This is an appeal against the entire judgment of the High Court, dated 4 September 2019, in which the court a quo granted a declaratur and consequential relief sought by the respondents against the appellants and dismissed the application for a declaratur sought by the appellants against the respondents.

The order of the court a quo erroneously confirmed the terms of a provisional order of the initial urgent chamber application that had, by consent of the parties, been removed from the roll of urgent chamber matters, on 8 October 2018, and enlisted on the opposed roll. The provisional order was substituted by an “amended draft order” filed together with the respondents answering affidavits and heads of argument on 2 November 2018.

The erroneous order was, with the consent of the parties, corrected by this Court in terms of section 22(1)(a) of the Supreme Court Act [Chapter 7:13] in Civil Appeal No. SC527/2019, which was specially lodged by the respondents for that purpose and heard just before the present appeal.

The corrected order of the court a quo, therefore forms the basis of the present appeal.

The appeal concerns a church dispute between two formations for the control and leadership of the Apostolic Faith Mission in Zimbabwe (the AFM or the church).

The appealed judgment is a consolidation of two applications that were filed separately by the parties.

The first application, HC9149/18, was filed by the first five respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba and Tawanda Nyambirai) against the seven hominal appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Donard Mdoni, Arthur Nhamburo and M. Mashumba) on 4 October 2018; while the second application, HC179/19, was filed by the first five appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata and Apostolic Faith Mission in Zimbabwe) against the second (Aspher Madziyire), third (Amon Madawo), sixth (Clever Mupakaidzwa), seventh (Briton Tembo) and eighth (Christopher Chembere) respondents on 10 January 2019.

In the first application, the respondents sought the nullification of a meeting held by the appellants on 22 September 2018, and all subsequent acts flowing from it while in the second application the appellants sought recognition as the duly elected office bearers of the church and consequential relief.

The High Court granted the first application and dismissed the second, with costs.

The church is a universitas with a written Constitution and consequent regulations, which inscribe its foundational values, confession of faith, mission and governance structures and reposes the power to sue and be sued in its national office bearers in clauses 1.2, 1.3, 1.4 1.4. 6(f) and 12.4.1, respectively.

The dominant protagonists in the two applications were the second respondent (Aspher Madziyire) and the first appellant (Cossam Chiangwa), respectively, who were elected President and Deputy President of the church at the triennial elections in April 2015. The third (Amon Madawo) and fourth (Munyaradzi Shumba) respondents were elected, at the same elections, as General Secretary and National Administrator.

Between August 2015 and 15 September 2018, the Church, led by the Apostolic Council and Workers Council, conducted a Constitutional Review Process (CRP) through a Constitutional Review Committee (CRC) chaired by the fifth respondent (Tawanda Nyambirai), a co-opted member of the Apostolic Council.

The Constitutional Review Process (CRP) was designed to address acute electoral, financial, and governance shortcomings through the amendment of the Constitution and geared to deliver free, fair and credible church elections; strengthen accountability and transparency; and engender parity and equity in the conditions of service of the clergy and development programs of the church in both rural and urban areas.

The Constitutional Review Process (CRP) culminated in the Extraordinary General Meeting (EGM) of the Workers Council of 10 February 2018, which resolved to hold the triennial Provincial and Workers Council elections, due on 28 April 2018, after “the Workers Council considers, and, if deemed fit, passes, with or without amendment, the proposed amendments to the Constitution of the Apostolic Faith Mission in Zimbabwe in terms of the attached draft” at its scheduled meeting of 28 April 2018.

The meeting of 28 April 2018 was terminated unceremoniously without resolving the proposed resolution.

Tonderai Mathende took the Church, the first (Apostolic Faith Mission in Zimbabwe), second (Aspher Madziyire) and fifth (Tawanda Nyambirai) respondents and the first appellant (Cossam Chiangwa) to court under HC4756/18 and obtained an order compelling the 2015 office bearers to reconvene and conclude the aborted Workers Council meeting of 28 April 2018.

By a letter dated 31 July 2018, the second respondent (Aspher Madziyire) called for a Workers Council Meeting to be held on 15 September 2018 in compliance with the court order issued under HC4756/18....,.

Counsel for the appellants contended that the failure to strictly abide by the requirements of clause 12.6 of the Constitution invalidated the meeting of 15 September 2018 and the outcomes that flowed from it.

Per contra, counsel for the respondents argued, that, that meeting, together with its outcomes, was valid.

In terms of clause 12.9.1 of the Constitution, the quorum required for a valid meeting for the dispatch of a constitutional amendment is a simple majority of the full complement of the Workers Council.

Whether reliance is placed on the 3,475 total membership figure provided by the respondents or 2,056 figure supplied by the appellants, the quorum was achieved by the recorded total number of 2,056 councillors in attendance on 15 September 2018.

Clause 12.6 of the Constitution provides that:

“To amend this Constitution, written notice shall be given to the General Secretary by Provincial Workers Council, the Apostolic Council, at least six months before the next Workers Council meeting. In the said notice, details must be given of the proposed amendment. Such notice shall then be forwarded to all Provincial Workers Councils in preparation for the next Workers Council Meeting. A two-thirds majority of the Workers Council shall decide whether the Constitution should be amended or not.”

The cumulative and conjunctive requirements to pass a valid Constitutional amendment are that:

1. Six months written notice from either the Provincial Workers Council or the Apostolic Council, or both, be given to the General Secretary before the Workers Council meeting at which the amendments are to be considered;

2. The details of the proposed amendments must accompany the notice;

3. The notice, and the detailed amendments, must be sent to all Provincial Workers Councils before that Council meeting;

4. The quorum for passing the amendment is a two-thirds majority of the optimum membership of the Workers Council.

Counsel for the appellants correctly contended, that, clause 12.4.1 and 12.3.1 of the Constitution enjoins the Workers Council and the Apostolic Council and the office bearers, acting of their own accord, to strictly abide by the letter and spirit of the Constitution. He also correctly contended that the courts are enjoined, by case law, such as Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) to generally construe the constitutions of universitas, like the church, strictly.

The meeting of 15 September 2015 was, however, convened on a month's and not six months notice.

The notice emanated from the President and General Secretary and not the Workers Council or Apostolic Council. However, the notice, together with the proposed amendments, were dispatched to the Provincial Councils for the next Workers Council meeting, by the General Secretary.

The parties were at variance on whether the resolution of that day was passed by the two-thirds quorum prescribed in clause 12.6.

The second (Aspher Madziyire) and third (Amon Madawo) respondents did not convene that meeting of their own accord. They did so in obedience to a judicial command emanating from the unopposed Mathende application.

They were commanded to convene the Workers Council meeting on 30 days notice to the members of the Workers Council. The 30 days were to be calculated to commence within 7 days of the service of the order on the last of the respondents cited in that order.

The onus to establish, on a balance of probabilities, the date on which the last of the respondents in HC4756/18 was served with the court order was on the appellants.

They did not adduce any evidence to that effect in their papers.

In the absence of that evidence, the argument by counsel for the appellants, that 15 September 2018, fell outside the outer limits of the court order is unsustainable....,.

This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused.

The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent. After argument, I reserved judgment.

In his application, the applicant has made an analysis of the evidence given against him up to the close of the State case. He has concluded that none of the State witnesses incriminated him in any way. In particular, the witness from the Registrar of Companies had actually exonerated him. The fraud allegation is predicated on the alleged prejudice to the Registrar of Companies. The applicant says that the only evidence that seemed to have influenced the magistrate in his decision was the hearsay evidence of the investigating officer who apparently was under pressure from a disgruntled former employee of the “stolen” company.

The applicant expressed concern that the magistrate's conduct would inevitably lead to a miscarriage of justice in that in his ruling dismissing the application for discharge at the close of the State case, he had put the applicant on his defence to “clear” his name.

This, according to the applicant, was an irregular reversal of the onus of proof.

It was now the applicant who was to prove his innocence. This was a clear violation of the presumption of innocence.

Given the inadequate evidence led by the State up to the time of the closure of its case, the magistrate's decision to put the accused person on his defence was so outrageous in its defiance of logic that no sensible person having applied his mind would have arrived at it. It was unprocedural for a court to facilitate the State to bolster its case by the defence evidence.

That, in summary, is the applicant's argument for the review application.

The urgent application was meant to stop the resumption of the criminal trial on 14 August 2013. It was contended, that, the review application would be rendered academic if the trial went ahead.

At the hearing, the second respondent opposed the application on the basis, that, superior courts normally refrain from interfering in uncompleted proceedings. It was submitted, that, there was no danger of an irreparable harm or of a miscarriage of justice. The trial should be allowed to proceed without interference. If, at the end of it, the applicant is aggrieved by the outcome he can always appeal. To allow such an application would open the flood gates. Any accused person unhappy with the exercise of discretion by a magistrate, in dismissing an application for discharge at the close of the State case, would always rush to this court. That would seriously interfere with the smooth administration of justice.

Strong reliance was placed by the respondents on the Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04 aforesaid.

However, I find, that, that judgment dealt with a different issue.

Other than the remark by the Supreme Court that the High Court had found justification “…, for the unusual course of interfering in an uncompleted trial…,.” I do not think the case is relevant.

It dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or alter the proceedings of an inferior court or tribunal.

The classical position is that, generally, a superior court does not encourage the bringing of uncompleted proceedings for review. In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), this court, UCHENA J, said…,:

“Generally, this court does not encourage the bringing of unterminated proceedings for review. There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review. An application of this nature can only succeed if the application for review has prospects of success.”

Thus, it is not the position that no review or interference is competent at all unless the proceedings in the inferior court have been completed.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), for instance, this court interfered in the middle of the trial in the Magistrates Court where it was satisfied that the magistrate's refusal to recuse himself would render his proceedings a nullity as the accused person's grounds for seeking recusal had merit.

The learned judge went on to state:

“The probability of the proceedings being a nullity justifies the stopping of the proceedings pending a determination of their validity by the reviewing court. It would be prejudicial to the accused, and a waste of time and resources, for the trial court to carry on with a trial which is likely to be declared a nullity.”

In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA…, stated…,:

“The general rule is that a superior court should intervene in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In exercising review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion of the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

It is not every wrong decision by the inferior court that warrants interference. In Attorney–General v Makamba 2005 (2) ZLR 54 (S) MALABA JA, at p64D–E, quoted with approval the remarks of STEYN CJ in the case of Ismail & Ors v Additional Magistrate, Wynberg & Anor 1963 (1) SA 1 (A):

“It is not every failure of justice which would amount to a gross irregularity justifying intervention before completion…,. A superior court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to 'rare cases where grave injustice must otherwise result or where justice might not by other means be obtained.'”

In this application, counsel for the respondents submitted, that, the applicant was not without a remedy. He could appeal any adverse decision against him. He could always choose to exercise his constitutional right to remain silent and thereby obviate the danger of self-incrimination.

However, counsel for the applicant urged that the applicant's situation should be deemed as one of those exceptional cases contemplated by the law and that for the applicant to exercise the right to silence would hardly be satisfactory, since, in terms of section 199 of the Criminal Procedure and Evidence Act, such conduct could invite an adverse inference against him.

Naturally, I do not, at this stage, have to decide the review application or consider the applicant's prospects of success in much greater detail. But, I must, of necessity, consider the merits of that application and assess the prospects of success before I can be able to pass judgment in this application.

Section 198(3) of the Criminal Procedure and Evidence Act, which governs discharges at the close of the State case, reads:

“198 Conduct of trial

1….,.

2….,.

3. If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty.”…,.

Thus, a court has no discretion.

It was noted by the Supreme Court in State v Kachipare 1998 (2) ZLR 271 (S), that, unlike its precursor, namely, section 188(3) of [Cap 59] which used 'may' as opposed to 'shall', in the current section 198(3) a court must acquit at the close of the State case where:

(i) There is no evidence to prove an essential element of the offence;

(ii) The court must acquit where there is no evidence on which a reasonable court, acting carefully, might properly convict;

(iii) The court must acquit where the evidence on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.

It was also noted in that judgment, that, unlike South Africa, in this country, there is no longer any controversy as to whether a court may properly refrain from exercising its discretion in favour of the accused, if, at the close of the case for the prosecution it has reason to suppose that the inadequate evidence adduced by the State might be supplemented by defence evidence.

See also State v Kuruneri HH59-07 and State v Morgan Tsvangirai & Ors HH119-03.

Section 198(3) of the Criminal Procedure and Evidence Act opens with the words: “If at the close of the case for the prosecution the court considers that…,.”

In my view, there should be no difficulty for the Review Court, where the magistrate does in fact consider that there is no evidence adduced by the State at the close of its case but goes on to refuse the discharge application opting to hear the defence evidence.

That decision would be contrary to the law.

The difficulty arises, in my view, where the magistrate, despite glaring deficiencies in the State evidence, nonetheless fails to consider that there is no evidence linking the accused to the crime.

Plainly, the question whether, at the close of the State case, there is, or there is no evidence that the accused committed the offence charged is one of fact. It is a misdirection where the trier of facts sees facts that are completely absent or fails to see facts that are so patently conspicuous.

I have briefly considered the application for review that is pending in this court, and, in particular, the record of proceedings in the Magistrate's Court. I have also considered the magistrate's judgment dismissing the application for discharge.

I think that there is every likelihood that the Review Court might find that that there was a serious misdirection so gross as to warrant interference with the trial even before it is completed.

To begin with, it is curious that the charge is about the prejudice said to have been suffered, not by the original owners of the company in question; not by the other company with which a Tribute Agreement was entered into and consummated, but by the Registrar of Companies whose reputation and good administration was said to have been tarnished.

Nobody else but the State, through the police and the disgruntled former employee, seemed to complain.

As pointed out before, the witness from the Registrar of Companies had nothing against the applicant.

None of the rest of the witnesses, except perhaps the investigating officer and the former employee, had anything against the applicant.

The investigating officer testified on his investigations and on the witnesses that he had assembled. He had no independent knowledge of the fraud himself. All the witnesses that he had assembled, other than the former employee, said nothing incriminatory of the applicant. Even that former employee merely alleged that he once worked for the company in question and that he was informed that it had not been sold.

That is hardly evidence of fraud against the applicant.

At the hearing of the urgent chamber application, counsel for the respondents submitted, that, the second respondent must have considered that the evidence of the witness from the firm of chartered accountants that used to audit the books of the “stolen” company had been relevant to the charge and that therefore the accused had to be put on his defence.

However, all that the witness from the firm of chartered accountants said was that she had not seen any company resolutions in which the applicant had been appointed a director of the company.

In my view, even if that evidence was relevant, it was of no value to the offence charged.

The Review Court might find that the directive by the second respondent, that the applicant be put on his defence to “clear” his name was irregular. It may have amounted to a shifting of the onus to the applicant to prove his innocence when there was probably no shred of evidence of the commission of the offence at the close of the State case. In reality, the applicant was probably being asked to clear his name against mere suspicions by the investigating officer and those urging him on.

The Review Court might find, that, there was a failure by the second respondent to see that, at the close of the State case, there was, in reality, no evidence of the commission of the offence with which the applicant was charged and therefore that there was a gross misdirection.

The Review Court might find, that, all the criteria for discharge at the close of the State case, as set out in State v Kachipare 1998 (2) ZLR 271 (S) and others were in fact satisfied.

It is necessary to weigh the balance of convenience between the need for a judicial officer to manage his or her court by, for instance, insisting on the continuation of a scheduled hearing in the interests of justice and the efficient administration of justice, against fairness and the delivery of quality justice.

In Matapo & Ors v Bhila NO & Anor 2010 (1) ZLR 321 (H), UCHENA J stated as follows:

“I entirely agree with HARMS JA's comments, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA), on the judicial officer's responsibilities in the management of cases that come before them for trial or preparation for trial.

I would only add that this equally applies to magistrates, who in fact preside over more cases than judges.

The need for firm control of proceedings is called for, as a supine approach will result in avoidable backlogs. The need for efficient court management by judicial officers must, however, give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and turning down those made for dilatory purposes.”

I am satisfied that the application for review has strong merit.

The balance of convenience favours the postponement of the trial to allow the review application to be heard. I am of the view, that, the magistrate's dismissal of the discharge application was not about an injudicious exercise of discretion because such discretion is not available. It was about his failure to consider that there was no evidence led by the State when it closed its case linking the accused to the offence.

The magistrate seems to have seen something but which in reality was non-existent.

He failed to see that such evidence, as was led, either exonerated the accused or was harmless to him. That failure, in my view, was so gross as to warrant interference.

The applicant is entitled to an opportunity to present his application for review for real relief than for academic purposes. If I do not grant the interim relief, the review application will just become one for academic purposes. At any rate, the matter will be ventilated and canvassed more fully on the return day.

In the meantime, I grant the interim order sought as follows:

Pending the determination of this matter on the return day, the trial proceedings in the Magistrate's Court, under CRB R874/12, are hereby stayed.

The parties in this application are embroiled in a bitter dispute over the implications of their failure to specifically include Value Added Tax (abbreviated herein as “VAT”) matters in agreements for the milling of sugarcane.

The applicants are both companies duly incorporated in terms of the laws of Zimbabwe whose names over the years have become synonymous with sugar and sugar cane production in Zimbabwe. They grow, source, and mill sugar-cane and market its products. They carry on this agro-based business in and around the Lowveld towns of Triangle and Chiredzi.

The first respondent is the Zimbabwe Revenue Authority (ZIMRA): a statutory body whose chief mandate is to assess, collect, and enforce the payment of all revenues on behalf of the State. It is established in terms of the Revenue Authority Act [Chapter 23:11].

Save for the 10th (Farai Dumo Augustine Musikavanhu) and 11th (Roy Bhila), the rest of the respondents are organisations representing the interests of sugarcane farmers in the Lowveld (Zimbabwe Sugar Cane Development Association, Zimbabwe Cane Farmers Association, Mkwasine Sugar Cane Farmers Trust, Commercial Sugar Cane Farmers Association of Zimbabwe, Hippo Valley Productive Farmers Association, Zimbabwe Sugar Cane Development Association Royal Trust, Chipiwa Mpapa Mill Group and Chiredzi Productive Cane Growers Association).

The 10th (Farai Dumo Augustine Musikavanhu) and 11th (Roy Bhila) respondents are individual sugar cane farmers.

They were probably singled out on account of the positions they hold as Members of Parliament for the Chiredzi South and Chiredzi North constituencies respectively over and above their roles as sugar-cane farmers. They also occupy and serve in specialised Parliamentary capacities.

Solely for purposes of convenience and brevity, the second to eleventh respondents (Zimbabwe Sugar Cane Development Association, Zimbabwe Cane Farmers Association, Mkwasine Sugarcane Farmers Trust, Commercial Sugarcane Farmers Association of Zimbabwe, Hippo Valley Productive Farmers Association, Zimbabwe Sugarcane Development Association Royal Trust, Chipiwa Mpapa Mill Group, Chiredzi Productive Cane Growers Association, Farai Dumo Augustine Musikavanhu and Roy Bhila) will be referred to simply as “the farmers” and the first respondent as “ZIMRA”.

It is common cause, that, pursuant to the terms of either of two types of written agreements between them, the farmers supply the sugar cane that they produce to the applicants. These contracts are generally referred to by the parties as the “Cane Milling Agreement” and the “Cane Purchase Agreement.”

Under the former, the basic idea (as is implicit in the name) is that the applicants merely provide a milling service to the farmers. In addition, the applicants also proceed to market, on behalf of the farmers, the sugar and molasses thereby produced as well as other by-products, and, thereafter, remit to the farmers the proceeds thereof after deducting the expenses associated with the milling of the sugarcane and marketing of the sugar and the other by-products.

It is further common cause, that, under the cane milling arrangement, there is an existing agreement that the charge for the milling is calculated according to a pre-determined ratio referred to as the “Division of Proceeds” (DoP) ratio. This ratio currently stands at 23 percent of the proceeds which the applicants retain in the wake of the marketing of the products of the milling process. The farmer gets the remainder.

The Cane Purchase Agreement operates differently.

According to the parties, this agreement involves a direct and complete sale of the sugar cane by the farmers to the applicants with risk and benefits passing to the latter upon the delivery of the cane.

During oral submissions in court, counsel for the applicants referred to a rather convoluted method by which the purchase price of the cane is computed under this arrangement; suffice it to say that there is no convergence as among the parties as to whether the supplies of cane that gave rise to the current dispute constitute a Cane Milling Agreement or a Cane Purchase Agreement.

Be that as it may, it is common cause, that, in a decision (which has since been appealed against to the Fiscal Appeals Court), the first respondent determined that the set-up which currently obtains, chiefly characterised by the distribution of proceeds arrangement, constitutes one which attracts value added tax (VAT).

Therein lies the genesis of the dispute.

This is because the simple question to be answered is whether the 23 percent retained by the applicants, post the milling and marketing, incorporates value added tax (VAT) (as contended by the farmers) or it does not (as maintained by the applicants).

It is further common cause that the Zimbabwe Revenue Authority (ZIMRA), having made the decision that the aforementioned arrangement was one that attracts value added tax (VAT) in terms of the law, and that the applicants were therefore legally obligated to have, all along, charged and collected from the consumers (i.e. the farmers) and remitted the amounts so collected to it, directed that the said amounts be paid to it.

In compliance with that decision, the applicants aver, that, they have since calculated the outstanding amounts in this regard and remitted the same to the first respondent.

Through the current application, the applicants seek;

(i) A declaratory order to the effect that they are legally entitled to recover from the farmers the value added tax (VAT) which they have since paid to the first respondent; and

(ii) Secondly, that they are legally entitled to continue charging and collecting value added tax (VAT) from the farmers over and above the 23 percent milling charge.

The applicants also take exception to the fact that the first respondent (through some of its officials) took it upon itself to render certain advice to the farmers which advice they contend amounts to an unwarranted interference in matters that are purely contractual.

Part of that advice related to the first respondent's interpretation of the tax implications of the failure to include value added tax (VAT) matters in the cane supply agreements.

The terms of the declaratur sought by the applicants are captured in the draft order annexed to the application which reads:

“Wherefore, after reading papers filed of record and hearing counsel, IT IS ORDERED THAT:

1. The application succeeds with costs.

2. It be and is hereby declared that -

(a) The conduct by the first respondent to give advice to the applicants and the second to eleventh respondents on what are purely contractual matters is ultra vires its functions and responsibilities as an administrative authority and therefore unlawful.

(b) To the extent that they are liable to pay VAT for milling costs, the applicants are entitled to charge, levy, and collect such VAT in accordance with the VAT Act on and in addition to the value for the milling charge.

3. The first respondent be and is hereby ordered and directed to refrain from gratuitously interfering in pricing and contractual issues between the applicants and the second to eleventh respondents.

4. The respondents shall, jointly and severally, the one paying the others to be absolved, pay the applicants costs of suit on an attorney–client scale.”

The applicants raised a number of arguments in support of their contention that they should be permitted to recover that which they have since paid to the Zimbabwe Revenue Authority (ZIMRA) in the wake of the latter's aforementioned determination.

The main thrust of their argument, as I see it, however, is that the very fact that the Act makes it clear that the burden to pay the tax in question rests on the consumers, who in this case are the farmers, yet it was them (applicants) who were compelled to pay it, necessarily implies that they can recover the same from the farmers.

Reliance was placed, inter alia, on the elucidation by GOWORA JA, of the tripartite relationship in the value added tax (VAT) equation. This was in the case of ZIMRA v Packers International (Private) Limited SC28-16 where the following exposition was made:

“The system of collection of VAT, as embodied in the VAT Act, involves the imposition of tax at each step along the chain of manufacture of goods or the provision of services subject to VAT;”

And further that:

“…, tax under the VAT Act consists of monies that have been taxed on goods and services paid by consumers for onward transmission to the Commissioner. All that is required of an operator is to calculate the amount so paid, submit a return, and make payment.”

Flowing from this basic premise, according to the applicants, are two applicable precepts that emanate therefrom, namely, unjust enrichment and equity.

The latter, though not specifically pleaded in their papers, was nevertheless amply canvassed during the oral submissions in court.

Regarding unjust enrichment, it was averred, that, should the court not find in the applicants favour, an injustice will ensue in that the respondents will have been unjustly enriched at their expense.

For the requirements and application of the principle of unjust enrichment, the following cases were cited as authority; Industrial Equity v Walker 1996 (1) ZLR 269 (H); Chioza A.M. v Siziba S.W. SC04-15; and Trojan Nickel Mine Ltd v Reserve Bank of Zimbabwe HH169-13.

It was contended, that, the facts of this case point to the fact that all the pre-requisites for a finding for the applicant on the basis of unjust enrichment have been met.

The nub of the equity argument is that justice and fairness simply demand that the applicants be allowed to recoup from the farmers that which they paid to the Zimbabwe Revenue Authority (ZIMRA) in compliance with the latter's determination.

It is clear that this is merely an extension or adjunct of the unjust enrichment contention.

The applicants further referred to various sections of the Act which, in their view, fortify their position. Reliance was placed in this regard to section 9(2) which provides as follows:

“The value placed on any supply of goods or services shall, save as is otherwise provided in this section, be the value of the consideration for such supply, as determined in accordance with subsection 3, less so much of such value as represents tax: Provided that -

(a)…,.;

(b) Where the portion of the value of the said consideration which represents tax is not accounted for separately by the registered operator, the said portion shall be deemed to be an amount equal to the tax fraction of that consideration.”

Similarly, reliance was placed on section 9(5) of the Act which provides:

“Where goods or services are deemed to be supplied by a registered operator in terms of subsection (2) or (8) of section 7, the supply shall be deemed to be made for a consideration in money equal to the lesser of -

(a) The cost to the registered operator of the acquisition, manufacture, assembly, construction, or production of goods or services, including -

(i) Any tax charged in respect of the supply to the registered operator of such goods or services or of any components, materials, or services utilised by him in such manufacture, assembly, construction or production;

(ii) Where such goods or any right referred to in subsection (2) of section seven, when held by the registered operator, constituted trading stock as defined in section 2 of the Taxes Act, any further costs, including tax incurred by him in respect of such goods or right;

(iii) Any costs, including tax, incurred by the registered operator in respect of the transportation or delivery of such goods or the provision of such services in connection with the transfer of such goods or the provision of such services as contemplated in subsection (8) of section seven; and

(iv) Where such goods or services were acquired under a supply in respect of which the consideration in money was in terms of subsection (4) of this section deemed to be the open market value of the supply or would in terms of that provision have been deemed to be the open market value of the supply were it not for the fact that the recipient would have been entitled under subsection (3) of section fifteen to make a deduction of the full amount of tax in respect of that supply, such open market value to the extent that it exceeds the consideration in money for that supply: or

(b) The open market value of such supply.”

The third (Zimbabwe Cane Farmers Association) and fourth (Mkwasine Sugar Cane Farmers Trust) respondents did not ultimately participate in the proceedings on account of the fact that the former did not file any opposing papers and the latter filed its heads of argument outside the prescribed time and was therefore barred.

In a similar vein, there was no appearance by or on behalf of the sixth (Hippo Valley Productive Farmers Association), ninth (Chiredzi Productive Cane Growers Association) and eleventh (Roy Bhila) respondents on the day of the hearing.

Effectively, therefore, only the positions of the first (Zimbabwe Revenue Authority), second (Zimbabwe Sugar Cane Development Association), fifth (Commercial Sugar Cane Farmers Association of Zimbabwe), seventh (Zimbabwe Sugar Cane Development Association Royal Trust), eighth (Chipiwa Mpapa Mill Group), and tenth (Farai Dumo Augustine Musikavanhu) respondents were before the court.

Regarding the implications of the failure by the applicants and the farmers to specifically incorporate value added tax (VAT) matters in their Division of Proceeds (DoP) arrangements, ZIMRA articulated two distinct positions, namely;

(i) That which relates to past supplies of cane; and

(ii) That which attends to present and future supplies of cane.

In respect of past supplies of sugarcane, the Zimbabwe Revenue Authority (ZIMRA) averred that a proper construction of section 69 of the Value Added Tax Act shows, that, in the absence of the express mention of value added tax (VAT) component in any price for goods or services, then the price will be deemed to contain the said tax.

As far as the alleged impropriety of the advice it rendered to the farmers, it contended that whatever advice it gave to the farmers was not only within its legal powers to give but also that it did so at the behest of the applicants.

It further averred, that, it has a duty to provide education to taxpayers not only to impart knowledge of the same but also to inculcate and engender a spirit of compliance.

In its papers opposing this application, the Zimbabwe Revenue Authority (ZIMRA) does not commit itself on what the tax implications in respect of present and future supplies are. It opted, instead, to confine itself to the question of past supplies.

However, it soon became apparent that its position is that the applicants are not only at liberty to charge, levy, and collect from the farmers the said tax, but that they are in fact obligated to do so.

It suffices, however, to note that this does not address the issue of whether this will be over and above the 23 percent being charged for the milling of the cane.

As earlier stated, only the positions of the second (Zimbabwe Sugar Cane Development Association), fifth (Commercial Sugar Cane Farmers Association of Zimbabwe), seventh (Zimbabwe Sugar Cane Development Association Royal Trust), eighth (Chipiwa Mpapa Mill Group), and tenth (Farai Dumo Augustine Musikavanhu) respondents were effectively before court.

Save for a few instances of divergence (which will be highlighted below) the farmers were united not only in their resistance to the application but also on the grounds thereof.

The rallying point in their opposition to the quest by the applicants to recover the tax for past supplies was section 69 of the Value Added Tax Act. Their position essentially mirrors that of the Zimbabwe Revenue Authority (ZIMRA).

Over and above the import of section 69 of the Value Added Tax Act, however, a few additional arguments were presented to buttress their position and these are:

1. The very fact that the Zimbabwe Revenue Authority (ZIMRA) has determined that the 23 percent milling charge includes value added tax (VAT) as far as the second (Zimbabwe Sugar Cane Development Association), eighth (Chipiwa Mpapa Mill Group) and tenth (Farai Dumo Augustine Musikavanhu) respondents are concerned, is dispositive of the whole dispute.

They go as far as contending that the decision of ZIMRA is binding.

They further assert, that, in their view, the applicants have merely abdicated from their responsibility to remit the value added tax (VAT) so collected to ZIMRA and the consequences attendant thereto cannot be visited on them.

2. That the endeavour, on the part of the applicants, to recover the value added tax (VAT) they paid from them amounts to an attempt to vary the implied terms of their contract.

3. That, as far as the fifth (Commercial Sugar Cane Farmers Association of Zimbabwe) respondent is concerned, its cane supply arrangement with the applicants is governed by neither a cane milling agreement nor a cane purchase agreement, but, rather, by what it terms a “memorandum of understanding.” A copy of which was attached.

4. A further point raised by the fifth respondent (Commercial Sugar Cane Farmers Association of Zimbabwe) was that the very fact that invoices relating to disbursements of the individual farmer's share of proceeds is silent on the collection of value added tax (VAT) necessarily implies that VAT was included in the 23 percent milling charge.

During oral addresses in court, yet another argument was presented, namely, that, the Division of Proceeds (DoP) ratio was decided upon by the Minister responsible for the superintendence of the sugar sector, namely, the Minister of Industry and Commerce.

It was averred, in this regard, that, during the negotiations leading up to those figures (of 23 percent and 77 percent) it was in the contemplation of the parties that value added tax (VAT) was incorporated in the 23 percent milling charge....,.

In furtherance of their argument, that the court should find that the milling charge included value added tax (VAT), there was what may be termed a half-hearted suggestion that the impasse should be resolved on the basis of some Ministerial directive which preceded or was contemporaneous with the agreement on the Division of Proceeds (DoP) ratio.

That argument cannot find traction for two basic reasons:

(i) Firstly, a copy of the supposed Ministerial directive does not constitute part of the court papers in these proceedings. If the directive was oral then a supporting affidavit from the Minister in question should have been annexed.

The late Addison Mhlanga was of Malawian extraction who came and naturalized himself in Zimbabwe.

He married one Dinah Ndlovu but did not have children. The two then adopted Esther Ncube (nee Nkala) as their child. Dinah Ndlovu pre-deceased Addison Mhlanga. Addison Mhlanga died intestate on 22 September 2003 at age 85 years.

He owned Stand Number 49257 otherwise known as Block 26/919 Mpopoma Township, Bulawayo.

The adopted child, Esther Ncube (nee Nkala), died on 19 November 2012 leaving three children, viz Sibonile Ncube, Zanele Ncube and Sikhangele Ncube.

At an edict meeting before the Additional Assistant Master, on 19 March 2013, Esther's relatives agreed that the respondent be appointed executor dative to administer the estate of the late Addison Mhlanga.

Apparently, the respondent is related to the late Addison Mhlanga's late wife, Dinah Ndlovu, the latter having been the respondent's maternal aunt.

Ordinarily, the sole asset of Addison Mhlanga's deceased estate, viz the Mpopoma house alluded to supra, was set to devolve upon Esther's estate, which, in turn, was set to be inherited by Esther's three daughters mentioned above.

Following an advertisement in the Chronicle Newspaper and the Government Gazette of Addison Mhlanga's estate by the respondent, the appellant, out of the blue, and having changed the surname on her birth certificate from Nkhulambe to read Mhlanga on 7 May 2013, lodged an application, on 10 May 2013, in the Magistrates Court Bulawayo to have an edict meeting for the appointment of herself as heir to Addison Mhlanga's estate claiming to be the sole surviving daughter to Addison Mhlanga.

The application was dismissed, and, dissatisfied with the outcome, the appellant lodged the current appeal before this court. Two main grounds of appeal were raised and they are these:

“1. The learned magistrate erred at law in dismissing appellant's claim when -

1.1 There was evidence to the effect that the deceased, Addison Mhlanga, disclosed, during his lifetime, that appellant was his daughter.

1.2 The appellant had a birth certificate showing that the deceased Addison Mhlanga's father (sic).

1.3 The deceased, at the time of his death, had allowed the appellant to reside at his house and she continues to do so now.

1.4 The now deceased, Esther Nkala, did not reside at the said house – 26/919 Mpopoma, Bulawayo after the death of Addison Mhlanga.

1.5 Appellant's lobola was paid to the deceased, Addison Mhlanga, during his lifetime.

2. The learned magistrate also erred at law in accepting, that, the late Esther Nkala's children were entitled to inherit from the late Addison Mhlanga's estate because Esther Nkala was his adopted daughter when no document was produced to prove that she was and had been adopted.”

The appellant's prayer is that she be declared the late Addison Mhlanga's daughter and that the late Esther Nkala's children are not entitled to inherit from the late Addison Mhlanga's estate.

I will deal with the grounds of appeal hereunder seriatum.

The means which the parties must produce and on which the court can base its decision is what is called evidence (facta probantia) while what has to be proved in any given issue (facta probanda) is the domain of substantive law.

In casu, what had to be proved (factum probandum) was that Addison Mhlanga, during his lifetime, disclosed that the appellant was his biological daughter.

Was there such evidence as contended for by the appellant?

What is not in dispute here is this:

Simanga Moyo, who is the appellant's mother, was Kenneth Nkhulambe's customary law wife. Nkhulambe, like Addison Mhlanga, was also of Malawian extraction.

As people who find each other in foreign lands are wont to do, the two would address each other as “brothers.”

The appellant was born on 24 January 1978 as Doris Dorcas Nkhulambe. Her birth certificate reflected so.

After Kenneth Nkhulambe “divorced” the appellant's mother, Addison Mhlanga took the appellant and her siblings into his household as he thought that a stepmother (Nkhulambe's new wife) would not take good care of the children.

In 1986-1987 the children were taken to Gwanda where Addison Mhlanga had a rural homestead. Then, the appellant was in Grade 4. In 1992, the appellant returned to Bulawayo and stayed at Block 83 with Kenneth Nkhulambe and her step-mother until she got married in 2000.

What is in dispute is that the appellant is an adulterine progeny of Simanga Moyo and Addison Mhlanga.

The appellant averred, that, this issue of adultery and paternity only came to light in the year 2000 when a meeting was held at which Addison Mhlanga disclosed that the appellant was his biological daughter.

The appellant was not forthcoming on whether she attended this meeting or was merely told later.

She said the meeting was attended by the two men, Esther Ncube, Shilling Phiri, Fatima and Dorcas Phiri.

However, pertinent to note here is that Fatima herself initially said she sat in the meeting (see pages 48 of the record), but, under cross-examination, on page 50 of the record, she said;

“The elders held their meeting and we were then told [of the illicit affair of Simanga and Addison Mhlanga] later after the meeting.”

Since the appellant was not an elder, it is therefore safe to infer that she is incorporated in the “we” referred to by Fatima that they were only told later.

In the event, what the appellant is alleging is purely hearsay, which, as evidence, is inadmissible.

The appellant's witness, Addison Phiri, did not ameliorate matters.

He said the meeting alluded to was held in 1997; it having been prompted by the appellant's illness. He said it was a secret between Addison Mhlanga and himself that the appellant was Mhlanga's daughter sired by him and Nkhulambe's wife.

However, under cross examination, the alleged secret evaporated into thin air when this witness said present when Addison Mhlanga told him were “Shilling, Esnat, and myself; those were the only people who were there.”

However, on further probing, he added that Kenneth Nkhulambe and Edna (Mhlanga's wife) were also present.

His year of 1997 contradicts the year 2000 stated by the appellant and Fatima.

Also, the people he named as being present when he was let into the secret exclude the appellant and Fatima - which buttresses the above finding that the appellant's and Fatima's evidence was purely hearsay and inadmissible.

Further, it is improbable, that, Keneth Nkhulambe would maintain his cool and silence on being told that the daughter whom, for 22 years, he had believed to be his, was a progeny of adultery between his wife and a man he regarded as a brother.

Things which are inconsistent with ordinary human experience are properly rated improbable.

It is also pertinent to note, that, Simanga Moyo, the appellant's mother, was not called to corroborate the alleged adultery in spite of the fact that she is still alive.

No explanation for not calling her as a witness was proffered.

It is often opined, that, it is only the mother who knows the father of her child.

In the result, there is no evidence at all that the late Addison Mhlanga disclosed that the appellant was his daughter.

Accordingly, that ground of appeal must fail.

This ground of appeal seemed to be the main thrust of her argument. Reliance was placed upon the provisions of section 7 of the Births and Deaths Registration Act [Chapter 5:02] which state that:

“7. Evidence of certified copy of entry in register

A document purporting to be a copy of any entry in any register certified under the hand of the Registrar-General or a registrar to be a true copy, shall, on its production by any person for the purpose of any law, be prima facie evidence in all courts of the dates and facts therein stated.”

The contention here was advanced, that, the provision quoted above is peremptory and non-compliance with it amounted to a mis-direction.

Reliance for the proposition was the case of Schierhot v Minister of Justice 1926 AD 99…, where INNES CJ spelt out the general principle governing non-compliance with statutory provisions in these words:

“It is a fundamental principle of our law, that, a thing done contrary to the direct prohibition of the law is void and of no force or effect. And the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.”

With respect, I consider counsel for the appellant's interpretation of the phrase 'prima facie evidence' too simplistic.

The phrase prima facie is Latin for 'at first sight' or 'sufficient to establish a fact or raise a presumption unless disproved or rebutted' or 'on first appearance but subject to further evidence or information.'

This therefore means, that, evidence which is prima facie is not absolute as contended for by counsel for the appellant.

In the instant case, there is an abundance of evidence rebutting the prima facie evidence of the appellant's birth certificate.

It is common cause, that, from her birth, the appellant, up until she attained 23 years of age, had her birth certificate bearing the surname of Nkhulambe.

She said she changed the surname to Mhlanga in 2001.

That would be after her marriage in 2000, and a year after the alleged knowledge of her paternity.

She does not tell how this change of surname was effected.

She also said because she was sharing the letters BHD with another person, this prompted her to acquire a new birth certificate on 7 May 2013 – three days prior to her filing an application in the Magistrates Court for an edict meeting to have her declared heir to Addison Mhlanga's estate on the basis that she was the sole surviving daughter.

BHD relates to birth entry number.

Section 18 of the Births and Deaths Registration Act [Chapter 5:02] deals with change of name.

Section 18(3) of the Births and Deaths Registration Act provides:

“18 Change of name in register

(3) Where the birth of a person has been registered for births and the surname of the person is changed, otherwise than by adoption, the person concerned…, may apply to the Registrar-General for the registration of the surname and the Registrar General shall, on payment of the prescribed fee, and on being satisfied that –

(a) A notarial deed, as defined in the Deeds Registries Act [Chapter 20:05], setting forth the change of surname has been registered in the Deeds Registry; and

(b) The change of surname has been advertised in the Gazette;
register the change of surname in the appropriate register for births but without deleting the original surname.

(4) Notwithstanding subsection (3), the Registrar-General may register a change of surname in the appropriate register for births but without deleting the original surname even where a notarial deed has not been registered, if he is satisfied –

(a) That the change of surname is for a lawful purpose; and

(b) That the change of surname is not being effected for purposes of fraud or misrepresentation; and

(c)…,.

(5) After the registration of a change of name under this Act, every certified copy of the entry concerned shall omit the original surname unless otherwise requested by the applicant.”

What can be gleamed from section 18 of the Births and Deaths Registration Act, as appertaining to the instant case in material respects, are the following:

1. There is no evidence adduced or furnished that the appellant ever applied to the Registrar General for change of surname. This could have been shown by a copy of such application and/or receipt for payment of the appropriate fee;

2. Even though the Registrar-General is empowered to register a change of surname where a notarial deed has not been registered, such notarial deed ought to exist to show that the same was in fact effected by a notary public.

In casu, it has not been alluded to, let alone furnished.

I did ask counsel for the appellant whether a notarial deed was ever executed and he said he did not know.

If the appellant, through her legal practitioner, does not know the fact, then, who should?

It raises eyebrows for the appellant not to have requested that her original Nkhulambe surname, which she had used till after marriage, be included in every certified copy of her birth certificate.

Over and above the foregoing, there is no proof that the appellant first changed her Nkhulambe surname in 2001 to Mhlanga except for her ipsissima verba.

This should not have been impossible to prove.

Even if that were so, it would be stretching coincidence to absurdity to hold, that, the appellant discovered that her birth certificate shared the same BHD with another person which then necessitated acquisition of the current birth certificate - some three days prior to her filing the application in the Magistrates Court for the convening of the edict meeting for her to be declared sole surviving daughter of the late Addison Mhlanga hence the sole heiress to his estate; a decade after Addison Mhlanga's death; one year after Esther Ncube (nee Nkala)'s death; and several years knowing that there existed this dispute pertaining to the estate.

The prima facie evidence of the birth certificate sought to be relied upon as proof that the appellant is the late Addison Mhlanga's biological daughter was sufficiently rebutted to hold no water.

Another insurmountable hurdle besetting the appellant's case is the legal position that a child conceived by or born of a wife during the course of her customary marriage, whether legitimate or as a result of adultery, belongs to her husband: Shumba v Shumba HB25-05.

This is in conformity with the presumption against bastardisation of a child born as a result of adultery: see Kulumo v Diyana & Ors 1944 SRN 35; Hlale v Dziyake 1938 SRN 34; Ndoro v Mapfumo 1942 SRN 166; and Elizabeth & Mzeze v Gwandibva 1941 SRN 121.

The appellant cannot therefore bastardise herself.

This ground of appeal should not detain us for it is devoid of merit, whether standing alone or in conjunction with any other ground.

It was common cause that the late Addison Mhlanga regarded the appellant's father, Kenneth Nkhulambe, as a brother, and, when the latter divorced and remarried, Addison Mhlanga, out of pity for the appellant, took it upon himself to take the appellant and her siblings in.

He even moved them to Gwanda.

One cannot, with success, abuse pity by equating it to proof of paternity.

The appellant herself stated that Esther told her that she only took a few pots from Mhlanga's estate because she did not want to have the house and allowed the appellant to continue staying there.

This, however, cannot mean that such a scenario amounts to an indication of proof of paternity!

That, either standing alone or read in conjunction with any other ground of appeal, proves nothing pertaining to the paternity being sought by the appellant.

Over and above the finding in the preceding ground, it is not disputed that there were tenants at the house and that Esther was married, staying at her husband's place.

This contention was contrived to prove, that, if Addison Mhlanga received and “ate” the appellant's lobola, then, it would go to prove that he indeed was her father.

There is no shred of evidence proving this averment.

As early as generations before 2000, lobola payments in Zimbabwe were recorded in writing showing how much was charged for who, for what, by who, what was paid, the balance, and when such balance would be paid.

The appellant was asked, in cross-examination, as to who married her off and her answer was this:

“A. Both of them, actually Mhlanga.”…,.

By “both of them” she meant Kenneth Nkhulambe and Addison Mhlanga.

It does not require a traditionalist to know that, in African custom, both the putative father and the paramour cannot marry off a bride.

How come the bride herself was unsure as regards who married her off!

It is accordingly not difficult to infer and conclude, that, the appellant was lying when she alleged that both Kenneth Nkhulambe and Addison Mhlanga married her off.

Her father, Kenneth Nkhulambe, was the one who did.

Now, this we consider to be a red herring and should be dismissed as mere attempt at sophistry.

Pages 58 and 59 of the record record admissions by the appellant on 5 September 2013, pertaining to this ground of appeal, in the following words:

“To both parties by the court:

Q. Do you both acknowledge that Esther was an adopted child of the late Addison Mhlanga?

A. Applicant -Yes.

Respondent – Yes.

Q. Esther has children?

A. Yes.

Q. How many children does she have?

A. 3 children – names, Sibonisiwe, Zanele, Sikhange Ncube.

Q. Do you both acknowledge that she is the sole heir, or, as yet to be established, one of the heirs to the estate of the late?

A. Applicant – Yes.

Respondent – Yes.

Q. Now that Esther is not there, who should get her share?

A. Applicant - her children.

Respondent - her children.

Q. It would appear that the dispute is whether or not the applicant should have a share as well?

A. Applicant – Yes.

Respondent – Yes.”

With the above admissions having been made, the turn around by the appellant can only be explained away on the basis of greed.

In any event, having found, as we have done above, that the appellant is not Addison Mhlanga's daughter, she cannot benefit from his estate and she has no locus standi to raise the issue encapsulated in the last ground of appeal.

Even if she has, she is estopped from raising it.

In the event, on the totality of the foregoing findings, which are clearly incontrovertible against the appellant, we are constrained to find the appeal totally devoid of merit and we hereby dismiss it in its entirety with costs.

This is an appeal against the decision of the High Court (“the court a quo”) which placed the first (Metallon Gold Zimbabwe (Pvt) Ltd), the second (Goldfields of Shamva (Pvt) Ltd) and the third (Goldfields of Mazowe (Pvt) Ltd) appellants under corporate rescue proceedings in terms of section 124(1)(a) of the Insolvency Act [Chapter 6:07] (“the Insolvency Act”).

The judgment of the High Court dealt with two separate applications, numbers HC2619/19 and HC2696/19, which were consolidated for the purposes of hearing them.

The Court holds, that, the respondents did not comply with the mandatory provisions of section 124 of the Insolvency Act, which required them to notify each affected party of the application by standard notice.

The respondents failed to notify each affected party by “standard notice” as is prescribed by section 2 of the Insolvency Act.

Such non-compliance with peremptory provisions of the Insolvency Act rendered the application for corporate rescue fatally defective.

This Court finds, that, the second respondent (Associated Mine Workers Union of Zimbabwe), being the only respondent before this Court, had no locus standi to make the application for corporate rescue as it does not meet the definition of “affected person” in terms of section 120 of the Insolvency Act [Chapter 6:07].

The second respondent is a registered trade union representing employees in the mining industry and not a registered trade union representing employees of the company as envisaged by section 120 as read with section 124 of the Insolvency Act.

Further, the second respondent (Associated Mine Workers Union of Zimbabwe) fails to meet the criteria of a creditor, as the judgment it relied upon is not against the first appellant but against a different party.

It bears mentioning, that, the first respondent was in default at the hearing of the appeal as it realised it could not possibly defend the judgement of the court a quo.

The first respondent (Shatirwa Investments (Pvt) Ltd) (being a creditor of the appellant companies) and the second respondent (Associated Mine Workers Union of Zimbabwe) (being a registered trade union in the mining industry) sought an order in the court a quo that the appellants (Metallon Gold Zimbabwe (Pvt) Ltd, Goldfields of Shamva (Pvt) Ltd, Goldfields of Mazowe (Pvt) Ltd) and Mazowe Mining Company (Pvt) Ltd) be placed under corporate rescue in terms of section 124(1) of the Insolvency Act [Chapter 6:07].

They alleged, that, the appellants were failing to pay creditors and that it was very likely that the appellants would become insolvent within the immediately ensuing six months, making them worthy candidates for corporate rescue.

The first respondent, armed with an order against the appellants for US$6,394,232 issued in case HC6197/18, made the application for corporate rescue as an “affected person” being a creditor of the appellants, in terms of section 121(1)(a)(i) of the Insolvency Act.

The second respondent (Associated Mine Workers Union of Zimbabwe), in making its application, averred that it was an “affected person” in that it was a registered trade union in the industry.

The second respondent further stated, that, it also derived its locus standi from its status as a creditor of the second (Goldfields of Shamva (Pvt) Ltd) and the fourth (Mazowe Mining Company (Pvt) Ltd) appellants.

No judgment against the second and the fourth appellants was attached to the founding affidavit before the court a quo to support the claim of locus standi. It attached a copy of a judgment obtained against the first appellant (Metallon Gold Zimbabwe (Pvt) Ltd) but no claim was made against the first appellant in the court a quo on the basis of that judgement.

The plaintiff initiated proceedings by way of an Urgent Chamber Application under case number HC1580/10 seeking an order interdicting the first and second defendants, or any beneficiaries of the second defendant's estate, from disposing of the property known as Lot 1 A of Gumtree held under Deed of Transfer number 1793/82 and Lot 3 of Gumtree held under Deed of Transfer number 1326/82C (hereinafter referred to as “the property”).

An interim order was granted in this Honourable Court but its confirmation was opposed by the defendants.

A separate court application was launched by the plaintiff, under case number HC1653/10, wherein she sought to be declared the sole surviving spouse of the second defendant's estate.

That court application was also opposed, and, eventually, by court order granted on 6 June 2012 it was ordered as follows:

“1. The two applications pending before this Honourable court under cover of case number HC1580/10 and HC1653/10 consolidated under cover of case number HC150/11 be and are hereby converted into action proceedings.

2. The papers filed of record by the parties stand as pleadings in this matter.

3. The parties file their discovery affidavits, pre-trial conference minutes, and summaries of evidence within 7 days of this order.

4. In the event of any party failing as directed in paragraph (3) above, the party having complied be and is hereby granted leave to set the matter down, without giving notice, on the unopposed roll.

5. Third respondent pay costs only if she opposed this application.”

The parties consolidated the two applications in terms of the aforesaid order and proceeded to set down the matter for trial.

A joint pre-trial conference memorandum of issues filed by the parties reflects the issues for determination as follows:

1. Whether or not plaintiff bought the immovable properties, namely, Lot 1A Gumtree held under Deed of Transfer number 1793/81 and Lot 3 Gumtree and is therefore entitled to them.

2. Whether the third defendant is the surviving spouse and therefore the lawful heir to the estate of the late Jubane James Jack.

It was resolved and agreed, at the pretrial conference, that, the onus on the first issue was on
the plaintiff and the onus on the second issue was on the third defendant.

The plaintiff gave evidence in support of her case. She testified, that, she is ordinarily resident at 61 Queensbrooks, Slough in the United Kingdom. She is a State Registered Nurse and also qualified as a Mental Health Nurse.

She was customarily married to the late Jubane James Jack who died on 21 February 2006 in the United Kingdom.

Her evidence was that the deceased and herself commenced living together around December 1980 and formalized the union a year later in 1981 when her husband was customarily accepted as a son-in-law by her family. At the same occasion, she was accepted as a daughter in law by members of the late Jubane James Jack's family.

The plaintiff stated, that, at the time of their marriage, the deceased was working for National Railways of Zimbabwe and then based at Hwange. The deceased disclosed to the plaintiff that he was once married to the third defendant and that the marriage had broken down and he was in the process of legally divorcing the third defendant with whom he was married in terms of the then Marriage Act [Chapter 37].

She was also informed, that, the third defendant had one child with the deceased by the name Violet Jack.

At the time the plaintiff met the deceased, the third defendant was not living with him. They were on separation.

The plaintiff stated, that, in or around 1981 she was looking for a property to buy. She was advised that there was a plot for sale just outside the city of Bulawayo. She said that she negotiated for the purchase of the property, being Lot 1 A Gumtree and Lot 3 Gumtree, situate in the District of Umguza.

The property was registered in the names of the late Jubane James Jack because she did not have a payslip and there was need to have a Bond registered against the title deed for the payment of the balance.

She paid an initial deposit of $3,000 and the balance was paid in monthly instalments of $250. Payments were made at the offices of Messrs Ben Baron and Partners. She indicated, that, on certain occasions, the late Jubane James Jack would pay the instalments.

The total purchase price for the property was $15,000.

The second property, being Lot 3 of Gumtree was sold for $10,000. A second bond was registered over the property.

The plaintiff testified, that, she received part of the deposit for the purchase of the second property from a Mr Joshua Malinga.

After the purchase of the two properties, the plaintiff said she left for the United Kingdom in or around February 1999.

The deceased and the plaintiff had three children, namely, Neville Thamsanqa Jack (born on 26 October 1981, Brian Bekithemba Jack (born on 3 October 1985) and Denise Thembeka Jack (born on 18 January 1990).

The deceased and the children relocated to the United Kingdom in December 1999 where they remained until the demise of the deceased in 2006.

It was the plaintiff's evidence, that, problems started in June 2010 when she received a message on Facebook, from Violet Jack (her husband's only child out of his marriage with the third defendant), advising her that she and her mother were going to be the beneficiaries in the estate of the late Jubane James Jack.

In July 2010, the plaintiff travelled to Zimbabwe to attend the funeral of her sister, Faith Mazaiwana. Whilst at the funeral, she was alerted that the property at Gumtree had been put up for sale.

The plaintiff filed an urgent Chamber Application for an order interdicting the executor of the Estate of late Jubane James Jack and the third defendant from disposing of the immovable properties, being Lot 1A of Gumtree and Lot 3 of Gumtree in the District of Umguza.

The Registrar of Deeds and the Master of the High Court were cited, in those proceedings, as nominal respondents.

Upon the granting of the Provisional Order, the confirmation of such order was resisted by the third defendant. A subsequent court application, under case number HC1653/10, was filed by the plaintiff.

Both applications have now been consolidated.

The plaintiff abandoned her claim that she be declared the sole surviving spouse in the Estate Late Jubane James Jack when it became apparent that the third defendant was still legally married to the deceased at the time of his death.

In summary, the plaintiff avers, that, the property in dispute belongs to her for these reasons:

(a) She bought the property using her own funds. She saved the money whilst she was working in the United Kingdom and she was responsible for the repayments on the mortgage bonds.

(b) The deceased did not contribute anything towards the purchase of these properties.

(c) The third defendant never set a foot on these properties and never contributed towards their purchase -, directly or indirectly.

(d) The property never belonged to the Estate Late Jubane James Jack inspite of the property being registered in the names of the deceased.

The plaintiff's evidence is difficult to accept.

The plaintiff was unable to adequately explain why the property was registered in the names of Jubane James Jack and not in their joint names if indeed they had acquired the property together.

It is inconceivable that the deceased who was then employed by the National Railways of Zimbabwe would have contributed nothing whatsoever towards the purchase of the property.

At the time the plaintiff commenced living with the deceased, she was well aware the third defendant was still legally married to him. She was aware that divorce proceedings had not been instituted.

The plaintiff would not have invested all her entire life savings in a property registered in the names of a man married to another woman.

The plaintiff claims that all her documents proving the purchase of the property were lost or destroyed.

The court must, therefore, according to the plaintiff, believe her version of events on her mere say so.

Under cross examination, when a direct question was put to her as to why the property was registered in the names of the deceased, the plaintiff's response was that she was heavily pregnant at the time and she did not possess a payslip.

She could not say for certain who signed the agreement of sale. However, she could not deny that the agreement of sale was signed by the deceased who eventually had his names on the title deed.

The plaintiff conceded, that, at the time of the death of the deceased, the legal owner of the property was reflected on the title deed as Jubane James Jack, although she insisted that she was the financier.

It is my view, that, the evidence of the plaintiff was not convincing. She did not strike as a credible witness.

She failed to produce a single document to prove that the funds used to pay for the property were raised from her savings. Her initial attempt to claim to be the sole surviving spouse of the late Jubane James Jack puts her in very bad light.

There can be no other conclusion except that her intention was to mislead the court.

The second and only witness for the plaintiff was Flora Dhliwayo, a sister to the plaintiff.

Her evidence was largely unhelpful to the court. She repeated that the plaintiff had, through her own endeavours, purchased the property in dispute. She averred, that, she had gone to view the property with her sister before its purchase. She however played no further part in the transaction. She did not witness the signing of the agreement of sale between the seller and the purchaser. She informed the court, that, the reason the property was registered in the names of the deceased was because the plaintiff was pregnant at the time, and, further, the plaintiff was not employed at the time.

The plaintiff's witness did not assist the plaintiff's case in any meaningful way.

The defendant gave evidence and did not call any witnesses in support of her case. She testified, that, on 22 September 1972 she was married to the late Jubane James Jack in terms of the Marriage Act [Chapter 37] (as it was called then).

The defendant said, that, when they were married, they moved into a house belonging to the National Railways in Thorngroove. Between 1974 and 1980 they were living at West Sommerton, Bulawyo. She stated, that, her husband was posted to various places of work around the country and outside Zimbabwe. The late Jubane James Jack fathered eight children from different mothers. She had one child with the deceased, Violet Jack (born in 1978).

The defendant's evidence was essentially, that, the properties in Gumtree were purchased by the late Jubane James Jack.

He raised the funds to acquire the property through a loan raised through his employer. The balance was secured by a mortgage bond registered over the property.

She said by virtue of their marriage, and as his legal wife, she was a beneficiary in the estate of her husband as a surviving spouse.

She firmly advised the court that she was always aware of the illicit relationship between her husband and the plaintiff.

Her version was that the plaintiff stole her husband and persuaded him to move over to the United Kingdom with her.

The deceased never went through the divorce proceedings because he was aware that they would have to share the property at Gumtree.

The defendant further stated, that, when her late husband indicated that he wished to divorce her she reminded him of their type of their marriage and that they would have to sell the immovable property and share the proceeds.

The defendant informed the court that the deceased never commenced the divorce proceedings until he met his death.

The defendant said she registered the Estate of the late Jubane James Jack under DRB773/06. A First and Final Liquidation and Distribution Account was filed with the Master of the High Court as follows:

“FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF THE LATE JAMES JUBANE JACK WHO DIED AT JOHN RADCLIFFE, OXFORD RADCLIFFE HOSPITAL, UNITED KINGDOM ON THE 21ST FEBRUARY 2006

DRB 773/06
LIQUIDATION ACCOUNT  

2. Five (5) herd of cattle                         $     500

3. Grinding Mill                                       $     100

TOTAL ASSETS                                    $76,600

(a) Chronicle: see attachment
(b) Government: see attachment

ADVERTISING THIS ACCOUNT

(a) Chronicle                                            $10

(b) Government gazette                           $ 5

13. MASTER'S FEES

4% on $76,600                                        $3,064

Edict fees: see attached statement

TOTAL LIABILITIES                              $ 6,372-80

Balance to Distribution                          $70,227.20

                                                              $76,600-00

Balance brought down to Distribution Account $70,227.20

Assets awarded in terms of Deceased Succession Act [Chapter 6:02] Section 3A:

2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78

3. Five (5) herd of cattle                                          $     55.56

4. Grinding mill                                                        $     11.11

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares                   $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle                                         $     55.56
4. Grinding mill                                                       $      11.11

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares                 $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle                                          $    55.56
4. Grinding mill                                                        $    11.11

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares                  $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle                                         $     55.56
4. Grinding mill                                                       $     11.11

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares                  $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle                                          $    55.56
4. Grinding mill                                                        $    11.11

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares                  $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle                                          $    55.56
4. Grinding mill                                                        $    11.11

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares                 $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle                                         $     55.56
4. Grinding mill                                                       $     11.11

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares                  $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle                                         $     55.56
4. Grinding mill                                                       $     11.11

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares                   $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle                                         $     55.56
4. Grinding mill                                                       $     11.11

                                                                               $70,227.00

Cash contribution to avoid sale of assets               $ 6,372.00

                                                                               $76,600.00

I, Bongani Ndlovu, hereby certify to the best of my knowledge and belief that the foregoing accounts are true and correct, that there are no further assets and that no liability exists in respect of income tax.

Dated at Bulawayo this day 28th day of January 2010.

FOR ESTATE LATE JAMES JUBANE JACK AKA JUBANE JAMES JACK

________________________________
EXECUTOR DATIVE”

What can be gleaned from a perusal of the Distribution Account is that the defendant took into account all of the deceased's children - including the plaintiff's children.

The totality of the defendant's evidence was that she was married to the late Jubane James Jack, such marriage being monogamous. She established, that, at the time the late Jubane James Jack died, she was the surviving spouse at law. She asserted that she was entitled to inherit from the deceased estate. She contended that in spite of their separation, the property was acquired by the parties during the marriage.

Her evidence was that her late husband secured a loan from the National Railways of Zimbabwe.

She stuck to her evidence, that, the plaintiff could not inherit the property in dispute because she was not the surviving spouse, and, in any event, she could not prove that she used her own funds to purchase the property.

From the defendant's testimony, her version remained uncontroverted.

It cannot be denied, that, if she was the lawful surviving spouse of the deceased, she would ordinarily be entitled to inherit the immovable property in dispute. The defendant went further to show, that, the property was shared amongst all the children of the deceased - including herself. It is my view, that, her attitude clearly shows that she did not seek to deprive all the lawful beneficiaries to the estate. She did not seek to allocate the property to herself to the exclusion of the children of the deceased.

I have already set out the disputed and undisputed facts of the matter. I must now examine the law on the subject.

I have shown, that, the plaintiff failed to prove that she purchased the property in question. If she did contribute directly towards the purchase of the property, she failed, on a balance of probabilities, to show that she made any financial contributions. Nothing was placed before the court by way of evidence to show that the plaintiff purchased the property except her mere say so.

In the case of Sibanda v Sibanda and Another 2002 (1) ZLR 622 (H) SMITH J stated…, as follows:

“Since I have found that Josephine was not aware, in March 1994, that Joseph was a married man, that means that their 'marriage' is in fact a putative marriage.”

The judge held, in that case, that, the plaintiff was only entitled to what was a fair share in the matrimonial estate. She was not entitled to a half share.

The matter went on appeal to the Supreme Court, and, in Sibanda and Another v Sibanda 2005 (1) ZLR 97 (S), the Appeal Court upheld the decision of the High Court. The Supreme Court agreed with the lower court, that, where a man enters into a marriage with another woman whilst a previous monogamous marriage subsisted, the second marriage is a nullity.

The court, however acknowledged, that, it was the correct approach to take into consideration the contribution of the 'wife' in order to determine what amounts to an equitable distribution of matrimonial property.

See also Makovah v Makovah 1998 (2) ZLR 82 (S).

In casu, however, the court is not being called upon to determine what is an equitable distribution of matrimonial property. The court is also not called to consider the direct or financial contributions of the plaintiff, in the second 'marriage' which was undoubtedly a nullity.

The plaintiff in this action is claiming Lot 1A and Lot 3 Gumtree, alleging that she purchased the said property using her own funds.

I have already concluded that the plaintiff's evidence falls short of proving that she purchased the property. If anything, the totality of the evidence shows, that, the late Jubane James Jack had a substantial part to play in the acquisition of the said property.

In my view, the said property remained matrimonial property up to the time of the decease's death.

The property therefore quite clearly fell for distribution in the estate of the deceased.

I am satisfied, that, on the evidence led, the third defendant managed to prove that she is the surviving spouse of the estate of the late Jubane James Jack, and, therefore, the lawful heir to his estate.

I must observe, that, where a party cohabits with a married man or woman with full knowledge of the existence of a prior marriage, he or she takes a calculated risk when they acquire property together. In the event of either party's death, the property automatically falls into the estate of the deceased. The beneficiaries of such estate have valid and lawful claims against the deceased estate. A surviving spouse who produces proof of marriage with the deceased will have a prima facie claim as a beneficiary in the estate.

In the result, I am not satisfied that the plaintiff succeeded in proving her case on a balance of probabilities.

It is accordingly ordered as follows:

The plaintiff's claim is hereby dismissed with costs.

This is an appeal against the judgment of the High Court dismissing the appellant's claim for US$119,300 being the balance of the purchase price for a 20-tonne Hyundai Excavator sold and delivered by the appellant to the respondent.

In dismissing the appellant's claim, the court a quo upheld the respondent's counterclaim and ordered the appellant to refund US$140,000 to the respondent, being the deposit paid towards the purchase of the excavator and front-end loader.

The facts giving rise to the claim and counterclaim are hotly contested. The brief facts of the case are that the respondent is a Municipal Council duly constituted as such in terms of the Urban Councils Act [Chapter 29:15], whereas the appellant is a company in the business of selling excavators and front-end loaders.

Sometime in 2014, the parties concluded a contract of sale of a twenty-tonne excavator. The terms of the contract are in dispute.

The appellant's claim is, that, sometime in 2014, it sold and delivered, in good working order, a refurbished 20-tonne excavator for US$209,300 at the respondent's instance and request. The purchase price was payable in instalments with an initial deposit of US$90,000 and the balance of US$119,300 payable on delivery.

The appellant's complaint is, that, despite effecting delivery at the respondent's premises, on 19 June 2014, the latter refused or neglected to pay the balance of the purchase price.

The respondent denies breaching the contract of sale as alleged or at all and has counterclaimed for a refund of the deposit it paid on account of defective performance.

Its defence is that, on 16 May 2014, it floated a tender for the purchase of a brand new twenty-tonne Tracked Excavator to the tune of US$182,000. The advertisement read:

“MUNICIPALITY OF CHITUNGWIZA TENDER NOTICE NO. 05/11

Tenders are hereby invited, in terms of section 211 of the Urban Councils Act (Chapter 29:15) from reputable and legally registered companies and institutions to provide specified brand new plant and machinery to the Municipality of Chitungwiza….,.

1. Jet Machine (high velocity clearing machine).

2. Tracked Excavator (30 tonne).

3. Front End loader (3 tonne).

Tender specifications are available at Chitungwiza Municipality Head Office.”

The appellant won the tender to supply the respondent with a brand new 20-Tonne Tracked Excavator at the cost price of US$182,000 and a brand new 3-Tonne Front End Loader at the cost price of US$105,000.

It was therefore a material term of the contract that the appellant was to deliver a brand new excavator and front end loader.

The appellant, however, in breach of contract, delivered a refurbished dysfunctional excavator.

It was also a material term of the contract that the respondent would pay US$140,000 deposit for both machinery and the balance upon delivery. The respondent paid the deposit in terms of the contract but the appellant, in breach of contract, delivered a pre-owned, dysfunctional excavator without the necessary accessories.

To date, the appellant has not delivered the brand new machinery in terms of the contract.

That being the case, the respondent counterclaimed for specific performance in terms of the contract, or, alternatively, a refund of the deposit of US$140,000 paid in anticipation of the fulfilment of the terms and conditions of the contract.

The respondent also claimed payment of damages in the sum of US$30,000 for breach of contract as well as storage charges at the rate of US$20 per day from the date of summons to the date of collection of the defective refurbished excavator.

The claims for damages and storage charges were not persisted with and are not the subject of this appeal.

Thus, the court a quo was left with only two issues for determination. The issues were defined at the pre-trial conference as follows:

“1(a) Whether or not plaintiff (appellant) should be compelled to deliver a brand new excavator.

OR ALTERNATIVELY

(b) Whether or not the defendant (respondent) is entitled to a refund of the deposit paid.

2. Whether or not the plaintiff (appellant) is entitled to payment of the outstanding amount.”

Upon consideration of the evidence before it, the court a quo found, that, the appellant was guilty of breach of contract. It dismissed the appellant's claim and sustained the respondent's counter-claim. Consequently, it ordered as follows:

“In the result, I order as follows:

1. The plaintiff's claim is dismissed.

2. The plaintiff pays the defendant US$140,000, being the refund of the deposit paid by the defendant towards the purchase of the Excavator and Front End Loader.

3. The plaintiff pays to the defendant costs of suit.”

Aggrieved by the above order, the appellant appealed to this Court for relief on five grounds. The five grounds of appeal attack the judgment a quo basically on failure to appreciate the sufficiency of evidence and failure to apply the turquand rule in its favour.

It is clear right from the outset, that, the cardinal question to be answered is the validity and fulfilment of the contracts allegedly concluded by the parties. In simple terms, the court a quo had to determine whether the contract was for brand new or refurbished machinery.

The parties relied on different contracts for their competing claims.

The terms of the two contracts are incompatible and at variance with each other. The respondent relied on the tender as advertised in the Herald newspaper with a wide circulation in the area. The appellant, however, denied having responded to the notice floated in the newspaper. Its Managing Director, Darlington Chirara, testified that he responded to a different notice pinned on the notice board at the respondent's registry office. It was his testimony that the notice was a tender for the procurement of a refurbished twenty-tonne crawling excavator and a refurbished three-tonne front end loader.

The appellant's sole witness, Darlington Chirara, was however unable to verify or prove the existence of the notice he claimed to have responded to on behalf of the appellant. Under cross-examination by counsel for the respondent, this is what he had to say:

“Q. Do you have proof to show that there was such a notice?

A. I do not have any documentary evidence. I could not have removed the notice that was on the notice board because others were supposed to come and see that notice.”…,.

What the appellant said under cross examination is ample proof, that, apart from his mere say so, he has no evidence of the existence of the offer he says he accepted for the provision of refurbished second hand machinery.

It is trite, that, a valid contract is constituted by an offer and acceptance.

The appellant, by his own admission, failed to establish the existence of the tender for the provision of refurbished second hand machinery. The onus was on the appellant to establish the existence of all the essential elements of a valid contract. Failure to establish the existence of such tender, on the alleged terms and conditions, was fatal to its case as there can be no acceptance without an offer.

The plaintiff issued summons claiming the following:

“(i) Payment of the sum of US$119,300 being the remaining balance of the agreed purchase price for one x 20 Tonne Hyundai Excavator, sold and delivered by the plaintiff to the defendant, at its specific instance and request.

(ii) Interest at the prescribed rate calculated from the date of delivery, being 19th of June 2014, to the date of full payment.

(iii) Costs of suit on a legal practitioner and client scale.”

In its declaration, the plaintiff averred the following:

In 2011, the parties entered into a procurement contract in which the defendant ordered one by 20 tonne hydraulic excavator from the plaintiff. The agreed purchase price was US$209,300 inclusive of VAT. The defendant was obliged to pay 50% deposit towards the purchase price. The remaining balance was payable upon delivery of the excavator.

In partial fulfilment of the agreement, the defendant paid, in instalments, the sum of US$90,000 as part deposit to the agreed purchase price.

The plaintiff accordingly delivered the excavator on 19 June 2014 which delivery was accepted. The excavator was accepted in good working order by the defendant at its premises.

The defendant has, despite demand, refused or neglected to pay the outstanding balance of US$119,300....,.

To the merits, the defendant averred, that, the plaintiff delivered a defunct Hyundai Excavator contrary to the undertaking that it made that it would deliver a new excavator. It had to incur unnecessary costs in having the excavator checked by an independent company. The defendant averred, that, it will only effect payment of the balance after delivery of a brand new and properly functioning machinery.

The defendant also made a counter claim. It averred the following:

On 16 May 2014, it advertised a Tender Notice in the Herald newspaper in terms of section 211 of the Urban Councils Act [Chapter 29:15]. The notice was inviting tenders for the supply of brand new machinery, viz:

(i) One Jet machine Chigu Velocity clearing machine.

(ii) One Tracked Excavator 30 tonne.

(iii) One Front End Loader.

On 18 July 2011, the defendant in reconvention won the tender to supply it with a 20 tonne Tracked Excavator and a 3 tonne Front End loader. It was a term of the agreement that:

(a) The defendant in reconvention would deliver a brand new excavator and a brand new front-end loader.

(b) The plaintiff in reconvention would pay the deposit of the agreed purchase price before delivery of the machinery.

(c) The plaintiff in reconvention would pay the outstanding purchase price upon delivery of the machine.

The plaintiff in reconvention paid the initial deposit to the defendant in reconvention on 29 January 2014 in the sum of US$140,000. On 19 June 2014, the defendant in reconvention delivered a dysfunctional excavator in breach of the agreement terms.

It has refused and failed to deliver a brand new machinery.

The plaintiff in reconvention has been prejudiced by the breach. The plaintiff in reconvention is entitled to specific performance of the agreed terms of the contract. Alternatively, it is entitled to restitution of US$140,000 being the deposit paid as part of the purchase price and damages for breach of contract. Consequently, it claims for:

“(a) An order compelling the defendant in reconvention to deliver brand new excavator and Frond End loader to the plaintiff in reconvention in terms of the agreement.

(b) Alternatively, an order compelling defendant in reconvention to pay the sum of US$140,000 being the deposit paid as part of the purchase price.

(c) An order compelling defendant in reconvention to pay US$30,000 as damages for breach of contract.

(d) An order compelling defendant in reconvention to pay US$20 per day from date of summons to date of collection being storage fees for the excavator.

(e) An order compelling defendant in reconvention to pay interest at the rate of 5% per annum from the date of demand to date of payment in full.

(f) Costs of suit on a legal practitioner client scale.”...,.

The plaintiff in reconvention did not lead any evidence to prove its claim for US$20 per day for storage charges.

This is an appeal against the whole judgment of the High Court sitting at Harare granting a declaratur in favour of the respondent.

The judgment appealed against set aside the nomination of the first appellant (Alfred Mwazha) as successor to the Archbishop Ernest Paul Mamvura Mwazha, the head of the tenth appellant (African Apostolic Church), and, resultantly, proceeded to set aside as null and void any decisions or actions taken by the first appellant as Archbishop of the tenth appellant.

It also directed the tenth appellant's Priesthood Council to convene and nominate a successor to the Archbishop.

The first to ninth appellants (Alfred Mwazha, Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) and the respondent (Ernest Mhambare) are all senior members of the tenth appellant (“the Church”).

The tenth appellant (African Apostolic Church) is a voluntary association of members of a church whose main objective is to hold the faith of Jesus Christ and to act in accordance with its doctrines. The Church operates as a universitas under the provisions of its Constitution.

It is led by Archbishop Ernest Paul Mamvura Mwazha.

The Archbishop is 102 years old and is perceived, by some Church members, as being afflicted with dementia, and, for that reason, no longer competent to lead the Church.

The supreme governing organs of the Church are established under Article 9 of its Constitution. The office of the Archbishop is provided for under Articles 9.2 and 9.2.1 which articles read as follows:

“9.2 Office of the Archbishop

9.2.1 Archbishop Ernest Paul Mamvura Mwazha is the permanent head of the African Apostolic Church (VaApostora veAfrica) and has the final say on all church matters relating to succession.

9.2.2 In the absence of Archbishop Ernest Paul Mamvura Mwazha by apology, illness, or death, a council of Bishops (hereinafter referred as the Priesthood Council), constituted by the biological sons of Archbishop Paul Mwazha, who are bishops, shall preside on his behalf, with the full Delegated Authority, of the Archbishop. Binding decisions made by this Priesthood Council shall only be by a unanimous vote (not Majority Vote) of a full council sitting.”

From the foregoing, it is clear, that, a would-be successor to the office of Archbishop must satisfy either of the two conditions:

(i) The blessing or approval of the incumbent Archbishop; or, alternatively

(ii) Should the Archbishop be incapacitated, the unanimous vote of a full Priesthood Council meeting.

It is common cause, that, on account of his age and infirmity, the Archbishop is unable to physically attend to the day to day business of the Church. He has, consequently, delegated some of his functions to his bishops who are his biological sons.

A debate has now arisen within the Church as to who his successor should be in the event of his demise.

The first appellant (Alfred Mwazha) has taken centre stage in the race to succeed the Archbishop. He relies, in this regard, on a note handwritten by the Archbishop's aide, one Evangelist Kasema, the contents of which were, according to Kasema, dictated to him by the Archbishop himself.

The first appellant contends, that, this handwritten note is the vehicle through which the Archbishop has appointed him as his successor. He has publicly announced himself, on the basis of that note, as the successor to the Archbishop and has purported to have taken over the reins of the Church. He is fervently supported in that regard by the second to ninth appellants (Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe).

Being of the firm belief and conviction that the conduct and actions of the first appellant amount to a usurpation of the powers and position of the Archbishop, and that such conduct was in violation of the Church's constitution, specifically Article 9 thereof, the respondent (Ernest Mhambare), who is a reverend of the tenth appellant (African Apostolic Church), approached the court a quo seeking a declaratur in the following terms:

“IT IS ORDERED THAT:

1. The purported appointment of the 1st respondent, as the Archbishop of the African Apostolic Faith (Vaapostora VeAfrica), was unconstitutional therefore null and void.

2. All appointments and/or re-assignments and actions of the 1st respondent, in his purported capacity as Archbishop, were unconstitutional and therefore null and void.

3. The respondents be and are hereby ordered to comply with Article 9.2.2 of the Constitution and convene a meeting of Bishops who constitute the Priesthood Council for the purpose of exercising the full delegated authority assigned to them by the Archbishop, in terms of the aforementioned article of the Constitution, within seven (7) days of the date of this order.

4. The 1st–9th respondents are ordered to pay the costs of this application on an attorney and client scale, jointly and severally, the one paying, the other to be absolved.”

The first appellant (Alfred Mwazha) vigorously opposed the granting of the application in the court a quo. He did so on two fronts:

(i) Firstly, he averred that he was duly appointed by the Archbishop to be his successor. The Archbishop so appointed him through the note written by the personal aide to the Archbishop. The contents of the note had been dictated by the Archbishop himself. He therefore argued, that, his appointment, as successor, was proper, valid, and in accordance with the provisions of Article 9.2.1 of the Constitution of the Church.

(ii) Secondly, he argued, that, the respondent (applicant in the court a quo), should have cited the Archbishop, a party that had a direct and substantial interest in the outcome of the matter. He contended, that, this non-joinder was fatal to the application as the participation of the Archbishop was indispensable to the resolution of the matter before the court a quo.

After hearing arguments, the court a quo found in favour of the respondent and ordered as follows:

“1. The purported nomination and/or appointment of the first respondent as the Archbishop or successor to the Archbishop of the tenth respondent, presently Ernest Paul Mamvura Mwazha, is unconstitutional vis-à-vis the 10th respondent's Constitution, and, resultantly, is null and void.

2. Any appointments and re-assignments of personnel made by the 1st respondent, and other actions which changed the administration of the Church made by the 1st respondent, in the purported position of Archbishop, are null and void.

3. The respondents are each and all of them ordered to comply with the provisions of clause 9.2.2 of the 10th respondent's Constitution in regard to the succession dispute bedevilling the 10th respondent. The respondents must comply with this order within seven (7) days of the date of this order.

4. The 1st to 9th respondents, jointly and severally, the one paying the others to be absolved, shall pay costs of this application on a party and party scale.”

Although the order of the court a quo departs from the exact wording of the relief sought by the applicant in the draft order, it does, in substance, grant the relief sought save for costs which it grants on the ordinary scale instead of the higher scale sought by the applicant.

Allegations by the appellants, that the court a quo granted relief not sought by the respondent, are not supported by the facts.

Dissatisfied with the decision of the court a quo, the appellants filed the present appeal on the following grounds:

“1. The court a quo erred and misdirected itself in not finding, that, the non-joinder of the Archbishop was fatal.

2. The court a quo erred and misdirected itself by holding, in disregard of the evidence, that the nomination of the first appellant, as successor to the Archbishop, was unconstitutional.

3. The court a quo erred by ordering putative compliance with clause 9.2.2 of the Constitution of the tenth appellant in the absence of a finding as to the incapacitation or resignation of the Archbishop.”

It is the appellants prayer that this Court allows the appeal with costs and that the order of the court a quo be set aside and be substituted with an order dismissing the application with costs.

The issues to be determined, arising from the grounds of appeal, are:

1. Whether the non-joinder of the Archbishop was fatal.

2. Whether the nomination of the first appellant (Alfred Mwazha), as successor to the Archbishop, was unconstitutional.

3. Whether it was competent to order compliance with clause 9.2.2 of the Constitution of the tenth appellant (African Apostolic Church) in the absence of a finding as to the incapacitation of the Archbishop....,.

The first and second grounds of appeal have no merit.

Firstly, the appellants have argued, that, the non-joinder of the Archbishop was fatal to the proceedings. The effect of non-joinder is a well traversed subject in this jurisdiction. The law in this regard was succinctly spelt out by GARWE JA…, in the case of Wakatama and Others v Madamombe 2011 (1) ZLR…, when he stated thus:

“Whether the non-joinder of the Minister is fatal need not detain the court and can easily be disposed of by reference to Rule 87 of the High Court Rules which provides:

'1. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party, and the court, may, in any cause or matter, determine the issues or question in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

2. At any stage of the proceedings, in any cause or matter, the court, may, on such terms as it thinks just, and either of its own motion or on application -

(a)…,.

(b) Order any person who ought to have been joined as a party, or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party.'

The above provision is clear and allows of no ambiguity. The non-citation of the Minister is not, in the circumstances, fatal. Indeed, the court restated this position in the recent decision in Gula Ndebele v Bhunu NO SC29-11.”

Similarly, in casu, the non-joinder of the Archbishop was not fatal to the application before the court a quo.

The remedy for non-joinder is provided for in Rule 87 itself.

A party who is aggrieved by the non-joinder of another party must proceed in terms of Rule 87(2) and make the necessary application for the joinder of that other party.

It is thus permissible for a court to order the joinder of any party, either on its own motion or on the application of any of the parties before it, or, for that matter, any other party who may have an interest in the outcome of the matter.

The appellants, being of the view that the Archbishop ought to have been joined in the proceedings before the court a quo chose not to apply for the Archbishop's joinder. They cannot now be heard to cry foul and seek to rely on their own inadvertence as a ground of appeal to this Court.

Having chosen not to apply for the Archbishop's joinder, the least the appellants could have done was to file a supporting affidavit, sworn to by the Archbishop, confirming that he had appointed the first appellant as his successor.

No such affidavit was filed.

The onus lay upon the first appellant to prove, on a balance of probabilities, that he had been so appointed to succeed the Archbishop as head of the Church.

In any event, the order sought does not prejudice the Archbishop or any of the parties.

On the contrary, what was sought by the respondent (applicant in the court a quo) is a declaratur to the effect that the question of succession be dealt with in accordance with the Constitution of the Church.

No prejudice against anyone could possibly arise out of such a declaration.

On the contrary, the first appellant's contention is that he was appointed successor in accordance with that Constitution. By inference, therefore, the first appellant agrees that the question of succession must proceed in terms of the Constitution. That is precisely the position declared by the court a quo.

At any rate, what, in essence, the court a quo sought to do, was to interpret the provisions of the church's Constitution. In that regard, it did not need the assistance of the Archbishop – the document to be interpreted spoke for itself.

Thus, the first ground of appeal falls by the way side. It must be dismissed.

On 2 June 2020, I heard argument in relation to interpleader proceedings brought in terms of Order 30 Rule 205A as read with Rule 207 of the High Court Rules 1971.

I dismissed the claimant's claim, and the order which I granted, inter alia, declared the property which had been placed under attachment executable. I now provide the reasons for my decision.

The facts giving rise to this application are:

The judgment creditor obtained a judgment in the sum of US$352,851=30 plus interest and costs against Sparkles Services (Pvt) Ltd and Godfrey Munyamana (“the judgment debtors”). Pursuant to the judgment, the judgment creditor caused a writ of execution to be issued on 8 May 2018, resulting in the Sheriff attaching Stand 67 Guildford, Borrowdale Estate of Subdivision H of Guildford Borrowdale Estate, measuring 6,803 square metres, held under Deed of Transfer No.1447/2009 (“the property”).

This was done by notice of attachment issued on 22 May 2018.

The property is registered in the name of the judgment debtor.

Not amused by the attachment, the claimant caused the applicant to institute inter pleader proceedings claiming that the property belonged to him.

These proceedings were commenced on 10 September 2019.

He averred that he purchased the property from Mr Godfrey Munyamana and Mrs Fadzayi Munyamana on 15 December 2013, and had fully paid the purchase price.

The claimant asserted, that, he had instituted proceedings under HC11367/15 seeking transfer, but the lawsuit was settled through a Deed signed on 12 December 2017.

He further said that the parties had done the capital gains tax assessments at ZIMRA.

On that basis, he claimed that the property was his, or special circumstances existed for the property not to be declared executable.

On his part, the judgement creditor was steadfast that the property was executable since it was registered in the name of the judgement debtor. He proceeded to argue, that, by law, the judgment debtor owned the property.

The judgment creditor contended, that, the claimant applied, under HC5642/18, to obtain transfer under the Titles Registration and Derelict Lands Act [Chapter 20:20], never pursued the application as it was incompetent.

Finally, he submitted, that, as he had no title deed, he should take issue with the judgment debtor and seek an appropriate remedy through the court.

I have to decide on the competing interests of the claimant and judgment creditor.

The law relating to interpleader proceedings is settled.

A claimant must set out facts and allegations which constitute proof of ownership. The party objecting to execution must prove, on balance of probabilities, that the property is his or hers: see Bruce N.O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68 (R)…,. The onus is on the claimant to prove ownership of the property claimed: see Deputy Sheriff, Marondera v Travese (Pvt) Ltd & Anor HH11-03.

As already indicated above, the property to which the claimant lays a claim is registered in the name of the judgment debtor. This raises a presumption that such property belongs to the person (juristic or otherwise) who has title to it.

The position was put this way by DE VILLIERS CJ in Zandberg v Van Zyl 1910 AD 258…,:

“…, possession of a movable raises a presumption of ownership; and that therefore a claimant, in her inter pleader suit claiming the ownership on the ground that he has bought such a movable from a person whom he has allowed to retain possession of it must rebut that presumption by clear and satisfactory evidence.”

In casu, the judgement debtor has title to the property. It is indeed immovable property.

However, I propose to equate possession in the case of movable goods to title in respect of immovable property.

To the extent that possession and title raise a rebuttable presumption of ownership, the principle in Zandberg v Van Zyl 1910 AD 258 equally applies to immovable property.

The starting point is to examine the legal implication of title.

Title confers real rights in immovable property. It cannot be gainsaid that a title deed is prima facie proof that a person enjoys real rights over the immovable property defined in the deed.

In Fryes (Pvt) Ltd v Ries 1957 (3) SA 575…, the court held that:

“Indeed, the system of land registration was evolved for the very purpose of ensuring, that, there should not be any doubt as to the ownership of the persons in whose names real rights are registered. Generally speaking, no person can successfully challenge the right of ownership against a particular person whose right is duly and properly registered in the Deeds Office.”

The same legal position obtains in this jurisdiction.

In Takafuma v Takafuma 1994 (2) ZLR 103 (S)…, McNALLY JA had this to say:

“The registration of rights in immovable property, in terms of the Deeds and Registries Act [Chapter 139] (now [Chapter 20:05]), is not a mere form. Nor is it simply a device to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered.”

See also Chapeyama v Chapeyama 2000 (2) ZLR 175 (S).

Of further relevance to transfer of title in immovable property is section 30A of the Capital Gains Tax Act [Chapter 23:01] which reads:

“30A Capital gains tax not withheld in terms of Part IIIA to be paid before transfer of specified asset

(1) No registration of the acquisition of a specified asset in respect of which capital gains tax is not withheld in terms of Part IIIA shall be executed, attested, or registered by —

(a) The Registrar of Deeds in terms of the Deeds Registries Act [Chapter 20:05];

(b) The person responsible for registering the transfer of shares of any company registered or incorporated in terms of the Companies Act [Chapter 24:03];
unless there is submitted to the Registrar of Deeds, or the person concerned, by either of the parties or their agents concerned in the transaction, a certificate issued by the Zimbabwe Revenue Authority stating that any capital gains tax payable on the acquisition of the specified asset has been paid.”

The essence of the above provision is that the process of transfer is/has not yet been completed.

Thus, on a proper construction of section 14 of the Deeds Registries Act and section 30A of the Capital Gains Act, acquisition of ownership in land immovable is registration.

To substantiate his claim, the claimant produced an agreement of sale signed between him and the judgment debtor.

On the basis of the authorities mentioned above, the legal effect of registration of title in the judgment debtor's name is evident. Title in the property remains in the judgement debtor. Such title can only be legally divested upon transfer to the claimant or a third party, whereupon, the transferee would acquire real rights to the property.

As things stand, the agreement, without the process of transfer through the Deeds Registries Act, only vests personal rights in the claimant.

The legal reality was spelt by the court in Fischer v Ubomi Ushishi Trading & Ors 2019 (2) SA 117 (SCA)…, in the following terms:

“That agreement, though binding on the contracting parties, did not, by itself, vest ownership of Mr Haynes half share in the property in Mrs Haynes, any more than a contract of sale of land passes ownership to the buyer. It follows that Middleton [2010 (1) SA 179 (D)] was correctly decided. The vesting of ownership of the property in Mrs Haynes required an act of transfer by way of an endorsement on the title deed of the property in terms of section 45 bis (1)(a) of the Deeds Registries Act.”

That said, I have already acknowledged, that, there is a rebuttable presumption, that, if property is in the name of someone, that person is presumed to be the owner of that property.

Since the claimant has alleged that he is the owner of the attached house, he bears the onus to prove, on a balance of probabilities, that he is the owner.

I have to decide whether that onus has been discharged. Put differently, the issue for determination is whether or not the claimant has set out facts and allegations which constitute proof of ownership.

It is important to note, that, these interpleader proceedings were triggered by the attempt to execute this court's judgment in HC11601/17.

As title is still in the judgment debtor's name, prima facie, the property can be sold in execution of the judgment obtained by the judgment creditor in HC11601/17.

The claimant relied on CBZ Bank v David Moyo & Anor SC470/15 (SC17-18) for the proposition that a Deed of Transfer is prima facie proof of ownership.

Developing on this argument, he submitted, that, the registration of the property in the name of the judgment debtor did not affect his claim to ownership arising from the Agreement of Sale. He further argued, that, on the authority of that case, the property should not be declared executable.

One should not latch onto a legal principle from one case and apply it to another without considering the factual context of each case.

In this respect, it is worth recalling, that, in Bariadale Investments (Pvt) Ltd v Puwayi Chiutsi & Ors HH842-19, CHITAPI J aptly noted:

“I do accept the general rule and the general approach of the court but would caution that a case authority is only binding or persuasive if the ratio decidendi sought to be invoked pertains to a factual scenario which is similar to the case under determination because every case is determined on its own peculiar facts and circumstance.”

The decision in CBZ Bank v David Moyo & Anor SC470/15 (SC17-18) turned on its facts.

The evidence showed, that, title had not been effected due to circumstances beyond the purchaser's control, after he had done everything expected of him to effect transfer.

The brief facts are that Mr Moyo purchased and paid the full purchase price for the property in August 2010. He acted promptly to secure registration of title by paying the transfer fees and obtaining tax and rates clearance certificates. He took occupation three (3) months after the date of payment of the purchase price, in Novemebr 2010, in terms of the sale agreement. The transfer could not be registered because a creditor of one of the sellers had registered a caveat on the title deeds of the property. The caveat was registered after Mr Moyo was already in possession of the property and a day before his transfer papers were filed in the Deeds Registry.

In casu, the factual scenario is not comparable.

The telling question to ask is: since the agreement of sale was signed in 2013, why was transfer not effected by the time of execution in 2018?

Counsel for the claimant initially explained, that, the claimant had applied for registration of title in terms of the Titles Registration and Derelict Land Act. However, when asked by the court if ownership could be obtained that way, counsel conceded the futility of the application.

The record shows, that, when that application was opposed, it was never prosecuted.

Despite the propriety of the application being challenged, the claimant took no steps to seek an order compelling the judgment debtor to transfer the property to him.

It must be borne in mind, that, proceedings under HC11367/15, for the judgment debtor to effect transfer, preceded those under HC5642/15 purportedly in terms of the Titles Registration and Derelict Lands Act.

Counsel for the claimant argued, that, the lawsuit in HC11367/17 was resolved by a Deed of Settlement signed on 12 December 2017.

It is relevant to mention, that, the sale was concluded on 15 November 2013; and, if we go by the receipts attached to the claimant's papers, the purchase price was fully paid in July 2015. Yet, nothing was done to obtain transfer from November 2013 till 2017 when summons was issued.

Also amazing is that the capital gains tax assessment was done on 16 July 2020 for Mr Munyama, and only done on 20 March 2020 for Mr Munyama had been assessed 2 years earlier on 16 July 2018.

Clearly, no plausible explanation has been given for such a lackadaisical approach to enforcing one's rights.

It seems the claimant would have contentedly sat on his laurels were it not for the inter-pleader proceedings. I say this because, quite apart from the casualness outlined above, nothing had still not been by the time the writ of execution was issued on 8 March 2018 and the attachment done on 22 May 2018.

It was not until 10 September 2019 that interpleader proceedings were commenced.

I have to decide whether the claimant has discharged the onus on him to establish his claim to the property.

For the property to be spared from execution, the court must find that “special circumstances” exist.

That was the decision made in CBZ Bank v David Moyo & Anor SC470/15 (SC17-18) which defined special circumstances as follows:

“Special circumstances exist where a purchaser has failed to have the property registered in his name; when he and the seller have demonstrated a clear intention to effect transfer; and when there was no legal impediment to such transfer or the impediment does not justify the refusal to grant protection to the purchaser.”

Based on the papers before me, and the disconcerting chronology of events in this matter, I am loathe to accept that the claimant acted in a manner consistent with someone who proceeded with swiftness but failed to obtain transfer through no fault of his own.

The promptness with which Mr Moyo acted in CBZ Bank v David Moyo & Anor SC470/15 (SC17-18) was certainly not mirrored in casu.

Lest this view is taken as unfair, I must state, that, the claimant was legally represented in all the proceedings he brought before this court. Given that he was acting advisedly, the clumsiness evident from the way the issue of transfer was dealt with is both inexplicable and inexcusable.

Once full compliance with the terms of the agreement of sale had been made, transfer should have been sought immediately.

Even after deciding to deploy another option, what boggles the mind is: why prompt action was not taken to obtain redress as soon as the claimant and/or his lawyers knew that the Titles Registration and Derelict Lands Act route was a cul de sac.

At the end of argument, I came to the view, that, not enough evidence has been adduced to prove, on a balance of probabilities, that the attached immovable property belongs to the claimant and not to the judgement debtor. Nor was I satisfied that the claimant had established special circumstances warranting me to declare the property not executable.

The claim was, accordingly, dismissed.

Although the judgment creditor sought costs on an attorney and client scale, I was not satisfied that any conduct on the part of the claimant justified such costs. Costs being in the discretion of the court, in the exercise of that discretion, I decided against awarding punitive costs.

It is as a result of the foregoing that I made the following order:

1. The claimant's claim to the property which is listed on the Notice of Seizure and Attachment dated 22 May 2018, which were placed under attachment in execution of the order in Case No HC11601 be and is hereby dismissed.

2. The above mentioned property, attached in terms of the Notice of Seizure and Attachment dated 22 May 2018, be and is hereby declared executable.

3. The claimant shall pay the judgment creditor's and the applicant's costs.

Following a leadership dispute in the African Apostolic Church (VaApostora VeAfrica) which is the tenth respondent in this matter, the applicant approached this court, by way of a court application in case number HC2402/20 for a relief.

He petitioned the court, in his capacity as an interested party, reverend and church member, for a declaratur to set aside the purported appointment of the first respondent, Alfred Kushamisa Mwazha as the successor to the founder and Archbishop of the church, Paul Ernest Mamvuru Mwazha (Paul Mwazha) now a centurion at 102 years.

The first respondent (Alfred Mwazha) together with the second, third and fourth respondents (Ngoni Mwazha, Masimba Mwazha and James Mwazha) are sons of Paul Mwazha.

Whilst the first (Alfred Mwazha) and fourth (James Mwazha) respondents are bishops in the church, the second respondent (Ngoni Mwazha) is a former member and bishop of the church.

The third respondent (Masimba Mwazha) is a Seventh Day Adventist.

The rest of the respondents, from the fifth to the ninth respondents (Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe), hold high ranking positions in the church, the tenth respondent (African Apostolic Church (VaApostora VeAfrica)).

I must particularly mention that the fifth respondent (Richard Juru) is the General Secretary of the church....,.

In HC2402/20, it was the applicant's contention, that, the first respondent (Alfred Mwazha) usurped power by seeking to ascend to the position of Archbishop and leader of the tenth respondent (African Apostolic Church (VaApostora VeAfrica)) unconstitutionally, contrary to the provisions of the tenth respondent's Constitution.

He contended, that, the first respondent acted in connivance with the second to ninth respondents (Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) in usurping power.

The applicant contended, that, the first respondent was purporting to have been appointed by the Archbishop as his successor.

Although the respondents opposed the application, CHITAPI J made a finding, that, the note the respondents were relying upon did not support their claim that the Archbishop nominated or appointed the first respondent as successor. He granted the following order on 3 December 2020:

“1 The purported nomination and/or appointment of the first respondent, as the Archbishop or successor to the Archbishop of the tenth respondent, presently Ernest Paul Mamvura Mwazha, is unconstitutional vis–a-vis the 10th respondent's Constitution, and, resultantly, is null and void.

2. Any appointments and re-assignments of personnel made by the 1st respondent, and other actions which changed the administration of the church made by the 1st respondent, in the purported position of Archbishop, are null and void.

3. The respondents are each and all of them ordered to comply with the provisions of clause 9.2.2 of the 10th respondent's Constitution in regard to the succession dispute bedeviling the 10th respondent. The respondents must comply with this order within seven (7) days of the date of this order.

4. The 1st to 9th respondents, jointly and severally, the one paying the other to be absolved, shall pay costs of this application on a party and party scale.”

Dissatisfied or aggrieved by the judgment of this court, the respondents noted an appeal, under SC552/2020, on 11 December 2020.

In turn, the applicant, on 17 December 2020, filed the present urgent chamber application for leave to execute pending appeal.

It is the applicant's contention, that, since noting the appeal, the first to ninth respondents (Alfred Mwazha, Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) have been harassing him and other members of the church. They have been violently disrupting church services together with their followers. They have taken over the church structures and have been influencing their followers to disrupt church gatherings and places of worship.

He then referred to some specific incidents which I will refer to later on in the judgment.

The applicant averred, that, he wants peace and tranquillity.

In response to the application, the respondents raised two (2) points in limine.

But, before I deal with them, I will first deal with the point limine raised by the applicant in response to the respondents notice of opposition. It was to the effect, that, the tenth respondent (African Apostolic Church (VaApostora VeAfrica)) is not before the court because:

(i) Firstly, the deponent to its opposing affidavit, Benjamin Takura, is not in the hierarchy of the people who can represent it.

(ii) Secondly, the fifth respondent (Richard Juru), who signed the resolution authorising the deponent to represent the church, has no such powers.

Richard Juru is the General Secretary of the tenth respondent.

Counsel for the applicant submitted, that, the tenth respondent can only be represented by members of the Board of Trustees in terms of Clause 9.6.2 of its Constitution, and Benjamin Takura is not a member.

I will dismiss this point in limine, because, as was correctly submitted by counsel for the respondents, clause 9.6.2 only says who the trustees of the Board are. It reads:

“Regular members of the Board of Trustees shall be Archbishop Ernest Paul Mwazha, Priesthood Council, Chairman of BoT & Vice Chairman, General Secretary of BoT & Vice, Finance Chairman & Vice, Publicity Chairman & Vice, Transport Chairman & Vice and other appointed BoT Bishops co-opted by the Archbishop. The Board may, at any time, appoint any individuals to sit in meetings to advise or perform projects related to any existing needs.”

The clause does not speak to what counsel for the applicant submitted.

Even the preceding clause, clause 9.6.1 (although she did not refer to it) does not speak to that. It reads:

“The Board of Trustees (BoT) shall serve the church by leading in planning, co-ordinating, conducting, and evaluating the ministries and programs of the church. The primary functions of the Board of Trustees shall be to recommend to the church suggested objectives and church goals, to review and coordinate ministry and programs recommended by church officers, organisations, and committees, to recommend to the church the use of leadership, calendar time, and other resources according to program priorities, and to evaluate achievements in terms of church objectives and goals.”

Clause 9.6. is the clause which deals with the issue of the Board of Trustees. It is made up of clauses 9.6.1 and 9.6.2 only - and I have already quoted both of them above.

Nowhere in those clauses is it mentioned that legal action shall be taken or defended in the name of the church by the Board of Trustees as the applicant averred.

So, the submission by counsel for the applicant, that the resolution authorising Benjamin Takura to depose to the affidavit on behalf of the tenth respondent cannot save him, has no foundation.

Counsel for the applicant did not demonstrate that the General Secretary, Richard Juru, who also happens to be the fifth respondent in the present application, has no powers to authorize a member of the church to institute and defend proceedings on behalf of the church.

She needed to cite the relevant provision of the Constitution which deals with who represents the church in bringing and defending legal action.

At law, he who alleges must prove.

The applicant did not prove his allegation. This point in limine is thus dismissed.

This is an appeal against the whole judgment of the High Court dismissing the appellant's application, filed on 10 November 2017, for a permanent interdiction of the respondents from producing and broadcasting the television show known as Simba Savannah, which the appellant claimed to be “infringing or exploiting (its) right to the copyright, trademarks, and all other intellectual rights in and to the television show Format known as Dragon's Den.”

The order that the appellant sought in the court a quo was couched in the following terms:

“1. The application be and is hereby granted.

2. The 1st and 2nd Respondents, their officers, directors, agents, servants, employees, representatives, attorneys, related companies, successors, assigns, and all others in active concert or participation with them, are each and both immediately and permanently interdicted from producing and broadcasting the television show known as Simba Savannah or any such derivative work adapted or based on the Dragon's Den format.

3. The 1st and 2nd Respondents be and are hereby each ordered to account to Applicant, together with the supporting documents including, but not limited to, contracts for all gains, profits, and advantages derived by 1st and 2nd Respondents by their development, production, promotion, broadcasting and/or any other exploitation of the television show known as Simba Savannah;

4. The 1st and 2nd Respondents be and are hereby ordered to deliver to the Applicant for destruction all digital and/or physical copies of episodes of Simba Savannah, including without limitation, any development materials and/or advertising and other promotional material in the possession of each Respondent, within forty-eight (48) hours of the granting of this Order failing which the Sheriff of Zimbabwe and/or his lawful deputies be and are hereby directed to enter into 1st and 2nd Respondents respective premises from wherever such goods are located and seize for destruction all such digital and/or physical copies of episodes of Simba Savannah, including, without limitation, any development materials and/or advertising and other promotional material in the possession of each of the Respondents;

5. The Applicant be and is hereby authorised to take possession of the digital and physical copies of all episodes of Simba Savannah, including, without limitation, any development materials and/or advertising and other promotional material in the possession of each of the Respondents.

6. The 1st and 2nd Respondents shall, jointly and severally, the one paying the other to be absolved, pay the Applicant's Costs of this suit on the legal practitioner and client scale.”…,.

In this appeal, the appellant contends, that, the court a quo erred and misdirected itself in dismissing its application and seeks the setting aside of the court a quo's judgment and the substitution thereof with an order granting the relief that it sought as reproduced above.

It will be necessary, for the purposes of this judgment, to set out in some detail the case that was presented to the court a quo by the appellant.

The appellant was identified, by the deponent to the founding affidavit filed in the court a quo, as “a television production and distribution studio with company registration number 02719242.” It was said to hold “the exclusive right to license, adapt, produce and exploit a copyright protected audio-visual work being a reality television format program known as 'Dragons Den (hereinafter 'Dragons Den' or 'the Format).'”

The deponent to the founding affidavit further stated that “(T)he Format is an original work by Nippon Television Network Corporation, a company duly incorporated in accordance with the laws of Japan” and that it features entrepreneurs pitching their business ideas in order to secure investment finance from a panel of venture capitalists in exchange for equity in their businesses. She also stated that “The Format originated in Japan as 'Money Tigers or Tigers of Money.'”

It was also the appellant's averment, that, since 2002 “local versions of the Format” have been produced and transmitted in over 30 countries by authorized licensees - the appellant included.

In some countries, more than one version has aired, and the most popular name for the show is “Dragons Den” a name that originated in the United Kingdom.

There have been variations to the name, with some being titled 'Shark Tank' a name that originated in the United States of America. 'Lions Den' was said to be another variation of the name.

In versions where the name of the show contains a predator's name, the investors are referred to as that predator. It was averred, that, the “Dragons Den Format” has attained “strong recognition” in North America, South America, Australia, Asia, Europe, and Africa.

The deponent to the founding affidavit proceeded to enumerate what she described as the distinct elements of the “Dragons Den Format.” Seven elements are listed as follows:

(a) The participants are generally product designers or service operators who have what they consider to be a viable and potentially very profitable business idea, but who lack funding and direction.

(b) The participants pitch their business idea to established local business investors for funding, in exchange for equity in their businesses.

(c) Globally, the licensees of Dragons Den have referred to their local investors as 'Dragons' 'Tigers' 'Sharks' or 'Lions', with 'Lions' being used in Kenya, Denmark, Germany, and Finland.

(d) The “Format's titles” as localised around the world, have a particular and distinctive form and content, namely;

(1) The animal predator that is top of the local food chain; and

(2) The place or location in which that animal presides, hence 'Dragons Den' 'Lions Den' 'Shark Tank.'

(e) The investors are positioned in one row, seated side by side. The entrepreneur then enters the studio and stops next to his or her product, which is pre-placed, facing the investors.

(f) After the entrepreneur's pitch, the investors engage in a “lively debate-like style” and at the end each investor declares “I'm in” or “I'm out” as an expression of his or her decision on whether or not to invest in the entrepreneur's product and/or service.

(g) Lastly, Dragons Den features a post-pitch interview with each entrepreneur. The interview takes place backstage, behind the scenes “along with voice-over to narrate the story.”

It was averred, that, it came to the appellant's attention that a television reality show under the title “SIMBA SAVANNAH” was being broadcast in Zimbabwe by the second respondent every Sunday evening during the 7:00pm prime time slot and that the show was produced by the first respondent.

Thirteen episodes of the show (collectively referred to as “Season 1”) had already been broadcast as at the date of the institution of the proceedings a quo and a call for applications or pitches for Season 2 of the show was being advertised on the first respondent's website. In addition, Season 1 of the show was also readily accessible and downloadable from YouTube, a popular video sharing website which is accessible worldwide. The site was said to have “800 million unique users and visitors each month.”

It was contended, on behalf of the appellant, that “Simba Savannah” was “an un-authorised adaptation of, and is based on and/or incorporates elements of the 'Dragons Den Format'.”

It was also contended, that, the first respondent “blatantly reproduced and/or incorporated several elements from the “Dragons Den Format, including, without limitation, its title, studio set, episode sequence, stage design, staging sequence, manner in which the pitches and responses are presented and filmed, music, voice over and post-pitch interviews thereby creating an entirely similar look and feel as the instantly recognisable Dragons Den Format.”

It was further contended that “Simba Savannah” replicates Dragons Den's “expression” and that it is neither original nor uniquely Zimbabwean.

Furthermore, that the first respondent deliberately chose to mimic the Format and cause confusion in the minds of consumers. The first respondent, it was contended, did not choose a unique title based on business in Zimbabwe but chose 'Simba Savannah' “in order to pass off its program under the Format in aid of taking advantage of the goodwill behind the Sony brand.”

It was also contended, that, Simba Savannah is confusingly similar to Dragons Den and “suggests an association between the appellant and the respondents in respect of the Dragons Den Format.”

Furthermore, that the respondents had derived direct benefit from the international reputation and established goodwill “inherent in the Dragons Den Format.”

It was averred, that, the respondents did not seek permission or licence from the appellant “in respect of the use of the Dragons Den Format” and that the appellant does not consent to such use, reproduction or exploitation.

It was stated, that, it, in fact, sometime in June 2016 “licensed the Format to Invision Studios (Pvt) Ltd in Zimbabwe” and that to its knowledge, the second respondent was aware of this licence but proceeded with the broadcast of Simba Savannah, regardless.

The appellant disapproved this reproduction or exploitation.

It was also stated, that, on 12 August 2016, the appellant served the respondents with “a cease and desist” letter requesting them to respect its copyright and intellectual property rights.

In its response, the first respondent declined to comply with the request and indicated its intention to continue with its conduct. The second respondent also declined to comply with the request and advised that it would only do so when so enjoined by the court.

The appellant served the respondents with a further “cease and desist” letter dated 21 December 2016.

However, no indication is made as to whether the second letter was responded to.

It was further stated, that, the appellant had thus had to resort to filing the application through which it sought “to immediately stop 1st and 2nd Respondents from continuing their injurious actions from which it has suffered irreparable and incalculable harm, and which will continue unless the respondents are enjoined from further abuse of its copyrighted material and unauthorised adaptation and use of the Dragons Den Format.”

Regarding the requirement of establishing a clear right to a permanent interdict, it was averred in the founding affidavit that the “Dragons Den Format” is a legally protected copyright work and that Simba Savannah is an un-authorised derivative work violating sections 13 and 19 of the Zimbabwe Copyright and Neighbouring Rights Act [Chapter 26:05] (the Act).

It was further averred, that, the appellant, being the holder of an exclusive licence “to the copyright, trademark and all intellectual property rights in and to the Dragons Den Format was, therefore, entitled, in terms of sections 51 to 53 of the aforesaid Act, to the relief sought as its rights are concurrent with the rights and remedies of the owner of the copyright under which its licence was granted.”

The averment was also made, that, Simba Savannah, as an unauthorised derivative work, violates Article 2 of the Berne Convention for The Protection of Literary and Artistic Works, to which Zimbabwe is a signatory.

Furthermore, that the appellant's rights to the copyright “in and to the Dragon's Den Format are protected in Zimbabwe by virtue of Regulation 17 of the Copyright and Neighbouring Rights Regulations, 2006 [Chapter 26:05]” (sic) which recognises for protection, works originating from any member of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) Agreement with Japan, United States of America, United Kingdom, and Zimbabwe all being signatories to the treaty.

The contention was also made, that, in the alternative, the facts set out above support a claim of passing off, by the first respondent, of the appellant's “licensed and copyrighted work.”

It was contended, that, the passing off of Simba Savannah has caused confusion amongst or in the minds of viewers in Zimbabwe as demonstrated by local news articles in Zimbabwe where members of the Zimbabwean public have drawn comparisons to the “instantly recognisable Dragons Den Format, this being due to the glaringly obvious similarities between Simba Savannah and Dragons Den.”

This, it was contended, had misled the public to believe that Simba Savannah is based on Dragons Den and that it was produced under licence from the appellant. This presumed association, it is contended, is in fact a benefit derived by the respondents from the appellant's international reputation and established goodwill, resulting in damage to the appellant's intellectual property and recognised brand.

The appellant claimed that the respondents continued production and broadcasting of Simba Savannah will continue to cause confusion and was likely to deceive viewers regarding the “origin, affiliation, association, connections and/or endorsement of the respondents actions.” Consequently, it was entitled to an injunction or interdict prohibiting further violations of its rights by the respondents.

If the relief sought was denied, it was averred, the appellant's rights to “the Dragons Den Format would have been irreversibly and irreparably disregarded or defied. No amount of monetary damages would adequately compensate the appellant or its licensees for the damage to their rights, business, positive reputation and goodwill.” The appellant thus had no other remedy but to institute the proceedings, it was contended.

The above sets out the material facts on the basis of which the appellant felt that it was entitled to the relief that it sought in the court a quo as reflected in paragraph 2 of this judgment.

The first respondent, in opposing the application, stated, inter alia:

“While Applicant may be the exclusive licensee of the audio visual work known as Dragons Den, 1st Respondent denies that the 'format' is an audio visual work as defined in the Copyright and Neighbouring Rights Act [Chapter 26:05].

(a) 1st Respondent has no knowledge of the alleged productions and transmission of the 'format' and contends that what was produced was the program, not the format.

(b) In any case, 1st Respondent maintains, that, the format of a television show is not an audio visual work. Consequently, a format cannot be protected as a copyright work and use of a format which has some similarity with such format does not constitute copyright infringement.

(c) Further, the name of the show is not a copyrightable work, and the fact that where the name contains a creature's name, the investors are referred to as such creature only demonstrates that the idea of an animal name to designate its show by 1st Respondent is what aggrieved the applicant. Applicant is complaining about the use of an idea, yet ideas are not protected under the law of copyright.

(d) I am advised…, that ideas, methods of operation, concept(s) are not eligible for copyright even if they are explained, illustrated, or embodied in a work. I therefore submit that the features allegedly infringed are mere ideas or concepts which cannot be protected under copyright law. Applicant therefore has no exclusive rights in any of the alleged elements of the format.”

It was also the first respondent's stance that Simba Savannah was not an adaptation of Dragons Den.

It also argued, that, going by the definition of “adaptation” in the Copyright and Neighbouring Rights Act [Chapter 26:05] “it is not possible for an audio visual work to be adapted into another audio visual work.”

Furthermore, that even if it was to be assumed, for argument's sake, that Simba Savannah was based on Dragons Den, this would not constitute infringement of copyright.

The first respondent denied that Simba Savannah incorporated or reproduced any elements of the “Dragons Den Format.”

The deponent to the opposing affidavit further stated “(T)he title, Studio set, episode sequence, stage design, staging sequence, and all other elements stated in this paragraph are not copyright works.”

Furthermore, that “the basis of Dragon's Den as set out…, clearly shows that it is not a copyright work but an idea or concept.”

It was also argued, that, the appellant did not prove goodwill or any damages suffered by it.

It was contended, in the first respondent's opposing affidavit, that, the appellant itself was not clear as to how its intellectual property rights were allegedly violated as it was not clear whether it claimed copyright infringement or trademark infringement. It is not clear whether the claim is for infringement of copyright or it is for passing off.

It denied ever using the appellant's Dragons Den Format “as alleged or at all.”

It also denied having derived any benefit from the alleged international reputation and the claimed goodwill of the Dragons Den Format.

The first respondent further contended, that, the appellant had not demonstrated that it had copyright “in the alleged format of Dragons Den” as it had placed nothing on the record to establish the existence of such copyright.

As the appellant claimed to enjoy copyright in its “format” in the United States of America, it ought to have attached proof of deposit of its copyright work with the United States Patents and Trade Marks Office (USPTO) where there is a depository system.

The first respondent thus denied infringing any of the appellant's intellectual property rights as alleged or at all.

It denied that it obtained a direct financial benefit from airing Season 1 of Simba Savannah and denied that it was unjustly enriched as alleged or at all.

It commented on the appellant's contention that it is entitled to an interdict because, inter alia, the first respondent “has already shown its intention to continue with the copied and/or created derivative works from the Dragons Den Format by calling for pitches for Season 2.”

The first respondent's comment was that the appellant's statement that “the copied and/or created works are unauthorised” showed lack of understanding on the part of the appellant or its advisors as the first respondent did not need the appellant's authorisation to create its own work “no matter how similar that work may appear” as long as it had not copied the appellant's work.

The first respondent also contended, that, sections 51 to 59 of the Copyright and Neighbouring Rights Act [Chapter 26:05] availed other effective remedies to the appellant but the appellant had chosen to disregard them and opted to seek a permanent interdict because it had no evidence to sustain its actions and to attain such remedies. The appellant was thus abusing court process to intimidate and harass legitimate competitors.

It was also the first respondent's stance, that, the appellant ought to have demonstrated that the “Format” is a 'work' as defined in the Copyright and Neighbouring Rights Act but had failed to do so.

The 'format' of a television program, it argued “does not fit in the definition of 'work' set out in the Act.”

Simba Savannah is not an adaptation of any protected audio-visual work which can be infringed. At most, it is a concept, and concepts are excluded from copyright protection by section 10(4) of the Copyright and Neighbouring Rights Act.

The first respondent further contended, that, besides failing to establish one of the essential requirements for the granting of a permanent interdict, some of the relief sought in the other paragraphs of the Draft Order had not been claimed or founded anywhere in the founding affidavit. This, it claimed, to be an indication that the appellant was on a fishing expedition and that it was not sure what it was that it was seeking from the court.

The second respondent did not oppose the application.

The court a quo dismissed the appellant's application. It found that the appellant's claim related to more of a concept or an idea and not to an audio visual work. It found that there had therefore not been any infringement of copyright.

With regard to passing off, it found that the first respondent had not misrepresented that Simba Savannah was Dragons Den.

It also found, that, there was no proof that the appellant enjoyed a reputation in the format, form, and presentation of its television program. Neither had the appellant proven goodwill in its program known as Dragons Den.

It reasoned that the protection which copyright gave created a monopoly and there had to be certainty in the subject matter of the copyright, which subject matter the appellant had failed to establish.

The court also held, that, the appellant did not have a clear right in the circumstances.

It further held, that, having established that Dragons Den was not an audio visual work, the appellant could thus not suffer any prejudice through the infringement of a non-existing copyright.

It held, that, the appellant could institute criminal proceedings against the respondents in accordance with section 59 of the Copyright and Neighbouring Rights Act [Chapter 26:05], and that there was therefore, another remedy which the appellant could pursue.

The court a quo took the view that the relief sought by the appellant, of a permanent interdict, could not be granted as its requirements had not been satisfied.

It found that the appellant had failed to prove that it had goodwill in its programme or that it enjoys a reputation.

It dismissed the application.

Aggrieved by this decision, the appellant noted an appeal to this Court on the following grounds:

“1. The learned judge in court a quo erred in finding that the appellant's programme (Dragons Den) was not an audio-visual work within the meaning of that expression as utilized in the Copyright and Neighbouring Rights Act [Chapter 26:05].

2. In any event, the learned judge erred in finding that the appellant had not established a clear right.

3. The learned judge in (the) court a quo misdirected himself on the facts and erred in finding that the appellant had not established goodwill in respect of its programme.

4. The learned judge in court a quo misdirected himself on the facts and erred in finding that there were no sufficient similarities between the two programs so as to establish passing off.

5. The learned judge in court a quo erred in failing to have regard to the provisions of the Berne Convention for the Protection of Copyright Works in determining the appellant's rights.

The appellant seeks the following relief:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is set aside and the following is substituted:

“The application succeeds and an order is made in terms of the Draft Order attached to the application.”

Before this Court, counsel for the appellant, made the following submissions:

The court a quo erred in finding that the television program, Dragons Den, was not an audio visual work.

It, in fact, is an audio-visual work in respect of which copyright is held by the appellant and which the first respondent has wrongfully and unlawfully adapted in contravention of the Copyright and Neighbouring Rights Act [Chapter 26:05]. The court a quo failed to have regard to the provisions of the Copyright and Neighbouring Rights Act, which, in section 2, defines “audio-visual work.”

A television program is an audio-visual work.

The court a quo ought to have examined whether Simba Savannah constituted an adaptation but it failed to do so. It ought to have had regard to the similarities between Dragons Den and Simba Savannah that were highlighted by the appellant in its founding affidavit and that is where the inquiry ought to have ended, with a finding that Simba Savannah is a clear and straightforward breach of copyright.

It was counsel's further submission, that, the court a quo ought not have had regard to the New Zealand case of Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 (Green's case) as the case is inapplicable to the matter that was before it for two reasons:

(i) Firstly, the appellant in that case claimed damages for passing off and infringement of copyright in television scripts and dramatic format of his program.

(ii) Secondly, the expression “audio-visual work” is not defined in the New Zealand Copyright Act, unlike the Zimbabwean Copyright and Neighbouring Rights Act which has defined it. If the court a quo had had regard to the Zimbabwean Copyright and Neighbouring Rights Act, which provides that copyright (which is defined) exists in an audio-visual work, and which also, in section 19, prohibits an adaptation thereof, it would have come to a different conclusion.

Furthermore, Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 was a trial action and was not argued on the papers as happened in casu.

In any event, Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 involved a dramatic work.

Counsel submitted, that, on a proper interpretation of the case of Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch), it is clear, that, the appellant has a copyright and that there has been an adaptation by the respondents. For that reason, the appellant was entitled to an interdict by virtue of the provisions of the Copyright and Neighbouring Rights Act [Chapter 26:05].

The further submission was made, that, the first respondent, besides saying that Simba Savannah was uniquely Zimbabwean, had not said that it was its original idea and had not explained where they got the idea from.

On the other hand, the appellant had set out, in detail, the aspects which it alleged had been copied from Dragons Den and this found credence from press articles and reviews in which members of the public likened Simba Savannah to Dragons Den. The first respondent had therefore caused irreparable harm to the appellant which had no other remedy than the relief that it sought a quo.

It was also counsel's submission, that, the definition of “adaptation” in the Copyright and Neighbouring Rights Act does not relate to audio-visual works, and that, in casu, resort must therefore be had to the ordinary grammatical meaning of the word.

It was submitted, that, in any event, section 19 of the Copyright and Neighbouring Rights Act vested in the owner of a copyright, the exclusive right to, inter alia, make or authorise the making of an adaptation of the work.

With regard to passing off, counsel submitted, that, the court a quo applied the wrong test when it referred to the making of a misrepresentation whereas the two requirements that must be satisfied are reputation or goodwill (of the plaintiff) and the likelihood of confusion (to members of the public).

Counsel for the first respondent submitted as follows:

The critical question is: what it was that the appellant complained of in the court a quo.

According to the founding affidavit, Dragons Den is a television program, but, the appellant complained of infringement of a television format.

What the appellant sought to protect was thus a television format.

The concept of a television format is alien to the Copyright and Neighbouring Rights Act [Chapter 26:05].

“Format” does not appear in the definition section or any section in terms of which different kinds of works are protected in the Copyright and Neighbouring Rights Act.

The appellant attempted to classify 'format' as an original work or an audio-visual work.

A format cannot, however, fit into the definition in section 2 of the Copyright and Neighbouring Rights Act, of an audio visual work, which, in terms of the said definition, must be recorded or fixated, as would be the case with a DVD, which contains moving images and sounds that are embodied and fixated in that medium or an MP3 or MP4 that has pictures and sounds together.

That, which the appellant alleged to have been infringed, has not been fixated and there was no allegation in the founding affidavit that there was a medium which contains or includes moving pictures and sounds that the first respondent accessed and reproduced.

Counsel for the first respondent submitted, that, in paragraph 24 of the appellant's heads of argument, there was a vacillation amongst three poles, these being: (i) a television program; (ii) a format; and (iii) an audio-visual work and that the appellant seemed to suggest that the three are synonymous, when they are not.

The primary question was whether or not copyright can ever subsist in a television format in terms of the Copyright and Neighbouring Rights Act.

In terms of section 128 of the Copyright and Neighbouring Rights Act, the appellant's claim must find residence in an identified section of the Copyright and Neighbouring Rights Act or any other statutory provision and the appellant had failed in this regard.

The idea or concept of entrepreneurs pitching to potential investors cannot be protected by the Copyright and Neighbouring Rights Act, as section 10, which enumerates works that are eligible for copyright, excludes such from protection by means of copyright.

The appellant's claim could not succeed as it was hinged on an alleged adaptation of a format, which alleged adaptation is alien to the Copyright and Neighbouring Rights Act.

With regard to the case authorities in Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 and Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch), counsel submitted, that, what emerged therefrom was that, in principle, a format may be protected as a dramatic work, but never as an audio-visual work.

The closest that a format comes to get copyright protection, is, if it is in the form of a dramatic work.

The appellant failed to satisfy the criteria for such protection to be availed. In casu, there was no reproduction of any known copyrighted work.

With regard to passing off, counsel submitted, that, where a litigant fails to establish a misrepresentation, they cannot succeed in establishing passing off.

He also submitted, that, the reference by the appellant to the Berne Convention for the Protection of Literary and Artistic Works was misguided. The reason for this, he submitted, was that it does not have direct application except as domesticated in the Copyright and Neighbouring Rights Act [Chapter 26:05].

The second respondent, not having filed any opposing papers in the court a quo, was not present or represented at the hearing of this appeal.

The issues for determination are aptly set out in the first respondent's heads of argument as follows:

1. Whether or not the appellant's programme, Dragon's Den, is protected as an audio visual work in terms of the Copyright and Neighbouring Rights Act [Chapter 26:05].

2. Whether or not the appellant satisfied the requirements for a permanent interdict.

3. Whether or not the appellant satisfied the requirements for passing off.

4. Whether or not the provisions of the Berne Convention for The Protection of Literary and Artistic Works have direct application in copyright disputes in Zimbabwe.

In my view, the listed issues crystallise the questions that arise.

The over-arching issue, of whether or not the court a quo erred in dismissing the appellant's application, will be answered by the determination made thereon.

Despite the attempt, at the beginning of the founding affidavit, to describe or classify Dragon's Den as an audio visual work, it is clear from a perusal of the whole document that the appellant's complaint pertained to the format of Dragon's Den.

This is demonstrated by the persistent and consistent use, inter alia, of the phrase “Dragon's Den Format” and the word 'Format' as reflected in the appellant's case as set out a quo. More pertinently, in paragraph 14, in describing the nature of the application that was before the court a quo, the following is stated:

“NATURE OF APPLICATION

14. This is a Court Application in terms of Order 32 Rule 230 wherein the Applicant seeks an Order to permanently interdict the 1st and 2nd Respondents from infringing or exploiting Applicant's right to the copyright, trademarks and all other intellectual property rights in and to the television show Format known as Dragon's Den.”…,.

Paragraph 14 thus identifies the nature of the application as one for the protection of the format of a television show; such format being known as Dragon's Den.

In addition to this, the founding affidavit kept referring, in the main, to the format as the aspect that had been adapted without authorisation and which it was claimed ought to be accorded copyright protection by the court.

Significantly, this having been the nub of the appellant's case, as pleaded, is the case that the first respondent responded to in its opposing papers.

The statutory framework which governs copyright issues is the Copyright and Neighbouring Rights Act [Chapter 26:05].

Section 2 of the Copyright and Neighbouring Rights Act defines “audio-visual work” to mean 'a recording or fixation on any medium from which a moving image, together with any sounds associated with the image, may be produced by any means, but does not include a computer program or a broadcast.”

From this definition, for anything, excluding a computer program or a broadcast, to qualify as an audio-visual work, it must be:

(i) A recording or fixation;

(ii) On any medium;

(iii) From which a moving image;

(iv) Together with any sounds associated with the image;

(v) May be produced (by any means).

The Copyright and Neighbouring Rights Act defines 'record' to mean “any disc, tape, perforated roll or other device in or on which information is or can be embodied so as to be capable, with or without the aid of some other instrument, of being automatically reproduced.”

I take it that 'a recording' is to be construed accordingly and in conformity to the said definition.

The definition given to 'sound recording' is “means any fixation of sound on a record, but does not include a sound-track associated with an audio-visual work.”

I do not think that this definition is of any relevance in casu, considering the facts of this matter.

The Copyright and Neighbouring Rights Act also states, in the interpretation section, that 'fixation' “in relation to sounds, means the embodiment of the sounds or representations of the sounds in such a way that they can be heard, reproduced, or communicated through a machine or device.”

The appellant's complaint, per its pleadings, being about the format of the television show known as Dragon's Den, there has been no demonstration or establishment that the format is a recording or a fixation as contemplated by the Copyright and Neighbouring Rights Act [Chapter 26:05].

What the appellant alleges to have been infringed has neither been shown to be a recording or a fixation on any medium from which a moving image with sounds associated therewith may be produced and which the first respondent accessed and reproduced.

The appellant's founding affidavit mostly refers to Dragon's Den as “the format” while occasionally vacillating between calling it a format or an audio visual work or a program.

Before us, counsel for the appellant submitted that “the program, Dragon's Den, is an audio-visual program in respect of which the copyright is held by the appellant and in respect of which the first respondent has wrongfully and unlawfully adapted in contravention…,. This television program is an audio visual work.”

The vacillation, and sometimes conflation, is also evident in paragraph 24 of the appellant's heads of argument where it is submitted as follows:

“To hold, as a matter of principle, that, a television programme or unique format in the form of an original audio visual work is not capable of being protected by copyright, makes bad law.”…,.

However, as noted earlier, the appellant's own characterisation of its application a quo was that it was for the protection of the format of its television show.

There was a noticeable effort by the appellant's counsel, in addressing us, to steer the appellant's case away from the pleaded claim of protection of a format, towards it being regarded, instead, as a claim for protection of an audio visual work, hence the interchanging descriptions.

The impression is created, that, in formulating the claim, no attention may have been given to the Copyright and Neighbouring Rights Act [Chapter 26:05] in order to ascertain the copyrights that are protected.

The possible subsequent realisation that a format is not recognised, and, accordingly, protected as an audio-visual work might be the explanation for counsel's great effort to effectively plead the claim afresh during his oral submissions before us.

The lack of clarity by the appellant itself, in its founding affidavit, detracts from the cogency of its claim.

It appears probable, that, the placing of additional reliance on the Berne Convention for The Protection of Literary and Artistic Works is an indication of the realisation on the part of the appellant, that, on the presented facts, coupled with the articulation or formulation of its claim, there would be no copyright protection afforded to it in terms of the Copyright and Neighbouring Rights Act [Chapter 26:05]….,.

Section 9 of the Copyright and Neighbouring Rights Act [Chapter 26:05] provides as follows:

“9 Nature and vesting of copyright

(1) Copyright is a real right which subsists in a work by virtue of this Act and which entitles its owner, exclusively, to do in Zimbabwe the things which this Act designates in relation to that work.

(1) Copyright subsists in a work if it is eligible for copyright in terms of section ten, and, if any, or all, of the following requirements are met –

(a) The author of the work is a qualified person by virtue of section eleven;

(b) The work qualifies for copyright protection in terms of section twelve by virtue of the country in which it was published or made;

(c) The work was made under the direction or control of the State or a designated international organisation as provided in section thirteen.”

Section 10 of the Copyright and Neighbouring Rights Act lists the following, in paragraphs (a) to (h), as works that are eligible for copyright:

(i) Literary works;

(ii) Musical works;

(iii) Artistic works;

(iv) Audio-visual works;

(v) Sound recordings;

(vi) Broadcasts;

(vii) Programme-carrying signals; and

(viii) Published editions.

A format does not make the list.

Section 12 of the Copyright and Neighbouring Rights Act is significant. It provides:

“12 Copyright by virtue of country of first publication

(1) A work that is eligible in terms of section ten shall qualify for copyright protection if it is published in Zimbabwe or in a designated country.

(2) Without derogation from subsection (1) –

(a) A computer program, audio-visual work, or broadcast that is eligible in terms of section ten shall qualify for copyright protection if it is made in Zimbabwe or a designated country;

(b) A programme-carrying signal that is eligible in terms of section ten shall qualify for copyright protection if it is emitted to a satellite from a place in Zimbabwe or a designated country.

(3)…,.”…,.

From my reading of section 12 of the Copyright and Neighbouring Rights Act, to qualify for copyright protection, a work, whether first published in Zimbabwe or in a designated country, must first be eligible in terms of section 10 of the Copyright and Neighbouring Rights Act.

In my view, this means, that, the citation of the Berne Convention for The Protection of Literary and Artistic Works is not of any benefit to the appellant's case. It is rendered irrelevant by the provisions of section 12 of the Copyright and Neighbouring Rights Act [Chapter 26:05].

The works that are eligible, in terms of section 10 of the Copyright and Neighbouring Rights Act, have been listed above.

The answer to the question whether the format of the television show, Dragon's Den, qualifies as an audio-visual work, in terms of the Copyright and Neighbouring Rights Act, determines whether it is necessary to interrogate whether or not the requirements for the granting of the interdict sought were met.

Clearly, the first respondent's main basis for opposing the application in the court a quo was that the appellant sought to protect a format, which, in its submission, was not protected by any copyright in terms of the Copyright and Neighbouring Rights Act. It contended, that, the appellant was not protecting an audio-visual work.

A 'format' has been defined to be “the way in which something is arranged or set out” (per google search - Definitions from Oxford Languages). The Concise Oxford Dictionary defines it as “style or manner of arrangement or procedure.”

The pertinent question is: whether or not copyright can subsist, in terms of the Copyright and Neighbouring Rights Act, in a television show format.

Section 128 of the Copyright and Neighbouring Rights Act provides as follows:

“128 No copyright under common law

Subject to this Act, no copyright or right in the nature of copyright shall subsist otherwise than by virtue of this Act or any other enactment.”

Clearly, therefore, the appellant's right or claim must find its residence in an identified section of the Copyright and Neighbouring Rights Act or another statutory provision.

The protection sought, under cover of an audio visual work, cannot be substantiated under the Copyright and Neighbouring Rights Act because the “format” of Dragon's Den does not fit into the Act's definition of an audio-visual work.

No other provision has been cited or invoked under which copyright protection should be accorded to the format.

A format does not fit into the Copyright and Neighbouring Rights Act's definition of an audio-visual work. Neither is a format listed as a work eligible for copyright protection.

In the circumstances, the court a quo cannot be faulted in dismissing the appellant's main claim based on copyright protection of a format. It stated as follows at p127:

“I am inclined to agree with the interpretation given by the first respondent. More specifically, I am not convinced that any recording or fixation, where there are moving images with sounds associated with the images which must be produced by any means gives rise to rights under copyright.”

Understandably, counsel for the appellant sought to argue, that, the statement in the second sentence by the learned Judge a quo was in contradiction to sections 2 and 19 of the Copyright and Neighbouring Rights Act.

Literally read, counsel for the appellant's submission would appear to be correct.

But, read in context, the impression created is that there seem to be some missing or omitted words in the statement. This is particularly so when regard is had to the fact that the court a quo found against the appellant. Furthermore, the interpretation given by the first respondent, which interpretation the court indicated that it was inclined to agree with, is captured in the court's judgment at p126 in the following terms:

“While applicant avers that Dragon's Den falls under an audio visual work as defined in section 2 of the Act, first respondent is of a contrary view. First respondent avers, that, not only is Dragon's Den not an audio-visual work but it is not a fixation or an adaptation of an audio visual art work.”…,.

The court a quo cannot be faulted, considering that the dispute that was presented and ventilated and argued before it was that of copyright protection of a format.

However, the tenor of the appellant's heads of argument, in this Court, shifted from emphasising on the infringement of a format.

The submission is made therein that “(T)he distinct elements of Dragon's Den which the appellant avers qualify the television programme, as a whole, as an original audio-visual work are specifically set out in paragraph 8 of the founding papers at pages 4–5 of the record, and are…,.”

The definition of “fixation” in section 2 of the Copyright and Neighbouring Rights Act is of significance. It is stated as follows:

“'fixation' in relation to sounds, means the embodiment of the sounds or representations of the sounds in such a way that they can be heard, reproduced, or communicated through a machine or device.”

It is, in my view, an inescapable fact, that, on the claim as presented a quo, there was no establishment of any fixation pertaining to Dragon's Den. The claim a quo related to the format of the television show Dragon's Den.

The court a quo cannot be faulted for stating as follows:

“In the instant case, we are talking more of a concept or idea as opposed to a work with a script and details of the text.”

A reading of the Copyright and Neighbouring Rights Act will show, that, concepts or ideas are not included for protection by means of copyright. Neither are formats included.

Section 10(5) of the Copyright and Neighbouring Rights Act provides that the following things, inter alia, “shall not be eligible for copyright: ideas, procedures, systems, methods of operation, concepts, principles, discoveries, facts or figures, even if they are explained, illustrated, or embodied in a work.”

On the case presented a quo, because a format is not an audio-visual work in terms of the Copyright and Neighbouring Rights Act, there was no infringement of, as contended, an audio visual work in the form of a format.

As correctly submitted by the first respondent, in its heads of argument, the Berne Convention for The Protection of Literary and Artistic Works has no direct application in the determination of this matter.

Section 128 of the Copyright and Neighbouring Rights Act [Chapter 26:05] categorically states that:

“(S)ubject to this Act, no copyright or right in the nature of copyright shall subsist otherwise than by virtue of this Act or any other enactment.”

Furthermore, the Berne Convention for The Protection of Literary and Artistic Works only finds application in Zimbabwe to the extent that its provisions have been domesticated in the Copyright and Neighbouring Rights Act or any other domestic or local enactment in terms of section 327 of the Constitution of Zimbabwe.

The appellant was not clear as to which specific provision of the Berne Convention for The Protection of Literary and Artistic Works it was placing reliance on and to what effect.

In the pleadings a quo, it averred, that, Simba Savannah is an un-authorised derivative work that violates Article 2 of the Berne Convention for The Protection of Literary and Artistic Works.

The Article has eight sub-articles. It refers, inter alia, to literary and artistic works, translations, adaptations, arrangements of music, and other alterations of a literary or artistic work.

Reference was also made to section 17 of the Copyright and Neighbouring Rights Regulations, 2006 which provides as follows:

“The following shall be designated countries -

(a) Any member of the Berne Convention for the Protection of Copyright Works;

(b) Any member of the Agreement on Trade Related Aspect of Intellectual Property (Trips Agreement).”

The error of the court a quo was not articulated with sufficient clarity to enable this Court to appreciate the alleged error or misdirection.

In Chikura v Al Shams SC17-17 ZIYAMBI JA stated:

“It is not for the court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of 'grounds of appeal' in order to determine the real issues for determination by the court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal. That is not so in the instant matter. The grounds of appeal are multiple, attack every line of reasoning of the learned judge and do not clearly and concisely define the issues which are to be determined by this Court.”

I appreciate that I am not dealing with grounds of appeal in casu.

However, it is my considered view, that, the essence of the principle enunciated by ZIYAMBI JA is applicable in the present circumstances where the appellant did not clearly and concisely plead the specific provision(s) of the Article(s) and/or sub-articles of the Berne Convention for The Protection of Literary and Artistic Works that it was placing reliance on.

The appellant should have identified which of the eight categories listed in Article 2 of the Berne Convention for The Protection of Literary and Artistic Works that its claim falls under.

It is not for the court to speculate and make assumptions as to what might have been in the appellant's mind. It is not for the court to plough through the Berne Convention for The Protection of Literary and Artistic Works in search of the applicable provisions and make a case for the appellant.

In his heads, counsel for the appellant submitted, that, the court a quo erred when it did not grant the appellant's claim for a lump sum maintenance payment which had not been opposed by the first respondent.

He submitted, that, because the claim had not been opposed, it is deemed to have been admitted.

A reading of the record establishes, that, the appellant's claim was opposed by the first respondent.

The appellant claimed it under paragraph 10.6 as “a cash amount of US$100,000”. In his plea, the first respondent, in paragraph 6, said:

“Ad paragraphs 9-10, Denied. Plaintiff is put to the strict proof of her claim. Otherwise, the Defendant refers to the claim in reconvention.”

In paragraph 5.2 of his claim in reconvention, the first respondent said:

“Defendant denies that the plaintiff is entitled to maintenance since she is a person of means.”

It is therefore clear, that, the appellant's claim for a maintenance cash payment of US$100,000 was opposed.

The court a quo did not therefore err when it dismissed that claim. The claim was not proved by the appellant in her evidence.

The applicant and the third respondent divorced on 16 January 2014 in Case No. HC7328/13.

In terms of a consent paper concluded on 14 November 2013, which became part of the divorce order of 16 January 2014, the applicant and the third respondent agreed to give their matrimonial home, Stand No.17074 Giraffe Crescent, Borrowdale West, Harare to their two minor children in equal shares.

Paragraph E.5 of the Consent Paper stated as follows:

“E. Division of Matrimonial Property

5. Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be awarded to the two minor children in equal shares. The property shall be transferred and registered in the said minor children's names within one year of the order. The parties shall sign all relevant papers to effect transfer to the minor children, failing which, the Sheriff Harare shall sign all such papers as if it were the plaintiff and defendant. The plaintiff shall pay the cost of the transfer. In addition, the defendant shall exercise the rights (usufruct) of use and occupation until she dies or remarries whichever occurs sooner.”

Stand No.17074 Giraffe Crescent was not transferred and registered in the children's names within one year, contrary to what was ordered by the court.

The court was not told of any steps which were taken by the applicant and the third respondent towards complying with the Divorce Order.

It also appears, that, the Sheriff, who was supposed to sign all the papers, for purposes of transfer and registration, if the applicant and the third respondent failed to do so, was never approached.

The property thus remained in the third respondent's name, in contravention of the divorce order.

It is common cause, that, in August, 2015, the above property was attached by the first respondent in order to satisfy a debt by the second respondent where the third respondent had signed as surety.

The applicant says she became aware of the attachment on 21 August 2015. On 2 September 2015 the applicant filed an urgent chamber application for stay of execution of the writ of attachment.

There was a delay of more than 10 days from the date of the attachment to the date of filing of the urgent application. That delay is not explained, contrary to case authorities which indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should herself treat the matter urgently.

The first respondent opposed the urgent application....,.

I will..., proceed to consider the merits of the application.

The court order of 16 January 2014 said Stand 17074 Giraffe Crescent was to be transferred and registered in the minor children's names within one year of the divorce order….,.

This time limit was put to protect the interests of the minor children by ensuring a speedy transfer and registration into their names.

This was not done, and, as stated previously, no explanation is given as to why that was not done.

There is just a bald statement by the applicant, which was not supported by a supporting affidavit from the third respondent, that the third respondent did not have the money to process the transfer.

The applicant herein seeks an order that the second respondent re-open the estate of the late Felix Mudimu so that she may lodge her claim for the transfer of a property known as House Number 5747 Nketa 9, Bulawayo.

The application is opposed by the first respondent who is the widow of the late Felix Mudimu....,.

The following salient facts have been established on the papers:

The applicant and the late Felix Mudimu concluded a written agreement of sale of Stand Number 5747 Nketa 9, Bulawayo for an agreed purchase price of Z$14,000.

As lay persons are wont to do, the parties drafted a simple handwritten agreement of sale on 2 December 1993 (Annexure 'P').

However, when the parties attended at the offices of Beverley Building Society, who held a mortgage bond over the house, they were advised to seek services of a legal practitioner and have a proper sale agreement drafted.

This they did at Webb, Low & Barry Legal Practitioners on 9 March 1994.

The late Mudimu acknowledged receipt of a deposit of Z$6,000 by 9 March 1994 as reflected on Annexure “Q”.

The applicant lodged the agreement with Beverley Building Society and took over the monthly repayment for the mortgage bond number 8490/91 in the sum of Z$8,000 which was due and owing then. By 19 December 2002 the applicant had completed payment of the mortgage bond.

Meanwhile, unbeknown to the applicant, Felix Mudimu had passed away, on 25 May 1997, in Chivhu rural.

When the applicant traced the late Mudimu to his rural home, in Chivhu, with a view to have the house transferred into her name, she discovered that Mudimu had died.

The applicant tracked down Wonder Mudimu, Felix's brother, in Harare and requested him to register Felix's estate, but Wonder indicated that he could not since the first respondent was alive. She then waited for the first respondent to register the estate.

Since the date of signing the sale agreement, the applicant has enjoyed undisturbed possession of Stand Number 5747 Nketa 9, Bulawayo. She has never paid rent or any other consideration to the first respondent during her tenure at the property neither has the first respondent made any claim to the property until she registered the estate of the late Felix Mudimu in August 2013.

The applicant has extended and developed the structure from a single room to a seven roomed house during her tenure and has paid all water, rates, and electricity charges thereon for the entire period of her occupation.

The first respondent only registered the estate after Wonder had informed her that the applicant wanted assistance in transferring the property from the estate into her name.

The first respondent registered the estate without informing the applicant and she went on to advertise for claims against and for the estate in 2013, which advertisements the applicant never saw.

Despite the fact that the first respondent was well aware of the sale of the property to the applicant, she willfully chose not to alert the applicant about the registration of the estate.

However, in spite of the foregoing, the first respondent opposed the application.

Three main planks were raised as the basis of the opposition, viz, in limine:

(i) That, there is no founding affidavit by the applicant because the signature thereon is not hers hence no court application before the court; and

(ii) That, if the property was purchased on 9 March 1994, then, the applicant's claim is prescribed; and

(iii) Lastly, on the merits, that the agreement of sale is not valid therefore not enforceable at law.

I will deal with the three points raised in opposition hereunder.

1. WHETHER THE COURT APPLICATION IS FATALLY DEFECTIVE FOR ALLEGED LACK OF PROPER SIGNATURE ON APPLICANT'S FOUNDING AFFIDAVIT

On the disputed affidavit, the applicant signed M. Hwara and the agreement of sale signed on 9 March 1994 she signed Masiwa Hwara.

At the time of raising this point of opposition in limine these were the only two documents the first respondent had seen to enable her to compare the applicant's signatures.

There is no law which stipulates that a person's signature must be consistent or be the same on each and every document that he/she appends a signature to.

Prior to raising this point, the first respondent had never seen the applicant sign on any document. No expert evidence by a questioned document examiner was furnished to buttress the contention that the signature is not that of the applicant.

The allegation is just the first respondent's ipsissima verba.

The affidavit was deposed to before a legal practitioner who is a Commissioner of Oaths.

The claim therefore is without merit and is hereby dismissed as mere attempt at sophistry.

The issue of the appellant failing to provide a written agreement after the respondent paid the drafting fee, so as to enable him to obtain a mortgage loan, was never a term of the original agreement.

It is a fundamental principle of every contract that both parties will duly carry out their respective obligations: see Blumo Trading (Private) Limited v Nelmah Mining Company (Private) and Another HH39-11. In the event that a party fails to carry out its obligation this will amount to a breach of the contract or agreement.

In R.H. CHRISTIE, Business Law in Zimbabwe, Juta & Co. Ltd…, the learned author states that:

“Breach may take a number of forms other than mora, and, whether a breach has been committed will be decided by comparing what the debtor has done or not done with what he ought to have done on a proper interpretation of the contract….,.Once it is decided that a breach has been committed, it is necessary to decide whether the creditor is entitled to the most drastic remedy, of cancellation, or whether he must be content with one or more of the other available remedies.”

The admission by the respondent, that he failed to pay the full purchase price, amounted to a breach of the agreement of sale which gave the respondent the right to cancel the agreement between the parties.

As such, the respondent cannot continue to have occupation of the property while he is in breach of the agreement of sale. The ownership rights of the appellant must be protected.

In the case of Alspite Investment (Pvt) Ltd v Westerhoff 2009 (2) ZLR 236 it was stated, that, there are no equities in an application for a rei vindicatio as it is a principle of our law that an owner, as a general rule, cannot be deprived of his property against his will.

With respect to the appellant's claim for damages in the sum of US$58,800 calculated at the rate of US$700 per month as reasonable rental income from the date of occupation to date of summons, and the claim for holding over damages in the sum of US$700 calculated from 1 August 2017 to the date of eviction, it is our view that these claims were not substantiated or proved at trial.

This is an application for condonation and extension of time within which to note an appeal in terms of Rule 31(3) of the Supreme Court Rules 1964.

The applicant is the widow of the late Chemayi Joseph Mtize. She is the duly appointed executrix dative of his deceased estate.

The first respondent, Damafalls (Pvt) Ltd, is a duly registered company in terms of the laws of Zimbabwe, whereas the second respondent, the Master of the High Court, is cited in his official capacity. He is responsible for the administration of deceased estates.

The first respondent sued the applicant in the High Court alleging that during his life time the deceased sold Stand Number 2699, Gwelo Township to it. In consequence whereof, it sought the following relief against his deceased estate:

1. An order for the setting aside by the second defendant of the distribution of Stand 2699 Gwelo Township to the beneficiaries of the estate late Chemayi Joseph Mtize.

2. An order for the transfer of Stand 2699 Gwelo Township from the estate of the Late Chemayi Joseph Mtize to the plaintiff, failing which the Deputy Sheriff Gweru be authorised to sign the transfer documents.

3. An order for the eviction of the first defendant from Stand 2699 Gwelo Township.

4. An order for payment of US$2,800 together with a sum of US$400 per month from 1 December 2014 to date of eviction of first defendant and all those claiming occupation in her name; or, alternatively, an order for payment to the plaintiff by the first defendant of the value of the said property currently US$60,000.

5. An order for payment of legal costs on an attorney client scale.

The applicant unsuccessfully defended the respondent's suit in the court a quo with judgment being given against her on 23 December 2015.

If she intended to appeal against that judgment she had 15 days from the date of judgment to note her appeal in terms of Rule 30 of the Supreme Court Rules 1964.

She however only approached this court on 26 February 2016 with this application for condonation of late noting of appeal and extension of time to file the appeal. By then, she was 26 days out of time excluding weekends and public holidays.

The requirements for the application of this nature to succeed are well known as outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S). These are:

1. The extent of the delay;

2. The reasonableness of the explanation for the delay; and

3. The prospects of success on appeal.

I now proceed to consider the three requirements in sequence....,.

The plaintiff relied on the evidence of four witnesses in the court a quo, comprising Martin Mataranyika, Edmore Samson, Priscilla Marume, and Ravheti Kaseke.

Martin Mataranyika was the main witness for the plaintiff.

It was his testimony, that, he was a business consultant with a company called Millennial Insurance Company. The first respondent was the principal shareholder whereas, the late Joseph Chemayi Mtize was one of the executive Directors.

Sometime in 2005 there was need to inject more capital in the company. He then advised the executive directors to top up their nominal shareholding in a Board meeting to avoid their shareholding being diluted to zero by the envisaged increase in capital.

The late Chemayi Mtize, who had no money, offered to sell the disputed property to the first respondent to raise funds to purchase more shares.

He is not privy to the contract of sale but he knows that the late Chemayi Mtize travelled to Gweru with a representative of the respondent company to view the property. Following the trip to Gweru, the late Mtize later bought more shares from Millenial Insurance Company.

Edmore Samson is the first respondent's Managing Director and a shareholder in Millenial Insurance Company.

He confirmed Martin Mataranyika's evidence, that, in 2015, there arose need to raise Millenial Insurance Company's share capital. It then became necessary for shareholders to increase their shareholding by purchasing more shares in the company. He corroborated Mataranyika's evidence to the effect that the late Mtize, who had no money, offered to sell his house to the first respondent.

It was his testimony, that, the first respondent then bought house Number 5 Cooper Road Southdowns, being the disputed property. The property was bought for $Z300,000,000 (three hundred million Zimbabwean Dollars) payable in instalments from May 2005 to August 2005.

The Agreement of Sale was reduced to writing and signed by both parties.

The written Agreement of Sale has since been misplaced and the first respondent's officials are still looking for it.

When the purchase price was paid in full, the late Mtize handed over the title deeds of the disputed property to the first respondent. He then took a copy of the title deeds saying he was taking it to ZIMRA for capital gains exemption since he was above the age of 60.

It is common cause, that, the first respondent had possession of the original title deeds of the disputed property which were produced in evidence at the trial in the court a quo.

It is also not in dispute that the first respondent took peaceful and undisturbed occupation of the property way back in 2005 soon after payment of the purchase price in full as alleged.

Mrs Mtize, the executrix dative of the late Mtize's deceased estate, alleged, without proof, that, the first respondent stole the title deeds from the late Mtize's office while he was ill.

This unfounded allegation was denied by both witnesses for the first respondent, saying that Mtize's office was kept under lock and key during the duration of his illness.

Despite those serious allegations of theft of property of immense value, Mrs Mtize did not bother to report the theft to the police.

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.

There were no appearances for the second and third respondents.

The appellant was employed by the first respondent as its Chief Executive Officer (hereinafter “CEO”) between the period 2009 until the dissolution of its Board in 2013.

The appellant had been employed on a contractual basis with his subsisting contract having been renewed in May 2011.

On 14 November 2013, the then Acting Secretary for Information, Media and Broadcasting Services, wrote to the appellant placing him on leave with full pay until further notice. The letter stated, that, the appellant was placed on leave due to the exacting challenges faced by the first respondent which required urgent intervention through a full audit of its affairs. The appellant was barred from visiting the first respondent's premises or issuing any instructions to its staff.

On 30 January 2014, the appellant was notified of the allegations of misconduct against him which were said to have been unearthed during the audit. The initial decision to place the appellant on paid leave was rescinded and substituted with leave without pay pending determination of the allegations against him.

On 18 November 2014, the appellant was duly served with a notice by the first respondent's legal representatives, to attend a disciplinary hearing to be presided over by the second respondent.

The appellant faced 32 charges of misconduct which were contained in a schedule attached to the notice of the hearing.

When the disciplinary proceedings began, the first respondent abandoned 21 of the charges against the appellant, leaving only 11.

At the hearing, the appellant argued, that, it was not competent for the first respondent to undertake disciplinary proceedings based on allegations flowing from an expired employment contract.

This argument was based on his interpretation of the Labour (National Employment Code of Conduct) Regulations 2006 (hereinafter “SI15/2006”).

Counsel for the appellant contended, that, for a person to be properly charged with misconduct, he or she must still be an employee in terms of a subsisting employment contract at both the time of the commission of the offence and institution of misconduct proceedings.

He further submitted, that, what were now termed acts of misconduct had been properly approved by the first respondent's Board.

Counsel further submitted, that, the integrity of the disciplinary proceedings was further thrown into doubt by the direct role played by the Minister of Information Media and Broadcasting Services, who initiated his suspension.

The first respondent disputed the appellant's contention that it sought to improperly charge him in terms of an expired employment contract.

It averred, that, the parties were engaged in a continuous employment relationship which was highlighted by the renewal of the appellant's contract in May 2011. Counsel for the first respondent placed reliance on the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12, whose import was that an employment relationship becomes continuous where the contract of employment is renewed immediately upon the expiry of a preceding one.

Accordingly, he argued, since the acts of misconduct in question were committed during the subsistence of an employment relationship between the parties, the appellant was properly charged.

The disciplinary hearing, chaired by the second respondent, found the appellant guilty of misconduct in respect of 7 of the 11 charges levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on the charge sheet.

It is not in dispute that the second respondent did not pronounce the verdict of dismissal against the appellant. This was, rather, done by the first respondent.

Dissatisfied with the disciplinary hearing's decision, the appellant filed an application for review in the Labour Court.

The basis of the application was that there was gross irregularity, gross irrationality, and illegality in the manner that the disciplinary proceedings were conducted and the decision reached.

In particular, the appellant alleged gross irregularity and irrationality, or, alternatively, illegality based on its review grounds 1.1 – 1.4. He went on to allege gross irrationality, and, alternatively, illegality and procedural irregularity on the basis of a second set of review grounds, that is, grounds 3 - 3.5.

While the manner the review grounds are formulated is somewhat confusing, it is apparent that the appellant effectively submitted two sets of review grounds, each with its own alternative grounds for review.

The court a quo did not advert to the second set of review grounds (nor the alternative thereof), but, determined the matter on the basis of the first set which alleged irregularity in the proceedings as follows:

1. A number of charges levelled against the appellant related to alleged acts of misconduct arising from a contract of employment which had expired;

2. The first respondent, at all material times, either directed or approved all acts of the appellant which were then later deemed as misconduct on his part;

3. The proceedings were initiated by the Minister of Information Media and Broadcasting Services who was not a party to the contract of employment; and

4. The first respondent improperly imposed a penalty before the disciplinary proceedings were completed, contrary to SI15 of 2006 and section 12B(4) of the Labour Act [Chapter 28:01].

The appellant consequently sought nullification of the disciplinary proceedings and reinstatement as an employee of the first respondent.

The court a quo dismissed the appellant's application for review.

It held, that, the acts of misconduct in question were committed during the subsistence of the parties employment relationship.

The court found, that, the appellant did not adduce any evidence to disprove the claim that he enjoyed a continuous employment relationship with the first respondent during the period 2009 to 2013. It stated, that, the renewal of the contract, in May 2011, did not vary the essential terms of his employment as he remained both the Principal Accounting Officer and Chief Executive Officer (CEO) of the first respondent.

For this finding, the court cited an excerpt from the case of Van Der Post v Twyfelhock Diamond Prospecting Syndicate (1903) 20 SC 213 to the effect, that, where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document.

The court a quo also relied on Air Zimbabwe v Chiku Mensa & Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.

It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he is innocent, not because of a failure to conduct proceedings properly by another employee.

In relation to the appellant's third ground of review, the court held, that, the disciplinary proceedings conducted by the second respondent were not vitiated by virtue of the Minister of Information and Media Broadcasting (and not the first respondent, his former employer) having authored the letter of suspension. The court took the view, that, the absence of a letter of suspension was, in any case, not fatal to the conduct of disciplinary proceedings. It cited in this respect the following sentiments of the court in Shumbayaonda v Ministry of Justice Legal and Parliamentary Affairs and Anor SC11-14:

“…,. Suspension is not a prerequisite to the holding of disciplinary proceedings, and, a disciplinary hearing does not have to take place during the period of suspension….,.”

Finally, in so far as the final ground of review was concerned, the court a quo quoted the part of the second respondent's written decision of 15 April 2015, that specifically convicted the appellant of acts of misconduct 1,2,3, 6,7, 21 and 23. The excerpt also indicated that the second respondent had dismissed some preliminary issues raised on behalf of the appellant. A chronological analysis of the events that then ensued satisfied the court a quo, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings, as alleged by the appellant.

In the final result, the court a quo reached the decision that the disciplinary proceedings against the appellant had not been irregularly conducted.

Aggrieved by the judgment of the court a quo, the appellant approached this Court on appeal. He prays that the decision of the court a quo be set aside and substituted with an order granting the application for review and setting aside both the disciplinary proceedings and his dismissal. His grounds of appeal are set out as follows:

1....,. 

2. The court a quo erred in law in failing to find that the first respondent, through its various agents, either directed or approved all the acts of the appellant which were then later construed as misconduct. The court a quo ought to have found, that, the first respondent could not regard, as misconduct, the actions it either directed or approved....,.

At the hearing of the appeal, the first respondent raised a preliminary point challenging the validity of the appellant's second ground of appeal.

It asserted, that, the ground of appeal did not raise a question of law. Rather, it attacked the factual finding of the court to the effect that the appellant had tendered no evidence to support his assertion that the first respondent's Board had approved most of the actions that formed the basis of the misconduct charges levelled against him.

Per contra, the appellant contended, that, the impugned ground of appeal raised a procedural issue that attributed the acts of the employee to the employer itself, that is, the first respondent.

Counsel for the appellant referred to Zvokusekwa v Bikita Rural District Council SC44-15, which held, that, it was not the formulation but the substance of a ground of appeal that matters.

After hearing argument from both counsel, the court found merit in the submissions of the first respondent and upheld its point in limine.

The court noted, that, the court a quo clearly found, as a matter of fact, that, the appellant had not tendered any evidence to substantiate the assertion that the first respondent's Board had indeed approved the actions that were then converted into misconduct charges against him.

As a factual finding, the appellant could only have successfully impugned it upon proof that the finding was so grossly unreasonable that no other court, properly applying its mind to the issue, could have reached the same conclusion: see Barros v Chimphonda 1999 (1) ZLR (S) 58…,.

The appellant, not having proved any such misdirection on the part of the court a quo, the court accordingly struck out the appellant's second ground of appeal.

To make matters worse, the first applicant filed two conflicting CR2 Forms.

The first one showed that the company owned all the shares in the second respondent, Moses Tonderai Chingwena Family Trust. Upon realising that the first CR2 Form was fatal to his case, the first applicant filed another CR2 Form with his answering affidavit contradicting the first CR2 which asserted that the third respondent owned all the shares in the second respondent.

These examples of the first applicant's shenanigans portray him as a dishonest, devious person who is prepared to twist the truth in order to advance his nefarious cause.

In light of his deceitful character, the learned judge a quo cannot be faulted for holding, that, the first applicant's cause was founded on lies and fraudulent documents.

That finding is amply supported by the evidence on record.

For that reason, the learned judge a quo's reliance on the dictum of NDOU J in Leader Tread Zimbabwe (Pvt) Ltd v Smith HH131-03 is apt. In that case, the learned judge observed that:

“It is trite, that, if a litigant has given false evidence his story will be discarded and the same adverse inference may be drawn as if he has not given evidence at all: see Tumahole Bereng v R [1949] AC 253 and South African Law of Evidence IH HOFFMAN and DT ZEFFERT (3rd ed) at page 472.

If he lies about a particular incident, the court may infer that there is something about it which he wishes to hide.”

This should really be the end of the matter as the first applicant has proven to be an unworthy, dishonest litigant.

In the alternative, counsel for the appellant submitted, that, like should be treated alike otherwise it would be unconscionable for the respondent to alter its opinion merely for the sake of extracting as much income tax from the appellant as it did with respect to customs duty on the same facts and circumstances.

He submitted, that, by making the Value Ruling, the respondent, in essence, determined, as contemplated by section 106(2) of the Customs and Excise Act, that the two related parties acted at arm's length, a consideration in convergence with the requirements of section 24 of the Income Tax Act.

He argued, that, the juxtaposition of a different and contradictory opinion on the purchase price, under the Income Tax Act, to the transaction value under the Customs and Excise Act of the self-same imported vehicles, was both illogical and unlawful.

The word opinion is not defined in any of the Taxes Acts. It has been judicially defined in a number of cases:

In Judes v District Registrar of Mining Rights, Krugersdorp 1907 TS 1046…, INNES CJ equated a decision, in the absence of a qualification, with a final determination.

Both Herbert Porter & Co Ltd and Another v Johannesburg Stock Exchange 1974 (4) SA 781 (W)…, and Knop v Johannesburg City Council 1995 (2) SA 1 (A)…, defined decision as “the final and definite result of examining a question” and “adjudication in the juristic sense, i.e. a final and definite result in consequence of examining a question”, respectively.

These definitions were adopted in Media Workers Association of South Africa & Ors v Press Corporation of South Africa Ltd (Preskor) 1992 (4) SA 791 (A)…,. This was a labour matter in which the relevant statutory provision stipulated that “an assessor shall be a person, who, in the opinion of the Chairman of the Court, has experience in the administration of justice or skill in any matter which may be considered by the Court.”

By reference to The Shorter Oxford Dictionary, it was held, at 796E, that, an opinion was a matter of speculation which could not be proved by any available evidence to be right or wrong.

In the local case of R v Foster 1962 (1) SA 280 (SR)…, BEADLE CJ held that:

“Opinion means something different from 'intention'…,. If the long and complex definition of 'opinion' in the Shorter Oxford Dictionary is examined, it will be seen that the meaning of 'opinion' includes only such things as 'a judgment' or 'a belief of something'. It does not include merely an intention.”

However, in R v Sibanda & Ors 1965 RLR 363…, an opinion of a court was equated with a judgment derived from objective facts and not a belief.

In my view, the publication and contents of the Value Ruling No.15 of 2007, and the accompanying correspondence, demonstrated that the Commissioner-General was alive to the powers vested in him generally by Part X, and, in particular, by section 106 and 113 of the Customs and Excise Act.

It seems to me, that, the provisions in Part X delineate almost all the possible ingredients that constitute a transaction value for the purposes of computing the duty value of an imported item under the Customs and Excise Act.

In summary, the ruling was that the sum payable to the intermediary was the value for duty purposes and that amount was religiously treated by the appellant as the purchase price of the motor vehicles in all its tax returns from the time it took effect.

And rightly so, for those ingredients, in my view, are similar to the considerations which must necessarily constitute the purchase price of such an imported item for Income Tax purposes.

In ruling on the transaction value for duty purposes, the Commissioner General made a final and definitive determination amounting to an “adjudication in the juristic sense, i.e. a final and definite result in consequence of examining a question” or a 'judgment' as indicated in Knop v Johannesburg City Council 1995 (2) SA 1 (A) and R v Foster 1962 (1) SA 280 (SR), respectively.

That final and definite determination was that the relationship between the appellant and the intermediary did not influence the price actually paid for the goods concerned.

The opinion of the Commissioner was that the parties acted at arm's length in setting the transaction value.

The finding was based on the objective assessment of the information provided to the Commissioner, which information would, more or less, be used to determine the purchase price of the imported vehicles.

The introduction of a different statute would not change the value of the motor vehicles nor the finding that the parties had an arm's length relationship, especially in view of the respondent's refusal to refund the duty, surtax, and VAT paid on the higher transactional value.

Clearly, the appellant cannot approbate and reprobate in respect of the same motor vehicles simply because the imposts are levied under two different statutes.

Contrary to the submission by counsel for the respondent, in paragraph 11.2 of his written heads of argument, I am satisfied, that, the assessment and payment of import duties and taxes based on the transaction value of these vehicles, which was objectively ascertained by the respondent, is binding on the respondent.

The appellant has shown that it knows of no other means and the respondent has not discharged the evidentiary onus that shifted to it of showing how the purchase price required for the computation of taxable income on these vehicles could have been arrived at other than in the same way that was used to ascertain the transaction value.

The answer sought in this appeal is whether, the appellant, a foreign registered company is liable to pay value added tax in Zimbabwe.

The appellant disputed liability for value added tax (VAT) arising from the purported importation of goods into and the carrying on of trade in Zimbabwe and appealed against a contrary determination of the respondent.

The appellant is an International Business Company incorporated on 19 May 2005 in the British Virgin Islands in Guernsey in the Channel Islands but is not permitted to trade in that jurisdiction. The respondent is a body corporate responsible for the collection, amongst other imposts, of value added tax in Zimbabwe.

The original intention of the appellant in Zimbabwe, prior to 1992, was to invest in property and participate in the construction of the Chitungwiza road…,.

Instead, the appellant became a supplier of basic commodities to local companies that included the WG (hereinafter referred to as the holding company).

It concluded an agency agreement with D & T, a subsidiary of the holding company, in 1992.

By 1999, it was supplying basic commodities under a US$10 million line of credit registered with the Reserve Bank of Zimbabwe to the holding company and other local customers…,.

On 1 October 2007, the Governor of the Reserve Bank of Zimbabwe unveiled the Basic Commodities Supply Side Intervention, BACOSSI, facility designed to end the chronic shortages of basic commodities in Zimbabwe…,.

The facility commenced in May 2008 and continued until the introduction of the multi-currency regime on 29 January 2009.

In May 2008, officials of the Reserve Bank of Zimbabwe (RBZ) amongst whom was the Governor and the Senior Division Chief Strategic Planning and Special Projects (SDC) visited the warehouse of D & T in Chitungwiza. The RBZ was referred to the appellant by D & T.

The appellant and the Reserve Bank of Zimbabwe (RBZ) commenced negotiations which culminated in the purchase of the non-Bacossi basic commodities that were in the D & T warehouse valued at US$7,987,207=54. The two parties also concluded an agreement in which the appellant supplied basic commodities to the RBZ, in Zimbabwe, the bacossi goods, valued at US$11,698,174 between July and September 2008.

The Baccossi Agreement was reduced to writing…, but was not signed by the parties apparently because the appellant was unhappy with the preamble to the agreement.

A verbal agreement, purportedly concluded between the Reserve Bank of Zimbabwe (RBZ), represented by the Governor, and the appellant, represented by a named Ukrainian lady, governed the supply relationship between them....,.

The true, overall, and unchanging onus to prove the correct terms and conditions in the agreement reached between the appellant and the Reserve Bank of Zimbabwe (RBZ) lay on the appellant.

In other words, the onus to establish that the terms and conditions in their agreement were different from those captured in the unsigned agreement was on the appellant.

The appellant did not lead any evidence on this aspect.

The answer sought in this appeal is whether, the appellant, a foreign registered company is liable to pay value added tax in Zimbabwe.

The appellant disputed liability for value added tax (VAT) arising from the purported importation of goods into and the carrying on of trade in Zimbabwe and appealed against a contrary determination of the respondent.

The appellant is an International Business Company incorporated on 19 May 2005 in the British Virgin Islands in Guernsey in the Channel Islands but is not permitted to trade in that jurisdiction. The respondent is a body corporate responsible for the collection, amongst other imposts, of value added tax in Zimbabwe.

The original intention of the appellant in Zimbabwe, prior to 1992, was to invest in property and participate in the construction of the Chitungwiza road…,.

Instead, the appellant became a supplier of basic commodities to local companies that included the WG (hereinafter referred to as the holding company).

It concluded an agency agreement with D & T, a subsidiary of the holding company, in 1992.

By 1999, it was supplying basic commodities under a US$10 million line of credit registered with the Reserve Bank of Zimbabwe to the holding company and other local customers…,.

On 1 October 2007, the Governor of the Reserve Bank of Zimbabwe unveiled the Basic Commodities Supply Side Intervention, BACOSSI, facility designed to end the chronic shortages of basic commodities in Zimbabwe…,.

The facility commenced in May 2008 and continued until the introduction of the multi-currency regime on 29 January 2009.

In May 2008, officials of the Reserve Bank of Zimbabwe (RBZ) amongst whom was the Governor and the Senior Division Chief Strategic Planning and Special Projects (SDC) visited the warehouse of D & T in Chitungwiza. The RBZ was referred to the appellant by D & T.

The appellant and the Reserve Bank of Zimbabwe (RBZ) commenced negotiations which culminated in the purchase of the non-Bacossi basic commodities that were in the D & T warehouse valued at US$7,987,207=54. The two parties also concluded an agreement in which the appellant supplied basic commodities to the RBZ, in Zimbabwe, the bacossi goods, valued at US$11,698,174 between July and September 2008.

The Baccossi Agreement was reduced to writing…, but was not signed by the parties apparently because the appellant was unhappy with the preamble to the agreement.

A verbal agreement, purportedly concluded between the Reserve Bank of Zimbabwe (RBZ), represented by the Governor, and the appellant, represented by a named Ukrainian lady, governed the supply relationship between them.

The respondent conducted a tax investigation of the purchases, in foreign currency, of the Reserve Bank of Zimbabwe from the appellant for the period between May 2006 and September 2008. The investigations revealed non-payment of value added tax (VAT) on the supplies made in that period…,.

They also revealed that D & T was paid commission, in terms of an agreement between them, on the invoiced supplies from 1 January 2006 to 31 January 2009.

On 9 February 2009…, the respondent made written demand on the Finance Director of the holding company, who was also the public officer of D & T, for the payment of value added tax (VAT) on the invoiced income paid to the appellant during that period.

On 13 February, a meeting was held at the Reserve Bank of Zimbabwe (RBZ) between the Senior Division Chief Strategic Planning and Special Projects, the investigators of the respondent, and the liaison officer of the appellant, who was also the Sales and Marketing Director of the holding company of D & T, the appellant's agent.

On 12 March, the respondent appointed the CEO of the holding company of D & T as the public officer for the appellant in terms of section 61 of the Taxes Act on the ground that his company was closely linked and connected to the appellant's local trading activities.

The CEO objected to the appointment on 17 and 20 March 2009 on the ground, that, he was not an agent, employee, director, or signatory to the bank account of the appellant; but, the respondent did not relent in its demand.

On 20 March 2009, at the respondent's offices, a meeting was held between three representatives of the respondent and two tax advisors from a local firm of accountants.

In reply to counsel for the respondent's oral submissions, counsel for the appellant disputed that the appellant was represented at the meeting and suggested that the tax accountants represented D & T.

The purpose of the meeting was to get the respondent's version on the value added tax (VAT) issues pertaining to both the appellant and D & T.

The VAT head from the tax advisors provided the respondent with two letters of his firm's mandate to represent the client.

It is inconceivable that he would not have received full instructions from his client, as he indicated, were that client D & T.

I am satisfied, from the heading of the minutes minuted by the tax advisors, that, they represented the appellant and not D & T.

In any event, the briefing given him by the respondent related to the alleged activities of the appellant, including the payment of 0.1% commission on the gross sales of the appellant in Zimbabwe to D & T.

On 30 March, the public officer of D & T disputed the legality of the appointment of his CEO as a public officer for the appellant. He, nonetheless, compiled and delivered the monthly breakdowns of the income received by D & T during the period from January 2006 to 31 January 2009 requested in the letter of 9 February.

On 25 March 2015…, the appellant wrote to the respondent objecting to the appointment of the public officer outside its registered place of business in Guernsey and to the tax liability claim.

The basis of the objection was that it did not maintain offices nor employ staff nor was it a value added tax (VAT) registered operator obligated to charge VAT on goods purchased from its foreign based operations and supplied to clients in Zimbabwe.

The relevant part of the letter reads:

“We object to your claim that we have a tax liability in Zimbabwe as we do not have a self-established presence in the country. Our involvement with Zimbabwe clients, and the West Group, is limited to the supply of our stock to agents who operate on a commission basis to store and handle our stock that we hold in Zimbabwe, for which we have always operated with Reserve Bank Approval.”

The objection by the appellant, of 25 March, and the further objection of its compulsorily appointed public officer, were dismissed by the respondent on 31 March 2009.

On 1 April, the respondent proceeded to appoint the holding company, and its subsidiaries, as an agent for the collection of value added tax (VAT) due from the appellant, purportedly in terms of section 48 of the Value Added Tax Act…,.

On 3 April 2009, the appellant, through its authorised signatories, wrote to the CEO of the holding company appointed as its public officer and copied the letter to the head of investigations of the respondent, and the Senior Division Chief Strategic Planning and Special Projects on the tax enquiry conducted by the respondent disputing tax liability on two grounds:

(i) The first was that it was not the importer; and

(ii) The second was that the sale to the importer, the Reserve Bank of Zimbabwe (RBZ), took place outside Zimbabwe.

I believe exhibit 2 may have been written by the compulsorily appointed public officer for the appellant between May 2009 and 17 June 2009, and not on 15 April 2008, as it is highly unlikely that the author possessed prescient powers to predict the events that were to take place between January and May 2009.

It was addressed to the prospective external legal practitioner of the Reserve Bank of Zimbabwe (RBZ).

The writer summarised the history of the relationship between the appellant and the holding company and one of its subsidiaries, D & T, before and during the bacossi period. He also dealt with the relationship between these parties and the Reserve Bank of Zimbabwe and exonerated the appellant from value added tax (VAT) liability.

In response, on 17 June 2009, the external legal practitioner of the Reserve Bank of Zimbabwe (RBZ) wrote a six page legal opinion to the Senior Division Chief on the US$4m tax dispute….,.

The legal practitioner in question had apparently held a meeting, on 21 April, with the Senior Division Chief of the central bank and two representatives of the holding company. He believed, that, his mandate to protect the interests of the Reserve Bank of Zimbabwe (RBZ) coincided with the interests of the appellant. He had engaged the lawyers of record of the appellant.

He identified the common problem to be the demand for value added tax (VAT) on the appellant in respect of the supply of Bacossi goods and its agent on commission received from the appellant.

Apparently, the appellant declined to supply him with information on its business profile, shareholders and directors, summary of significant business activities in the 12 months to the date of the letter and on the nature and extent of its business activities in Zimbabwe, its certificate of registration, any Board resolutions on Bacossi transactions, and its local call account.

In the absence of this information, he could not state, with certainty, that the appellant was not conducting local trading activities nor exclude it from value added tax (VAT) liability other than on the mere say so of its agent, D & T.

He advised that the Reserve Bank of Zimbabwe (RBZ) was liable for the payment of value added tax (VAT), in local currency, on the basis of the bills of entry that identified it as the importer.

He urged the Reserve Bank of Zimbabwe (RBZ), for strategic reasons that he set out in the opinion, to tender the duty in local currency hoping, that, if the respondent accepted the payment, the appellant would automatically be exempted from liability.

On 1 July 2009, the Senior Division Chief wrote to the appellant's legal practitioner of record. She confirmed the importation of Bacossi goods and the acceptance of liability for value added tax (VAT) by the Reserve Bank of Zimbabwe (RBZ)….,.

On 20 August 2009, three members of the respondent investigations team held a meeting with four RBZ employees at the RBZ amongst whom was the Senior Division Chief (SDC).

In that meeting, the Reserve Bank of Zimbabwe (RBZ) repudiated the concession made by the Senior Division Chief (SDC) and laid liability at the doorstep of the appellant.

However, in view of the national importance of the project and the profile of the major beneficiaries, the Reserve Bank of Zimbabwe (RBZ) resolved to seek exemption for payment of value added tax (VAT) on these goods from the Ministry of Finance by 25 August 2009.

A further meeting was held on 7 October 2009, in the Governor's boardroom at the Central Bank, between the Reserve Bank and the holding company, to discuss the appellant/RBZ value added tax (VAT) liability of US$3.2m….,.

In attendance were the Governor, his advisor, bank secretary, and a strategic planning executive for the Reserve Bank of Zimbabwe (RBZ) and the Sales and Marketing Director, indicated in exhibit 2 as the liaison officer of the appellant, and another officer of the holding company.

Notwithstanding that the respondent was not claiming value added tax (VAT) from the central bank, the Governor prevaricated on whether the Reserve Bank of Zimbabwe (RBZ) accepted liability or not. In one vein he accused the Senior Division Chief (SDC) of erroneously accepting liability for the central bank without his express authority, and, in the other, he was prepared to pay the VAT as long as it was charged in Zimbabwe dollars.

The Sales and Marketing Director for the holding company declined to answer for the appellant insisting that D & T acted as liaison for the appellant as the foreign supplier and local buyers.

The underlying suggestion from her contribution was that the appellant was not liable for value added tax (VAT).

In addition, the concluding remarks of the meeting suggested the existence of minutes of meetings between the Reserve Bank of Zimbabwe (RBZ) and the appellant.

The investigation prompted the respondent to raise against the appellant schedules for outstanding value added tax (VAT) on both the non-Bacossi and Bacossi transactions, initially on 17 March and later on 15 July 2009, in the sum of US$6,302,712=13 inclusive of interest and penalties, which it corrected by the exclusion of zero rated products on 13 October 2009 by reducing the amount to the sum of US$6,249,496=70.

The computations of the principal value added tax (VAT) due in each month for the non Bacossi commodities were in the sum of US$1,198,081=13. The respondent added an equal amount in penalties and a further amount of US$206,799=52 in interest and requested payment of US$2,602,961=79 for the non-Bacossi commodities.

In regards to the Bacossi commodities, it claimed a principal sum of US$1,754,726=10 and a penalty in an equal amount and interest from 21 July 2008 to 23 October 2009 in the sum of US$137,082=72 totalling US$3,646,534=92….,.

The appellant lodged an objection to the assessment in terms of section 32 of the Value Added Tax Act [Chapter 23:12] through its legal practitioners of record on 25 September 2009.

It also applied for condonation from the Commissioner for filing the objection outside the normal time limits. It set out four grounds for condonation and eight grounds of objection.

The respondent dismissed the condonation and disallowed the objection.

The appellant appealed both decisions to this Court on 12 October 2009. The respondent filed its reply on 12 November 2009.

In the objection, the appellant denied ever doing business in Zimbabwe and indicated, that, the local transactions were imports carried out by the holding company, the Reserve Bank of Zimbabwe (RBZ), and other local companies.

It averred, that, the appellant was authorised by the Reserve Bank of Zimbabwe (RBZ) to sell the goods in foreign currency using free funds from non-resident entities.

It supplied goods in bond to its local agent, D & T, for commission.

The local buyer took delivery of the goods after paying the appellant from free funds.

On receipt of payment, the appellant instructed D & T to pay duty and value added tax (VAT) before releasing the goods.

The appellant averred, that, the value added tax (VAT) claim on non-Bacossi goods constituted a double claim for VAT already paid by D & T.

The appellant called the evidence of the founder and chairman of the holding company and director of D & T.

He confirmed the foreign status of the appellant and its relationship with D & T before the Reserve Bank of Zimbabwe came onto the scene.

The holding company, D &T, and the appellant, were not related companies.

The contact between the appellant and D & T was facilitated by his Russian partners in 1992.

The relationship between the appellant and D & T was one of principal and agent.

The Central Bank appeared on the scene in May 2008. At that time, the agent, D & T, imported the goods into Zimbabwe that were supplied by its principal, the appellant.

The Central Bank concluded two agreements with the appellant:

(a) The first related to the purchase of the goods stored in the warehouse that had been imported by D & T, referred to in the appeal as the non Bacossi goods.

(b) The second agreement concerned the Bacossi goods under which the Central Bank directly imported in excess of 400 truckloads of goods from South Africa between July and September 2008.

At Beitbridge, the goods were checked against the bill of entry before they were taken to the bonded warehouse, and, unlike direct home consumption imports, the bill of entry was not surrendered at that stage.

D &T stored the Bacossi goods for the Reserve Bank for a fee.

The relationship between the appellant and D & T was suspended during the duration of the Bacossi imports.

The goods were received and secured by the Reserve Bank of Zimbabwe (RBZ).

The Reserve Bank of Zimbabwe (RBZ) would take the goods from the warehouse once D & T received a release order from the appellant confirming receipt of the purchase price, and, after D & T had paid duty and value added tax (VAT) for the goods.

The clearing agent invoiced D & T for clearance fees; D & T, in turn, added these to the storage fees for the account of the Reserve Bank of Zimbabwe.

He identified the South African export documents and the Zimbabwean import documents encompassing pp33-90 of exhibit 1. Amongst these documents were local bills of entry that identified the importer as the Reserve Bank of Zimbabwe.

The witness confirmed his managing director's assertion, in the letter of 30 March to the respondent, that, D & T was not paid commission by the appellant during the subsistence of the Bacossi imports.

It was on the basis of this evidence, that, counsel for the appellant submitted, that, the sole witness was credible and reliable in all material respects.

I do not agree with the contention by counsel for the appellant, that, the witness was a credible and reliable witness who gave his evidence well.

Under cross examination, he contradicted material parts of his evidence-in-chief.

He abandoned his earlier version that the relationship of principal and agent between the appellant and D & T was suspended during the Bacossi imports. He categorically stated, in cross-examination, that, the relationship did not change for both the Bacossi and non Bacossi imports as the appellant continued to pay D & T, in foreign currency, commission at the rate of 1% of the value of each transaction.

The appellant maintained its grip on the goods in the warehouse and directed its agent to pay duty and value added tax (VAT), and, thereafter, release the goods after confirming receipt of the transaction value of each consignment from the Reserve Bank of Zimbabwe.

He incorrectly stated that value added tax (VAT) was paid for the non-Bacossi goods.

That VAT was never paid was demonstrated by the abandonment of the double claim ground at the hearing of this appeal.

He did not participate in the discussions that culminated in the agreement between the appellant and the Central Bank. He was not privy to the terms and conditions of the agreement. He did not interact with any of the directors and authorised signatories of the appellant.

He had met an officer of the appellant whose name appears in the last paragraph on p112 of exhibit 1 once in Harare.

He was not a director, employee, or official of the appellant or the clearing agent.

His version on the motivation of the clearing agent to invoice D & T rather than the Reserve Bank of Zimbabwe (RBZ) was not confirmed by evidence from the clearing agent or the Central Bank.

He did not produce any evidence to show that D & T included the charges of the clearing agent in the storage fees levied on the Central Bank.

The evidence of the sole witness left gaps that could only be filled by the directors, employees, officials, or agents of the appellant.

His averments preceding the incorporation of the appellant, on 19 May 2005, underscored his unreliability and the need for the testimony of the active officers or agents of the appellant.

It is simply incomprehensible how he could have dealt with the appellant before it was incorporated.

The respondent's investigation established that the Reserve Bank of Zimbabwe (RBZ) purchased non Bacossi goods between May 2006 and June 2008 contrary to his testimony that the purchase started in May 2008.

I am satisfied that he was not a credible and reliable witness.

The respondent did not file Rule 5(c) documents within 14 days of entering his reply as required by Rule 5.

The material correspondence contemplated by Rule 5(c) would consist of the notice claiming the outstanding value added tax (VAT), the letter of objection, and the Commissioner's response to the objection.

Rather, at the hearing, and soon after the appellant had closed its case, counsel for the respondent produced the purported documents from the bar.

The documents consisted of a letter of objection dated 21 October 2014, a set of original value added tax (VAT) assessments issued by the respondent against the appellant on that date for the period May 2006 to August 2008, the letter of objection of 25 September 2009, and the unsigned agreement on the supply of basic commodities between the appellant and the Reserve Bank of Zimbabwe.

It did not file the ruling dismissing the condonation sought and disallowing the objection.

In the letter of objection, the appellant refers to “assessments, the last of which are dated 15 July 2009.”

The earlier assessments of 17 March and 22 May and the letters of 24 June and 10 September 2009, referred to in the notice of appeal, were not produced in evidence nor did they form part of the Rule 5(c) documents or the pleadings.

The respondent must simply comply with the law to obviate unnecessary delays associated with his failure to abide by the law in this regard.

The documents constitute a type of record of proceedings, which helps this Court understand the real dispute between the parties and the basis on which the determination appealed against was made.

That the objection was dismissed on the ground that it was filed out of time was only disclosed in the respondent's reply to the notice and grounds of appeal.

Rule 5(c) documents are simple documents that the respondent always has in its possession - even before filing his reply. This kind of dilatoriness on its part is totally inexcusable.

The respondent is directed to comply with Rule 5(c) in all future cases.

At the pre-trial hearing of 17 September 2014, by consent of the parties, the delay in the filing of the notice of objection by the appellant and the failure to file Rule 5(c) documents timeously by the respondent were condoned.

The four issues referred for appeal were:

(a) Was the appellant the importer of the goods in question into Zimbabwe?

(b) Does the appellant operate a business in Zimbabwe?

(c) In terms of section 6 of the Value Added Tax Act [Chapter 23:12] who was responsible for the payment of value added tax (VAT) on the imported BACOSSI goods, and, separately, on the imported non-BACOSSI goods?

(d) Was the appellant liable to pay any outstanding value added tax (VAT) in foreign currency?

I proceed to resolve each issue in turn....,.

In his written heads, counsel for the appellant contended, that, the respondent used an arbitrary exchange rate to convert Rand denominated transactions to United States dollar values.

The respondent averred, in paragraph 13 of the reply, that, the invoice values were supplied by the appellant's agents in both Rands and United States dollars together with the appropriate conversions.

Counsel for the appellant submitted, that, the respondent had failed to establish how it converted the Rands into United States dollars.

It seems to me, that, the respondent bore no such onus. Rather, the onus was on the appellant to establish that the conversions were arbitrary.

The appellant did not lead any evidence in this regard.

I now turn to deal with the alleged violation of the right to equal protection of the law and the right of access to the courts.

The court a quo upheld the contentions of the third respondent in this regard and consequently found, that, section 186 of the Constitution, as amended, had the effect of violating the fundamental rights in question.

Section 56(1) of the Constitution declares that:

“All persons are equal before the law and have the right to equal protection and benefit of the law.”

Section 69(3) provides that:

“Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”

As regards section 56(1) of the Constitution, the court a quo opined, that, this section is wider in its scope than the equivalent section 18 in the former Constitution. This, so it reasoned, is because it qualifies the protection and benefit of the law by the use of the word “equal”.

Again, with the greatest of respect, this reasoning is fatally flawed.

The use of the word 'equal' does indeed qualify the protection and benefit of the law, but, it does so by restricting rather than broadening the scope of section 56(1) of the Constitution.

What this provision means is that all persons in a similar position must be afforded equality before the law and the same protection and benefit of the law.

As was lucidly enunciated in Nkomo v Minister of Local Government, Rural and Urban Development & Ors 2016 (1) ZLR 113 (CC)…,:

“The right guaranteed under section 56(1) is that of equality of all persons before the law and the right to receive the same protection and benefit afforded by the law to persons in a similar position. It envisages a law which provides equal protection and benefit for the persons affected by it. It includes the right not to be subjected to treatment to which others in a similar position are not subjected.

In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law, he has been the recipient of unequal treatment or protection, that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”

In essence, section 56(1) of the Constitution is a non-discrimination clause that guarantees equality under the law.

The applicant a quo (the third respondent in casu) did not make any allegation of unequal treatment or differentiation. He did not demonstrate that he was denied the protection of the law, while others similarly positioned were afforded such protection. He failed to show, that, the enactment or amendment of section 186 of the Constitution operated to discriminate against him in favour of others in the same or similar position.

He thereby failed to establish that he had been denied equal protection and benefit of the law.

In the event, he entirely failed to establish any infringement of the rights guaranteed by section 56(1) of the Constitution.

It follows, that, the court a quo misdirected itself in disregarding the third respondent's failure to demonstrate any unequal treatment or differentiation between him and other similarly positioned persons. Consequently, the court erred in holding, that, the continued occupation of office by the incumbent Chief Justice, after he had turned 70 years old, violated the third respondent's rights as enshrined in section 56(1) of the Constitution.

This is an application for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicants intend to approach the Constitutional Court in terms of section 85(1) of the Constitution, seeking an order, that, the fundamental right of every person to form and join trade unions and employer-employee organisations of their choice and to participate in the lawful activities of those organisations, enshrined in section 65(2) of the Constitution of Zimbabwe 2013, has been and is being infringed by employers in respect of employees who are duly elected or appointed workers representatives and trade union leaders to the extent, that, the employers in question are permitted, by law, to dismiss such employees for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The court finds, that, it is not in the interests of justice that direct access be granted in this matter. The reasons for so finding appear hereunder.

This application is borne of the Supreme Court judgment in ZB Bank Ltd v Marimo SC21-20. The background to that decision is set out hereunder.

The second applicant was employed by the third respondent as an Administrative Clerk and was also the chairperson of the workers committee. The management of the third respondent and the workers committee were engaged in a dispute over employees salary increments. The dispute was referred to a conciliator who was unable to get the parties to reach a consensus and issued a Certificate of No Settlement. Thereafter, between 8 and 15 September 2010, the second applicant sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees salaries. He also stated that the workers committee had decided to embark on a collective job action to press their interests.

Pursuant to that conduct, the third respondent charged the second applicant with misconduct for contravening section 11(1) of SI 273 of 2000 (“the Code”). The allegations against him were that he had acted in a manner that was inconsistent with the fulfilment of the express or implied conditions of his contract. The premise to the charge was that the second applicant had generated offensive emails to a group of staff members contrary to the third respondent's standing policy contained in its Information Security Management Policy Document ('IT Policy Document'). It was also alleged, that, the contents of the e-mails were inflammatory and contained confidential information. The second applicant was found guilty of the misconduct and dismissed from employment.

He noted an appeal to the NEC Appeals Board, which held that the conduct complained of did not constitute an offence.

The Appeals Board further found, that, the third respondent had not substantiated the allegations relating to the charge preferred against the second applicant. Accordingly, it held that the charge preferred against the second applicant was inappropriate.

It stated, further, that, although the second applicant exceeded the limit of the number of emails allowed by the third respondent's IT Policy Document, thereby breaching the appellant's standing policy, the emails were neither inflammatory nor offensive, and that confidentiality had not been breached.

It also stressed, that, the second applicant's conduct was in pursuit of a right to represent workers and that the emails were meant to result in a call for collective job action or, at least, put pressure on the appellant to accede to the workers wage demands. The NEC Appeals Board consequently ordered the reinstatement of the second applicant.

Aggrieved by that decision, the third respondent appealed to the Labour Court.

It averred, that, the Appeals Board erred in failing to find that the second applicant had been properly charged and dismissed from employment, and, further, that the Appeals Board had erred in failing to afford to the third respondent an alternative to the reinstatement of the second applicant.

The Labour Court found, that, as the employees were considering going on strike over the wage dispute, the second applicant acted within the bounds of his official duties, as the chairperson of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court, however, stated, that, although the second applicant may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal. Consequently, the third respondent's appeal was dismissed.

The third respondent subsequently noted an appeal to the court a quo.

Although three issues stood for determination, the relevant issue germane to the disposal of the present application was couched as follows:

“Whether the court a quo erred in failing to appreciate that the respondent's conduct in violating the standing regulations was a breach of his privileges as the representative of the workers committee and could therefore not be excused.”

It had been the third respondent's argument, that, in exercising his entitlement to champion employees rights, the second applicant did not have the right to breach the law - in this case, the standing policy in question.

It was the court a quo's finding that there was merit in that contention.

The court further held, that, the right to champion workers rights is not exercised in a vacuum but should be exercised within the confines of the law as dictated, in this case, by the relevant Code of Conduct.

Adherence to the law within the Code of Conduct would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It was further held, that, the second applicant would not be able to hide behind his position as the chairperson of the workers committee should the conduct alleged against him be proved. The court a quo further held, that, the second applicant had indeed violated the third respondent's IT Policy Document by disclosing confidential information. The appeal was consequently allowed.

Aggrieved by that finding, the applicants filed the present application on 1 April 2021.

At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.

Thereafter, the Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.

The applicants make the following argument.

Every person enjoys a fundamental right to form and join trade unions and employee or employers organizations of their choice and to participate in the lawful activities of those unions or organisations. They contend further, that, this right has been and is being infringed by employers in respect of those employees who, as duly elected or appointed workers representatives and trade union leaders, are charged with misconduct and dismissed from employment under a Code of Conduct for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The contention is also put forward, that, in having a law that permits an employer to dismiss from employment an employee for acts performed under the aforementioned circumstances, the State is infringing the fundamental right protected by section 65(2) of the Constitution.

Lastly, the allegation is made, that, the current Labour Law, as interpreted by the court a quo, as was done in the judgment a quo and others, is inconsistent with section 65(2) of the Constitution.

The applicants argued, that, two questions arose for determination and these related to:

(i) Whether or not the applicants were raising a constitutional matter; and

(ii) Whether or not it was in the interests of justice to grant direct access.

Counsel for the applicants further submitted, that, there was no doubt that the applicants sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because it was not desirable that they approach the High Court in order to impugn the decision of the Supreme Court with regards to trade union immunity.

They further submitted, that, the matter involved a critique of a Supreme Court decision, and, as such, it was not desirable for it to go before the High Court for determination.

The applicants also submitted, that, they had a prima facie or arguable case as the Supreme Court did not apply its mind to the long standing position on trade unions enjoying their immunity in terms of section 101 of the Labour Act [Chapter 28:01] (“the Labour Act”).

They argued, that, within the workplace, employers were regulating the way union leaders conduct themselves and that this was improper conduct on the part of employers generally.

In this light, the applicants submitted, that, there were prospects of success in that the Supreme Court's decision went too far in protecting the employer at the expense of the employee which aspect should be dealt with by a full bench of this Court.

The application was opposed by the third respondent.

In limine, it averred, that, the intended application is a disguised appeal against a final judgment of the court a quo. It was also contended, that, not having been a party to the proceedings a quo, the first applicant has no right to question the correctness of that judgment.

The submission is also made, that, the applicants are not clear as to the law which they seek to challenge.

The third respondent further submitted, that, the application is out of time because it was made ten months after the judgment a quo was handed down and that the applicants ought to have made an application for condonation.

On the merits, it was argued, that, section 65(2) of the Constitution did not support the applicants contention and that, further to the above, an employee has a duty to comply with the terms of their employment contract and that an employees representative must carry out their duties in a lawful manner.

The third respondent further queried the rationale behind its joinder to the present proceedings.

The third respondent also argued, that, the applicants were not challenging the validity of section 101 of the Labour Act but were actually challenging the common law. It submitted, that, the Supreme Court did not, anywhere in its judgment, refer to the Labour Act, but, rather, dealt with a position of the law embodied in the Code of Conduct.

Thus, argued the third respondent, there was no constitutional matter for adjudication before the Constitutional Court, and, that, the Constitutional Court, in terms of its jurisdiction, is restricted to determine constitutional issues only.

The third respondent, further to the above, also argued, that, an employee cannot hide behind a trade union and be free of the employer's disciplinary tentacles for breaching a Code of Conduct. This would lead to a situation wherein every employee would then want to be ascribed to the union in an effort to evade disciplinary proceedings for acts of misconduct. In this light, the third respondent stated that it had acted within its powers.

Consequently, it was submitted, that, the matter did not give rise to a constitutional matter. It was a matter that the High Court could deal with taking into account its original jurisdiction.

For that reason, it was contended, that, it was not in the interests of justice to grant direct access. It moved that the application be dismissed with costs....,.

The third respondent has argued, as a preliminary point, that, the applicant is out of time and ought to be dismissed.

I consider that this an issue for determination when the merits of the application are discussed....,.

The final issue for consideration is whether or not the application is out of time.

The Constitution does not prescribe a time frame within which an application premised on section 85 of the Constitution must be brought to court.

In turn, the Constitutional Court Rules do not provide for a time limit within which such application should be brought to court.

There is no suggestion, on the part of the third respondent, that, the time frame as to when an application should be mounted is an issue for consideration by the Court.

It is not one of the factors for consideration in the assessment of prospects of success vis-a-vis the application for direct access.

In any event, apart from a bald statement that the application was out of time, the third respondent did not attempt to provide the Constitutional Court with a proper argument on the substance for the submission.

The argument on this point is dismissed as having no merit.

And yet neither counsel for Chengetai, nor the court, saw it fit to have Council officials called to give evidence.

This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.

The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.

The first respondent, the Judicial Service Commission (JSC) is a corporate body established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office.

The fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Co-ordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal.

The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.

As an administrative authority, the Judicial Service Commission (JSC) has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, section 3(1)(a) of the Administrative Justice Act [Chapter 10:23] (AJA) enjoins the JSC to act lawfully, reasonably, and in a fair manner.

On 13 December 2019, the Judicial Service Commission (JSC) held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.

As his obligation, in terms of section 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated, the members are the second to fourth respondents, with the fifth respondent as its Secretary.

In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020, the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020, SI70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary, and set out the Tribunal's terms of reference.

The applicant is aggrieved by the Judicial Service Commission's decision to advise the President that the question of removing the former from the office of a judge ought to be investigated.

Acting in terms of section 4(1) of the Administrative Justice Act, the applicant has applied to this court, on review, to set aside the Judicial Service Commission's decision on the basis that it failed to act lawfully, reasonably, and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the Judicial Service Commission (JSC) in coming up with that decision.

He also seeks certain consequential relief.

I pause to set out the Tribunal's terms of reference. They are:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

The grounds on which the application for review is based are:

“1. The absence of any of the three jurisdictional grounds for the removal of Judge prescribed under section 187(1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;

2. The absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or quid pro quo to confirm the nature and gravity of the case;

3. An objection to the appointment of the Permanent Secretary, as secretary of the Tribunal, on the grounds and basis that she was an actor in the process leading to the applicant's suspension and the establishment of the Tribunal, something which gives credence to the applicant's contention that the decision to refer his matter to the President was completely unreasonable;

4. There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;

5. Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the audi alteram partem rule;

6. The JSC, having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019, and having communicated this to the applicant, could not revisit the matter subsequently as it had become functus officio;

7. The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;

8. To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency.”

For the purposes of this application, the issue of the investigation on the question of the removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to the applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions.

Since I am required to determine this application on procedural grounds, it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon's complaint.

All the respondents opposed the application....,.

It was at this meeting of the Judicial Service Commission (JSC) that the decision was taken to advise the President that the question of the removal of the applicant from the office of a judge ought to be investigated.

The parties are agreed that the membership of the Judicial Service Commission (JSC) is 13, but, there was a single vacancy at the material time. The parties are agreed that the Constitution allows the JSC to function all the same provided it has a quorum. Its quorum is 7, being half of the membership of the JSC.

The applicant made a bare allegation that only 6 members were present at the 13 December 2019 meeting.

He does not mention the names of the members who were present and of those who were not in attendance. He does not attach any supporting affidavits from either those present or those whom he alleges were absent. He does not attach a copy of the minutes of the meeting of 13 December 2019.

It is trite that an application stands or falls on the averments made in the founding affidavit: see Muchini v Elizabeth Mary Adams & Others 2013 (1) ZLR 67 (S).

It also is trite that he who alleges must prove: see ZUPCO v Parkhorse Services (Pvt) Ltd SC13-17; Circle Tracking v Mahachi SC04-17.

Counsel for the applicant conceded, that, all that the applicant has done is to allege that there was no quorum.

He argues, that, on the basis of the importance of the matter that bare allegation must shift the onus to the Judicial Service Commission (JSC) to prove that there was a quorum.

It is clear that the applicant relies on rumours for his allegation that there was no quorum.

Matters are decided on the law, facts, and the evidence - and not rumours.

The Judicial Service Commission (JSC) says there was a quorum. It is not the applicant. It suffices that it challenges the applicant to prove its allegation. The JSC has no obligation to assist the applicant to prove the latter's allegation.

I find that the applicant has failed to substantiate its allegation that there was no quorum at the meeting of 13 December 2019.

It is apparent that the appellant made unsubstantiated allegations.

It is an accepted principle of our law that it is the duty of a person who makes an allegation to prove the allegation: see Mavrick Trading (Private) Limited v Double Services HH54-17; Macro Plumbers (Pvt) Ltd v Sheriff of Zimbabwe N.O. and Another HH57-15; ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17.

In view of the well-grounded principles set out above, we find that the appellant's second and third grounds of appeal are devoid of merit.

This is an application in terms of section 34 of the Model Law as set out in the Second Schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award dated 23 February 2012, granted by the third respondent.

The second respondent was the applicant's estate agent.

At the hearing of the matter, I dismissed the application with costs on a legal practitioner client scale, being of the view that the application was entirely devoid of merit. I have now been asked to provide detailed reasons for judgment for purposes of appeal.

These are they.

The arbitral award that is sought to be impugned reads as follows:

“IT IS AND IS ORDERED THAT:

1. The termination of the agreement of lease in respect of Number 7 Westcott Road, Mount Pleasant, Harare signed by the parties on the 6th of September 2011 is confirmed.

2. The respondent (applicant in the matter now under consideration) refunds and pays to the claimant the sum of US$16,800 plus interest thereon from the 1st of November 2011 to the date of receipt of payment.

3. The costs of the Arbitrator, amounting to US$2,000, and covered by a deposit paid by the claimant, be refunded to the claimant by the respondent.”

The background giving rise to the dispute between the applicant and the first respondent involved the termination of a lease agreement entered into by the parties on 6 September 2011.

The parties had agreed that the first respondent would occupy the leased premises on 1 November 2011. The premises were under renovation, and the applicant gave an assurance that the renovations would be complete by the date of occupation.

The first respondent paid a sum of US$16,800, being a deposit and six months rent in advance, to the applicant.

Both parties submitted voluminous written statements to the arbitrator, the applicant, as the respondent, on 31 December 2011. The second respondent, the letting agent, also submitted a written statement to the arbitrator, on 9 February 2012.

The arbitrator found, that, the rental amount had been assessed based on the size of the kitchen, which the applicant had promised to extend and make bigger according to the first respondent's specifications.

This is the reason why the first respondent had agreed to pay six months rent in advance.

The applicant was unable to complete the renovations by the agreed date of occupation.

The parties entered into further negotiations which broke down after the applicant demanded more money which the first respondent refused to advance.

On 1 November 2011, the date of occupation, the premises were still under renovation.

The first respondent terminated the lease agreement and claimed a refund of the US$16,800 that had been advanced.

The arbitrator found, that, the applicant's inability to renovate the kitchen by the agreed date went to the root of the lease agreement, and confirmed that the lease agreement had been correctly terminated, and ordered that the applicant refund the monies advanced to him by the first respondent.

The basis of the application to set aside the arbitral award is that the applicant was not given an opportunity to be heard by the arbitrator.

He averred, that, he never agreed that the arbitrator could determine the mater on the papers filed by the parties. He averred, further, that, the third respondent only remitted US$12,800 to him, and that the first respondent had already been reimbursed US$3,840 by the second respondent.

The applicant averred, that, the arbitral award should be set aside on the basis that it had been awarded contrary to public policy in Zimbabwe, and in breach of the rules of natural justice.

The first respondent opposed the application on the basis, that, the applicant had given a mandate to the respondents to file a written report before the arbitrator in an electronic mail dated 7 January 2012.

The first respondent averred further, that, the arbitrator, had, in an electronic mail communication to all the parties, dated 5 January 2012, asked the parties how they wished to proceed and the parties agreed to make written submissions to the arbitrator.

The first respondent pointed out, that, the applicant, in the email dated 7 January 2012, to the arbitrator, stated that:

“…, written submissions only are fine, more focused and cheaper financially and time wise by me.”

The first respondent admitted, that, the amount outstanding was US$12,800 and averred, that, when the arbitral award is registered, it will be registered in that sum.

The first respondent reiterated, that, it was not fatal to an arbitral award if parties agreed to forgo an oral hearing and mandated the arbitrator to make a determination on the basis of written submissions.

The second respondent opposed the application and averred that it had no interest in the outcome of the matter, but merely wished to protect itself against an adverse order as to costs.

The second respondent averred, that, it was given a mandate to manage the applicant's property, Number 7 Westcott Road, Mt Pleasant, Harare, in August 2011.

Pursuant to that mandate, it secured the first respondent as a tenant for those premises. It averred that a dispute arose between the parties which resulted in the first respondent terminating the lease agreement and to demand a refund of rentals and deposit paid in advance.

The second respondent confirmed that both the applicant and the first respondent requested that it submit a written report to the arbitrator....,.

In regards to the merits of the matter, the second respondent averred that it failed to find any justification in the applicant's complaints against its report - which the applicant had specifically requested that it be submitted to the arbitrator.

Copies of e-mails between the parties were attached to confirm the second respondent's version of events.

The second respondent reiterated that the applicant's contention, that it was not given an opportunity to be heard, were entirely devoid of merit....,.

The question that the court must determine is whether the arbitral award handed down by the third respondent is contrary to public policy in Zimbabwe as envisaged by Article 34 of the Model Law, Arbitration Act [Chapter 7:15].

In other words, did the third respondent grant the arbitral award without proper consideration of the terms of the lease agreement between the parties; without affording the applicant an opportunity to be heard; or with fraud and corruption?

Article 34 of the Model Law provides that:

“Article 34 Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the High Court only if —

(a) The party making the application furnishes proof that —

(i)…,.

(ii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii)…,.

(iv)…,.

(b) The High Court finds, that —

(i)…,.

(ii) The award is in conflict with the public policy of Zimbabwe.”

“Article 19 Determination of Rules of Procedure

(1) Subject to the provisions of this Model Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Model Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.”

Article 24 of the Model Law provides that:

“Article 24 Hearings and Written Proceedings

(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials.”

The test applies to an arbitral award, in order to set it aside on the basis that it is contrary to public policy is that:

“An arbitral decision can only be held to be contrary to public policy if some fundamental principle of law or morality or justice is violated or if it is so defiant of logic or accepted moral standards that the concept of justice in Zimbabwe would be intolerably hurt.”

See Chanakira v Mapfumo & Anor HH155-10; and Husaihwevanhu & Ors v USF Collaborative Research Programme HH237-10, where the court stated that:

“The courts in this country have construed the defense of public policy very restrictively so that the objective of finality to arbitration is achieved.

It follows, that, the grounds upon which an award may be set aside…, are very narrow. The import of Article 34 and Article 36 of the First Schedule to the Act is not to endow the court before which the award is set aside with powers of appeal to determine the correctness of the decision of the arbitrator;…, an award by the Arbitrator is not contrary to public policy merely because it wrong in law or in fact in reaching the conclusion arrived at…, award…, goes beyond mere faultiness or incorrectness and constitutes a palpable iniquity that is so far reaching…,.”

See Pioneer Transport (Private) Limited v Delta Corporation Ltd & Anor HH18-12.

Based on the provisions of Article 19 of the Model Law, I find that it was entirely proper and permissible for the arbitrator and the applicant and the first respondent to agree on the procedure to be followed.

The arbitrator was even at liberty to conduct the arbitration in such manner as it considered appropriate if the parties failed to agree on which procedure could be used (Article 19(2) of the Model Law).

The power conferred on the tribunal included the power to: “determine the admissibility, relevance, materiality and weight of any evidence.”

There is nothing in the papers filed of record which suggests that the arbitrator did not have these powers.

The evidence placed before this court, via copies of electronic mail communication between the parties, clearly shows that the applicant consented to the matter being determined on the basis of written submissions placed before the arbitrator. The applicant is on record as celebrating the advantages of this course of action as being cheaper and less time consuming.

To turn around now and ask this court to find that the arbitral award was made without affording the applicant an opportunity to be heard is downright dishonest and dishonorable.

Article 24 of the Model Law gives the arbitrator the power to override any agreement between the parties themselves in regards to how the matter should proceed, and stipulates that the arbitral tribunal SHALL decide whether to hold an oral hearing or whether the proceedings shall be conducted on the basis of documents or other materials.

In essence, the conduct of the hearing is entirely at the tribunal's discretion.

There is no onus on the tribunal to hear oral submissions. The onus on the tribunal relates to notification of the hearing; and, an arbitrator has exclusive jurisdiction, contrary to the parties wishes, to decide how to collate evidence. There is no provision to compel the arbitrator to hear oral evidence.

What is required is for all the parties to be notified of the hearing, to be given an opportunity to present their case as stipulated by the arbitrator, and to have sight of the submissions made by the other parties, if in writing.

The second respondent was clearly implored by all the parties to submit a written report to the arbitrator.

A careful reading of the party's emails will confirm this.

There is therefore no basis on which the applicant can aver, that, despite advising the arbitrator that he preferred being heard verbally, his request was denied or ignored. In fact, the evidence before the court is that the applicant submitted the most voluminous written submissions before the arbitrator.

The court has also been unable to find any evidence of fraud on the part of the arbitrator in determining the arbitral award.

There is no evidence that the offence of fraud was committed or reported to the police by the applicant.

Fraud is a criminal offence which involves an element of misrepresentation to deceive another to his prejudice.

There is no evidence that the applicant was operating under any misrepresentation by the arbitrator, or of any prejudice which he may have suffered as a result of such misrepresentation.

According to Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (SC)…, Article 34 of the Model Law “…, means that, if, for example, if the arbitrator was fraudulently misled or bribed by a party, the award, however innocuous, would be contaminated in the process of making and contrary to public policy. There is simply no evidence before the court that the third respondent misrepresented himself in order to deceive or cause prejudice to any of the parties, or that he received a gift or benefitted in any way in reaching the decision that he did.”

The allegations of fraud and corruption against the third respondent, by the applicant, are clearly baseless and without foundation.