief, they have not shown the legal basis upon which they claim the plaintiff sold them the houses. There is no record produced by the defendants that they acquired the houses on rent-to-buy contracts.

He also indicated that other plaintiff employees did not claim these pool houses and moved out.

This witness was subjected to lengthy, tactful, and determined cross-examination. At the end of the day I find that he is a credible witness. He made several concessions favourable to the defendants' case. He is a truthful witness.

Thembinkosi Khumalo

He has been employed by the plaintiff for nineteen (19) years. He is the acting Town Treasurer for the plaintiff. He started in the plaintiff's employ as a Senior Accounting Officer in the Treasury Department.

He mainly corroborated what the first witness said in a material way.

As far as the ZimSun houses are concerned, he said, in 1992, ZimSun had built 160 houses for its staff. These houses were built at the time when the plaintiff was facing acute shortage of accommodation for its staff. The plaintiff approached ZimSun who offered them twelve (12) houses including the five (5) subject of these proceedings as stated above. The plaintiff paid for these houses using Stands on which ZimSun built their staff houses plus an additional amount of Z$68,000.

After acquiring these ZimSun houses, they put in the plaintiff staff and quasi-plaintiff staff.

He confirmed that there were initiatives to sell these houses to staff through CABS, but, as stated by the previous witness, all these came to naught on account of the low salaries of staff and statutory limitations as the plaintiff is a local government.

He said some of the defendants stopped paying rentals in 2007 whereas two, who are still plaintiff employees, have continued paying. These two defendants, who are still plaintiff employees, are Smolita Maseko and Sihlobo Sibanda.

He evinced that if council property is being sold, Treasury Department would be served with an Agreement of Sale. The Agreement of Sale must state the tenure of the loan (if it is not a cash sale), the instalment payable by the beneficiary, and the interest on the loan amount.

He categorically stated that none of the defendants had any Agreement of Sale with the plaintiff.

He said that the Z$500 paid by each defendant was Z$250 for rent and Z$250 for security deposit (good tenancy deposit). He also said when the plaintiff's employees wanted to carry out repairs in these houses, such repairs must first be certified as necessary by the Town Engineer. This is a pre-condition of reimbursement of the tenant by the plaintiff.

As far as defendant Steven Mpofu is concerned, he was not employed by the plaintiff. He was employed by ZimSun. He was renting the plaintiff's guest house. They decided to accommodate him in one of the pool houses on a lease basis.

He was adamant that the plaintiff made a decision to allocate these houses to its employees to attract and retain them. The houses were, however, to remain as pool houses.

He further stated that when houses were allocated by the plaintiff to individuals, whether employees or not, the plaintiff ensured that there were documents which showed the various costs centres such as for the sewer, education levy, etc. This is reflected in receipts such as on pages 250, 251 and 356 of the bundle of documents. This was because the houses in question were being rented.

The defendants had rent cards where credits were entered when payments were made and the payments credited to the appropriate costs centres.

He said Treasury had agreements of sale (rent-to-buy) for other properties allocated to the defendants, but did not have that in respect of the twelve (12) houses in issue. What the defendants had, even on their own admissions, were rent cards. He said a rent card is self-evident and cannot be stretched to mean rent-to-buy.

As far as the letter written by a Mr Lucas M M Sibanda, the former Chief Executive Officer of the plaintiff, he said this individual was dismissed by the plaintiff on account of documented acts of misconduct. He said his letter of support of the defendants is untrustworthy and devious.

On the question of damages, he said rentals for the houses in question were US$150 per month at the lowest rate to US$200 per month for the more expensive ones. He said damages in the sum of US$150 per month in respect of each of the defendants would be appropriate.

This witness was extensively cross-examined by the defendants' counsel. I am satisfied that he gave his evidence well. I find that he is a credible witness. He is very familiar with the financial operations of the plaintiff, and, in particular, he is very familiar with the acquisition of the houses in issue and how the defendants ended up in occupation.

Coming to the defendants' case, I also propose to consider the evidence adduced in turn.

Phindile Ncube

He was employed by the plaintiff between 11 May 1987 and February 2009. He had joined the plaintiff as Revenue Clerk responsible for housing. In 1988 he was elevated to the position of Senior Housing Clerk responsible for the supervision of housing clerks and the computation of the home ownership scheme. He gave a detailed account of the Government Housing policy.

Most of the evidence is not relevant for the determination of the legal issues before me. I will only focus on the relevant part of the testimony.

In relation to the house in dispute, between him and the plaintiff, he says he placed his name on the Housing Waiting List as he was staying with his parents at the time at 3133 Chinotimba. He was allocated the disputed Stand number 4242 Chinotimba. After the allocation, he made improvements on the property as evidence that he considered that the plaintiff allocated the property to him on a rent-to-buy basis. Such improvements comprise of installing burglar bars, fencing of the property, and sharing of the walling costs with the neighbour.

He conceded that he has another property, being Stand 4222 Chinotimba allocated to him by the plaintiff. He said that he, like the other defendants, was sold Stand 4242 because he was on the waiting list. He, however, did not have a single document to prove the purported sale.

Despite the fact that he alleged that he was virtually running the Housing Department of the plaintiff at the relevant time, he could not produce any document to prove his claim. All he had is a rent card.

It is quite clear that the rent card is a tenant's card, not a card to prove ownership. Even his erstwhile legal practitioners conceded this fact on pages 94-95 of the bundle of documents.

He could not explain why he and the other defendants did not sue the Minister responsible for National Housing to transfer the houses in dispute to them, but adopted an attitude of supine indifference, when the said Minister transferred the said houses into the plaintiff's name.

He tried to suggest that during the early 1990s there were no rent-to-buy agreements, and that is why he and other defendants had no documents to support their version of events.

Unfortunately for him, the documents from pages 279 to 415 on the bundle of documents proved otherwise.

In pages 279–285 is a rent-to-buy entered into in 1994 in respect of Stand 5053 Chinotimba. On page 299, the sale agreement was entered into in 1997. His own Agreement of Sale, in respect of Stand 4222, supra, was entered into around 1994. He said that the document by Mr Sibindi, on page 76 of the bundle of documents, was the source of all the defendants' problems.

This is patently untrue because the document was authored in 2007 and yet, at least 14 years earlier, the plaintiff had already said that the houses in question were pool houses and belonged to it.

The plaintiff even has the support of the Workers' Committee in this regard.

This witness held himself out as an expert and the spokesperson for all the twelve defendants. He confidently described himself as a “local government practitioner”. He did this to try to speak with an authoritative voice that brooked no contradiction.

Regrettably, he failed dismally in this endeavour. He was an extremely poor witness. He was not credible as alluded to above. Further, he was a witness with an interest, not only in retaining Stand 4242 Chinotimba, but also because he had obviously misled the other defendants and given them the impression that he was the authoritative voice in respect of the twelve houses in question.

There was the difficulty in that as early as 1991, 1992 and 1993 onwards, the plaintiff had made it clear that the twelve in question belonged to the plaintiff and the plaintiff wanted them back. This is clear in the letters from legal practitioners and also minutes of the seven National Housing Fund houses.

He tried to assert that Central Government gave directives to Councils, such as the plaintiff and thus the plaintiff was obliged to obey these directives which had the force of law. In other words, the local authorities were only agents, or implementing arms of the Central Government.

This assertion was clearly flawed.

The witness was unable to point to any such legislation which made suggestions by Central Government law binding upon Council.

It is clear that the National Housing policies were guidelines. In fact, on page 208 of the bundle of documents, it is made clear that these were guidelines. In any event, the Central Government transferred these houses into the plaintiff's name.

The defendants did not challenge the said transfer before the court.

When he was cross-examined, and asked how it was that all twelve defendants had other Stands in breach of the Central Government policy which he appeared to champion so enthusiastically because it was convenient to him, he made a volte face and said that this policy on the prohibition against multiple ownership of houses in the high density suburbs, was relaxed by the plaintiff.

However, he was unable to provide documentary evidence of such relaxation of the policy. He was unable to do so because he was misleading this court.

Further, he was unable to give the agreed purchase price for the house in dispute. The purchase price is an essential element of the agreement of sale.

He tried to get around by stating that he expected to pay rentals for the house over thirty (30) years and after that the house would be his. He then changed and said that he had fully paid for the house in issue because of inflation.

He ran into great difficulty when he referred to the ZimSun houses, where, again, he tried in vain to hold himself out as an authority on these houses.

He said the purchase price of these houses was $35,000. This figure is not supported by any documentation.

He went on to say that these houses were supposed to be paid for over twenty-five (25) years. But, $35,000 divided by 25 years, then by twelve months to arrive at the monthly payments, gives a figure of $116,67 which is nowhere near the $25,977 purchase price referred to on page 9 of the bundle of documents.

To compound his already difficult situation, he then changed and said that initially the ZimSun houses were paid for by way of a deposit of $250, the monthly rentals of $250 for 25 years.

Simple mathematics shows that the purchase price at $250x12 months x 25 years =$75,000. This figure had no relation to what he was talking about.

He then said that the plaintiff decided to reduce the purchase price to $180.

Still $180x12 months x 25 years = $54,000. This is so because he said the deduction from employees' salaries to pay for the house should not exceed 27% of the employee's salary.

This again was not supported by any documentation.

He further explained that of the $180, $20 would be utilized for service charges and $160 towards the purchase price, still the figure would be almost double the purchase price stated above.

There was no explanation forthcoming from him when the policy to reduce the price from $250 to $180 monthly was effected.

All along, it was the defendants' case that in respect of the ZimSun houses, they had paid a deposit of $250 and monthly instalments of $250. They had paid the full purchase price for the houses in question.

This was their case in their pleadings and synopsis of evidence.

There is no mention in the pleadings of the change to $180 per months or $160 plus $20 service charges per month.

It is highly improbable that if the defendants' erstwhile legal practitioners had been given instructions, they would not have mentioned it in both the pleas and synopsis of evidence.

This was something which was crucial to their case, as it relates to the alleged purchase price.

The fact that this was never mentioned in the pleadings shows that this witness made it up.

These contradictions and changes simply demonstrate a desperate witness who could not tell the truth.

In any event, the issue of the alleged change in the monthly instalments was never put in cross-examination to Mr Khumalo. This shows that it is an after-thought by the witness.

The only inference to be drawn is that the witness was untruthful, and so to the other defendants who supported him in making this assertion.

It is also significant that nowhere in the five defendants' pleas and synopsis of evidence is the alleged purchase price mentioned.

All in all, this witness was totally unreliable and his testimony is not worthy of any belief.

Collen Ndebele

He, like the other defendants, gave similar evidence, which was not supported by any documentation, but in fact contradicted by documentation before the court.

He had no documentation to support his assertion that he entered into an agreement to rent-to-buy the house he was claiming. All he relied upon was a rent card which in fact showed that he was a tenant. He said he believed that he had paid for the house in dispute in full, yet, on his own version he paid just over 20 years. His rent card showed nothing of ownership. His testimony suffers the same weakness as that of the previous witness. He was as un-impressive as the last witness. He was equally evasive on the purchase price and the lack of Agreement of Sale.

Sihlobo Sibanda

He was equally not impressive as a witness. The documents showed that he was allocated the disputed house because of his position as a Bursar, but he made a valiant attempt to deny this.

In his case, he was aware of the problem regarding the houses because he took minutes at Council meetings when the issue was discussed as far back as November 1997. He had no purchase price for the house, but said that he was supposed to pay over thirty (30) years. He said that his waiting list card was taken at the time he was allocated the house in issue, but, somehow, he was allocated another Stand.

The waiting list card must have been taken when he was allocated the latter Stand and not the house in issue.

It is significant to note that in the latter application he used a misleading address i.e. 2512. This was misleading to disguise the fact that he already had another house, 4246 Chinotimba.

In his own version he would have been sold two residential Stands in a space of three years contrary to Government policy. It is clear that he was never sold the house in issue. He is, however, still in the plaintiff's employ and continues to pay rentals through deductions. In this regard, his position is different from other defendants.

Shadreck Ndlovu

Like the previous witnesses, he said a lot but had no documentation to support his assertion that the plaintiff sold him the house in issue.

He had no idea of the purchase price of the house, he was not sure if he paid in full for the house: he was just swimming in a sea of uncertainty.

He said that despite the fact that his waiting list card was taken away when he was allocated the house in dispute, he was allocated Stand 4237 simply because he was a war veteran. He was unable to show anything in the housing policy document to illustrate that war veterans were entitled to be allocated more than one Stand in the high density suburbs.

In any event, in respect of Stand 4237, there were proper documents to show that he entered into a rent-to-buy agreement and yet for the house in dispute such documents were conspicuous by their absence.

Stephen Mpofu

Like other defendants he had no documentation to support his story that he owned the house in question. He had no idea of the purchase price and he did not know how long he was supposed to take to pay for the house. He appeared confused and did not know what was happening.

Everson Ndebele

Like other defendants, he had no documentation for the alleged purchase of the Stand in dispute. His testimony is equally incredible. He received documentation for the other Stand, 4817, but not for the disputed Stand.

Osina Nyathi

She testified on behalf of her late mother who was the original defendant. She tried as much as possible to give the impression that she knew how the house in question was allocated to her late mother. She sadly failed to do so.

Alice Ndlovu

Whereas, Phindile Ncube wanted to be the spokesman in respect of all the twelve houses, this witness attempted to be the spokesperson for the defendants relating to the ZimSun houses.

She made a valiant attempt to use the rent card as proof of ownership.

She was generally an untruthful witness.

She tried to give the impression that she had no connection with Stand 5048 and that that Stand was her husband's. The application papers, on page 405 of the bundle of documents, clearly show that both her and her husband applied for Stand 5044 and correspondence was copied to both of them. She could not give a purchase price. She associated herself with the explanation given by Phindile Ncube in this regard. She said a lot but failed to give a credible account of the alleged purchase of the Stand in dispute.

Smolitha Maseko

Like the previous witness, Sihlobo Sibanda, she is still in the plaintiff's employ and rentals are being deducted from her salary, according to the testimony of the plaintiff's witness Thembinkosi Khumalo.

Like other defendants, she failed to establish that the house in dispute was sold to her. Although, unlike the other defendants, she and Sihlobo Sibanda may not be evicted in terms of the cause of action in casu and ordered to pay damages, suffice to say that they are in occupation of their respective properties on account of their continued employment by the plaintiff and not on account of a sale agreement.

Kambarashe Zex Raura

Like other defendants, he had no agreement of sale to establish that he purchased the house in dispute.

His untruthfulness is evinced by the fact, that, in his application for Stand 5049 he stated that he did not own any other Stand as at 1996, when, in his own version, in 1991, he had been allocated Stand 4407.

This is either a deliberate lie or a confirmation that he was aware that Stand 4407 was a pool house.

He further said he was never told the purchase price, but was advised that he was to pay $250 as deposit and $250 per month. He said there was vague talk of paying $250 per month for 25 years but he was never informed of the purchase price and he could not answer questions on the issue of the purchase price.

I am satisfied he is equally an un-impressive witness.

Sivumo Ndlovu

Like other defendants, she had no documentation to prove that she had entered a lease to buy agreement in respect of the property in issue. This is in stark contrast to the documents which clearly set out the rights and obligations of the respective parties of Stand 5053. She also had no purchase price on the house she claimed she had bought.

Ruth Khumalo

Her testimony is characterized by hearsay. But, the bottom line is that she was unable to produce any documentation to show that she purchased the Stand in dispute.

Having made the above findings of facts, I proceed to consider the effect of these findings and the law applicable.

I have to determine whether there were contracts of purchase and sale between the protagonists in these two matters. I have to determine whether the essentials of a purchase and sale contract are present.

In casu, there is no dispute that there is more than one party to the alleged contracts – Barnhoorn v Duvenage 1964 (2) SA 486 (A)…,.

The crucial issue is whether there was true agreement between the parties.

It is trite that agreement by consent is the foundation of contract – Salisbury Municipality Employees Association v Salisbury City Council 1957 (2) SA (SR) 557; Cinema City (Pty) Ltd v Margenstern Family Estates (Pty) Ltd 1980 (1) SA 796 (A)…, and The Law of Contract in South Africa, R H CHRISTIE 3rd Ed…,.

In order to decide whether a contract exists, one looks first for the true agreement of two or more parties, and, because such agreement can only be revealed by external manifestations, one's approach must of necessity be generally objective.

The court can only judge from external facts whether the minds of the parties have come together – Jordaan v Trollip 1960 IPH A25 (T) and Allen v Sixteen Stirling Investments (Pty) Ltd 1974 (4) 164 (D)…,.

Looking at the evidence led by the plaintiff, there was no meeting of minds that these houses were being sold to the defendants.

It is trite that the most helpful way of determining whether there has been agreement, true or based on quasi-mutual assent, is to look for an offer and an acceptance of that offer. A binding contract is, as a rule, constituted by acceptance of an offer: Reid Bros (SA) Ltd v Fisher Bearing Co Ltd 1943 AD 232…,.

But, offer and acceptance must never be sought for their own sake but as aids in deciding whether an agreement has been reached.

A true offer means an express or implied intention to be bound by the offeree's acceptance – the animus contrahendi: Sambou-Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A)…, and Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd 1983 (1) SA 978 (A).

In casu, there was no such offer to the defendants.

The rent cards produced do not constitute an offer made with the requisite animus contrahendi. There were no unequivocal offers of sale made to the defendants. The offer must be unequivocal i.e. positive and unambiguous: Boernie v Harris 1949 (1) SA 793 (A)…, and Wasmuth v Jacobs 1987 (3) SA 629 (SWA)…,.

Accordingly, from the evidence, there was no agreement by consent or true agreement, or a meeting of minds, or a coincidence of wills, or consensus ad idem between the parties and the only credible explanation is that these houses were pool houses for use at the discretion of the plaintiff.

On this point alone the plaintiff's claims must succeed and the defendants' counter-claims fail.

Further, there is no agreement on the price.

As alluded to above, it is not easy to ascertain the alleged purchase price. This points to the relationship of lease and not purchase and sale between the parties.

The defendants, save for one, were all employees of the plaintiff at the time of allocation of the houses in dispute. They obviously know the difference between being pool accommodation and rent-to-buy houses. All the defendants later, but before this dispute arose, entered into proper rent-to-buy agreements with the plaintiff so they are familiar with such agreements. The latter agreements clearly state the terms of agreement and the parties.

They cannot be heard to be saying they mistook the rent cards for agreements of sale.

The defendants are just influenced by greed and are trying to obtain two properties each from the plaintiff by converting their leases of the pool houses into ownership agreements.

There is simply no agreements of sale in respect of the houses in issue and the court cannot contract for the parties: Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 (HL)…,; Globe Electrical Transvaal (Pty) Ltd v Brunhuber 1970 (3) SA 99E…,; Levenstein v Levenstein 1955 (3) SA 615 (SR) and Titaco Projects (Pty) Ltd v AA Alloy Foundry (Pty) Ltd 1966 (3) SA 320 (W)…,.

The plaintiff's claims must succeed against all the defendants save for Sihlobo Sibanda and Smolitha Maseko. These two defendants are still employed by the plaintiff as alluded to above and the plaintiff is still collecting rentals from their respective salaries. If the plaintiff wants to evict them, it cannot be on the basis of this cause of action.

As far as the damages are concerned, the plaintiff does not charge market-related rentals of US$150 per month as claimed in this case. The plaintiff is charging US$20 per month for the houses in dispute. There is no basis for granting the plaintiff damages based on market related rentals.

Accordingly, it is hereby ordered:

(1) That the plaintiff's claim for the eviction of the defendants Smolitha Maseko and Sihlobo Sibanda from houses 4408 and 4246 respectively be dismissed.

(2) That the counter-claims by Smolitha Maseko and Sihlobo Sibanda against the plaintiff be dismissed with each party bearing own costs.

(3) That the plaintiff's claim for the eviction of:-

3.1 Loida Nyathi - House 4251 Chinotimba;
3.2 Everson Ndebele - House 4255 Chinotimba;
3.3 Collen Ndebele - House 4247 Chinotimba;
3.4 Phindile Ncube - House 4242 Chinotimba;
3.5 Shadreck Ndlovu - House 4241 Chinotimba;
3.6 Stephen Mpofu - House 4244 Chinotimba;
3.7 Alice Ndlovu - House 4403 Chinotimba;
3.8 Sivumo Ndlovu - House 4401 Chinotimba;
3.9 Kambashu Zex Raura - House 4407 Chinotimba; and
3.10 Fred Khumalo - House 4400 Chinotimba;
be and is hereby granted.

(4) That each of the above-mentioned defendants, named in paragraph 3 above, be ordered to pay US$20 per month from the month of February 2009 to date of eviction.

(5) That the counter-claims by each of the defendants named in paragraph (3) above are dismissed.

(6) That the defendants named in paragraph 3 above are to bear costs of suit on the ordinary scale.

(7) That the plaintiff be declared owner of all the properties subject matter of this case.

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

With regard to the sums being claimed for payment of costs on the various agreements concluded between the parties, no evidence was led in the court a quo, either as to the amounts being claimed in the local currency, if any, or the rate of exchange that should be applied ...

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter so that what they plead is what the law requires their clients to prove to sustain the remedy they seek.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

The applicant was employed as Group Engineering Director by the first respondent, which represented itself as a holding company comprising several subsidies with the second respondent as its Chief Executive Officer.The letter of his appointment containing the terms of employment, dated 7 May 2009, was signed by the second respondent ...

The letter of his appointment containing the terms of employment, dated 7 May 2009, was signed by the second respondent in his capacity as the Chief Executive Officer. It reads as follows:

“REF: APPOINTMENT TO THE POSITION OF GROUP ENGINEERING DIRECTOR EFFECTIVE 1 JUNE 2009

Following the initial discussion with me, and the subsequent interview conducted at our Head Office, I wish to confirm your appointment to the above position whose duties include the following:

(i) Management of all Group Engineering Projects and Installations.

(ii) Production process improvements to include automation and plant simplifications.

(iii) Advise and liaison with divisions on safety matters.

(iv) Advise and liaison with divisions on procurement issues.

(v) Developing preventive maintenance programmes for all divisions.

(vi) Building inspections for structured works.

(vii) Introduction to best practices in all manufacturing processes.

As a Director, you will be expected to undertake full executive functions for the Group from time to time at fora and engagements inside and outside the Group.

Your initial package will be as follows:

Basic salary: US$3,000 per month
Education Allowance: US$ 500 per month
Cellphone Allowance: US$ 250 per month

Total ___________

Salaries are reviewed upward periodically in line with Group performance. After your 3 months probation you will be offered participation in the share options; have no doubt that you will be able to make immense contributions given your attitude to work and vast experience and that you will work well with our executive dynamic team that has created a very robust and fast growing organisation.

Yours faithfully

D. Govere
CHIEF EXECUTIVE OFFICER”

The appointment letter, which was copied to the Chief Operations Officer and Chief Finance Officer clearly refers to a “Group” of entities and “divisions” of what was presumably a family of businesses falling under the umbrella of Harambe Holdings.

In addition, an organogram was generated and made available to the applicant showing the structural layout of the group of subsidiaries making up the first respondent holding company.

The applicant remained in employment for 11 months, and, when he did not receive his salary and allowances in accordance with the employment contract, he referred the dispute to arbitration.

An arbitral award was issued in his favour in the sum of US$61,879.

He has been unable to execute against the first respondent's property to recover the judgment debt because each time an attachment of property is made, such property is claimed by a third party.

This has prompted the applicant to make this application seeking an order to compel the respondents to disclose the addresses and places of business of the subsidiaries of the first respondent.

In the event of failure to disclose, he wants the second respondent to be held personally liable for what is owed to him.

The basis of the application is that the respondents represented to him that the first respondent was a holding company or a conglomeration comprising, inter alia, of, The Vinyl Tile Company; Freshbak; Downings; Superbake; Ecoplastics (Pvt) Ltd; Horeca; Household Converters; Intertec (Pvt) Ltd; and Tacoola Beverages (Pvt) Ltd.

By such fraudulent misrepresentation, he was persuaded to take up employment as the Group Engineering Director of these entities - only for the employer to fail to pay him.

In support of that claim, the applicant has submitted, in addition to the organogram I have alluded to, a letter-head and trading brochures of the various entities representing each entity as “a division of Harambe Holdings.” This, according to the applicant, shows that both the first respondent and these other entities have been announcing to the whole world, and, indeed, the applicant, that they are one family.

He would therefore want the veil of incorporation to be lifted to expose them for what they are.

The application is contested by the respondents on the basis that no fraud has been established and therefore there is no basis for lifting the corporate veil. In his opposing affidavit, the second respondent states…, as follows:

“The correct position is that the first respondent holds shares in these companies. I deny that I ever told him that it carries its operations through the subsidies. These companies do their own business, and, like any other shareholder, the first respondent would get a dividend whenever it is declared. This is not the same as operating through other entities or in the name of these entities.”

Significantly, the second respondent does not take the court to his confidence as to the nature of the shareholding and does not even bother to produce the respective share certificates held by the first respondent.

True to his refusal to let out any information relating to the affairs of the businesses, the second respondent states, at paragraph 6, that “silence does not disclose any fraud” and that himself and the first respondent “have no duty to make the disclosures asked for.”...,.

The cardinal principle of our Company Law is that a company enjoys separate legal personality, generally referred to as the legal persona principle. For that reason, its property and its liabilities should be maintained distinct and separate from those of its members.

However, the courts have always readily lifted the corporate veil where the company is used as a vehicle for fraud or to justify wrong.

Counsel for the applicant has strongly argued that the second respondent represented to the applicant and produced an organogram to justify his representation that the entities from which the applicant now seeks relief were the first respondent's subsidiaries. He submitted, further, that, both the first and second respondents stood akimbo as all the entities masqueraded as subsidiaries of the first respondent - even through brochures.

For instance, one of the entities advertised on its brochures as “The Vinyl Tile Company is a subsidiary of Harambe Holdings, a wholly owned Zimbabwean Company.”

Counsel for the applicant insisted that the entities are all vehicles through which Harambe Holdings (Pvt) Ltd fraudulently avoids its obligations - including the payment of the applicant's salary and allowances.

I am persuaded by that argument.

This is particularly so as both the first and second respondents have signally failed to even produce the certificates of incorporation of these entities and their lists of directors. They have simply remained mum on anything to do with the status of both the first respondent and its subsidiaries.

In respect of holding companies, my attention has been drawn to seminal words of LORD DENNING in DHN Food Distributors Ltd v London Borough of Tower Hamlets 1976 (3) ALL ER 462 (CA)…, where that celebrated law Lord said;

“Although the companies in a Group are separate legal entities, the courts have, in the mercantile context, dealt with the Group as an economic entity. This lifting of the corporate veil is indicated especially when a parent company owns all the shares of the subsidiaries so much so that it can control movement of the subsidies.”

I am in total agreement with that pronouncement.

As stated by CORBETT CJ in The Shipping Corp of India Ltd v Evdomon Corp and Anor 1994 (1) SA 550 (A)…, which was quoted with approval by SANDURA JA in Van Nickerk v Van Niekert & Ors 1999 (1) ZLR 421 (S)…,:

“It is of cardinal importance to keep distinct the property rights of a company and those of its shareholders - even where the latter is a single entity; and that the only permissible deviation from this rule known to our law occurs in those (in practice) rare cases where the circumstances justify 'piercing' or 'lifting' the corporate veil.

I do not find it necessary to consider, or attempt to define, the circumstances under which the court will pierce the corporate veil. Suffice it to say, that, they would generally have to include an element of fraud or other improper conduct in the establishment or use of the company or the conduct of its affairs.”

See also Mangwendeza v Mangwendeza 2007 (1) ZLR 216 (H)…, and Manyathela v Manyathela HB44-11.

The second respondent, purporting to be the Chief Executive Officer of the first respondent, engineered the employment of the applicant as Group Engineering Director on the understanding that he would work within a conglomeration of companies all of whom gave themselves out to the whole world as subsidiaries of the first respondent.

Eleven (11) months down the line he had not been sufficiently remunerated, only for the respondents to turn round and deny what they claimed to stand for at the beginning, that is, a Group of companies.

The applicant was made to shift his position to his prejudice on the strength of a representation that he was joining a Group of companies, complete with an organogram to that effect, as the Group's Engineering Director. His duties also traversed all the entities given that the employment contract made reference to “all Group Engineering Projects and Installations”; “advise and liaison with divisions”; “undertake full executive functions for the Group” et al.

In my view, this is a classic case for the lifting of the corporate veil, because, the applicant is alleging the reliance on the legal personality of the first respondent to defeat a lawful claim, to justify wrong, and, indeed, to protect fraud. If this were to be allowed to perpetuate an injustice would occur.

It remains for me to deal with the issue of costs.

The respondents have been extremely un-cooperative: if indeed they were acting in good faith and have nothing to hide, they would have no difficulty with divulging the true status of the businesses and proving that the applicant has no recourse to the entities. They have, however, seen it fit to hedge behind incorporation while at the same time saying nothing that would assist both the court and the applicant to understand the dynamics of the businesses. If anything, the second respondent's declaration that “silence does not disclose any fraud” is arrogance of a very high order.

This conduct has put the applicant unnecessarily out of pocket. He deserves to be compensated, and, in my view, this is a case calling for costs to be awarded on a higher scale.

In the result, I make the following order, that;

1. The first and second respondents should, within 7 days of the date of this order, disclose to the applicant or his legal practitioners, the incorporation status of entities which operated as subsidiaries of the first respondent during the period extending from 1 May 2009 to 30 April 2010, namely, Freshbake, Downings, Superbake, Ecoplastics (Pvt) Ltd, Horeca, The Vinyl Tile Company, Household Converters, Intertec (Pvt) Ltd and Tacoola Beverages (Pvt) Ltd.

2. The first and second respondents should, within 7 days of the date of this order, furnish the applicant or his legal practitioners the addresses and places of businesses of the entities of the first respondent mentioned in paragraph 1 above during the period extending from 1 May 2009 to 30 April 2010.

3. In the event of the first and second respondents' failure to comply with para(s) 1 and 2 above, then the second respondent be and is hereby held personally liable for the judgment debt of the first respondent registered under case number HC6651/10.

4. The first and second respondents shall bear the costs of this application, jointly and severally, on a legal practitioner and client scale.

HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI
Ruled By: MAKARAU JP

The facts giving rise to this application are largely common cause. They are as follows:

The applicant is in the farming business, operating a farm in Chakari. In October 2006, it set out to acquire a centre pivot irrigation system for its farm. Its Managing Director, duly authorized to act on behalf of the applicant, approached one Douglas Chihuri (“Chihuri”) who was selling a center pivot system on behalf of the respondent.

An agreement of sale was concluded between the plaintiff and Douglas Chihuri, acting for his principal, regarding a 140HA center pivot system belonging to the respondent.

A purchase price in the sum of $12,000,000 and installation charges of $3,000,000 were agreed upon.

Pursuant to the agreement, an invoice was made out to the applicant giving the total amount payable as $15 million.

It was made clear to Douglas Chihuri that payment would be made through the African Banking Corporation and would take a few weeks to be processed.

A month later, payment was effected in the agreed sum. This was made in favour of Chartered Enterprises, Douglas Chihuri's trading mantle.

A week after payment had been made, the applicant met with the respondent to discuss the details of the delivery of the centre pivot. Douglas Chihuri was in attendance. At the meeting, the respondent unilaterally increased the purchase price of the centre pivot. Instead of holding the respondent to the agreed price, the applicant agreed to pay an additional $5million and executed an acknowledgement of debt to this effect.

The seller also appended his signature to the acknowledgement. So did Douglas Chihuri.

Payment of the $15 million was then made to the respondent according to his instructions. Still acting as the seller's agent, Douglas Chihuri agreed to have the centre pivot delivered to the applicant.

The respondent did not deliver the centre pivot, prompting the applicant to bring this application seeking an order compelling the respondent to deliver a 140HA center pivot to it.

In opposing the application, the respondent denies knowledge of what transpired between the applicant and Douglas Chihuri, but admits that he was, at that time, selling two centre pivots, the details of which he gave to Douglas Chihuri. He further confirmed, that, in time, Douglas Chihuri advised him that he had secured a buyer for one of the centre pivots. He also confirmed that he received the sum of $14 million dollars for the centre pivot that Douglas Chihuri had sold to the applicant on his behalf and that a balance in the sum of $5 million would be paid in due course.

It was also suggested to him that a further $15 million would be paid for the same pivot after the applicant had sold his beasts or that he could collect the beasts himself as further payment for the sold pivot. He however opted for a cash payment. He did not agree to the delivery of the pivot in the absence of full payment and did not deliver the center pivot because he did not receive the full purchase price of $35 million.

At the hearing of the application, it emerged that the respondent had sold the centre pivot, the subject of this dispute, after being served with this application but before the matter was determined.

This emerged from supplementary affidavits filed by both parties days before the hearing and which were filed with my leave. I granted leave to the parties to file the supplementary affidavits as, in my view, they air the full dispute between the parties and bring out the real issue for determination in this matter.

In his supplementary affidavit, the respondent deposed, that, after the filing of the above application, a director of the applicant caused his arrest on allegations of fraud. It was alleged, in the criminal proceedings, that the respondent had fraudulently misrepresented to the said director that the centre pivot was available for sale when he knew that it was not as it was to be sold to a third party. The respondent was duly prosecuted but was acquitted at the close of the trial.

In it own supplementary affidavit, the applicant admitted the facts given in the respondent's additional affidavit but urged me to find the contents of the affidavit inadmissible on the basis of irrelevancy.

Before proceeding further, I will dispose of the admissibility of the contents of the affidavit.

In my view, once a court grants leave to a party to file an additional affidavit, that grant of leave necessarily implies that the contents of the affidavit are admissible. Supplementary affidavits should only be filed if their contents are relevant to the dispute before the court.

It is a general rule of evidence that irrelevant evidence is inadmissible.

Section 26 of the Civil Evidence Act [Chapter 8.01] provides that evidence that is irrelevant or immaterial and cannot lead to the proving or disproving of any point in issue shall not be admissible.

This section is simply a codification of the position at common law which holds that all facts relevant to the issue in legal proceedings may be proved and where a legally recognized exception to this rule is not invoked, relevancy remains the fundamental rule governing the admissibility of evidence.

As indicated above, this is the rule that a court summarily employs before granting leave to file additional affidavits in motion proceedings.

In my view, the rule against admissibility of irrelevant evidence is rooted more in common sense than in a legal principle. It is a common sense approach by the court to govern that which it will accept or reject lest it be inundated by evidence of all facts surrounding a dispute and trials will take longer than is necessary to resolve if the parties were left at liberty to drag in all they wish or think is necessary.

It however remains clear that the rule against irrelevant evidence is against evidence of facts that have little to do with the issue in dispute.

In casu, I was of the view that the disposal of the centre pivot pending litigation is the issue in dispute and thus facts tending to prove the disposal cannot be irrelevant. Further, and in any event, the facts sought to be rendered inadmissible by the applicant are common cause and thus no party will be prejudiced by its admission into evidence.

It is on the basis of the above that I ruled admissible the contents of the two supplementary affidavits.

I now turn to consider the merits of the application.

The issues that fall for determination in this application are mainly two in my view:

(i) Firstly, I have to determine whether or not there was an agreement between the applicant and the respondent for the sale of the centre pivot for $20 million.

The respondent has sought to argue that the agreed purchase price was $35 million. He deposed in his opposing affidavit that after the applicant had paid the first $15 million and had promised a further $5 million, by way of the acknowledgement of debt; the parties agreed to a further payment of $15 million after the applicant had sold its beasts.

Relying on these averments by the respondent, counsel for the respondent argued that the correct purchase price of the center pivot cannot, in the circumstances, be ascertained without the leading of oral evidence and thus the application should fail on this basis.

It is common cause that Douglas Chihuri, acting as the agent of the respondent, agreed to sell the centre pivot to the applicant for $15 million. The parties agreed, later, to vary the purchase price to $20 million, when, after making payment of the initial purchase price, the applicant promised, by way of an acknowledgement of debt, to pay an additional $5 million.

The agency of Douglas Chihuri to represent the respondent, whilst challenged in the opposing affidavit, was not advanced in argument.

In my view, counsel for the respondent was well advised not to advance the argument in view of the affidavit by Douglas Chihuri and the fact that the respondent accepted the sum of $15 million paid by the applicant through Chihuri.

By his own conduct, of accepting the payment, the respondent put paid to whatever argument he may have had against the agency of Douglas Chihuri. By this conduct, he gave out and confirmed that Douglas Chihuri was indeed selling the centre pivot on his behalf and is thus bound not only by what Douglas Chihuri did but by what he also personally did.

If there was any doubt about the agency of Douglas Chihuri, the respondent personally removed that doubt by accepting the part payment of the purchase price and agreeing with the applicant that the balance now stood at $5 million, thereby putting beyond doubt that the purchase price was $20 million.

In my view, he is thus condemned by his own actions as revealed by the papers filed of record.

I am aware that the respondent has repeatedly and vehemently denied, in his affidavit, that the purchase price of the centre pivot was $20 million.

It is my view that it is not the number of times a denial is made or the vehemence with which a denial is made that will create a conflict of fact such as was referred to by McNALLY J…, in Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (H) and in all the other cases that have followed.

A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.

In casu, I believe the papers filed of record present ready answers to the questions posed by the respondent. He argues that he wanted more than the $20 million that the applicant contends was the agreed purchase price.

(a) Firstly, the papers filed of record clearly show that the respondent's agent negotiated and agreed to the sum of $20 million.

At law, the actions of the agent bind the principal - even if the agent is breaching his own contract of agency with the principal.

There is thus no need to lead evidence to show what the terms of the agency contract were regarding the purchase price he had to seek. The respondent, through the agency of Douglas Chihuri, agreed to $20 million that the applicant has paid in full.

(b) Secondly, it is common cause that the respondent received the sum of $15 million dollars through his agent, and, thereafter, acknowledged, in writing, that the balance due was $5 million.

He did not, at that stage, query the fact that the balance was only $5 million instead of $20 million according to his assertions.

By appending his signature to the acknowledgement of debt, which clearly indicates the balance as $5million, he gave out to the applicant that he agreed with the applicant in this regard.

Thus, in my view, on the basis of the papers, it is clear that the total purchase price agreed to between parties was in the sum of $20 million which was paid in full.

I find nothing on the papers to indicate that the parties may have agreed to a price other than $20 million.

The only suggestion that this may be so is the averment by the respondent, in his opposing affidavit, to this effect. It is not backed up by any other evidence. It is contradicted by the facts that are common cause and is thus clearly simply meant to introduce an illusory conflict where none exists.

Aligned to the alleged conflict of fact on the agreed purchase price is whether the respondent agreed to deliver the centre pivot before payment of the purchase price in full.

Again, counsel for the respondent urged me to find that I could not resolve this dispute in the absence of oral evidence.

I am afraid I cannot agree.

Having found that the agreed purchase price was $20 million which was paid in full, it matters not, in my view, if the respondent agreed to deliver the centre pivot as delivery is a legal consequence following the conclusion of a sale agreement. It cannot be the subject of a separate agreement between the parties.

It is therefore my finding, that, there is no material conflict of fact in this application.

The parties concluded an agreement of sale of the centre pivot for the sum of $20 million which has since been paid in full. The respondent is bound by the law of sale to deliver the centre pivot to the applicant.

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

The plaintiff is a male adult resident at House Number 2365 St Marys Chitungwiza. The defendant is the Minister of Defence cited in his official capacity.

On 14 November 2003, the plaintiff filed a suit against the defendant for damages in the sum of Z$500,000. The plaintiff alleged, that, on 19 March 2003 he was asleep at his mother's house, House Number 2365 St Marys Chitungwiza when he was awakened by a knock on his door. When he went outside in response to the knock, he was assaulted by members of the Zimbabwe National Army during the course and scope of their employment with the defendant. He therefore claimed damages in the sum of Z$500,000 as a result of the injuries he sustained from the assault.

At trial, the plaintiff amended his claim. He now claimed a total of US$685 made up as follows:

1. US$311 being damages for shock, pain and suffering.

2. US$187 being damages for loss of amenities of life.

3. US$187 being damages for contumelia.

The defendant denied that any member of the Zimbabwe National Army assaulted the plaintiff on the date in question. The defendant contended, that, the Zimbabwe National Army (herein referred to as “ZNA”) members were only deployed in the plaintiff's area of residence on 20 March 2003 up to 26 March 2003.

The issues for determination were essentially two, namely:

1. Whether the plaintiff was assaulted by members of the Zimbabwe National Army (ZNA); and

2. Whether the plaintiff is entitled to the quantum of damages as per summons as amended.

The plaintiff gave evidence after which he called his wife, Rossy Domingo, as his only witness. The defendant's case was testified to by Emmanuel Matatu. At the time of the incident in question he was the Brigadier General Operations based at the ZNA Headquarters.

The plaintiff's evidence was to the effect, that, on 19 March 2003 he was asleep in the house when he was awakened by a knock on the door. Those knocking were also calling out his name. He got up and went outside. As he stood by the door he saw some soldiers. The soldiers were wearing an attire he described as their usual camouflage uniform. In further describing the attire, he said it was green; grey; cream in colour with red barets. He was able to see this because of lighting from electricity lights at the residence. He realized that these people were carrying guns he described as big guns – rifles.

When he went out of the house, the soldiers asked him whether he was Chair and he confirmed so. The same question was asked to another man who was not in uniform. He later identified that man as his friend Danmore. After confirming that he was Chair, one of the soldiers grabbed him and started assaulting him with a stick. They were also interrogating him in the process. When he got hold of the stick that was being used to assault him other soldiers joined in assaulting him. They were now assaulting him with clenched fists. At some stage, he felt as if a sjambock was also used and an iron bar. After a while, the soldiers took him and Danmore, who apparently was also in their captive, to some houses in the neighbourhood. The soldiers pointed a gun at him and ordered him to go and point out neighbours he attended meetings with.

When they got to Brenda's father's house they were ordered to lie down and were assaulted further at this house. Brenda's father was not there but his wife. From that house they went to another house. From this other house the soldiers were pointing rifles at Danmore and himself. They went to Florence's house. At this house, Danmore and himself were ordered to lie down facing down. The soldiers plucked tree branches from an avocado tree and started assaulting them with the branches. The assaults were concentrated at the back. They then went to Daniel's house which is near his mother's house where he had been sleeping. Daniel was called and assaulted. At Daniel's house, all the people that were found there were assaulted.

After that, the plaintiff, Danmore, and Florence were severely assaulted further. Towards dawn, they were ordered to stand up. It was then that he saw some motor vehicles by the gate. These were army motor vehicles as they were painted in the same colour as the uniforms of the soldiers. The motor vehicles were four in number and they looked like Pumas. He also realized that the number of soldiers had increased.

It was also his evidence that they were later ordered to board the ZNA trucks he described as similar to Pumas. In the truck, he observed benches on the sides and they sat in between the benches in the centre of the loading tray.

They were then driven and ordered off at some place along the Mbare-Chitungwiza road.

Upon disembarking, they ran away in different directions. When he returned to his residence, his wife applied hot compression on him. Later, but on that same day, 20 March 2003, he left for Shurungwi to reside with his brother.

After about three weeks he returned to St Marys. He thereafter proceeded to Harvest House in Harare where MDC top officials gave him a letter to take with him to a doctor. He confirmed that he received medication and Dr Coric examined him and compiled a medical affidavit.

The plaintiff's wife, Rossy Dimingo, gave evidence in support of the plaintiff's case. Her evidence, on the identity of the assailants, was to the effect that they were ZNA members. According to her evidence, after knocking on the door, the soldiers entered their bedroom and she saw that they were soldiers as they were clad in ZNA camouflage uniform. When they entered, she saw that they were armed with sjamboeks which they wanted to assault the plaintiff with.

She indicated that the soldiers then went out and started assaulting the plaintiff. The soldiers were clad in camouflage green; grey and brownish in colour uniform. They also were putting on red berets and black boots. After assaulting the plaintiff, the plaintiff and Danmore were taken away by the soldiers. At that time there were six soldiers.

It is pertinent to point out that the plaintiff's case had its own problems:

Whilst in his evidence in court the plaintiff and his wife referred to the guns the assailants had as rifles without any hesitation; in his summary of evidence, the plaintiff referred to the guns as service pistols.

In paragraph 3 of the summary of evidence, the plaintiff had this to say:

“Some uniformed members of the ZNA wielding service pistols forced entry into the plaintiff's bedroom.”

Nowhere, in either the declaration or the summary of evidence, did the plaintiff refer to rifles as having been used or even sighted on the night in question.

According to his declaration and summary of evidence, the assaults were perpetrated using baton sticks, fern belt, and boots; yet, in their evidence in court, both the plaintiff and his wife opted to include other weapons like sjamboek and rifles. The plaintiff went on to include avocado tree branches and an iron bar.

In paragraph 5 of the summary of evidence, the plaintiff indicated, that, after being assaulted with baton sticks, fenn belt, and boots all over the body, he was then dragged to Chitungiwza cemetery and was dumped there.

The evidence adduced did not support such an assertion at all.

The aspect of dragging was within the premises of the house he was found at, and it was as he was being assaulted. He was not dragged to the cemetery at all. He was taken to the Mbare-Chitungwiza road in a motor vehicle.

In paragraph 6 of the same summary of evidence, the plaintiff stated that:

“As a result of the assault, the plaintiff suffered excrutiating pain. He also sustained multiple bruises, cuts, and a broken right arm. He had to be detained in hospital for some time.”

Surprisingly, in his evidence in court, the plaintiff and his witness never alluded to being detained in hospital at all.

The sequence of events the two seemed agreed on was that on 20 March 2003 the plaintiff left for Shurugwi. In Shurungwi he never attended any medical institution or sought medical attention from anyone. According to the plaintiff, he spent about three weeks in Shurugwi. He then returned to St Marys. He later went to his party's Head Office at Harvest House in Harare where he saw some top officials. The top officials gave him a letter which he took to a doctor. It was then that he received some medical attention. He was thereafter referred to Dr Milos Coric an Orthopaedic Surgeon. As a result of that visit, Dr Coric compiled a medical affidavit. According to that affidavit, the examination was conducted on 14 April 2003 - a period of at least twenty five days from the date of the assault.

The plaintiff's wife seemed to confirm that the plaintiff did not seek immediate medical attention. The medical affidavit did not show the multiple bruises and cuts referred to in the summary of evidence. The affidavit simply confirms a fracture of the right ulna (forearm). The assertion that the plaintiff was detained in hospital is not supported by any evidence adduced in court.

As already alluded to, the medical affidavit, by Dr Coric, pertained to the examination done on 14 April 2003. It did not show that the plaintiff was ever detained in hospital.

Another point of concern on the medical affidavit is on the history.

In the copy of the medical affidavit dated 7 March 2007, which the plaintiff seemed to prefer, exhibit 1, under history it is stated that ”Zimbabwe National Army officers attacked this man on 19 March 2003.”

In the second copy of the same affidavit, dated 10 August 2004, exhibit 2, the same doctor endorsed the history as being that “this man was attacked by political opponents on 19 March 2003.”

The change in the identity of attackers from political opponents, as in the affidavit of 19 August 2004, to Zimbabwe National Army (ZNA) officers, as on the affidavit dated 7 March 2007, needed the deponent thereto to clarify.

Unfortunately, this was not done.

This is an irregularity that put into question the credibility of the affidavit in question. The plaintiff himself could not adequately explain that anomaly.

Whilst the plaintiff's counsel sought to downplay the anomaly, I am of the view, that, in as far as the history of a patient is concerned, it is expected to be from the patient or someone with such knowledge; such an anomaly casts a shadow of doubt on the plaintiff's credibility as well.

If, on 14 April 2003, he indicated his assailants as political opponents, why have that changed to Zimbabwe National Army (ZNA) officers in March 2007?

In any case, no reason was advanced for seeking a second medical affidavit.

If the assailants were Zimbabwe National Army (ZNA) officers, and the plaintiff knew that as of fact, that should have been reflected from the onset.

In as far as the only difference between the first medical affidavit and the second medical affidavit is on the history and date, one is tempted to believe that the second medical affidavit was obtained to tie up the medical affidavit to the plaintiff's claim.

It must be remembered that as was held in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…, where there are mutually destructive stories the court must be satisfied that the version given by the party on whom the onus rests is true and the other false. Unless this can be found, the plaintiff cannot be said to have discharged the onus on him.

For a party's version to be found to be true, there should be some consistency in his version. Discrepancies may be overlooked where such discrepancies do not seriously affect the party's credibility in version of events.

Where, as in this case, the plaintiff's version, as contained in papers filed of record, is inconsistent with the plaintiff's evidence in court on material aspects relevant to the issue at hand it is difficult to find that the plaintiff has discharged the onus.

In Matiza v Pswarayi 1999 (1) ZLR 140 (S), the court was faced with a similar situation whereby the plaintiff on whom rested the onus of proof, gave three versions. The first version in the declaration, another version in a letter tendered, and a third version in his evidence in court. The trial court made a finding that he had not discharged the onus on him.

On appeal, the Supreme Court…, also concluded that:

“It cannot be said that the appellant's version is true and that the respondent's version is false. The appellant did not, therefore, prove his claim on a balance of probabilities.”

See also S v Nicolle 1991 (1) ZLR 211…,.

In casu, the factors that the plaintiff alluded to in identifying the assailants were quite common. He indeed referred to the attire as “the usual uniform”. Clearly, this would not have been his first time to see such a uniform with such colors. This camouflage uniform for the Zimbabwe National Army (ZNA) is common. Being able to describe the camouflage uniform that is commonly worn by ZNA members cannot, on its own, be an indication that he indeed saw the soldiers on the night in question. This has to be taken together with other factors. Even his wife's description was a common description of the usual uniform.

The two did refer to the soldiers putting on red barets as well.

As Emmanuel Matatu indicated, these are worn by members of the military police. He also indicated that members of the military police are not deployed on such operational duties.

It was thus pertinent to rebut that.

The discrepancies in the plaintiff's evidence do point to someone intent on either embellishing his evidence or simply not being candid with the court at all.

The medical affidavit confirms the desire to shift blame for what may have befallen the plaintiff on the night of 19 March 2003 from his political opponents to being members of the Zimbabwe National Army.

In the light of all these discrepancies, I am not satisfied that the plaintiff has proved, on a balance of probabilities, that his assailants were members of the Zimbabwe National Army.

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

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED
Ruled By: KUDYA J

The plaintiff, a former financial director of the defendant company, filed summons on 8 July 2009 seeking payment of the capital sum of US$72,334 and interest at the rate of 10% per annum from the date when the amount fell due to the date of the issue of summons in the sum of US$12,658, payment of interest on the capital amount at the rate of 10% from the date of the issue of summons to the date of payment in full and costs of suit.

The defendant contested the matter.

The plaintiff's cause of action was disclosed in paragraphs 3, 4 and 5 of its declaration in these terms:

“3. The defendant became indebted to the plaintiff in respect of arrear salaries and other benefits arising from a contract of employment concluded between the parties on or about 21 September 2004 that was terminated by the plaintiff's resignation from employment on 7 March 2007.

4. During the month of April 2007, the defendant partly liquidated the amount claimed by the plaintiff by delivering to the plaintiff a motor vehicle and a laptop computer whose agreed values totalled US$30,000.

5. On or about 18 July 2007, the Group Chief Executive Officer of the defendant, Mr Hamish Rudland acknowledged liability for the sum as at that date of US$70,000 which would attract interest at the rate of 10% per annum.”

The defendant raised a plea in bar based on two grounds before pleading over to the merits. Its plea reads as follows:

“1. As appears from the plaintiff's declaration:-

1.1 The cause of action is predicated on a contract of employment concluded by the parties on 21 September 2004.

1.2 The claim is for payment of alleged arrear salaries and benefits consequent upon resignation.

1.3 The payment of salaries and benefits during and upon termination of a contract of employment is governed by the provisions of the Labour Act [Cap 28:01].

1.4 Accordingly, and in terms of section 89(6) of the Labour Act, this Honourable Court has no jurisdiction to hear and determine this claim.

2. Additionally, but without prejudice to the above, the defendant avers that:

2.1 The contract of employment between the parties provided for payment of salaries and benefits in Zimbabwe dollars, being the lawful legal tender.

2.2 The plaintiff's claim is denominated in foreign currency, namely, the United States dollars.

2.3 At the material time, the payment of salaries and benefits in foreign currency, without exchange control approval, was illegal and unenforceable by virtue of:

2.3 1. The Exchange Control Act [Cap 27:05].

2.3.2. Exchange Control Regulations, 1996, SI 110/1996.

2.3.3. The Labour Act [Cap 28:01].

2.4. In the premises, the plaintiff's claim is bad and unsustainable at law and ought therefore to be dismissed with costs.”

In pleading over to paragraphs 3, 4 and 5 of the plaintiff's declaration, the defendant denied these averments and put the plaintiff to the proof thereof and reiterated that the mode of payment sought was unlawful.

In his replication, the plaintiff averred that his cause of action was premised on an acknowledgment of debt signed by a representative of the defendant and not on the terms of employment.

He also averred that the defendant was obliged to obtain the necessary foreign currency exchange approvals to pay him in foreign currency using its free funds.

At the pre-trial conference that was held on 8 April 2010, the following four issues were referred to trial:

(a) Whether or not this Honourable Court, and in the light of section 89(6) of the Labour Act [Chapter 28:01], has jurisdiction to adjudicate over the dispute between the parties;

(b) Whether the contract of employment between the parties provided for payment to the plaintiff in United States dollars and the amount thereof;

(c) Whether the plaintiff's claim was lawful at the material time; and

(d) What amount, if any, is due to the plaintiff.

The trial in this matter was held on 14 June 2010. The plaintiff called the evidence of two witnesses and produced a 40-paged bundle of documents as exhibit 1.

After the close of the plaintiff's case, the defendant elected to open and close its case without calling any evidence.

My findings of fact are based on those aspects of the evidence called by the plaintiff that survived cross examination.

The plaintiff holds a Bachelor of Law (Honours) degree from the University of Zimbabwe (1983) and is a Chartered Accountant (1988). He was the Group Financial Director of the defendant from 1 June 2004 until his resignation on 7 March 2007. His contract of employment with the defendant is covered in pages 2 to 6 of exhibit 1. The relevant sections fall under the headings Remuneration and Benefits. I set them out below:

“3. REMUNERATION

As remuneration for services rendered, the Contractor shall pay the contracted person, during the subsistence of this agreement, the sum of $21 million per month, payable monthly in arrears. The salary will be subject to taxation in line with the rules and regulations of the Zimbabwe Revenue Authority. As you are on a fixed term contract, the company is not liable to pay any further sums of money which may be required of you by operation of law. This shall be reviewed every quarter.

4. BENEFITS

In addition to the salary stated above, you will be entitled to the following:

4.1 Cimas Medexec Medical Aid for you and your family.

4.2 Use of a company vehicle and 200 liters per month. Such allowance is for monthly usage and shall not accrue.

4.3 School fees for two children, but any change in school requires the authority of the CEO.

4.4 Cafeteria/entertainment allowance to be agreed annually by CEO.

4.5 Any other amounts will be deducted from the cafeteria allowance.”

The plaintiff indicated that his claim was based on the contents of pp7 and 8 of exhibit 1. It is an e-mail dated 13 July 2006 which the plaintiff dispatched to himself and copied to his website. It was signed and dated at the bottom of each page by Hamish Rudland, the acting Chief Executive Officer of the defendant at the time. The purported acknowledgment of debt was sandwiched between a set of seven action plans on the first page and another set of seven action plans on the second page. The acknowledgments read:

“HR acknowledges outstanding balance to KPM of US70K subject to update of figures.

HR acknowledges 10% interest per annum calculated monthly.

HR acknowledges salary US6K per month inclusive of local salary.”

The plaintiff stated that HR referred to Hamish Rudland while KPM referred to the plaintiff.

He stated that the defendant was to promote a company in Mauritius which would be used as the vehicle to pay top management in Zimbabwe in foreign currency and pay his outstanding debt.

It was common cause that the vehicle and laptop were sold to the plaintiff as indicated in the letter by Hamish Rudland (HR) of 10 September 2007 on p18 of exhibit 1. He averred that the two items were valued at US$30,000 and abated the outstanding capital sum and interest.

On pages 19 and 20 are the purported minutes that he wrote on 15 January 2008 of a meeting he held with Hamish Rudland (HR) and the plaintiff's wife in which he recorded, inter alia, his demand for payment of the outstanding debt by Pioneer Corporation Africa (PCA) and the reluctance to pay by Hamish Rudland (HR) until he had received a return on his investment and an undertaking that payment would be made at a later date.

He was the only one who signed those minutes.

He also relied on the minutes he authored on 18 March 2009 between Hamish Rudland (HR), EM Warhurst (EMW) and himself on pp 29-30 of exhibit 1. They were signed by EM Warhurst (EMW) and the plaintiff only.

They indicate that Pioneer Corporation Africa (PCA) owed EM Warhurst (EMW) US$15,000 and the plaintiff just over US$80,000.

While they show that Hamish Rudland (HR) was unwilling to pay the debt, they record that he had signed the plaintiff's contract of employment and acknowledgment of debt in July 2006.

Pages 38-39 show that, from October 2003 to February 2007, the plaintiff was entitled to receive from the defendant US$215,000 in salary. He was paid a total of US$157,251 between October 2003 and March 2007. The capital outstanding in salary arrears was US$57,749. The amount due as interest, from December 2005 to June 2009 was in the sum of US$26,462.

He was cross-examined.

He based his claim on an acknowledgement of debt of 17 July 2006. The acknowledgment arose from the failure to pay salaries during the period extending from October 2003 to February 2007.

He stated that he did not sue the defendant for arrear salaries that were incurred between October 2003 and July 2006 because during that period he was a member of the plaintiff's management team.

He accepted that, at that time, legal tender in Zimbabwe was the local dollar.

He was referred to section 12A of the Labour Act.

He was evasive on whether his claim was founded on a contract of employment or not. He was evasive on whether payment in United States dollars was payment in kind or not. He stated that in 2006 there were no exchange control prohibitions against the payment of salaries in foreign currency but conceded that during the period of his employment with the defendant he was never paid in United States dollars. He further acknowledged that at that time the defendant did not pay any of its employees in foreign currency.

He said the United States dollar was used to index the payment in kind in the form of air tickets that he received for holidays outside Zimbabwe.

He admitted that he could not claim in United States dollars before February 2009.

He accepted that the email of 18 July 2006 was made when Hamish Rudland (HR) had taken over as the Acting Chief Executive Officer of the defendant but denied that it was a mere update of the company's affairs and hand over/take over summary sheet. He said it was not an exchange of information document but a contract between the plaintiff and the defendant.

He accepted that it was not in the usual mode of an acknowledgement of debt that is drawn up by legal practitioners.

He averred, that, at the time, the defendant was obliged to pay him in the Zimbabwe dollar equivalent of US$70,000 at the prevailing parallel market rate of exchange.

He called Edward Mark Warhurst, a practicing legal practitioner, who, at the time, was the Group Company Secretary and Managing Director of Clan Transport (Pvt) Ltd, one of the subsidiaries of the defendant.

Edward Mark Warhurst confirmed the accuracy of the minutes written by the plaintiff at the meeting of 18 March 2009 found in exhibit 1. He said Hamish Rudland (HR) sought to refute indebtedness on the basis that the plaintiff had given poor service to the defendant but he accepted that the defendant owed the plaintiff arrear salaries in foreign currency for which it was unable to pay.

He was cross examined.

He was a workmate of the plaintiff during the period 2003 to 2006 when he worked for the defendant. He was owed arrear salaries in foreign currency for the period September 2005 to August 2006. He was invited by the plaintiff to the meeting of 18 March 2009 because both were creditors to the defendant.

He confirmed that his salary was paid in local currency.

It is on the basis of the evidence led that I proceed to determine the issues referred to trial.

(a) Whether or not this Honourable Court, and in the light of section 89(6) of the Labour Act [Chapter 28:01] has jurisdiction to adjudicate over the dispute between the parties

Counsel for the defendant submitted that this court did not have the jurisdiction to deal with this matter as it is a labour dispute. The plaintiff conceded, in his replication, that, were the present matter a labour dispute, he would have had to file it out of the Labour Court.

It seems to me, notwithstanding that this court is a superior court imbued with inherent jurisdiction, that all labour disputes must be dealt with in terms of the relevant provisions of the Labour Act.

It was common cause that section 89(6) of the Labour Act ousts the inherent jurisdiction of this court to hear labour disputes in the first instance. Put in other words, the High Court cannot be the first port of call to any party in a labour dispute.

The dispute, being one of right and not interest, would perforce be dealt with in terms of section 93 of the Labour Act by a labour officer who could refer it to arbitration from whence it would find its way to the Labour Court.

Counsel for the plaintiff submitted that this court had the jurisdiction to determine this matter because the plaintiff's case was found on an acknowledgment of debt and not on a contract of employment.

It is correct that, in our law, an acknowledgment of debt can found a cause of action: see Chimutanda Motor Spares (Pvt) Ltd v Musare & Anor 1994 (1) ZLR 310 (H)…,; Gondwe v Bangajena 1988 (1) ZLR 1 (H)…,; and Salisbury Municipality v Partington & Anor 1961 (3) SA 218 (SR)…,.

Counsel for the defendant contended that the plaintiff pleaded his cause of action as the contract of employment. He argued that reference to an acknowledgment of liability by the defendant's acting Chief Executive Officer in the declaration did not shift the cause of action to that of an acknowledgment of debt. He further contended that the document purported by the plaintiff to be an acknowledgment of debt was merely an update of the company's affairs and a hand over/take over sheet.

Counsel for the plaintiff contended that the statements sandwiched between other unrelated action plans constitute an acknowledgment of debt.

His contention appears to be borne out by the sentiments expressed by McNALLY J in S v Manyere 1984 (1) ZLR 104 (H)…, to the effect that an “I owe you” left in a cash box would constitute an acknowledgment of debt.

It is correct that the defendant did not call evidence to dispute the facts set out by the plaintiff and his witness or offer an alternative version of events.

It is also correct, that, subsequent to the acknowledgement of debt, two sets of minutes were written by the plaintiff, that the defendant's acting Chief Executive Officer refused to sign, which show that he acknowledged the defendant's indebtedness to the plaintiff in the amount claimed.

Again, the plaintiff's version was supported by Edward Mark Warhurst who was a forthright and credible witness.

It seems to me, notwithstanding the failure by the defendant to lead evidence, that counsel for the defendant's contention that the plaintiff's cause of action was predicated on a contract of employment is correct.

In my view, paragraphs 4 and 5 of the plaintiff's declaration are explanatory averments of how he arrived at the capital sum and interest claimed. The legal foundation of the claim lies in the contract of employment. Paragraph 3 of the declaration is the basis of the plaintiff's claim.

I understand him to be averring that the debt for which he seeks redress arose from unpaid salary arrears.

This is confirmed in the further particulars supplied by the plaintiff as read with the information supplied to the defendant's chairman on pages 31 to 39 of exhibit 1 in which he collated the outstanding salaries from October 2003 to February 2007 and outstanding interest due from December 2005 to June 2009.

The failure by the plaintiff to plead that his claim was based on an acknowledgment of debt executed on 18 July 2006 further confirms that he found his claim on unpaid arrear salaries.

Accordingly, I uphold the exception raised by the defendant and dismiss the plaintiff's claim on the basis that this court lacks the jurisdiction to determine the matter by virtue of the provisions of section 89(6) of the Labour Act [Chapter 28:01].

However, in the event that I am wrong, and the cause of action was properly pleaded in terms of paragraph 5 of the declaration, I proceed to deal with the other issues that were referred to trial.

(b) Whether the contract of employment between the parties provided for payment to the plaintiff in United States dollars and the amount thereof

The plaintiff confirmed, in his testimony, that the contract of employment did not provide for payment in United States dollars or any foreign currency. He alleged that payment in United States dollars was incorporated as a cafeteria benefit. He agreed that the contract did not delineate the United States currency as the currency of account for the cafeteria allowance. He did not produce a document in writing, and signed by both parties, to demonstrate that the contract of employment was varied as contemplated by paragraph 14 of the contract of employment.

The second issue is determined in favour of the defendant.

(c) Whether the plaintiff's claim was lawful at the material time

The time referred to is the period from October 2003 to 7 March 2007.

Counsel for the defendant submitted that it was unlawful, at the time, for a Zimbabwean-registered company to pay its employees in foreign currency for work performed in Zimbabwe without exchange control authority. He relied on the provisions of section 4(1)(a)(ii) of the Exchange Control Regulations S.I.109 of 1996.

Counsel for the plaintiff submitted that the exchange control legislation was not violated by an agreement to pay a salary in foreign currency to the plaintiff in Zimbabwe for work done in Zimbabwe. He relied on a case in which the claim was based on an acknowledgment of debt that the defendant did not sign but was reduced to writing by the plaintiff's legal representative which reflected the terms of the oral agreement reached of Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC)…, where McNALLY JA, dealing with sections 7 and 8 of the Exchange Control Regulations 1977, the precursor to the present sections 10 and 11 of the Exchange Control Regulations 1996, stated:

“The essential point to be noted is that there is a clear difference between sections 7 and 8. The former proscribes only the actual payment. The latter proscribes both payment and the underlying agreement to pay.

In other words, when one is concerned with payments inside Zimbabwe it is perfectly lawful to enter into the agreement to pay. But, without authority from the Reserve Bank, the actual payment may not be made. By contrast, when dealing with payments outside Zimbabwe, it is unlawful even to enter into the agreement to pay, without first obtaining the authority of the Minister, whose powers have been delegated to the Reserve Bank.”

The case dealt with the payment, in local currency in Zimbabwe, of a foreign resident by a Zimbabwean resident.

The facts in Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC) differ with those in the present case in that in the former case payment was made by a local resident for the account of a foreign resident in local currency. In the present case, a local resident was to pay another local resident in foreign currency. The former concerned an outflow of foreign currency while the present matter concerned the inflow of foreign currency.

It seems to me that the payment of an employee's salary in foreign currency, at the time, would have contravened section 4(1)(a)(ii) of the Exchange Control Regulations.

Both CHINENGO J and GOWORA J held, in separate cases of Jumvea Zimbabwe Ltd & Anor v Matsika 2003 (1) ZLR 71 (H)…, and Gambiza v Tavaziva HH109-08…, that payment of foreign currency, whether inside or outside Zimbabwe, would amount to an exchange and thus be in violation of section 4(1)(a)(ii) of the Exchange Control Regulations.

In the present case, the defendant did not make any payment but entered into an agreement to pay.

Counsel for the plaintiff was therefore correct that such an agreement was not prohibited by the Exchange Control Regulations.

This is what McNALLY JA had in mind in Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC)…, when he said…,:

“The contract to pay is lawful. Actual payment in pursuance of the contract is unlawful without permission. There is no reason why the court should not order payment; subject to the condition that authority is obtained. I must make it clear that this judgment in no way inhibits the Reserve Bank in the exercise of its discretion. It is entirely for the Reserve Bank to decide whether or not to authorise the payment. If it decides not to do so the payment may not be made. The contract remains lawful. Payment will then have to await a change either in the law or in the policy of the Reserve Bank.”

I hold that the contract to pay the plaintiff in foreign currency did not contravene any Exchange Control Regulations.

Counsel for the respondent further contended that payment in foreign currency contravened section 12A(1) of the Labour Act [Chapter 28:01]. Counsel for the plaintiff countered by arguing that section 12A(2) of the Labour Act allowed for the payment of employees in foreign currency.

Section 12A(1) and (2) of the Labour Act read:

“12A Remuneration and deductions from remuneration

(1) Remuneration payable in money shall not be paid to an employee by way of promissory notes, vouchers, coupons or in any form other than legal tender.

(2) Remuneration may be payable in kind only in industries or occupations where such payment is customary, and shall be subject to the following conditions —

(a) Any such payment shall be appropriate for the personal use and benefit of the employee and the employee's family;

(b) The value attributed to such payment shall be fair and reasonable;

(c) Equipment or clothing required to protect the health and safety of the employee shall not be computed as part of the remuneration of the employee;

(d) No payment shall be made in the form of liquor or drugs;

(e) Remuneration in kind shall not substitute entirely for remuneration in money.”

Counsel for the defendant argued, that, at the time of employment, legal tender was constituted by local banknotes and coins. He submitted that though foreign currency was money, at the time, it was not legal tender in Zimbabwe.

Counsel for the plaintiff did not controvert this argument.

Rather, he ingeniously contended that the fact that the Exchange Control (Payment of Salaries by Exporters in Foreign Currency for Critical Skills Retention) Order S.I.127 of 2008 introduced for the first time the need for an exporter to seek exchange control authority to pay salaries in foreign currency showed that the payment of salaries in foreign currency was not proscribed before its promulgation. He went on to argue, that, as this subsidiary legislation did not have retrospective effect, it did not affect the plaintiff whose contract of employment ended in March 2007

I, however, agree with counsel for the defendant's rebuttal that the introduction of S.I.127/08 into our law was the first inroad made against the restrictive provisions of section 12A(1) of the Labour Act against the payment of salaries in any currency other than local currency.

Subsections (1) and (2) of section 12A of the Labour Act recognize the payment of remuneration in cash or in kind.

Subsection (1) restricts those employers who remunerate their employees in money to the use of legal tender to the exclusion of other modes of payment such as promissory notes, vouchers, coupons or any form other than legal tender.

I understand the phrase 'any form other than legal tender' to be of wide application.

In my view, it restricts payment to the use of legal tender and excludes payment in kind or money that is not legal tender.

Subsection (2) permits employers who are in occupations or industries that customarily pay remuneration in kind to do so.

Paragraph (e) of subsection (2) of section 12 puts it beyond doubt that remuneration in kind is not the same as remuneration in money. This same paragraph, in my view, is clear proof that in the mind of the legislature legal tender, in section 12A(1) of the Labour Act, was another euphemism for money: see Rhodes Motors (Pvt) Ltd v Pringle-Wood NO 1965 (4) SA 40 (SRA)…, where legal tender is considered and treated as money; S v Zakana 1976 (2) SA 248 (R) where SMITH J, by reference to The Shorter Oxford English Dictionary, defined legal tender to be, inter alia, “the money of a country in actual use.'”; and McNALLY JA in S v Bennett-Cohen 1985 (1) ZLR 46 (SC)…, defined legal tender as currency or money. The same LEARNED JUDGE OF APPEAL, in S v Mafarachisi 1990 (1) ZLR 118 (SC)…, approved the definition by COWEN in The Law of Negotiable Instruments in South Africa, 5ed, Vol I…, that legal tender was “the medium legally authorised by the State for the payment of debts.”

Counsel for the defendant's submission, that foreign currency did not constitute legal tender at the time of the plaintiff's contract of employment with the defendant, is borne out by the views of textbook writers and case law. The definition of legal tender is provided by MANN in The Legal Aspect of Money, 4th ed, at p41, in these words:

“Legal tender is such money, in the legal sense, as the legislator has so defined in the statutes organizing the monetary system. Chattels, which are legal tender have, therefore, necessarily the quality of money, but, logically, the converse is not true…; not all money is necessarily legal tender. The question what money is to be considered legal tender is usually answered by the statutes organizing the monetary system.”

Again, at p186, the learned author states:

“Where these principles lead to foreign money being regarded as money, the conclusion is in no way affected by the established rule that foreign money is not legal tender, for not all money is legal tender, but all legal tender is money. Legal tender is such money as is 'current coin of the realm'. This does not mean more than that foreign money cannot be tendered in discharge of a debt to pay pounds sterling, but it does not touch the question of the manner of discharging, in England, a debt expressed in foreign money.”

WILLIS in Banking in South African Law, Juta 1981, at p200, observes that in terms of the SA Mint and Coinage Act 75 of 1964 the South African Reserve Bank has the power to issue and make bank notes and coins and that these coins and banknotes constitute legal tender in South Africa. At p191 WILLIS confirms that, in South Africa, foreign money is not legal tender. He writes:

“The definition of foreign currency has since been amended to mean 'any currency which is not legal tender in the Republic.'”

CHRISTIE, in The Law of Contract in South Africa, 3rd ed…, is in agreement with the observations made by WILLIS.

MORSE, in Vol 1 of A Treatise on the Law of Banks and Banking, 3rd ed (1888)…, recognizes the sovereign right of every State to define what is legal tender within its jurisdiction in these words:

“The right of the depositor is not, however, necessarily to the gold or silver coin of the country; but only to such money as is, by the law of the land, legal tender at the time.”

In Vol 2…, the learned author defined legal tender in these words:

“At present, in our country, the treasury notes of the United States have been made by Act of Congress a legal tender, and payment, or offer of payment, in them satisfies the duty of the Bank; though it has bound itself by a specific agreement to pay in gold or silver coin.”

And, in para 637…, he wrote:

“Bank bills are not money, in the strict sense of the term; that is to say, they are not legal tender, even to pay debts due to the bank itself.”

The textbook writers have equated legal tender with currency and noted that what constitutes legal tender in any country is governed by the legislation of that country.

In Zimbabwe, the term is used, inter alia, in section 12A of the Labour Act [Chapter 28:01]; section 41(1), 42(1), 44(2) and section 44A of the Reserve Bank of Zimbabwe Act [Chapter 22:15], and in the definition sections of the Balance of Payments Reporting Act [Chapter 22:16] (Act No.4/2004) and the Exchange Control Regulations S.I.109 of 1996.

At the time the acknowledgment of debt was entered into, the legal tender for the payment of salaries in Zimbabwe was local currency and not foreign currency. The defendant could not, under section 12A(1) of the Labour Act, agree to pay the plaintiff in foreign currency.

That the plaintiff was aware that it was unlawful is shown by his failure to invoke the provisions of section 13 of the Labour Act for the payment of the purported arrear salaries when he left employment; and his failure to write into the terms of his contract of employment payment of part of his salary in foreign currency.

Formal acknowledgments of debt that are usually prepared by legal practitioners contain renunciation clauses such as the one highlighted by YOUNG J in Caltex (Africa) Ltd v Trade Fair Motors (Pvt) Ltd & Anor 1963 (1) SA 36 (SR)…, like non numeratae pecuniae, non causa debiti, errore calculi, revision of accounts, de duobus vel pluribus reis debendi.

There were no such renunciation clauses in the acknowledgment of debt in issue.

In Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC)…, McNALLY JA held that a court could go behind the making of an acknowledgment of debt to test its legality. He stated that:

“There is no evidence before the court to show that the underlying cause of the acknowledgement of debt was illegal and the acknowledgment itself was not illegal.”

I am satisfied that the underlying cause of the acknowledgment of debt that was relied upon by the plaintiff was illegal. A court cannot enforce an illegal contract: see Dube v Khumalo 1986 (2) ZLR 103 (SC)…,.

There are other features of the case which were revealed by the plaintiff, during cross-examination, which militate against the enforcement of the acknowledgment of debt against the defendant.

(i) The first was that he was never paid in foreign currency during his time of employment but was paid a salary in local currency that was indexed to the United States dollar at the parallel rate of exchange to preserve the purchasing power of the local currency.

The acknowledgment of debt that was executed erroneously referred to the currency of indebtedness as the United States dollar. The acknowledgment of debt therefore told a lie about itself.

(ii) The second disquieting feature was that the plaintiff averred that he was to be paid in foreign currency by an offshore sister company to the defendant called PXL that was to be set up in Mauritius in which the defendant's acting Chief Executive Officer would have an interest.

He did not disclose whether this company was ever set up.

It seems to me that he should have sought payment from that company rather than the defendant.

I determine the third and fourth issues referred to trial in favour of the defendant.

Accordingly, it is ordered that:

1. The exception raised by the defendant be and is hereby upheld.

2. The plaintiff's claim be and is hereby dismissed.

3. The plaintiff shall pay the defendant's costs of suit.

HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS
Ruled By: CHATUKUTA J

The plaintiff failed to establish that there were seven royal houses. The 1965 report that he produced did not support him.

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

Chikwavadombo Mastick Marange [“Chikwavadombo”] died on 8 September 2005. He was the substantive Chief Marange. Two persons acted in his place and stead, each in turn, after his death. These were one Ringisai Noah Marange and one Gilbert Marange.

The first respondent eventually succeeded him as Chief Marange.

The process of selecting Chikwavadombo's successor was long and arduous. It commenced at about the time of Chikwavadombo's funeral. It remained in place for some eleven (11) years running. It ended with the installation of the first respondent as Chief Marange. The installation took place on 27 October 2016.

The installation of the first respondent triggered the present application.

The applicant alleged that the first respondent was irregularly and improperly appointed to the position of Chief Marange. He said the incumbent Chief [“incumbent”] was imposed upon the people of Marange. The incumbent was, according to him, not the people's preferred candidate for the position. He stated that the people had chosen him, and not the incumbent, to be their Chief. He averred that the second respondent hand-picked the first respondent and imposed him on the people against the latter's wishes.

He moved the court to review the work of the second respondent and set the same aside, and, by implication, remove the first respondent from his position of Chief for the people of Marange.

The respondents opposed the application.

They agreed with the first respondent's in limine matter. They submitted that the court lacked jurisdiction to hear and determine the application. They anchored their argument on section 283 of the Constitution of Zimbabwe.

They stated that disputes which related to the appointment, removal, and suspension of a Chief should be resolved by the third respondent on the recommendations of the Provincial Assembly of Chiefs through the second respondent. They insisted that the applicant should have taken that route instead of approaching the court. He should, they said, have referred his grievance to the Provincial Assembly of Chiefs for dealing.

They moved the court to dismiss the application.

The application is, in my view, against the second, more that it is against the third respondent. The third respondent was not involved in the selection process which culminated in the nomination of the first respondent as the substantive Chief Marange. He was, in fact, presented with a fait accompli. The second respondent, who commenced the selection process and drove it through to the nomination stage of the first respondent, presented the third respondent with a recommendation upon which the latter had to, and did actually, act. He had no choice but to endorse his signature upon the recommendation of the second respondent. The third respondent operated upon the premise that the second respondent, to whom he assigned the Traditional Leaders Act, would not mislead him....,.

On the merits, the applicant gave a clear and concise narration of the events which led to the appointment of the first respondent to the position of Chief Marange. His version was easy to follow. He made every effort to show that he was the preferred candidate for the position of Chief Marange.

He attached to his application the supporting affidavits of nine (9) persons.

He also attached to the same a letter which the second respondent allegedly addressed to the Office of the Attorney General on 21 April 2015 and a Cabinet Minute which the second respondent purportedly drew on 4 May 2016....,.

The supporting affidavits of the nine persons were deposed to on 1 November 2016.

Four (4) of the nine (9) persons did, on 10 January 2017, depose to affidavits in which they denied having ever deposed to affidavits in support of the application. They stated that the signatures which appeared on the supporting affidavits of 1 November, 2016 did not belong to them. They denied having ever appeared before any Commissioner of Oaths to sign the affidavits.

Two (2) of the four (4) did, on 26 February 2017, depose to affidavits stating that their depositions to the affidavits of 10 January 2017 were made by them under duress. They said they were taken from their rural home to Harare where they were accused by an unidentified, physically-imposing man, of undermining the authority of the Government by supporting the applicant. They said they were told to make amends and were given drafted affidavits which they were made to sign and they signed those.

Three (3) of the four (4) did, on 14 March 2017, depose to affidavits in which they dissociated themselves from the applicant's case and cause.

It is evident, from the foregoing, that the deponents were used as a means to an end. They were, no doubt, at the mercy of the applicant and the first respondent. They went along with whoever approached and sought their support.

No weight can be attached to affidavits of persons who swang from one party to the other like a pendilum. The affidavits told a lie about themselves. In telling the lie as they did, they revealed the pressure to which the deponents were subjected in the parties' respective effort to ascend to the throne.

The supporting affidavits which the applicant attached to the application do not, therefore, support anything let alone his case.

The letter which the second respondent allegedly addressed to the Office of the Attorney General and the purported Cabinet Minute do carry very little, if any, weight. Neither the letter nor the Cabinet Minute was signed by anyone. Their origin was not clarified.

The applicant did not tell the court what method he used to access the two documents. They were not for his attention or consumption. They are privileged documents which are for the attention of no one else but Cabinet.

The net effect of the above analysed matters is that the applicant's case stood on nothing.

He made allegations which he failed to substantiate.

He said he was the people of Marange's choice for the position of Chief. He, however, produced nothing which supported his claim(s).

It is trite that he who alleges must prove. The applicant alleged. He did not prove.

View Appeal
HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS
Ruled By: MAVANGIRA J

These two matters were heard at the same time for the purposes of convenience.

In the first matter, HC5403/09, the applicant seeks rescission of an order issued by this court on 28 October 2009 in HC4101/09.

In the second matter, HC976/10, the applicants seek an order be found to be in contempt of court and for their committal to prison for such contempt.

The first application, being HC5403/09, will be dealt with first.

The parties are the same as in HC4010/09. In HC4010/09 the applicant, the Gospel of God Church International 1932 sought an order in the following terms:

“It is hereby ordered:

1. That the respondent and its followers are interdicted from using the name THE GOSPEL OF GOD CHURCH INTERNATIONAL in any manner and form. (sic)

2. That the respondent and his followers are interdicted from entering Gandanzara Shrine, Rusape in the Manicaland Province.

3. That the respondent and its followers should vacate immediately and forthwith from Number 140 St. Patrick's Road, Hatfield, Harare failure which the Deputy Sheriff is authorized to evict them. (sic)

4. That the operation of this order shall not be suspended from the noting of an appeal by the respondent. (sic)

5. That the respondent pays costs on an attorney and client scale.”

The first respondent therein, Simba Mukambirwa, deposed to an opposing affidavit in which immediately after para 43 thereof, he prays for the dismissal of the application with costs.

Immediately after this prayer, the following heading appears:

“Counter-Application for Peace Order and Interdict”

Paragraph 44 then follows in which the deponent states that he wishes to make a counter application for a peace order and an interdict.

After paragraph 53 appears his prayer for dismissal of the applicant's application and for an order in terms of the draft. The order that he seeks is in the following terms:

“IT IS ORDERED THAT:

1. Respondents be and are hereby declared to have a right to peacefully visit and worship at the shrine.

2. Sister Dazi Dhliwayo be and is hereby declared the lawful President.

3. All church members who recognize Era Tapera as the President, including Zeburon Pedzisai Nengomasha, be and are hereby ordered not to unlawfully prohibit the respondents and other church members from visiting at the shrine.

4. All the applicant's purported office bearers listed in the application be and are hereby ordered to maintain peace towards the respondents.

5. Each party to meet its own costs.”

The respondents thereafter proceeded to cause the counter application to be set down on the unopposed roll on the basis that the applicant had not filed any opposing papers to the counter-application and was therefore barred.

The matter was set down for 28 October 2009, and, on that date, an order was issued by this court as prayed for in the counter application in the terms already quoted immediately above.

It is this order whose rescission the applicant now seeks.

The main contention, on the part of the applicant, is that the default judgment in favour of the respondents was granted in error as the purported counter-application was fatally defective and that this is therefore a proper matter for the court to rescind its order in terms of Rule 449.

It is permissible for a respondent to a court application to file a counter application. This is so because Rule 229(a) provides:

“(1) Where a respondent fills a notice of opposition and opposing affidavit, he may file, together with those documents, a counter-application against the applicant in the form, mutatis mutandis, of a court application or a chamber application, whichever is appropriate.”…,.

Sub rule (2) of the same Rule, further provides:

“(2) This order shall apply, mutatis mutandis, to a counter application under sub rule (1) as though it were a court or a chamber application, as the case may be, and, subject to sub rule (3) and (4), it shall be dealt with at the same time as the principal application unless the court or a judge orders otherwise.”…,.

In terms of sub-rule (1), as quoted above, the counter-application ought to have been made in the form of a court application.

Rule 230 requires a court application to be in Form No.29 which shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

The purported counter application did not meet or satisfy the requirements stipulated by the Rules.

There was no compliance with the Rules.

There was thus no valid counter-application before the court and the order sought in the purported counter application ought not to have been granted.

Had the purported counter application been dealt with at the same time as the principal application, as stipulated in sub-rule (2), this non-compliance with the Rules would, in all probability, have been exposed or bought to the court's attention by the applicant's legal practitioner.

But, as it turned out, the applicants were unaware of the date set for the hearing of the purported counter-application.

For the above reasons, the application for rescission of the order granted on 28 October 2009, in HC4101/09, must succeed.

It is now intended to deal with the application in HC976/10 by the respondents for contempt of court alleged to have arisen from alleged non-compliance with the order of 28 October 2009 in HC4101/09 by the parties cited therein.

In HC4101/09, the main application, the Gospel of God Church International 1932 was the only applicant. It must therefore also follow that it was the only respondent in the purported counter application.

Thus, the parties cited as respondents in HC976/10 were not parties to the proceedings in HC4101/09. As they were not parties to the matter in HC4101/09 there would be no justification for them being cited as respondents in the application for contempt of court.

If there is any justification for so citing them it would still be necessary for them to each be personally served with the order and the application.

With the exception of the second respondent, who was served with the court application for contempt of court on 19 February 2010, there is no such evidence of personal service on the rest of the respondents.

Notably, service on the second respondent was effected at 19534 Unit E, Seke, Chitungwiza. The return of service by the Deputy Sheriff, who proceeded to serve the order in HC4101/09 at Gandanzara, states that the order was “served on the ground as applicant's security guards refuse(d) to accept service.”

In the circumstances, the order having apparently been left or placed on the ground there was no service on any specific person.

Neither is there any evidence that the respondents, or any of them, prevented the Deputy Sheriff from effecting service.

The three people who are named and said to have been among the group of people that prevented the Deputy Sheriff from effecting service are not parties to this matter.

What they are alleged to have uttered at the time can only be regarded as hearsay evidence.

The Deputy Sheriff could have, in terms of section 22 of the High Court Act, called for the assistance of the police to enable him to effect service of the order on the intended individuals.

He appears not to have done so.

There is also no evidence to the effect that the second respondent was party to the conduct alleged to constitute the contempt complained of by the applicants. There is no evidence that he was at the shrine at Gandanzara on 3 February 2010 when the applicants allege that they were prevented from entering the shrine. He is not one of the three persons named in the applicants' affidavits as having been part of the group that prevented the applicants from entering the shrine.

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

It is trite that he who alleges any positive fact carries the burden of proving that fact. Put differently, a party who makes a positive allegation bears the onus of proving such allegation: see Astra Industries Ltd v Chamburuka SC258/11, SC27-12; ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17.

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

I heard this matter on 20 November 2015 and reserved judgment. The preparation of my judgment has taken longer than expected on account of my deployment to the Criminal Division of this court in January 2016.

The delay in compiling this judgement is therefore attributable to the sheer volume of work which I have had to contend with in the Criminal Division. I have also had to peruse reference records, Case No's HC1589/13, HC617/15, 9849/13 and HC10625/13 which are quite voluminous as these cases bear on the determination of this application.

Turning to the matter itself, this is an application in which the applicant seeks the following relief as set out in his draft order;

“1. Application for rescission in terms of common law of the judgement by her Ladyship Tsanga J HC1589/13 (HH424-13) given in favour of the 4th respondent is hereby granted.

2. Alternatively, application for rescission in terms of Rule 449(1) of the High Court Rules, of the judgment by Ladyship Tsanga J in HC1589/13 (HH424-13) is hereby granted.

3. The respondent's (sic) be and hereby ordered to pay costs of suit on attorney client scale.”

The gravamen of the application is to be gleaned from paragraph 14 of the applicant's founding affidavit in which he stated as follows:

“14. That, this is an application for rescission of judgment in terms of the Common Law in case no. HC1589/13 (HH424/13) on the basis that the original order was obtained by fraud perpetrated by the 4th respondent. Alternatively, this an application for rescission in terms of Rule 449(1) of High Court Rules.”

The applicant's allegations of the fraud allegedly committed by the fourth respondent (Terence Corben Rhodes) are set out in paragraph 15 of the founding affidavit in the following wording;

“15. That, the application for rescission of the judgement in HC1589/19 (HC424-13), in terms of common law, is being sought because the applicant believes that the 4th respondent fraudulently misled the court into believing that the late Brian Jones Rhodes transferred shares of the two companies Beverly East Properties Pvt Ltd and Karoi Properties Pvt Ltd into Phoenix Trust, a fact which is not true.”

It is therefore necessary, in determining this matter, to set out the background to the dispute.

In Case No. HC1589/13, which was disposed of by TSANGA J, the applicant in the application before me was not a party.

The fourth respondent in casu (Terence Rhodes) was the second respondent in HC1589/13.

It is convenient to briefly set out the issues which fell for determination by TSANGA J.

In the said application, the applicant was a firm of legal practitioners, Honey & Blackenberg. The legal firm held a sum of US$70,000 in its trust account. The money had accrued on account of monies collected by that firm as rentals due to two companies, namely, Beverley East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The companies own certain immovable property which was being managed by Robert Root & Company Estate Agents. Robert Root & Company Estate Agents, in turn, engaged Honey & Blackenberg to be its legal practitioners for purposes of collecting rentals accruing on the properties from various tenants leasing them.

Robert Root & Company terminated its agency for the companies. Honey & Blackenberg, however, remained accepting into their trust account payments made by some of the tenants.

It is the accumulated payment, which totalled US$70,000, which led Honey & Blackenberg to petition this court for a declaratory order as to whom the money should be paid.

The legal firm was faced with claims from nine (9) persons who lay claim to the money. The nine (9) claimants who were cited by Honey & Blackenberg in its application for the declaratory order granted by TSANGA J were the first (Gideon Hwemende) and third-tenth (Lourence Erasmus Vermaak, Terence Corben Rhodes, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) respondents in casu.

TSANGA J, in the application for the declaratory order or interpleader, granted an order in the following terms on 20 November 2013:

1. That the second respondent, Terence Cobden Rhodes as claimant in his capacity as Trustee of Phoenix Trust in whom the companies are held, is the lawful shareholder of the two companies.

2. That the second respondent, upon lodging with this court a valid Trust document effected by the deceased during his lifetime transferring the properties to the Trust, shall be entitled to require the Registrar of this Honourable Court to release to the Trust, the sum of $70,000 deposited with him in terms of Rule 206(1) of the High Court Rules, 1971.

3. That the third to the ninth respondents shall pay the costs of the applicant and the first and second respondents.

The above stated order is the one which the applicant prays that it be rescinded on the grounds of it having been obtained through fraud committed by the second respondents as referred to in TSANGA J's order.

If not falling for rescission on the basis of fraud, then it should be rescinded on the basis of Rule 449(1) of the High Court Rules, so the applicant prays in the alternative.

It is common cause that the two companies at the centre of the dispute were established by one Brian James Rhodes who passed on at Harare on 29 July 2006. The applicant in the application before me is the executor dative of the estate of the said late Brian James Rhodes (hereinafter called “deceased”).

As I have already indicated, the applicant was not a party in case No. HC1589/13 determined by TSANGA J.

The learned judge dismissed claims to ownership of the companies in issue by the third respondent Gideon Hwemende. This respondent is the first respondent in casu. The first respondent had purported to appoint the fifth-tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) as directors in one or other of the two companies to protect his interests.

With the dismissal of his claim, any claims which the fifth-tenth respondents may have sought to assert similarly fell through or suffered the same fate.

TSANGA J ruled that the lawful shareholder of the two companies was deemed to be Phoenix Trust whose assets included the corporate stock of those companies.

Her ladyship also found that the fourth respondent herein (Terence Corben Rhodes) was a Trustee in Phoenix Trust and a director in both companies owned by the Trust.

She further adjudged that the fourth respondent (Terence Rhodes), in his capacity as Trustee of Phoenix Trust, had legal title to the Trust property and that since the Trust was the holder of corporate stock in the two companies, any benefits accruing to the companies, in turn, accrued to the Trust as shareholder.

In concluding her analysis of the facts, TSANGA J stated as follows;

“Since the Trustee purports that the companies were transferred to the Trust some years ago by the late Brian James Rhodes, there must be in existence evidence which can be produced in support of this claim. Such Trust document was not part of the annexures in this application. As such; before the monies being held can be released, evidence of the Trust legally owning the companies must be furnished to this court through the Registrar of the High Court.”

The learned judge then made the order which I have quoted (supra).

This application is hotly contested and pits the applicant against the fourth respondent (Terence Rhodes).

The applicant's contentions, from a reading of his affidavit, can be summarized as follows in substance;

(a) That the fourth respondent (Terence Rhodes), as trustee of Phoenix Trust (hereinafter called the Trust), had, in the application before TSANGA J “fraudulently alleged that the late Brian James Rhodes during his lifetime had transferred the entire shareholding of the two companies (Beverley East Properties and Karoi Properties) into the Trust.”

(b) That he knew such fact to be untrue.

(c) That the court had relied upon the fourth respondents' fraudulent allegation to hold that the fourth respondent, as Trustee of the Trust, was the lawful shareholder in the two companies and further ordering that “upon lodging with Registrar of the High Court, a valid Trust Deed effected by the deceased, the late Brian James Rhodes, during his life time transferring ownership of the two companies to the Trust, he shall be entitled to the sum of $70,000.”

(d) That the fourth respondent knew that the Trust was not given any shareholding in the companies but only loan accounts as shown on the schedule of assets to the Trust Deed.

(e) That there is no documentary proof of any transfer of shares in terms of the Deed of Trust.

(f) That the fourth respondent deliberately misled the court and perpetuated a fraud because he knew that the two companies belonged to the deceased, and, consequently, to his estate. He thus led false testimony which made TSANGA J rule that the said fourth respondent was entitled to the rentals from the two properties.

(g) That the estate had a vested interest in the case determined by TSANGA J as it was the one entitled to the rentals.

(h) That TSANGA J's judgement has the effect of dissipating a portion of the deceased's estate and affected its winding up and final distribution.

(i) That, further, TSANGA J would not have granted the judgment she gave had she not been misled by the fourth respondent.

As such, the applicant therefore claimed rescission of that judgment at common law or in terms of Rule 449(1) of the High Court Rules....,.

Apart from my findings for dismissing the application as set out above, I would still have dismissed the application on the merits.

The applicants' case is grounded in the common law right of an affected party to seek rescission of judgment granted in default and the corresponding power of this court to rescind its judgment.

Alternatively, the applicant seeks to rely on Rule 449(1); the Rule reads as follows, in part:

“449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order –

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.

(c)…,.”

The Supreme Court judgment, in Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, provides guidance on the interpretation and purport of the Rule. The learned judge, GARWE JA, stated as follows…,:

“It is the general principle of our law that once a final order is made, correctly reflecting the true intention of the court, that order cannot be altered by that court.

Rule 449 is an exception to that principle and allows a court to revisit a decision it has previously made - but only in a restricted sense.

Where a court is empowered to revisit its previous decision, it is not, generally speaking, confined to the record of proceedings in deciding whether a judgment was erroneously granted.

The specific reference in Rule 449 to a judgment or order granted in the absence of any party affected thereby envisages a situation where such a party may be able to place facts, before the latter court, which facts would not have been before the court that granted the order in the first place: see Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) at 364 H-365 A-D.

Further, it is also established that once a court holds that a judgment was erroneously granted in the absence of a party affected, it may correct, rescind, or vary such without further inquiry.

There is no requirement that an applicant seeking relief under Rule 449 must show 'good cause': Grantully (Pvt) Ltd & Anor v UDC Ltd supra at 365; Banda v Pitluck 1993 (2) ZLR 60 H at 64 F-H; Mutebwa v Mutekwa & Anor 2001 (2) SA 193 (TK) at 1991–J and 200 A-B.”

The learned judge, drawing on and adopting the remarks of JAFA J in Mutebwa v Mutebwa & Anor 2001 (2) SA 193 (TK), proceeded to point out that a distinction had to be made between the approach to be adopted by the court in instances where the court or judge revisits its or his judgment mero motu to correct, vary, or rescind it in terms of Rule 449 and where the judgment is revisited on application of an affected party who was absent when the judgment or order was made.

Where the court or judge revisits the judgment mero motu, the court or judge is limited to the four corners of the record of proceedings.

Where, however, the Rule has been invoked upon the application of an affected party who was absent when the judgment or order being revisited was made, the court or judge is not bound to the four corners of the record. The court is enjoined to take into account the facts set forth in the affidavits filed with the application. The error, in such a case, does not necessarily have to appear ex facie the record.

It therefore is clear, in my reading of the authorities cited above, that in either case, that is whether the court acts mero motu or an application, there should exist an error to be corrected.

It is this error which must be established by the applicant.

The next issue is to define what amounts to an error.

In Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, the learned GARWE JA stated that:

“What amounts to an error has also been the subject of a number of decisions.”

He then gave examples of Banda v Pitluck 1993 (2) ZLR 60 H wherein a default judgment had been granted against a defendant who had entered appearance to defend. The appearance to defend had not been brought to the attention of the judge meaning that had the existence of the appearance to defend been brought to the attention of the judge, he would not have granted judgment in default of appearance to defend.

In Mutebwa v Mutekwa & Anor 2001 (2) SA 193 (TK), a false return of service purporting that the Deputy Sheriff had effected personal service was used to obtain judgment.

In Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, there was a discrepancy between the sale agreement which had been attached to the summons and declaration with respect to the parties identifications and the alleged witnesses. GARWE JA held that the discrepancies were such that had the judge who granted judgment been made aware, he would not have granted judgment against a witness to the sale agreement.

The question as to what amounts to an error was not addressed directly by the Supreme Court in Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291.

The learned judge in fact gave examples of errors which would pass to satisfy the requirements for correcting, rescinding, or varying a judgment.

An error is a mistake.

A judgment granted in error, or erroneously, would mean that the court or judge committed a mistake or mistakenly granted the judgment. Put in another way, the enquiry should be that the applicant needs to establish the existence of a fact or material which influenced or moved the court to grant judgment. It must be shown that the court would otherwise not have granted judgment but for that fact or material that becomes the error.

Rule 449(1)(a), as quoted above, comes into play where the judgment sought to be revisited was either erroneously sought or erroneously granted: see Machoto v Mudimu & Anor HH443-13.

A judgment, in my view, is erroneously or mistakenly sought by a party who seeks a judgement whilst labouring under a mistaken belief that he can properly seek judgment.

A simple example is like the one given by GARWE JA in Austin Munyimi v Elizabeth Tauro SC41-13 whereby he quoted the case of Banda v Pitluck 1993 (2) ZLR 60 H. If the plaintiff or the applicant applies for default judgement oblivious of the fact that appearance to defend or notice of opposition has been filed, such application will have been erroneously made, and, if the court grants the application, it will have granted it in error too.

I do not find that TSANGA J granted the application in case No. HC1589/13 in error as envisaged in Rule 449(1).

What was the error if one may ask?

The parties presented argument and the learned judge considered the papers filed before her and the arguments put forward in support thereof. The learned judge then delivered her judgment with reasons for the order which she made.

It is noted that none of the losing claimants or respondents appealed against the judgment.

The applicant avers that the judgment in question was granted after the court had been fraudulently misled into believing that the deceased had transferred shares into his two companies into Phoenix Trust.

A fraud and an error are two different legal concepts.

I believe that within the context of Rule 449(1)(a), the state of affairs, as argued by the applicant, cannot ground a setting aside of the judgment under that Rule.

I agree and endorse the remarks made by MAKARAU J…, in Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…, that:

“Rule 449 is a step to correct an obviously wrong judgment or an order.

The power given the court under the Rule is discretionary, and, like all such powers, must be exercised judiciously…,.

A review of the authorities would appear to suggest that the Rule is designed to correct errors made by the court itself and not an omnibus through which new issues and new parties are brought before the court for trial.”

The applicant, in this case, is clearly seeking to bring in new issues which were not before TSANGA J.

He seeks to argue that the deceased never transferred any shares in the two companies to the Trust.

TSANGA J's judgment is clear in that she had to determine competing claims made to Honey and Blackenberg by various parties, to rental monies from the two properties as earlier described.

She made a determination that the Trust, represented by the fourth respondent herein (Terence Rhodes) was the lawful shareholder in the two companies. The judge then issued a conditional order that the fourth respondent herein was required to lodge a valid Trust document and evidence of proof of transfer of the properties to the Trust with the Registrar before the US$70,000 could be released to him.

There was clearly no error committed as envisaged in Rule 449(1).

The applicant seeks to demonstrate that no shares were ever transferred by the deceased.

The court did not grant a judgment in error because TSANGA J directed that proof be furnished.

The order sought by the applicant, in terms of Rule 449(1), must fail.

It leaves me to deal with the other ground for seeking the rescission of the court judgment in issue.

The applicant seeks to rely on the powers of the court to rescind its judgment under the common law.

The applicant avers that the fourth respondent (Terence Rhodes) fraudulently alleged that the late deceased, during his lifetime, transferred the entire shareholding of the two companies to the Trust represented by the fourth respondent. The applicant, in support of his claim to the alleged fraudulent misrepresentation by the fourth respondent, relied, as outlined in paragraph 19 of his affidavit, on a copy of the Trust Deed which lists the schedule of assets to be received by the Trust as two loan accounts as detailed therein.

The applicant alleged, in paragraph 20 of his founding affidavit, that “there is no documentary proof of any transfer of shares in terms of which the Trust obtained ownership or control of the properties held by the two companies.”

The fourth respondent has denied the allegations of fraudulent misrepresentation of facts and attached to his opposing affidavit copies of share certificates, resolutions by the companies, the share registers, and statutory returns which show the shareholding of the said two companies as being Phoenix Trust.

The applicant, in the answering affidavit, questions the authenticity of the documents.

He alleges that the documents are fraudulent and intended to defraud the Estate which he represents.

He however makes a startling allegation that the proof of the fraud lies in that the records of the two companies have disappeared from the Companies Office - a Government department.

Proof that the Companies Office lost the documents was not produced.

In short, the applicant does not have and cannot produce records to back his claims.

In my view, this put paid to any claims which the applicant may seek to advance.

How does he claim falsity of documents without producing authentic documents to counter the alleged fraudulent documents?

What the applicant is doing is simply to make allegations which are not backed by any documentary evidence as to what he claims to the court to be the correct shareholding of the companies.

Ownership of companies is evidenced through documents of ownership in the form of share certificates, share registers, accompanying returns, and other such officially recognised documents which collectively or individually prove ownership.

What the applicant is simply saying is that he does not have proof of the existing ownership of the two companies by the deceased. He cannot lay his hands on any of the company records at the Companies Office because the documents are missing.

In his view, and dispute his handicap, he avers that anyone purporting to hold ownership of the companies is doing so fraudulently though he does not have any counter documents.

One wonders on what basis, even if the judgment were to be set aside, the applicant would prove to assert the existing ownership of the companies by the deceased.

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

This is an application for rescission of judgment in two matters, HC6627/10 and HC3805/08, brought in terms of Order 49 Rule 449(1)(a) of the High Court Rules, 1971.

The relief sought by the applicant, is for an order in the following terms:

1. The judgments obtained by the 1st respondent against the applicant in case numbers HC3508/08 and HC6627/10 be and are hereby set aside.

2. The title deeds to Stand Number 2819 Bluffhill Township, Bluffhill, Harare which 1st respondent obtained as a result of an order granted to him in case number HC3508/08 be and are hereby nullified.

3. Applicant be and is hereby declared the sole owner of Stand 2819 Bluffhill Township of Bluffhill held under Deed of Transfer number 004804/98 in his favor.

4. 1st respondent and any person claiming occupation through him from Stand Number 2819 Bluffhill Township of Bluffhill be and are hereby ordered to vacate the property within seven days of the date of service of this order.

5. 1st respondent pay costs of suit on a legal practitioner client scale.

In the founding affidavit, the applicant averred that: he is the lawful owner of Stand 2819 Bluffhill Township of Bluffhill, Harare (hereinafter referred to as the Bluffhill stand) in terms of a Deed of Transfer number 004804/98.

On or about 9 April 2007, he discovered that there was construction going on at this property, despite there not having been an agreement entered into by him to sell this property to anyone.

On making inquiry, he found out that the first respondent was responsible for the construction on the basis that he had bought the Stand from “an old man and pensioner, Jonas Mushosho, of Matepetepa in Mashonaland Central.”

During an initial telecommunication with the first respondent, he advised him that he was Jonas Mushosho; but that he had not sold the Bluffhill stand to anyone. The first respondent, in turn, advised him that he had already taken transfer of the property, and referred him to his legal practitioners, Messrs Dinha Bonongwe & Partners.

On his instructions, his legal practitioners wrote to the first respondent, on the 12 April 2007, advising him to cease construction on the Bluffhill stand, and to vacate within twenty-four hours.

He reported the matter to the police who accompanied him to the Stand on 28 April 2007.

On 30 April 2007, the parties met at the Criminal Investigations Department at Ahmed House in Harare. According to the applicant, the first respondent admitted that he did not know him and had never had dealings with him, and that he had been cheated by a person impersonating the applicant - the real 'Jonas Mushosho'.

The applicant averred that the first respondent voluntarily surrendered the keys to the property that he had built on the Bluffhill stand.

Detective Sergeant Rodwell Mwandayi, the Investigating Officer in this matter, deposed to an affidavit on 28 May 2007 in which he confirmed the applicant's version of events.

On 8 May 2007, the first respondent applied for, and was granted a spoliation order in the Magistrate's Court, under case number 3877/07. He attached to that application, an Agreement of Sale entered into by him and Jonas Mushosho, Identity card number NR63-286395 J18, of House Number 37 Matepatepa, Bindura. The agreement is dated 28 June 2006, and it states that Jonas Mushosho was the owner of Stand 2819 Bluffhill, Harare which he sold to the first respondent for ZW$1,2 billion.

The agreement was signed and witnessed before legal practitioners.

Attached to the Agreement of Sale was an affidavit in which Jonas Mushosho confirmed that he had sold the Stand to the first respondent. The affidavit was commissioned before the same firm of legal practitioners. Deed of Transfer number 4804/98 was attached, which showed that the registered owner of the Bluffhill stand was Jonas Mushosho, born on 24 November 1958.

On 4 July 2007, under case number HC3878/07, in the High Court, the applicant filed for the first respondent's eviction from the Bluffhill stand, and for a declaration that the agreement of sale relied on by him, was null and void.

Judgment was entered in favor of the applicant, in default of filing a plea by the first respondent.

The first respondent applied for rescission of this judgment, and the applicant admits that he did not oppose this application.

The first respondent then applied for an order compelling the applicant to sign transfer documents to transfer the Bluffhill stand into his name, under case number HC2775/07.

The applicant opposed that application.

On 8 February 2008, under case number HC538/08, it was ordered that:

1. First respondent be interdicted from carrying on further developments on Stand 2819 Bluffhill, Harare until the matter was finalized.

2. Applicant and the Deputy Sheriff stay execution of the default judgment granted in HC3878/07.

3. Cases HC2775/07 and HC3878/07 be joined as one action.

The two matters which had been joined were eventually set down for a pre-trial conference on 8 April 2010.

The applicant averred that the first respondent's legal practitioners of record at the time, Messrs Manase & Manase, refused to accept service of the notice of set down of the pretrial conference (see paragraph 15 of the founding affidavit).

It would appear, from the letter written to the Law Society by the applicant's legal practitioners, that service of the notice was attempted to be made at 9;30 am indicating that a pre-trial conference was set down before JUSTICE HUNGWE at 12:30pm that day.

JUSTICE HUNGWE made the following order, on 8 April 2008, in case numbers HC3878/07 and HC2775/07:

1. Respondent with action in HC2775/07 withdrew its case and tendered wasted costs on the 26th February 2008.

2. The Honorable F. CHATUKUTA J's order, in case number HC3878/07, is hereby revived thereby superceding the HONORABLE BHUNU'S order in case number HC538/08.

IT IS ORDERED THAT:

(a) Respondent (Mudimu) and any person claiming occupation through him from Stand 2819 Bluffhill Township Bluffhill, Harare be and are hereby ordered to vacate the property within seven days of the date of this order.

(b) The Agreements of Sale between respondent and one impersonator 'Jonas Mushosho' dated June 23 2006, and June 28, 2006 be and are declared null and void.

(c) Applicant be and is hereby declared the sole owner of Stand Number 2819 Bluffhill Township, Bluffhill, Harare, held under Deed of Transfer No. 004804/98 in his favour.

(d) The spoliation order granted in case number 3877/07 be and is hereby set aside.

(e) Respondent pays costs of this suit on an attorney-client scale.

The applicant averred that his attempts to enforce this order were met with stiff resistance, and that the first respondent refused to vacate the premises on the basis that he had since taken transfer and now held the Bluffhill stand under Deed of Transfer number 0005304/09.

The first respondent then applied for rescission of the judgment made by HUNGWE J, and for stay of execution pending determination of the application for rescission of judgement. These two applications were filed under case numbers HC6627/10 and HC6794/10.

The applicant opposed both applications, and filed a counter-application to the application for rescission of judgment.

On 11 October 2010, MAKONI J issued an order dismissing the first respondent's application in case number HC6794/10, the order to stay execution.

The applicant averred that he opposed the first respondent's application for rescission of HUNGWE J's judgment granted in the joined cases HC3878/07 and 2775/07.

The applicant's notice of opposition to the application for rescission appears to have been filed of record on or about 6 October 2010. His counter application was filed on the same date.

He counterclaimed for a declaratory order that he is the sole and legal owner of the Bluffhill stand held under Deed of Transfer 0004804/98, and for an order that Deed of Transfer 0005304/09 be declared null and void.

The application by the first respondent to rescind HUNGWE J's order was set down on the unopposed roll on 1 December 2010, and the following order was granted, unopposed, by BHUNU J:

1. Default judgment entered against applicant (Mudimu) in the consolidated case number HC2775/10 be and is hereby rescinded.

2. Costs of suit shall be borne by the respondent (Mushosho).

The applicant denied ever having been served with papers in case number HC3508/08, in which the first respondent obtained an order from MAVANGIRA J, in default of appearance by the applicant, on 24 September 2008, to the effect that the applicant sign all necessary documents to effect transfer of the Bluffhill stand into the first respondent's name within seven days of the date of that order, or failing which the Deputy Sheriff was authorized to sign the documents on his behalf.

The applicant averred that he suspects that Deed of Transfer number 0005304/09 came into existence that way.

The applicant contended that the first respondent obtained the order in case number HC3508/08 fraudulently and under unclear circumstances.

The applicant averred that he was never served with any papers and that had he been served, he would have vigorously opposed the granting of the order.

The applicant averred that the first respondent never approached him and requested that he sign transfer documents within seven days of 24 September 2008, as directed by the order.

The applicant averred, that, as at 24 September 2008, when the first respondent obtained the order from MAVHANGIRA J, the consolidated matters under HC538/08 were still pending determination on similar issues.

The applicant contended further, that, the order under HC6627/10, which rescinded judgment in the consolidated cases determined by HUNGWE J, was obtained irregularly and in unclear circumstances.

He contended that his counter-claim was not determined or referred to.

He reiterated that he was not in default, and that the matter was erroneously set down on the unopposed roll without his knowledge.

The applicant's claim is that the orders obtained by the first respondent, in HC3508/08 before MAVANGIRA J, and HC6627/10 before BHUNU J, were obtained fraudulently and irregularly and ought to be rescinded.

The first respondent, in his opposing affidavit, raised a preliminary point that the application is without merit and should be dismissed as it seeks the rescission of a judgment entered against the applicant on 25 September 2008 in HC3508/08, four years later, and on 1 December 2010, in HC6627/10, two years later.

The preliminary point raised is that an applicant has a period of one month, from the date when he becomes aware of a judgment, to apply for its rescission, and may not do so thereafter unless he applies for condonation of the late filing first.

The first respondent averred that the applicant, in bringing this application, is in breach of Order 9 Rule 63 of the Rules of this court.

The first respondent averred that the applicant ought to be ordered to pay costs de bonis propriis because his legal practitioners were advised of the apparent breach of the Rules of this court, on 3 December 2012, but have persisted with their application.

Regarding the merits of the application, the first respondent averred that the applicant sold the Bluffhill stand to him on 23 June 2006 through Messrs Dinha, Bonongwe & Partners legal practitioners.

The first respondent averred that the applicant received the full purchase price and tendered a letter dated 24 October 2012 in which Mr. Bonongwe of Messrs Dinha Bonongwe & Partners confirms that the parties entered into an Agreement of Sale in respect of Stand 2819 Bluffhill, Harare and that the sale was perfected.

The letter states that a Mr. Robert Nyawasha, a paralegal with that firm, was able to positively identify both parties as being the parties who entered into the Agreement of Sale.

Both parties' identity card numbers were supplied.

The first respondent contended that he was forcibly despoiled of the property by the applicant, and that he was intimidated into handing over the keys to the property, a cottage, that he had constructed and which he was in occupation of.

The first respondent averred that the applicant attempted to serve a notice of set down of the pre-trial conference before HUNGWE J, a mere thirty minutes before the set down time, and confirmed that the receptionist at Messrs Manase and Manase, his legal practitioners of record, refused to accept service of the notice of set down.

The first respondent averred that the applicant produced a fake notice to HUNGWE J, indicating that the first respondent had withdrawn its claim and tendered wasted costs, at the pre-trial conference, in the absence of the first respondent, who had not been correctly served with notice of set down.

The first respondent averred that he applied for rescission of the judgment handed down by HUNGWE J.

He confirmed that the title deeds in his name were obtained as a result of the order granted by MAVANGIRA J, under HC3508/08.

The first respondent contended that the court in HC3508/08 would not have granted the order had it not been satisfied that the papers had been duly served on the applicant, and that he was indeed in default.

He challenged the applicant to state whether a perusal of that record failed to show that there was adequate proof of service of the process on him.

The first respondent reiterated that the applicant failed to file opposition in time in both matters, and that he was justified in setting down HC6627/10 on the unopposed roll for determination.

The first respondent contended that no evidence of error on the part of those two courts had been alluded to or provided by the applicant.

The applicant filed an answering affidavit in which he denied that this application is devoid of merit.

He contended that his application is not premised on Rule 63, but on Rule 449(1)(a) of the Rules of this Court.

According to the applicant, an application in terms of Rule 449 is not time specific, and all that one has to show is that the order sought to be rescinded was erroneously sought or erroneously obtained in the absence of the applicant.

The applicant contended that the first respondent's point in limine ought to be dismissed and urged the court not to accede to the request for an order of costs de bonis propriis.

The applicant contended that Messrs Dinha Bonongwe & Partners participated in the fraud perpetrated against him by the first respondent, and caused the illegal transfer of the Bluffhill stand into the first respondent's name.

The issue that falls for determination is this: is there sufficient evidence before the court, on the basis of which the court should grant rescission of the two judgments in case numbers HC3508/08 and HC6627/10; and, if so, should the court be guided by the provisions of Order 9 Rule 63 or Order 49 Rule 449(1)(a)?

Put simply;

(i) The first issue to be determined is that of which of the provisions of the High Court Rules 1971, out of those that provide for rescission of judgments granted in default of one of the parties, is best suited to determine the dispute between the parties in this case.

(ii) The second issue for determination after that will be whether, in the circumstances of this case, on the evidence before the court, the applicant should be granted the relief that he seeks.

Order 9 Rule 63 provides as follows:

“63. Court may set aside judgment given in default

(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of sub rule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Order 49 Rule 449 provides as follows:

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.

(c)…,.”

The applicant relied on the case of Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07…, where CHATUKUTA J said:

“…,. Mr. Mushonga submitted that the applicant was seeking rescission in terms of Rule 449 as read together with Order 9 Rule 63.

Firstly, applicant does not refer to Rule 63 in its pleadings. Rule 63 was first mentioned in the oral submissions and therefore was not pleaded.

Secondly, I am not sure whether the two rules can be read together. It is my view that there are three separate ways in which a judgment in default of one party may be set aside. This can be done in terms of Rule 63, or Rule 449(1)(a) or in terms of the common law.”

There are two noteworthy issues that distinguish Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07 and the issue under consideration:

(i) The first is that in Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07, it was not in dispute that a defective notice of entry of appearance to defend had been filed of record.

In the matter under consideration, it is not clear what the error was, and whether it was an error relating to the pleadings filed, or on the part of the court in accepting such pleadings.

(ii) The second distinguishing factor is that in Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07, the alleged error was defined as an error of law and was clearly spelt out as such in the pleadings.

It is my view, that, in order to qualify for relief under Rule 449(1)(a), a litigant must show that:

1. The judgment was erroneously sought or erroneously granted;

2. The judgment was granted in the absence of the applicant or one of the parties;

3. The applicant's rights or interests were affected by the judgment: see Mutebwa v Mutebwa and Anor 2001 (2) SA 193;

4. There has been no inordinate delay in applying for rescission of the judgment.

It is my view, that, in order to qualify for relief under Rule 63, a litigant must show that:

1. Judgment was given in the absence of the applicant under these Rules or any other law.

2. The application was filed of record and set down for hearing within one calendar month of the date when the applicant acquired knowledge of the judgment.

3. Condonation of late filing has been sought, and obtained, where the applicant fails to apply for rescission within one month of the date of knowledge of the judgement.

4. There is “good and sufficient cause” for the granting of the order.

See Viking Woodwork v Blue Bella Enterprises 1988 (2) ZLR 249 (S)…,; Highline Motor Spares 1933 (Pvt) Ltd & Ors v Zimbank Corp Ltd 2002 (1) ZLR 514 (S)…,; Sibanda v Ntini 2002 (1) ZLR 264 (S); Pastor Jameson Moyo & 3 Ors v Reverend Richard John Sibanda & The Apostolic Faith Mission SC06-10.

5. The phrase 'good and sufficient cause' has been construed to mean that the applicant must:

(a) Give a reasonable and acceptable explanation for his/her default;

(b) Prove that the application for rescission is bona fide and not made with the intention of merely delaying the plaintiff's claim; and

(c) Show that he/she has a bona fide defence to the plaintiff's claim.

See Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210.

It is also my view, that, in order to qualify for relief in terms of this court's common law power to rescind its own judgments, a litigant must show that:

1. The court's discretion that it is being asked to exercise is broader than the requirements of both Rule 449 and Rule 63.

2. Whether, having regard to all the circumstances of the case, including the applicant's explanation for the default, this is a proper case for the grant of the indulgence.

See Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201; and De Wet & Ors v Western Bank Ltd 1979 (2) SA 1031…,.

The question is: what sort of error will suffice to bring an applicant squarely within the ambit of Rule 449(1)(a)?

Is it an error of fact, an error of law, or both?

An 'error' in common and ordinary parlay, is defined as: a mistake, fault, blunder, boo-boo, slip, slip-up, inaccuracy, and miscalculation.

The law is settled on the issue of if or when and whether this court ought to grant rescission of its own judgments in terms of Rule 449.

In South Africa, In Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E)…, ERASMUS J said of the almost identically worded Rule 42(1)(a) of the South African Uniform Rules:

"It is an abuse of the process of the court to bring such an application some five years and eight months later. Matters must have some finality and Rule 449 was not designed to let defendants have a second bite at the cherry by raising a defense which should have been raised when the summons was issued."

The Zimbabwean courts have followed some aspects of the South African position and rejected others.

In Grantuilly (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC) the court held that;

“The judgment had been granted because, at the time of its issue, the judge was unaware of a relevant fact, the provisions of the clause in the acknowledgment of debt. Had he known of the clause, he would not have granted the judgment he did.

There was ample precedent for the proposition that a court to which application is made for rescission is not confined to the record of proceedings in deciding whether a judgment was erroneously granted. The wording of Rule 449(1)(a) of the High Court Rules made it clear that a party against whom default judgment had been granted was entitled to place before the correcting, varying, or rescinding court facts which had not been before the court granting the default judgment.

It was held, further, that it is not necessary for a party seeking relief under Rule 449 to show 'good cause'.

If a court holds that the default judgment was erroneously granted, it may be corrected, rescinded, or varied without further enquiry.

The court also found that Rule 449 is one of the exceptions to the general principle that once a court has pronounced a final judgment or order it is functus officio and has itself no authority to correct, alter, or supplement it…,.

See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306 F-G; Stumbles & Rowe v Mattinson; Mattinson v Stephens & Ors 1989 (1) ZLR 172 (H) at 174 D-F; Tshivhase Royal Council & C Anor v Tshivhase & Anor; Tshivhase & Anor v Tshivhase & Anor 1992 (4) SA 852 (A) at 862 I-J.”

It is clear, that, to qualify for relief under Rule 449(1)(a), mistakes of fact are not precluded, although it is apparent that the mistakes referred to are not trivial or petty clerical ones. The mistake must have been made on the part of the party seeking the judgment in default, or of the judge who grants it, and the applicant ought to show that he was prejudiced as a result, or that there was a miscarriage of justice.

In other words, despite having a good defence on the merits, judgment was given against him in error, as a result of such mistake.

The law is also clear, that, any fact which was not brought to the attention of the court at the time judgment in default was given, may be placed before the court dealing with an application to rescind judgment in terms of Rule 449.

The allegations of fraud, made by the applicant, were not placed before the courts that determined the judgments that the applicant seeks to have set aside. The applicant is now entitled to place evidence of such fraud before this court.

Disposition

It is my view, that, the differences in the requirements of the two High Court rules are clear.

Rule 63 has strict time limits which must be adhered to, and, a litigant who falls foul of the time-limits will not be heard unless condonation is first sought and obtained.

The phrase 'good and sufficient cause' is seemingly wide-ranging and all encompassing. The explanation for the default must be reasonable and/or acceptable. The applicant must show that he has a bona fide defence to the claim.

On the other hand, the court's common law discretion to rescind its own judgments is wide and requires that regard be had to all the circumstances of the case, including the explanation for, and the length of the delay in bringing the application, and the prospects of success of the applicant in the main matter.

In my view, Rule 63 is more in tandem with this court's common law discretion to rescind its own judgments.

I say so because, when regard is had to the wording of Rule 63, that, “a party against whom judgment has been given in default, whether under these Rules or under any other law,”…, it becomes clear that Rule 63 recognizes the possibility that judgments may be rescinded under other laws which may not necessarily fall under the Rules of this court, such as the common law discretion that this court has to rescind its own judgments.

Rule 449(1)(a) is narrower than Rule 63.

It does not require evidence of 'good and sufficient cause' although it appears to require some consideration of an applicant's prospects of success in the main matter. It appears deceptively simple in its requirement of evidence of an error that caused or induced a court to grant judgment in default in circumstances where it would not have ordinarily granted such judgment.

It is my view that the law is clear on the question of which vehicle a party seeking rescission of judgment given in default may use.

There are three vehicles; Rule 63, Rule 449 and common law discretionary power.

Depending on the circumstances of the case, an applicant is at liberty to elect to utilize whichever one of those three vehicles best suits the circumstances of the case: see Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201.

In my view, whichever vehicle a litigant chooses, the court will have to consider the question of length of time that will have elapsed since the judgment sought to be rescinded was granted.

It follows that the first respondent's preliminary point cannot be upheld.

The applicant is not duty bound to proceed in terms of Rule 63. However, the court's scrutiny of the circumstances of this case will show whether the applicant was wise in electing to proceed in terms of Rule 449(1)(a).

Having disposed of the point in limine, I now turn to the merits of the matter.

The applicant contended, that, its non-appearance in both instances was caused by the first respondent's fraudulent and/or irregular set down of the matters without notice, despite clear opposition, and despite the absence of proof of service on him.

Rule 449(1)(a) requires that an applicant demonstrates a simple error, either in the seeking of the default judgment, or on the part of the court in granting it.

My reading of the applicant's papers is that the applicant does not expressly state that the error lay in the erroneous seeking of the judgments. It is implied, in the applicant's papers, that the allegation is that the error lay with the court in being influenced by papers fraudulently or irregularly filed, being almost “duped” as it were, into granting the two judgments when it normally or ordinarily would not have done so.

The court must decide, having regard to the papers filed of record by the applicant, whether there was any mistake, or blunder, or miscalculation, on the part of the court in granting the two judgments that are sought to be impugned.

The applicant, correctly in my view, sought to rely on the case of Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201 as authority for the proposition that any type of error will suffice for purposes of entitling an applicant to relief under Rule 449(1)(a).

It would appear, that, this case is distinguishable from the one under consideration because, in that case, judgment had been granted by consent and its rescission was sought on the basis of an error common to both parties in terms of Rule 449(1)(c). The error related to a question of law, the debtors had not opposed the granting of the judgment because they were not aware of the in duplum rule. It was held that, even assuming that the parties were laboring under a common mistake, the applicants would have had to go further and prove that the amount of the judgment debt had breached the in duplum rule.

In other words, the defence in the main matter must have merit.

I accept that the sort of error that entitles a litigant to proceed in terms of Rule 449(1)(a) can be one of fact or of law, as long as there is evidence that the court was influenced by such error in granting the default judgment.

I also accept that before rescinding the judgment, a court must consider whether the applicant has prospects of success on the merits of the matter.

In seeking the rescission of the two judgments granted in default of appearance by himself or his legal practitioner of record, in terms of Rule 449(1)(a), the applicant contended that, in case number HC3508/08, the first respondent obtained judgment in default of the applicant's appearance. The applicant averred that the error that occurred was that judgment was granted despite the fact that “…, court papers leading to the grant of such default judgment were never served on the applicant…, neither did the first respondent serve papers on the applicant's legal practitioners of record.”

It is my view, based on the papers filed of record, that the applicant did not provide any explanation, let alone an acceptable or reasonable explanation, as to why or how the court which granted the judgment in default did so in the alleged clear absence of proof of service, on him or his legal practitioner, or a certificate of service as required in terms of Order 5 Rule 42B(1)(b) of the Rules of this Court.

It is my view that the presumption that the judgment granted in default was done so on the basis of adequate proof of service to the court, was not adequately rebutted in the papers filed of record by the applicant.

The applicant contended, further, that, in case number HC6627/10, an “absurdity” occurred, in that, the applicant had filed his opposing papers to the application with the Registrar of this court and served the same on the first respondent's legal practitioners, who then erroneously set the matter down for hearing on the unopposed roll as if no opposition had been filed, and a default judgment was erroneously granted by the court.

The notice of opposition filed of record, as part of the applicant's papers, appears to have been filed of record with the Registrar of this court on 6 October 2010. Judgment in this matter was granted in 2012 - a good two years after the opposing papers were allegedly filed of record: yet, nowhere on those papers is there a date stamp to show that the opposing papers were served on the first respondent's legal practitioners of record.

The presumption that arises is that the notice of opposition may have been filed of record with the Registrar, but, there is no proof that it was served on the first respondent. Not even a certificate of service by the applicant was filed of record in terms of Order 5 Rule 42B(1)(b).

In the absence of service on the first respondent, and assuming that some administrative error was made, and that there was no copy of the opposing papers in the record, I fail to see the mistake made by the court in granting judgment in default.

The judgment of the court was based on the papers before it at the time.

The court could not have guessed that opposing papers had been filed of record and somehow fallen out of the record. No explanation at all has been given as to why those opposing papers were not served on the first respondent. The matter would not have been set down on the unopposed roll had the first respondent been aware that it was opposed.

The applicant has not rebutted the presumption that opposing papers were not served on the first respondent.

It is my view, that, no mistake was alluded to or proved from the papers filed of record.

There is evidence that the applicant is the one who sold the Bluff-hill stand to the first respondent. There is a witness who can identify him at Messrs Bonongwe & Partners legal practitioners as being the seller of the Bluff Hill stand.

He has not proved fraud on the part of the first respondent or Messrs Dinha Bonongwe & Partners.

In the absence of proof of fraud, the Agreement of Sale is valid and binding on him. There is evidence that the sale was perfected.

In my view, the applicant has no prospects of success in the main matter.

I find that the applicant has failed, in the circumstances of this case, on the papers before me, to furnish adequate proof of fraud, irregularities, or any fault in respect of both judgments sought to be impugned, on the part of the court in granting each judgment.

None of the elements of fraud were expressly averred or pleaded. Fraud is a criminal offence.

It is not clear whether there was a misrepresentation, and, if so, who made it to the court. There is no evidence that the court relied on any misrepresentation when it granted the two judgments.

There is a bald assertion that there was fraud in the filing of the papers; there is a vague reference to “irregularities”, and to an “absurdity”. But, there is nothing in the way of proof of these allegations - not even prima facie evidence.

All the applicant tells us is that the papers were not in order.

We are not treated to the courtesy of being told what exactly it is that was allegedly done, and by whom.

We are not provided with evidence that indeed the court proceeded to grant judgment on the unopposed roll when the papers before it clearly showed that it ought not to have done so. We are not told that despite proof that there was a notice of opposition duly filed of record and served on all interested parties, the court erred in overlooking it and proceeded to grant judgment in default.

There is simply no evidence of any error on the part of the court in both instances, whether an error of fact or an error of law.

It is my view that Rule 449(1)(a) does not apply to the circumstances of this case, and, to borrow the phrase in Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201;

“…, the judgments in fact reflected the true decision of the court on the basis of the evidence presented.”

It is my considered view that the applicant is not entitled to the relief that he seeks.

In the never-ending quest for justice, litigants are becoming increasingly indefatigable in approaching the well of justice to quench their thirst for justice.

Uppermost in my mind, in considering the merits of the application before me, was a question the answer to which I knew would only be resolved by resorting to that vague and elastic notion – discretion.

The parties before me have made numerous applications and counter-applications, in regards to the same piece of property, Stand 2819 Bluffhill Township, Harare, over a considerable period of time, from 2006 to date.

Surely, there comes a time when justice and fairness demands that both the victor and the vanquished act sensibly and accept that the matter has been conclusively resolved?

I can do no better than other esteemed courts have done before me, in expressing my disquiet at the manner in which proceedings were conducted between these parties in such a protracted way and over such a lengthy period - with no light at the end of the tunnel.

In Grantuilly (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC), the court expressed the view that a judge would be “…, justified, in the exercise of his discretion, in dismissing the application by reason of the inordinate lapse of time. Rule 449 was a procedural step, designed to correct, expeditiously, an obviously wrong judgment or order…,. It is in the interests of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of court orders. It would be a proper exercise of the court's discretion to rule that, even if the applicant proved that the Rule applied, it could not be heard after the lapse of a reasonable time. The length of time the appellants waited in this case, whatever the explanation, was unreasonable and the application was an abuse of the court's process.”

The court has already found that Rule 449(1)(a) is not applicable to the circumstances of this case.

Even if Rule 449(1)(a) had been applicable to this case, no reasonable or acceptable explanation was given as to why the applicant waited so long to apply to rescind these judgments.

For these reasons, the application is dismissed with costs.

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

The BackgroundThe applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.According to the applicant's affidavit, the companies in question are ...

The Background

The applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.

According to the applicant's affidavit, the companies in question are being laid claim to by nine different respondents (Lourence Erasmus Vermaak, Terence Cobden Rhodes, Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai).

The tenth respondent (the Registrar of Companies) was cited to throw light on the question of ownership by virtue of certain statutory returns that have been filed with it.

Despite the assistance that the court would indeed have obtained from the tenth respondent's comments, none were availed as the tenth respondent (the Registrar of Companies) did not participate at all in these proceedings.

The companies in question, namely, Beverly East Properties and Karoi Properties (the companies) were established by the late Brian James Rhodes who died on 29 July 2006.

At least this much is not in dispute.

The companies own commercial premises described as 184 Mutare Rd; 186 Mutare Rd; 188 Mutare Rd; 194 Mutare Road, all in Msasa.

These premises are leased.

Until October 2011, the rentals were being collected by an estate agent, namely, Robert Root and Company. They discontinued agency and accounted to the applicants for rentals held by them.

Certain tenants have continued paying rentals to the applicants.

The applicant averred, in its affidavit, that, it is currently holding $70,000 in trust by way of accumulated rentals from these tenants.

In its affidavit, the applicant lays out the conflicting claims that it has been saddled with as emanating from triple sources:

(i) The first set of claimants for the rentals is a Trust called Phoenix Trust which the deceased is said to have established in 1998. The first and second respondents (Lourence Erasmus Vermaak and Terence Cobden Rhodes) are identified by the applicants as Trustees asserting that the Trust is the lawful owner of the entire share capital in the companies and to whom the applicants should account for the rentals held as representatives of the companies.

(ii) The second claimant, also laying claim to the rentals is said to be Gideon Hwemende, the third respondent (a former employee of the deceased) whom the applicant indicates in its affidavit as having made diverse claims to shareholdings in the companies ranging from 40%, to 60%, as well as to the entire ownership of the companies.

(iii) The third set of claimants are the fourth to ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai), who, in their capacity as Directors appointed by the third respondent (Gideon Hwemende), lay claim to interests in the companies.

The affidavits and various annexures filed by the different claimants bear the hallmarks of a dramatic 'corporate soap opera' characterised by intrigue; alleged chicanery; resultant grievance.

It is necessary to set out the facts somewhat fully from the papers filed of record as they have a bearing in determining in whose favour the balance emerges in terms of this interpleader application.

The Facts

Mr Lourence Vermaak, the first respondent, initially submitted an opposing affidavit on 12 March 2013 which was later withdrawn and expunged from the record by court order obtained as a result of a default judgement.

From the correspondence on file, the reason for the seeking that this initial opposing affidavit be withdrawn was because it had been obtained through coercion.

However, by the time of its withdrawal, the third to ninth respondents had filed their own opposing affidavits in which they drew heavily, in asserting their claims, on this initial affidavit. Even after the first and second respondents had filed their new affidavits, the third to the ninth respondents appear to have ignored the fact that this document was obliterated by an order of this court.

Whilst bearing in mind that the document was wiped out, it is necessary to set out, briefly, its contents in order to give some context to the election by the third to ninth respondents to hang on its every word despite the court order stating that it is expunged from the record.

In the expunged affidavit, the first respondent averred that he had resigned as Trustee of Phoenix Trust and Director of Beverley East Properties - which is not in dispute.

He denied having laid claim to owning or representing the companies.

He asserted that he had appointed himself as Director when he saw that the companies were lying idle. He also swore that the second respondent, Terence Cobden Rhodes, had been appointed fraudulently by him (with one Kenny Regan) without his knowledge and that the second respondent was not even aware that he is a director or was a director.

In a dramatic twist to the applicant claim of a dispute, the first respondent refuted that the shareholdings in the companies were in dispute in any way. He also stated that the third (Gideon Hwemende) and the ninth (Calisto Vengesai) respondents are current directors and shareholders of Beverly East Properties and that he had no problems with this nor did he have any interest in the matter.

Attached as annexures were letters of withdrawal as Director of Beverly East Properties.

The eighth respondent, Farai Mutizwa, in his purported capacity as Director of Beverly East Properties, deposed to an affidavit in which he essentially embraced the first respondent's affidavit as embodying the correct position. He confirmed that the first and second respondents had resigned and had not laid any interest in the companies as they had resigned as both directors and company secretaries. He also stated that ownership and control are in the hands of the remaining respondents and that there are no contradictory or competing interests.

He also said that the third respondent (Gideon Hwemende) is a director in the company.

He referred to the only dispute as that pertaining to Directorship of Karoi Properties, a case which he said they were making frantic efforts to resolve.

In that case, which I will allude to later, JUSTICE ZHOU ordered tenants of Karoi Properties to deposit rentals into the account of the Registrar until the matter of ownership is resolved.

The fourth, fifth, sixth, seventh, and ninth respondents submitted affidavits in support of the eighth respondent's averments.

The third respondent (Gideon Hwemende), who was separately represented, initially deposed to his own affidavit on 18 March 2013. He withdrew, through a letter from his legal practitioners to the Registrar of the High Court, two days after its submission on 20 March.

In its place, he submitted an affidavit stating that he too was embracing the affidavit deposed to by the eight respondent.

It is necessary to state, briefly, the contents of this affidavit as its contents have a bearing on why it was withdrawn.

In addition, its contents also have some bearing on the first respondent's later affidavit.

In his initial affidavit, he gave a totally different picture of the share ownership pertaining to the company compared to that deposed to by the first respondent. He did not assert full ownership, but, instead, claimed that he had acquired 60% of the shareholding, with the remaining 40% belonging to the estate of the late Brian James Rhodes. He sought to shed light on how he came to own what he asserted as 60% of the company.

In essence, his claim was that he had been employed as clerk by Brian James Rhodes in 1990 who was the sole shareholder of the companies. He was elevated to controlling all the accounts for the companies in 1992 which included mining companies. He said that when Brian James Rhodes became old, he proposed that he buy shares in Beverly East Properties in 1999 so that he could become the majority shareholder. His claim was that the deceased said he would work out a plan since the third respondent did not have money.

He asserted, that, in 2002, the said Brian Rhodes indicated that he was handing him 60% of the company and drew up shareholding agreements. He also gave him the title deeds of three properties Lorely, Beverly East, and Karoi Properties.

He further averred, that, by 2006, had paid up for the 60% shareholding in each of the two companies, and that, at the time of his death, Brian Rhodes owned 40% of the company. He further submitted that he himself had fallen ill, and, for seven years, and could not control the two companies.

It was during this time, he said, that the companies had been left with no Directors and that the first and second respondents had illegally appointed themselves.

He alleged that there is no record of how Phoenix Trust came to own 80% or 100% of the shareholding in the two companies.

He had submitted documents to support his claim in the form of receipts from a petty cash book to show purchase. He also attached annexures of the Share Agreements in Beverly East and Karoi Properties.

Also among the annexures was a copy of a letter, purportedly by Brain James Rhodes, offering the third respondent the properties in 2002.

Also included was a company resolution, also from 2002, appointing the estate agents as managers of the property.

Turning back to the first respondent, he withdrew his initial opposing affidavit on 27 May 2013.

Having the court's blessing to breathe freely again and file new papers on the basis of a court order granted by JUSTICE MATHONSI, under case No. HC3889/13, he filed a new opposing affidavit on 12 July 2013.

Equally unfettered by the first respondent's initial affidavit, the second respondent (Terence Cobden Rhodes) also filed his own opposing affidavit.

In his new opposing affidavit, the first respondent disputed the third respondent's (Gideon Hwemende) claim to shareholding on a number of grounds:

He asserted, that, from the evidence produced by the third respondent, he could not be owner as he had failed to produce proof of actually paying for the shares, neither had he shown any proof of paying any capital gains tax on the shares as required by the Capital Gains Tax Act [Cap 23:01]. He also stated that no such share transfers were ever processed by the first respondent's company that was at the time managing the two companies as company secretaries.

In addition, he attached a number of annexures which included a document examiners report disputing the signatures to the Share Agreements that had been produced by the third respondent.

The examiner opined that the signatures could have been forged but that he required to see the originals.

What clearly does not help the third respondent's claims is that also included were a proven forged letter in which he had claimed 100% ownership, from 40%, through indigenisation.

The first respondent also questioned why the company needed to be indigenised, if, as claimed by the third respondent in the affidavit he had initially filed, he already owned 60% which would mean the company was already compliant with indigenisation.

The second respondent, Terence Cobden Rhodes, submitted an affidavit as Trustee of Phoenix Trust.

He asserted that he has never resigned as Trustee of Phoenix Trust or Director of Beverly East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. He insisted, in his affidavit, that the entire shareholding of the two companies is with Phoenix Trust.

He refuted the claim by the third respondent, Gideon Hwemende, that he owns 60% of shareholding of either company.

The Issues

Having brought the application as an interpleader, the applicant made it clear that it is a disinterested party in the proceeding and will abide by the decision of this court.

Counsel for the first and second respondents (Lourence Erasmus Vermaak and Terence Cobden Rhodes) argued, in limine, that, the fourth-ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai) have no locus standi as the Directors in their personal capacity.

Owing to the distinct legal persona of a company which is separate and distinct from its members and shareholders, he argued that they cannot arrogate to themselves to sue what can only be legally suffered by Beverly East Properties and Karoi Properties.

Where wrong is done to a company the proper complainant is the company itself.

The following cases were cited in support of these averments: Salomon v Salomon & Co Ltd [1897] AC 22; Dadoo Ltd & Others v Krugersdorp Municipal Council 1920 AD 530; Foss v Harbottle (1893) 67 ER 169; Wallersteiner v Moir (No.2) [1975] 1 All ER (CA) 849.

He also argued, that, the claim for the fourth-ninth respondents must fail on the basis that they do have a direct and substantial interest in the matters as they are not even shareholders.

He further submitted that their appointment as Directors rests on a person whose ownership is disputed and that one cannot appoint directors to a company to which one has been unable to prove ownership.

He argued, that, the third respondent had failed to show ownership of the property and had merely managed to put forward a series of inconsistent claims.

The third respondent did not file any heads of argument neither did he appear in court on the appointed day. He was therefore in default and was barred.

Counsel for the fourth to ninth respondents argued that there was no dispute of fact as regards ownership on the basis of the first respondent's initial affidavit - despite the fact that this had been legally withdrawn and substituted.

She insisted that both the first and second respondents had resigned from the company.

She argued that the Directors were properly before the court as it is their duty to manage the company as agents of the company.

Turning to these arguments.

The rule is indeed well established that a company is a separate legal persona capable of suing and being sued in its own name. As such, shareholders have passive role especially where a company can use its corporate character to obtain redress for the alleged wrong.

Where the wrong doers are the directors themselves, there are obvious challenges in that they cannot bring a claim against themselves. Thus, under the exception to the rule in Foss v Harbottle (1893) 67 ER 169, a shareholder can bring a derivative action as a corporate shareholder to address a wrong done to the corporation.

It seems to me, that, a practical approach to addressing the issue of the Directors locus standi in this case, is an analysis of the relationship between shareholders and directors and the roles attendant upon each.

A person who has acquired shares in a company, and can produce irrefutable proof of such ownership, has a right to play a central role in the governance of such company. Among such roles that a shareholder is entitled to play include the appointment and removal of directors and addressing issues of their remuneration.

The appointment and removal of auditors, as well as issues to do with their remuneration, is another such role.

Dealing with issues of management and business of the company and also any issues to do with the company's constitution is yet another.

Directors so appointed by a legitimate shareholder have the right to commence litigation in the company's name; to buy and sell property; to employ people; and to conduct the business of the company, among some of their rights.

The difficulty on the case before me is that the Directors have been appointed by a person whose very claim to ownership is strongly challenged.

The Directors, in the persons of the fourth to the ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai), do not deny that they were appointed by the third respondent in his capacity as shareholder.

As conceded by counsel for the fourth to ninth respondents, none of them are shareholders.

The annexures that were included in this application, by the first respondent, indeed reveal that the third respondent's claim to share ownership rests on quick sand.

As stated by the first respondent, there is no evidence of the requisite tax having been paid for the shares as required by the law; neither is there actual proof of payment for those shares.

Whilst admittedly not conclusive, the forensic report suggests that the signatures to the Share Agreements may have been forged.

What clearly does not help the third respondent's claim to share ownership is the annexure of a court case involving him which details proven submission of a forged document in claim of 100% ownership to one of the properties in this case.

In the matter of South Mark Trading (there were 12 other companies cited in that matter) v Karoi Properties & Lorna Kruger & Retired Major Chademana & Gedion Hwemende & National Indigenisation Board HH52-13, which this court takes cognisance of, the tenants of Karoi Properties sought the guidance of the court as to whom to pay their rentals.

Mr Hwemende (the third respondent in the current matter) claimed rentals on the basis of 100% share ownership of the Karoi company. He based his claim on a letter from the National Indigenisation & Economic Empowerment Board (NIEEB) dated 30 September 2011.

That letter, which turned out to be forged, stated that Mr Hwemende, who previously owned 40%, now owned 100% shares in the company.

The National Indigenisation & Economic Empowerment Board (NIEEB) had written, on January 20, 2012 denying Mr Hwemende's claims and emphasising that the indigenisation process in the above-mentioned properties is yet to be finalised.

JUSTICE ZHOU made the following remarks regarding the forged letter and the very tenor underlying the claim:

“The biblical aphorism: 'Whatever a man sows he will also reap' has lost its meaning in our society. This matter presents a sordid picture of a culture of wanting to reap where persons did not sow….,.

The fourth respondent was aware that he could not just wake up to find himself as the holder of all the shares in a company for free. He would know, too, that, the indigenisation legislation does not operate in the manner that he sought to portray to justify his claim to a 100% shareholding in the first respondent.”

In this particular matter, the third respondent initially claimed 60% before throwing his lot with the 100% claim.

The third respondent has undeniably made claims that have ranged from 40% to 60% to 100%.

What is before the court is evidence of claims to ownership which swing like a yoyo.

It is evident, that, from the papers filed of record, that, the assertions of ownership lack veracity and consistency and merely lend credence to the proverb that liars should have good memories.

As this claim has been lodged in interpleader proceedings, what the claimant must allege is succinctly stated in the case of Bruce NO v Josiah Parkes and Sons (Rhodesia) (Pvt) Ltd and Another 1972 (1) SA 68 (R) where GOLDIN J…, stated as follows:

“In my view, in proceedings of this nature, the claimant must set out such facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.”…,.

The test whether a claimant has discharged the onus of proving his ownership is whether the probabilities are balanced in his favour.

The case of Corlett Drive Estates v Boland Bank BPK and Another 1979 (1) SA 863…, elucidates the purpose of setting out particulars of claim as follows:

“The purpose, inter alia, of the setting out of the claimant's particulars of claim is to acquaint his opponent of the tenor of his case, so that the latter can be put in the position of deciding whether to oppose his claim or not.”

I do not see any real dispute of fact, on the basis of this inter-pleader, that ought to be referred to trial as, in my view, the third respondent (Gideon Hwemende) has not shown this court that he has any real basis for his assertion of ownership.

The third respondent (Gideon Hwemende) did not file heads or make an appearance.

Notably, the third respondent did not challenge the first respondent's application to withdraw his opposing affidavit which he said had been obtained by coercion.

In inter pleader proceedings, where a claimant does not deliver any details of his claim nor appear in support of a possible claim, the court can exercise discretion and order the claim lapsed: see Free State Consolidated Gold Mines Operations BPK v Sam Flanges 1997 (4) SA 644 (O)…,..

If the third respondent had full confidence in his claim, he would have made every effort to defend it to its logical conclusion.

Instead, he withdrew his affidavit in which he had purported to shed light on how he came to acquire the shares. In addition to the withdrawal, he chose to assert his claim on the foundation of the first respondent's affidavit which has been withdrawn and allowed to be substituted by the court. Thereafter, the third respondent could not thereafter be bothered to file his heads of argument or appear in court to file for upliftment of a bar.

Given these realities, the court is entitled to draw the adverse inference, that, in the third respondent's own view, his claim had collapsed, or, for that matter, that a guilty conscience needs no accuser.

Taking all the above into account, I do not think the evidence before this court shows that the third respondent has a valid claim as a share owner.

Accordingly the claim by the fourth to the ninth respondents cannot stand as the third respondent, who appointed them, has failed to prove that he is indeed a share-owner.

I therefore uphold the point in limine raised by counsel for the first and second respondents regarding the lack of locus standi by the fourth to ninth respondents and their claim is accordingly dismissed.

The first respondent, Lourence Erasmus Vermaak, has made it very clear that he has no claim to the property and that his primary motive, in filing the affidavit, has been to shed light in his capacity as former Trustee and Director of the companies.

He confirmed that he has resigned as both Trustee and Director.

I now turn to the claim by the second respondent, Terence Cobden Rhodes, and whether his claim justifies the release of the monies being held by the applicant to it as the successful claimant.

The assets of Phoenix Trust are said to include the corporate stock of the two companies.

The Trust, through its Trustees, is deemed the shareholder for the purpose of a bringing a derivative action against a wrong done to the company.

The second respondent, Terence Rhodes, is stated as a Trustee as well as a Director of both companies.

In his capacity as Trustee he therefore has legal title to the Trust property.

Since the Trust is said to be the holder of the corporate stock, whatever benefits this court may award accrue to the Trust in whom the companies are said to be vested. Since the Trustee purports that the companies were transferred to the Trust some years ago, by the late Brian James Rhodes, there must be, in existence, evidence which can be produced in support of this claim.

Such Trust document was not part of the annexures in this application.

As such, before the monies being held can be released, evidence of the Trust legally owning the companies must be furnished to this court through the Registrar of the High Court.

In the circumstances, I make the following order:

1. That the second respondent, Terence Cobden Rhodes, as claimant, in his capacity as Trustee of Phoenix Trust, in whom the companies are held, is the lawful shareholder of the two companies.

2. That the second respondent, upon lodging with this court a valid Trust document effected by the deceased, during his lifetime, transferring the properties to the Trust, shall be entitled to require the Registrar of this Honourable Court to release to the Trust, the sum of $70,000 deposited with him in terms of Rule 206(1) of the High Court Rules, 1971.

3. That the third to the ninth respondents shall pay the costs of the applicant and the first and second respondents.

HB38-13 : MKANDLA TOURS AND TRANSPORT vs UNIQUIP (PVT) LTD and TAWANDA PUCHE
Ruled By: CHEDA AJ

In preparation for trial, the plaintiff filed a synopsis of evidence in which he said he would lead evidence to show that on the 13th day of July 2010, at the intersection of 3rd Avenue and Herbert Chitepo Street, in Bulawayo, the first defendant's haulage truck rammed into the plaintiff's ...

In preparation for trial, the plaintiff filed a synopsis of evidence in which he said he would lead evidence to show that on the 13^th day of July 2010, at the intersection of 3^rd Avenue and Herbert Chitepo Street, in Bulawayo, the first defendant's haulage truck rammed into the plaintiff's vehicle and that the accident was due to the negligence of the second defendant. He particularized the negligence of the second defendant. He said his vehicle was damaged beyond repair and he suffered loss of income.

He was claiming ZAR587,500=.

When the trial commenced, the plaintiff's driver was called first. He narrated how the accident occurred at the intersection of Herbert Chitepo and 3^rd Avenue. He said the defendant's vehicle approached from his right side, ignored a Give Way sign and rammed into the plaintiff's vehicle which he was driving. In answer to questions put to him, he said as an employee he was not in a position to give details about the correct identity of the plaintiff in the papers whether it is a company or an individual.

He said he did not know about the value of the vehicle or the possible costs of its repair. He was therefore unable to answer any questions concerning the value of the damages claimed by the plaintiff.

This gap in the evidence of the plaintiff's case required the direct evidence of the plaintiff.

Order 46 Rule 408 of the High Court Rules provides that in the absence of any agreement, in writing, between the legal practitioners of all the parties, and subject to these Rules, the witnesses at the trial of any action shall be examined viva voce and in open court, but the court may, at any time, for sufficient reasons, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the court may think reasonable, or that any witness, whose attendance in court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a Commissioner or Examiner.

In this case, no such arrangement was made, and no explanation was given for not calling the plaintiff…..,.

Other documents filed in this case showed that the vehicle was registered in the name of Teddy Mkandla. On seeking the correct identity of the plaintiff counsel for the defendants was unable to get any clarification in the absence of the plaintiff.

When the plaintiff's case was closed the matter could have ended there. However, the defendants submitted that instead of absolution from the instance they preferred to lead their evidence so that the matter is brought to finality. Evidence of the defendant was then led and the first defendant persisted in his denial of liability.

At the end of the hearing, it was clear that the plaintiff, who had undertaken, in his synopsis of evidence filed, to lead evidence to prove his damages, had not led such evidence. No reason was given for not calling him. The plaintiff therefore failed to prosecute his claim as required by the Rules of Court which require that he give viva voce evidence and be cross-examined. He was not present even to explain the query about the correct ownership of the damaged vehicle.

The law requires that a party who is claiming damages must prove his damages in court. A party cannot send documents to court and leave it to the court to determine the claim for him. What he stated in the summons must be substantiated in open court by his viva voce evidence….,.

The plaintiff in a claim for damages has to prove the damages. He cannot leave it to the court to work out damages for him. Only the plaintiff could give evidence as to the value of the vehicle when it was purchased, the value of the vehicle at the time of the accident, or what it would cost him to repair it.

The plaintiff's legal practitioner called two (2) expert witnesses to testify on the reasons why the vehicle could not be repaired. Their evidence concerned the damage to the vehicle and that trying to prepare it for subsequent use as a public service vehicle would render it dangerous to passengers. None of these witnesses could give evidence as to the value of the vehicle prior to the accident and the loss suffered by the plaintiff for the loss of its use. All they could do was to estimate the cost of similar vehicles - evidence which remained unsatisfactory. This evidence could not be relied on as proof of the damages suffered by the plaintiff….,.

In this case, the case ended without the plaintiff's evidence, and, as such, the plaintiff has not proved his case.

The end result is that the plaintiff's case is dismissed with costs.

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O.
Ruled By: CHITAKUNYE J

Though the applicant, in her founding affidavit, said she had been constantly asserting her rights by visiting the house right up to the late Fred Garikayi Muchenje's demise such was just a bald assertion without any substance.

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

JUSTIFICATIONThe HOLY BIBLE, CONCORDANCE AUTHORIZED KING JAMES VERSION, 2013 p1078 reads, in Ecclesiastes 4:09-12:“9. Two are better than one; because they have a good reward for their labour.10. For, if they fall, the one will lift up his fellow: but woe to him who is alone when he falls; for ...

JUSTIFICATION

The HOLY BIBLE, CONCORDANCE AUTHORIZED KING JAMES VERSION, 2013 p1078 reads, in Ecclesiastes 4:09-12:

“9. Two are better than one; because they have a good reward for their labour.

10. For, if they fall, the one will lift up his fellow: but woe to him who is alone when he falls; for he has not another to help him up.

11. Again, if two lie together, then they have heat: but how can one be warm alone?

12. And, if one prevail against him, two shall withstand him; and a threefold cord is not quickly broken.”

I therefore refer to a number of legal sources as well as illustrations in determining this inter pleader application.

CLAIMANT BEARS THE ONUS TO PROVE THAT THE ATTACHED PROPERTY BELONGS TO IT AND MUST DISCHARGE THAT ONUS ON A BALANCE OF PROBABILITIES

In Sabarauta v Local Authorities Pension Fund and the Sheriff SC77-17, UCHENA JA, writing for the Zimbabwe Supreme Court, said:

“Interpleader proceedings are instituted by the Sheriff in respect of property attached by him when a third party claims ownership of that property. In such proceedings, it is necessary for the party claiming the attached property to prove ownership by clear and satisfactory evidence.”

In The Sheriff for Zimbabwe v Mahachi and Leomarch Engineering HMA34-18, MAFUSIRE J puts it thus…,:

“One common thread running through such cases, and several others on the point, is that there is a rebuttable presumption that where someone is found in possession of movable goods, they are presumed to be the owner of that property.

Where someone else other than the possessor claims to be the owner of those goods, they have the onus to prove, on a balance of probabilities, that they are the owner. There are no hard and fast rules on how they may go about proving such ownership. Every case depends on its own facts. The claimant may have to produce some evidence, such as receipts or other documents, if available, to prove ownership. A bald assertion that they are the owner is not enough.”…,.

The facts of each matter ultimately resolves the question whether clear and satisfactory evidence has been tendered by a claimant to satisfy the court, that, on a balance of probabilities, the property attached belongs to the claimant. The road to proving ownership is not a one way street.

WHERE THE CLAIMANT HAS PRODUCED SUFFICIENT EVIDENCE TO CONSTITUTE PRIMA FACIE PROOF OF OWNERSHIP THE ONUS SHIFTS TO THE JUDGMENT CREDITOR TO DISPROVE SAME BY PRODUCING EVIDENCE TO THE CONTRARY

The claimant does not need, at this stage, to prove, on a balance of probabilities, that the attached property belongs to it. All that is required of it is to show, on the face of it, that the property probably belongs to it.

That is what prima facie proof means in civil cases.

The onus then shifts to the judgment creditor to disprove the claimant's prima facie evidence of ownership by producing its own evidence to the contrary.

If the contrary evidence satisfies the court, the claim fails and execution proceeds. The converse is true.

The judgment creditor cannot successfully disprove the claimant's prima facie evidence of ownership by making unsubstantiated assertions in its own opposing affidavit. Neither can it do so through composing heads of argument based on the bare assertions in the opposing affidavit.

It follows also that argument at the hearing of the inter pleader application is no substitute for a judgment creditor's failure to produce contrary evidence to disprove the claimant's prima facie evidence of ownership of the attached goods.

If the judgment creditor cannot disprove the claimant's prima facie evidence of ownership, the result is this: What was prima facie evidence of ownership is transformed into proof on a balance of probabilities. The attached goods are then declared not executable and their release from attachment ensues.

This procedure has a parallel in Criminal Law.

If the State establishes a prima facie case against an accused who then opens and closes his defence case without without leading any evidence at all that person will be convicted. The conviction is not based on the prima facie case. It is no longer that. It has graduated to become proof beyond a reasonable doubt for want of any competing evidence.

In (1) Smit Investments Holdings SA (Proprietary) Limited (2) Genet Mining (Proprietary) Limited v (1) The Sheriff of Zimbabwe (2) Pungwe Mining (Private) Limited SC33-18 PATEL JA, with whom MALABA CJ and HLATSHWAYO JA concurred, said…,:

“In a bid to prove its ownership of the assets, the first appellant produced statements of account for Mbada Mine which showed that some payments, but not all, had been made by Mbada Mine. In addition, both appellants produced detailed agreements concluded with Mbada Mine (on 15 July 2012 and 22 July 2015), respectively, which stipulated that ownership of the assets would remain with the appellants until the full purchase price was paid. It was the court a quo's finding that the agreements were not authentic and that there was collusion between the appellants and Mbada Mine.

It was alleged, by the second respondent, that, the agreements were doctored by Mbada Mine and the appellants ex post facto and that there was no paper trail to show that the assets belonged to the appellants.

However, no evidence was led to substantiate the second respondent's allegations of collusion.

The court relied on the bald averment by the second respondent that the documents were not authentic and simply took that to be correct.

It is the second respondent that levelled allegations of inauthenticity and collusion. Consequently, it is the second respondent that should have proven the same.

This position was succinctly captured in the case of Circle Tracking v Mahachi SC4-07, where the court held that the principle that he who alleges must prove is a basic concept of our law.

No evidence was adduced by the second respondent to substantiate the alleged inauthenticity of the agreements.

The appellants produced documents which show that the assets had been procured by them and initially belonged to them. They also produced the agreements concluded with Mbada Mine in 2012 and 2015 which show that ownership was reserved in favour of the appellants until the full purchase price was paid. The relevant provisions are contained in clauses 4.3 and 11.6 of the first appellant's agreement and clause 7.7 of the second appellant's agreement.

The second respondent alleged that the documents supporting the appellants' claims were a recent fabrication meant to frustrate the execution of the assets, but, the dates when the agreements were concluded reveal that they were executed well before the second respondent instituted any legal proceedings in this matter. There is also nothing in the record to give credence to the allegations that the documents were fabricated by the appellants in collusion with Mbada Mine. It is my view, therefore, in the absence of any evidence to the contrary, that the agreements are genuine and that their provisions and the agreed compacts contained therein must be accepted as being authentic, as well as commercially and legally cognizable.”

This court's decision in the Sheriff of Zimbabwe v Senital (Pvt) Ltd t/a Frank B Mine and Zimbabwe United Passenger Company Ltd HB233-18 underscores this point. There, MAKONESE J expressed it in these words…,:

“The claimant refuted the allegations that the property belonged to the judgment debtor, and, in a bid to prove ownership of the attached property, the claimant attached some receipts and agreements of sale as proof of the attached assets. An agreement of sale is taken as prima facie proof of ownership. Where a claimant tenders some acceptable proof of ownership the onus must necessarily shift to the judgment creditor disproving the claimant's ownership of the attached goods.”

Similarly, CHITAPI J explained in The Deputy Sheriff Marondera v Hombarume and 7 Ors HH521-18…,:

“In my view, this claimant's claim is not far fetched. The claimant did not just attach the registration book as proof of legal ownership. He attached the official motor vehicle extract from Central Vehicle Registry. It gives details of the importation of the vehicle by the claimant and proof of payment of import duty and police clearances. In such a situation, the onus to prove that the third claimant is not the owner of the vehicle must shift to the judgment creditor. Where the claimant places before the court acceptable evidence of ownership or of some other legally recognizable ground warranting release of the attached property from execution, the onus shifts on the party who impugns such evidence to controvert it.”...,.

THE FACTS

The judgment creditors were employees of Amble Mining (Private) Limited. The latter traded as Amble Mine.

On 24 May 2010, an Independent Arbitrator granted an award ordering the Mine to reinstate the 99 employees with effect from March 2006 without loss of salary and benefits. As an alternative, the Mine was to pay them certain sums for back pay, damages for loss of employment, punitive damages, housing allowance, cash in lieu of leave and cash in lieu of notice. The total amount was US$1,199,251=88.

The date when the matter was referred to the Arbitrator is not disclosed in the papers. Also kept under wraps is the history of the labour matter leading up to the award.

Amble Mining (Pvt) Ltd is the judgment debtor.

On 28 June 2017, the employees filed a court application for registration of the arbitral award. The application to register the award as an order of this court was granted, unopposed, on 16 August 2017.

A Writ of Execution Against Movable Property must have been issued. I have not seen it. What I have perused, both in the court record relating to registration of the arbitral award and the present matter is a Writ of Execution against immovable property. It was issued on 18 June 2018. In the writ is a statement speaking to a nulla bona return of service. The nulla bona return of service was not placed before me. I do not know when it was issued. I am also in the dark as to where the Sheriff had sought to effect the attachment.

However, as regards the immovable property, the Sheriff was instructed to attach and execute what was said to be the judgment debtor's property being a certain chrome mine comprising of:

(i) The mining claim, being a block of 25 mining claims known as BEE 47 registered as No. G310 BM.

(ii) 110 compound houses.

(iii) 1 x shop.

(iv) 6 x round thatched guest houses tiled/geyser.

(v) 3 separate guest houses.

(vi) Workshop.

This was to realize the sum of US$1,199,252=99 which was the alternative remedy to reinstatement.

On 26 June 2018 the Sheriff wrote to the Provincial Mining Director, Mashonaland West Province attaching the mining claim in question together with everything else listed on the writ of execution against immovable property.

Gurta AG is the claimant. It is a company incorporated in terms of the laws of Switzerland. It is therefore a peregrinus. It has paid security for costs.

Gurta AG filed an affidavit with the Sheriff claiming ownership of all the attached property. The affidavit was deposed to by Carlo Ghezzi. He is a Board member and Chairman of the claimant.

The claimant admits that the mining claim used to belong to the judgment debtor. However, the claimant purchased the same sometime in 2009 and took transfer the same year.

In an endeavor to prove its claim, Gurta AG annexed certain documents to the affidavit delivered to the Sheriff.

Those documents are copies each of the certificate of registration of the mining claim after transfer; a Board Resolution of Maranatha Ferro Chrome (Pvt) Ltd, signed by the chairman and secretary on 15 October 2009, reflecting that the Board agreed, on 13 October 2009, to sell all its mining claims as well as those of its subsidiary, Amble Mining (Pvt) Ltd, to Gurta AG for US$1,350,000; an unsigned document on Maranatha Ferrochrome's letterhead said to be an invoice relating to the Sale and a Lease Agreement on Maranatha Ferrochrome's letterhead, dated 9 September 2015, in terms whereof Joseph Wirima rented one of the rooms at the mining claim for a period of 3 months running from 1 September 2015 to 30 November 2015 at a rental of US$25 per month.

The judgment creditors rejected the claim.

This led to the Sheriff instituting these inter-pleader proceedings.

The claimant, in a bid to prove its claim before this court, again filed an affidavit by the same deponent. It annexed thereto copies of the same documents as previously laid before the Sheriff. This time, it attached also copies of two letters written by the Acting Provincial Mining Director Mashonaland West on behalf of the Secretary for Mines and Mining Development. The letters are dated 5 July 2018. One was addressed to the judgment creditor's then legal practitioners, Citizens Legal Society and Advisory Trust. The other was addressed to the Sheriff's office.

In both letters, the Ministry of Mines and Mining Development, through the author, set the record straight by advising that the mining claim in question belongs to the claimant as evidenced by records reflecting transfer as having been effected to Gurta AG on 26 October 2009.

The author apologized to both addressees for a mistake which had been made in an earlier letter to Citizens Legal Society and Advisory Trust on 31 May 2018 which stated that the mining claims, and two other claims, belonged to the judgment debtor.

THE JUDGMENT CREDITORS' POSITION

Besides the letter of 31 May 2018 from the Ministry of Mines and Mining Development (which was superseded by the letters of 5 July 2018 from the same Ministry) the judgment creditors did not produce any evidence to contradict that tendered by the claimant.

They alleged collusion between the Acting Provincial Mining Director, Mashonaland West, the claimant, the judgment debtor, and Maranatha Ferrochrome (Pvt) Ltd to cook up the documentary evidence which the claimant placed before me.

I was told that there was therefore no sale of the mining claim in question to the claimant because all the documents speaking to such sale and transfer of the claim were fabricated.

The judgment creditors, in opposing papers, heads of argument, supplementary heads of argument, and oral argument at the hearing said this:

No paper trail leading up to transfer of the mining claim to the claimant had been put before me. There was therefore neither sale nor transfer of the mining claim in favour of Gurta AG. The claim was still registered in the name of the judgment debtor and therefore executable.

The argument was premised upon section 275 of the Mines and Minerals Act [Chapter 21:05] which reads in relevant part:

“275 Registration of transfer of mining locations and transfer duty payable

1. When any registered mining location or any interest therein is sold or otherwise alienated in any manner whatsoever, the seller or person who so alienates shall notify the mining commissioner of the transaction within sixty days of the date of such transaction, and shall inform him of the name of the person to whom such location or interest is sold or otherwise alienated and of the amount of the valuable consideration, if any, agreed upon and the date of the transaction.

2. When any registered mining location, or any interest therein, has been sold or otherwise alienated, whether before or after the first November, 1961, in any manner whatsoever, for valuable consideration, transfer duty at the rate fixed by Parliament shall be paid by the purchaser, which terms shall include any person becoming entitled to such location or interest therein by way of sale, exchange or other like transaction;

1….,.

2….,.

3….,.

4. Subject to this Act, any person entitled to be registered as the holder of a registered mining location, or any interest therein, shall make application to the mining commissioner for the transfer of such location or interest, and every such application shall be in writing and signed by or on behalf of the applicant, and shall be accompanied by the following particulars -

(a) The last issued certificate of registration or of special registration of the location or the holder's copy of the mining lease, as the case may be;

(b) Certificates by the transferor and transferee in the prescribed form;

(c) A duplicate original grosse or notarially certified copy of any and every existing written agreement affecting or bearing upon the sale, alienation, exchange or transfer;

(d) In the event of there being no such existing written agreement, certificates by the transferor and transferee to that effect;

(e) The original or notarially certified copy of any power of attorney which may be required to authorize an agent to act on behalf of any party to the transfer; if the original power is lodged with the mining commissioner and the applicant does not wish the mining commissioner to retain it, he shall furnish with it a copy which the mining commissioner shall compare with the original, certify to be a true copy and retain;

(f) If such application is in respect of the transfer of any mining location registered for precious stones or any interest therein, a certificate from the secretary that the Minister has granted the permission required under section two hundred and eighty two in respect of such transfer.

5. The mining commissioner shall, on receipt of such application and other documents, and of the transfer duty or, if no such duty is or may in the future be payable or the whole of such duty has been remitted under subsection (9) of the prescribed fee, and if he is satisfied that the other provisions of this Act have been complied with, register transfer by making the necessary entries in his registers and other records: Provided that -

(i) No transfer, as aforesaid, shall be valid unless it has been registered by the mining commissioner, and no such registration shall be made -

(a) Where such location is liable for forfeiture or under attachment;

(b) Until dues, fees, royalties, rents or other moneys due and payable to the mining commissioner under this Act in respect of the property to be transferred have been paid;

(c)…,.

(d) Where the transferee is not a permanent resident of Zimbabwe, unless the mining commissioner, after consultation with the Reserve Bank of Zimbabwe, is satisfied that all requirements imposed by or under the Exchange Control Act [Chapter 22:05] have been complied with;

(i)…,.

(ii)…,.

(8) The mining commissioner shall also, on receipt of the prescribed fee, issue to the transferee a certificate in the form prescribed and such certificate shall record the interest of the transferor, whether whole or otherwise, in such block.”

The judgment creditor's alternative argument was this:

Should I find that there was a sale then I should pierce the corporate veil on two grounds:

(i) Gurta AG, Amble Mining (Pvt) Ltd, and Maranatha Ferrochrome (Pvt) Ltd were companies in the same Group. The first two were subsidiaries of the third. Therefore, the sale was between subsidiary companies.

(ii) Secondly, there was fraud involved because the sale and transfer of the mining claim were designed to defeat the judgment creditors' entitlement to attach the mining claim by taking it out of the judgment debtor's hands.

THE ANALYSIS

I am satisfied that the claimant established, prima facie, that the mining claim belongs to it. The precise legal position is that the holder of a mining claim has the right to work such claim to the exclusion of everyone else.

The totality of the documentary evidence tendered by the claimant satisfies me in this regard.

It is true that the date stamp on the copy of the certificate of registration on record is not legible to the extent that the day and month of registration of the transfer is not visible. But the year of registration of that transfer is reflected on the document as being 2009. The two letters from the Ministry of Mines and Mining Development, dated 5 July 2018, clearly state the date of registration of the transfer as 26 October 2009. So, the letters cure the deficiency appearing on the copy of the certificate in question.

What I have is a copy of the certificate, not the original.

The transfer number for the certificate in question is given in the letter which was addressed to Citizens Legal Society and Advisory Trust. It is TR 6627. That is the transfer number appearing on the copy of the Certificate of Registration after transfer tendered by the claimant. When issuing a duplicate original Certificate of Registration to a holder, the office of the Mining Commissioner obviously retains the original on file.

The Certificate of Registration is documentary evidence issued and signed by the Mining Commissioner in Harare. The letters of 5 July 2018 are pieces of documentary evidence authored by the Acting Provincial Mining Director, Mashonaland West in Chinhoyi. All three documents confirm that the claimant is the registered holder of the claim in question since 2009.

No contrary evidence was led by the judgment creditors to demonstrate that the certificate of registration was cancelled by the Mining Commissioner for whatever reason or disowned by him as being inauthentic or that the letters of 5 July 2018 contain falsehoods.

This court is not the Mining Commissioner. This court does not issue certificates of registration of mining claims. The person who must be satisfied that section 275 of the of the Mines and Minerals Act has been complied with is the Mining Commissioner. It is him, and not myself, who is under obligation to receive, peruse, and be satisfied with the documentation required before he issues a certificate of registration.

No evidence was placed before me, by the judgment creditor, to demonstrate that the certificate of registration in question was issued outside the statutory requirements.

The judgment creditor's criticism of the Board resolution to sell the mining claim to the claimant, the invoice, and the lease agreement, cannot be evidence tendered by the judgment creditor disproving the authenticity of the sale and transfer.

The courts have accepted that business persons often record their dealings in terms which perfectly make sense to them but are often wanting in clarity to the legal mind. One must therefore read commercial documents sensibly. A mere reading of a commercial document, standing alone, may not make much sense because the context of its making may not appear within the four (4) corners of the document.

This is how I have looked at the invoice, the lease agreement, and the Board resolution.

For example, the lease agreement entered into on 9 September 2015, at Ngezi Mining Area, with the tenant, Joseph Wirima, is recorded as:

“A Settlement Agreement was negotiated between Upthrow Trading (Pvt) Ltd, Maranatha Ferro Chrome (Pvt) Ltd, Amble Mining (Pvt) Ltd, Gurta AG, Glossy Investment (Pvt) Ltd and Honourable Paul Mangwana and signed in Italy on 3 October 2013. In terms of this Settlement Agreement, following the completion of the handover of the mining claims, Maranatha Ferro Chrome (Pvt) Ltd, representing Gurta AG who are the legitimate owners of the mining claims in Ngezi, do hereby offer the Lease Agreement/Arrangement for the property known as: WHITE HOUSE ROOM 3…,.”

The judgment creditor led no evidence from Joseph Wirima (the tenant), C Mutema (the witness to the lease agreement), Upthrow Trading (Pvt) Ltd, Glossy Investments (Pvt) Ltd and Honourable Paul Mangwana.

In respect of Joseph Wirima and C Mutema, there was no evidence that the lease agreement between the former and the claimant, represented by Maranatha Ferro Chrome (Pvt) Ltd, was inauthentic and not entered into on 9 September 2015 but after the attachment of the mining claim on 27 June 2018 - almost 3 years later.

Similarly, the judgment creditor adduced no evidence from Upthrow Trading (Pvt) Ltd, Glossy Investments (Pvt) Ltd and Honourable Paul Mangwana on the nature of the Settlement Agreement between these companies, Paul Mangwana, the judgment debtor, and the claimant.

(1) Smit Investments Holdings SA (Proprietary) Limited (2) Genet Mining (Proprietary) Limited v (1) The Sheriff of Zimbabwe (2) Pungwe Mining (Private) Limited SC33-18, Sheriff of Zimbabwe v Senital (Pvt) Ltd t/a Frank B Mine and Zimbabwe United Passenger Company Ltd HB233-18, and The Deputy Sheriff Marondera v Hombarume and 7 Ors HH521-18 are clear that where the claimant has made out a prima facie case that it is the owner of the attached goods the onus shifts to the judgment creditor to controvert such evidence.

Evidence can only be controverted by other evidence, not through heads of argument or oral submissions - the sole purpose of which is to endeavour to punch holes into a case which is already prima facie established.

The sale and transfer of the mining claim occurred in 2009.

This arbitral award was not yet in existence. Accordingly, there was no basis for the judgment creditor's assertions of fraudulent conduct and collusion between the claimant, the judgment debtor, and Maranatha Ferro Chrome (Pvt) Ltd.

There was no execution to defeat at the time of sale and transfer of the mining claims.

It was not even disclosed by the judgment creditor when it is that litigation in their labour case with the judgment debtor was instituted: see S v Stead 1991 (2) ZLR 54 (S); Mkombachoto v Commercial Bank of Zimbabwe Ltd and Another 2002 (1) ZLR 21 (H).

Still, on lifting the corporate petticoat of Gurta and peering behind it, I see no other exceptional circumstance justifying the same.

The judgment creditor told me, both in heads of argument and at the hearing, that, Maranatha Ferro Chrome (Pvt) Ltd, the judgment debtor, and the claimant are a single economic entity. I was therefore invited to go behind the claimant's skirt, disregard the three companies' separate corporate personalities and order execution of the mining claim, even though registered in the claimant's name, to satisfy the judgment debt owed by Amble Mining (Pvt) Ltd.

Counsel for the judgment creditor referred me to Deputy Sheriff Harare v Trinpac Investments (Pvt) Ltd and Anor HH121-11.

That case is distinguishable.

Here, there is no evidence at all as to who the shareholders of the claimant are. There is completely no evidence to prove that they are the same persons as the shareholders of the judgment debtor and its holding company, Maranatha Ferro Chrome (Pvt) Ltd. Neither is there any evidence that the directorship of the claimant is the same as that of the other two companies.

The bare allegation that the claimant is a 'baby' of the “Ghezzi family” was not substantiated. I therefore refuse to interfere with the claimant's corporate regalia: see Sibanda v JLF (Pvt) Ltd & Anor SC117-04.

HAS CLAIMANT PROVED ITS CASE ON A BALANCE OF PROBABILITIES?

In The Sheriff for Zimbabwe v Mahachi and Leomarch Engineering HMA34-18, MAFUSIRE J stated that there are no hard and fast rules on how a claimant goes about proving ownership of attached goods.

I fully subscribe to that view.

Examples abound, both at law and in life experiences. It is not every case where ownership is proved through production of receipts and agreements of sale. Also, in encouraging pupils to think outside the box, teachers would sometimes say, even after John had answered a question:

“Yes, there are many ways of killing a cat, Mary what is the answer?”

The route does not always matter. What is important is a safe journey.

For example, it is a fact notorious for judicial notice to be taken of that people in most African countries would, if travelling by air, have to board a plane to London or Paris first before connecting to a flight back to their African destinations. That does not make London or Paris the destination.

Olivia Charamba and The Fishers of Men realised this when they sang:

“Kana uchienda
Uchienda
Kwaunoda
Kwaunoda
Kune nzira
Kune nzira
Dzakawanda
Dzakawanda
…,..
Nzira dzekuenda kuGweru:
Kune Kadoma;
Chivhumudhara;
…,.”

These Shona lyrics simply mean that a traveller has a choice on the route to take to a destination. The gospel musician and her band then gave the example of the availability of two options when travelling to the Midlands Province city of Gweru: either through the Mashonaland West town of Kadoma or through the Mashonaland East town of Chivhu (also called “Chivhumudhara” or “The Republic of Enkeldorn”).

The judgment creditors were rigid.

They were of the view that ownership could only be proven by the claimant producing the documentation listed in section 275 of the Mines and Minerals Act [Chapter 21:05]. That was too narrow a view of the matter.

They appear not to have been alive to the law relating to shifting of the onus as laid down by the Supreme Court and applied in numerous decisions of this court. The result is that they did not realize that they had no defence to the claim right from the word go.

Full instructions appear not to have been taken and exhaustive legal research seems not to have been conducted by their legal practitioners.

On perusal of the claimant's initial affidavit and annexures laying claim to the property, the legal practitioners should have gone to the office of the Mining Commissioner in Harare to peruse the Ministry of Mines and Mining Development's file relating to the claim in question rather than being content in seeing permanent and unshifting onus on the shoulders of a party who did not bear the same.

The legal practitioners should thereafter have fully researched on the law relating to interpleader matters.

The law on interpleader claims is simple and readily available both in the textbooks and decided cases of the Supreme Court and this court. In the course of this judgment, I referred to some of those decisions. I also referred to the words of wisdom from two legal practitioners: the first an academic and the other one of the finest court lawyers that this nation has produced.

My view is that the two sets of legal practitioners who represented the judgment creditor in this matter, at different stages, should clearly have done better.

COSTS

The claim should never have been opposed. At the very least, the judgment creditor's legal practitioners should have gathered sufficient facts and evidence, both oral and documentary, for purposes of properly advising their clients.

I add that considering that the judgment creditors were a staggering 99 persons, the importance of the matter, its effect on them, and the monetary value of the arbitral award, a thorough job needed to be done to advance their interests rather than exposing them to further unwarranted financial prejudice in the form of legal fees and costs. If properly advised, the judgment creditors may not have opposed this claim.

It is for these reasons that I exercise my discretion on costs. I do not order punitive costs. The fault in defending the claim, as I have found, lies elsewhere.

ORDER

In the result, the following order shall issue:

1. The claimant's claim to all the immovable property which was placed under attachment in execution of judgment in HC5852/17 be and is hereby granted.

2. All the mining claims attached in terms of the letter written to the Provincial Mining Director, Mashonaland West, dated 26 June 2018, are declared not executable.

3. The judgment creditors shall jointly and severally, the one paying the others to be absolved, pay the claimant and the applicant's costs of suit.

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

This matter was initiated as a court application by the present plaintiff. Upon hearing argument, the court ordered that the papers filed in the court application stand as pleadings and the matter proceed to discovery in the normal way.

The papers show that, at the pre-trial conference stage, four issues were identified for trial. These are:

(a) Whether or not the respondent obtained possession of the Toyota Hi-lux motor vehicle registration number 424-562E from the applicant without authority or permission;

(b) Whether or not the respondent promised to return this motor vehicle to the applicant by delivering it to the offices of the Zimbabwe Mining Development Corporation as alleged on behalf of the applicant;

(c) Whether or not there was a sale of the Toyota Hilux motor vehicle, and, if so, whether the sale was to the respondent or to a company called Hoeramar Enterprises;

(d) Whether the aforesaid Toyota Hilux motor vehicle is no longer in the possession of the defendant;

(e) The value of the aforesaid Toyota Hilux motor vehicle at the time the defendant obtained possession of it.

At the commencement of trial, the respondent took four points in limine;

(i) The first point was whether the Chairperson of the Zimbabwe Mining Development Corporation (“ZMDC”) Board of Directors has the authority or jurisdiction to act on her own initiative without a board resolution to set up a commission of inquiry to look at the affairs of a separate and different entity altogether.

(ii) The second point was a challenge to the authority by virtue of which the present action was launched, since, according to the respondent, the applicant had not authorised the launching of the inquiry and therefore there was no authority for the launching of these proceedings.

(iii) Thirdly, the respondent queried the powers of a commission of inquiry to operate outside its terms of reference. Since the terms of reference did not empower the commission of inquiry to delve into the disposal of motor vehicles, then, if it considered that as within its terms of reference, that commission of inquiry acted ultra vires its terms of reference.

(iv) Finally, the respondent took the point, that, where correspondence had been ruled “without prejudice” it cannot be relied upon in subsequent proceedings.

After hearing the respondent as well as counsel for the plaintiff on the preliminary points, I directed that the matter proceeded to trial and my ruling on these points will be made apparent in the judgment.

I wish now to set out the reasons for the order which I gave then....,.

Trial proceeded on the basis that the supporting and answering affidavit filed in the court application stood as pleadings. Dominic Mubaiwa, who deposed to same, adopted these as his evidence-in-chief before he was cross-examined.

In these, he points out that he is the Group Chief Executive Officer of ZMDC. The plaintiff company is a subsidiary of ZMDC.

As the Group Chief Executive Officer of the ZMDC, he is a non-executive director and member of the Board at the plaintiff company.

The executive director at the plaintiff is appointed by the ZMDC board as the holding company. In that capacity he is authorised to depose to the affidavits in connection with the present matter.

The records of the applicant show that the defendant (respondent) obtained possession of a Toyota Hilux motor vehicle, registration number 424-562E, from the plaintiff (applicant) when he was the non-executive Chairman of the applicant without permission or authority.

Sometime in December 2004, the respondent had promised, orally and in writing, to return this motor vehicle by delivering it to the offices of ZMDC in Harare.

By the time the court application was launched, he had not done so, pleading that the motor vehicle was now a non-runner and needed tyres and that he had no resources to tow it to Harare.

The respondent has no excuse for not handing over the motor vehicle.

The applicant therefore seeks an order compelling him to restore the motor vehicle into its possession.

Dominic Mubaiwa particularly relied on correspondence addressed to the respondent by the applicant's legal practitioners dated 24 December 2004 in which the following appears;

“We confirm having discussed the entire matter with you and indicated to you that in our view the application is without merit, but, more importantly, that, any public debate of the contents of the application and the response of our clients to it, particularly at the High Court, would be most damaging to your reputation and is to be avoided. With this in mind we have discussed with yourself the settlement of this matter on the following basis:

“1. That you will withdraw your Court Application, and, if such a withdrawal occurs before our clients file any opposing papers, we will advise our clients not to seek any costs from yourself;

2. That you will undertake to pay repairs for the T35 truck, which, as you have accepted, was utilised by yourself at least on one occasion without the permission of Mhangura Copper Mines Limited. In this connection, you have queried the estimated cost of repairs, but, of course, the quantum will only be known once the repairs are completed. If you are unhappy with the amount then a court will have to settle any dispute arising therefrom.

3. That you will return the Toyota Hilux motor vehicle in the view of our client was acquired by yourself, as opposed to a company in which you have an interest, irregularly and without the observance of any appropriate tender system. In this connection, you have stated that you are prepared to return the motor vehicle in question but have carried out certain repairs to it and had vehicle parts affixed which you would like to remove. As indicated to you, Mhangura Copper Mines remains the owner of this motor vehicle and it must be returned to it either in the condition in which it was when you removed it (which we believe will be almost impossible) or its current condition and then be examined by an independent repairer to determine the extent to which its value has been enhanced by any repair work undertaken by you or on your behalf.”

Subsequent to this correspondence, the applicant's legal practitioner penned yet another communication to the respondent on 7 January 2005 in the following terms:

“We refer to the above matter and to our letter to you of 24th December 2004 and also to our telephone discussion this morning.

We confirm that you have now agreed to deliver to the offices of the Zimbabwe Mining Development Corporation in Harare the Toyota Hilux motor vehicle, registration number 424-562E, in its current condition. Delivery will be effected no later than Wednesday the 12th January 2005. Our client will then have it examined by an independent third party in order to determine the issues previously discussed with you.”

The respondent replied to these two letters by way of a letter dated 12th January 2005.

In it, he raises the point that..., the only outstanding issue between him and the applicant was the proof of payment for the Hilux.

Since he can prove that he paid for the same, therefore, ownership passed to him. It no longer belongs to the applicant....,.

I am not persuaded by the claim that his company had lawfully acquired it. Had this been the case then all the more reason why he should have stated his position to be so from the outset.

In his own words, he had only to clear the outstanding issue of proving that he had paid for it.

He failed to do this in the boardroom, to Mr Mahlangu, and the day he appeared in court.

His claim that there was an admission that there had been payment cannot be believed....,.

Dominic Mubaiwa demonstrated, that, the person had released the motor vehicle on the assumption that there had been payment at Head Office in Harare. There was no such payment.

The respondent, being a senior legal practitioner, knows how to prove issues in dispute.

HH521-18 : DEPUTY SHERIFF MARONDERA vs ESTHER HOMBARUME and VIOLET MUNJARANJI and EPHISON NDAHWI and SHAKI MUSEVE and NOMUHLE BANGANI and COOPER SMIT and TIANZE TOBACCO PL and LAWRENCE KATSIRU
Ruled By: CHITAPI J

In this application, the applicant attached in execution certain movable goods listed in annexure B to the application. The goods were attached for execution to satisfy a judgment of this court in the case Tian Ze Tobacco Company (Pvt) Ltd v Lawrence Katsiru Case No. HC2100/14.

The two parties are the judgment creditor and debtor respectively.

In terms thereof, the judgment creditor caused the issue of a writ of execution to recover an amount in excess of $224,003=16 and execution costs. The applicant, in executing on the writ, proceeded to the judgment debtor's farm called Cambridge Farm in Marondera and attached a number of vehicles and machinery on 24 June 2014.

Following the attachment, the applicant received claims to the property by the claimants.

This development culminated in the applicant filing this interpleader application on 4 August 2014. The applicant wishes that the court determines the validity of the claims made; his interest being the recovery of his costs.

The applicant's legal practitioner had no submissions other than to abide by his papers whilst emphasizing that he does not collude with any of the claimants.

Inter pleader proceedings are very common in that following an attachment of property to satisfy a judgment of the court, the Sheriff, or his deputy, receives claims from third parties alleging ownership of attached property and seeking its removal from attachment arguing that they are not party to the proceedings.

In the fluid, lucid and didactic judgment in The Sheriff of the High Court v Munyaradzi Tutini Majoni & 3 Ors HH689-15 MAFUSIRE J explained what inter-pleader proceedings entail, the incidence of proof, and the court's approach.

I embrace what the learned judge indicated therein and note in particular that the claimant bears the onus to prove ownership of the goods which the claimant claims.

I would add that the onus is not limited to proving ownership as such. The position should be stated as that the claimant bears the onus to prove, on a balance of probabilities, that, the attached goods whose removal from execution is sought are not legally susceptible to execution. This could be by reason of ownership by the claimant or such other good and legally recognizable reason why the attached goods should not be executed upon.

In casu, I will briefly detail the individual claimant's claims and the facts advanced to support the exclusion and release from attachment of property as claimed:

1st Claimant – Esther Hombarume

She states, in her affidavit, that, she is the wife of the claimant who is the owner of a motor vehicle, registration AAR 5608, a Honda Accord, attached by the applicant on 24 June 2014. She claims to be the daughter of the judgment debtor and that she left the vehicle at her father's farm for safekeeping as she resides at Little Zim Farm. She attached the vehicle registration book “as proof of ownership of the vehicle.” She claimed to have purchased the vehicle from Japan in 2005.

The judgment creditor opposes the claim on several grounds:

It raises the issue of the claimant's locus standi in that none of her property was attached and that she cannot file a claim on behalf of another.

I note that the vehicle registration book is in the name of Tichaona Hombarume. The claimant states that the registered owner is her husband. There has been no proof of such relationship presented to court and worse still there is no reason given as to why the registered owner did not personally lay claim to the vehicle.

Whilst the claimant purports to have purchased the vehicle from Japan, no documents or other proof of purchase have been placed before the court. Such documentation or acceptable proof of purchase would have constituted the best evidence of ownership because a vehicle registration does not constitute proof of legal ownership. The registration book itself is endorsed that the registration book is not proof of legal ownership.

The claimant did not state as to why it was necessary to have the vehicle kept at the judgment debtor's farm other than to state that it was for safe keeping in her absence. She did not state when she was absent, from where, and where she was.

This claimant's claim is made up of bold allegations which do not amount to acceptable proof of ownership nor do they provide other legally cognizable reason to justify the release of the vehicle from attachment.

The claim must fail....,.

Third claimant: Ephison Simbarashe Ndawi

He lays claim to a Mitsubishi Pajero motor vehicle registration no. AAT 4597. He claims that the judgment debtor was his “social and religious associate.” He left the vehicle for safekeeping at the judgment debtor's farm whilst he looked for prospective purchasers for the vehicle.

The judgment creditor argued that the judgment debtor was not a security company where cars could be lodged for safekeeping. It argued that the submission that the vehicle was on sale was unlikely. The judgment creditor questioned why the vehicle was not at the address shown on the registration book. It surmised that the vehicle had probably been sold to the judgment debtor who did not change ownership.

In my view, this claimant's claim is not far-fetched.

The claimant did not just attach the registration book as proof of legal ownership. He attached the official motor vehicle extract from the Central Vehicle Registry. It gives details of the importation of the vehicle by the claimant and proof of payment of import duty and police clearances.

In such a situation, the onus to prove that the third claimant is not the owner of the vehicle must shift to the judgment creditor.

Where the claimant places before the court acceptable evidence of ownership or of some other legally recognisable ground warranting release of the attached property from execution, the onus shifts on the party who impugns such evidence to controvert it.

In respect of the third claimant's claim, and evidence placed before the court, the judgement creditor has not placed contrary evidence.

The third claimant's claim must succeed....,.

Fourth claimant - Shaki Museve: Fifth claimant - Nomuhle Bangani: and Sixth claimant - Cooper Smit

I deal with the three claims as combined because the three make unsubstantiated claims to attached property whose release they claim.

In the case of the fourth claimant, he claims to be owner of a case tractor which was attached. He states that the judgment debtor is a neighbour with whom they assist each other with farming equipment. In the same affidavit he refers to a motor vehicle described in “Annexure D” described as the official registration book of the same. The said annexure D was however not attached. The affidavit is disjointed in content. It refers to a tractor, then to tractors and a motor vehicle. There is no interactive drafting of his depositions. One cannot tell exactly what he claims should not be executed upon nor the basis thereof.

In his submissions, the legal practitioner for the third claimant said that paragraph 3 of the claimant's affidavit was done in error. The paragraph refers to a motor vehicle.

It is difficult to understand how a deposition made in an affidavit can be said to have been done in error.

Be that as it may, the fourth claimant's bald assertions to ownership of the tractor which he did not fully detail, and trailers, again not detailed, is insufficient to prove any cognizable legal ground to interfere and stop the attachment and execution.

As regards the fifth claimant, she or he makes a bold assertion that he or she is the owner of a 24 Disk (sic) harrow which was attached. The disk harrow is said to have been in the custody of the judgment debtor for use in his farming activities because the two are neighbours. No further details of the claim to ownership are given nor does the fifth claimant even indicate how he or she is a neighbour.

The position of the sixth claimant is the same as with the fifth claimant. He makes bold assertions that he is the owner of two (2) steel trailers which were attached. He claims to be a neighbour of the judgment debtor and that the two assist each other with farming equipment. No evidence of ownership of the trailers was provided. The sixth claimant did not even give details of how he is a neighbour or when the trailers were taken delivery of by the judgment debtor.

In cases where claimants make bald assertions to ownership of attached property, no dispute of fact can be said to arise such as would require resolution.

When a party simply opens his or her mouth to say “I am the owner of that item of property” without placing any evidence tending to prove ownership, even a prima facie case of ownership cannot be said to have been proved.

Courts decide cases on evidence placed before them.

Bold assertions do not amount to the type of evidence on which a case can be determined because a bald assertion can be made by anyone and it remains that.

The claims by the fourth, fifth, and sixth claimants were not proven.

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD
Ruled By: MTSHIYA J

In this consolidated action, each plaintiff claims payment of salary arrears and allowances from the defendant.On 22 January 2013, KUDYA J, who dealt with the pre-trial conference relating to the parties herein issued the following order:“IT ORDERED THAT:1. The parties have failed to reach a settlement.2. The present matter, HC315/12, ...

In this consolidated action, each plaintiff claims payment of salary arrears and allowances from the defendant.

On 22 January 2013, KUDYA J, who dealt with the pre-trial conference relating to the parties herein issued the following order:

“IT ORDERED THAT:

1. The parties have failed to reach a settlement.

2. The present matter, HC315/12, be and is hereby consolidated with the case of Sameer Khan v Air Zimbabwe Holdings (Pvt) Ltd HC316/12 and the Matter of Gerald Chiweshe v Air Zimbabwe Holdings (Pvt) Ltd HC1786/12 for trial.

3. The present matter is referred to trial on the basis of the Joint Pre-Trial Conference Memorandum dated 4 June 2012.”

The Joint PreTrial Conference Minute signed by the parties in HC316/12 on 4 June 2012 was endorsed by HUNGWE J on 24 October 2012. It was, however, formally filed on 5 June 2012. There is therefore no doubt that the memorandum referred to in KUDYA J's order is the one filed on 5 June 2012. The said memorandum lists the issued for determination in this trial as follows:

“1.1 Whether or not this Honourable Court has jurisdiction to deal with the plaintiff's claims.

1.2 Whether or not the plaintiff is collectively bound by the arbitration award which was issued in November 2011.

1.3 Whether or not any rights accrue in favour of the plaintiff in terms of his contract of employment.

1.4 Whether or not the schedule of the alleged sums due is an authentic document reflecting defendant's indebtedness to the plaintiff.

1.5 Whether or not the failure to settle the plaintiff's salaries by the defendant is attributed to supervening impossibility.

1.6 Whether the sum claimed or any sum is due to plaintiff by defendant.”

The record shows that the award referred to in 1.2 above was actually issued on 5 October 2011. The effect of consolidation is that the above issues are the ones to be determined with respect to each of the three plaintiffs in this matter.

The determination herein shall follow the manner in which the parties' legal practitioners have put forward their arguments with respect to each plaintiff. Upon dealing with the preliminary issues, counsel for the parties then proceeded to argue the case of each plaintiff in the following order:

(a) Gerald Chiweshe - 1st Plaintiff.

(b) Sameer Khan - 2nd Plaintiff.

(c) Bruce Thomas - 3rd Plaintiff.

I shall therefore be guided by the same arrangement when dealing with each plaintiff.

The common factor in this case is that each one of the plaintiffs was at one time employed by the defendant as a pilot, with the highest rank, where applicable, being that of captain. The plaintiffs, prior, to leaving the employ of the defendant, were each owed outstanding salaries and allowances. They then, on the different dates indicated against their names here-below, issued summons for the amounts also indicated against their names:

I shall now proceed to deal with the preliminary issues raised by the defendant.

(i)...,.

(ii) The next preliminary issue raised by the defendant is that the issues before the court were determined through arbitration when it was ruled that an agreement entered between the plaintiffs and the defendant, in 2003, was null and void.

However, the plaintiffs take the point that their contracts of employment were not subject to the said agreement of 2003 and that they were not party to the arbitral award of 5 October 2011.

They argue, further, that the arbitral award had nothing to do with the payment of their arrear salaries and allowances.

Apart from the arbitral award, the defendant did not place before the court the 2003 agreement which it said was arbitrated upon. There was no evidence to prove that the plaintiffs were parties to that agreement and that their salaries were indeed governed by that agreement.

Each of the plaintiffs' testified that they had individually negotiated their own salaries upon which the salary arrears and allowances are now claimed. It is accepted, by the defendant, that, there were salary arrears and allowances in respect of each plaintiff and that there was never any specific arbitration relating to each plaintiff's salary arrears and allowances.

In short, the evidence before the court clearly distances the plaintiffs from both the agreement of 2003 and the arbitral award of 5 October 2011.

It is also important to note that the arbitral award quoted above is based on the following terms of reference:

“(a) To determine the appropriate salaries and allowances that must be paid to the employees (respondent).

(b) To determine whether or not it is proper for the employer (applicant) to propose new contracts before fulfilling obligations of the existing contract.

(c) To determine appropriate remedy under the circumstances.”

The above terms of reference, in my view, explain why the award makes no reference to the validity of the unknown 2003 agreement.

Furthermore, the operative part of the arbitral award that the defendant wants to rely on, apart from having been granted after all the plaintiffs' salaries were already in arrears, reads as follows:

“1. That the application be and is hereby allowed.

2. That the respondent continues getting the National Employment Council bench-marked basic salaries.

3. That the applicant pays the respondent 45 per cent of the internationally applied regime over and above respondent's salaries.

4. That the respondent receives allowances premised on productivity based formulation whereby they are paid per hours flown.

5. That the applicant shall meet all the arbitration costs.”

Clearly, the above award makes no reference to the so-called 2003 agreement that the respondent says was declared null and void.

Without having seen the said 2003 agreement, it is near impossible to establish a link between it and the plaintiffs' contracts of employment.

The fact that the Zimbabwe Flight Crew Association (the Association) might have influenced the salaries of its members does not necessarily make them a party to the individual employment contracts between the defendant and the association's members or the plaintiffs.

I hold the view that a finding that the award has nothing to do with the plaintiffs' contracts of employment entails that evidence given by the defendant, mainly through Mrs Mutsinze, relating to the arbitral award, should be totally ignored because it bears no relevance to the plaintiffs' contracts of employment and their claims.

In view of the foregoing, I am also unable to uphold the second preliminary issue (i.e res judicata) raised by the defendant.

View Appeal
HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR)
Ruled By: DUBE-BANDA J

This is an interpleader application and the Sheriff of Zimbabwe is the applicant.

The facts of this case are interwoven and intricate. It is therefore important that I give a detailed background of the facts preceding this application.

For ease of reference, and where the context allows, I will refer to the following parties by their names, i.e. BM Graphics (Pvt) Ltd (judgment debtor); Welli-Will Industries (Pvt) Ltd (claimant); Jon's Engineering (Private) Limited (owner of Stand Number 499 Goodwin Road, Willowvale, Harare) and Melvin Imbayago (judgment creditor).

For a clear understanding and appreciation of the factual matrix in this case, it is significant to quote in verbatim the court order granted by this court on 21 August 2017 (main judgment). This court granted a consent order worded as follows:

“IN THE HIGH COURT OF ZIMBABWE CASE NO. HC1660/14 HELD AT HARARE In the matter between:

BM GRAFICS PRIVATE LIMITED PLAINTIFF And MELVERN IMBAYAGO 1st DEFENDANT PIPE CENTRE 2ND DEFENDANT

Harare, 21st day of August, 2017

Before the Honourable Ms Justice Charewa

Mr B Diza for the plaintiff
Mrs A Dururu for the defendants

Whereupon, after reading documents filed of record and hearing counsel IT IS ORDERED BY CONSENT THAT:

1. The Registrar of the High Court be and is hereby directed, forthwith, to appoint a realtor firm to conduct a valuation of the 20,000 square meters piece of land and the developments thereon which form subject of litigation on property known as Stand 499 Willowvale, Harare.

2. The realtor firm so appointed in terms of paragraph 1 shall undertake the valuation exercise, taking into account the market values, and produce a sworn valuation report within seven days of his appointment which valuation report shall be filed with the Registrar of the High Court.

3. The valuation of the 2000 square metres and improvements thereon arrived at in terms of paragraph 2 above shall be final and payable to the defendants by plaintiff within seven days of its production.

4. The defendants and all those claiming occupation through them shall vacate the property known as Stand No.499 Willowvale, Harare within thirty days of this order or within 30 days of full payment, whichever occurs first.

5. The valuation costs shall be paid in equal proportion by both parties.

6. Each party shall bear its own costs.”

Notwithstanding the fact that BM Graphics (Pvt) Ltd was the plaintiff in the main action, it is the judgment debtor in these proceedings. Malvern Imbayago, who was the first defendant in the main action, is the judgement creditor in this case.

BM Graphics failed to pay for the value of the 2000 square metres piece of land in terms of paragraph 3 of the main judgment, and, consequently, Malvern Imbayago caused a writ of execution calling for payment in the sum of US155,000 to be issued and served on BM Graphics.

In executing the writ, the Sheriff proceeded to Stand No.499 Goodwin Road, Willowvale, Harare (the Stand) and placed under judicial attachment an assortment of property which he believed to be the property of BM Graphics.

This is the property claimed by Welli-Will Industries (Pvt) Ltd, and which is subject of these proceedings.

One Wilbert Makonese, a director of Welli-Will Industries deposed to an affidavit on 16 July 2019 alleging that all the goods placed under judicial attachment belonged to the claimant, and not the judgment debtor.

The said affidavit was submitted to the applicant, prompting him to institute these interpleader proceedings in terms of Order 30 of the High Court Rules, 1971 (the Rules).

The Law and the Facts

The law on inter-pleader applications is settled in this jurisdiction. The onus is on the claimant to prove ownership of the property so claimed: see the case of Phillips and Anor v Ameen and Anor HH108-89; Bernstein v Visser 1934 CPD 270…,; and Deputy Sheriff, Marondera v Travese (Pvt) Ltd and Anor HH11-03.

In the case of Bruce N.O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68…, it was succinctly stated, that, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership. The claimant bears the onus to prove, on a balance of probabilities, that it owns the property the Sheriff attached: see Deputy Sheriff Marondera v Traverse Investments (Pvt) Ltd and Another HH11-03.

In Sheriff of the High Court, Harare v Smit Investments Holdings SA (Proprietary) Limited t/a Geeko Projects and Others HH668-17 DUBE J…, said:

“In Ebrahim v Deputy Sheriff, Durban and Anor 1961 (4) SA 263 where the court made the following remarks on a claimant's onus. The test whether a claimant has discharged the onus of proving his ownership to movable property…, is whether, in the result, the probabilities are balanced in his favour. The strength of the evidence he has to produce to succeed depends upon the circumstances of the particular case…,. Apart from other considerations, the court would no doubt, in such case, require the claimant to produce clear and satisfactory proof of his ownership.”

The high watermark of the claimant's case is that Number 499 Goodwin Road, Willowvale, Harare, where the Sheriff executed the writ, is its Stand.

It says the judgment creditor had no business instructing the Sheriff to attach property belonging to a third party in a bid to satisfy a judgment obtained against the judgment debtor.

It says the Stand was purchased by the claimant on 28 October 2016.

A copy of the agreement of sale shows that BM Graphics (Private) Limited was the registered owner of two ordinary paid up shares in Jon's Engineering (Private) Limited. It sold its shares to the claimant, which then now becomes the registered owner of the two fully paid up shares in Jon's Engineering.

Jon's Engineering is the owner of Stand Number 499 Goodwin Road, Willowvale, Harare.

It is argued, that, since the claimant is the sole shareholder in Jon's Engineering, it is then the owner of the Stand.

The argument culminates in that since the writ was executed at the Stand, the property attached was in the possession of the claimant. It is then submitted, that, since the attached property was in the possession of the claimant, the onus is on the judgment creditor to prove, that, notwithstanding possession, the attached property belongs to the judgment debtor....,.

The claimant bears the onus to prove ownership of the property so claimed. The claimant must set out facts and allegations which constitute proof of ownership.

There is no aorta of evidence to show that the items of property subject to these proceedings belongs to Welli-Will Industries, the claimant.

I invited counsel for the claimant to make submissions on the ownership of individual items of property attached by the Sheriff; he declined and insisted that the claimant, by owning the Stand from which the writ of execution was executed, owns the items of the property attached therein....,.

I am of the view..., that, the claimant has not discharged the onus to prove its title to the attached property.

A litigant can only discharge an onus by placing sufficient evidence before the court for the purposes of persuading the court to find in its favour. It does not matter how many law reports and books a litigant carries to court - without evidence the onus cannot be discharged.

Onus is not discharged by legal submissions, but by evidence and evidence alone: see ZEFFERTT DT and PAIZES AP, The South Africa Law of Evidence (LexisNexis 2009)…, and Jennifer Nan Brooker v Richard Mudhanda and the Registrar of Deeds; Adrienne Staley Pierce v Richard Mudhanda and the Registrar of Deeds SC05-18.

The seat of the onus is decisive in this case: the claimant has not proved ownership of the property claimed. I therefore order as follows:

1. The claimant's claim to all the property which was listed in the Notice of Seizure and Attachment dated 15 July 2019, which was placed under attachment in execution of the order in case number HC1660/14 be and is hereby dismissed.

2. The above mentioned property attached in terms of the Notices of Seizure and Attachment dated 15 July 2019 issued by the applicant is hereby declared executable.

3. The claimant is to pay the judgment creditor's and applicant's costs.

SC77-17 : JULIANA SABARAUTA vs LOCAL AUTHORITIES PENSION FUND and THE SHERIFF
Ruled By: GUVAVA JA, UCHENA JA and ZIYAMBI AJA

The appellant appealed to this court against the decision of the High Court. After reading the record and hearing submissions from counsel for the parties, we dismissed the appeal with costs. We indicated that reasons for judgment would follow in due course. These are they.FACTUAL BACKGROUNDThe appellant was a director ...

FACTUAL BACKGROUND

The appellant was a director of a company called Plant Haven (Private) Limited (hereinafter referred to as Plant Haven). The appellant resides at No.5 Sir Herbert Taylor Drive, Belvedere in Harare.

The first respondent was Plant Haven's landlord in terms of a lease agreement. Upon breach of that lease agreement, the first respondent obtained judgment, in HC2584/12, against Plant Heaven and one Mr Mantozo, for eviction, arrear rentals, holding over damages, interest, and costs.

On vacating the first respondent's premises, in terms of that judgement, Plant Haven relocated to the appellant's residence at No.5 Sir Herbert Taylor Drive Belvedere, Harare.

On 9 October 2015, the second respondent, acting on behalf of the first respondent, attached a motor vehicle at the appellant's residence for the satisfaction of a debt owed to the first respondent by Plant Haven.

The second respondent instituted interpleader proceedings in the court a quo because the appellant was claiming ownership of the motor vehicle he had attached at her residence.

The basis of her claim was that the motor vehicle was registered in her name, and was therefore hers. Other than the assertions that the vehicle was hers and the registration book, which she argued to be proof of ownership, no evidence was adduced in her affidavits before the court a quo, to show when, where, and how she acquired the vehicle.

When the motor vehicle was attached, Messrs T.K Hove, who were Plant Haven's legal practitioners, wrote to the second respondent as follows:

“Your office attached our client's property in terms of a writ of execution for the capital sum of US5,386=31.”

The letter is headed “Re: Local Authorities Pension Fund v Plant Haven (Private) Limited Case No. HC2584/12.”

There can therefore be no doubt that T. K. Hove Legal Practitioners were raising issues with the Sheriff on behalf of the judgment debtor as the content of the letter confirms their mandate.

The High Court consequently found that the appellant failed to prove ownership of the motor vehicle in question on a balance of probabilities, and the appellant, aggrieved by that finding, appealed to this court on the following grounds:

1. The court a quo grossly misdirected itself in finding that the judgment debtor had relocated to the appellant's premises, a fact which was not borne by the papers.

2. As a result of the finding in (1), the court a quo grossly misdirected itself in concluding that the property belonged to the judgement debtor.

3. The court a quo grossly misdirected itself in concluding that possession of the vehicle by the appellant, at the time of attachment, could not weigh in favour of the appellant's ownership of the motor vehicle.

4. The court a quo erred at law in concluding that the vehicle's registration book did not form prima facie proof of ownership.

5. The court a quo erred in holding the appellant liable to satisfy the debts of the judgment debtor when she was not a party to the judgment in HC2584/12.

From the facts and grounds of appeal, it is clear that the sole issue for determination is whether or not the appellant was able to prove ownership of the motor vehicle on a balance of probabilities.

Counsel for the appellant submitted that ownership was proved on a balance of probabilities because the appellant was in possession of the motor vehicle, which was registered in her name, when it was attached at her residence.

She contends, that, by failing to accept these two facts, the court a quo erred in coming to the conclusion it did.

Relying on the argument that the motor vehicle was in the appellant's possession when it was attached, counsel for the appellant drew the court's attention to the fact, that, possession, at the time of attachment, raises a presumption that one owns the property in dispute.

She submitted that ownership of the motor vehicle was proved by the registration book which showed that the motor vehicle was registered in her name. She argued that a vehicle registration book issued in the name of the holder thereof constitutes prima facie proof of ownership such that once it is produced the onus to prove otherwise rests on the party contending otherwise. In support of this argument, counsel for the appellant relied on the case of Deputy Sheriff, Marondera v Traverse Investments (Pvt) Ltd & Anor HH11-03 where the court held that;

“In respect of the said two (2) vehicles, the first claimant produced vehicle registration books which were obtained in April and May 2000 - way before these proceedings were contemplated. Proof of registration of the said vehicles in the first claimant's name, is, in the court's view, prima facie evidence of ownership. The onus then shifted to the second claimant to try to disprove the first claimant's prima facie entitlement to the said vehicles.”

During argument, counsel for the appellant however conceded that a registration book is not conclusive proof of ownership but merely creates a presumption of ownership of the vehicle.

On the basis of the above, counsel for the appellant submitted that the court a quo erred in concluding that the appellant failed to prove ownership of the motor vehicle on a balance of probabilities when it was clear that the motor vehicle was registered in her name and had been attached while in her possession.

Counsel for the first respondent submitted, that, the court a quo correctly found that the appellant failed to prove ownership on a balance of probabilities.

He submitted that a registration book, on its own, cannot be proof of ownership of a motor vehicle. He relied on the cases of Sheriff of the High Court v Mayaya & Ors HH494-15 and The Sheriff of High Court v Orimbahuru & Anor HH128-16.

Counsel for the first respondent further submitted that the purpose of a registration book, as set out in section 6 of the Vehicle Registration and Licencing Act [Chapter 13:14], is to enable a motor vehicle to be used on the road.

He further submitted that the registration book showing the motor vehicle was registered in her name was not enough to rebut the presumption that the property belonged to the judgment debtor.

In any event, emblazoned on every registration book is a warning that reads: “This registration book is not proof of legal ownership.”

It cannot therefore be relied on to prove ownership when it warns against it.

Accordingly, the court a quo correctly found that the appellant did not prove ownership on a balance of probabilities in the light of a competing claim to ownership by Plant Haven which was also in possession of the motor vehicle when it was attached.

Interpleader proceedings are instituted by the Sheriff in respect of property attached by him when a third party claims ownership of that property.

In such proceedings, it is necessary for the party claiming the attached property to prove ownership by clear and satisfactory evidence. In The Sheriff of the High Court v Mayaya & Ors HH494-15, the court held that;

“In proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership. The claimant must prove, on a balance of probabilities, that the property is his or hers: Bruce N.O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68 (R) at 70C-E.”

In that case, commenting of reliance on a registration book to prove ownership, the court said:

“It is therefore frivolous to argue that because the registration book is not in the name of the first claimant therefore he is not the owner of the motor vehicle. A registration book, on its own, is not proof of legal ownership. This is even endorsed on registration books.”

In the case of The Sheriff of the High Court v Orimbahuru & Anor HH128-16 the court held that:

“It is trite, that, in interpleader applications, the claimant who seeks to assert that the property in dispute belongs to him has to produce such evidence as clear receipts and registration books for the attached vehicles: see High Court Sheriff v S Rougxin Mining P/L & Anor HH542-15.”

It is clear from the facts of this case that the appellant and Plant Haven shared the premises at which the motor vehicle was attached. The writ of attachment states that attachment took place at the appellant's residence from which the judgment debtor operated.

This means that Plant Heaven was in possession of the motor vehicle.

It is trite that where movable property is attached whilst in the possession of the judgment debtor the onus of proving ownership rests on the claimant.

In a bid to discharge the onus placed on her, the appellant produced a registration book of the motor vehicle showing that it was registered in her name.

In my view, the court a quo correctly found that the registration book did not conclusively prove that the motor vehicle belonged to the appellant. The appellant should have led evidence setting out facts as to when and how she had acquired the motor vehicle.

The court a quo's reasoning cannot be faulted. It was based on the case of Air Zimbabwe (Pvt) Ltd & Anor v Steven Nhuta & 2 Ors SC65-14…, where ZIYAMBI JA said:

“As to the ownership of property attached, it was alleged, by the appellants, that, that property belonged to Air Zimbabwe and not to Air Zimbabwe Holdings. In support of this allegation, a number of registration books were attached to the appellants' papers. The learned Judge determined this issue as follows:

'Applicants alleged that the attached assets did not belong to Air Zimbabwe Holdings against which Nhuta had a judgment, but against Air Zimbabwe which not only was not indebted to Nhuta but also the assets for which are immune from attachment. But not a shred of evidence was placed before me that the assets belonged to Air Zimbabwe.

During argument, it was contended, from the bar, that, the evidence of ownership was in the inter pleader proceedings.

It will be remembered that until I had requested a copy of the pleadings in those proceedings, none had been placed before me. No case reference number had been given. Nonetheless, having perused those papers I find that Air Zimbabwe laid claim to 20 out of 29 of the attached vehicles and to 1 motor cycle. As proof of ownership of those vehicles, some registration books were copied and attached. From those registration books about six of the vehicles were in the name of “Air Zimbabwe Corporation” which could be either or both of the applicants according to their argument that both are successor companies. The rest of the vehicles were in the name of “Air Zimbabwe” which again could mean either or both of the applicants.

At any rate, emblazoned on every registration book was a “WARNING” that read: “This registration book is not proof of legal ownership.”…,..'

I find no fault with the above reasoning. It is trite that registration books are not proof of ownership…,.”

It is not in dispute that the appellant was a director of Plant Haven (Pvt) Ltd and that when Plant Haven left the first respondent's premises it relocated to the appellant's residence, namely, No.5 Sir Herbert Taylor Drive, Belvedere, Harare.

The second respondent went to that address to attach the judgment debtor's property.

After the attachment, the appellant claimed that the motor vehicle belonged her, hence the inter-pleader proceedings a quo.

As a claimant, the appellant bore the onus of proving that the attached property did not belong to Plant Heaven (Pvt) Ltd despite its having been found in the possession of the latter. It was therefore incumbent upon the appellant to set out facts and allegations which constitute proof of ownership: see Sheriff of the High Court v Mayaya & Ors HH494-15.

This, the appellant failed to do.

Production of a registration book in her name did not, according to the judgment in Air Zimbabwe (Pvt) Ltd & Anor v Steven Nhuta & 2 Ors SC65-14, amount to proof of ownership. The appellant should have led real evidence of ownership to dispel the judgment debtor's claim of ownership of the same property.

The claim by Plant Heaven to ownership of the motor vehicle made it imperative that the appellant should have produced evidence, in the form of receipts or letters, showing how and when she bought the motor vehicle because the judgment debtor is presumed to be the owner of property attached while in his or her possession.

A claimant in interpleader proceedings who shares possession of the attached property with a judgment debtor, who also claims ownership of it, cannot successfully rely on possession for his or her claim of ownership. He or she must produce clear and conclusive proof of ownership of the attached property.

In light of the above findings, I find no fault in the court a quo's decision that the appellant failed to prove, on a balance of probabilities, that the attached property belonged to her.

HH128-16 : THE SHERIFF OF THE HIGH COURT vs ORIMBAHURU HOLDINGS (PVT) LIMITED and PEOPLES OWN SAVINGS BANK
Ruled By: FOROMA J

This is an interpleader application in which the Sheriff of the High Court, as the applicant, caused an inter-pleader notice to be issued in terms of Order 30 Rule 205A as read with Rule 207 and Rule 4C of the High Court Rules in order for the court to determine as to the validity of the claims by the claimant and the judgment creditor to the property which the applicant attached in execution.

Both the claimant and the judgement creditor filed affidavits justifying their claims to the property attached.

At the hearing of the matter, counsel representing Orimbahuru Holdings (Pvt) Ltd, the claimant, made an oral application for the admission of a supplementary affidavit which application she claimed she was making in terms of Rule 67(c).

The supplementary affidavit was meant to adduce and produce the registration books of the vehicles which formed part of the disputed property under attachment. She submitted, that, at the time the claimant's affidavit was filed the vehicle registration books were considered lost and they had only recently been located in the possession of a former auditor of the claimant recently and hence the late application for their admission.

The claimant's application was opposed by counsel for the judgement creditor who attacked it on two grounds, namely, that;

(i) The Rule under which the application was being made was not correct as it dealt with applications for summary judgment. Counsel for the judgment creditor submitted that the correct and applicable rule was Rule 235 of Order 32 as read with Rule 209, and, as no evidence had been placed before the court in support of any application for leave to file a further affidavit after the filing of an answering affidavit no proper application was before the court.

He further submitted that no reason was advanced in support of the claimant's case as to why the claimant did not apply for copies of the vehicle registration books and also no explanation was contained in the claimant's affidavit why the registration books could not be furnished in support of the claim of ownership of the vehicles in question.

(ii) Finally, counsel for the judgment creditor submitted, that, the claimant appeared to be bent on delaying the fulfilment of the judgment's claim. He argued, that, in the circumstances, the claimant had failed to prove its claim to the property in dispute and that therefore its claims must be dismissed with costs.

In reply, counsel for the claimant maintained that the application could properly be made under the quoted Rule 67 and that the proof of ownership of the vehicles was contained in the asset register schedule of the claimant's assets produced.

She was unable to make any submission on why the claimant had not explained the reasons for failing to produce prima facie evidence of ownership of the vehicles i.e the registration books.

Her attempt to explain that the registration books could not be found at the material time could not be accepted by the court as there was no such explanation in the claimant's affidavit and her explanation was tantamount to counsel leading evidence from the bar.

Counsel for the claimant persisted with her submission that the asset register which the claimant produced was adequate proof of ownership.

She also sought to submit that ownership of the items of office furniture and equipment could not be proved by means of documentary evidence of purchase because they had been purchased quite sometime ago - a submission which could not be supported by the evidence contained in the papers and that this submission was also tantamount to counsel giving evidence from the bar which she could not properly do.

After failing to make headway on the inadmissible submissions, counsel for the claimant did not abandon her resolve and simply submitted, generally, that she abides by the documents and heads filed on behalf of the claimant.

It is trite, that, in interpleader applications the claimant who seeks to assert that the property in dispute belongs to him has to produce such evidence as clear receipts and registration books for the attached vehicles: see High Court Sheriff v S Rougxin Mining P/L & Anor HH542-15 per MTSHIYA J.

See also Brucer and Anor v Parkes & Sous Rhodesia (Private) Limited 1971 (1) RLR 154.

The goods the subject of these inter pleader proceedings were attached in the judgment debtor's possession which gives rise to the presumption of their ownership by the judgment debtor: see Zandberg v Van Zyle 1910 AD…, where the court reasoned that:

“The principle, however, underlying the decision in that case appears to me quite in accord with our law, namely, that, possession of a movable raises a presumption of ownership and that therefore a claimant in an interpleader suit claiming the ownership on the ground that he has bought such movable (property) from a person whom he has allowed to retain possession of it must rebut that presumption by clear and satisfactory evidence.”

The claimant claims that the asset register was clear proof of ownership and thus satisfactory rebuttal of the presumption of ownership.

There is nothing particularly compelling about the asset register as evidence of ownership. If anything, it does not dislodge the suspicion it raised in the judgment creditor's mind who opined that anyone can create it (the asset register).

I am not satisfied that the claimant got anywhere close to discharging the onus on it to prove its claim to ownership of the attached goods especially bearing in mind the presumption of ownership raised by the fact that the goods were attached while in the control and custody of the judgement debtor: Greenfield v Beignaught & Others 1953 (3) SA 597 (R).

See also Bruce N.O. v De Roune & Anor HH397-84.

In the result, the application to produce registration books on the 11th hour, which was not properly supported by evidence as to why they could not be produced at the appropriate time i.e the filing of claimant's affidavit in support of its claim to ownership of the attached assets, is dismissed with costs.

The claimant's claim to own the goods attached by the applicant at the judgment creditor's instance has no merit and it too is dismissed with costs.

HH542-15 : THE SHERIFF OF THE HIGH COURT vs RONGXIN MINING (PRIVATE) LIMITED and FREDDY MAKUVISE
Ruled By: MTSHIYA J

This is an interpleader application.On 5 September 2014, the following consent order was granted in favour of the judgement creditor;“IT IS ORDERED BY CONSENT THAT:1. The defendants shall pay US$60,000 being 10% commission on an investment of U$600,000 brokered by the plaintiff.2. The US$60,000 shall be paid through plaintiff's legal ...

This is an interpleader application.

On 5 September 2014, the following consent order was granted in favour of the judgement creditor;

“IT IS ORDERED BY CONSENT THAT:

1. The defendants shall pay US$60,000 being 10% commission on an investment of U$600,000 brokered by the plaintiff.

2. The US$60,000 shall be paid through plaintiff's legal practitioners on or before 30 September 2014.

3. The balance of plaintiff's claim shall be referred to trial in terms of the joint pre-trial conference minute signed by the parties' legal representatives.

4. There be no order as to costs.”

On the basis of the above court order, and on the instructions of the judgment creditor, on 6 November 2014, the Sheriff of Zimbabwe attached various goods allegedly belonging to the judgement debtors who have not been cited in casu. The judgment debtors, in the consent order, were Zhuwakinyu Chazarira (first defendant) and Xingrong Hu (second defendant).

On 19 November 2014 the claimant herein advised the applicant that the attached goods belonged to it. That led to the applicant filing this inter pleader application on 5 December 2014.

The attached goods included mining equipment, vehicles, and office equipment.

As already stated, the claimant alleges that the attached goods belong to it and that it has no relationship with the judgment debtors. It states that the assets were imported into Zimbabwe following the grant to it of an investment licence by the authorities in Zimbabwe. It says the equipment was meant for its mining operations in Zimbabwe and it had legally imported it into the country as evidenced by documentation from the Zimbabwe Revenue Authority (ZIMRA).

The claimant went on to argue that, although the judgement debtors might have had an interest in the claim, the court should recognise the fact that it is a separate legal entity whose property did not belong to them (judgement debtors).

On its party, the applicant, who has no interest in the matter, stated that it would abide by the court's decision....,.

I fully agree that the property of the company should be distinguished from that of its shareholders. That is exactly what the law says.

However, the judgement creditor has, in my view, correctly argued that the claimant has failed to place before the court proof that the attached assets indeed belong to it. The assets can only be removed from attachment upon ample proof of ownership by the claimant.

There is no such proof in casu.

It is true that some assets may have been a listed on the ZIMRA receipts. That alone, however, does not tell us that the judgment debtors, whose interests on the claimant were not denied, could not have imported some of the assets through “their” company. It is not only the claimant who could import the listed items.

In any case, why would the claimant fail to produce such evidence as clear receipts and registration books for the attached vehicle(s).

It would be inappropriate for this court to allow judgment debtors to hide behind the corporate veil in order to avoid payment of personal proven and accepted debts.

The claim in casu becomes even more dismissable when the judgment creditor states;

“(ii) Immediately after the attachment of defendant's property, and on 11 November 2014, one Anqi Hu, a Director of Rongxin Company (Private) Limited, approached me and made an undertaking to repay the debt on terms. I attach as Annexure 'B' hereto her payment proposal on behalf of defendants which I then accepted. I confirm that I received the initial payment of US$8,000. Again, this proposal was not made in good faith as it made with a view to buying more time for defendants while they finds ways of defeating my claim. The present application is nothing but a way of trying to defeat my claim.

(iii) I am aware that defendants own 65% shares of Rongxin Mining Company (Private) Limited. I attach as Annexure 'C' the company's Investment License No.1870 dated 26 June 2013. The Defendants are, therefore, direct owners of the attached goods to the extent of their shareholding, which goods may well be individually owned.

3.3. The mention of Rongxin Mining Company (Private) Limited is designed to mask defendants' ownership of the goods attached.”

It is worth noting, that, it is actually the deponent to the claimant's affidavit who, on 11 November 2014, signed the following document:

“11 November 2014

I, Anqi Hu, on behalf of Zhuwankinyu Chazarira, to pay USD60,000 which is 10% of the sum of $600,000 in following terms:

12 Nov 2014 USD$ 8,000

12 Dec 2014 USD$14,000

12 Jan 2015 USD$14,000

12 Feb 2015 USD$14,000

13 Mar 2015 USD$10,000

Anqi Hu”

When the above note was written, the assets being claimed had already been attached.

Surely, by that time, Mr Anqi Hu, a Director of the claimant, must have known that wrong assets had been attached. He did not say so but went on to propose settlement terms and even made a payment of $8,000.

A week later his colleague, Mr Xingron Hu, made this claim to the applicant.

Like his colleague, Mr Anqi Hu also knew what had been imported under the investment licence. However, as at 11 November 2014, Mr Anqi Hu pretended not to know and only came up with a different position on 28 January 2015 when he swore to the affidavit herein in support of the claimant's claim.

The papers before me do not even challenge the place of execution.

This is so because that is where the judgement debtors operated from.

That also reinforces the principle that possession of a movable asset raises a presumption of ownership.

The assets were attached at the premises used by the judgment debtors. The assets, in my finding, belonged to the judgement debtors: see Bruce NO v Josiah Parkes & Sons (Rhodesia) (Pvt) Ltd and Another 1972 (1) SA 68 (R).

In view of the foregoing, I am not satisfied that the claimant has a valid claim to the attached assets.

The claimant's claim is dismissed with costs.

HHB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

In criminal proceedings, it is a salutary principle of our law that the accused person bears no onus to prove anything.

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council - Tobacco Grievance and Disciplinary Committee's (NEC GDC Committee) finding that the appellant tacitly renewed the respondents' contracts of employment.FACTUAL BACKGROUNDThe following facts are common cause. The respondents were employed by the appellant ...

FACTUAL BACKGROUND

The following facts are common cause. The respondents were employed by the appellant on two-year fixed contracts beginning 1 May 2011 to 30 April 2013.

After the expiry of their contracts of employment, they continued to work for the appellant for eleven months following which the appellant offered them new contracts with the same terms as the expired ones.

The respondents signed the new contract which effectively regularised their employment in retrospect for the period of 1 May 2013 to 30 April 2015.

Upon expiry of the contracts, on 30 April 2015, the appellant retained the respondents until 22 June 2015 on the same terms as the expired contracts. It then offered them one-year fixed term contracts. The proposed contracts had a two-months probation clause and other less favourable conditions.

The respondents rejected the appellant's offer.

The appellant terminated their contracts of employment by letter dated 7 July 2015 on the basis that the negotiations between the parties had collapsed.

Aggrieved by the termination of their employment, the respondents noted a grievance of unfair dismissal with the appellant's Works Council.

The Works Council upheld the decision by the appellant's Human Resources department to offer the appellants one year contracts after the expiry of the two year contracts. It reasoned that there was no legal impediment to the appellant replacing the expired two-year contracts with other contracts which had different terms and conditions from the expired contracts.

The Work's Council further found that the respondents suffered no prejudice as they were paid for the period they worked whilst the parties were negotiating.

Thereafter, the respondents appealed to the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC).

They submitted, that, in instances where an employer allows an employee to work after a fixed-term contract had expired, the contract is deemed to have been tacitly relocated on the same terms and conditions. Therefore, they submitted, there was no basis for the new contracts as there had been tacit renewal. They also averred, that, the alleged negotiations were inconsequential as they ensued after the tacit renewal.

In response, the appellant submitted, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) had no power to interfere with the findings of facts made by the lower tribunal unless the findings were outrageous in their defiance of logic. The appellant contended that the two-month delay in notifying the respondents of the new offer could not be inferred to mean there was tacit renewal.

It did not intend to renew the two year contracts.

The National Employment Council - Tobacco Grievance and Disciplinary Committee ruled in favour of the respondents.

It held, that, tacit relocation could be safely presumed since the appellant did not communicate its intention to change the terms of the respondents' contracts before their termination and that the respondents were engaged on the same terms and conditions as before. It accordingly ordered the reinstatement of the respondents for the unexpired period of their contracts without loss of pay and benefits or payment of their salaries and benefits up to 30 April 2017.

Aggrieved by this decision, the appellant appealed to the Labour Court (the court a quo) on the ground, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) grossly misdirected itself when it made a finding that there was a tacit renewal of the respondents' two year employment contracts simply because the appellant allowed the respondents to continue reporting for duty after the expiry of their contracts.

It argued, that, where there are clear indications that the other party did not intend to be bound by the old contract, there could not be tacit relocation of a contract that extended beyond the contractual period.

The appellant submitted, that, tacit relocation could not occur where the parties are engaged in negotiations over a new agreement. It contended that the respondents were allowed to work and were paid for the period when their new contracts were being attended to.

To the contrary, the respondents argued that there was tacit relocation in that the appellant allowed them to continue working on the same conditions from 1 May 2015 to 22 June 2015 notwithstanding that their contracts expired on 30 April 2015.

They also emphasized that the parties did not agree on a new arrangement.

The respondents further indicated that the appellant had the option of terminating their contracts of employment but allowed them to render their services and subsequently introduced unfavourable conditions. It was submitted that a finding against tacit relocation in the circumstances of the case would be contrary to social justice and fair labour standards of equity and fairness in the workplace.

DETERMINATION OF THE COURT A QUO

The court dealt with the issue of whether or not the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) erred in finding that the contracts of employment had been tacitly relocated.

In doing so, it considered the employment status of the respondents at the time their contracts were terminated. The court a quo found that there was no evidence to the effect that the new contracts were as a result of any negotiation process as no negotiations were done from 1 May to 22 June 2015.

It reasoned, that, the old contracts were tacitly relocated in that the appellant had allowed the respondents to continue working on the same terms and conditions as before, and did not communicate any intention to change the terms and conditions of the employment.

The court a quo also had regard to the precedent that the appellant did not immediately terminate or renew the respondent's contracts but allowed them to continue working, for some period, on the same terms and conditions of the expired contracts.

It reasoned, that, had the appellant not wished to be bound by the old expired contracts, it would have expressed that intention.

The court accordingly concluded, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee's decision did not constitute an outrageous defiance of logic since the facts indicated that there was tacit relocation of the two year contracts.

Aggrieved by that decision, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. Having accepted that the fixed term contracts between appellant and each of the various respondents had come to an end and that new fixed term contracts have been offered, within two months of the expiry of respondent's contracts, the court a quo erred in finding notwithstanding those agreed facts, that the old contracts had been relocated.

2. The court a quo erred in not coming to the conclusion that the negotiation that took place after the expiry of the contracts were such as negated any finding that there was an extension of the contractual relationship between the parties by the quasi-mutual assent.

3. The court a quo erred in imposing upon appellant a contract it had not concluded to prejudice the clear terms it had actually offered. (sic)

4. Respondents, having rejected the terms of the contract offered by appellant, the court a quo erred in concluding that respondents had a contract to enforce.”

SUBMISSIONS BEFORE THIS COURT

At the hearing, counsel for the appellant submitted that the court a quo asked itself the wrong question, and, ultimately, gave itself the wrong answer.

The wrong question was whether it had been shown that there had been negotiations between the parties from 1 May 2015 to 22 June 2015, and, if not, what the effect of the absence of negotiations, during that period, would be.

The court a quo's ratio was that, upon the expiry of the contract, they only engaged in negotiations after a period of six weeks: because of that silence, there was tacit relocation of the contract.

He contended, that, the real dispute between the parties was not that the respondents' contracts had been relocated but that the respondents were aggrieved by the terms of the new contracts.

Counsel for the appellant submitted, that, the respondents admitted that there were negotiations and that they did not refuse to sign the one-year contracts but were looking forward to working under the old two-year contracts.

Counsel for the appellant further contended, that, a holistic analysis of the facts would show that relocation of contracts in 2015 could not have been the appellant's intention.

The parties knew of the need for a written contract at all material times as evidenced by the fact that in 2013 the respondents worked for eleven months without contracts and later signed contracts backdated to the period when they were without contracts.

The parties haggled over the terms of the one year contracts as the employees did not like the new terms of the contract. They did not argue that the old contracts had relocated.

To confirm the appellant's position some of the employees signed the one-year contracts.

He concluded by saying that tacit relocation cannot be inferred from the facts of this matter.

On being asked the date when the negotiations started, he was unable to pinpoint a date.

He however submitted that even if there were no negotiations between 1 May and 20 June 2015 a tacit relocation could not be inferred when the parties subsequently negotiated.

He further submitted, that, the fact that the parties were negotiating shows that there was no intention on the part of the appellant to revert to the old contract. He relied for that proposition on the case of Justin Kwangwari v Commercial Bank of Zimbabwe HH79-03....,.

It is the appellant's position that the engagements between the parties, after the expiration of the contract, are a clear indication that it had no intention of continuing on the old terms.

It relied on communication by the appellant's Human Resources Manager, dated 7 July 2015, informing the respondents that the negotiations had collapsed, thus, a new contract would not materialize and the Works Council determination to that effect.

Per contra, the respondents aver, that, negotiations regarding the new offer made by the appellant did not have any legal effect on tacit relocation as a new contract had already materialised.

In their written submissions, they aver that the purported negotiations were induced by duress as the appellant's Human Resources' Manager threatened to dismiss them if they did not abandon the claim for tacit relocation and dispense with the services of their legal practitioners.

As such, they submitted that the 'alleged collapse of negotiations' in the circumstances, could not be a basis for the termination of employment....,.

Since tacit relocation is inferred from the presumed intention of the parties to the contract and their conduct, where it is established that both parties accepted that the old contract had terminated and engaged in negotiations regarding a new contract, tacit relocation will be negated.

This is for the reason that neither of the parties would have conducted themselves in a manner that gave rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before.

In this regard, the court a quo made a factual finding that there was no evidence to the effect that there were any negotiations between the parties from 1 May 2015.

It further found, that, although the appellant may have intended to terminate the contracts, it failed to communicate that intention.

It also took into account the manner in which the parties dealt with the same issue in the past.

When the initial two year contracts expired the employer did not immediately renew the contracts. It merely allowed the employees to continue rendering services on the same terms and conditions of the expired contracts.

It only regularised the contracts after eleven (11) months.

It is settled law that an Appellate Court may only interfere with the decision reached by a lower court based on factual findings where gross misdirection has been established: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

The appellant has not alleged such a gross misdirection which necessitates this court's interference.

More importantly, there is nothing on record to show that the parties engaged in negotiations during the period 1 May 2015 to 22 June 2015 when they were without contracts.

There is no evidence, that, during this period, the appellant communicated to the respondents its intention as to whether or not the two-year contracts would be renewed or terminated.

The first meeting on record occurred in the appellant's board room on 29 June 2015, notably after the period upon which the respondents base their claim for tacit relocation. This is followed by the appellant's letter of 7 July 2015 indicating the collapse of the alleged negotiations.

Given this, the court a quo's finding cannot be assailed.

SC49-16 : MONTEREY ESTATE (PRIVATE) LIMITED vs KENNY BROXHAM
Ruled By: MALABA DCJ, ZIYAMBI JA and MAVANGIRA AJA

This is an appeal against the quantum of damages in lieu of reinstatement that was awarded to the respondent by the arbitrator and upheld, on appeal, by the Labour Court.The respondent was employed by the appellant as a Farm Manager in November 2008. On 30 November 2009, without any prior ...

This is an appeal against the quantum of damages in lieu of reinstatement that was awarded to the respondent by the arbitrator and upheld, on appeal, by the Labour Court.

The respondent was employed by the appellant as a Farm Manager in November 2008. On 30 November 2009, without any prior warning, the respondent, through a letter, was given a month's notice of termination of his services, effective from 1 December 2009 to 31 December 2009. The respondent was also asked to vacate the farmhouse and move off the property by not later than 31 December 2009.

On 21 December 2009, the appellant paid the respondent $2,100= broken down as follows:

(a) $900= which was due in respect of payment shortfalls for the months of December 2008, January 2009 and February 2009.

(b) $600= for 26 days of leave pay; and

On 8 February 2010, the respondent wrote a letter of complaint to a Labour Officer and requested that there be a hearing which would facilitate the payment of what he claimed to be due to him by the appellant. The process culminated in the issuance of a certificate of no settlement and the matter was referred for compulsory arbitration.

The issues for determination by the arbitrator were stated as:-

1. To determine whether the dismissal was lawful and fair.

2. To determine the nature of contract, whether open ended or not.

3. To determine the quantum of terminal benefits.

4. To determine the appropriate remedy.

The initial arbitral award made by the arbitrator is not on record. What is on record is the award of 21 July 2010. Therein, the arbitrator stated that the matter was before him for quantification of damages. He stated that in his (earlier) award he had requested the parties to negotiate on the quantum but they had failed to reach agreement. He stated that from the submissions by both parties it was clear to him that the parties were agreed on the headings under which remuneration was due to the respondent but were not agreed on the quantum. He listed the agreed headings as:

(a) Salaries.

(b) Medical Aid.

(d) Accommodation.

(e) Fuel.

(f) Domestics/Utilities.

(g) Electricity and water.

(h) Tobacco seed.

(i) Leave entitlements.

The arbitrator proceeded to award specific amounts in favour of the respondent for each of the headings as well as an additional one titled “commission.” The awards that the arbitrator made in respect of salaries, accommodation, fuel, domestic/utilities as well as electricity and water were calculated on the basis of a monthly figure multiplied by nine months. Regarding medical aid, the arbitrator determined that he would grant the respondent one year's cover instead of the two years that he was claiming. On school fees, he awarded an amount that he said was the 3^rd term fees for that year as well as an additional amount for which he gave no explanation. Under the heading 'tobacco seed' the arbitrator calculated what was due to the respondent on the basis of a percentage of the 2009 harvest. He justified this on the ground that the then current season's tobacco had not been sold yet. He used the same method for an award under the heading 'commission', which he also based on a percentage of the 2009 harvest.

The amounts thus awarded totalled $35,434=.

It is apposite to state at this juncture that the respondent accepted alternative employment with effect from May 2010. He was thus out of employment for four months. His new monthly salary was $500= gross without any benefits. His payslip was produced as proof thereof.

The appellant was aggrieved by the arbitrator's decision and appealed to the Labour Court on the following grounds:-

1. The learned arbitrator erred in law in failing to appreciate that the onus lay on the respondent to prove his claim. Hence the respondent should have adduced evidence to substantiate figures he gave for the sale of tobacco crop and tobacco seed respectively.

2. The learned arbitrator grossly misdirected himself in awarding commissions on tobacco crop and tobacco seed based on the sales figures of the 2009 crop.

3. The learned arbitrator erred in law in awarding medical aid in the absence of proved medical expenses.

4. The learned arbitrator erred in law in failing to appreciate that when assessing damages, consideration should be had to the fact that the respondent was now working and accordingly his earnings and benefits should have been taken into account in assessing the sum due.

5. The learned arbitrator erred in being satisfied that the appellant had proved his damages on a balance of probability.

6. The learned arbitrator erred in finding that sufficient evidence had been produced by the appellant to prove its claim.

7. The learned arbitrator misdirected himself in making an award for the period he did.

The Labour Court dismissed the appeal and upheld the arbitrator's quantification of damages payable to the respondent in the amount of $35,434=. In its reasons, the Labour Court stated, inter alia, that the arbitrator indicated in his award that evidence was led before he made the determination of the appropriate amounts due and payable to the respondent. The court a quo further indicated that it had no reason to doubt that evidence was led in support of the claim and that such evidence formed the basis of the learned arbitrator's award. It went on to make the following remarks:-

“It was submitted, on behalf of the respondent, that while the respondent may have secured alternative employment, such alternative employment paid the respondent considerably less than what he used to get. It is not disputed that where such a situation exists, the employee is entitled to compensation of the difference (between the former earnings and the alternative employment secured) in both salary and benefits in order for justice to be done. I have satisfied myself that evidence was led in the earlier tribunal. It follows that the necessary considerations were made before the award was made.”

The appellant has now appealed to this court against the decision of the Labour Court on the following grounds:-

1. The court a quo erred in law by upholding an award of damages for any period in excess of the period which respondent was actually out of employment.

2. The court a quo erred in law in upholding (without stating reasons for doing so) an award for payment in respect of a commission that had not yet accrued.

3. The court a quo erred by upholding (without stating reasons for doing so) an award for medical aid in the absence of any evidence that the respondent had in fact incurred medical expenses.

4. The court a quo erred in finding that the arbitrator received evidence as to:

(i) The time it would have taken the respondent to find alternative employment: and

(ii) The disparity, if any, between the respondent's actual earnings and his notional earnings from comparable employment.

(iii) The error was so gross as to amount to an error of law.

5. The court a quo consequently erred in law by upholding findings made by the arbitrator with no evidentiary basis.

It is not in dispute that the respondent was out of employment for a period of four months after which he accepted a job with less remuneration. The arbitrator however went on to award damages for a period of nine months. A perusal of the record, including the arbitral award, does not support the finding of the court a quo that there was any evidence led to justify the computation done by the arbitrator. The nine month period and the amounts granted under the various headings are not based on any evidence that was placed before the arbitrator. No such evidence is reflected on the record. No basis was laid for picking on the nine month period and not any other period.

The onus was on the respondent to prove that he was owed more than what the employer paid him. He did not discharge that onus.

Counsel for the respondent conceded as much before this court.

This inescapable concession by counsel for the respondent resolves this appeal.

HH965-15 : CONPLANT TECHNOLOGY (PVT) LTD vs WENTSPRING INVESTMENTS (PVT) LTD
Ruled By: MAFUSIRE J

The trial in this matter was held up by a preliminary argument on a special plea. The central question was whether or not the trial should be stayed and the matter referred to arbitration in terms of an arbitration clause in the contract between the parties upon which the plaintiff sued the defendant.

I reserved judgment. This now is my judgment.

The plaintiff's claim was for payment of a sum of money in respect of labour and materials supplied to, for and on behalf of the defendant, at the defendant's special instance and request. The allegations were that following a written contract between the parties, the plaintiff had been contracted, by the defendant, to install a water pump station, to procure and install water pumps thereat, and to connect them to an existing water reticulation system. The plaintiff claimed it had done the job in accordance with the contract but that the defendant had neglected to pay.

The cost of labour and material amounted to US$32,960. The plaintiff also said it was due a commission in the sum of US$3,296. It issued summons for payment of these two amounts.

The defendant filed a joint special plea and plea on the merits.

In the special plea, it said there was an arbitration clause in the agreement that obliged the parties to settle any dispute between them by arbitration.

On the merits, it said there was a dispute.

In essence, and in summary, the defendant averred, that, contrary to its obligations in terms of the contract, the plaintiff had circumvented the local authority in the procurement of the water pumps; that despite holding itself out as the expert in the field, the plaintiff had procured the wrong pumps; that the pumps had been rejected by the local authority; and, that owing to such breach by the plaintiff, the defendant had cancelled the contract.

The plaintiff's responses to the defendant's special plea on arbitration were fourfold....,.

(i) The first ground relied upon by the plaintiff to resist a referral to arbitration was that the defendant could not be heard to want to rely on, and benefit from, the arbitration clause in the contract when it had itself ignored it prior to its purported cancellation of the contract....,.

To the plaintiff's first ground, that, the defendant had itself breached the arbitration clause by purporting to cancel the agreement without reference to arbitration, the defendant's response was that what would be referred to arbitration was a “dispute”. Cancellation was not a dispute. The defendant had had no cause to refer to arbitration....,.

[a] Arbitration clause in a contract

Article 8(1) of the Model Law, the First Schedule to the Arbitration Act [Chapter 7:15], states:

“A court of law before which proceedings are brought in a matter which is the subject of an arbitration agreement, shall, if a party so requests, not later than when submitting his first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed.”

In my view, and in my own words, it is now settled, that, a clause in a contract to refer a dispute to arbitration is binding on the parties. A party is not at liberty to resile from that clause any time he may wish to do so.

In terms of Article 8 of the Model Law, the First Schedule of the Arbitration Act, where a party makes a timeous request for referral to arbitration, the court has to stay the matter and refer the dispute to arbitration unless the agreement is null and void, or is inoperative, or is incapable of being performed: see Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H); Waste Management Services v City of Harare 2000 [1] ZLR 172 (H); and Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232 (H).

Thus, the one condition in Article 8 of the Model Law, the First Schedule to the Arbitration Act for referral is that there must exist a dispute between the parties.

In PTA Bank v Elanne (Pvt) Ltd & Ors 2000 (1) ZLR 156 (H), where the defendant had merely asked for further particulars, which had been furnished, but had not said anything else about the existence or otherwise of a dispute, except in counsel's heads of argument, the court declined the request for referral. It said that, among other things, since no dispute had been established, there was nothing to refer to arbitration.

In Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H) the court initially declined to refer the matter to arbitration where the defendant had merely made the request before pleading to the merits. It was only upon the defendant's pleading to the merits that a dispute became apparent, thereby leading the court to exercise its discretion in favour of staying the proceedings and referring the dispute to arbitration.

In casu, the defendant met the one condition referred to above. It has pleaded on the merits.

There has emerged a clear dispute. It is this: is the plaintiff entitled to payment? Did it breach the contract by circumventing the local authorities? Did it supply the wrong pumps?

Another condition in Article 8 of the Arbitration Act, for referral to arbitration, is that the request for such referral must be made timeously. The Article says it must be made “…, not later than when submitting…, [the]…, first statement on the substance of the dispute.”

The defendant filed a special plea, in which the request of referral was made, and, in the same document, pleaded over to the merits, setting out the dispute.

Therefore, this other condition was also met.

Yet another condition in Article 8 of the Arbitration Act, for referral to arbitration, is that the arbitration agreement must not be null and void, or inoperative, or incapable of being performed.

It was common cause that this was not the case in this matter.

It did not form part of the plaintiff's grounds for resisting referral.

At any rate, the question whether the dispute between the parties to a contract falls within the ambit of an arbitration clause is primarily a question of interpretation of the agreement, in particular, the arbitration clause itself: see Independence Mining (Pvt) Ltd v Fawcett Security Operations (Pvt) Ltd 1991 (1) ZLR 268 (H); PTA Bank v Elanne (Pvt) Ltd & Ors 2000 (1) ZLR 156 (H); and Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H).

Furthermore, once it is established that the dispute falls within the ambit of the arbitration clause, the onus to show why the court proceedings should not be stayed rests on the party challenging the reference to arbitration, i.e., the plaintiff in this case: see Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232 (H)....,.

[b] The defendant itself breached the arbitration clause when it purported to cancel the agreement

I understood counsel's argument on the point to be, that, if the defendant felt that the plaintiff had been in breach of the contract, it ought to have referred the matter to arbitration instead of just taking it upon itself to cancel. The plaintiff, having decided to issue summons out of this court, without first having gone for arbitration, it hardly lay in the mouth of the defendant to cry foul.

Even though it did not exactly put it that way, the plaintiff was probably saying what is good for the goose should be good for the gander, also, or, an eye for an eye.

But, this hardly constitutes sound legal argument. Two wrongs do not make a right.

At any rate, having accepted the existence of the arbitration clause, the onus lay on the plaintiff, as the party resisting arbitration, to show why the matter should not be stayed and referred to arbitration. The plaintiff could hardly shift that onus by merely pointing to an alleged earlier breach by the defendant.

Since the plaintiff did not say exactly that, was it then implying or insinuating, that, the parties had, or should be deemed, by their conduct, to have tacitly abandoned arbitration in favour of a direct approach to a court of law?

In Bitumat Ltd v Multicom Ltd 2000 (1) ZLR 637 (H), this court (per SMITH J) said this…,;

“It may well be that at some stage after the dispute has arisen, because of changed circumstances, the parties concerned agree that the matter should be determined by a court of law, rather than by arbitration in terms of the agreement in question.

In these circumstances, the decision of the parties, to abandon the arbitration clause in their agreement, must be specific and clearly evidenced. It cannot be implied by the conduct of, or correspondence between the parties – it must be explicit.

After all, if the arbitration clause is contained in a written agreement, then the decision to change the agreement must either be in writing or else so clearly evidenced by the conduct of the parties that there is no room for doubt.”

It would have been far-fetched for the plaintiff to have even remotely suggested or implied that the parties had tacitly agreed to abandon arbitration in favour of a direct approach to this court.

There was nothing of the sort.

The defendant simply decided that the plaintiff had breached the contract. It did not perceive a dispute. The contract provided for cancellation by the employer, i.e. the defendant, on the happening of certain events. The defendant had cancelled.

That is not to say it was right.

But, if the plaintiff felt that it was not right, and it wanted the matter adjudicated upon, then, it had to follow the dispute resolution mechanism provided for in the contract. This entailed the dispute being referred for adjudication in the first place, and then followed by arbitration if adjudication did not resolve it.

So, on this basis, the plaintiff's first ground for resisting arbitration cannot succeed.

SC16-21 : GML EXPLOSIVE (PRIVATE) LIMITED vs LACKSON GONO AND 29 OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and MATHONSI JA

On 15 August 2019, the High Court (the court a quo) issued a provisional order for the provisional winding up of the appellant at the instance of the respondents who are its former employees. The court a quo confirmed the provisional liquidation order by judgment delivered on 20 November 2019.This ...

BACKGROUND

The respondents filed a court application for the winding up of the appellant in terms of section 206(f) and (g) of the repealed Companies Act [Chapter 24:03] on the basis that it was unable to pay its debts and that it was just and equitable that the company be wound up.

They alleged that the appellant had admitted owing them a combined sum of US480,330 in wage arrears as at 9 June 2014. In total, they alleged that the appellant owed over US$1,3 million in arrear salaries and wages alone and that its legacy debt in respect of all its creditors was estimated at US3,670,241.

The respondents stated, further, that, the appellant had cited “operational challenges” that the company had closed shop and was “non-operational” as the reasons for its inability to pay debts.

In that regard, the respondents' case was that the appellant was commercially insolvent, being unable to discharge debts it acknowledged as owing.

As I have said, a provisional liquidation order was granted on 15 August 2019.

When no opposition was filed, except for what was called “affidavits of the interested parties” by individuals who stated that they did not support the liquidation, confirmation of the provisional liquidation order was sought on an unopposed basis.

DECISION A QUO

The court a quo noted that the handwritten affidavits by the interested parties merely dissociated the individuals in question, some of whom were also former employees of the appellant, from the application for winding up. It found that none of the interested parties had tendered evidence to challenge the basis upon which the winding up of the appellant was sought.

The court a quo further found that one of the individuals who had submitted an affidavit of interest was Mathias Ndere, the Finance Manager of the appellant, who had made an admission that the appellant had failed to pay its debts.

It concluded that the admitted failure to pay the respondents what was due to them is evidence of inability to pay debts and that it was not up to the appellant to choose how and when it was to pay what was long overdue.

As the confirmation of the provisional liquidation order remained unopposed, the court a quo confirmed it.

THE APPEAL

The appellant was aggrieved by that turn of events and appealed to this Court on five grounds. At the hearing of the appeal, counsel for the appellant sought to amend ground four, which amendment was granted. He then abandoned the remaining grounds of appeal electing to motivate the appeal entirely on the amended ground four. It reads:

“A fortiori, the court a quo grossly misdirected itself in confirming the provisional order on the basis that it was just and equitable to do so.”

Having elected to ground the appeal on the basis that the court a quo confirmed the liquidation because it was just and equitable to do so, it becomes apparent that the appellant does not assail the court a quo's finding that it was unable to pay its debts.

A close reading of the judgment of the court a quo shows that the final order of liquidation was based on the proven inability to pay debts as provided for in section 206(f) of the Companies Act. The court a quo made reference to that provision of the repealed Act.

SUBMISSIONS ON APPEAL

At the commencement of the hearing, counsel for the appellant made an application to adduce further evidence on appeal.

An application had been filed on 22 October 2020 to which was attached the evidence sought to be adduced. The evidence consists mainly of schedules and proof of payments made to some of the appellant's creditors after the judgment of the court a quo.

According to the appellant, the evidence would show, that, subsequent to the liquidation, the appellant's shareholder had mobilised resources and paid off “all the creditors” save for a few whose account details were not available at the time of payment.

Counsel for the respondents did not oppose the application having taken the view that the evidence sought to be adduced on appeal did not advance the appellant's case in any way.

The application to adduce evidence was then granted by consent.

It was counsel for the appellant's submission, that, the court a quo considered the circumstances of the appellant which prevailed at the time the matter was heard but had no regard to its future circumstances. What has since transpired is that the inability to pay debts has morphed into ability to pay. The appellant has paid all the debts since the liquidation order was granted. As a result, there is no longer any cause for liquidation. It has no purpose, so it was argued, and should be set aside.

Per contra, counsel for the respondents premised his case on two fundamental points:

(i) Firstly, he submitted, that, at the time the court a quo determined the matter, the appellant was hopelessly insolvent. Its inability to pay debts was admitted and a request had been made on its behalf for a moratorium of about six months during which time it hoped to pull itself out of that incongruent financial quagmire.

The appellant was not trading and is still in that position up to now. For that reason, so it was argued, the court a quo correctly granted the final order of liquidation.

(ii) Secondly, counsel for the respondents submitted, even the further evidence adduced on appeal clearly demonstrates that the appellant is still in the same state of insolvency. The evidence shows that the appellant has not paid all that it owes to its creditors. Months after the final liquidation order was made, the schedule of payments shows that part payments were made to a number of former employees leaving outstanding balances.

Counsel for the respondents submitted, further, that, the debts were denominated in United States dollars. What the appellant has done is to take advantage of the judgment of this Court in Zambezi Gas Zimbabwe (Private) Limited v N.R. Barber (Private) Limited and Another SC03-20 which determined the rate of exchange following the introduction of the Zimbabwe dollar at the rate of one to one to the United States dollar.

According to counsel for the respondents, the appellant has made part-payments to its creditors, in Zimbabwean currency, several months after liquidation and used that to seek to claw its way out of insolvency. He submitted that there is no legal basis for setting aside the judgment of the court a quo even if regard is had to the evidence adduced on appeal.

ANALYSIS

The winding up of the appellant was sought on the basis that it was unable to pay its debts. This is set out at p10 of the founding affidavit in the following terms:

“This is an application for the winding up of the respondent company, GML Explosives (Private) Limited, based upon the fact that the respondent is unable to pay its debts when due, and, critically, the fact that it has persistently failed to provide proof that:

10.1 It is in a position to pay its debts;

10.1 (sic) It is not preferring one creditor above another.”

It is common cause, that, at the time the application for winding up was made, the appellant had failed to pay its employees and that some of the arrears dated back to 2009.

In a memorandum written by the appellant's Human Resources Officer, on 22 February 2018, it was admitted that “the company is still experiencing operational challenges” and further that “the company is not operational.”

Section 206(f) of the then Companies Act [Chapter 24:03] gave the court a quo a discretion to order the winding up of a company unable to pay its debts. The discretion arose from the use of the word “may” in that section.

The court a quo found that the appellant's failure to pay the respondents what was due to them “is evidence of its inability to pay the debts.”

In my view, that finding cannot be faulted at all.

In granting the relief sought, the court a quo was engaged in the exercise of judicial discretion.

A creditor is ordinarily entitled to a winding up ex debito justitiae where the grounds for it provided for in the Companies Act have been satisfied. The court is however said to have a narrow discretion to withhold the winding up in very exceptional circumstances: see Croc-Ostrich Breeders of Zimbabwe (Private) Limited v Best of Zimbabwe (Private) Limited 1999 (2) ZLR 410 (H)…,.

The onus of proving the existence of exceptional circumstances as would inform the withholding of a winding up where grounds for it exist lies on the party opposing it.

In this case, it rested on the appellant.

The application was not opposed and the affidavits of interested parties did not raise any exceptional circumstances.

There was therefore no basis for withholding the winding up where it had been shown, and indeed admitted, that the appellant was unable to pay its debts - an ailment which continues to afflict the appellant long after the court a quo rendered judgment.

In any event, an Appeal Court will only interfere with judicial discretion where, first and foremost, it appears, in the grounds of appeal, that an improper or incorrect exercise of the court's discretion is what is put in issue: see African Century (Private) Limited v Megalink Investments (Private) Limited & Ors SC44-18.

The often cited case of Barros and Anor v Chimponda 1999 (1) ZLR 58 (S)…, is authority for the proposition that the general rule governing an Appellate Court in an appeal against a judgment of a lower court, granted in the exercise of its judicial discretion, is that it is not enough that the Appellate Court considers that, if it had been in the position of the lower court, it would have adopted a different course.

For the Appellate Court to interfere, it must appear that some error has been made in exercising the discretion:

“If the primary court acts upon a wrong principle; if it allowed extraneous or irrelevant matters to guide or affect it; if it mistakes the facts; if it does not take into account some relevant consideration; then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution…,.”

Counsel for the appellant's suggestion that the court a quo failed to consider the future ability of the appellant to mobilise funds to pay its creditors does not even begin to meet the threshold for interference with judicial discretion set out in the authorities.

For a start, no evidence was placed before the court a quo to show that the appellant would, in future, be able to mobilise funds. So, the court a quo was not equipped with material with which to look into the future....,.

More importantly, the appellant did not discharge the onus of setting out exceptional circumstances that would trigger the exercise of discretion in favour of withholding a winding up.

SC16-22 : CHURCH OF GOD OF PROPHECY(INTERNATIONAL) vs CHURCH OF GOD PROPHECY AND OTHERS
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare which dismissed the appellant's application for joinder as the fourteenth defendant on 16 January 2020 under case number HC3499/14 (the main case).

At the close of submissions by counsel we dismissed the appeal with costs and indicated that our reasons for judgment would be delivered in due course.

I now proffer the reasons for the court order delivered on 20 July 2021.

BRIEF SUMMARY OF THE CASE

The substantive dispute between the parties in the main case before the court a quo has to do with succession and ownership of church property between the local church based here in Zimbabwe and a sister church based in the United States of America: that is to say, the first respondent and the appellant respectively.

It is common cause that sometime in 1976 the late Bishop Kenneth Nyamhuka founded and incorporated the first respondent (the church) as a universitas with its own Constitution. The affairs of the church are regulated by the 1979 Constitution filed of record.

As fate would have it, Bishop Nyamhuka fell ill and succumbed to death on 4 April 2014. Following his death, a dispute arose relating to positions of leadership, possession, and ownership of church property amongst the local leadership of the church cited in the main case.

The appellant sought to intervene and be joined to the main case on the basis that the Church is an affiliate of the appellant church which is the mother body based in America.

In its founding affidavit, it claimed that it is responsible for the appointment of the church's leadership and financial support. For that reason, it claimed the right to appoint the church's leaders and to ownership of the disputed property.

On that score, it claimed that it had a direct and substantial interest to wade into the succession battles among the local membership of the church.

The appellant's assertions, to the effect that it is the mother body of the church responsible for the succession process and ownership of the church's property, was strenuously disputed by the respondents. They maintained that the church is independent of the appellant save that they share the same Christian doctrine. To that extent, they asserted that the church has the right to appoint its own leadership and has sole ownership of all its property.

THE LAW

The law on joinder of parties to judicial proceedings was eloquently articulated by MAKARAU J…, in Burdock Investments (Private) Limited v Time Bank Limited & Ors 2003 (2) ZLR 437…, where the learned judge had occasion to remark that:

“Before a party may be joined or may be allowed to intervene in proceedings before the court, he or she must establish a direct and substantial interest in the subject matter of the judgment. The interest must be such that the judgment cannot be carried into effect without adversely affecting the legal position of the party mis-joined and in circumstances where the defence of res judicata will not be raised against that party in future proceedings to protect that interest.”

THE ISSUE FOR DETERMINATION

The crisp issue for determination in this appeal is whether or not the appellant discharged the onus of proving that it has a direct and substantial interest in the subject matter for determination in the main matter.

APPLYING THE LAW TO THE FACTS

The respondents produced cogent empirical documentary evidence in the form of annexures C1 and C2. The evidence shows that the appellant has affiliates in 40 African countries under the administration of its General Presbyter, Masilela, but, Zimbabwe is not one of them.

The learned judge a quo's summation, which discredits the appellant's claim, cannot be faulted. It completely discredits the appellants' claim that the church is its affiliate. The learned Judge's sentiments…, bear repetition where he says:

“The Applicant (appellant) offered no explanation for the absence of Zimbabwe from the list of African countries which are, as it were, affiliated to the applicant. Counsel for it stammered at the question which related to Zimbabwe's absence from the list of countries which fall under its administration. He eventually honed (sic) (owned) up and stated that he did not know why Zimbabwe was not one of the countries which fall under the applicant's administration in Africa.”

The learned judge a quo found, that, the appellant lay dormant without asserting its purported rights for five (5) years from May 2014 to June 2019. It only belatedly filed its claim for joinder in aid of the ninth respondent after he filed his plea. The ninth respondent, Joshua Nyamhuka, is the late Bishop Kennedy Nyamhuka's son who was the appellant's acquaintance.

DISPOSAL

A perusal of the parties' respective pre-trial conference memoranda shows that this is a succession battle being fought amongst the local membership of the church. The appellant is a total stranger with no real and substantial interest in the dispute among Zimbabweans. It has merely sought to dishonestly intervene in the main case to prop up its acquaintance's son.

It is surprising that counsel for the appellant had the temerity to approach this Court, on appeal, in the face of such credible damning evidence against his client. Such “Dutch” courage can only amount to an abuse of court process.

Counsel for the appellant has now asked for the reasons for judgment to pave way for him to approach the Constitutional Court.

It is for the foregoing reasons that we dismissed the appeal with costs.

SSC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

It is the duty of an applicant to lead evidence which can satisfy the court and enable it to make a finding in its favour.

HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O.
Ruled By: MAKONESE J

The applicant has filed an application for maintenance in terms of the Wills Act [Chapter 6:06]. In particular, reliance was placed on the provisions of section 18 of the Wills Act. The relief sought by the applicant in the Draft Order is as follows:“IT IS ORDERED THAT:The estate of the ...

“IT IS ORDERED THAT:

The estate of the late Manuel Arthur Da Silva shall be distributed in terms of section 18 of the Wills Act [Chapter 6:06].”

The applicant claims that she was married to the late Manuel Arthur Da Silva in terms of an unregistered customary law union in 1990, with whom she had five children, three of them being minors. Manuel Arthur Da Silva, having died on the 28th August 2006, the applicant claims that her children are entitled to inherit from the deceased in their capacity as legitimate children.

The application is opposed by the first respondent who denies that the applicant was married to the late Manuel Arthur Da Silva in terms of customary law.

Further, the first respondent denies that the applicant's children are entitled to inherit from the deceased as legitimate children.

It is not in dispute that the deceased and the first respondent's mother were divorced in 1978. In 1979, the deceased then proceeded to write a Will bequeathing his entire estate to his daughter, the first respondent. The estate of the late Manuel Arthur Da Silva was registered with this court under DRB No. 855/06. The first respondent was appointed Executrix Dative on the 27th August 2006.

The estate has since been wound up....,.

The Merits

The applicant claims, in the founding affidavit, that, she entered into an unregistered customary law union with the late Manuel Arthur Da Silva sometime in 1990. The same averment is boldly asserted in the applicant's Heads of Argument.

The applicant has chosen not to place before the court any evidence, whether verbal or written, to prove that indeed there existed a customary marriage between the applicant and the late Manuel Arthur Da Silva.

It is not entirely clear why the applicant took it for granted that the court would, on her mere say so, agree that there existed such a customary union.

It has not been disputed that the applicant is of mixed race, colloquially referred to as “coloured”. The late Manuel Arthur Da Silva was of Portuguese nationality and European descent.

It is common cause that neither the applicant, nor the deceased, could enter into a customary law union, and such a union would be alien to them.

African customary law unions are usually between persons of African descent and follow the rules and customs of African customary law.

The two parties, the applicant and the late Manuel Arthur Da Silva, could never, by any stretch of imagination, claim to have entered into a union in accordance with the customary practices and are therefore not subject to customary law. Their relationship or union could never be elevated to a customary law union.

The applicant has not provided the court with any evidence that the marriage between the parties was solemnized in terms of customary law. There is no evidence that the late Manuel Arthur Da Silva undertook the requisite procedural requirements to solemnize a customary law union and no lobola was paid.

The first respondent's legal practitioner referred the court to the case of Vuyisile Khanye v Sibongile Msipha NO and Others HB51-05. The matter is relevant to the present case.

In that matter, the applicant could not provide any evidence as to the existence of a customary marriage. The learned judge, NDOU J, alluded to the fact that it was important to file affidavits from relevant parties, such as aunts and go-betweens, as proof of the existence of a customary marriage. The learned judge also cited with approval the cases of Mtuda v Ndodzo 2000 (1) ZLR 710 (H); Ntini v Masuku HB69-03; Muringaniza v Munyikwa HB103-03; and Matibiri v Kumwe 2000 (1) ZLR 492 (H).

In casu, the applicant has failed to discharge the onus to prove, on a balance of probabilities, that she entered into a valid customary law union with the late Manuel Arthur Da Silva.

HH710-16 : TENDAI MANGWIRO vs DR IGNATIUS CHOMBO
Ruled By: TSANGA J

A court application for contempt of court was brought before me on 9 November 2016 in motion court. I granted the application and herein I give my reasons for so doing against the backdrop of a brief narrative of the history of the matter which puts the order in context.Contextual ...

Contextual Background

1. The Default Judgment

The order for contempt has its genesis in a default judgment obtained by the applicant, Mr Mangwiro (as plaintiff), under HC4766/13 on the 18th of February 2015, against the respondent (“the Minister”) and others (as defendants), jointly and severally.

The import of the judgment was that the applicant was to be paid the sum of US$78,000 as well as interest and costs of suit for money that had been taken from him by the State in a matter in which he had finally been acquitted in 2012. The State had failed to return the money to him.

2. The Application for Rescission

An application for rescission of the above judgment was lodged on behalf of the defendants by the Attorney General's Office, Civil Division, on the 1st of April 2015 under HC3001/15. Despite the lodging of this application for rescission, it was, however, not prosecuted to finality leading the applicant to file an application for its dismissal for want of prosecution.

3. Dismissal for Want of Prosecution

The application for dismissal of the defendants' application for rescission had been served on the 1st of June at the Attorney General's Office–Civil Division. Again, the lawyer handling the matter remained in slumber and no response was received to the application for dismissal. Accordingly, the order dismissing the application for rescission for want of prosecution was granted under HC4942/15 on the 30th of June 2015.

4. Order to comply with Statutory Duty to Effect Payment

On the 16th of May 2016, under HC4261/16, the respondent, as Minister of Home Affairs, was ordered to comply with the statutory duty cast upon him in terms of section 5(2) of the State Liabilities Act [Chapter 8:14] to pay, from the Consolidated Revenue Fund, the money awarded to the applicant by the court on the 18th of February 2016. In particular, the order also stated as follows:

“The respondent is ordered and directed to comply with the order in the above paragraph (1) within 14 days of this order having been served on him, or his (permanent) secretary, or any responsible person in his Ministry, failing which, the respondent be and is hereby declared to be in contempt of this order.”

The order was sent directly to the Minister with a letter on the 19th of May 2016. It is endorsed as having been received by Madakufa T on behalf of the Minister. Another letter was written on the 7th of June, again directly to the Minister, following up the letter of the 19th of May and reminding him that the court order would lapse on the 9th of June.

It is date stamped as having been received by one G Mahlunge on his behalf on the 7th of June.

There was no compliance by the Minister, and a court application for contempt was filed on the 13th of June 2016.

5. The Court Application for Contempt

Having initially attempted personal service of the order for contempt on the 15th of June, without success, the record shows, through the return of service, that, the application for contempt, being HC5970/16, was finally served, successfully and personally, on the Minister on the 24th of June 2016 by Mr Benhura, the Additional Sheriff of the High Court.

6. Motion Court Directive to further serve the AG's Office - Civil Division

On the 20th of July 2016, the judge sitting in Motion Court further directed that the application for contempt of court be served on the Attorney General-Civil Division. This was done on the 13th of October with the application being received by Ms E Manjokoto of the Attorney General's Office.

The accompanying letter clearly stated, that, upon expiry of the prescribed period, the matter would be set down again, in Motion Court, as the Minister remained barred, having taken no action.

Again, there was no action on their part.

Having complied fully the with requirement to serve the Minister personally as well as on the Attorney General - Civil Division, the applicant then reset this matter for contempt on the 9th of November 2016.

What emerges from a reading of the files, leading to the application for contempt, is an underlying lackadaisical approach to court processes and orders on the part of the Minister's counsel handling the matter and ultimately by the Minister himself.

It was against the above background that the matter for contempt was on the unopposed roll on 9 November 2016.

On 8 November 2016, the Minister had filed an “opposing” affidavit in which he raised a point in limine that he was never served personally nor were any of his officers.

Personal service is indeed required by Rule 39(1) of the High Court Rules, 1971 in any application which affects a person's freedom: see Mutyambizi v Goncalves & Anor 2013 (2) 375.

Counsel from the Civil Division appeared to oppose the matter in Motion Court on the day and he was given audience in light of the assertion by the Minister that he had not been served personally.

In other words, the court did not stand resolute on the ground that the Minister was barred but accorded his counsel a hearing.

Counsel from the Civil Division spoke to the content of the affidavit; the gist of his point being that the order for contempt would be improper in view of lack of personal service.

However, as the court pointed out to him, there were fundamental problems with the Minister's affidavit which was before the court regarding his averment.

In his affidavit, the Minister was categorically clear, that, the application he had not been served with was HC942/16. The Minister's point in limine, in his sworn affidavit, was couched as follows:

“1. It is my humble submission that I was never served personally, or any of my officers, with the court application HC4942/16 for contempt of court.

2. Notwithstanding the above, I am willing to respond to the applicant's founding affidavit if I am served with it.

3. Wherefore, I pray that the court be pleased to postpone this application with costs pending the applicant's founding affidavit being properly served to me.”

First of all, there was no application HC4942/16. There was court application HC4942/15.

Materially, HC4942/15 was not a court application for contempt of court but for dismissal for want of prosecution. It was rightly served on the Attorney General's Office - Civil Division and not on the Minister personally because the Civil Division were the ones representing him and others in the application for rescission.

The application for contempt is HC5970/16.

It was not the Minister's assertion, in his affidavit, that he had not been served with this particular application.

If the file reference was an error, there was no application to amend.

Furthermore, the assertion of non-receipt of the court application for contempt was a bare denial.

If all a party opposing an application for contempt has to do in order to stay proceedings, is to allege, without any substantiation whatsoever, that they never received the application personally, in the face of a return of service to the contrary, then justice would be hampered.

Where a return of service clearly indicates that proper service has been effected, then the onus is on the person alleging otherwise to prove their assertion.

To counter counsel for the Civil Division's assertion, that there was no service despite the return of service clearly indicating that there was, the applicant's counsel drew attention to the Supreme Court case of Gundani v Kanyemba 1988 (1) ZLR 226 (SC).

It was stated therein, that, the return of service by an officer of court, be they the Sheriff, Deputy Sheriff or Messenger, is to be accepted as prima facie proof of what is stated therein - albeit it can be rebutted by clear and satisfactory evidence.

In casu, there was nothing remotely equating to clear or satisfactory evidence rebutting the Additional Sheriff's return of service that he had served the court application for contempt, in HC5970/16, personally on the Minister, Dr Ignatius Chombo himself.

Having read the Minister's affidavit, and having heard his counsel, the court's conclusion was that there was no averment that the relevant application had not been served, and, equally, there was lack of proof to substantiate the claim on non-service that had been made.

The Minister, Dr Ignatius Chombo, is a well-known public figure who is unlikely to be mistaken. The Additional Sheriff would have no reason, as an officer of the court, to lie that he had served him personally.

I therefore had no reason to disbelieve his return of service which indicated that he had served him, personally, at his offices at 11th Floor Mukwati Building in 4th Street on 24 June 2016.

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

He who avers must of course prove.

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

It is pertinent to note that the standard of proof in all civil matters is on a balance of probabilities.The concept of proof on a balance of probabilities was enunciated in British American Tobacco Zimbabwe v Chibaya SC30-19 wherein the court quoted with approval the case of Miller v Minister ...

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:

“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the agreement, whether or not the salaries and benefits stipulated in that agreement were intended to apply to the appellants.”

After considering the parties' submissions, and evidence led, the court a quo dismissed the appellants' claim against the respondent. The court a quo held that the appellants failed to discharge the onus on them of proving that they were covered by the Works Council Agreement upon which their claim of salaries and benefits was founded.

This is an appeal against that judgment.

FACTUAL BACKGROUND

The appellants are 153 former employees of the respondent who were employed as security guards on fixed-term contracts renewable every three months.

The period of employment ranged from 2007 and 2008 up until January and April 2011 when their contracts expired by effluxion of time and were not renewed.

In July 2010, the respondent, 1,078 of its employees, and its workers' committee approached an arbitrator (Nasho) in a bid to negotiate the regularisation of the employees' contracts in line with the new multi-currency regime and to ascertain the salary arrears due to the respondent's employees.

Arbitrator Nasho ordered the payment of back-pay from 1 March 2009 to the date of the award, in line with the multi-currency system.

In accordance with that award, the parties concluded a Works Council Agreement, on 15 September 2010, which set the back pay due to all employees of the respondent and the salary structure for non-managerial employees from 1 January 2010 onwards. It was agreed that all employees across the board, for the period of 1 March 2009 to 31 December 2009, were to be paid a net salary of $500 per month.

Following this agreement, and in a different matter, the appellants challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

A second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012. On appeal, the arbitral award was upheld by the Labour Court.

On 10 December 2012, following the dismissal of their claim by arbitrator Mugumisi, and as confirmed by the Labour Court, the appellants filed another claim for the payment of arrear salaries and benefits which was dealt with by the third arbitrator (Mambara) who awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimants' contract of employment was terminated.

Dissatisfied by that decision, the respondent applied to the Labour Court for a review of the award. The Labour Court upheld the review on 12 September 2014 and dismissed the appellants' claim.

Irked by that decision, the appellants appealed to this Court which remitted the matter to the court a quo for a comprehensive analysis of whether the appellants were covered by the 2010 Works Council Agreement.

In making that order, the court noted that although both the arbitrator and the Labour Court, in its review proceedings, referred to the minutes and the agreement of September 2010, the relevant portions of the agreement were not reproduced.

Additionally, the court reflected that the Labour Court failed to call evidence from the signatories to the agreement to explain its provisions and clarify its scope of coverage.

It further did not proceed to consider the precise ambit of the agreement and its implications for the appellants' claim before the arbitrator.

As a result, it did not make a finding on this critical aspect of the matter despite noting some causal nexus between the Nasho award and the 2010 Agreement.

The court further reasoned that it appeared common cause that the present appellants were part of the 1,078 claimants who were beneficiaries to the Nasho award and that since the Works Council Agreement was made in September 2010, they would have a justifiable claim to the benefits accruing from that agreement. The court concluded as follows:

“In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu. This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.”

Hence the proceedings in the court a quo which are the subject of this appeal.

PROCEEDINGS IN THE COURT A QUO

The remittal proceedings commenced with the appellants' Statement of Claim, to which the affidavit of Joseph Lungu, the first appellant, was attached.

Mr Lungu averred that the appellants were part of the 1,078 workers in whose favour the arbitral award by Nasho was made. In support of this position, Mr Lungu relied on a list attached to a memorandum which was addressed to one Mr Rwatirera on 5 September 2012.

The respondent's notice of opposition was supported by affidavits from different personnel in the respondent's employ.

The first deponent was Mr Rwatirera, a member of the respondent's Works Council that negotiated the September 2010 Works Council Agreement.

He averred that there was no list of the claimants who appeared before Arbitrator Nasho as none was furnished or attached to those arbitral proceedings. As such, he argued that the list produced by the appellants was tailor-made for the proceedings.

He thus, denied approving or signing the list produced by the appellants.

Mr Rwatirera further indicated that the employees who were covered by the 2010 Agreement were permanent, non-managerial employees and not fixed term contract employees since the latter's terms and conditions were regulated by their individual contracts of employment and were not subject to any Works Council negotiations nor Workers Committee representation.

He also averred, that, it was generally accepted by the respondent, the then Worker's Committee representatives, the general body of the respondent's permanent employees, and most of the fixed-term contract employees, that, fixed term contract employees were not within the scope of the arbitral proceedings before Nasho and the subsequent Agreement of 2010.

He also asked the court to note that the appellants signed fixed term contracts of employment providing for a salary of $250 per month well after the September 2010 Agreement was concluded.

The second deponent, Mr Mugabe, the chairman of the Workers Committee and a member of the Works Council in September 2010, attested that the salaries and benefits of the Work's Council Agreement were intended to apply to permanent employees in Grades 1 to Level 2 and not to fixed-term contract employees.

The third deponent, E Makaha, a former vice-chairman of the Worker's Committee and a member of the Works Council confirmed Mr Mugabe's averments.

The fourth deponent was Mr Mavengano, the former Vice Secretary of the Workers Committee and a member of the Works Council who authored the list dated 12 September 2012.

He disputed the authenticity of the list produced by the appellants.

The fifth and sixth deponents, A. Saburi and T. Hungwe, respectively, who were management representatives in the Works Council Agreement, averred that the Worker's Committee did not, at any time, represent fixed-term contract employees in negotiating their salaries and benefits.

In response, the first appellant disputed the respondent's averments in their totality.

At the hearing, the respondent took a point in limine that the founding affidavit of Mr Lungu, was improperly before the court as he was not a signatory to the Works Council Agreement of 2010 as required by the remittal order.

To the contrary, counsel for the appellants argued, that the order in SC01-17, which remitted the matter to the court a quo, was not restrictive, but left it open for the court to receive any other sworn evidence apart from that of signatories to the Works Council Agreement.

The court a quo upheld the preliminary objection and expunged the affidavit of the first appellant from the record.

Thereafter, two witnesses testified for the appellants.

The first witness, Mr Muronzi, averred that the applicants participated in the proceedings before arbitrator Nasho and contributed $2 towards arbitration costs. However, he stated that he was not a member of the Workers Committee and was not a signatory to the September 2010 Agreement and was cognisant of patent irregularities on the appellants' list.

The second witness, Mr Mushayabasa averred that he was on a specific term contract and was one of the employees who contributed $2 for arbitration costs before Arbitrator Nasho following an address by one Ziki, a member of the then Workers Committee.

The respondent led evidence through Mr Rwatirera, who, apart from reiterating the averments in his founding affidavit, testified that it had always been the respondent's practice that fixed term employees were excluded from the Works Council.

Work's Council members were voted into office by permanent members of staff only.

He also testified that the Workers Committee only represented permanent members of staff.

He further confirmed the fact that the applicants signed further contracts of employment, with a different salary from that of permanent employees, long after the September 2010 Works Council Agreement was concluded.

He reiterated that all the employees on fixed-term contracts were not part of the Nasho proceedings.

DETERMINATION OF THE COURT A QUO

The court a quo dealt with the issue of whether or not the appellants had discharged the onus on them of proving that they were included in the September 2010 Works Council Agreement.

The court had regard to the specific provisions of the September 2010 Works Council Agreement, the minutes accompanying that Agreement, and sworn evidence from the signatories to the Agreement.

The relevant clause on which the appellants base their claim provides as follows:

“The Works Council resolved to recommend to the Board that;

(i) A net salary of $500 per month be paid to all employees across the board for the period 01 March 2009 to 31 December 2009. (This is inclusive of transport allowance of $50 per month and rental support of $200 per month).

(ii) A thirteenth cheque should be paid to all employees for the same period.”…,.

Regarding the September 2010 Works Council Agreement, the court a quo found, that, the reference to “all employees” in the agreement was not determinative of whether or not the applicants were entitled to the salaries and benefits stipulated under that agreement. This was because the respondent had several employees ranging from fixed-term, permanent term, to those contracted for casual work or seasonal work.

Accordingly, it posited that the use of the term “all employees” was vague and it was unable to decide which of the meanings applied by both parties was correct.

The court then held that the provisions of the September 2010 Works Council Agreement did not assist the appellants to discharge their onus.

Concerning the minutes accompanying the Agreement, the court a quo found, that, they were no different from the Works Council Resolutions in that there was no indication whether or not the mentioned employees were on fixed term or permanent employment.

Accordingly, it was unable to decide whether the appellants were included in the term 'employees' as it appeared in the minutes. Therefore, the court ruled that the minutes of the Works Council meeting did not assist the appellants to discharge the onus on them.

As regards the sworn evidence from the signatories to the Agreement, the court noted that the two witnesses who testified for the appellants were not signatories to the agreement or members of the Works Council.

It proceeded to disregard their evidence for non-compliance with clause 3.1 of the order for remittal.

The court a quo further found, that, in any event, the evidence before it was that of sworn affidavits of members of the Works Council who were present when the agreement was reached stating that the appellants were not covered by the agreement.

Further, the authenticity of the list of names relied upon by the appellants was put in issue.

After analysing the list tendered by the appellants, the court remarked, that, on a balance of probabilities, the appellants names were interposed on an existing list. It opined that the list on which the appellants names appeared might have been a combination of documents that were prepared for different purposes.

In the result, it held that the document could not be taken as proof of the people who were involved in the arbitration proceedings before Arbitrator Nasho.

The court concluded that the appellants had not been able to discharge the onus of proving that the salaries and benefits stipulated in the September 2010 Works Council Agreement were intended to apply to them.

It then dismissed the appellants' claim with costs.

This decision prompted the appellants to note the present appeal on the following grounds:

“1. The court a quo erred in coming to the conclusion that the founding affidavit of Joseph Lungu was not properly before it and accordingly striking if off and in consigning the viva voce evidence given on behalf of the appellants to the same fate.

2. A fortiori, the court a quo erred in renouncing the essence of the responsibility that had been placed upon its shoulders by the Supreme Court.

3. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not requiring respondent to account for the 1,079 claimants who were before Arbitrator Nasho and in not requiring it to show how it could be said the appellants were not part of those claimants, all the circumstances of the matter (sic).

4. Having found that the agreement on which appellants sued, and the minutes giving birth to it related and made reference to 'all employees', the court a quo erred in coming to the conclusion that such reference was not determinative of the issue and that it still left room for the conclusion that the appellants were not contemplated by the words 'all employees'.

5. The court a quo erred in not coming to the conclusion that though appellants could not lead the evidence of the signatories to the agreement and that for reasons that were beyond them, all the objective evidence which the Supreme Court had related to and directed be taken into account led to the inexorable conclusion that appellants were covered by the agreement.

6. The court a quo erred in not coming to the conclusion that appellants were on the list of employees which formed part of the Supreme Court record and which respondent had dishonestly tried to amend after the fact that there had accordingly never been a dispute as to their inclusion in the agreement.

7. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not concluding that the discrepancies on the numbers of the employees appearing on the lists were explicable on the basis that some of the employees who had made their contributions had not appeared in the Nasho list.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellants argued, that, the court a quo misdirected itself in ignoring the fact that the only list that contained the names of the 1,079 employees that were covered by the September 2010 Works Council Agreement was the list provided by the appellants.

He submitted that the failure by the respondent to produce the original list of 1,079 employees, covered by that Agreement that it relied on, but, instead, attaching a list with 237 employees indicated that the only list of employees that could be relied on was that produced by the appellants.

He further submitted, that, since the respondent had not disputed the authenticity of the list of 1,079 employees produced by the appellants in this Court when the matter initially came on appeal, it could not seek to do so during remittal proceedings.

Counsel for the appellants also argued that the phrase “all employees” as used in the resolution of the Works Council Meeting, and the Minutes that followed, was unambiguous and applied to all the respondent's employees without discrimination.

This, he submitted, was supported by the fact, that, during the dollarisation period, all the respondent's employees were getting allowances instead of salaries and the object of the arbitration proceedings, held before Arbitrator Nasho, was to discuss the regularisation of all employees' contracts of employment regardless of whether they were permanent or on fixed term contracts.

As such, he contended that there was no justifiable basis upon which the respondent could exclude the appellants.

Further, that regard being had to section 5 of the Labour Court Act [Chapter 28:01], which provides for the protection of employees against discrimination, there was no justification in distinguishing the salary payable to fixed term employees and permanent term employees in the regularisation process.

Counsel for the appellants also submitted that the court a quo erred in taking a rigid approach in resolving the matter leading it to irregularly striking out part of the appellants' evidence.

He submitted that the fact that the evidence was unnecessary does not mean that the appellants did not have a valid claim.

He also submitted, that, the court a quo should not have found that the list of 1,079 employees produced by the appellants was doctored in the absence of expert evidence to that effect.

He also submitted that the Works Council minutes refer to “all employees”.

There was no application to rectify the minutes and it leads to one conclusion - that they applied to all employees.

He further contended, that, there was uncontroverted evidence that the appellants contributed money towards the costs of the arbitration.

Conversely, counsel for the respondent submitted, that, the court a quo could not be faulted in finding that the appellants had failed to discharge the onus upon them of proving that they were included as beneficiaries in terms of the September 2010 Works Council Agreement.

He contended that the onus was on the appellants to prove that they were covered by the Agreement.

He submitted that the court a quo was correct in restricting itself to the parameters set by this Court when it remitted the matter, hence, part of the appellants' evidence was struck out.

It was also his argument that the court a quo had made a factual finding that the list of employees provided by the appellants had patent irregularities and that such factual finding could not be upset by this Court unless the appellants established that such a finding was grossly unreasonable.

Furthermore, he submitted that the court a quo, having found that the text used in the Works Council Meeting, and the subsequent Minutes, did not help the appellants' case, correctly determined that no evidence had been put before it by the appellants to prove that they were part of the 1,079 employees who appeared before Arbitrator Nasho.

ISSUE FOR DETERMINATION

Although the appellants have raised several grounds of appeal, I take the view that the appeal can be determined on the following issue:

WHETHER THE COURT A QUO ERRED IN FAILING TO MAKE A SPECIFIC FINDING ON WHETHER OR NOT THE APPELLANTS WERE COVERED BY THE WORKS COUNCIL AGREEMENT OF SEPTEMBER 2010

In determining this issue, it is necessary to first consider the import of the order in SC01-17 remitting the matter to the court a quo.

That order enjoined the court a quo to determine whether or not the salaries and benefits stipulated in the September 2010 Works Council Agreement of 2010 were intended to apply to the appellants; and, if so, the quantum thereof. Put differently, the court a quo had to determine if the appellants were included in that Agreement.

An examination of the court a quo's ruling reflects that the court a quo did not make this finding.

Having considered the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, as directed by this Court under SC01-17, the court a quo remarked that it was unable to decide whether or not the appellants were included under the agreement.

The court a quo then invoked the principle of onus to the effect that the appellants failed to prove that they were covered by the 2010 agreement.

The court a quo's decision was premised on the inability to resolve the issues in dispute.

I regurgitate the relevant portions of the court a quo's judgment:

“(1) The specific provisions of the Works Council Agreement of September 2010

In our view, the text of the Works Council meeting resolutions of September 2010 does not resolve the issue.

The use of 'all employees' leaves the Court unable to decide which of the two meanings propounded by the parties is correct

It therefore follows that provisions of the Works Council Agreement of 2010 does not help the applicants to discharge the onus upon them.

(2) The Minutes Accompanying the Agreement

The minutes of the Works Council meeting of 16 September 2010 leaves the court in the same position as after considering the Works Council Resolutions of September 2010.

The Court is unable to decide whether the Applicants were included in the term employees as it appears in the minutes.

The minutes of the Works Council meeting of 16 September 2010 therefore do not assist the Applicants to discharge the onus upon them.”…,.

It follows that the court a quo failed to make a determination on the pertinent issue upon which the matter was remitted.

The court a quo's inability to make a finding is a serious misdirection. It is tantamount to not making a decision at all.

In PG Industries (Zimbabwe) Limited v Bvekerwa & Ors SC53-16…, the court opined on the effect of a court's failure to determine an issue in dispute as follows:

“The position is settled, that, where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.

Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.”…,.

In casu, the court a quo, whilst accepting the parties' dispute regarding the import of the September 2010 Works Council Agreement and the minutes thereto, did not make a finding on whether in light of this evidence, the appellants were included in the September 2010 Agreement.

The court could not have failed to determine this crucial issue as the relevant facts upon which it could reach an objective decision were before it.

The irregularity is apparent in the court a quo's assessment of the specific provisions of the September 2010 Works Council Agreement and the minutes accompanying that Agreement.

The finding by the court a quo, that the appellants failed to discharge the onus placed on them to prove that they were covered by the 2010 Agreement did not dispose of the matter. This is so because the question remained whether or not the appellants were covered by the Agreement regard being had to the evidence placed before the court a quo.

This was not an issue the court a quo could ignore. The court was obliged to making a finding.

It failed to do so.

Having found that the court a quo grossly misdirected itself, in failing to make a clear cut determination, the pertinent question that arises is whether the subsequent finding by the court, that the appellants failed to discharge the onus cast upon them, to prove that they were covered by the September 2010 Agreement, was correct.

In Pillay v Krishna & Another 1946 AD 946…, the court made the following remarks regarding the burden of proof in a matter:

“…, the duty which is cast on the particular litigant, in order to be successful of finally satisfying the Court that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case made by his opponent.

The second is that, where there are several and distinct issues, for instance a claim and a special defence, then, there are several and distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise until the first has been discharged.

The third point is that the onus, in the sense in which I use the word, can never shift from the party upon whom it originally rested.

It may have been completely discharged once and for all, not by any evidence which he has led, but by some admission made by his opponent on the pleadings (or even during the course of the case) so that he can never be asked to do anything more in regard thereto; but the onus which then rests upon his opponent is not one which has been transferred to him: it is an entirely different onus; namely, the onus of establishing any special defence which he may have.”…,.

From these remarks, one can note, that, the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour.

It invariably involves a court's weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought.

Therefore, the question of whether or not a party has discharged the onus upon it cannot be determined by a court's indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true.

It is on this basis that I have concluded that the court a quo did not correctly apply the principle of onus of proof to the matter before it.

Counsel for the appellants urged the court to consider, that, on a holistic approach to the matter, there was sufficient material for this court to make a finding that the appellants were part of the September 2010 Works Council Agreement.

That would be tantamount to asking this Court to be a court of first and last instance.

This Court cannot do so for the reason that the general position of law is that for the Supreme Court to consider a case, a lower court or tribunal must have made a relevant order. Its duty is to determine whether those decisions should be confirmed, changed, or reversed. This is because the Supreme Court exercises appellate jurisdiction which is conferred on it by sections 9 and 21 of the Supreme Court Act [Chapter 7:13] and section 169 of the Constitution of Zimbabwe, 2013.

The undesirability of having an Appellate Court sitting as a court of first instance was put across in Dormehl v Minister of Justice and Others [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:

“(b) It is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, without there being any possibility of an appeal against its decisions…”

In any event, there is need for the leading of evidence which the court a quo is best suited to do as is provided in terms of sections 89(2)(a)(i) and 89(5) of the Labour Act [Chapter 28:01].

DISPOSITION

The court a quo's failure to determine whether, in terms of the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, the appellants were entitled to the benefits therein, constitutes a material misdirection justifying interference by this court.

It is also a matter which the court a quo is in as good a position to address, thus, a remittal is appropriate in the circumstances.

The matter would be remitted to be heard before a single judge who shall not be any of the judges who determined the matter previously.

In the result, the appeal succeeds in respect of Ground 2 and is dismissed in respect of the rest of the grounds. It would be fair, in the circumstances of this case, that each party bears its own costs.

It is accordingly ordered as follows:

(1) The appeal be and is hereby allowed.

(2) The judgment of the court a quo be and is hereby set aside.

(3) The matter be and is hereby remitted to the court a quo, before a different Judge, for a proper determination of whether, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, the salaries and benefits stipulated in that agreement were intended to apply to the appellants.

(4) If the answer is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

(5) Each party shall bear its own costs.

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD
Ruled By: MAKONESE J

This is an application for a declaratory order.

This court is invited to declare that Cosira Communications Global (first respondent) and Cosira South Africa (Pty) Ltd (second respondent) which was previously known as Cosira International (SA) (Pty) Ltd are one and the same entity.

To make such declaration, this court is asked to lift the veil of corporate personality on the grounds that such corporate personality has been used as a device to cover up fraud or improper conduct.

It is contended, on behalf of the applicant, that although the first and second respondents have distinct and separate legal personas, they are in fact one economic entity.

The first and second respondents strenuously resist the order sought and argue that there is no factual or legal basis for an order that the liabilities of one corporate entity be deemed to be liabilities of another.

The first and second respondents aver that the order sought is not legally competent and that where the corporate veil is lifted the court must effectively look behind the corporate veil to establish the shareholders of the corporate entity and then attach such liability to them.

The respondents pray that the application be dismissed for lack of merit.

Background

The facts that are common cause are these:

In November 2012, Intro-wise Catering (Pvt) Ltd (applicant) entered into a contract with Cosira South Africa (Pty) Ltd (second respondent) in terms whereof the applicant was to provide catering, housekeeping, and laundry services to Cosira South Africa (Pty) Ltd (the 2nd respondent) at the mining site of Zimbabwe Platinum Mines (Pvt) Ltd (third respondent).

The said agreement was to run continuously from November 2012 until termination by either party giving the appropriate notice in accordance with the agreement.

As a result of the agreement, the applicant supplied catering, housekeeping, and laundry services to the second respondent up to May 2013.

Invoices were raised regularly and a balance of US$155,144=22 remained outstanding for the period up to the end of May 2013.

It was the belief and understanding of the parties that the applicant was being sub-contracted to provide service to a company which had a running contract with Zimbabwe Platinum Mines (Pvt) Ltd (third respondent).

It later transpired that it was Cosira Communications Global (the first respondent), instead, that had a running contract with Zimbabwe Platinum Mines (Pvt) Ltd.

It was established that Cosira South Africa (Pty) Ltd (second respondent) never had any contract with Zimbabwe Platinum Mines (Pvt) Ltd at all.

It is Cosira Communications Global (the first respondent) that had a contract with Zimbabwe Platinum Mines (Pvt) Ltd and it is Cosira Communications Global which consumed the services which were provided by the applicant.

The applicant argues that Cosira Communications Global and Cosira South Africa (Pty) Ltd (first and second respondents) were aware, at all material times, that it was only Cosira Communications Global (first respondent) and not Cosira South Africa (Pty) Ltd (second respondent) which had a contractual relationship with Zimbabwe Platinum Mines (Pvt) Ltd.

Cosira South Africa (Pty) Ltd (second respondent) has tendered into court authenticated documents which reflect, that, on the 10th July 2013, Cosira South Africa (Pty) Ltd was placed under provisional liquidation by order of the North Gauteng High Court, sitting at Pretoria, South Africa.

Cosira South Africa (Pty) Ltd (second respondent) was placed under final liquidation on the 27th August 2013.

An order of the High Court of South Africa was issued on the 30th July 2013, authorizing the liquidators to sue on behalf of, and to defend proceedings against, Cosira South Africa (Pty) Ltd (second respondent).

Cosira South Africa (Pty) Ltd's liquidators dispute liability of the outstanding amount and further state that the applicant has failed to make out a case for the piercing of the corporate veil as Cosira Communications Global and Cosira South Africa (Pty) Ltd are separate legal personalities....,.

The applicant argues that the application is not opposed by Cosira Communications Global (first respondent) and Zimbabwe Platinum Mines (Pvt) Ltd (third respondent). The only opposition before the court is on behalf of Cosira South Africa (Pty) Ltd (second respondent)....,.

The Merits

I shall deal with the merits of this matter.

In order to establish whether the applicant has succeeded in making a case for the piercing of the corporate veil I need to have regard to the following issues:

(a) Whether Cosira South Africa (Pty) Ltd and Cosira Communications Global have the same shareholding;

(b) Whether Cosira South Africa (Pty) Ltd and/or Cosira Communications Global used their company structures to avoid or conceal liabilities due to the applicant;

(c) Whether Cosira South Africa (Pty) Ltd or Cosira Communications Global was used as a device of facade to conceal some wrongdoing in terms of the contract concluded with the applicant;

(d) Whether Cosira South Africa (Pty) Ltd acted fraudulently or dishonestly in relation to the applicant;

(e) Whether there is any compelling reason as to why the corporate veil between Cosira South Africa (Pty) Ltd and Cosira Communications Global should be pierced.

I now propose to deal with the above issues ad seriatim:

(a) Whether Cosira South Africa (Pty) Ltd and Cosira Communications Global have the same shareholding

The two companies, Cosira South Africa (Pty) Ltd and Cosira Communications Global enjoy the legal personalities conferred upon them by the law.

Cosira South Africa (Pty) Ltd is a company with limited liability incorporated in South Africa. Its shareholder is FT Construction (Pty) Ltd.

On the other hand, Cosira Communications Global is an entity incorporated in Mauritus. The shareholder of this company is JOAO DA NOVA.

It is therefore clear that the shareholders of the two companies are not the same.

The applicant realised this undisputed fact and sought to argue that the two entities fall within the same economic group known as the Cosira Group of companies.

This may be so, but there is nothing to establish that the shareholding of the two separate entities is held by the same personas.

(b) Whether Cosira South Africa (Pty) Ltd and/or Cosira Communications Global used their company structures to avoid or conceal liabilities due to the Applicant

The applicant's case is premised on the fact, that, although it concluded a contract with Cosira South Africa (Pty) Ltd to provide catering services, it actually contracted with Cosira Global.

The applicant clearly has a dilemma in that the evidence clearly points to the fact that the contractual arrangement was entered into between the applicant and Cosira South Africa (Pty) Ltd.

The fact that some of the invoices raised by the applicant were settled by Cosira Global does not, in my view, necessarily create a contractual relationship between the applicant and Cosira Global.

The fact that Cosira South Africa (Pty) Ltd may not now be in a position to pay for the services rendered by the applicant does not create any legal or contractual obligation on Cosira Global.

(c) Whether Cosira South Africa (Pty) Ltd or Cosira Communications Global was used as a device or facade to conceal some wrongdoing

There is simply no evidence to prove that Cosira South Africa (Pty) Ltd was used as a device to conceal some wrong doing.

My view is that it is up to contracting parties to perform due diligence exercises with the companies or entities they do business with. When a company makes a free expression to contract with another legal entity it is imperative for the contracting parties to establish who exactly they are contracting with.

In the fast changing world, where contracts can be concluded via the internet and other electronic media, it is, in my view, essential that the contracting parties make themselves familiar with the real personas behind these companies.

The applicant categorically states, that, in or about 1 November 2012 it concluded a contract with Cosira South Africa (Pty) Ltd to provide catering services.

A copy of the Intro-wise Catering contract (“the contract”) is annexed to the applicant's papers as annexure “GG 7”.

The contract is not signed by Cosira South Africa (Pty) Ltd. Cosira South Africa (Pty) Ltd is not a party to that contract.

The contract was in fact signed by Cosira Construction Solutions, with its address at Brakpan, Johannesburg, South Africa, on behalf of Cosira South Africa (Pty) Ltd.

I am satisfied that there is nothing to suggest that Cosira Global was used as a device to conceal some wrongdoing.

(d) Whether Cosira South Africa (Pty) Ltd acted fraudulently or dishonestly in relation to the Applicant

The applicant contends that the two legal entities acted in connivance to defraud it.

Whilst payments for services were effected by either Cosira South Africa (Pty) Ltd or Cosira Global there is no justification to infer fraud or improper conduct. It would seem that the applicant was happy to receive and accept payment as long it was getting paid. It did not matter who was making such payment. The only problem arose when payments ceased. It would seem that is the stage when the applicant sought to establish who exactly was behind the two legal entities.

As I have stated above, fraud or improper conduct cannot be proved in this matter.

(e) Whether there is any compelling reason as to why the corporate veil should be pierced between Cosira South Africa (Pty) Ltd and Cosira Communications Global

Where the piercing of the corporate veil is sought, the court is invited to look at the two separate companies and their shareholders or controllers. The corporate veil is lifted where a company, otherwise legitimately established and operated, is misused in a particular instance to perpetrate fraud or for a dishonest or improper purpose.

The principles governing the piercing of the corporate veil were established and set out in the landmark case of Salomon v Salomon and Company Ltd [1897] AC 22.

The effect of the ruling in this case was to uphold, firmly, the doctrine of corporate personality as set out in the United Kingdom's Companies Act, 1862, so that creditors of an insolvent company could not sue the company's shareholders to pay outstanding debts.

In the decades since Salomon v Salomon and Company Ltd [1897] AC 22, various exceptional circumstances have been delineated, both by legislatures and the judiciary, in England and other jurisdictions, when courts can legitimately disregard a company's separate legal personality, such as where crime or fraud has been committed.

See the case of Adams v Cape Industries PLL [1990] Ch 433.

The other recent English case of Prest v Petrodel Resources Ltd [2013] UKSC 34 is significant in that it proposes that the piercing of the corporate veil was usually a last resort, and that remedies outside of “piercing” the veil, particularly in equity, or the law of tort, could achieve appropriate results on the facts of each case.

In the South African case of Cape Pacific v Lubner Controlling Investments (Pty) Ltd and Others 1995 (4) SA 790, SMALBERGER JA states…, as follows:

“It is undoubtedly a salutary principle that our courts should not lightly disregard a company's separate personality, but should strive to give effect to and uphold it. To do otherwise would negate or undermine the policy and principles that underpin the concept of separate corporate personality and the legal consequences that attach to it. But, where fraud, dishonesty, or improper conduct is found to be present, other considerations would come into play. The need to preserve the separate corporate identity would, in such circumstances, have to be balanced against policy considerations which arise in favour of piercing the corporate veil.”

On the facts of this matter, it is clear that the shareholders of Cosira South Africa (Pty) Ltd and Cosira Communications Global are different.

No evidence has been placed before the court to show that the two legal entities used their structures to avoid or conceal liabilities due to the applicant.

Additionally, it has not been shown that Cosira South Africa (Pty) Ltd was used as a device or facade to conceal some wrongdoing in terms of the contract with the applicant.

I am satisfied that it is not been proved that either Cosira South Africa (Pty) Ltd or Cosira Communications Global acted fraudulently or dishonestly. There is, therefore, no compelling reason why the corporate veil should be lifted.

In the circumstances, I come to the conclusion that a case has not been made for the relief sought.

The application is hereby dismissed with costs.

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

In our jurisdiction, litigation is adversarial, meaning that each party must prove his or her case.

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

This is an application by the Master of the High Court for the removal of the first respondent as executor of the estate of the late Willas Mukati Moyo. The application has been filed in terms of section 117 of the Administration of Estates Act [Chapter 6:01] (“the Act”).

The facts upon which the applicant bases this application are as follows:

The respondents are the surviving spouses of the late Willas Mukati Moyo (the deceased). The estate was registered with the Assistant Master in Gweru by the first respondent. She received a Certificate of Authority from the Assistant Master, dated 15 June 2006, which empowered her to withdraw the balance which was in a Kingdom bank Account belonging to the deceased. She was also authorized to take transfer of a residential Stand known as Photo Studio, Stand Number 822 Gweru Township and a Mazda B1800 Registration Number 352-551G.

Following the registration of the estate, the applicant received complaints that the first respondent was benefiting in the estate to the exclusion of the other beneficiaries.

It was also common cause that the first respondent was operating a lodge as a business on the property and was receiving all the proceeds from the business for her own use.

There was also a complaint that she was disposing of the deceased's movable assets.

The applicant, on 31 August 2007, called a meeting at his office in order to resolve the dispute.

Following this meeting, the applicant decided that the first respondent should be removed as executor and approached this court, by way of chamber application, in accordance with the provisions of section 117 of the Administration of Estates Act....,.

On the merits, the first respondent denies, that, at the time of the deceased's death, the second and third respondents were still married to the deceased. She states that the second respondent left the matrimonial home in 1993 and the third respondent in 1998. They did not attend the deceased's funeral and it was only after the estate was registered that she was approached by the respondents with proof of their existing marriages. She thus submits that her conduct is above reproach.

She further states, that, her appointment was carried out by the Assistant Master in accordance with the Administration of Estates Act, and, thus, there is no basis for this application.

The first respondent also states, that, the business of the lodge, which is being conducted on the premises, was established by her after the death of the deceased. She states that she established the business on her own in order to maintain herself following the death of the deceased. She denied that she had disposed of any movable property of the estate. She further denied that she was benefiting from the estate to the exclusion of the other beneficiaries. She further states that the only dispute between her and the second and third respondents is over her vacation of the matrimonial home and her removal as executor of the deceased's estate....,.

I now turn to the merits of this matter.

Section 117 of the Administration of Estates Act [Chapter 6:01] provides as follows:

“117 Master may apply for removal of executor, tutor or curator from office

(1) The Master may apply to a judge in chambers for the removal of an executor, tutor or curator from his office on the ground -

(a) That he was not qualified for appointment to such office or that his appointment was for any other reason illegal; or

(b) That he has failed to perform satisfactorily any duty or requirement imposed upon him by or in terms of any law; or

(c) That he is mentally or physically incapable of performing satisfactorily his duties; or

(d) That, in his opinion, such person is no longer suitable to hold such office;
and the judge may, upon such application, remove the executor, tutor or curator concerned from his office or make such other order as he sees fit.

(2) Where an executor, tutor or curator has been removed from his office, the Master shall revoke any letters of administration or confirmation, as the case may be, which have been granted to such person.”

It seems to me, that, in order for an application in terms of this provision to succeed, the applicant must establish that it falls under any one of the grounds set out in subsection (1).

In the case of Van Nierkerk NO v Master of the High Court 1996 (2) ZLR 105, the court was faced with a similar application and the court held that the removal of an executor should never be undertaken lightly. The court held, further, that, in order to justify a removal in terms of this section, the court must be satisfied that the executor had failed to perform satisfactorily any duty or requirement imposed on him by or in terms of the law.

The applicant, in this case, did not state, in his application or heads of argument, the grounds upon which he relied for the removal of the executor.

Whilst it is not fatal to the application, as it can be ascertained from the facts in the founding affidavit, I would think that it is desirable to do so.

During the hearing however, counsel for the applicant submitted that he was relying on subsection (1)(a) of the above section.

Counsel for the applicant submitted, that, the first respondent should be removed from office on the basis that her appointment was not in accordance with the law as the estate was too large to be administered summarily in terms of section 32(1) of the Administration of Estates Act.

Section 32(1) of the Administration of Estates Act provides as follows:

“(1) If any person dies whose estate is unrepresented and in so far as the same is in Zimbabwe, appear to the Master to be under the value of such amount as the Minister may specify in terms of subsection (2), the Master may -

(a) Cause such estate to be administered and distributed in accordance with by an executor dative to be by him summarily appointed for that purpose; or

(b) Dispense with the appointment of an executor dative and direct how such estate shall be administered and distributed.”

It seems to me, that, section 32(1) of the Administration of Estates Act allows the Master to deal summarily with an estate if he considers it to be a small estate. In other words, where the Master determines that the estate is a small estate, an executor is appointed without following the normal procedures incumbent upon such appointment nor is the executor required to carry out a full administration of the estate.

In this case, the Assistant Master sitting at Gweru made such an appointment.

It seems to me, however, that, in making the appointment, he failed to comply with the provisions of the Administration of Estates Act.

In deciding whether or not an estate falls within the ambit of this section, the value of the estate must be below an amount which is prescribed by the Minister from time to time by statutory instrument.

In terms of the Administration of Estates (Specified Amount) Notice 1994, published in S.I.155/94, SI155/94 the prescribed amount is $60,000. This statutory instrument has not been amended since 1994 in spite of the skyrocketing values of property in this country.

It seems to me, that, in view of the values of the property market, no estate would ever fall within the ambit of this section.

In my view, it is incumbent for the Minster to review the prescribed amount from time to time in the same manner that he reviews the value of an estate for which duty is payable.

In this way, an unnecessary burden is not placed on the Masters office, and the public, by being obliged to provide full administration in what is essentially a small estate which would not require full administration.

The estate before me involves an immovable property in the City of Gweru. It has been described as a residential property with a business of a lodge being conducted on its premises. It also involves a motor vehicle and some cash.

Whilst no value of this estate has been given in the papers before me, it is quite apparent that such an estate, as described, could not have been valued below $60,000 - even in 2006 when it was registered.

Immovable property values at that time were already in the million dollar range.

It seems to me that such an estate cannot be defined as a small estate. The Assistant Master should therefore not have proceeded in terms of section 32 of the Administration of Estates Act.

It was submitted, on behalf of the first respondent, that, at the relevant time, there was a circular from the applicant directing that all estates dealing with customary law marriages should be dealt with in terms of section 32 of the Administration of Estates Act.

Unfortunately, the circular was not placed before the court so that the court could determine the meaning of the circular for itself.

prev 1 2 3 4 5 6 next

Back Main menu

Law Portal Zimbabwe

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

View Appeal HH321-17 : NORMAN MAFERERA vs SUSAN JANUARY Ruled By: MATANDA-MOYO J

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU Ruled By: MAKONESE J

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

Appealed HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD Ruled By: KUDYA J

View Appeal HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA Ruled By: MATANDA-MOYO J

SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O. Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

View Appeal HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT Ruled By: KUDYA J

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD Ruled By: MATHONSI J

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT Ruled By: MAKARAU JP

View Appeal HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O. Ruled By: KUDYA J

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS Ruled By: MAKARAU JP

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS Ruled By: NDOU J

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA Ruled By: MAKARAU JP

HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER Ruled By: MATHONSI J

HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI Ruled By: MAKARAU JP

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE Ruled By: CHITAKUNYE J

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED Ruled By: KUDYA J

HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS Ruled By: CHATUKUTA J

View Appeal HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE Ruled By: MANGOTA J

View Appeal HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS Ruled By: MAVANGIRA J

Appealed SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: CHITAPI J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF Ruled By: CHIGUMBA J

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS Ruled By: TSANGA J

HB38-13 : MKANDLA TOURS AND TRANSPORT vs UNIQUIP (PVT) LTD and TAWANDA PUCHE Ruled By: CHEDA AJ

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O. Ruled By: CHITAKUNYE J

View Appeal HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS Ruled By: CHIKOWERO J

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE Ruled By: HUNGWE J

HH521-18 : DEPUTY SHERIFF MARONDERA vs ESTHER HOMBARUME and VIOLET MUNJARANJI and EPHISON NDAHWI and SHAKI MUSEVE and NOMUHLE BANGANI and COOPER SMIT and TIANZE TOBACCO PL and LAWRENCE KATSIRU Ruled By: CHITAPI J

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD Ruled By: MTSHIYA J

View Appeal HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR) Ruled By: DUBE-BANDA J

SC77-17 : JULIANA SABARAUTA vs LOCAL AUTHORITIES PENSION FUND and THE SHERIFF Ruled By: GUVAVA JA, UCHENA JA and ZIYAMBI AJA

HH128-16 : THE SHERIFF OF THE HIGH COURT vs ORIMBAHURU HOLDINGS (PVT) LIMITED and PEOPLES OWN SAVINGS BANK Ruled By: FOROMA J

HH542-15 : THE SHERIFF OF THE HIGH COURT vs RONGXIN MINING (PRIVATE) LIMITED and FREDDY MAKUVISE Ruled By: MTSHIYA J

HHB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE Ruled By: MATHONSI J

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC49-16 : MONTEREY ESTATE (PRIVATE) LIMITED vs KENNY BROXHAM Ruled By: MALABA DCJ, ZIYAMBI JA and MAVANGIRA AJA

HH965-15 : CONPLANT TECHNOLOGY (PVT) LTD vs WENTSPRING INVESTMENTS (PVT) LTD Ruled By: MAFUSIRE J

SC16-21 : GML EXPLOSIVE (PRIVATE) LIMITED vs LACKSON GONO AND 29 OTHERS Ruled By: MAVANGIRA JA, MAKONI JA and MATHONSI JA

SC16-22 : CHURCH OF GOD OF PROPHECY(INTERNATIONAL) vs CHURCH OF GOD PROPHECY AND OTHERS Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

SSC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT Ruled By: UCHENA JA

HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O. Ruled By: MAKONESE J

HH710-16 : TENDAI MANGWIRO vs DR IGNATIUS CHOMBO Ruled By: TSANGA J

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS Ruled By: CHITAPI J

Appealed SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD Ruled By: MAKONESE J

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI Ruled By: GOWORA JA, PATEL JA and BERE JA

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA Ruled By: GUVAVA J

Categories

Your Donation.

Law Portal
Zimbabwe

View Appeal
HH321-17 : NORMAN MAFERERA vs SUSAN JANUARY
Ruled By: MATANDA-MOYO J

HB129-15 : LIZNET MPOFU vs ENOCK B. MPOFU
Ruled By: MAKONESE J

SC35-15 : ELIAS CHIDEMBO vs BINDURA NICKEL CORPORATION LIMITED
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA AJA

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

View Appeal
HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

View Appeal
HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI
Ruled By: MAKARAU JP

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED
Ruled By: KUDYA J

HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS
Ruled By: CHATUKUTA J

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

View Appeal
HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS
Ruled By: MAVANGIRA J

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

HB38-13 : MKANDLA TOURS AND TRANSPORT vs UNIQUIP (PVT) LTD and TAWANDA PUCHE
Ruled By: CHEDA AJ

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O.
Ruled By: CHITAKUNYE J

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

HH521-18 : DEPUTY SHERIFF MARONDERA vs ESTHER HOMBARUME and VIOLET MUNJARANJI and EPHISON NDAHWI and SHAKI MUSEVE and NOMUHLE BANGANI and COOPER SMIT and TIANZE TOBACCO PL and LAWRENCE KATSIRU
Ruled By: CHITAPI J

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD
Ruled By: MTSHIYA J

View Appeal
HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR)
Ruled By: DUBE-BANDA J

SC77-17 : JULIANA SABARAUTA vs LOCAL AUTHORITIES PENSION FUND and THE SHERIFF
Ruled By: GUVAVA JA, UCHENA JA and ZIYAMBI AJA

HH128-16 : THE SHERIFF OF THE HIGH COURT vs ORIMBAHURU HOLDINGS (PVT) LIMITED and PEOPLES OWN SAVINGS BANK
Ruled By: FOROMA J

HH542-15 : THE SHERIFF OF THE HIGH COURT vs RONGXIN MINING (PRIVATE) LIMITED and FREDDY MAKUVISE
Ruled By: MTSHIYA J

HHB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC49-16 : MONTEREY ESTATE (PRIVATE) LIMITED vs KENNY BROXHAM
Ruled By: MALABA DCJ, ZIYAMBI JA and MAVANGIRA AJA

HH965-15 : CONPLANT TECHNOLOGY (PVT) LTD vs WENTSPRING INVESTMENTS (PVT) LTD
Ruled By: MAFUSIRE J

SC16-21 : GML EXPLOSIVE (PRIVATE) LIMITED vs LACKSON GONO AND 29 OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and MATHONSI JA

SC16-22 : CHURCH OF GOD OF PROPHECY(INTERNATIONAL) vs CHURCH OF GOD PROPHECY AND OTHERS
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

SSC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O.
Ruled By: MAKONESE J

HH710-16 : TENDAI MANGWIRO vs DR IGNATIUS CHOMBO
Ruled By: TSANGA J

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD
Ruled By: MAKONESE J

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J