I heard this matter on 20 November 2015 and reserved judgment. The preparation of my judgment has taken longer than expected on account of my deployment to the Criminal Division of this court in January 2016.

The delay in compiling this judgement is therefore attributable to the sheer volume of work which I have had to contend with in the Criminal Division. I have also had to peruse reference records, Case No's HC1589/13, HC617/15, 9849/13 and HC10625/13 which are quite voluminous as these cases bear on the determination of this application.

Turning to the matter itself, this is an application in which the applicant seeks the following relief as set out in his draft order;

“1. Application for rescission in terms of common law of the judgement by her Ladyship Tsanga J HC1589/13 (HH424-13) given in favour of the 4th respondent is hereby granted.

2. Alternatively, application for rescission in terms of Rule 449(1) of the High Court Rules, of the judgment by Ladyship Tsanga J in HC1589/13 (HH424-13) is hereby granted.

3. The respondent's (sic) be and hereby ordered to pay costs of suit on attorney client scale.”

The gravamen of the application is to be gleaned from paragraph 14 of the applicant's founding affidavit in which he stated as follows:

“14. That, this is an application for rescission of judgment in terms of the Common Law in case no. HC1589/13 (HH424/13) on the basis that the original order was obtained by fraud perpetrated by the 4th respondent. Alternatively, this an application for rescission in terms of Rule 449(1) of High Court Rules.”

The applicant's allegations of the fraud allegedly committed by the fourth respondent (Terence Corben Rhodes) are set out in paragraph 15 of the founding affidavit in the following wording;

“15. That, the application for rescission of the judgement in HC1589/19 (HC424-13), in terms of common law, is being sought because the applicant believes that the 4th respondent fraudulently misled the court into believing that the late Brian Jones Rhodes transferred shares of the two companies Beverly East Properties Pvt Ltd and Karoi Properties Pvt Ltd into Phoenix Trust, a fact which is not true.”

It is therefore necessary, in determining this matter, to set out the background to the dispute.

In Case No. HC1589/13, which was disposed of by TSANGA J, the applicant in the application before me was not a party.

The fourth respondent in casu (Terence Rhodes) was the second respondent in HC1589/13.

It is convenient to briefly set out the issues which fell for determination by TSANGA J.

In the said application, the applicant was a firm of legal practitioners, Honey & Blackenberg. The legal firm held a sum of US$70,000 in its trust account. The money had accrued on account of monies collected by that firm as rentals due to two companies, namely, Beverley East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The companies own certain immovable property which was being managed by Robert Root & Company Estate Agents. Robert Root & Company Estate Agents, in turn, engaged Honey & Blackenberg to be its legal practitioners for purposes of collecting rentals accruing on the properties from various tenants leasing them.

Robert Root & Company terminated its agency for the companies. Honey & Blackenberg, however, remained accepting into their trust account payments made by some of the tenants.

It is the accumulated payment, which totalled US$70,000, which led Honey & Blackenberg to petition this court for a declaratory order as to whom the money should be paid.

The legal firm was faced with claims from nine (9) persons who lay claim to the money. The nine (9) claimants who were cited by Honey & Blackenberg in its application for the declaratory order granted by TSANGA J were the first (Gideon Hwemende) and third-tenth (Lourence Erasmus Vermaak, Terence Corben Rhodes, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) respondents in casu.

TSANGA J, in the application for the declaratory order or interpleader, granted an order in the following terms on 20 November 2013:

1. That the second respondent, Terence Cobden Rhodes as claimant in his capacity as Trustee of Phoenix Trust in whom the companies are held, is the lawful shareholder of the two companies.

2. That the second respondent, upon lodging with this court a valid Trust document effected by the deceased during his lifetime transferring the properties to the Trust, shall be entitled to require the Registrar of this Honourable Court to release to the Trust, the sum of $70,000 deposited with him in terms of Rule 206(1) of the High Court Rules, 1971.

3. That the third to the ninth respondents shall pay the costs of the applicant and the first and second respondents.

The above stated order is the one which the applicant prays that it be rescinded on the grounds of it having been obtained through fraud committed by the second respondents as referred to in TSANGA J's order.

If not falling for rescission on the basis of fraud, then it should be rescinded on the basis of Rule 449(1) of the High Court Rules, so the applicant prays in the alternative.

It is common cause that the two companies at the centre of the dispute were established by one Brian James Rhodes who passed on at Harare on 29 July 2006. The applicant in the application before me is the executor dative of the estate of the said late Brian James Rhodes (hereinafter called “deceased”).

As I have already indicated, the applicant was not a party in case No. HC1589/13 determined by TSANGA J.

The learned judge dismissed claims to ownership of the companies in issue by the third respondent Gideon Hwemende. This respondent is the first respondent in casu. The first respondent had purported to appoint the fifth-tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) as directors in one or other of the two companies to protect his interests.

With the dismissal of his claim, any claims which the fifth-tenth respondents may have sought to assert similarly fell through or suffered the same fate.

TSANGA J ruled that the lawful shareholder of the two companies was deemed to be Phoenix Trust whose assets included the corporate stock of those companies.

Her ladyship also found that the fourth respondent herein (Terence Corben Rhodes) was a Trustee in Phoenix Trust and a director in both companies owned by the Trust.

She further adjudged that the fourth respondent (Terence Rhodes), in his capacity as Trustee of Phoenix Trust, had legal title to the Trust property and that since the Trust was the holder of corporate stock in the two companies, any benefits accruing to the companies, in turn, accrued to the Trust as shareholder.

In concluding her analysis of the facts, TSANGA J stated as follows;

“Since the Trustee purports that the companies were transferred to the Trust some years ago by the late Brian James Rhodes, there must be in existence evidence which can be produced in support of this claim. Such Trust document was not part of the annexures in this application. As such; before the monies being held can be released, evidence of the Trust legally owning the companies must be furnished to this court through the Registrar of the High Court.”

The learned judge then made the order which I have quoted (supra).

This application is hotly contested and pits the applicant against the fourth respondent (Terence Rhodes).

The applicant's contentions, from a reading of his affidavit, can be summarized as follows in substance;

(a) That the fourth respondent (Terence Rhodes), as trustee of Phoenix Trust (hereinafter called the Trust), had, in the application before TSANGA J “fraudulently alleged that the late Brian James Rhodes during his lifetime had transferred the entire shareholding of the two companies (Beverley East Properties and Karoi Properties) into the Trust.”

(b) That he knew such fact to be untrue.

(c) That the court had relied upon the fourth respondents' fraudulent allegation to hold that the fourth respondent, as Trustee of the Trust, was the lawful shareholder in the two companies and further ordering that “upon lodging with Registrar of the High Court, a valid Trust Deed effected by the deceased, the late Brian James Rhodes, during his life time transferring ownership of the two companies to the Trust, he shall be entitled to the sum of $70,000.”

(d) That the fourth respondent knew that the Trust was not given any shareholding in the companies but only loan accounts as shown on the schedule of assets to the Trust Deed.

(e) That there is no documentary proof of any transfer of shares in terms of the Deed of Trust.

(f) That the fourth respondent deliberately misled the court and perpetuated a fraud because he knew that the two companies belonged to the deceased, and, consequently, to his estate. He thus led false testimony which made TSANGA J rule that the said fourth respondent was entitled to the rentals from the two properties.

(g) That the estate had a vested interest in the case determined by TSANGA J as it was the one entitled to the rentals.

(h) That TSANGA J's judgement has the effect of dissipating a portion of the deceased's estate and affected its winding up and final distribution.

(i) That, further, TSANGA J would not have granted the judgment she gave had she not been misled by the fourth respondent.

As such, the applicant therefore claimed rescission of that judgment at common law or in terms of Rule 449(1) of the High Court Rules.

The applicant attached to his application a supporting affidavit of Elizabeth Anne Rhodes who is described as the widow of the deceased. Her purported affidavit was impugned by the fourth respondent for want of conformity with the requirements of an affidavit recognizable by the court. The affidavit did not comply with the provisions of the High Court (Authentication of Documents) Rules RGN 995/1971.

The fourth respondent objected to the affidavit on the basis that it was not properly authenticated since the purported notary public before whom it was signed was not sufficiently identified.

The applicant did not present any argument against the invalidity of the purported affidavit. It is not necessary to dwell on this matter unnecessarily.

The fourth respondent (Terence Rhodes) has submitted that the purported affidavit is a nullity and that it should be struck off the record.

Counsel for the fourth respondent relied on the case McFoy v United Africa Co. Ltd 1961 (3) All ER 1169 (CPC) in which the celebrated British Judge, LORD DENNING, reasoned that a void act being a nullity necessarily meant that it was as good as not there. That being, it did not need to be set aside.

The purpose of having documents authenticated, especially those executed in foreign countries, is to ensure that they are genuine before the court can use them.

With respect to affidavits, there is more to it than simply authenticating or certifying a document.

An affidavit is a piece of evidence, and, because the person deposing to it is not before the court, such person is required to swear to his or his deposition before a lawfully appointed or authorized person to administer the oath or affirmation.

In terms of the High Court (Authentication of Documents) Rules 1971 an affidavit properly sworn to outside Zimbabwe is admissible in court. It follows that, if not properly sworn, it is inadmissible.

The onus to prove that the purported affidavit of Elizabeth Anne Rhodes was in fact an affidavit and that it was admissible in evidence in court fell upon the applicant: see Dique v Viljeon 2007 ZAGPHC 206.

He did not discharge the onus.

I therefore hold that the purported affidavit of Elizabeth Anne Rhodes is not admissible, and, as I observed, no argument was advanced by the applicant to the contrary. 

I therefore disregard it.

The applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.

According to the applicant's affidavit, the companies in question are being laid claim to by nine different respondents (Lourence Erasmus Vermaak, Terence Cobden Rhodes, Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai).

The tenth respondent (the Registrar of Companies) was cited to throw light on the question of ownership by virtue of certain statutory returns that have been filed with it.

Despite the assistance that the court would indeed have obtained from the tenth respondent's comments, none were availed as the tenth respondent (the Registrar of Companies) did not participate at all in these proceedings.

The companies in question, namely, Beverly East Properties and Karoi Properties (the companies) were established by the late Brian James Rhodes who died on 29 July 2006.

At least this much is not in dispute.

The companies own commercial premises described as 184 Mutare Rd; 186 Mutare Rd; 188 Mutare Rd; 194 Mutare Road, all in Msasa.

These premises are leased.

Until October 2011, the rentals were being collected by an estate agent, namely, Robert Root and Company. They discontinued agency and accounted to the applicants for rentals held by them.

Certain tenants have continued paying rentals to the applicants.

The applicant averred, in its affidavit, that, it is currently holding $70,000 in trust by way of accumulated rentals from these tenants.

In its affidavit, the applicant lays out the conflicting claims that it has been saddled with as emanating from triple sources:

(i) The first set of claimants for the rentals is a Trust called Phoenix Trust which the deceased is said to have established in 1998. The first and second respondents (Lourence Erasmus Vermaak and Terence Cobden Rhodes) are identified by the applicants as Trustees asserting that the Trust is the lawful owner of the entire share capital in the companies and to whom the applicants should account for the rentals held as representatives of the companies.

(ii) The second claimant, also laying claim to the rentals is said to be Gideon Hwemende, the third respondent (a former employee of the deceased) whom the applicant indicates in its affidavit as having made diverse claims to shareholdings in the companies ranging from 40%, to 60%, as well as to the entire ownership of the companies.

(iii) The third set of claimants are the fourth to ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai), who, in their capacity as Directors appointed by the third respondent (Gideon Hwemende), lay claim to interests in the companies.

The affidavits and various annexures filed by the different claimants bear the hallmarks of a dramatic 'corporate soap opera' characterised by intrigue; alleged chicanery; resultant grievance.

It is necessary to set out the facts somewhat fully from the papers filed of record as they have a bearing in determining in whose favour the balance emerges in terms of this interpleader application.

Mr Lourence Vermaak, the first respondent, initially submitted an opposing affidavit on 12 March 2013 which was later withdrawn and expunged from the record by court order obtained as a result of a default judgement.

From the correspondence on file, the reason for the seeking that this initial opposing affidavit be withdrawn was because it had been obtained through coercion.

However, by the time of its withdrawal, the third to ninth respondents had filed their own opposing affidavits in which they drew heavily, in asserting their claims, on this initial affidavit. Even after the first and second respondents had filed their new affidavits, the third to the ninth respondents appear to have ignored the fact that this document was obliterated by an order of this court.

Whilst bearing in mind that the document was wiped out, it is necessary to set out, briefly, its contents in order to give some context to the election by the third to ninth respondents to hang on its every word despite the court order stating that it is expunged from the record.

In the expunged affidavit, the first respondent averred that he had resigned as Trustee of Phoenix Trust and Director of Beverley East Properties - which is not in dispute.

He denied having laid claim to owning or representing the companies.

He asserted that he had appointed himself as Director when he saw that the companies were lying idle. He also swore that the second respondent, Terence Cobden Rhodes, had been appointed fraudulently by him (with one Kenny Regan) without his knowledge and that the second respondent was not even aware that he is a director or was a director.

In a dramatic twist to the applicant claim of a dispute, the first respondent refuted that the shareholdings in the companies were in dispute in any way. He also stated that the third (Gideon Hwemende) and the ninth (Calisto Vengesai) respondents are current directors and shareholders of Beverly East Properties and that he had no problems with this nor did he have any interest in the matter.

Attached as annexures were letters of withdrawal as Director of Beverly East Properties.

The eighth respondent, Farai Mutizwa, in his purported capacity as Director of Beverly East Properties, deposed to an affidavit in which he essentially embraced the first respondent's affidavit as embodying the correct position. He confirmed that the first and second respondents had resigned and had not laid any interest in the companies as they had resigned as both directors and company secretaries. He also stated that ownership and control are in the hands of the remaining respondents and that there are no contradictory or competing interests.

He also said that the third respondent (Gideon Hwemende) is a director in the company.

He referred to the only dispute as that pertaining to Directorship of Karoi Properties, a case which he said they were making frantic efforts to resolve.

In that case, which I will allude to later, JUSTICE ZHOU ordered tenants of Karoi Properties to deposit rentals into the account of the Registrar until the matter of ownership is resolved.

The fourth, fifth, sixth, seventh, and ninth respondents submitted affidavits in support of the eighth respondent's averments.

The third respondent (Gideon Hwemende), who was separately represented, initially deposed to his own affidavit on 18 March 2013. He withdrew, through a letter from his legal practitioners to the Registrar of the High Court, two days after its submission on 20 March.

In its place, he submitted an affidavit stating that he too was embracing the affidavit deposed to by the eight respondent.

It is necessary to state, briefly, the contents of this affidavit as its contents have a bearing on why it was withdrawn.

In addition, its contents also have some bearing on the first respondent's later affidavit.

In his initial affidavit, he gave a totally different picture of the share ownership pertaining to the company compared to that deposed to by the first respondent. He did not assert full ownership, but, instead, claimed that he had acquired 60% of the shareholding, with the remaining 40% belonging to the estate of the late Brian James Rhodes. He sought to shed light on how he came to own what he asserted as 60% of the company.

In essence, his claim was that he had been employed as clerk by Brian James Rhodes in 1990 who was the sole shareholder of the companies. He was elevated to controlling all the accounts for the companies in 1992 which included mining companies. He said that when Brian James Rhodes became old, he proposed that he buy shares in Beverly East Properties in 1999 so that he could become the majority shareholder. His claim was that the deceased said he would work out a plan since the third respondent did not have money.

He asserted, that, in 2002, the said Brian Rhodes indicated that he was handing him 60% of the company and drew up shareholding agreements. He also gave him the title deeds of three properties Lorely, Beverly East, and Karoi Properties.

He further averred, that, by 2006, had paid up for the 60% shareholding in each of the two companies, and that, at the time of his death, Brian Rhodes owned 40% of the company. He further submitted that he himself had fallen ill, and, for seven years, and could not control the two companies.

It was during this time, he said, that the companies had been left with no Directors and that the first and second respondents had illegally appointed themselves.

He alleged that there is no record of how Phoenix Trust came to own 80% or 100% of the shareholding in the two companies.

He had submitted documents to support his claim in the form of receipts from a petty cash book to show purchase. He also attached annexures of the Share Agreements in Beverly East and Karoi Properties.

Also among the annexures was a copy of a letter, purportedly by Brain James Rhodes, offering the third respondent the properties in 2002.

Also included was a company resolution, also from 2002, appointing the estate agents as managers of the property.

Turning back to the first respondent, he withdrew his initial opposing affidavit on 27 May 2013.

Having the court's blessing to breathe freely again and file new papers on the basis of a court order granted by JUSTICE MATHONSI, under case No. HC3889/13, he filed a new opposing affidavit on 12 July 2013.

Equally unfettered by the first respondent's initial affidavit, the second respondent (Terence Cobden Rhodes) also filed his own opposing affidavit.

In his new opposing affidavit, the first respondent disputed the third respondent's (Gideon Hwemende) claim to shareholding on a number of grounds:

He asserted, that, from the evidence produced by the third respondent, he could not be owner as he had failed to produce proof of actually paying for the shares, neither had he shown any proof of paying any capital gains tax on the shares as required by the Capital Gains Tax Act [Cap 23:01]. He also stated that no such share transfers were ever processed by the first respondent's company that was at the time managing the two companies as company secretaries.

In addition, he attached a number of annexures which included a document examiners report disputing the signatures to the Share Agreements that had been produced by the third respondent.

The examiner opined that the signatures could have been forged but that he required to see the originals.

What clearly does not help the third respondent's claims is that also included were a proven forged letter in which he had claimed 100% ownership, from 40%, through indigenisation.

The first respondent also questioned why the company needed to be indigenised, if, as claimed by the third respondent in the affidavit he had initially filed, he already owned 60% which would mean the company was already compliant with indigenisation.

The second respondent, Terence Cobden Rhodes, submitted an affidavit as Trustee of Phoenix Trust.

He asserted that he has never resigned as Trustee of Phoenix Trust or Director of Beverly East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. He insisted, in his affidavit, that the entire shareholding of the two companies is with Phoenix Trust.

He refuted the claim by the third respondent, Gideon Hwemende, that he owns 60% of shareholding of either company.

Having brought the application as an interpleader, the applicant made it clear that it is a disinterested party in the proceeding and will abide by the decision of this court.

Counsel for the first and second respondents (Lourence Erasmus Vermaak and Terence Cobden Rhodes) argued, in limine, that, the fourth-ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai) have no locus standi as the Directors in their personal capacity.

Owing to the distinct legal persona of a company which is separate and distinct from its members and shareholders, he argued that they cannot arrogate to themselves to sue what can only be legally suffered by Beverly East Properties and Karoi Properties.

Where wrong is done to a company the proper complainant is the company itself.

The following cases were cited in support of these averments: Salomon v Salomon & Co Ltd [1897] AC 22; Dadoo Ltd & Others v Krugersdorp Municipal Council 1920 AD 530; Foss v Harbottle (1893) 67 ER 169; Wallersteiner v Moir (No.2) [1975] 1 All ER (CA) 849.

He also argued, that, the claim for the fourth-ninth respondents must fail on the basis that they do have a direct and substantial interest in the matters as they are not even shareholders.

He further submitted that their appointment as Directors rests on a person whose ownership is disputed and that one cannot appoint directors to a company to which one has been unable to prove ownership.

He argued, that, the third respondent had failed to show ownership of the property and had merely managed to put forward a series of inconsistent claims.

The third respondent did not file any heads of argument neither did he appear in court on the appointed day. He was therefore in default and was barred.

Counsel for the fourth to ninth respondents argued that there was no dispute of fact as regards ownership on the basis of the first respondent's initial affidavit - despite the fact that this had been legally withdrawn and substituted.

She insisted that both the first and second respondents had resigned from the company.

She argued that the Directors were properly before the court as it is their duty to manage the company as agents of the company.

Turning to these arguments.

The rule is indeed well established that a company is a separate legal persona capable of suing and being sued in its own name. As such, shareholders have passive role especially where a company can use its corporate character to obtain redress for the alleged wrong.

Where the wrong doers are the directors themselves, there are obvious challenges in that they cannot bring a claim against themselves. Thus, under the exception to the rule in Foss v Harbottle (1893) 67 ER 169, a shareholder can bring a derivative action as a corporate shareholder to address a wrong done to the corporation.

It seems to me, that, a practical approach to addressing the issue of the Directors locus standi in this case, is an analysis of the relationship between shareholders and directors and the roles attendant upon each.

A person who has acquired shares in a company, and can produce irrefutable proof of such ownership, has a right to play a central role in the governance of such company. Among such roles that a shareholder is entitled to play include the appointment and removal of directors and addressing issues of their remuneration.

The appointment and removal of auditors, as well as issues to do with their remuneration, is another such role.

Dealing with issues of management and business of the company and also any issues to do with the company's constitution is yet another.

Directors so appointed by a legitimate shareholder have the right to commence litigation in the company's name; to buy and sell property; to employ people; and to conduct the business of the company, among some of their rights.

The difficulty on the case before me is that the Directors have been appointed by a person whose very claim to ownership is strongly challenged.

The Directors, in the persons of the fourth to the ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai), do not deny that they were appointed by the third respondent in his capacity as shareholder.

As conceded by counsel for the fourth to ninth respondents, none of them are shareholders.

The annexures that were included in this application, by the first respondent, indeed reveal that the third respondent's claim to share ownership rests on quick sand.

As stated by the first respondent, there is no evidence of the requisite tax having been paid for the shares as required by the law; neither is there actual proof of payment for those shares.

Whilst admittedly not conclusive, the forensic report suggests that the signatures to the Share Agreements may have been forged.

What clearly does not help the third respondent's claim to share ownership is the annexure of a court case involving him which details proven submission of a forged document in claim of 100% ownership to one of the properties in this case.

In the matter of South Mark Trading (there were 12 other companies cited in that matter) v Karoi Properties & Lorna Kruger & Retired Major Chademana & Gedion Hwemende & National Indigenisation Board HH52-13, which this court takes cognisance of, the tenants of Karoi Properties sought the guidance of the court as to whom to pay their rentals.

Mr Hwemende (the third respondent in the current matter) claimed rentals on the basis of 100% share ownership of the Karoi company. He based his claim on a letter from the National Indigenisation & Economic Empowerment Board (NIEEB) dated 30 September 2011.

That letter, which turned out to be forged, stated that Mr Hwemende, who previously owned 40%, now owned 100% shares in the company.

The National Indigenisation & Economic Empowerment Board (NIEEB) had written, on January 20, 2012 denying Mr Hwemende's claims and emphasising that the indigenisation process in the above-mentioned properties is yet to be finalised.

JUSTICE ZHOU made the following remarks regarding the forged letter and the very tenor underlying the claim:

“The biblical aphorism: 'Whatever a man sows he will also reap' has lost its meaning in our society. This matter presents a sordid picture of a culture of wanting to reap where persons did not sow….,.

The fourth respondent was aware that he could not just wake up to find himself as the holder of all the shares in a company for free. He would know, too, that, the indigenisation legislation does not operate in the manner that he sought to portray to justify his claim to a 100% shareholding in the first respondent.”

In this particular matter, the third respondent initially claimed 60% before throwing his lot with the 100% claim.

The third respondent has undeniably made claims that have ranged from 40% to 60% to 100%.

What is before the court is evidence of claims to ownership which swing like a yoyo.

It is evident, that, from the papers filed of record, that, the assertions of ownership lack veracity and consistency and merely lend credence to the proverb that liars should have good memories.

As this claim has been lodged in interpleader proceedings, what the claimant must allege is succinctly stated in the case of Bruce NO v Josiah Parkes and Sons (Rhodesia) (Pvt) Ltd and Another 1972 (1) SA 68 (R) where GOLDIN J…, stated as follows:

“In my view, in proceedings of this nature, the claimant must set out such facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.”…,.

The test whether a claimant has discharged the onus of proving his ownership is whether the probabilities are balanced in his favour.

The case of Corlett Drive Estates v Boland Bank BPK and Another 1979 (1) SA 863…, elucidates the purpose of setting out particulars of claim as follows:

“The purpose, inter alia, of the setting out of the claimant's particulars of claim is to acquaint his opponent of the tenor of his case, so that the latter can be put in the position of deciding whether to oppose his claim or not.”

I do not see any real dispute of fact, on the basis of this inter-pleader, that ought to be referred to trial as, in my view, the third respondent (Gideon Hwemende) has not shown this court that he has any real basis for his assertion of ownership.

The third respondent (Gideon Hwemende) did not file heads or make an appearance.

Notably, the third respondent did not challenge the first respondent's application to withdraw his opposing affidavit which he said had been obtained by coercion.

In inter pleader proceedings, where a claimant does not deliver any details of his claim nor appear in support of a possible claim, the court can exercise discretion and order the claim lapsed: see Free State Consolidated Gold Mines Operations BPK v Sam Flanges 1997 (4) SA 644 (O)…,..

If the third respondent had full confidence in his claim, he would have made every effort to defend it to its logical conclusion.

Instead, he withdrew his affidavit in which he had purported to shed light on how he came to acquire the shares. In addition to the withdrawal, he chose to assert his claim on the foundation of the first respondent's affidavit which has been withdrawn and allowed to be substituted by the court. Thereafter, the third respondent could not thereafter be bothered to file his heads of argument or appear in court to file for upliftment of a bar.

Given these realities, the court is entitled to draw the adverse inference, that, in the third respondent's own view, his claim had collapsed, or, for that matter, that a guilty conscience needs no accuser.

Taking all the above into account, I do not think the evidence before this court shows that the third respondent has a valid claim as a share owner.

Accordingly the claim by the fourth to the ninth respondents cannot stand as the third respondent, who appointed them, has failed to prove that he is indeed a share-owner.

I therefore uphold the point in limine raised by counsel for the first and second respondents regarding the lack of locus standi by the fourth to ninth respondents and their claim is accordingly dismissed.

The first respondent, Lourence Erasmus Vermaak, has made it very clear that he has no claim to the property and that his primary motive, in filing the affidavit, has been to shed light in his capacity as former Trustee and Director of the companies.

He confirmed that he has resigned as both Trustee and Director.

I now turn to the claim by the second respondent, Terence Cobden Rhodes, and whether his claim justifies the release of the monies being held by the applicant to it as the successful claimant.

The assets of Phoenix Trust are said to include the corporate stock of the two companies.

The Trust, through its Trustees, is deemed the shareholder for the purpose of a bringing a derivative action against a wrong done to the company.

The second respondent, Terence Rhodes, is stated as a Trustee as well as a Director of both companies.

In his capacity as Trustee he therefore has legal title to the Trust property.

Since the Trust is said to be the holder of the corporate stock, whatever benefits this court may award accrue to the Trust in whom the companies are said to be vested. Since the Trustee purports that the companies were transferred to the Trust some years ago, by the late Brian James Rhodes, there must be, in existence, evidence which can be produced in support of this claim.

Such Trust document was not part of the annexures in this application.

As such, before the monies being held can be released, evidence of the Trust legally owning the companies must be furnished to this court through the Registrar of the High Court.

In the circumstances, I make the following order:

1. That the second respondent, Terence Cobden Rhodes, as claimant, in his capacity as Trustee of Phoenix Trust, in whom the companies are held, is the lawful shareholder of the two companies.

2. That the second respondent, upon lodging with this court a valid Trust document effected by the deceased, during his lifetime, transferring the properties to the Trust, shall be entitled to require the Registrar of this Honourable Court to release to the Trust, the sum of $70,000 deposited with him in terms of Rule 206(1) of the High Court Rules, 1971.

3. That the third to the ninth respondents shall pay the costs of the applicant and the first and second respondents.

The HOLY BIBLE, CONCORDANCE AUTHORIZED KING JAMES VERSION, 2013 p1078 reads, in Ecclesiastes 4:09-12:

“9. Two are better than one; because they have a good reward for their labour.

10. For, if they fall, the one will lift up his fellow: but woe to him who is alone when he falls; for he has not another to help him up.

11. Again, if two lie together, then they have heat: but how can one be warm alone?

12. And, if one prevail against him, two shall withstand him; and a threefold cord is not quickly broken.”

I therefore refer to a number of legal sources as well as illustrations in determining this inter pleader application.

In Sabarauta v Local Authorities Pension Fund and the Sheriff SC77-17, UCHENA JA, writing for the Zimbabwe Supreme Court, said:

“Interpleader proceedings are instituted by the Sheriff in respect of property attached by him when a third party claims ownership of that property. In such proceedings, it is necessary for the party claiming the attached property to prove ownership by clear and satisfactory evidence.”

In The Sheriff for Zimbabwe v Mahachi and Leomarch Engineering HMA34-18, MAFUSIRE J puts it thus…,:

“One common thread running through such cases, and several others on the point, is that there is a rebuttable presumption that where someone is found in possession of movable goods, they are presumed to be the owner of that property.

Where someone else other than the possessor claims to be the owner of those goods, they have the onus to prove, on a balance of probabilities, that they are the owner. There are no hard and fast rules on how they may go about proving such ownership. Every case depends on its own facts. The claimant may have to produce some evidence, such as receipts or other documents, if available, to prove ownership. A bald assertion that they are the owner is not enough.”…,.

The facts of each matter ultimately resolves the question whether clear and satisfactory evidence has been tendered by a claimant to satisfy the court, that, on a balance of probabilities, the property attached belongs to the claimant. The road to proving ownership is not a one way street.

The claimant does not need, at this stage, to prove, on a balance of probabilities, that the attached property belongs to it. All that is required of it is to show, on the face of it, that the property probably belongs to it.

That is what prima facie proof means in civil cases.

The onus then shifts to the judgment creditor to disprove the claimant's prima facie evidence of ownership by producing its own evidence to the contrary.

If the contrary evidence satisfies the court, the claim fails and execution proceeds. The converse is true.

The judgment creditor cannot successfully disprove the claimant's prima facie evidence of ownership by making unsubstantiated assertions in its own opposing affidavit. Neither can it do so through composing heads of argument based on the bare assertions in the opposing affidavit.

It follows also that argument at the hearing of the inter pleader application is no substitute for a judgment creditor's failure to produce contrary evidence to disprove the claimant's prima facie evidence of ownership of the attached goods.

If the judgment creditor cannot disprove the claimant's prima facie evidence of ownership, the result is this: What was prima facie evidence of ownership is transformed into proof on a balance of probabilities. The attached goods are then declared not executable and their release from attachment ensues.

This procedure has a parallel in Criminal Law.

If the State establishes a prima facie case against an accused who then opens and closes his defence case without without leading any evidence at all that person will be convicted. The conviction is not based on the prima facie case. It is no longer that. It has graduated to become proof beyond a reasonable doubt for want of any competing evidence.

In (1) Smit Investments Holdings SA (Proprietary) Limited (2) Genet Mining (Proprietary) Limited v (1) The Sheriff of Zimbabwe (2) Pungwe Mining (Private) Limited SC33-18 PATEL JA, with whom MALABA CJ and HLATSHWAYO JA concurred, said…,:

“In a bid to prove its ownership of the assets, the first appellant produced statements of account for Mbada Mine which showed that some payments, but not all, had been made by Mbada Mine. In addition, both appellants produced detailed agreements concluded with Mbada Mine (on 15 July 2012 and 22 July 2015), respectively, which stipulated that ownership of the assets would remain with the appellants until the full purchase price was paid. It was the court a quo's finding that the agreements were not authentic and that there was collusion between the appellants and Mbada Mine.

It was alleged, by the second respondent, that, the agreements were doctored by Mbada Mine and the appellants ex post facto and that there was no paper trail to show that the assets belonged to the appellants.

However, no evidence was led to substantiate the second respondent's allegations of collusion.

The court relied on the bald averment by the second respondent that the documents were not authentic and simply took that to be correct.

It is the second respondent that levelled allegations of inauthenticity and collusion. Consequently, it is the second respondent that should have proven the same.

This position was succinctly captured in the case of Circle Tracking v Mahachi SC4-07, where the court held that the principle that he who alleges must prove is a basic concept of our law.

No evidence was adduced by the second respondent to substantiate the alleged inauthenticity of the agreements.

The appellants produced documents which show that the assets had been procured by them and initially belonged to them. They also produced the agreements concluded with Mbada Mine in 2012 and 2015 which show that ownership was reserved in favour of the appellants until the full purchase price was paid. The relevant provisions are contained in clauses 4.3 and 11.6 of the first appellant's agreement and clause 7.7 of the second appellant's agreement.

The second respondent alleged that the documents supporting the appellants' claims were a recent fabrication meant to frustrate the execution of the assets, but, the dates when the agreements were concluded reveal that they were executed well before the second respondent instituted any legal proceedings in this matter. There is also nothing in the record to give credence to the allegations that the documents were fabricated by the appellants in collusion with Mbada Mine. It is my view, therefore, in the absence of any evidence to the contrary, that the agreements are genuine and that their provisions and the agreed compacts contained therein must be accepted as being authentic, as well as commercially and legally cognizable.”

This court's decision in the Sheriff of Zimbabwe v Senital (Pvt) Ltd t/a Frank B Mine and Zimbabwe United Passenger Company Ltd HB233-18 underscores this point. There, MAKONESE J expressed it in these words…,:

“The claimant refuted the allegations that the property belonged to the judgment debtor, and, in a bid to prove ownership of the attached property, the claimant attached some receipts and agreements of sale as proof of the attached assets. An agreement of sale is taken as prima facie proof of ownership. Where a claimant tenders some acceptable proof of ownership the onus must necessarily shift to the judgment creditor disproving the claimant's ownership of the attached goods.”

Similarly, CHITAPI J explained in The Deputy Sheriff Marondera v Hombarume and 7 Ors HH521-18…,:

“In my view, this claimant's claim is not far fetched. The claimant did not just attach the registration book as proof of legal ownership. He attached the official motor vehicle extract from Central Vehicle Registry. It gives details of the importation of the vehicle by the claimant and proof of payment of import duty and police clearances. In such a situation, the onus to prove that the third claimant is not the owner of the vehicle must shift to the judgment creditor. Where the claimant places before the court acceptable evidence of ownership or of some other legally recognizable ground warranting release of the attached property from execution, the onus shifts on the party who impugns such evidence to controvert it.”...,.

The judgment creditors were employees of Amble Mining (Private) Limited. The latter traded as Amble Mine.

On 24 May 2010, an Independent Arbitrator granted an award ordering the Mine to reinstate the 99 employees with effect from March 2006 without loss of salary and benefits. As an alternative, the Mine was to pay them certain sums for back pay, damages for loss of employment, punitive damages, housing allowance, cash in lieu of leave and cash in lieu of notice. The total amount was US$1,199,251=88.

The date when the matter was referred to the Arbitrator is not disclosed in the papers. Also kept under wraps is the history of the labour matter leading up to the award.

Amble Mining (Pvt) Ltd is the judgment debtor.

On 28 June 2017, the employees filed a court application for registration of the arbitral award. The application to register the award as an order of this court was granted, unopposed, on 16 August 2017.

A Writ of Execution Against Movable Property must have been issued. I have not seen it. What I have perused, both in the court record relating to registration of the arbitral award and the present matter is a Writ of Execution against immovable property. It was issued on 18 June 2018. In the writ is a statement speaking to a nulla bona return of service. The nulla bona return of service was not placed before me. I do not know when it was issued. I am also in the dark as to where the Sheriff had sought to effect the attachment.

However, as regards the immovable property, the Sheriff was instructed to attach and execute what was said to be the judgment debtor's property being a certain chrome mine comprising of:

(i) The mining claim, being a block of 25 mining claims known as BEE 47 registered as No. G310 BM.

(ii) 110 compound houses.

(iii) 1 x shop.

(iv) 6 x round thatched guest houses tiled/geyser.

(v) 3 separate guest houses.

(vi) Workshop.

This was to realize the sum of US$1,199,252=99 which was the alternative remedy to reinstatement.

On 26 June 2018 the Sheriff wrote to the Provincial Mining Director, Mashonaland West Province attaching the mining claim in question together with everything else listed on the writ of execution against immovable property.

Gurta AG is the claimant. It is a company incorporated in terms of the laws of Switzerland. It is therefore a peregrinus. It has paid security for costs.

Gurta AG filed an affidavit with the Sheriff claiming ownership of all the attached property. The affidavit was deposed to by Carlo Ghezzi. He is a Board member and Chairman of the claimant.

The claimant admits that the mining claim used to belong to the judgment debtor. However, the claimant purchased the same sometime in 2009 and took transfer the same year.

In an endeavor to prove its claim, Gurta AG annexed certain documents to the affidavit delivered to the Sheriff.

Those documents are copies each of the certificate of registration of the mining claim after transfer; a Board Resolution of Maranatha Ferro Chrome (Pvt) Ltd, signed by the chairman and secretary on 15 October 2009, reflecting that the Board agreed, on 13 October 2009, to sell all its mining claims as well as those of its subsidiary, Amble Mining (Pvt) Ltd, to Gurta AG for US$1,350,000; an unsigned document on Maranatha Ferrochrome's letterhead said to be an invoice relating to the Sale and a Lease Agreement on Maranatha Ferrochrome's letterhead, dated 9 September 2015, in terms whereof Joseph Wirima rented one of the rooms at the mining claim for a period of 3 months running from 1 September 2015 to 30 November 2015 at a rental of US$25 per month.

The judgment creditors rejected the claim.

This led to the Sheriff instituting these inter-pleader proceedings.

The claimant, in a bid to prove its claim before this court, again filed an affidavit by the same deponent. It annexed thereto copies of the same documents as previously laid before the Sheriff. This time, it attached also copies of two letters written by the Acting Provincial Mining Director Mashonaland West on behalf of the Secretary for Mines and Mining Development. The letters are dated 5 July 2018. One was addressed to the judgment creditor's then legal practitioners, Citizens Legal Society and Advisory Trust. The other was addressed to the Sheriff's office.

In both letters, the Ministry of Mines and Mining Development, through the author, set the record straight by advising that the mining claim in question belongs to the claimant as evidenced by records reflecting transfer as having been effected to Gurta AG on 26 October 2009.

The author apologized to both addressees for a mistake which had been made in an earlier letter to Citizens Legal Society and Advisory Trust on 31 May 2018 which stated that the mining claims, and two other claims, belonged to the judgment debtor.

Besides the letter of 31 May 2018 from the Ministry of Mines and Mining Development (which was superseded by the letters of 5 July 2018 from the same Ministry) the judgment creditors did not produce any evidence to contradict that tendered by the claimant.

They alleged collusion between the Acting Provincial Mining Director, Mashonaland West, the claimant, the judgment debtor, and Maranatha Ferrochrome (Pvt) Ltd to cook up the documentary evidence which the claimant placed before me.

I was told that there was therefore no sale of the mining claim in question to the claimant because all the documents speaking to such sale and transfer of the claim were fabricated.

The judgment creditors, in opposing papers, heads of argument, supplementary heads of argument, and oral argument at the hearing said this:

No paper trail leading up to transfer of the mining claim to the claimant had been put before me. There was therefore neither sale nor transfer of the mining claim in favour of Gurta AG. The claim was still registered in the name of the judgment debtor and therefore executable.

The argument was premised upon section 275 of the Mines and Minerals Act [Chapter 21:05] which reads in relevant part:

“275 Registration of transfer of mining locations and transfer duty payable

1. When any registered mining location or any interest therein is sold or otherwise alienated in any manner whatsoever, the seller or person who so alienates shall notify the mining commissioner of the transaction within sixty days of the date of such transaction, and shall inform him of the name of the person to whom such location or interest is sold or otherwise alienated and of the amount of the valuable consideration, if any, agreed upon and the date of the transaction.

2. When any registered mining location, or any interest therein, has been sold or otherwise alienated, whether before or after the first November, 1961, in any manner whatsoever, for valuable consideration, transfer duty at the rate fixed by Parliament shall be paid by the purchaser, which terms shall include any person becoming entitled to such location or interest therein by way of sale, exchange or other like transaction;

1….,.

2….,.

3….,.

4. Subject to this Act, any person entitled to be registered as the holder of a registered mining location, or any interest therein, shall make application to the mining commissioner for the transfer of such location or interest, and every such application shall be in writing and signed by or on behalf of the applicant, and shall be accompanied by the following particulars -

(a) The last issued certificate of registration or of special registration of the location or the holder's copy of the mining lease, as the case may be;

(b) Certificates by the transferor and transferee in the prescribed form;

(c) A duplicate original grosse or notarially certified copy of any and every existing written agreement affecting or bearing upon the sale, alienation, exchange or transfer;

(d) In the event of there being no such existing written agreement, certificates by the transferor and transferee to that effect;

(e) The original or notarially certified copy of any power of attorney which may be required to authorize an agent to act on behalf of any party to the transfer; if the original power is lodged with the mining commissioner and the applicant does not wish the mining commissioner to retain it, he shall furnish with it a copy which the mining commissioner shall compare with the original, certify to be a true copy and retain;

(f) If such application is in respect of the transfer of any mining location registered for precious stones or any interest therein, a certificate from the secretary that the Minister has granted the permission required under section two hundred and eighty two in respect of such transfer.

5. The mining commissioner shall, on receipt of such application and other documents, and of the transfer duty or, if no such duty is or may in the future be payable or the whole of such duty has been remitted under subsection (9) of the prescribed fee, and if he is satisfied that the other provisions of this Act have been complied with, register transfer by making the necessary entries in his registers and other records: Provided that -

(i) No transfer, as aforesaid, shall be valid unless it has been registered by the mining commissioner, and no such registration shall be made -

(a) Where such location is liable for forfeiture or under attachment;

(b) Until dues, fees, royalties, rents or other moneys due and payable to the mining commissioner under this Act in respect of the property to be transferred have been paid;

(c)…,.

(d) Where the transferee is not a permanent resident of Zimbabwe, unless the mining commissioner, after consultation with the Reserve Bank of Zimbabwe, is satisfied that all requirements imposed by or under the Exchange Control Act [Chapter 22:05] have been complied with;

(i)…,.

(ii)…,.

(8) The mining commissioner shall also, on receipt of the prescribed fee, issue to the transferee a certificate in the form prescribed and such certificate shall record the interest of the transferor, whether whole or otherwise, in such block.”

The judgment creditor's alternative argument was this:

Should I find that there was a sale then I should pierce the corporate veil on two grounds:

(i) Gurta AG, Amble Mining (Pvt) Ltd, and Maranatha Ferrochrome (Pvt) Ltd were companies in the same Group. The first two were subsidiaries of the third. Therefore, the sale was between subsidiary companies.

(ii) Secondly, there was fraud involved because the sale and transfer of the mining claim were designed to defeat the judgment creditors' entitlement to attach the mining claim by taking it out of the judgment debtor's hands.

I am satisfied that the claimant established, prima facie, that the mining claim belongs to it. The precise legal position is that the holder of a mining claim has the right to work such claim to the exclusion of everyone else.

The totality of the documentary evidence tendered by the claimant satisfies me in this regard.

It is true that the date stamp on the copy of the certificate of registration on record is not legible to the extent that the day and month of registration of the transfer is not visible. But the year of registration of that transfer is reflected on the document as being 2009. The two letters from the Ministry of Mines and Mining Development, dated 5 July 2018, clearly state the date of registration of the transfer as 26 October 2009. So, the letters cure the deficiency appearing on the copy of the certificate in question.

What I have is a copy of the certificate, not the original.

The transfer number for the certificate in question is given in the letter which was addressed to Citizens Legal Society and Advisory Trust. It is TR 6627. That is the transfer number appearing on the copy of the Certificate of Registration after transfer tendered by the claimant. When issuing a duplicate original Certificate of Registration to a holder, the office of the Mining Commissioner obviously retains the original on file.

The Certificate of Registration is documentary evidence issued and signed by the Mining Commissioner in Harare. The letters of 5 July 2018 are pieces of documentary evidence authored by the Acting Provincial Mining Director, Mashonaland West in Chinhoyi. All three documents confirm that the claimant is the registered holder of the claim in question since 2009.

No contrary evidence was led by the judgment creditors to demonstrate that the certificate of registration was cancelled by the Mining Commissioner for whatever reason or disowned by him as being inauthentic or that the letters of 5 July 2018 contain falsehoods.

This court is not the Mining Commissioner. This court does not issue certificates of registration of mining claims. The person who must be satisfied that section 275 of the of the Mines and Minerals Act has been complied with is the Mining Commissioner. It is him, and not myself, who is under obligation to receive, peruse, and be satisfied with the documentation required before he issues a certificate of registration.

No evidence was placed before me, by the judgment creditor, to demonstrate that the certificate of registration in question was issued outside the statutory requirements.

The judgment creditor's criticism of the Board resolution to sell the mining claim to the claimant, the invoice, and the lease agreement, cannot be evidence tendered by the judgment creditor disproving the authenticity of the sale and transfer.

The courts have accepted that business persons often record their dealings in terms which perfectly make sense to them but are often wanting in clarity to the legal mind. One must therefore read commercial documents sensibly. A mere reading of a commercial document, standing alone, may not make much sense because the context of its making may not appear within the four (4) corners of the document.

This is how I have looked at the invoice, the lease agreement, and the Board resolution.

For example, the lease agreement entered into on 9 September 2015, at Ngezi Mining Area, with the tenant, Joseph Wirima, is recorded as:

“A Settlement Agreement was negotiated between Upthrow Trading (Pvt) Ltd, Maranatha Ferro Chrome (Pvt) Ltd, Amble Mining (Pvt) Ltd, Gurta AG, Glossy Investment (Pvt) Ltd and Honourable Paul Mangwana and signed in Italy on 3 October 2013. In terms of this Settlement Agreement, following the completion of the handover of the mining claims, Maranatha Ferro Chrome (Pvt) Ltd, representing Gurta AG who are the legitimate owners of the mining claims in Ngezi, do hereby offer the Lease Agreement/Arrangement for the property known as: WHITE HOUSE ROOM 3…,.”

The judgment creditor led no evidence from Joseph Wirima (the tenant), C Mutema (the witness to the lease agreement), Upthrow Trading (Pvt) Ltd, Glossy Investments (Pvt) Ltd and Honourable Paul Mangwana.

In respect of Joseph Wirima and C Mutema, there was no evidence that the lease agreement between the former and the claimant, represented by Maranatha Ferro Chrome (Pvt) Ltd, was inauthentic and not entered into on 9 September 2015 but after the attachment of the mining claim on 27 June 2018 - almost 3 years later.

Similarly, the judgment creditor adduced no evidence from Upthrow Trading (Pvt) Ltd, Glossy Investments (Pvt) Ltd and Honourable Paul Mangwana on the nature of the Settlement Agreement between these companies, Paul Mangwana, the judgment debtor, and the claimant.

(1) Smit Investments Holdings SA (Proprietary) Limited (2) Genet Mining (Proprietary) Limited v (1) The Sheriff of Zimbabwe (2) Pungwe Mining (Private) Limited SC33-18, Sheriff of Zimbabwe v Senital (Pvt) Ltd t/a Frank B Mine and Zimbabwe United Passenger Company Ltd HB233-18, and The Deputy Sheriff Marondera v Hombarume and 7 Ors HH521-18 are clear that where the claimant has made out a prima facie case that it is the owner of the attached goods the onus shifts to the judgment creditor to controvert such evidence.

Evidence can only be controverted by other evidence, not through heads of argument or oral submissions - the sole purpose of which is to endeavour to punch holes into a case which is already prima facie established.

The sale and transfer of the mining claim occurred in 2009.

This arbitral award was not yet in existence. Accordingly, there was no basis for the judgment creditor's assertions of fraudulent conduct and collusion between the claimant, the judgment debtor, and Maranatha Ferro Chrome (Pvt) Ltd.

There was no execution to defeat at the time of sale and transfer of the mining claims.

It was not even disclosed by the judgment creditor when it is that litigation in their labour case with the judgment debtor was instituted: see S v Stead 1991 (2) ZLR 54 (S); Mkombachoto v Commercial Bank of Zimbabwe Ltd and Another 2002 (1) ZLR 21 (H).

Still, on lifting the corporate petticoat of Gurta and peering behind it, I see no other exceptional circumstance justifying the same.

The judgment creditor told me, both in heads of argument and at the hearing, that, Maranatha Ferro Chrome (Pvt) Ltd, the judgment debtor, and the claimant are a single economic entity. I was therefore invited to go behind the claimant's skirt, disregard the three companies' separate corporate personalities and order execution of the mining claim, even though registered in the claimant's name, to satisfy the judgment debt owed by Amble Mining (Pvt) Ltd.

Counsel for the judgment creditor referred me to Deputy Sheriff Harare v Trinpac Investments (Pvt) Ltd and Anor HH121-11.

That case is distinguishable.

Here, there is no evidence at all as to who the shareholders of the claimant are. There is completely no evidence to prove that they are the same persons as the shareholders of the judgment debtor and its holding company, Maranatha Ferro Chrome (Pvt) Ltd. Neither is there any evidence that the directorship of the claimant is the same as that of the other two companies.

The bare allegation that the claimant is a 'baby' of the “Ghezzi family” was not substantiated. I therefore refuse to interfere with the claimant's corporate regalia: see Sibanda v JLF (Pvt) Ltd & Anor SC117-04.

In The Sheriff for Zimbabwe v Mahachi and Leomarch Engineering HMA34-18, MAFUSIRE J stated that there are no hard and fast rules on how a claimant goes about proving ownership of attached goods.

I fully subscribe to that view.

Examples abound, both at law and in life experiences. It is not every case where ownership is proved through production of receipts and agreements of sale. Also, in encouraging pupils to think outside the box, teachers would sometimes say, even after John had answered a question:

“Yes, there are many ways of killing a cat, Mary what is the answer?”

The route does not always matter. What is important is a safe journey.

For example, it is a fact notorious for judicial notice to be taken of that people in most African countries would, if travelling by air, have to board a plane to London or Paris first before connecting to a flight back to their African destinations. That does not make London or Paris the destination.

Olivia Charamba and The Fishers of Men realised this when they sang:

“Kana uchienda
Uchienda
Kwaunoda
Kwaunoda
Kune nzira
Kune nzira
Dzakawanda
Dzakawanda
…,..
Nzira dzekuenda kuGweru:
Kune Kadoma;
Chivhumudhara;
…,.”

These Shona lyrics simply mean that a traveller has a choice on the route to take to a destination. The gospel musician and her band then gave the example of the availability of two options when travelling to the Midlands Province city of Gweru: either through the Mashonaland West town of Kadoma or through the Mashonaland East town of Chivhu (also called “Chivhumudhara” or “The Republic of Enkeldorn”).

The judgment creditors were rigid.

They were of the view that ownership could only be proven by the claimant producing the documentation listed in section 275 of the Mines and Minerals Act [Chapter 21:05]. That was too narrow a view of the matter.

They appear not to have been alive to the law relating to shifting of the onus as laid down by the Supreme Court and applied in numerous decisions of this court. The result is that they did not realize that they had no defence to the claim right from the word go.

Full instructions appear not to have been taken and exhaustive legal research seems not to have been conducted by their legal practitioners.

On perusal of the claimant's initial affidavit and annexures laying claim to the property, the legal practitioners should have gone to the office of the Mining Commissioner in Harare to peruse the Ministry of Mines and Mining Development's file relating to the claim in question rather than being content in seeing permanent and unshifting onus on the shoulders of a party who did not bear the same.

The legal practitioners should thereafter have fully researched on the law relating to interpleader matters.

The law on interpleader claims is simple and readily available both in the textbooks and decided cases of the Supreme Court and this court. In the course of this judgment, I referred to some of those decisions. I also referred to the words of wisdom from two legal practitioners: the first an academic and the other one of the finest court lawyers that this nation has produced.

My view is that the two sets of legal practitioners who represented the judgment creditor in this matter, at different stages, should clearly have done better.

The claim should never have been opposed. At the very least, the judgment creditor's legal practitioners should have gathered sufficient facts and evidence, both oral and documentary, for purposes of properly advising their clients.

I add that considering that the judgment creditors were a staggering 99 persons, the importance of the matter, its effect on them, and the monetary value of the arbitral award, a thorough job needed to be done to advance their interests rather than exposing them to further unwarranted financial prejudice in the form of legal fees and costs. If properly advised, the judgment creditors may not have opposed this claim.

It is for these reasons that I exercise my discretion on costs. I do not order punitive costs. The fault in defending the claim, as I have found, lies elsewhere.

In the result, the following order shall issue:

1. The claimant's claim to all the immovable property which was placed under attachment in execution of judgment in HC5852/17 be and is hereby granted.

2. All the mining claims attached in terms of the letter written to the Provincial Mining Director, Mashonaland West, dated 26 June 2018, are declared not executable.

3. The judgment creditors shall jointly and severally, the one paying the others to be absolved, pay the claimant and the applicant's costs of suit.

In this application, the applicant attached in execution certain movable goods listed in annexure B to the application. The goods were attached for execution to satisfy a judgment of this court in the case Tian Ze Tobacco Company (Pvt) Ltd v Lawrence Katsiru Case No. HC2100/14.

The two parties are the judgment creditor and debtor respectively.

In terms thereof, the judgment creditor caused the issue of a writ of execution to recover an amount in excess of $224,003=16 and execution costs. The applicant, in executing on the writ, proceeded to the judgment debtor's farm called Cambridge Farm in Marondera and attached a number of vehicles and machinery on 24 June 2014.

Following the attachment, the applicant received claims to the property by the claimants.

This development culminated in the applicant filing this interpleader application on 4 August 2014. The applicant wishes that the court determines the validity of the claims made; his interest being the recovery of his costs.

The applicant's legal practitioner had no submissions other than to abide by his papers whilst emphasizing that he does not collude with any of the claimants.

Inter pleader proceedings are very common in that following an attachment of property to satisfy a judgment of the court, the Sheriff, or his deputy, receives claims from third parties alleging ownership of attached property and seeking its removal from attachment arguing that they are not party to the proceedings.

In the fluid, lucid and didactic judgment in The Sheriff of the High Court v Munyaradzi Tutini Majoni & 3 Ors HH689-15 MAFUSIRE J explained what inter-pleader proceedings entail, the incidence of proof, and the court's approach.

I embrace what the learned judge indicated therein and note in particular that the claimant bears the onus to prove ownership of the goods which the claimant claims.

I would add that the onus is not limited to proving ownership as such. The position should be stated as that the claimant bears the onus to prove, on a balance of probabilities, that, the attached goods whose removal from execution is sought are not legally susceptible to execution. This could be by reason of ownership by the claimant or such other good and legally recognizable reason why the attached goods should not be executed upon.

In casu, I will briefly detail the individual claimant's claims and the facts advanced to support the exclusion and release from attachment of property as claimed:

She states, in her affidavit, that, she is the wife of the claimant who is the owner of a motor vehicle, registration AAR 5608, a Honda Accord, attached by the applicant on 24 June 2014. She claims to be the daughter of the judgment debtor and that she left the vehicle at her father's farm for safekeeping as she resides at Little Zim Farm. She attached the vehicle registration book “as proof of ownership of the vehicle.” She claimed to have purchased the vehicle from Japan in 2005.

The judgment creditor opposes the claim on several grounds:

It raises the issue of the claimant's locus standi in that none of her property was attached and that she cannot file a claim on behalf of another.

I note that the vehicle registration book is in the name of Tichaona Hombarume. The claimant states that the registered owner is her husband. There has been no proof of such relationship presented to court and worse still there is no reason given as to why the registered owner did not personally lay claim to the vehicle.

Whilst the claimant purports to have purchased the vehicle from Japan, no documents or other proof of purchase have been placed before the court. Such documentation or acceptable proof of purchase would have constituted the best evidence of ownership because a vehicle registration does not constitute proof of legal ownership. The registration book itself is endorsed that the registration book is not proof of legal ownership.

The claimant did not state as to why it was necessary to have the vehicle kept at the judgment debtor's farm other than to state that it was for safe keeping in her absence. She did not state when she was absent, from where, and where she was.

This claimant's claim is made up of bald allegations which do not amount to acceptable proof of ownership nor do they provide other legally cognizable reason to justify the release of the vehicle from attachment.

The claim must fail....,.

In this consolidated action, each plaintiff claims payment of salary arrears and allowances from the defendant.

On 22 January 2013, KUDYA J, who dealt with the pre-trial conference relating to the parties herein issued the following order:

“IT ORDERED THAT:

1. The parties have failed to reach a settlement.

2. The present matter, HC315/12, be and is hereby consolidated with the case of Sameer Khan v Air Zimbabwe Holdings (Pvt) Ltd HC316/12 and the Matter of Gerald Chiweshe v Air Zimbabwe Holdings (Pvt) Ltd HC1786/12 for trial.

3. The present matter is referred to trial on the basis of the Joint Pre-Trial Conference Memorandum dated 4 June 2012.”

The Joint PreTrial Conference Minute signed by the parties in HC316/12 on 4 June 2012 was endorsed by HUNGWE J on 24 October 2012. It was, however, formally filed on 5 June 2012. There is therefore no doubt that the memorandum referred to in KUDYA J's order is the one filed on 5 June 2012. The said memorandum lists the issued for determination in this trial as follows:

“1.1 Whether or not this Honourable Court has jurisdiction to deal with the plaintiff's claims.

1.2 Whether or not the plaintiff is collectively bound by the arbitration award which was issued in November 2011.

1.3 Whether or not any rights accrue in favour of the plaintiff in terms of his contract of employment.

1.4 Whether or not the schedule of the alleged sums due is an authentic document reflecting defendant's indebtedness to the plaintiff.

1.5 Whether or not the failure to settle the plaintiff's salaries by the defendant is attributed to supervening impossibility.

1.6 Whether the sum claimed or any sum is due to plaintiff by defendant.”

The record shows that the award referred to in 1.2 above was actually issued on 5 October 2011. The effect of consolidation is that the above issues are the ones to be determined with respect to each of the three plaintiffs in this matter.

The determination herein shall follow the manner in which the parties' legal practitioners have put forward their arguments with respect to each plaintiff. Upon dealing with the preliminary issues, counsel for the parties then proceeded to argue the case of each plaintiff in the following order:

(a) Gerald Chiweshe - 1st Plaintiff.

(b) Sameer Khan - 2nd Plaintiff.

(c) Bruce Thomas - 3rd Plaintiff.

I shall therefore be guided by the same arrangement when dealing with each plaintiff.

The common factor in this case is that each one of the plaintiffs was at one time employed by the defendant as a pilot, with the highest rank, where applicable, being that of captain. The plaintiffs, prior, to leaving the employ of the defendant, were each owed outstanding salaries and allowances. They then, on the different dates indicated against their names here-below, issued summons for the amounts also indicated against their names:

I shall now proceed to deal with the preliminary issues raised by the defendant.

(i) The first issue raised is that this court has no jurisdiction on the ground that the plaintiffs' issues are labour disputes which should be handled by the Labour Court.

Notwithstanding the fact that the first and second plaintiffs filed summons when they were still employees of the defendant, it is accepted that they are now ex-employees. The plaintiffs are now claiming outstanding salaries from a former employer. Outside the employment arena, which is generally governed by the Labour Act [Chapter 28:01] (“the Act”), this becomes a purely debt collection matter.

In that situation, depending on the amount to be collected, the plaintiffs are free to approach either the High Court or the Magistrates Court.

I therefore believe the plaintiffs in casu are already in the right forum.

Although specifically dealing with the definition of 'employer', in the case of S v Stead 1991 (2) ZLR 54 (SC), the Supreme Court, in my view, also defined the word 'employee'. The Supreme Court, in that case, stated:

“The word 'employer' is defined in section 2 of the Labour Relations Act 1985 to mean:

'…, any person who employs or provides work for another person and remunerates him and includes the manager, agent, or representative of such person who is in charge or control of the work upon which such other person is employed.'

It is apparent that this definition presupposes the existence of employment. It is aimed at a person, (whether an individual, a company, an association, or the like), for whom employees work and who pays their wages or salaries.”

The above definition is in line with the current definitions of “employee” and “employer” in the Labour Act. Under section 2, the definitions are given as follows:

“'Employee' means any person who performs work or services for another person for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in this Act, and includes a person performing work or services for another person -

(a)…,.

(b)…,.

'employer' means any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and includes -

(a)…, control of the work upon which such other person is employed; and

(b)…,.

(c)…,.

(i)…,.

(ii)…,.

(d)…,.”

The above definitions, in my view, relate to an existing employee-employer relationship.

The plaintiffs in casu are no longer performing work or services for the defendant for which they continue to be rewarded. They are claiming payment for services they rendered before terminating their contracts, and, to strengthen their cases, they have provided schedules from the defendant where the existence of arrear salaries and allowances is acknowledged.

The position of the plaintiffs is further fortified by the dicta in Eagle Training (Pvt) Ltd and Anor v Employees of Eagle Training (Pvt) Ltd and Anor SC238-91, where it was said:

“The reality of the matter is that the thirty-three employees had a civil claim for the remaining 75% of their bonus against either Eagle or Belmont Heather or against both in the alternative. They should have made that claim in a civil court.”…,.

The plaintiffs have civil claims and they have, in my view, correctly approached the civil division of the High Court for a remedy.

It should also be noted that both the Constitution of the Republic of Zimbabwe and the High Court Act [Chapter 7:06] clothe this Court with civil jurisdiction over the disputes that have been brought before it by the plaintiffs. This is so because section 171(1)(a) of the Constitution states:

“The High Court – has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”…,.; and

Section 13 of the High Court Act also provides as follows:

“Subject to this Act, and any other law, the High Court shall have full original civil jurisdiction over all persons and over all matters within Zimbabwe.”…,.

The Labour Act, which, in casu, is “any other law”, does not, as it stands, expressly oust the jurisdiction that the law cited above confers upon the High Court.

This means the plaintiffs have a legal right to approach this court - even whilst still employed.

Accordingly, the first preliminary issue on jurisdiction cannot be upheld....,.

I shall now turn to the merits of the claims as they relate to each plaintiff.

As already indicated, consolidation of the matters was due to the fact that the issues affecting the plaintiffs are similar. This means that, in general, findings made on one plaintiff apply to the other two plaintiffs.

Gerald Chiweshe (Chiweshe) gave evidence on his own behalf. He said he was claiming US$56,511=76 (i.e as amended). This claim was in respect of unpaid salaries and allowances due to him for the period February 2009 to July 2012.

Gerald Chiweshe said he was first employed by the defendant, as a pilot, from 2003 to 2010 when he resigned to relocate in Canada. He said he had resigned due to the failure by the defendant to regularly pay him his salary, Chiweshe said he had later returned to the employ of the defendant from the end of 2010 up to 31 March 2012. He said his monthly salary, as at 1 June 2011, was US$4,002=76 and that the salary was still the same when he left on 31 March 2012.

He said he was never a member of the Zimbabwe Flight Crew Association (the Association) and had never paid any subscriptions to it, and, therefore, the arbitral award had nothing to do with his case.

In support of his evidence, Gerald Chiweshe tendered documents (exhibit 1) showing his employment history and the arrear salaries and allowances he was claiming. He said he had been given the schedule showing the total of his outstanding salaries and allowances by the defendant's accounts department.

Sameer Khan (Khan) said he was employed as a pilot in the rank of Captain. He was claiming his unpaid salaries and allowances for the period February 2009 to July 2012. His claim was for a total sum of US$123,473 (as amended).

He said his salary arrears and allowances were confirmed in a schedule bearing the defendant's official stamp. He produced the schedule as exhibit 2. He also supported his record of employment by producing exhibit 2A i.e employment contract, letter of resignation, and letter from the defendant accepting his resignation.

He said his salary, as at 1 January 2012, was US$7,058 per month and US$7,804 per month as at 31 July 2012 when he left the employ of the defendant.

He admitted that he was a member of the Zimbabwe Flight Crew Association (the Association) but was not personally named in the dispute between that association and the defendant i.e the dispute that was referred to arbitration. He said the arbitral award had no bearing on his claim.

Bruce William Thomas (Thomas) testified that he was employed by the defendant as a commercial pilot. To that end he tendered exhibits 3 and 3A. He said his claim of US$39,779 relates to the period 1 February 2009 to 28 February 2010.

He had obtained schedules from the defendant's accounts department showing the total arrears of his salary and allowances. He, however, said the amount in the schedule was not correct because:

(a) It did not take into account an amount of US$830 which the defendant had already paid him; and

(b) The schedule incorrectly reflected that he had received an amount of US$2,000 as an advance payment; and

(c) A sum of US$22,000 had been paid to him but would not reduce his current claim due to when it was paid. He said a reconciliation of the figures therefore showed that the defendant still owed him US$39,779. He said his monthly salary, as at February 2010, was US$7,239.

Bruce William Thomas said he was never a member of the Zimbabwe Flight Crew Association (the Association), and, to that end, he had never paid any subscriptions and had never mandated the Association to represent him in his employment affairs. His claim therefore had nothing to do with the arbitral award.

The defendant called two witnesses, namely, Mrs Madziwana Nhira (Nhira), the Salaries Administrator and Mrs Pamela Mutsinze (Mutsinze), the defendant's Acting Manager–Human Resources.

In the main, the evidence of both witnesses was to give effect to the already rejected issue of res judicata and to deny the authenticity of the schedules relied upon by all plaintiffs.

I formed the impression that these innocent ladies were brought in at the last minute to reverse what the former Manager-Corporate Human Resources, a Mr O. Madziwa (Madziwa) had actually authorised.

They both confirmed Mr O. Madziwa's status, and even agreed that he had the capacity to call for salary schedules from the Accounts Department. Obviously, he dealt with the schedules as he deemed fit in his capacity as Manager-Corporate Human Resources.

To that end, it would be improper to allow the mentioned fall-out between Mr O. Madziwa and the defendant to influence the outcome of this case. He had official authority to act for the defendant.

In the case of all the plaintiffs, Mrs Madziwana Nhira's evidence was that she is the one who issues salary schedules but they have to be signed by the Human Resources Manager, the General Manager Finance, and the recipient. She said the stamping of schedules, without the three signatures, did not make them official.

She also went on to say that she had, in April 2011, issued signed salary schedules to all the three plaintiffs. She said the plaintiffs were also given monthly pay slips.

Unfortunately, the signed schedules and pay slips were not placed before the court.

As to the first plaintiff's claim, Mrs Madziwana Nhira said the defendant owed him around US$3,000. She agreed, though, that the schedule attached to Mr O. Madziwa's letter of 29 December 2011 came from her and also that the other schedules produced by the second and third plaintiffs were similar to the one she prepared for Madziwa.

In his letter to Gerald Chiweshe's legal practitioners, Messrs Kantor and Immerman, dated 29 December 2011, Mr O. Madziwa wrote:

“This is to certify that First Officer Gerald Chiweshe is employed by Air Zimbabwe Holdings (Private) Limited, as a Pilot in the Passenger & Cargo Division. His staff number is 27286. We write to confirm that due to financial challenges, the Airline has not been able to pay salaries as and when they fall due. As a result, salaries for the month of July to December 2011 have not been paid. Hence, his deferred salaries is USD28,493 as per the attached schedule. At this point in time, we are hesitant to indicate by which date we would have paid the outstanding salaries. Your patience and cooperation with him is greatly appreciated as he is an honest and hardworking Pilot.

Yours sincerely

For and on behalf of AIR ZIMBABWE HOLDINGS (PVT) LIMITED
O. Madziwa MANAGER – HUMAN RESOURCES”

It is important to note that the schedule attached to the above letter was prepared after 5 October 2011 i.e the date of the arbitral award.

As already indicated, similar schedules were attached to the claims filed by the second and third plaintiffs.

It was not denied that schedules contained information relating to the period before and after the arbitral award. That shows that the arbitral award had no impact on the plaintiffs' claims.

Notwithstanding the fact that the Human Resources Manager, O. Madziwa, in his signed letter to Gerald Chiweshe's legal practitioners, attached a schedule confirming the outstanding salary arrears, Mrs Madziwana Nhira urged the court to reject the schedule because it was not signed by three people.

However, as already stated, she was not able to place before the court either copies of the signed schedules that she gave to the plaintiffs or pay slips.

I do not believe, that, the defendant, given its standing in society, would take the issue of record keeping lightly as demonstrated by its failure to avail the court with what it claimed were authentic records in its custody. In view of the problems regarding non-payment of salaries and allowances the need for such records was paramount.

Under cross examination, she admitted that she at times issued unsigned schedules. She, however, tried to put a rider by saying she only gave the unsigned schedules to Management. She did not disclose how many schedules, in addition to the one she gave to O. Madziwa, she also dished out to other members of management who might have needed them.

Mrs Madziwana Nhira said she was not able to dispute Gerald Chiweshe's salary of US$4,002=67 as at the time of his departure from the employ of the defendant. She also agreed that everything relating to the plaintiffs would have been placed on record including pay slips.

I also did not hear her challenge the monthly salaries of the other plaintiffs (i.e Sameer Khan US$7,804 per month and Bruce William Thomas US$7,239 per month).

Sadly, at the end of the day, what we have in casu is a situation where the defendant accepts that the plaintiffs' are owed arrear salaries and allowances but simply refuses to pay or declare what those salaries and allowances are. This is despite the fact that the defendant is the custodian of the requisite records.

Given that situation, the court can only rely on the schedules produced by the plaintiffs.

Those schedules, it is my finding, emanated from officers of the defendant. The defendant did not produce counter schedules which it claimed to have given to the plaintiffs (i.e in the form of reconciled schedules and payslips).

Accordingly, in the absence of any such pay slips or reconciled schedules from the defendant, it is difficult to reject the plaintiffs' evidence.

It was not denied that the plaintiffs rendered services to the defendant as particularised in their claims. The defendant has a legal obligation to pay for their services.

There was also no evidence of any supervening impossibility which could have led to the defendant's failure to pay the plaintiffs their salaries and allowances.

The plaintiffs have, therefore, on a balance of probabilities, proved their claims. I therefore order as follows:

1. The defendant be and is hereby ordered to pay the first plaintiff (Gerald Chiweshe) the sum of US$56,511=76 (Fifty six thousand Five hundred and Eleven United States Dollars and Seventy Six Cents) with interest at the prescribed rate from 1 March 2009 to date of payment in full;

2. The defendant be and is hereby ordered to pay the second plaintiff (Sameer Khan) the sum of US$123,473 (One Hundred and Twenty Three Thousand Four Hundred and Seventy Three United States Dollars) with interest at the prescribed rate from 1 March 2009 to date of payment in full;

3. The defendant be and is hereby ordered to pay the third plaintiff (Bruce Thomas) the sum of US$39,779 (Thirty Nine Thousand Seven Hundred and Seventy Nine United States Dollars) with interest at the prescribed rate from 1 March 2009 to the date of payment in full; and

4. The defendant be and is hereby ordered to pay the total costs of suit incurred by all the plaintiffs.

This is an interpleader application.

On 5 September 2014, the following consent order was granted in favour of the judgement creditor;

“IT IS ORDERED BY CONSENT THAT:

1. The defendants shall pay US$60,000 being 10% commission on an investment of U$600,000 brokered by the plaintiff.

2. The US$60,000 shall be paid through plaintiff's legal practitioners on or before 30 September 2014.

3. The balance of plaintiff's claim shall be referred to trial in terms of the joint pre-trial conference minute signed by the parties' legal representatives.

4. There be no order as to costs.”

On the basis of the above court order, and on the instructions of the judgment creditor, on 6 November 2014, the Sheriff of Zimbabwe attached various goods allegedly belonging to the judgement debtors who have not been cited in casu. The judgment debtors, in the consent order, were Zhuwakinyu Chazarira (first defendant) and Xingrong Hu (second defendant).

On 19 November 2014 the claimant herein advised the applicant that the attached goods belonged to it. That led to the applicant filing this inter pleader application on 5 December 2014.

The attached goods included mining equipment, vehicles, and office equipment.

As already stated, the claimant alleges that the attached goods belong to it and that it has no relationship with the judgment debtors. It states that the assets were imported into Zimbabwe following the grant to it of an investment licence by the authorities in Zimbabwe. It says the equipment was meant for its mining operations in Zimbabwe and it had legally imported it into the country as evidenced by documentation from the Zimbabwe Revenue Authority (ZIMRA).

The claimant went on to argue that, although the judgement debtors might have had an interest in the claim, the court should recognise the fact that it is a separate legal entity whose property did not belong to them (judgement debtors).

On its party, the applicant, who has no interest in the matter, stated that it would abide by the court's decision....,.

I fully agree that the property of the company should be distinguished from that of its shareholders. That is exactly what the law says.

However, the judgement creditor has, in my view, correctly argued that the claimant has failed to place before the court proof that the attached assets indeed belong to it. The assets can only be removed from attachment upon ample proof of ownership by the claimant.

There is no such proof in casu.

It is true that some assets may have been a listed on the ZIMRA receipts. That alone, however, does not tell us that the judgment debtors, whose interests on the claimant were not denied, could not have imported some of the assets through “their” company. It is not only the claimant who could import the listed items.

In any case, why would the claimant fail to produce such evidence as clear receipts and registration books for the attached vehicle(s).

It would be inappropriate for this court to allow judgment debtors to hide behind the corporate veil in order to avoid payment of personal proven and accepted debts.

The claim in casu becomes even more dismissable when the judgment creditor states;

“(ii) Immediately after the attachment of defendant's property, and on 11 November 2014, one Anqi Hu, a Director of Rongxin Company (Private) Limited, approached me and made an undertaking to repay the debt on terms. I attach as Annexure 'B' hereto her payment proposal on behalf of defendants which I then accepted. I confirm that I received the initial payment of US$8,000. Again, this proposal was not made in good faith as it made with a view to buying more time for defendants while they finds ways of defeating my claim. The present application is nothing but a way of trying to defeat my claim.

(iii) I am aware that defendants own 65% shares of Rongxin Mining Company (Private) Limited. I attach as Annexure 'C' the company's Investment License No.1870 dated 26 June 2013. The Defendants are, therefore, direct owners of the attached goods to the extent of their shareholding, which goods may well be individually owned.

3.3. The mention of Rongxin Mining Company (Private) Limited is designed to mask defendants' ownership of the goods attached.”

It is worth noting, that, it is actually the deponent to the claimant's affidavit who, on 11 November 2014, signed the following document:

“11 November 2014

I, Anqi Hu, on behalf of Zhuwankinyu Chazarira, to pay USD60,000 which is 10% of the sum of $600,000 in following terms:

When the above note was written, the assets being claimed had already been attached.

Surely, by that time, Mr Anqi Hu, a Director of the claimant, must have known that wrong assets had been attached. He did not say so but went on to propose settlement terms and even made a payment of $8,000.

A week later his colleague, Mr Xingron Hu, made this claim to the applicant.

Like his colleague, Mr Anqi Hu also knew what had been imported under the investment licence. However, as at 11 November 2014, Mr Anqi Hu pretended not to know and only came up with a different position on 28 January 2015 when he swore to the affidavit herein in support of the claimant's claim.

The papers before me do not even challenge the place of execution.

This is so because that is where the judgement debtors operated from.

That also reinforces the principle that possession of a movable asset raises a presumption of ownership.

The assets were attached at the premises used by the judgment debtors. The assets, in my finding, belonged to the judgement debtors: see Bruce NO v Josiah Parkes & Sons (Rhodesia) (Pvt) Ltd and Another 1972 (1) SA 68 (R).

In view of the foregoing, I am not satisfied that the claimant has a valid claim to the attached assets.

The claimant's claim is dismissed with costs.

There is also another reason, from the peculiar facts of this case, why the plaintiff's first ground for resisting arbitration could not succeed.

It was common cause between the parties, that, in correspondence, well before issuing out a summons, the plaintiff, firstly, by itself, and, subsequently, through its erstwhile legal practitioners, had given the defendant ultimatums within which to pay the disputed amount failing which it would refer the matter to arbitration.

In its own letter to the defendant, the plaintiff had written, in part, as follows:

“We therefore give you seven [7] days' notice from today's date to effect payment as per attached invoices or allow us to install the said pumps and pump accessories after which we will be forced to refer this case to an arbitrator agreed to by both parties to resolve the stalemate. From this end, we can think [of] none other than the current President of Zimbabwe Institute of Engineers considering that the despite [sic] is centred on engineering interpretations.”

In the letter from the plaintiff's erstwhile legal practitioners, to the defendant, exactly one year later, was the following:

“In that regard, in the event that this amount is not paid within the period aforesaid, this letter serves as notice that this matter will be referred to an adjudicator for settlement. We note, in this respect, that your consulting team [CGM] has also been appointed as adjudicators as well as administrators of the contract. The parties will have to agree on an independent adjudicator.”

At the hearing, counsel for the plaintiff gave no coherent explanation why the plaintiff, having displayed such conscious attention to detail, would subsequently veer from the course of action that it had threatened and come straight to this court.

In the premises, the plaintiff's first ground to resist arbitration is hereby dismissed.

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare which dismissed the appellant's application for joinder as the fourteenth defendant on 16 January 2020 under case number HC3499/14 (the main case).

At the close of submissions by counsel we dismissed the appeal with costs and indicated that our reasons for judgment would be delivered in due course.

I now proffer the reasons for the court order delivered on 20 July 2021.

The substantive dispute between the parties in the main case before the court a quo has to do with succession and ownership of church property between the local church based here in Zimbabwe and a sister church based in the United States of America: that is to say, the first respondent and the appellant respectively.

It is common cause that sometime in 1976 the late Bishop Kenneth Nyamhuka founded and incorporated the first respondent (the church) as a universitas with its own Constitution. The affairs of the church are regulated by the 1979 Constitution filed of record.

As fate would have it, Bishop Nyamhuka fell ill and succumbed to death on 4 April 2014. Following his death, a dispute arose relating to positions of leadership, possession, and ownership of church property amongst the local leadership of the church cited in the main case.

The appellant sought to intervene and be joined to the main case on the basis that the Church is an affiliate of the appellant church which is the mother body based in America.

In its founding affidavit, it claimed that it is responsible for the appointment of the church's leadership and financial support. For that reason, it claimed the right to appoint the church's leaders and to ownership of the disputed property.

On that score, it claimed that it had a direct and substantial interest to wade into the succession battles among the local membership of the church.

The appellant's assertions, to the effect that it is the mother body of the church responsible for the succession process and ownership of the church's property, was strenuously disputed by the respondents. They maintained that the church is independent of the appellant save that they share the same Christian doctrine. To that extent, they asserted that the church has the right to appoint its own leadership and has sole ownership of all its property.

The law on joinder of parties to judicial proceedings was eloquently articulated by MAKARAU J…, in Burdock Investments (Private) Limited v Time Bank Limited & Ors 2003 (2) ZLR 437…, where the learned judge had occasion to remark that:

“Before a party may be joined or may be allowed to intervene in proceedings before the court, he or she must establish a direct and substantial interest in the subject matter of the judgment. The interest must be such that the judgment cannot be carried into effect without adversely affecting the legal position of the party mis-joined and in circumstances where the defence of res judicata will not be raised against that party in future proceedings to protect that interest.”

The crisp issue for determination in this appeal is whether or not the appellant discharged the onus of proving that it has a direct and substantial interest in the subject matter for determination in the main matter.

The respondents produced cogent empirical documentary evidence in the form of annexures C1 and C2. The evidence shows that the appellant has affiliates in 40 African countries under the administration of its General Presbyter, Masilela, but, Zimbabwe is not one of them.

The learned judge a quo's summation, which discredits the appellant's claim, cannot be faulted. It completely discredits the appellants' claim that the church is its affiliate. The learned Judge's sentiments…, bear repetition where he says:

“The Applicant (appellant) offered no explanation for the absence of Zimbabwe from the list of African countries which are, as it were, affiliated to the applicant. Counsel for it stammered at the question which related to Zimbabwe's absence from the list of countries which fall under its administration. He eventually honed (sic) (owned) up and stated that he did not know why Zimbabwe was not one of the countries which fall under the applicant's administration in Africa.”

The learned judge a quo found, that, the appellant lay dormant without asserting its purported rights for five (5) years from May 2014 to June 2019. It only belatedly filed its claim for joinder in aid of the ninth respondent after he filed his plea. The ninth respondent, Joshua Nyamhuka, is the late Bishop Kennedy Nyamhuka's son who was the appellant's acquaintance.

A perusal of the parties' respective pre-trial conference memoranda shows that this is a succession battle being fought amongst the local membership of the church. The appellant is a total stranger with no real and substantial interest in the dispute among Zimbabweans. It has merely sought to dishonestly intervene in the main case to prop up its acquaintance's son.

It is surprising that counsel for the appellant had the temerity to approach this Court, on appeal, in the face of such credible damning evidence against his client. Such “Dutch” courage can only amount to an abuse of court process.

Counsel for the appellant has now asked for the reasons for judgment to pave way for him to approach the Constitutional Court.

It is for the foregoing reasons that we dismissed the appeal with costs.

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:

“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the agreement, whether or not the salaries and benefits stipulated in that agreement were intended to apply to the appellants.”

After considering the parties' submissions, and evidence led, the court a quo dismissed the appellants' claim against the respondent. The court a quo held that the appellants failed to discharge the onus on them of proving that they were covered by the Works Council Agreement upon which their claim of salaries and benefits was founded.

This is an appeal against that judgment.

The appellants are 153 former employees of the respondent who were employed as security guards on fixed-term contracts renewable every three months.

The period of employment ranged from 2007 and 2008 up until January and April 2011 when their contracts expired by effluxion of time and were not renewed.

In July 2010, the respondent, 1,078 of its employees, and its workers' committee approached an arbitrator (Nasho) in a bid to negotiate the regularisation of the employees' contracts in line with the new multi-currency regime and to ascertain the salary arrears due to the respondent's employees.

Arbitrator Nasho ordered the payment of back-pay from 1 March 2009 to the date of the award, in line with the multi-currency system.

In accordance with that award, the parties concluded a Works Council Agreement, on 15 September 2010, which set the back pay due to all employees of the respondent and the salary structure for non-managerial employees from 1 January 2010 onwards. It was agreed that all employees across the board, for the period of 1 March 2009 to 31 December 2009, were to be paid a net salary of $500 per month.

Following this agreement, and in a different matter, the appellants challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

A second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012. On appeal, the arbitral award was upheld by the Labour Court.

On 10 December 2012, following the dismissal of their claim by arbitrator Mugumisi, and as confirmed by the Labour Court, the appellants filed another claim for the payment of arrear salaries and benefits which was dealt with by the third arbitrator (Mambara) who awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimants' contract of employment was terminated.

Dissatisfied by that decision, the respondent applied to the Labour Court for a review of the award. The Labour Court upheld the review on 12 September 2014 and dismissed the appellants' claim.

Irked by that decision, the appellants appealed to this Court which remitted the matter to the court a quo for a comprehensive analysis of whether the appellants were covered by the 2010 Works Council Agreement.

In making that order, the court noted that although both the arbitrator and the Labour Court, in its review proceedings, referred to the minutes and the agreement of September 2010, the relevant portions of the agreement were not reproduced.

Additionally, the court reflected that the Labour Court failed to call evidence from the signatories to the agreement to explain its provisions and clarify its scope of coverage.

It further did not proceed to consider the precise ambit of the agreement and its implications for the appellants' claim before the arbitrator.

As a result, it did not make a finding on this critical aspect of the matter despite noting some causal nexus between the Nasho award and the 2010 Agreement.

The court further reasoned that it appeared common cause that the present appellants were part of the 1,078 claimants who were beneficiaries to the Nasho award and that since the Works Council Agreement was made in September 2010, they would have a justifiable claim to the benefits accruing from that agreement. The court concluded as follows:

“In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu. This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.”

Hence the proceedings in the court a quo which are the subject of this appeal.

The remittal proceedings commenced with the appellants' Statement of Claim, to which the affidavit of Joseph Lungu, the first appellant, was attached.

Mr Lungu averred that the appellants were part of the 1,078 workers in whose favour the arbitral award by Nasho was made. In support of this position, Mr Lungu relied on a list attached to a memorandum which was addressed to one Mr Rwatirera on 5 September 2012.

The respondent's notice of opposition was supported by affidavits from different personnel in the respondent's employ.

The first deponent was Mr Rwatirera, a member of the respondent's Works Council that negotiated the September 2010 Works Council Agreement.

He averred that there was no list of the claimants who appeared before Arbitrator Nasho as none was furnished or attached to those arbitral proceedings. As such, he argued that the list produced by the appellants was tailor-made for the proceedings.

He thus, denied approving or signing the list produced by the appellants.

Mr Rwatirera further indicated that the employees who were covered by the 2010 Agreement were permanent, non-managerial employees and not fixed term contract employees since the latter's terms and conditions were regulated by their individual contracts of employment and were not subject to any Works Council negotiations nor Workers Committee representation.

He also averred, that, it was generally accepted by the respondent, the then Worker's Committee representatives, the general body of the respondent's permanent employees, and most of the fixed-term contract employees, that, fixed term contract employees were not within the scope of the arbitral proceedings before Nasho and the subsequent Agreement of 2010.

He also asked the court to note that the appellants signed fixed term contracts of employment providing for a salary of $250 per month well after the September 2010 Agreement was concluded.

The second deponent, Mr Mugabe, the chairman of the Workers Committee and a member of the Works Council in September 2010, attested that the salaries and benefits of the Work's Council Agreement were intended to apply to permanent employees in Grades 1 to Level 2 and not to fixed-term contract employees.

The third deponent, E Makaha, a former vice-chairman of the Worker's Committee and a member of the Works Council confirmed Mr Mugabe's averments.

The fourth deponent was Mr Mavengano, the former Vice Secretary of the Workers Committee and a member of the Works Council who authored the list dated 12 September 2012.

He disputed the authenticity of the list produced by the appellants.

The fifth and sixth deponents, A. Saburi and T. Hungwe, respectively, who were management representatives in the Works Council Agreement, averred that the Worker's Committee did not, at any time, represent fixed-term contract employees in negotiating their salaries and benefits.

In response, the first appellant disputed the respondent's averments in their totality.

At the hearing, the respondent took a point in limine that the founding affidavit of Mr Lungu, was improperly before the court as he was not a signatory to the Works Council Agreement of 2010 as required by the remittal order.

To the contrary, counsel for the appellants argued, that the order in SC01-17, which remitted the matter to the court a quo, was not restrictive, but left it open for the court to receive any other sworn evidence apart from that of signatories to the Works Council Agreement.

The court a quo upheld the preliminary objection and expunged the affidavit of the first appellant from the record.

Thereafter, two witnesses testified for the appellants.

The first witness, Mr Muronzi, averred that the applicants participated in the proceedings before arbitrator Nasho and contributed $2 towards arbitration costs. However, he stated that he was not a member of the Workers Committee and was not a signatory to the September 2010 Agreement and was cognisant of patent irregularities on the appellants' list.

The second witness, Mr Mushayabasa averred that he was on a specific term contract and was one of the employees who contributed $2 for arbitration costs before Arbitrator Nasho following an address by one Ziki, a member of the then Workers Committee.

The respondent led evidence through Mr Rwatirera, who, apart from reiterating the averments in his founding affidavit, testified that it had always been the respondent's practice that fixed term employees were excluded from the Works Council.

Work's Council members were voted into office by permanent members of staff only.

He also testified that the Workers Committee only represented permanent members of staff.

He further confirmed the fact that the applicants signed further contracts of employment, with a different salary from that of permanent employees, long after the September 2010 Works Council Agreement was concluded.

He reiterated that all the employees on fixed-term contracts were not part of the Nasho proceedings.

The court a quo dealt with the issue of whether or not the appellants had discharged the onus on them of proving that they were included in the September 2010 Works Council Agreement.

The court had regard to the specific provisions of the September 2010 Works Council Agreement, the minutes accompanying that Agreement, and sworn evidence from the signatories to the Agreement.

The relevant clause on which the appellants base their claim provides as follows:

“The Works Council resolved to recommend to the Board that;

(i) A net salary of $500 per month be paid to all employees across the board for the period 01 March 2009 to 31 December 2009. (This is inclusive of transport allowance of $50 per month and rental support of $200 per month).

(ii) A thirteenth cheque should be paid to all employees for the same period.”…,.

Regarding the September 2010 Works Council Agreement, the court a quo found, that, the reference to “all employees” in the agreement was not determinative of whether or not the applicants were entitled to the salaries and benefits stipulated under that agreement. This was because the respondent had several employees ranging from fixed-term, permanent term, to those contracted for casual work or seasonal work.

Accordingly, it posited that the use of the term “all employees” was vague and it was unable to decide which of the meanings applied by both parties was correct.

The court then held that the provisions of the September 2010 Works Council Agreement did not assist the appellants to discharge their onus.

Concerning the minutes accompanying the Agreement, the court a quo found, that, they were no different from the Works Council Resolutions in that there was no indication whether or not the mentioned employees were on fixed term or permanent employment.

Accordingly, it was unable to decide whether the appellants were included in the term 'employees' as it appeared in the minutes. Therefore, the court ruled that the minutes of the Works Council meeting did not assist the appellants to discharge the onus on them.

As regards the sworn evidence from the signatories to the Agreement, the court noted that the two witnesses who testified for the appellants were not signatories to the agreement or members of the Works Council.

It proceeded to disregard their evidence for non-compliance with clause 3.1 of the order for remittal.

The court a quo further found, that, in any event, the evidence before it was that of sworn affidavits of members of the Works Council who were present when the agreement was reached stating that the appellants were not covered by the agreement.

Further, the authenticity of the list of names relied upon by the appellants was put in issue.

After analysing the list tendered by the appellants, the court remarked, that, on a balance of probabilities, the appellants names were interposed on an existing list. It opined that the list on which the appellants names appeared might have been a combination of documents that were prepared for different purposes.

In the result, it held that the document could not be taken as proof of the people who were involved in the arbitration proceedings before Arbitrator Nasho.

The court concluded that the appellants had not been able to discharge the onus of proving that the salaries and benefits stipulated in the September 2010 Works Council Agreement were intended to apply to them.

It then dismissed the appellants' claim with costs.

This decision prompted the appellants to note the present appeal on the following grounds:

“1. The court a quo erred in coming to the conclusion that the founding affidavit of Joseph Lungu was not properly before it and accordingly striking if off and in consigning the viva voce evidence given on behalf of the appellants to the same fate.

2. A fortiori, the court a quo erred in renouncing the essence of the responsibility that had been placed upon its shoulders by the Supreme Court.

3. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not requiring respondent to account for the 1,079 claimants who were before Arbitrator Nasho and in not requiring it to show how it could be said the appellants were not part of those claimants, all the circumstances of the matter (sic).

4. Having found that the agreement on which appellants sued, and the minutes giving birth to it related and made reference to 'all employees', the court a quo erred in coming to the conclusion that such reference was not determinative of the issue and that it still left room for the conclusion that the appellants were not contemplated by the words 'all employees'.

5. The court a quo erred in not coming to the conclusion that though appellants could not lead the evidence of the signatories to the agreement and that for reasons that were beyond them, all the objective evidence which the Supreme Court had related to and directed be taken into account led to the inexorable conclusion that appellants were covered by the agreement.

6. The court a quo erred in not coming to the conclusion that appellants were on the list of employees which formed part of the Supreme Court record and which respondent had dishonestly tried to amend after the fact that there had accordingly never been a dispute as to their inclusion in the agreement.

7. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not concluding that the discrepancies on the numbers of the employees appearing on the lists were explicable on the basis that some of the employees who had made their contributions had not appeared in the Nasho list.”

Counsel for the appellants argued, that, the court a quo misdirected itself in ignoring the fact that the only list that contained the names of the 1,079 employees that were covered by the September 2010 Works Council Agreement was the list provided by the appellants.

He submitted that the failure by the respondent to produce the original list of 1,079 employees, covered by that Agreement that it relied on, but, instead, attaching a list with 237 employees indicated that the only list of employees that could be relied on was that produced by the appellants.

He further submitted, that, since the respondent had not disputed the authenticity of the list of 1,079 employees produced by the appellants in this Court when the matter initially came on appeal, it could not seek to do so during remittal proceedings.

Counsel for the appellants also argued that the phrase “all employees” as used in the resolution of the Works Council Meeting, and the Minutes that followed, was unambiguous and applied to all the respondent's employees without discrimination.

This, he submitted, was supported by the fact, that, during the dollarisation period, all the respondent's employees were getting allowances instead of salaries and the object of the arbitration proceedings, held before Arbitrator Nasho, was to discuss the regularisation of all employees' contracts of employment regardless of whether they were permanent or on fixed term contracts.

As such, he contended that there was no justifiable basis upon which the respondent could exclude the appellants.

Further, that regard being had to section 5 of the Labour Court Act [Chapter 28:01], which provides for the protection of employees against discrimination, there was no justification in distinguishing the salary payable to fixed term employees and permanent term employees in the regularisation process.

Counsel for the appellants also submitted that the court a quo erred in taking a rigid approach in resolving the matter leading it to irregularly striking out part of the appellants' evidence.

He submitted that the fact that the evidence was unnecessary does not mean that the appellants did not have a valid claim.

He also submitted, that, the court a quo should not have found that the list of 1,079 employees produced by the appellants was doctored in the absence of expert evidence to that effect.

He also submitted that the Works Council minutes refer to “all employees”.

There was no application to rectify the minutes and it leads to one conclusion - that they applied to all employees.

He further contended, that, there was uncontroverted evidence that the appellants contributed money towards the costs of the arbitration.

Conversely, counsel for the respondent submitted, that, the court a quo could not be faulted in finding that the appellants had failed to discharge the onus upon them of proving that they were included as beneficiaries in terms of the September 2010 Works Council Agreement.

He contended that the onus was on the appellants to prove that they were covered by the Agreement.

He submitted that the court a quo was correct in restricting itself to the parameters set by this Court when it remitted the matter, hence, part of the appellants' evidence was struck out.

It was also his argument that the court a quo had made a factual finding that the list of employees provided by the appellants had patent irregularities and that such factual finding could not be upset by this Court unless the appellants established that such a finding was grossly unreasonable.

Furthermore, he submitted that the court a quo, having found that the text used in the Works Council Meeting, and the subsequent Minutes, did not help the appellants' case, correctly determined that no evidence had been put before it by the appellants to prove that they were part of the 1,079 employees who appeared before Arbitrator Nasho.

Although the appellants have raised several grounds of appeal, I take the view that the appeal can be determined on the following issue:

In determining this issue, it is necessary to first consider the import of the order in SC01-17 remitting the matter to the court a quo.

That order enjoined the court a quo to determine whether or not the salaries and benefits stipulated in the September 2010 Works Council Agreement of 2010 were intended to apply to the appellants; and, if so, the quantum thereof. Put differently, the court a quo had to determine if the appellants were included in that Agreement.

An examination of the court a quo's ruling reflects that the court a quo did not make this finding.

Having considered the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, as directed by this Court under SC01-17, the court a quo remarked that it was unable to decide whether or not the appellants were included under the agreement.

The court a quo then invoked the principle of onus to the effect that the appellants failed to prove that they were covered by the 2010 agreement.

The court a quo's decision was premised on the inability to resolve the issues in dispute.

I regurgitate the relevant portions of the court a quo's judgment:

“(1) The specific provisions of the Works Council Agreement of September 2010

In our view, the text of the Works Council meeting resolutions of September 2010 does not resolve the issue.

It therefore follows that provisions of the Works Council Agreement of 2010 does not help the applicants to discharge the onus upon them.

The minutes of the Works Council meeting of 16 September 2010 leaves the court in the same position as after considering the Works Council Resolutions of September 2010.

The minutes of the Works Council meeting of 16 September 2010 therefore do not assist the Applicants to discharge the onus upon them.”…,.

It follows that the court a quo failed to make a determination on the pertinent issue upon which the matter was remitted.

The court a quo's inability to make a finding is a serious misdirection. It is tantamount to not making a decision at all.

In PG Industries (Zimbabwe) Limited v Bvekerwa & Ors SC53-16…, the court opined on the effect of a court's failure to determine an issue in dispute as follows:

“The position is settled, that, where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.

Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.”…,.

In casu, the court a quo, whilst accepting the parties' dispute regarding the import of the September 2010 Works Council Agreement and the minutes thereto, did not make a finding on whether in light of this evidence, the appellants were included in the September 2010 Agreement.

The court could not have failed to determine this crucial issue as the relevant facts upon which it could reach an objective decision were before it.

The irregularity is apparent in the court a quo's assessment of the specific provisions of the September 2010 Works Council Agreement and the minutes accompanying that Agreement.

The finding by the court a quo, that the appellants failed to discharge the onus placed on them to prove that they were covered by the 2010 Agreement did not dispose of the matter. This is so because the question remained whether or not the appellants were covered by the Agreement regard being had to the evidence placed before the court a quo.

This was not an issue the court a quo could ignore. The court was obliged to making a finding.

It failed to do so.

Having found that the court a quo grossly misdirected itself, in failing to make a clear cut determination, the pertinent question that arises is whether the subsequent finding by the court, that the appellants failed to discharge the onus cast upon them, to prove that they were covered by the September 2010 Agreement, was correct.

In Pillay v Krishna & Another 1946 AD 946…, the court made the following remarks regarding the burden of proof in a matter:

“…, the duty which is cast on the particular litigant, in order to be successful of finally satisfying the Court that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case made by his opponent.

The second is that, where there are several and distinct issues, for instance a claim and a special defence, then, there are several and distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise until the first has been discharged.

The third point is that the onus, in the sense in which I use the word, can never shift from the party upon whom it originally rested.

It may have been completely discharged once and for all, not by any evidence which he has led, but by some admission made by his opponent on the pleadings (or even during the course of the case) so that he can never be asked to do anything more in regard thereto; but the onus which then rests upon his opponent is not one which has been transferred to him: it is an entirely different onus; namely, the onus of establishing any special defence which he may have.”…,.

From these remarks, one can note, that, the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour.

It invariably involves a court's weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought.

Therefore, the question of whether or not a party has discharged the onus upon it cannot be determined by a court's indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true.

It is on this basis that I have concluded that the court a quo did not correctly apply the principle of onus of proof to the matter before it.

Counsel for the appellants urged the court to consider, that, on a holistic approach to the matter, there was sufficient material for this court to make a finding that the appellants were part of the September 2010 Works Council Agreement.

That would be tantamount to asking this Court to be a court of first and last instance.

This Court cannot do so for the reason that the general position of law is that for the Supreme Court to consider a case, a lower court or tribunal must have made a relevant order. Its duty is to determine whether those decisions should be confirmed, changed, or reversed. This is because the Supreme Court exercises appellate jurisdiction which is conferred on it by sections 9 and 21 of the Supreme Court Act [Chapter 7:13] and section 169 of the Constitution of Zimbabwe, 2013.

The undesirability of having an Appellate Court sitting as a court of first instance was put across in Dormehl v Minister of Justice and Others [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:

“(b) It is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, without there being any possibility of an appeal against its decisions…”

In any event, there is need for the leading of evidence which the court a quo is best suited to do as is provided in terms of sections 89(2)(a)(i) and 89(5) of the Labour Act [Chapter 28:01].

The court a quo's failure to determine whether, in terms of the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, the appellants were entitled to the benefits therein, constitutes a material misdirection justifying interference by this court.

It is also a matter which the court a quo is in as good a position to address, thus, a remittal is appropriate in the circumstances.

The matter would be remitted to be heard before a single judge who shall not be any of the judges who determined the matter previously.

In the result, the appeal succeeds in respect of Ground 2 and is dismissed in respect of the rest of the grounds. It would be fair, in the circumstances of this case, that each party bears its own costs.

It is accordingly ordered as follows:

(1) The appeal be and is hereby allowed.

(2) The judgment of the court a quo be and is hereby set aside.

(3) The matter be and is hereby remitted to the court a quo, before a different Judge, for a proper determination of whether, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, the salaries and benefits stipulated in that agreement were intended to apply to the appellants.

(4) If the answer is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

(5) Each party shall bear its own costs.

This is an appeal against the entire judgment of the High Court sitting at Harare, in which the court granted a declaratur in favour of the first respondent; asserting that he was the lawful holder of rights and interests in the property known as Stand 6401 Retreat, Waterfalls.

The court also ordered that the appellant and all those in occupation through her should vacate the property.

The first respondent made an application before the court a quo seeking to be declared the bona fide holder of rights and interests in the property known as Stand number 6401 Retreat, Waterfalls (hereafter referred to as “the property”). The first respondent also sought to have all those in occupation of the property declared unlawful occupiers and to vacate the property.

The appellant opposed the application.

The first respondent submitted, that, he had joined the Joseph Chinotimba Housing Co-operative Society sometime in 2009, and had, as a member, been allocated the property. He had proceeded to dig a well on the property and to buy the necessary building materials. According to the first respondent, the appellant invaded the property sometime in 2014 claiming that it was her own and proceeded to construct a temporary structure using some of the material that he kept and stored on the property.

With regard to the appellant's claim that the property was hers, as it had been allocated to her by her own co-operative known as Samora Machel Housing Co-operative, the first respondent submitted that her co-operative had no authority to do the alleged allocation. He submitted that this was so because the second respondent (the managing authority), had written to the appellant's cooperative reiterating its consistent position that Stand numbers 6392 to 6414 (under which the property falls) had been allocated to the Joseph Chinotimba Housing Co-operative.

The first respondent further submitted, that, consistent with its position, the second respondent had entered into a lease agreement with him over the said property thereby giving him rights, interests, and title to the property.

The first respondent averred that neither the appellant nor her cooperative had any recognisable interests and rights whatsoever over the said property.

He argued that the purported allocation of the property to the appellant had no legal basis as the second respondent had confirmed that he was the only recognised holder of rights in the property.

The appellant, on the other hand, averred, that, she was allocated the same property by her co-operative, namely, the Samora Machel Co-operative, as a vacant Stand and she had proceeded to make lawful developments thereon.

She argued that there was no basis for the first respondent's application since there had already been a full trial pertaining to the same matter in the Magistrates Court wherein the first respondent had failed to prove his ownership of the property.

The appellant also submitted that there were material disputes of facts which could not be resolved on the papers and that the first respondent had therefore used the wrong procedure in filing the application.

It was the appellant's case, that, the allocation of the property to her found favour with the Apex Board which was the authority responsible for allocating land to its members, including co-operatives. According to her, the second respondent had allocated the property to the Apex Board, which, in turn, allocated the property to her.

She averred that the property had therefore been lawfully allocated to her and the first respondent was accordingly in unlawful occupation of the same.

The appellant therefore argued, that, as the allocation to her was done by her co-operative, with the blessings of the Apex Board, the allocation was above board and remained valid.

She averred that the first respondent's lease agreement was not conclusive proof of ownership and his allocation was based on an illegality.

She therefore sought to have the first respondent's application dismissed with costs.

The second respondent's then Acting Permanent Secretary deposed to an affidavit confirming that the property had been allocated to the first respondent under the Joseph Chinotimba Housing Co-operative. He confirmed that the first respondent had been issued with a lease agreement over the said property. The second respondent further confirmed that the appellant did not have a lease agreement with the Ministry, and, as such, she was an invader on the property.

His stance was therefore that the order that was sought by the first respondent ought to be granted.

The court a quo noted that the cause of action in the Magistrates Court had been for eviction whilst the application before it was for a declaratur.

The court found that the second respondent had made it clear that the property in issue had been allocated to the Joseph Chinotimba Housing Co-operative and had also confirmed that the first respondent had a valid lease agreement for the Stand. The court found that the first respondent had managed to establish that he had rights over the said property emanating from the lease agreement as well as correspondence and a sworn statement from the second respondent and the relevant Ministry's official.

The court a quo also noted that the appellant sought to rely on an allocation form from her co-operative - which form did not have the Ministry's letter-head or logo but only bore a stamp. The court further took into consideration the fact that the said allocation form was a 2012 document, whereas, on record, there were documents from 2014, 2016, 2017 and 2018 indicating the Ministry's position pertaining to the first respondent's co-operative and lending support to the first respondent's claim.

In the result, the court a quo declared the first respondent to be the lawful holder of rights and interests in the property. It further ordered the appellant to vacate the property and give vacant possession to the first respondent.

Aggrieved by the decision of the court a quo, the appellant noted the present appeal on the following grounds;

“1. The court a quo grossly erred and misdirected itself in making a finding that there were no material disputes of fact when it was apparent from the papers filed of record that there were issues which could not be resolved without hearing oral evidence.

2. The court a quo erred and grossly misdirected itself in granting the declaratur in circumstances where the first respondent had failed to prove that he had rights and disregarded overwhelming evidence which proved that the appellant had rights in the property.

3. The court a quo grossly erred and misdirected itself on relying (sic) on evidence whose authenticity and origins had been challenged given that same had not been availed at an earlier stage and whose authenticity was only going to be tested through viva voce evidence.

4. The court a quo grossly erred and misdirected itself at law in completely disregarding the decision of the Magistrates Court on the similar facts of the dispute under Case Number 101166/18 and thereby effectively overruling the factual findings of the extant judgment which is already a subject of an appeal in the High Court under Case Number CIV 25/19.

5. The court a quo grossly erred and seriously misdirected itself in failing to apply the principles of estoppel in view of the evidence placed before the court and given that the application was based on the similar set of facts and documents used in an initial litigation between the appellant and first respondent.

6. The court a quo seriously erred and misdirected itself in dismissing appellant's preliminary point to the effect that the matter and dispute between the parties was pending in the High Court under case number CIV 25/19 and further erred in granting eviction that is a subject matter of the pending appeal.”

In her prayer, the appellant prays for the appeal to be allowed with costs and for the order of the court a quo to be set aside so as to dismiss the application for a declaratur with costs on an attorney-client scale.

At the hearing of this appeal, counsel for the first respondent raised a preliminary objection to the appellant's grounds of appeal one, two, three, and five.

He submitted that they were defective on the basis that they were not clear and concise. He therefore moved the court to strike them out.

Counsel for the appellant conceded that some of the grounds were defective and abandoned grounds two, three, five and six.

She therefore motivated the appeal only in terms of grounds of appeal one and four.

On the merits, counsel for the appellant argued, that, in the court a quo, the first respondent sought to overturn the decision of the Magistrates Court but had disguised the proceedings as stet a declaratory order.

She averred, that, the first respondent applied for a declaratur based on the same facts and evidence as had been placed before the Magistrates Court, which court found that the first respondent had not proved that he had title to the property and thus had no basis to evict the appellant.

She further averred that the court a quo erred in failing to take into account the fact that there was a pending appeal in the High Court dealing with the rights of the parties, thereby running the risk of having two conflicting judgments from the same court.

Counsel for the appellant submitted, that, by hearing the matter, the court a quo, in essence, reviewed factual findings made by the Magistrates Court; which findings were the subject of an appeal before the same court. She argued that the court a quo ought to have stopped the first respondent from litigating this matter in view of the pending appeal. Thus, the court a quo erred in granting consequential relief which was the subject of an appeal.

Counsel for the appellant also argued, that, the first respondent failed to provide sufficient evidence to prove that he had rights in the property. She averred that the first respondent relied on a lease agreement whose validity was challenged and was rejected by the Magistrates Court. She argued that due process was not followed in the issuing of the first respondent's lease agreement as it did not go through the Apex Board.

Counsel therefore submitted, that, there were material disputes of fact in relation to the allocation of the Stand which could not be resolved a quo without leading oral evidence and thus prayed for the appeal to be allowed.

Counsel for the first respondent submitted, that, there were no material disputes of fact in this matter as most of the relevant facts were clear.

He submitted, that, the first respondent has a valid lease agreement which has not been cancelled or revoked and thus remains extant. He further averred that it was an established fact that the second respondent does not recognize the appellant as the legitimate holder of rights over the property. He argued that the appellant's housing co-operative did not challenge or dispute that the first respondent's co-operative had been duly issued with the necessary authority over the property. The appellant, therefore, had no basis to challenge what her own co-operative had accepted.

It was counsel for the first respondent's argument that there were no material disputes of fact at all in the circumstances.

Counsel for the first respondent further argued, that, the present matter had not been argued in the Magistrate's Court as claimed by the appellant. He averred that the parties in the Magistrates Court matter were materially different from the parties in the present matter and that the causes of action and relief sought in the respective matters were different. In the light of these differences, counsel for the first respondent submitted, that, the court a quo's finding, that the matter before it and the one that was before the Magistrate's Court were different, cannot be faulted.

He therefore sought the dismissal of the appeal with costs on the legal practitioner and client scale.

The appellant contends, that, the court a quo erred in making a finding that there were no material disputes of fact in this matter.

She avers that the issues pertaining to the validity of the lease agreement, the competing legitimate rights over the property, and the allocation of the property were disputed, and, as such, they could not be resolved through the evidence placed on record without hearing viva voce evidence.

With regard to this issue, the first enquiry is to ascertain whether or not there is a real dispute of fact which could not be resolved without hearing evidence.

In Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H)…, MAKARAU JP…, expressed the following sentiments:

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

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

In the case of Eddies Pfugari (Pvt) Ltd v Knowe Residents Association & Anor SC37-09, in assessing whether the court a quo erred in resolving the disputes raised on the papers without hearing evidence, this Court stated the following:

“The position is now well established, that: in motion proceedings, a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced, that, there is no real possibility of any resolution doing an injustice to the other party concerned.”

In Muzanenhamo v Officer in Charge CID Law and Order & Ors CC03-13, PATEL JA…, stated as follows:

“As a general rule, in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party.”

In casu, I am in no doubt that the court a quo was correct in resolving the matter on the papers.

The position is now well established, as reflected by the case authorities, that, not every dispute of fact in motion proceedings must be sent for trial. A material dispute of fact, it has been stated “arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

The court a quo found, that, there were no material disputes of fact in this matter because the facts that the appellant sought to rely on were based on the findings of the Magistrates Court where the cause of action before the court had been for eviction whilst the application before it was for a declaratur.

The learned Judge in the court a quo noted that:

“The first respondent sought very much to rely on what had transpired in the Magistrates Court where a claim for eviction had been raised by the applicant. The first respondent seeks to say that the allocation of Stands should have been done through the Apex Board hence the lease was not properly issued.

What is before me is a valid lease, it has not been indicated that the lease itself is not valid.

The complaints raised by the first respondent emanate from agreements between the Apex Board and the other entity where the parties had agreed on the modus operandi pertaining to the allocation of those particular Stands.”

I am also of the view, that, sufficient facts were established by way of affidavits and relevant documentary evidence to establish, on a balance of probabilities, that, the first respondent was the legitimate holder of real rights in the property.

A valid lease agreement was furnished. The lease agreement had not been cancelled and it remains operative. Furthermore, the first respondent also produced affidavits from the second respondent, who is the authority responsible for the management of State land.

The said documents verified and confirmed that the first respondent was the legitimate and recognised holder of rights to the property. His entitlement to the property was thereby established.

The appellant's contentions, that there were material disputes of fact, based as they were on bare denials that were not supported by any documents, were thus of no avail to her case.

The law is clear, that, bald and unsubstantiated allegations do not establish a litigant's purported or announced position: see Akhtar v Min of Public Commission SC173-97.

The court a quo's decision cannot therefore be faulted because the evidence placed before it established, on a balance of probabilities, that, the first respondent had rights emanating from the lease agreement with the second respondent whilst the appellant only made bare allegations which were not sufficient to prove the existence of any material disputes of facts.

In the circumstances, the appellant's first ground of appeal lacks merit and is hereby dismissed.

It is the appellant's case that the matter before the Magistrates Court was based on the same evidence placed before the court a quo. She avers that the court a quo erred in granting the declaratur in a situation where that matter was subject to an appeal in the same court. She avers that there is therefore a possibility of having two conflicting decisions in the same matter emanating from the same court.

The appellant further averred that the lease relied on by the first respondent was not valid and for that reason the court misdirected itself when it declared the first respondent as the lawful holder of rights over the property when in fact it was the appellant who had an agreement with the Apex Board which was the allocating authority of the said property.

The court a quo found that the first respondent's case was more probable than the appellant's.

It is settled in our jurisdiction that the standard of proof in civil matters is “a balance of probabilities.”

In ZESA v Dera 1998 (1) ZLR 500 the court held, that, in a civil case, the standard of proof is never anything other than proof on the balance of probabilities. It stated that the reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims. McNALLY JA stated…,:

“So, in a criminal case, one is primarily concerned with doing justice to the accused. In a civil case, one is concerned to do justice to each party. Each party has a right to justice, and so the test for that justice has to balance their competing claims. Hence the 'balance of probability' test.”

In Bruce N.O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68 (R)…, proof on a balance of probabilities was interpreted in the following manner:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged; but, if the probabilities are equal, it is not.”

See also Milner v Minister of Pensions 1947 2 All ER 372…, and Thulisani Dube Nyamambi v Bongani Ncube HB82-15.

In casu, the first respondent produced as Annexure C, a valid lease agreement between him and the second respondent. It was signed by the first respondent on 16 June 2016 and by the second respondent's representative on 27 September 2016.

It is significant, that, the second respondent, through its then Acting Permanent Secretary, filed an affidavit. He indicated therein, that, according to the second respondent's records, in 2008, the Ministry, through the office of the resident Minister, allocated blocks of Stands to about 28 housing co-operatives at Retreat Farm. Stand 6401 is within the range of the block of Stands 6392-6414 which was allocated to the Joseph Chinotimba Co-operative Society. The said block of Stands was never allocated to the Samora Machel Housing Co-operative.

He further stated that there was an agreement between the second respondent and the Housing Co-operatives that each respective co-operative would recommend to the second respondent beneficiaries who were paid up in terms of land servicing fees so that lease agreements could be issued to them. The Joseph Chinotimba Housing Co-operative, being the co-operative to which the above mentioned block of Stands was legitimately issued, recommended, on 15 August 2013, that a lease be issued to the first respondent. The Samora Machel Housing Co-operative never had the right to, neither did it recommend a beneficiary to the property, as the Stand had never been allocated to it.

The Acting Permanent Secretary further categorically stated that the appellant does not have a lease agreement with the second respondent and is in fact an invader on the property.

The said allocation of the property on 15 August 2013 is backed by Annexure A1, a document of even date on the letterhead of the Joseph Chinotimba Housing Co-operative Society. Payments made by the first respondent are reflected on Annexure A2, a membership card on which are reflected monthly payments for the period spanning between January 2009 and December 2014.

In addition, and in further support of the first respondent's case, is a letter from the second respondent dated 27 May 2014 and addressed to the chairman of the Samora Machel Housing Co-operative advising of complaints that had been received from the Joseph Chinotimba Housing Co-operative Society in connection with Stands 6392- 6414 Retreat Township. The letter states, inter alia:

“Please be advised that according to our records submitted by the Harare South Housing Union, stands 6392–6414 Retreat Township belong to Joseph Chinotimba Housing Co-operative, and, as such, your co-operative should leave those stands for occupation by the rightful owners from Joseph Chinotimba Housing Co-operative.”

In another letter, dated 19 December 2017, from the second respondent, addressed to “To Whom It May Concern” the second respondent categorically stated the following:

“This letter serves to confirm that PAUL MUREHWA 27-127113-l-27 has a valid lease agreement for Stand 6401 Retreat Township with the Ministry of Local Government, Public Works and National Housing. The lease agreement number is A/3823/16. Please note that he is the only recognized legal owner of the residential Stand in question.”

Yet another letter from the second respondent, dated 21 June 2018, and addressed to the chairman of the Joseph Chinotimba Housing Co-operative pertinently states as follows:

“RE: REQUEST FOR OFFICIAL POSITION OF LEASE AGREEMENT: JOSEPH CHINOTIMBA HOUSING CO-OPERATIVE SOCIETY: RETREAT TOWNSHIP

Please be advised, that, according to the land management policy for State land, when a co-operative is offered a piece of land, the co-operative, in turn, recommends its members to the State land office for lease processing on individual Stands once the member has fulfilled the co-operative's requirements. The Lease document is thus a legal document which is entered into between Government and the co-operative beneficiary who should enjoy vacant possession of the Stand upon being allocated.

The Lease Agreement is the one which will eventually be used to process the title deed for the Stand in favour of the lessee. In addition, the Lease Agreement is also required when building plans are being submitted for approval to the relevant Local Authority.

For all the lessees who have paid the full purchase price, the Government is now awaiting completion of construction of buildings so that we can process title in favour of the beneficiaries. Please note that no other person is allowed on the Stand except the one who has a Lease Agreement with the Ministry.”…,.

On the other hand, the appellant sought to rely on an allocation form issued by her co-operative - but this was not sufficient evidence to prove her entitlement to the property and particularly so in the face of all the evidence furnished by the first respondent in support of his case. The documents that the appellant sought to rely on did not bear the second respondent's logo and these documents could not further the appellant's case.

The court a quo rightly noted that the appellant sought to rely on what had happened in the Magistrates Court, where the proceedings had been for eviction, yet the application before it was for a declaratur.

On the evidence that was placed before it, with particular reference to the valid lease agreement between the first and second respondents, the court could not have arrived at any other conclusion other than that the first respondent had real rights to the property in question.

The court a quo further noted, that, the second respondent had made it clear that the property in question had been allocated to the Joseph Chinotimba Housing Co-operative, which was the co-operative that the first respondent belonged to. In fact, the second respondent, through the Resident Minister, had allocated the block of Stands 6392 to 6414 to the Joseph Chinotimba Housing Co-operative. The Stand that was allocated to the first respondent fell within the said block. The property in question, being the Stand that was allocated to the first respondent by his co-operative, had not been allocated to the Samora Machel Housing Co-operative to which the appellant belonged. Furthermore, the Apex Board, which the appellant sought to rely on as the allocating authority, did not have the power to supersede the authority of the second respondent, which was the ultimate authority over the land.

It is settled that this Court will not easily interfere with factual findings made by a lower court unless there has been such a gross misdirection by that court on the facts so as to amount to a misdirection in law, in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court: Chioza v Siziba SC16-11.

In assessing whether the court a quo misdirected itself in finding that the first respondent had rights to the property, regard may be had to the case of Reserve Bank of Zimbabwe v Granger & Anor SC34-01, wherein this Court stated the following:

“An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

In Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…, the court stated the following:

“These grounds are firmly entrenched. It is not enough that the Appellate Court considers that if it had been in the position of the primary court it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle; if it allows extraneous or irrelevant matters to guide or affect it; if it mistakes the facts; if it does not take into account some relevant consideration; then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution provided always it has the materials for so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

In casu, the question therefore relates to whether or not the court misdirected itself in granting a declaratur in favour of the first respondent.

In the circumstances of this case, the decision of the court a quo, to declare, on a balance of probabilities, that the first respondent was the legitimate holder of rights in the property, cannot be impugned. This Court has therefore found no basis on which to interfere with the decision of the court a quo.

This appeal is without merit. On the question of costs, I see no reason for departing from the rule that costs follow the cause.

It is accordingly dismissed with costs.

This appeal from the High Court has its genesis in the Magistrates Court which acquitted both appellants on one charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and, secondly, operating an unregistered trust in contravention of section 9 of the Private Voluntary Organisations Act [Chapter 17:05].

Aggrieved by the acquittal of both appellants on the first Count the respondent appealed to the High Court (the court a quo).

The court a quo, after full contest, found that the trial court erred and misdirected itself in that it misconstrued the facts in acquitting both accused. On the basis of such finding, it adjudged that the trial court ought to have found both accused guilty as charged. It thus upset the judgment acquitting the appellants and issued the following order:

“Accordingly, the court orders as follows:

1. The appeal against the acquittal of first and second respondents (now appellants) in CRB R856 succeeds.

2. The matter is remitted back to the trial court for sentencing.”...,.

The facts giving rise to both charges are hotly contested in the main. What is however not in dispute is that the complainant, Douglas Mamvura, was the owner of a company called Hedgehold Trading (Pvt) Ltd trading as Manna Brands.

On the other hand, the appellants were the owners of an agri-business styled Makonde Industries. The business was in financial distress and consequently under liquidation.

Desirous to revive their agri-business, the appellants approached the complaint with a proposal for Hedgehold Trading (Pvt) Ltd to buy the troubled agri-business and assume its liabilities. It was a term of the agreement that the complainant would allot the appellants shares in the company.

It was further proposed and agreed, that, because the complainant had a clean financial record with the Banks, he would be responsible for obtaining loans from his Bank, and other financiers, to fund the new joint venture agri-business under the style of Hedgehold (Private) Limited.

The complainant bought into the idea and it was agreed, that, as the sole financier of the new joint venture rebranded Hedgehold (Pvt) Ltd, he would be one of the Directors, Executive Chairman, and majority shareholder of the company. The other minority shareholders would be the two appellants and the late Chimbindi Fanuel. Open Tribe Foundation Trust was to be the fifth shareholder.

The initial CR2 allotted the company's shares as follows:

1. Douglas Mamvura (Complainant) 75%
2. Tangwena Israel (1st Appellant) 11%
3. Muocha Tonderai (2nd Appellant) 5%
4. Chimbindi Fanuel (late) 5%
5. Open Tribe Foundation Trust 4%

It is common cause that the fifth shareholder, Open Foundation Trust, was unregistered. Its object was nevertheless to cater for the welfare of underprivileged orphans, widows, HIV and AIDS victims.

This forms the basis of the second allegation against the appellants, which is however not relevant to this appeal.

In pursuit of the agreement, the complainant mortgaged his home and various other properties, including his wife's car, to raise a total of US$350,000 which he ploughed into the agri-business. The business venture kick-started with the complainant closely guarding his investment for fear of losing his mortgaged properties and investment.

The learned judge in the court a quo found that the strict administrative measures adopted by the complainant must have unsettled the other Directors, thereby generating conflict and irreconcilable differences.

The conflict culminated in the minority Directors locking out the complainant.

They eventually filed a new CR2 with the Registrar of Companies in a bid to strip the complainant of all his rights and interest in Hedgehold (Pvt) Ltd.

Despite their concerted endeavour to terminate their business relationship with him, they continued to hold onto his investment to his exclusion and detriment.

In a bid to achieve their fraudulent scheme, the appellants are alleged to have crafted and filed fraudulent CR2, CR11 and CR14 documents with the Registrar of Companies to divest the complainant of his Directorship and shareholding in Hedgehold (Pvt) Ltd.

The appellants denied the allegations of fraud both in the Magistrates Court and in the court a quo on appeal.

The appellants attacked the court a quo's judgment on both procedural and substantive grounds.

The grounds of appeal however raise one crisp issue for determination. The single issue for determination is: whether or not the court a quo correctly found the appellants guilty of fraud as charged.

The appellants challenged their conviction on the basis that the respondent failed to discharge the onus of proving the essential elements of fraud beyond reasonable doubt.

Section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides for the definition and essential elements of fraud as follows:

“136 Fraud

Any person who makes a misrepresentation -

(a) Intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) Intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;
shall be guilty of fraud if the misrepresentation causes actual prejudice to another person or is potentially prejudicial to another person, and be liable to:

(i) A fine not exceeding level fourteen or not exceeding twice the value of any property obtained by him or her as a result of the crime, whichever is the greater; or

(ii) Imprisonment for a period not exceeding thirty-five years; or both.”

The Criminal Law (Codification and Reform) Act defines the offence of fraud in simple though somewhat frosty and verbose language, such that it needs further elucidation to give effect to the intention of the lawmaker.

In plain layman's language, fraud may however be defined as dishonestly making a false misrepresentation with the intention to cause actual or potential prejudice to another person.

The intention of the legislature, in section 136 of the Criminal Law (Codification and Reform) Act, was to proscribe and punish theft by deceitful means.

In the context of the statutory definition of fraud, its essential elements may be paraphrased as follows:

1. Making a misrepresentation to another person.

2. With the intention to cause another person to act on the misrepresentation to the actual or potential prejudice of any person.

Section 136 of the Criminal Law (Codification and Reform) Act is couched in broad terms encompassing a situation where the misrepresentation is made to a person other than the subject of the intended prejudice. To constitute fraud, it is sufficient that a misrepresentation is made to any person with the intention of causing any other person actual or potential prejudice.

In casu, it does not therefore matter that the misrepresentation was made to the Registrar of Companies with the intention of causing prejudice to the complainant.

It is plain from the evidence led in the trial court that the appellants completed and submitted the alleged fake fraudulent CR2 document dated 23 January 2013. The alleged fake CR2 form now reflects that all the shares in Hedgehold (Pvt) Ltd were allotted to Open Tribe Foundation Trust on 25 January 2013. The State alleged that the fake CR2 was backed up by an equally fraudulent special resolution of Hedgehold (Pvt) Ltd crafted in the following terms:

“IT WAS RESOLVED THAT:

That the unauthorised CR2 which sought to change the ownership of the company in contravention of paragraph 4 and 5(b) of the company's Articles of Association be amended and replaced.

That the un-issued shares in the company, being 1,870 (one thousand eight hundred and seventy) shares of 1 (one) dollar each, be allotted in full to Open Foundation Trust Trading and that a form CR2, share allotment form, giving effect to the allotment be lodged with the Registrar within the prescribed time.”

The effect of the amended CR2 form was to deceitfully strip and divest the complainant of his entire shareholding and huge investment in Hedgehold (Pvt) Ltd to the tune of US$350,000 without his consent.

We therefore find no merit in the appellants complaint that the court a quo misdirected itself in substituting its own discretion for that of the trial court. This is because the trial court's acquittal of the accused, in the face of overwhelming evidence, was irrational and grossly unreasonable.

In Chiodza v Siziba SC04-15…, relied upon by the appellants, this Court held that:

“The general rule regarding factual findings made by a trial court is that they will not be upset by an Appellate Court unless there had been a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court.”

In this case, the basis of the court a quo's interference was the failure by the magistrate to appreciate the full extent of the State's case and the evidence on record leading to a failure of justice.

The court a quo found that there was clear, cogent expert evidence establishing, beyond reasonable doubt, that the documents admittedly crafted and presented to the Registrar of Companies by the appellants, to the prejudice of the complainant, were fraudulent.

A perusal of the record of proceedings shows that the learned judge a quo's remarks, at p10 of the cyclostyled judgment, to the effect that the trial magistrate strangely went out of his way to justify the fraudulent acts of the appellants, are beyond reproach.

That being the case, the court a quo cannot be faulted for finding that the trial court misdirected itself in acquitting the appellants in the face of overwhelming evidence establishing the accused's guilt.

That the State proved the accused's guilt beyond reasonable doubt is beyond question. For that reason, the appeal can only fail.

It is accordingly ordered that the appeal be dismissed.

The plaintiff, a commercial Bank, claims against the three defendants payment of a sum of money amounting to US$1,105,748=90 together with interest thereon at the rate of 15% per annum calculated from the 9th September 2015 to the date of payment in full; such interest to be calculated monthly and in advance and capitalized.

The plaintiff also claims collection commission and costs of suit on the legal practitioner and client scale, as well as an order declaring a certain immovable property, described in the summons as a certain piece of land situate in the District of Salisbury called the Remainder of Lot 6 of Reitfontein, measuring 1,2129 hectares, to be specially executable.

The claim is for money advanced to the first defendant pursuant to loan and overdraft facilities and in respect of which the second and third defendants are said to have executed deeds of suretyship and guarantorship.

The claim is contested by all the defendants....,.

On the main claim, the plea which was filed on behalf of the defendants is very brief. In that plea, the defendants deny that the person who entered into the agreements pursuant to which the plaintiff advanced money to the first defendant had the authority to represent the first defendant.

The other aspect, which is denied, is that the second defendant executed the power of attorney which was used to register a mortgage bond over his immovable property in favour of the plaintiff.

Going by the pleadings, the other material allegations made in the plaintiff's declaration are not disputed and must therefore be taken as admitted. These include:

(i) The existence of the facilities (save for the alleged lack of authority of the person who represented the first defendant).

(ii) The terms of the loan facility as set out in paragraph 6 of the plaintiff's declaration.

(iii) The facts alleged in paragraph 7 of the plaintiff's declaration that the second and third defendants executed deeds of suretyship and guarantees by which they bound themselves as sureties and co-principal debtors for performance of the first defendant's contractual obligations to the plaintiff under the facilities.

(iv) There is also no denial of the failure by the first defendant to pay the amount due to the plaintiff in terms of the agreements.

(v) The amount claimed in the summons and declaration is also not disputed in the plea.

Although three issues were outlined in the joint pre-trial conference minute, a resolution of those issues depends on the determination of whether the loan facilities were validly concluded on behalf of the plaintiff and whether the mortgage bond over the immovable property known as a Certain Piece of Land Situate in the District of Salisbury Called the Remainder of Lot 6 of Rietfontein measuring 1,2129 hectares, held by the second defendant under Deed of Transfer Number 4388/1994, was validly executed.

The plaintiff led evidence, oral and documentary, from Alwyn Tafadzwa Chinyoka, Leonard Tendai Nhari, Lazarus Marume, Benson Ndachena, and Lionel Chinyamutangira, all of whom are its employees save for Leonard Tendai Nhari who is a handwriting expert.

The essence of the evidence of these witnesses is that the second defendant, Julius Tawona Makoni, was a founder and director of the plaintiff. He was still a director of the plaintiff when the facility upon which the claim arose was granted to the first defendant.

A composite facility of call loans and overdraft of US$760,000 was extended to the first defendant. The first defendant is the second defendant's Trust through which he operated to access money from the plaintiff.

Alwyn Tafadzwa Chinyoka testified, that, Dr Makoni signed the power of attorney to pass a mortgage bond over his property. The guarantee executed by the third defendant was signed by Dr Higginson, who, together with the second defendant, was the authorized signatory. The two were also the signatories for the first defendant.

The second defendant would give instructions to the plaintiff's employees for draw-downs on the facility.

He stated that the plaintiff engaged the second defendant about recovery of the amounts owed following a directive from the Reserve Bank of Zimbabwe that all insider loans be settled by 31 December 2014.

When the second defendant was approached about the debt, he acknowledged it and advised that he was making arrangements to settle it.

The matter was discussed at some Board meetings of the plaintiff in the presence of the second defendant. The minutes of Board meetings were produced in evidence.

The witness also gave evidence of the emails which were exchanged between the second defendant and the plaintiff's officials in connection with the debt in which the second defendant acknowledged the debt.

The witness disputed the signatures on the alleged loan agreement upon which the first defendant's counter-claim was based.

He also gave evidence of payments made on behalf of, and, at times, on the instructions of the second defendant from the account of the first defendant.

He testified that the facility availed to the first defendant was to cater for the personal needs of the second defendant.

The first defendant held shares in the plaintiff on behalf of the second defendant, according to the witness.

Lazarus Marume, who was employed by the plaintiff as Branch Manager at Mutare, stated that he knew the second defendant as the founder of the plaintiff and as a Bishop of the Church of the Province of Central Africa.

He confirmed, that, the second defendant signed the power of attorney to pass a mortgage bond at Mutare.

The witness had always known the second defendant's signature as he had dealt with him many times before that. He signed as a witness after the second defendant had signed in his presence. The document was signed at the second defendant's office to which the witness had taken the document.

Significantly, at no time during cross-examination was it suggested to this witness that the signature on the document was not that of the second defendant; neither was it suggested that the second defendant had not signed the document.

The evidence of Leonard Tendai Nhari and Benson Ndachema pertains to the first respondent's claim in reconvention, which, as already noted, has been abandoned.

In relation to the main claim, Benson Ndachema's evidence confirmed the instruction from the Reserve Bank of Zimbabwe for the recovery of insider loans. He also stated, that, the second defendant, as representative of the first defendant, owed money to the plaintiff, and that he resigned from his directorship owing to his failure to repay the loan.

The second defendant, according to the witness, had indicated that he would settle his indebtedness to the plaintiff from the proceeds of his shares in MBCA Bank which he would dispose of.

Lionel Chinyamutangira was Chief Banking Officer at the plaintiff at the time that he gave his evidence.

When he was Relationships Manager he reported directly to the second defendant, and got to deal with the first and third defendants as well. He explained that the purpose of the facility extended to the first defendant was in fact to take care of the second defendant's affairs when he was away, such as paying for his family's expenses and motor vehicle expenses. The second defendant would instruct him, and the other employees of the plaintiff, on the transactions to be performed, and Higginson would do the paperwork.

He identified some e-mails exchanged between him and the second defendant in terms of which the second defendant would sometimes instruct him to debit the first defendant's account for the purposes of paying his (second defendant's) expenses.

This witness identified various documents pertaining to payments to or on behalf of the second defendant made from the account of the first defendant. He confirmed that the second defendant stepped down from the Board of the plaintiff because of his failure to discharge his financial obligations to the plaintiff.

Two witnesses testified on behalf of the defendants. These are James Friedlander and the second defendant, Julius Makoni.

James Friedlander's evidence pertained to the claim in reconvention. It is therefore not necessary to consider it in any detail in view of the abandonment of that claim.

The second defendant's evidence was that he is the one who founded the plaintiff. He was its Chief Executive Officer, Executive Director, and Non-Executive Director at different times. He is also a shareholder of the plaintiff.

His evidence was that he was not clear as to what the basis of his liability for the first defendant's debts to the plaintiff was.

He recognized and identified the signature on the Deed of Suretyship, executed on 10 July 2002, to be his. He then sought to state that he did not understand why he was to act as surety for the first defendant's obligations to the plaintiff.

He stated that he never enjoyed any benefit from the facility granted to Cornerstone.

He stated that he resigned voluntarily from the Board of the first defendant and that his resignation was unconnected to the debt owed by the first respondent.

The first issue, of whether or not there was a valid loan agreement between the plaintiff and the first defendant, can be easily disposed of.

The facility letter, dated 19 June 2013, was duly signed on behalf of the first defendant. The person who signed on behalf of the defendant, David Higginson, was a duly authorized signatory on the account.

Both the first and second defendants benefited from the facilities as shown by the evidence of the witnesses for the plaintiff.

There is documentary evidence, in the form of emails, exchanged with the second defendant in which instructions to make payments from the account of the first defendant were given by the second defendant.

It is clear that the first defendant was a just vehicle by which the second defendant accessed loan facilities from the plaintiff using his position in the plaintiff.

It was clear that the second defendant is a dishonest person who was being deliberately untruthful and sought to mislead the court about his involvement in the financial transactions of the first defendant. He is the typical businessman who started the business of a Bank in order to give money from the bank to himself.

The unchallenged evidence of the witnesses for the plaintiff was that when the second defendant was approached about the need to settle the loan account he advised that he would do that from the proceeds of the sale of his shares in MBCA Bank.

At no time did he dispute the amount or that he owed it.

Minutes of a meeting of the plaintiff's Board of the Credit Committee held on 30 January 2015 deliberated on the first defendant's debt and the undertaking by the second defendant to settle it. Under item 12.7 of the minutes, the following is recorded:

“CORNERSTONE $1,059,432: Management advised that Dr Makoni had advised that he intended to repay the loan from proceeds of a share sale as he held shares in another financial institution.”

In the same minutes, under item 14 (from 14.1 to 14.10) the second defendant is the subject of discussion, and the resolution that he must resign his directorship, owing to his non-performing loan, is recorded.

The second defendant feigns ignorance of that resolution in the face of such documentary evidence.

His evidence is unconvincing.

The first defendant pretended not to know anything about the Reserve Bank of Zimbabwe's directive concerning insider loans. Yet, that matter was discussed at a Board meeting which he attended on 19 March 2014, and appears as item 5.4 in the minutes of that meeting.

The evidence led establishes that the first defendant entered into a valid facility agreement in terms of which it accessed funds availed by the plaintiff.

The court finds, that, the first defendant was an entity established and controlled by the second defendant for the purposes of accessing money from the plaintiff. Through the first defendant, the second defendant accessed money from the plaintiff, and, from time to time, gave instructions to Bank officials to pay his expenses from the account of the first defendant.

The second defendant signed a Deed of Suretyship for the first respondent's obligations to the plaintiff. He is accordingly liable on the basis of that Deed of Suretyship.

The third defendant is equally liable to the plaintiff for the debts of the first defendant on the basis of the suretyship agreement.

As noted above, the existence of these deeds of suretyship is not challenged by the defendants.

On the power of attorney used to register the mortgage bond over the second defendant's property, the document was duly signed by the second defendant on 10 July 2013.

The second defendant did not dispute the signature on that power of attorney when he gave evidence.

It is clearly his signature.

The court finds, that, he is the one who signed the power of attorney to pass a mortgage bond on his immovable property.

The debt secured by the mortgage bond has been proved. The plaintiff is accordingly entitled to recover the debt through the sale of the mortgaged property.

In terms of clause 5.7 of the facility agreement, the plaintiff is entitled to recover collection charges and its legal fees on the attorney-client scale.

In any event, such costs would still have been justified by the vexatiousness of the defence to the claim in the instant case.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff against the first, second, and third defendants jointly and severally the one paying the others to be absolved for:

(a) Payment of US$1,105,748=90 plus interest thereon at the rate of 15% per annum from the 9th September 2015; such interest calculated monthly and in advance on the said sum and capitalized to the date of payment in full.

(b) Payment of collection commission in accordance with the Law Society By-Laws.

(c) Payment of plaintiff's costs of suit on the legal practitioner and client scale.

(d) A declaration that the immovable property, being a certain piece of land situate in the district of Salisbury called the Remainder of Lot 6 of Rietfontein, measuring 1,2129 hectares, held by the second defendant under Deed of Transfer No.4388/1994, is executable.

2. The first defendant's claim in reconvention be and is hereby dismissed with costs on the legal practitioner and client scale.

At the hearing of the appeal, the Court found, that, the appeal was devoid of merit, as the funds advanced to the appellant, by the respondent, to finance the production of his 2016–2017 tobacco crop were from offshore funding.

The decision of the Court was based on the interpretation of the agreement for tobacco growing and financing entered into by the parties on 19 July 2016, the acknowledgement of debt dated 19 September 2017, and the Deed of Settlement dated 18 September 2018.

The three documents show that the parties agreed on three important matters. These were –

(1) The respondent advanced to the appellant funds to finance tobacco production for the 2016/2017 growing season;

(2) The money advanced to the appellant, by the respondent, was part of funds it raised from offshore lines of credit for the specific purpose of financing tobacco production. The currency to be utilised in light of the underlying source of the funds in the denomination of the obligations of the parties was the United States dollar; and

(3) The respondent had to recover the money from the appellant in the currency that would enable it to repay its foreign obligations.

In the result, the Court dismissed the appeal with costs and indicated that reasons for the decision would follow in due course. These are they.

The appeal is against a decision of the High Court (“the court a quo”) handed down on 18 March 2020.

The issue in the court a quo was whether the respondent advanced United States dollars in cash and in the form of inputs to the appellant as crop financing for the June 2016 to April 2017 tobacco farming season.

It was the appellant's position, that, the funds advanced to him by the respondent were in the form of Real Time Gross Settlement cash (hereinafter referred to as “RTGS dollars”) transferred into his local bank account and inputs procured using RTGS dollars.

The court a quo found, that, there was overwhelming documentary evidence proving that off-shore funds were employed by the respondent to finance the appellant's 2016/2017 tobacco crop.

It further found, that, the amount in question could not be repaid in RTGS dollars, as section 44C(2)(b) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] (hereinafter referred to as “the Reserve Bank Act”) explicitly excludes foreign obligations valued and expressed in United States dollars from the deemed parity valuation in RTGS dollars.

As a result, it found in favour of the respondent and ordered that the appellant should repay the advanced funds in United States dollars.

The respondent is a company duly incorporated in terms of the laws of Zimbabwe. Its business includes accessing off shore funds and using them to finance tobacco farming. The appellant is a tobacco farmer.

In 2016, the respondent accessed offshore funding to lend to tobacco growers for the 2016/2017 tobacco season.

On 19 July 2016, the appellant and the respondent entered into a tobacco growers agreement, in terms of which the former accessed crop financing from the latter in the form of cash, as working capital, as well as inputs.

On 19 September 2017, the appellant signed an acknowledgement of debt in favour of the respondent. In that document, the appellant acknowledged being indebted to the respondent in the sum of US$101,089=46.

The appellant failed to repay the debt. This prompted the respondent to issue a summons for provisional sentence in the sum of US$101,089=46 and interest at the agreed rate.

The appellant did not defend the action.

The parties signed a Deed of Settlement, in terms of which the sum of US$101,089=46, plus interest at the agreed rate, and costs in the sum of US$3,000 together with 15% Value Added Tax on the costs, had to be paid in annual instalments of US$30,000. Each instalment was payable on or before 31 August of each year, commencing 31 August 2019.

On 31 August 2019, the appellant tendered an initial instalment payment of RTGS$30,000.

The respondent rejected the tender. It insisted that the correct currency was United States dollars and consequently demanded payment in that currency.

The respondent invoked clause 5 of the Deed of Settlement. The clause reads:

“5. In the event that the defendant fails to pay any of the amounts due in terms of this deed of settlement on the due date, the plaintiff shall be entitled to apply for default judgment for payment of the outstanding amount from the defendant without notice to the defendant. In that regard, the plaintiff shall be entitled to seek any further costs incurred by it from the defendant on a legal practitioner and client scale.”

Accordingly, the respondent filed a chamber application for default judgement.

In the court a quo, the respondent contended, that, it advanced United States dollars-denominated inputs and cash to the appellant as crop financing for the June 2016 to April 2017 growing season.

On the other hand, the appellant argued, that, the cash he received was in the form of RTGS dollars transferred into his local bank account and inputs procured using RTGS dollars.

The court a quo found, that, offshore funds were employed by the respondent to finance the appellant's 2016/2017 tobacco crop.

It also noted, that, the appellant failed to substantiate his averment that the funding that he obtained was in RTGS dollars.

The court a quo found in favour of the respondent and granted the application with costs.

At the hearing, the Court requested the parties to address it on the question whether the contract arrangement entered into between the appellant and the respondent gave rise to the performance by the respondent of the obligation under the offshore loan agreement.

In his heads of argument and oral submissions, the appellant submitted, that, Clause 3 of the loan agreement, relating to the grower's obligations, did not specify the denomination of the currency in which the funds would be advanced to a tobacco grower. The appellant submitted, that, the agreement between the parties was silent with regards to the currency to be used to repay the loan.

He argued, that, the court a quo was not entitled to go behind the Deed of Settlement entered into between the parties in resolving the matter.

He submitted that the Deed of Settlement constituted a compromise or a transactio.

He argued that the Deed of Settlement made no mention of offshore funding.

It was further submitted, that, by tendering RTGS$30,000 the appellant lawfully discharged his liability to the respondent in terms of Statutory Instrument 33 of 2019 (SI33/19). This was on the basis that section 4(1)(d) of SI33 of 2019 provided that liabilities that were valued and expressed in United States dollars immediately before the effective date were deemed to be valued in RTGS dollars at a rate of one-to-one to the United States dollar.

Counsel for the respondent submitted, that, the funds advanced to the appellant were from offshore funding and the amount in question had to be repaid in United States dollars.

It was further submitted, that, the argument that the Deed of Settlement constituted a compromise was of no legal consequence, as the issue of the currency in which the debt was to be repaid was never in issue. The issue of the currency was never compromised.

In the case of Zambezi Gas (Pvt) Ltd v N.R. Barber & Anor SC03-20, in interpreting section 4(1)(d) of S.I.33/19 the Court held, that, contractual obligations valued in United States dollars immediately before the effective date were to be paid in RTGS dollars at parity or at a one-to-one rate. The court stated the following at p13 of the cyclostyled judgment:

“Section 4(1)(d) of SI33/19 states, that, for such sui generis liabilities, including judgment debts, a rate of one-to-one between the United States dollar and the RTGS dollar will apply. The transactions entered into after the effective date would fall under the provisions of section 4(1)(e) of SI33/19.”

However, section 44C of the Reserve Bank of Zimbabwe Act [Chapter 22:15] reads as follows:

“44C Issuance and legal tender of electronic currency

(1)…,.

(2) For the avoidance of doubt, it is declared, that, the issuance of any electronic currency shall not affect or apply in respect of –

(a)…,.

(b) Foreign loans and foreign obligations denominated in any foreign currency, which shall continue to be payable in such foreign currency.”…,.

Section 44C of the Reserve Bank Act is an exception to the parity rate.

In Breastplate Service (Pvt) Ltd v Cambria Africa Plc SC66-20 the Court stated as follows at p5 of the judgement:

“What emerges clearly and unequivocally from section 44C(2)(b) of the Reserve Bank Act, as read with section 4(1)(d) of SI33 of 2019, is that foreign loans and obligations denominated in any foreign currency are excluded from the broad remit of S.I.33 of 2019. Thus, foreign loans and obligations continue to be valued and payable in the foreign currency in which they are denominated.”

The term “foreign loans and obligations denominated in any foreign currency” as it appears in section 44C(2) of the Reserve Bank Act, is not defined in SI33 of 2019.

As stated in Breastplate Service (Pvt) Ltd v Cambria Africa Plc SC66-20, its meaning, in any given case, must be ascertained from the factual circumstances of the parties involved and the material substance of the transaction that they have entered into.

Section 44C(2)(b) of the Reserve Bank Act makes it clear, that, the issuance of any electronic currency, that is RTGS dollars, shall not affect or apply to any foreign obligation, as the provision explicitly excludes foreign obligations valued and expressed in United States dollars from the deemed parity valuation in RTGS dollars.

It is settled, that, the effect of SI33/19 was to render all assets and liabilities, except those referred to in section 44C(2)(b) of the Reserve Bank Act, as values in RTGS dollars at the exchange rates prescribed.

It was the appellant's position, that, since the parties had concluded a Deed of Settlement, the court a quo was not entitled to take into consideration agreements that preceded the Deed of Settlement.

The appellant argued that the Deed of Settlement constituted a compromise.

It was the appellant's further submission, that, it did not matter that the debt had been expressed in United States dollars. The argument was that the issue was whether the appellant could discharge his liability in RTGS dollars at the rate of one-to-one in terms of SI33 of 2019.

The Deed of Settlement, and the preceding contracts, have to be read together for a proper understanding of the arrangement the parties entered into.

The source of the funds had to be established first for the Court to be able to make a determination of the issue of the currency in which the debt, admittedly due, had to be repaid.

The court a quo stated as follows in relation to its findings on the source of funding at p4 of its judgment:

“In proving its source of funding for the 2016–2017 tobacco cropping season, the applicant had attached a letter dated 28 May 2015 by Standard Chartered Bank addressed to the Export Finance Manager of the applicant.

In that letter, the bank confirmed, that, the Reserve Bank of Zimbabwe had authorised the applicant to draw down US$25,494,506 from their offshore lines of credit to finance the 2015–2016 tobacco growing season.”

It is on record, that, the appellant accepted that if evidence was presented establishing that the loan he received was from offshore funding, the debt would have to be settled in United States dollars.

The court was seized with a sui generis contract.

The tobacco grower agreement cannot be examined without reference to the source of funding.

This is so because the nature of the funds advanced to tobacco growers under offshore funding contract arrangements must be preserved, as the funds are sourced solely for the purposes of tobacco growing.

The term “Crop Finance” as provided for in the Tobacco Grower Contract Agreement, clearly links the money involved to off shore funds.

If the respondent is an authorised dealer, the understanding is that funds obtained and advanced in United States dollars are repayable in the denominated currency.

Tobacco is a crop that is sold in the market in foreign currency to enable beneficiaries of off-shore funding arrangements to repay their creditors in foreign currency so that the latter are able to service their offshore funding contractual obligations.

A party enters into a tobacco growers contract, knowing that he or she or it is to be funded by an offshore loan denominated in United States dollars. He or she or it undertakes the obligation to repay the loan in that currency. As a consequence, the contract arrangements entered into by the individual tobacco growers and the respondent are an execution of the obligation to perform the offshore funding contracts entered into by the respondent and its creditors.

If payment were to be made in RTGS dollars, contrary to the clear and unambiguous language of section 44C(2)(b) of the Reserve Bank Act, the purpose of the provision of ensuring that tobacco farmers benefit from offshore funding lines of credit accessible to the respondent and others in similar business would be defeated to the detriment of the national interest in the protection and promotion of the development of the tobacco industry.

The court a quo cannot be faulted for holding, that, the funds advanced to the appellant had to be repaid in United States dollars.

Zambezi Gas (Pvt) Ltd v NR Barber & Anor SC03-20 is distinguishable from the present matter.

The present case relates to offshore funding.

The obligation incurred by the respondent was a foreign obligation denominated in foreign currency within the contemplation of section 44C of the Reserve Bank of Zimbabwe Act [Chapter 22:15].

The Deed of Settlement was entered into for the purpose of allowing the appellant to repay the debt he acknowledged to be owing in instalments in United States dollars. The Deed of Settlement was for the benefit of the appellant. The appellant cannot escape the obligation he voluntarily undertook to repay the funds advanced to him in United States dollars for the specific purpose of financing the production of the tobacco crop by calling the Deed of Settlement a compromise.

There was no dispute between the parties over the currency in which the offshore funds received by the appellant, from the respondent, had to be repaid.

The respondent was entitled to invoke the provisions of section 44C(2)(b) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] to protect its rights to the repayment of the offshore funds advanced to the appellant in United States dollars under the Deed of Settlement.

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 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 defendant in reconvention pleaded as follows to the counter-claim:

When the plaintiff in reconvention advertised its tender notice, the tender was not won by the deadline. The tender notice was then revised and extended.

It (the defendant in reconvention) submitted its bid during the extension.

According to the specifications of the re-advertised tender notice, it was not a requirement that the excavator be brand new. Even its tonnage had also been reduced. The tender that was won by the defendant in reconvention was not as per the initially advertised tender notice as evidenced by the discrepancy in tonnage of the excavator.

The defendant in reconvention averred, that, at all material times, the plaintiff in reconvention was fully aware that the excavator to be supplied would be pre-owned.

When the excavator was delivered, it was inspected by all responsible authorities and then certified to be in good working condition. The parties did not agree that the machinery to be supplied would be brand new.

The defendant in reconvention prayed for the dismissal of the counter claim with costs on a higher scale.

In its replication, the plaintiff in reconvention averred the following:

The excavator was supposed to be new. It disputes that the tender that was won by the defendant in reconvention was not the one that was initially advertised. The defendant in reconvention was paid the deposit for both the excavator and front end loader after a meeting was subsequently held. It disputes that the excavator that was delivered was in good working condition.

At the pre-trial conference, the parties agreed that the issues for trial were:

1(a) Whether or not the plaintiff should be compelled to deliver a brand new excavator; or, alternatively

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

2. Whether or not the plaintiff is entitled to payment of the outstanding amount.

To prove its case, the plaintiff led evidence from one witness, Darlington Chirara, who is its Managing Director since 2007.

His evidence was as follows:

In June 2011, he went to Chitungwiza Municipality head office chasing after his payment. At the Registry section notice board there was a tender notice asking for a refurbished 20 tonne Crawling Excavator and a 3 tonne Front End loader. Tender documents were going for US$5,000.

He went back the next day and bought the tender documents which included a tender form which was supposed to be filled in duplicate and attached to the quotation. He filled in the tender form for the excavator and attached it to his quotation and had them stamped by the defendant's registry section on 9 June 2011 on receipt.

The tender document, together with the tender form and the quotation, were produced as exhibit(s) 4 and 5…,.

The tender reference number for the supply of the excavator is CH.05/11.

Darlington Chirara said, that, on the tender form, he filled in the condition of the machinery as a 200g Model, a Hyundai Model which had already done 2,972 hours as it was a second hand. Its under-carriage life percentage was 76% meaning that 24% was already worn out or gone because of use.

He said that in exhibit 5, which is the quotation, he quoted a 20 tonne excavator valued at $182,000.

He said that, on 7 July 2011, he received a letter from the defendant saying that the plaintiff had won the tender to supply a refurbished 20 tonne excavator and a 3 tonne front-end loader.

The letter was produced by consent as exhibit 6 in the supplementary bundle.

The letter was written on 6 July 2011 to the directors of the plaintiff, by G. Tanyanyiwa, who was the then Town Clerk. It is on the defendant's letter head. It reads:

“REF: Supply of refurbished 20 tonne Crawling Excavator and 3 tonne Front Loader

Reference is made to the above.

You have been awarded the Tender to supply the Municipality with the above equipment.

You are required to supply the equipment within 30 days from receipt of deposit which is going to be paid within the next 2 weeks.

May you please treat this order with urgency since there are disease outbreaks and we would like to use the equipment to arrest the spread of diseases.”

Darlington Chirara said, that, in August 2011 the plaintiff received a purchase order and a transfer copy of the RTGS from Metropolitan Bank dated 24 August 2011 showing that the defendant had paid the 50% deposit as per the plaintiff's request in the quotation.

The purchase order was produced as exhibit 7…,.

It is dated 18 July 2011, but it was signed on 1 August 2011. It is for the purchase of a tracked excavator 20 tonne for US$182,000.

The RTGS, exhibit 8…, shows that it is dated 24 August 2011 for US$91,000, for the benefit of the plaintiff by the defendant. However, on top of the date stamp it is crossed and written “not processed.”

Darlington Chirara said, that, to the plaintiff's surprise, the money never came through. It was only paid after the plaintiff had issued summons.

The defendant finished paying the deposit for both the excavator and the front loader in February 2014. $90,000 was paid for the excavator and $50,000 was paid for the front-end loader.

He then delivered a 20 tonne excavator on 19 June 2014.

On delivering the machinery, he saw the Director of Works, Mr Gwanzura, who called the now current Town Clerk, Mr George Mukunde, who in turn called seven (7) councillors who were there. They came and inspected it and then instructed the Chief Internal Auditor, Mr Chipunza, to accompany him to the workshop with the machine. At the workshop they saw Mr Musiwa and the Workshop Foreman who inspected the machine and tested it for almost two (2) hours. After that, they signed the delivery note, which was produced by consent as exhibit…,.

The delivery note shows, that, it was signed by one Innocent on behalf of the defendant and it states, that, the machinery was received in good working order.

Darlington Chirara said that the machinery had tips and a cigarette lighter. The fuel gauge and the wipers were working.

On the tender form, he had stated, that, the machinery which was going to be supplied was a 7 series model i.e. 210 LC-7.50. He said that the defendant knew from the onset about the type of machinery that was going to be supplied.

He said the defendant even had the Ministry of Local Government, Public Works and National Housing write a letter to ZIMRA indicating that it (the defendant) had been granted a duty free certificate to facilitate the delivery of a Robex 210 LC-7H Hyundai Excavator valued at US$182,000.

It was signed on 14 April 2014. The letter was produced by consent as exhibit 12…,.

Darlington Chirara said that after delivering the excavator, on 19 June 2014, he was then furnished with a report, dated 11 July 2014, from the defendant, listing the defects it said it found on the excavator.

He said that he was disputing all of them.

He said that he was not even aware of the qualifications of the person who did this report, but he suspected that this person was an interested party in the same business as the plaintiff, because, after issuing the report, he went on to issue a quotation to supply the same machinery to the defendant.

He said that when he delivered the excavator it was in good working order.

When the inspection was done and the report was compiled, three (3) weeks later, no one from the plaintiff's company was present. The plaintiff was not made aware of the inspection.

He said that there was need for him to train the defendant's employees on how to operate the machinery. He said that in his quotation he had indicated that he would provide Basic Operator Orientation under the heading “Handover”. He said that he has not yet trained them because he has not been paid the outstanding amount.

During cross examination, the witness said that he did not respond to the Tender Notice which was flighted in the Herald Newspaper, but the one on the notice board of the Registry section at the defendant's headquarters.

He said he did not have proof of such since it was on the notice board.

He admitted, that, the delivery note that was signed by Innocent, on behalf of the defendant, was prepared by the plaintiff.

He disputed that the excavator was not inspected on delivery as it was inspected by the defendant's employees and signed for by Innocent as to have been received in good working order.

He said that he would have done the commissioning of the excavator once the purchase price had been paid in full within seven (7) days from the date of delivery.

He was shown minutes of a meeting which was held on 17 September 2013 between the plaintiff's directors and the defendant's management. These minutes were later produced by the defendant as exhibit 20…,.

He admitted that he attended that meeting.

Although in those minutes it is stated, that, it was agreed that the plaintiff would supply and deliver brand new equipment, Darlington Chirara disputed this saying that these minutes were not a true record of what was agreed on.

He said that these minutes were prepared by the defendant.

He maintained, that, when he delivered the machinery, it had no defects and US$182,000.00 was its value.

He said that the minutes were not sent to him before they were confirmed.

Referring to exhibit 10…, which is a letter which he wrote to the defendant's Town Clerk, on 22 August 2011, he said that it was the defendant which was supposed to prepare the tender contract between the parties but it was never prepared.

He said that, instead, the defendant furnished the plaintiff with a purchase order.

During the defendant's case, Mary Mukonyora, who is its Acting Chamber Secretary testified as follows:

The Tender Notice by the defendant, inviting tenders to supply an excavator and a front end loader, was placed in the Herald Newspaper. The closing date which was set for the submission of tenders was 31 May 2011.

The Tender Notice was produced as exhibit 13…,.

It shows, that, the defendant advertised for the supply of a 30 tonne excavator and a 3 tonne front-end loader.

The witness said, that, on 23 June 2011, there was a procurement meeting that was held by the Procurement Committee, and, in that meeting, the Procurement Committee recommended the awarding of the tender for the supply of the excavator and front end loader to the plaintiff.

The minutes were produced as exhibit 14…,.

These minutes show, that, the plaintiff was accorded the tender to supply a 20-tonne Tracked Excavator for US$182,000 and a 3-tonne Front End Loader for US$105,000. However, it was specified that the machinery was supposed to be new.

The minutes also show, that, the Town Clerk, Mr. G Tanyanyiwa, was in attendance of the meeting.

The witness said, that, these recommendations were being made to the full Council which later held its meeting on 21 July 2011.

The minutes of the full Council meeting were also produced by consent as exhibit 15…,.

They show that G Tanyanyiwa, the Town Clerk, was in attendance again.

The full Council adopted the recommendations of the Procurement Board on the award of tenders for the supply of the machinery.

Mary Mukonyora said, that, when the plaintiff then delivered a second hand excavator, the new Town Clerk, Mr. G. Makunde, wrote to the plaintiff, on 11 July 2014, raising the issue.

The letter was produced as exhibit 16…,.

In that letter, Mr Makunde stated, that, the defendant noted with great disappointment that the excavator was second-hand.

The witness said, that, according to an expert the defendant engaged, the machinery was not in good working condition.

The report that was compiled by the expert was produced as exhibit 19…,.

It enumerates about 19 defects and states that key accessories were missing. It states that the machine is an old machine that was repaired and resprayed.

The witness disputed that the Tender Notice was ever flighted on the Registry notice board for the supply of a refurbished excavator.

She said, that, from the time the excavator was delivered, it has never been used by the defendant. It is at the defendant's workshop.

The witness also made reference to the minutes of a meeting which was held on 17 September 2013 involving the directors of the plaintiff and the defendant's management.

These minutes were produced as exhibit 20…,.

They show, that, the meeting was held following the issuance of summons by the plaintiff for breach of contract; in that the defendant had not paid the deposit for the supply of the machinery by the plaintiff despite the plaintiff having won the tender in 2011. The plaintiff was suing for damages for breach of contract or for the payment for the equipment since the machinery was already there.

The minutes show, that, the parties agreed that the defendant would pay for the machinery and the plaintiff was to supply brand new equipment after payment of 50% deposit of the total value.

During cross-examination, the witness said that she got employed by the defendant on 1 October 2012 as Head of Human Resources, and, in 2015, she assumed the position of Acting Chamber Secretary.

She admitted, that, the letter notifying the plaintiff of having won the tender to supply a 20 tonne refurbished excavator and a 3 tonne front end loader, which was written by G. Tanyanyiwa, the then Town Clerk, on 6 July 2011 (exhibit 6) and the minutes of the Procurement Board recommending that the plaintiff supplies a 20 tonne excavator and 3 tonne front end loader were consistent.

She said that she, however, doubted the authenticity of the letter of G. Tanyanyiwa. She said that she doubted if it was genuine.

She, however, admitted, that, other than this document which was written by G. Tanyanyiwa, there is no any other document from the defendant which notified the plaintiff of having won the tender.

She also said, that, she sent the minutes of 17 September 2013 to the plaintiff for authentication, but, admitted that she had no evidence to prove that she had indeed sent the minutes for confirmation.

She said that Innocent, who received the excavator on behalf of the defendant and signed the delivery note, is not an expert in such machinery, but is just a clerk who works at the Stores department.

She said that the machine had not even been commissioned, yet, its standard practice to have equipment demonstrated to be in good working order.

She said that all the defendant's Tender Notices are done through the newspapers.

She, however, explained, that, if all tenderers say they can supply a 20 tonne excavator instead of a 30 tonne excavator which would have been advertised for, the defendant can make adjustments and accept the supply of a 20-tonne.

She said that the excavator was received by the defendant on 19 June 2014. It was inspected by the expert on 30 June 2014. The letter of complaint to the plaintiff, about the defects on the excavator, was written on 11 July 2014.

She said that the tender number on the Tender Notice which was flighted by the defendant is 5/11, yet, on the tender documents that the plaintiff submitted quoted the tender number as CH/05/11. She said that showed that the plaintiff was responding to a different Tender Notice than the one advertised in the Herald Newspaper with a deadline for submissions of 31 May 2011.

George Makunde, the current Town Clerk of the defendant, testified as follows:

He said that he joined the defendant in August 2012 and got to know about this case through a perusal of the defendant's documents.

He outlined the procedure that is followed by the defendant in procuring equipment.

He said that a Tender Notice is flighted in a national newspaper guided by section 30 and 31 of the Procurement Act [Chapter 22:14] inviting the submission of tenders. The Procurement Committee/Board then deliberates on the submitted tenders and makes recommendations in terms of the award of the tender to the winner of that particular tender. The recommendation is made to a formally constituted full Council of the defendant in the form of a report. Full council then makes a resolution on the issue which resolution then allows or authorises the Town Clerk, as the Chief Executive Officer or Accounting Officer, to then notify the winning tenderer for the provision of the goods or service so required.

The witness alluded to the Tender Notice that was flighted by the defendant; the minutes of the Procurement Committee of 23 June 2011; and the minutes of the full Council meeting of 21 July 2011 that Mary Mukonyora referred to in her evidence.

His evidence on all these documents was similar to that of Mary Mukonyora in all material respects.

He also reiterated that the tender required that the plaintiff supplied a brand new 20 tonne excavator and a 3 tonne front-end loader.

He disputed that the excavator that was delivered was in good working order saying that although he saw the excavator on the day it was delivered, he did not inspect it to satisfy himself that it was in good working order as he lacked the expertise in testing the machinery.

He said that inspection of machinery is contained in the regulations that guide procurement and it is a process and not an event.

He also said that Innocent, the clerk who received the machinery, has no qualifications to test its condition.

He said that the excavator was not able to perform its obligations and was never used by the defendant.

The witness said that he suspected that the letter that was written by the then Town Clerk, G. Tanyanyiwa, on 6 July 2011, notifying the plaintiff that it had won the tender to supply a refurbished excavator and front-end loader was as a result of a collusion between Mr. Tanyanyiwa and the plaintiff because it was written before the full Council of the defendant had made a resolution on 21 July 2011 to award the tender as per recommendations by the Procurement Committee which had set on 23 June 2011.

The witness evidence with regards to the minutes of 17 September 2013 (exhibit 20) was similar to the evidence that was given by Mary Mukonyora. He also testified, that, in that meeting, it was agreed that the plaintiff would supply a brand new excavator and a brand new front end loader, but, the plaintiff did not deliver brand new machinery.

During cross examination, the witness explained, that, receiving machinery on its delivery and commissioning of the machinery are two different things.

He also explained that the delivery note that was signed by Innocent, the defendant's employee, is a document which was prepared by the plaintiff and it already had the words “received in good working order” printed on it and all that Innocent did was to affix his signature after those words.

It is not Innocent who wrote those words.

He said that, initially, it was the transport personnel who observed that the excavator was second hand and this prompted the defendant to invite an expert, Nicnel, to come and inspect it.

Before that, Automobile Association of Zimbabwe (AAZ) had been called to come and check if the equipment was new.

He explained that the defendant never invited the plaintiff to be in attendance because, in business ethics, you would not want to give the impression that you are dealing with a dubious institution. He said that the defendant wanted to satisfy itself about the excavator hence it called in the Automobile Association of Zimbabwe (AAZ) to inspect it.

The witness said that the plaintiff gave them the price of US$182,000 for an old excavator yet Nicnel gave the defendant a quotation for a new excavator from Hyundai going for US$159,275 on 30 June 2014. He said that although the models are different the disparity in prices showed that the plaintiff was not dealing with the defendant in good faith.

Ryan Edward Berry testified as follows:

He is and has been employed by Nicnel Plant and Equipment (Private) Limited as the Technical Sales Manager for four (4) years now.

He was called by the defendant to inspect the excavator which is in issue.

He noticed that it was a second-hand, having done over 6,000 hours yet the meter read that it had only done 6 hours. The bucket had no tips similar to a car delivered with no tyres. The engine pipes were damaged from the breather which would allow dust to enter if the engine was to run for an extended period. The machine could start and run, but it could not perform its functions properly because it did not have tips and the engine was in a poor state of repair.

He said that the excavator is an LC-7 model, which is an old model which was manufactured until 2012, but a 9 model was manufactured from 2012 onwards.

About his qualifications, he said that he has “O” Level with technical experience from being on the job for about eight (8) years in the industry.

He said that because of this, he took a technician with him to inspect the machine.

He said that as the Sales and Technical Manager, he oversees his technicians using their expertise.

He said that Wency is the technician who inspected the machine as he (witness) filled out the report. However, he admitted that his name does not appear on the report. He said that Wency refused to come to court as he had been phoned, harassed, and intimidated.

He admitted to supplying his own quotation for an excavator to the defendant - on the same day of 30 June 2014 the excavator supplied by the plaintiff was inspected.

It is necessary to first determine whether or not the parties entered into a contract for the supply and delivery of brand new or refurbished machinery.

Having listened to the evidence given by the witnesses of both parties, it is clear that there is a dispute as to which Tender Notice the plaintiff responded to when it submitted its tender documents and quotation to the defendant's registry section on 9 June 2011.

This is because although the defendant's witnesses said that the response was to the Tender Notice it flighted in the Herald Newspaper with a deadline for submissions of the tenders of 31 May 2011, the defendant's date stamp on the plaintiff's tender documents show that they were received by the defendant's registry section on 9 June 2011 and the Tender Notice reference number that is quoted which is CH/05/11 is different from the Tender Notice reference number which is on the Tender Notice that was flighted in the Herald Newspaper by the defendant.

Whilst the plaintiff's witness said that the plaintiff was responding to a revised Tender Notice that was flighted on the defendant's registry notice board, he did not furnish the proof thereof saying, that, since the tender notice was on the notice board he could not get a copy thereof as other people also needed to see the notice.

However, despite this explanation by the plaintiff, I am convinced by the evidence which was given by the defendant's witnesses, that, the defendant flights tender notices in the national newspapers and not on notice boards.

They made reference to the provisions of the Procurement Act [Chapter 22:14] which Act makes provision for the procurement of goods, construction work, and services by the State and statutory bodies.

Section 30(1)(a) of the Procurement Act states, that, the procurement of goods, construction work, and services by a procuring entity shall be done by means of tendering proceedings in accordance with section 31.

Section 31(1)(a)(ii) of the Procurement Act [Chapter 22:14] then reads:

“Subject to this Act, in any tendering proceedings conducted by a procuring entity, the invitation to suppliers to tender shall be published in a newspaper circulating in the area in which the procuring entity has jurisdiction or carries on business, where the procuring entity is not the State.”…,.

The use of the word 'shall' in section 31 of the Procurement Act means that it is peremptory for the Tender Notice to be flighted in a national newspaper.

I also looked at section 211(1) and (2) of the Urban Councils Act [Chapter 29:15] which deals with tender proceedings by municipals. It reads;

“211 Tenders

(1) In this section —

'municipal procurement board' means a municipal procurement board appointed by a municipal council in terms of section two hundred and ten.

(2) Subject to subsections (8) and (9), before entering into a contract for the execution of any work for the council or the supply of any goods or materials to the council which involves payment by the council of an amount exceeding such sum or sums as may be prescribed, the council, or, in the case of a municipal council, the municipal procurement board shall call for tenders, by notice posted at the office of the council and advertised in two issues of a newspaper…,.”…,.

Whilst in terms of the Urban Councils Act a tender notice shall be posted at the office of the municipal council, it should also be advertised in a newspaper.

The defendant must therefore flight tender notices in accordance with the provisions of the Procurement Act and the Urban Councils Act.

If the defendant only flighted a tender notice on its notice board and did not do so in the newspaper it did not comply with the law.

However, if this is what happened, the plaintiff ought to have produced proof of the advertisement of such tender notice.

In the absence of such proof, I am led to conclude, that, the plaintiff's director was not being honest with the court about having seen such a tender notice on the notice-board of the defendant on 8 June 2011. Such advertisement would not have been in compliance with section 31 of the Procurement Act and section 211(2) of the Urban Councils Act.

Besides, the defendant has no such tender notice in its files or records.

He who alleges must prove and the plaintiff failed to prove the existence of Tender Notice CH.05/11.

The only tender documents that were produced are those that came from the plaintiff which were said to be its copies.

The defendant's witnesses had no knowledge that the Tender Notice 05/11, which had a deadline of 31 May 2011, was ever revised and extended. There is nothing that shows that in the defendant's records.

With this, I am not satisfied that Tender Notice 05/11, which was flighted by the defendant in the Herald Newspaper, was ever revised and extended.

In any case, it defies logic that the defendant, a municipality, would invite tenders for the supply of second hand machinery. I cannot think of a reason why it would do that.

What is disturbing about this case is that, on 23 June 2011, when the defendant's Procurement Committee/Board set and recommended, in its report to full Council, that the tender for the supply of a brand new excavator and front end-loader be awarded to the plaintiff, Mr G. Tanyanyiwa, the then Town Clerk, was in attendance.

In terms of procedure, the recommendation was subject to adoption as a resolution by a full Council meeting. Such a meeting was only held on 21 July 2011.

The Town Clerk, Mr. G. Tanyanyiwa, even attended that meeting as well.

At that meeting, full Council passed a resolution that the plaintiff be awarded the tender to supply a brand new excavator and front end loader.

What is buffling is that, on 6 July 2011, well before full Council had sat, Mr. G. Tanyanyiwa wrote to the plaintiff notifying it that it had won the tender to supply a refurbished excavator and frond-end loader.

Two questions arise:

(i) Firstly, why did he notify the plaintiff that it had won the tender before full Council had held a meeting to pass the recommendation as a resolution?

(ii) Secondly, why did he tell the plaintiff that it had won the tender to supply refurbished machinery?

These queries or questions show that the then Town Clerk was not conducting himself properly in the discharge of his duties.

This is worsened by the fact, that, he was in attendance at the full Council meeting which was later held on 21 July 2011 which adopted the recommendations of the Procurement Committee/Board which stated that the plaintiff was to supply brand new equipment.

When the adoption of the recommendation was made, he knew that he had already notified the plaintiff that it had won the tender to supply refurbished equipment - but he did not inform the Council.

Obviously, that is a sign that he knew that what he had done was improper.

This is further evidenced by the fact, that, after full Council had passed the resolution to award the tender to the plaintiff, he did not write a letter notifying the plaintiff about it as he was supposed to do as per procedure.

The critical question now is: is the defendant bound by the irregular conduct of its employee, the Town Clerk, who told the plaintiff that it had won the tender to supply refurbished machinery when in fact it wanted to be supplied with brand new machinery?

The plaintiff's counsel submitted, that, by virtue of the turquand rule, the defendant is bound.

I must point out from the onset, that, the turquand rule is a principle of company law.

In terms of the turquand rule, if a party transacts with a company only to later discover that the director lacked the authority to bind the company, the company may be forced to honour the transaction if the transaction was completed in good faith by the other party.

The rule is based on the English case of Royal British Bank v Turquand 1856 119 ER 886, wherein it was held, that, people transacting with a company are entitled to assume that internal company rules have been complied with even if they are not. The exceptions to this rule are:

(i) Firstly, if the outsider was aware of the fact that the internal requirements and procedures have not been complied with (in other words, he acted in bad faith).

(ii) Secondly, if the circumstances under which the contract was concluded on behalf of the company were suspicious.

Counsel for the plaintiff went on to cite the case of Potchefstroom se Stadsraad v Kotze 1960 (3) SA 616 AA…,. The case involved a municipality. The turquand rule was held to be applicable to municipalities.

In that case, the Town Clerk, just like in this case, had written a letter to the respondent cancelling the lease agreement between the municipality and the respondent when the municipality had not authorised the cancellation of the lease agreement. The municipality was now demanding money for rent from the respondent and a dispute arose as the respondent refused to pay saying that the lease agreement had been cancelled. The court held that:

“A municipality, in the normal exercise of its functions, necessarily concludes contracts with members of the public. It would be unbusiness-like if the respondent had been duly bound, when he received the Town Clerk's letter, to make enquiries to ensure that the Town Clerk was in fact authorised by the Town Council to convey the cancellation.”

Applying the law to the present case, counsel for the plaintiff submitted, that, the internal workings of Council are not known to the plaintiff, and, as such, there is a presumption of regularity in the adherence to Council procedures which makes it impossible for the defendant to escape liability on the basis that Mr. Tanyanyiwa had not been authorised by the defendant to write the letter that he wrote on 6 July 2011.

To begin with, with all due respect, I am not in agreement with the reasoning in Potchefstroom se Stadsraad v Kotze 1960 (3) SA 616 AA that the turquand rule is applicable to municipalities.

I see no basis for saying that.

Municipalities and companies are different entities.

In terms of section 131 of the Urban Councils Act [Chapter 29:15], a Town Clerk is an employee of the defendant (municipality) and his duties are outlined in section 136. These involve the administration of council, managing operations and property of council, supervise the activities of council employees, and any other duties that may be assigned to him by the Council.

The Urban Councils Act does not give the Town Clerk powers to take over the functions of Council when it comes to procurement issues and make binding decisions on its behalf.

The Urban Councils Act has provisions which deal with how goods and services are procured and those provisions are worded in peremptory terms as they use the words 'shall' and 'shall not'.

In terms of section 210(1) of the Urban Councils Act, every municipal council shall appoint a Procurement Board which is responsible for arranging tenders and for making recommendations to Council in regard to the acceptance of tenders and the procurement of goods, materials, and services.

In terms of section 210(4) of the Urban Councils Act:

“A municipal council shall not procure any goods, materials, or services unless its municipal procurement board has made recommendations to the council thereon and the council has considered such recommendations.”…,.

I do not believe that a Town Clerk's actions have the power to override the wording of the provisions that is peremptory.

Therefore, the letter of Mr. G. Tanyanyiwa, which was written on 6 July 2011, before the full Council meeting had been held on 21 July 2011, notifying the plaintiff that it had won the tender to supply refurbished machinery is therefore of no force and consequence. It does not bind the defendant.

So the contract that was purportedly entered into by and between the plaintiff and the defendant pursuant to the letter which was written by G. Tanyanyiwa is a nullity.

Assuming that the turquand rule is applicable to municipalities, as was held in Potchefstroom se Stadsraad v Kotze 1960 (3) SA 616 AA, it would not be proper to hold the municipality bound by the actions of a Town Clerk because a Town Clerk is not a functionary of the municipality but an employee.

A councillor, instead, would bind the municipality because a council is run by councillors, not by its employees.

I would equate a councillor to a director of a company.

In terms of the turquand rule, an employee of a company does not bind the company if he purports to act on behalf of the company.

So, in the present case, even assuming that the Tender Notice was properly advertised, the letter that was written by the then Town Clerk, Mr. G. Tanyanyiwa, would not bind the defendant because he had no authority to enter into contracts on behalf of the defendant as he was not a councillor, but just an employee.

In any case, even if the turquand rule was applicable, and even if the defendant, as a municipality, was bound by the actions of its Town Clerk, looking at the circumstances of this case, I would make a finding that the parties did not enter into a valid contract.

I say this because this is a contract which is supposed to be based on a tender notice which should have been properly advertised in terms of the Procurement Act and the Urban Councils Act.

Section 211(2) of the Urban Councils Act states, that, before entering into a contract for the execution of any work for the Council or the supply of any goods or materials to the Council, the Council shall call for tenders, by notice posted at the office of the Council and advertised in two issues of a newspaper.

The plaintiff was not able to produce the revised tender notice CH.05/11 which it said it responded to.

Since the defendant was disputing its existence, the plaintiff ought to have produced it to show that the contract which was entered into was entered into in compliance with the law.

The only tender notice that was produced is the one referenced 05/11, with a closing date for the submission of tenders of 31 May 2011, which the defendant is saying it is the only one it flighted in the Herald Newspaper.

The plaintiff's tender documents were submitted to the defendant's registry section on 9 June 2011 according to the date stamp on them. They were submitted way out of time - after the deadline of 31 May 2011.

To make matters worse, they only bear the date-stamp, but bear no name of the registry person who received them.

Mary Mukonyora even queried their authenticity on this basis alone.

I also query their authenticity.

It is my conclusion, that, these tender documents were submitted on the basis of a non-existent tender notice.

On this basis, alone, any contract that flowed from it is a nullity as it has no leg to stand on.

Clearly, the circumstances under which the contract was concluded are suspicious. This is even worsened by the fact, that, G. Tanyanyiwa, as the Town Clerk, mero motu wrote a letter to the plaintiff well before full Council had passed the resolution that the tender be awarded to the plaintiff.

To make matters worse, contrary to the recommendations of the Procurement Board, he said that the plaintiff had won a tender to supply refurbished machinery.

What this shows is that both Darlington Chirara, the director of the plaintiff, and G. Tanyanyiwa, the Town Clerk, were probably acting in connivance and were probably involved in underhand dealings because their actions are highly suspicious.

In light of the foregoing, I thus make a finding, that, there was never a contract between the plaintiff and the defendant.

Having concluded that there was never a contract between the parties, I will therefore not go on to deal with the issues of novation of the contract.

The defendant's second witness, Mr George Makunde, had said in his evidence, that, if it is held that the defendant is bound by the letter which was written by the then Town Clerk, Mr. G. Tanyanyiwa, then, that contract was novated by what the parties agreed upon in the meeting of 17 September 2013 (exhibit 20) that the plaintiff was to supply a brand new excavator and front end loader.

Novation is the substitution of a new contract for an old one. The new agreement extinguishes the rights and obligations that were in effect under the old agreement.

Since no contract was entered into in the first place, there is no novation to talk about.

Since there was never a contract between the parties, the plaintiff is not entitled to payment of the remaining balance of US$119,300 that it is claiming. The plaintiff is entitled to collect its machinery from the defendant.

In respect of the counter-claim, the plaintiff in reconvention (the municipality) is entitled to a refund of US$140,000 being the money it paid as deposit of the purchase price.

Since there was no contract between the parties, I cannot order the defendant in reconvention (Upset Investments (Private) Limited) to deliver a brand new excavator and a brand new front end-loader. Consequently, the plaintiff in reconvention cannot be entitled to any damages for breach of contract or any storage charges.

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

On costs of suit, the defendant prayed that the plaintiff's claim be dismissed with costs on a higher scale, but I see no justification for the award of such costs.

In the result, I order as follows:

1. The plaintiff's claim is dismissed.

2. The plaintiff pays to 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.

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.

The appellant was aggrieved by both his conviction and the sentence. He now appeals against both the conviction and sentence.

Although the notice and grounds of appeal were filed timeously, this court was of the view, that, the grounds of appeal were so general and ambiguous, that, in the courts view, they did not comply with the clarity and specificity requirement in the rules of court: see Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, S.I.504/79.

Additionally, the heads of argument filed in support of the grounds of appeal did not address the grounds of appeal.

The appellant withdrew the appeal and made a fresh application for condonation for the late of filing of notice and grounds of appeal.

In that application, the appellant abandoned the earlier grounds of appeal and raised new grounds of appeal which were congruent with the already filed heads of argument.

The new grounds of appeal recite the following:

1. The court a quo seriously misdirected itself, such misdirection amounting to an error of law in convicting the appellant on the basis of a story whose actus reus is incapable of performance, or is, alternatively, implausible in the circumstances alleged and consequently not susceptible to proof beyond any reasonable doubt as is required by law, more in particular in that;

(a) The allegation that there was penetration of an eleven year old virgin, by adult appellant, whilst seated on a couch, and with the victim's panties brought down to knee level is most inconceivable;

(b) The penetration of an eleven year old virgin, by adult appellant, in a house full of people, without her screaming, is most improbable on the circumstance as to be unbelievable;

(c) The reaction of the complainant, to the act of sexual violence found to have been perpetrated against her, does not comport with reality and with a manner which can objectively be expected under such circumstances.

2. The court a quo seriously misdirected itself, such misdirection amounting to an error in law, in convicting the appellant notwithstanding the many material inconsistencies in the prosecution evidence, such inconsistences arising out of:

(i) Inconsistencies between the statement given by the complainant to the police;

(ii) Inconsistencies between the statement and the evidence given viva voce; and

(iii) Inconsistencies between the general evidence given and the scene report.

3. The court a quo misdirected itself in failing to consider the effect of the substantially similar failed charge of indecent assault on the assessment it had to make of the complainant, her testimony, the conditions under which she made the report, and her general credibility; all these factors considered.

4. The court a quo erred in law in concentrating and getting itself fixated on what it improperly found to have been appellant's suspicious conduct without considering whether there was, against the appellant, an objectively plausible case the existence of which would be the basis for the evaluation of his conduct.

5. The court a quo erred in disbelieving appellant's alibi in the absence of any evidence from the State undermining such defence and so erred in failing to consider and evaluate the quality of the evidence given by the appellant in support of the alibi.

6. Having found the sentence contended for by the State to have been draconian, the court a quo erred in effectively imposing a manifestly excessive sentence which was just as draconian as had been urged for by the prosecution.

On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the conviction and the quashing of the sentence imposed. Alternatively, he prayed, that, should the conviction be upheld, then, the sentence be reduced to 5 years with 2 years suspended on the usual conditions.

The appellant was convicted after a protracted trial in which evidence was led from several witnesses.

As background to the conviction, it is appropriate that the evidence led at trial be restated and analyzed in light of the findings of fact and conclusions of law arrived at by the trial court....,.

The events leading to the allegations were narrated in court by several key witnesses among them the following:

1. Tinashe Taruvinga (“Tinashe”) the complainant in respect of the indecent assault charge. Although the appellant was acquitted on her allegations of indecent assault, he argues that the court's treatment of her evidence ought to have applied in respect of the rape Count.

2. Nicole Tariro Taruvinga (“Nicole”) the complainant in the rape charge. The conviction was based on her evidence.

3. Sally Ndanatseyi Maramwidze (Sally”) the aunt to the two children. She received the initial report on the allegations from Nicole.

4. Francis Maramwidze (“Maramwidze”) the complainant's maternal grandfather and legal guardian of the two children. He took the initiative to make a police report and took up private prosecution when the Prosecutor-General declined it.

5. Edwin Tafadzwa Chanakira, the medical doctor who examined the complainant following upon the allegations.

6. Gresham Muradzikwa (“Muradzikwa”) the Director of Security at the RBZ.

7. Mirirai Chiremba (“Chiremba”) the Director of Financial Intelligence Unit at the RBZ.

8. Monica Kativhu, the investigating officer who was based at ZRP Borrowdale.

The defence, for which the appellant was the main witness, led evidence from the following other witnesses:

1. Patience Muswapadare Taruvinga (“Patience”) the aunt of the two complainants and the wife of the appellant. It was at her residence that the events subject of the trial took place.

2. Alpheus Njodzi Chinhamo or Chief Mukangamwi, to confirm a political plot;

3. Cletos Kereke, a brother to the appellant, to confirm the alibi;

4. Taurai Bwanaisa, a security guard, to confirm the alibi;

5. Norest Ndoro, another security guard, to confirm the alibi;

6. Anna Muswapadare, a step-mother of the complainant's father to deny the rape.

The court called Chiratidzo Lorraine Jeyacheya (“Dr Jeyacheya”) a medical director at Parirenyatwa Hospital, to clarify the authenticity of the hospital duty roster.

The Regional Magistrate analyzed the evidence of the sixteen witnesses. He first isolated the facts which were not in dispute, and then identified the issues for determination.

I will summarize the facts which were not in dispute at the trial.

Patience Muswapadare was, at the time, customarily married to the appellant. She testified on his behalf. She is the paternal aunt of the two complainants, Tinashe and Nicole. These two are the daughters to Patience Muswapadare's brother.

Between 20 and 27 August 2010, Nichole was at Patience's house at 11 Tovey Road, Vainona. Tinashe joined her there from 20 August 2010 till the 27th of August 2010.

There is a period during which the two girls were excluded from school over school fees which were in arrears.

On the night of 31 October 2010, Francis Maramwidze (“Maramwidze”) made a telephone call to Patience in which he summoned her to his residence. She indicated, that, as she had no transport, she could only come over the following day. On the following day, Patience went to the Maramwidze's residence. At this point, she was informed of the allegations by the minor children against her husband, the appellant.

It is not in dispute, that, between 20 and 21 August 2010 Anna Muswapadare, Calvin Muswapadare, and one Munyaradzi were present at 11 Tovey Road, Vainona.

During that time, it is agreed that Nicole shared bed and board with Anna Muswapadare.

On 22 August 2010, Nicole was aged 11 years.

The court a quo summarized the evidence of the two complainants in the following manner:

In August 2010, Tinashe and Nicole Taruvinga visited 11 Tovey Road, Vainona, to see their paternal aunt, Patience. On 20 August 2010, Tinashe left Nicole home when she went away for a prayer meeting. She returned on 23 August 2010.

Upon her return, Nicole gave her a report in which she claimed the appellant had raped her on a Saturday.

Nicole pleaded with her not to tell anyone as she feared that the appellant would harm her.

It was only after Nicole had made another report to Sally, in Avondale, that a family meeting was called in October 2010.

In that meeting, Sally had confirmed, that, in fact, Nicole had made a report of rape against the appellant to her a few days before.

On her part, Nicole told the court, that, on Saturday, around 03:00 she had been woken up by her aunt, Patience, who asked her to take care of the baby. She was preparing food for the appellant. She saw the appellant in the lounge and greeted him. She proceeded to the bedroom where she laid the baby on the bed. She sat on the couch.

The appellant followed her into the bedroom.

He said something that she did not understand. He proceeded to fondle her breasts and vagina. He then reached for her pants whilst at the same time producing a pistol. He then told her to comply with whatever he was saying. He pulled down her pants to knee-level and thereafter inserted his male organ into hers.

Only when he heard footsteps did he stop.

She managed to break free and rushed into her bedroom. Although her paternal grandmother was asleep in her bedroom, she did not report to her. Instead, she wept quietly. She did not want anyone to know about this incident.

The next morning, Sunday, she woke up and attended church and came back home.

On Monday, her older sister, Tinashe, came back from the prayer meeting. She confided in her about the Saturday night's event in which the appellant had raped her. She however pleaded with her not to tell anyone. It was later, on 30 October 2010, when she had visited her aunt, Sally, in Avondale, Harare that she reported to an adult member of the family. She asked Sally to advise her mother of the event. Instead, Sally asked her if she could inform other members of the family in Harare. Her mother was in London. The complainant agreed and Sally communicated this information to her sister-in-law, Philippa Maramwidze (“Philippa”).

The information was passed to the patriarch, Francis Maramwidze (Maramwidze). He later on made a telephone call to Patience.

On that same night, the matter was reported at Highlands Police Station, Harare. The complainant was medically examined immediately that night.

Sally Ndanatseyi Maramwidze (Sally) told the court that the two, Tinashe and Nicole, came to her place in Avondale on 30 October 2010. During the night, Nicole narrated to her how the appellant had, in August 2010, sexually molested her at 11 Tovey Road, Vainona. Nicole asked her to inform her mother about it.

She, in turn, asked the complainant if she could share the report with other family members. When the complainant agreed, she told her husband, and, the following day, the parties went to Greendale where the girls maternal grandfather stayed.

She gave this report to Philippa, her sister-in-law. The report was passed on to the patriarch, Maramwidze, her father-in-law.

When the matter was discussed, she told the court how emotional everyone became. The matter was eventually reported to the police at Highlands.

When Nicole repeated her story to Philippa, in Sally's presence, the complainant told Philippa not to tell her sister-in-law or their grandparents or anyone else as she feared that the appellant would use a gun on them.

At this point, Philippa asked Tinashe if she had suffered the same fate at the appellant's hands. Only then did Tinashe relate to other members of the family the inappropriate sexual advances to her which had taken place in March 2012.

Tinashe told them that the appellant had fondled her breast and buttocks and had kissed her against her will.

According to Sally, the complainant had not described to her the details of the rape until the following day in Greendale, because, as she was narrating her story, her husband had walked into the room. She asked him to excuse them. She went out briefly with the husband, and, when she came back, she found the complainant crying. She consoled her.

Given the complainant's emotional state, she was unable to probe her for further details.

By the time the report was made to Mr and Mrs Maramwidze, the rape details were, however, clear.

Maramwidze, the maternal grandfather of the two girls, is also the legal guardian. He confirmed that he had received a report concerning the rape allegations by Nicolle, against the appellant, on 31 October 2010. He had called Patience that same night but Patience could not come as she had no transport. That same night, he made a report to police at Highlands against the appellant.

The court a quo took note of the fact, that, in his evidence, Maramwidze indicated that he did not know the appellant prior to this matter. He therefore denied that he had sent the two girls to ask for school fees from the appellant; or that he personally asked for money from the appellant following upon the report to the police.

It was his evidence, that, the appellant had, on several occasions, visited his residence in order to discuss this matter but he had, on each occasion, refused to discuss the matter with him.

Patience had also brought her mother who wanted to negotiate with Maramwidze on behalf of the appellant. Anna Muswapadare also wanted to talk to the two complainants but Maramwidze denied her access to the children.

The witness gave evidence of how, as a family, they tried to get the appellant prosecuted from 2010 to 2015 - without success. Only after a court order did the private prosecution take off in 2016.

Edwin Chanakira, the medical doctor who examined the complainant, testified that he had reported for duty on 31 October towards midnight. His shift ran from midnight to 08h00. He had, upon examination, noticed a healed hymeneal tear. This indicated that the complainant had been sexually penetrated.

He disputed the contention that he was not on duty on 1 November 2010.

Gresham Muradzikwa, a Director of Security at the Reserve Bank of Zimbabwe (“the RBZ”), testified to events at the Bank.

The appellant was his superior when they were both at the Reserve Bank of Zimbabwe (RBZ).

In 2005, the appellant was issued with a CZ pistol for his personal protection. This firearm belonged to the Bank. When an officer is issued with a firearm, that officer makes an entry in a firearms register for accounting purposes. This would have been done in respect of the pistol issued to the appellant.

Sometime in 2010, the witness was called by his Divisional Head, Mirirai Chiremba. Upon attending at his superior's officers, he was asked if it was possible for him to accept back the CZ pistol previously issued to the appellant and also to backdate the receipt of the pistol beyond a certain date.

He refused.

He explained that such an anomaly would clearly be picked up by an audit inspection. That would create serious problems for him. Mirirai Chiremba (Chiremba) had the pistol with him. He refused to accept it. When he left, Chiremba was still holding the pistol in his hands.

Mirirai Chiremba, the Director of Financial Services Unit at the Reserve Bank of Zimbabwe (RBZ) worked under the supervision of the appellant during the appellant's time at the institution. The appellant was the advisor of the then RBZ Governor.

His evidence was, that, in the morning of 22 August 2010, he had woken up to find a missed call from his superior, the appellant. As would be expected, he returned the call. The appellant asked that they meet outside Bon Marche, Chisipite. They duly met around 06:45 that morning. In that meeting, the appellant, produced a pistol and its magazine as well as the cleaning kit. He handed these items to him with instruction that they be returned to the Security Department. When the witness asked why he was in a hurry to return them, the appellant informed him that there were people who were alleging that he had used the same to commit a crime. He also asked if an earlier date of return could be entered in the firearms registry.

The witness asked the appellant if he had robbed or murdered someone. The appellant told him that he had not done anything of that sort but that it was a minor dispute. The appellant looked worried. He took the pistol and its accessories.

This meeting occurred on a Sunday morning.

He then took the items to his office at the RBZ the following day. On the next day, the appellant came into his office with a memorandum on the rationalization of firearms at RBZ. He asked the witness to sign but the witness refused. The reason why he refused to sign was that the memo bore a back-dated date and required him to acknowledge receipt of the memo using that back dated date stamp.

The appellant was furious.

He threatened him with unspecified consequences if he did not sign and backdate the date stamp. Out of fear of these threats, the witness told the court a quo that he had signed the memorandum. The appellant took his signed copy and left.

At that time, the witness told the court that the appellant wielded a lot of power at the Bank before he resigned.

As soon as the appellant left, he called Muradzikwa, head of security in charge of the firearms registry. He explained to him what the appellant wanted done in respect of the fire-arm and its accessories which the appellant had returned. He specifically told Muradzikwa that the appellant wanted the date of return backdated.

Muradzikwa flatly refused.

He went out leaving him with the pistol which he kept in his safe until this day.

When it was put to him that his evidence was a fabrication meant to fix the appellant in order to conceal some alleged fraudulent activities in which he and Governor Gideon Gono were involved, he dismissed the suggestion out of hand.

Monica Kativhu, the investigating officer, explained that she had not compiled the scene report. She had received the docket with that report inside from police at Highlands. She had recorded statements from the complainant.

According to her, initially, Nicole had not mentioned anything about the gun until after she had given the statement to her guardian, Maramwidze, for him to peruse.

He had pointed out that the reference to the gun had been left out.

When she asked Nicole about a gun, Nicole confirmed that she had indeed omitted to make reference to the gun.

Another statement in which there was reference to the gun was then compiled.

The evidence led by the appellant was that he was away in the USA for the whole month of March 2010. He came back on 4 June 2010.

He denied that he had molested either Tinashe or Nicole. He disputed the evidence of fondling of breast and buttocks given by Tinashe and that of rape given by Nicole.

Instead, he raised the defence of an alibi in both Counts.

He told the court, that, on 20 August as well as 21 August 2010 he had left 11 Tovey Road, Vainona at 20:00pm proceeding to his other residence at 75 Wallis Road, Mandara. He arrived at this address at 21:00. His guards, Norest Ndoro and Taurai Bwanaisa, recorded in their log book his time of arrival as they were duty bound to do. His other wife and children were away at the farm for the week ending 22 August 2010. His brother, Cletos Kereke, had visited him from around 20 August 2010 until around 22:00 on 22 August 2010. From the time Cletos arrived, they were in each other's company till he left.

On the night of 20th and 21st August 2010, he had retired to bed at 21:00 and got up the following at 10:00.

He disputed visiting the Maramwidze residence on any occasion besides the only occasion when, on 1 November 2010, he went there to pick up his wife, Patience Muswapadare. On that occasion, these allegations were raised.

He denied that he has dispatched his mother-in- law, Anna Muswapadare, to plead with the Maramwidze's for an out of court settlement of the issues raised by the two girls.

Similarly, he disputed the truthfulness of the evidence given by the two Reserve Bank of Zimbabwe (RBZ) officials regarding the circumstances surrounding the return of the CZ pistol to his workplace. He denied forcing Chiremba to sign or demanding that the return date entry in the firearms registry be backdated. He maintained that he had returned the pistol on 14 June 2010 as acknowledged by Chiremba. He denied the encounter with Chiremba at Chisipite Shopping Centre or that he had handed over the pistol to Chiremba in that encounter.

Although he acknowledged that he had originated the memorandum in respect of the firearms, exhibit 6B, he denied that he had forced Chiremba to sign it. He denied that he had called Chiremba, and that, as a result of that phone call, they had met around 06:45 on 22 August 2010.

He claimed, that, at that time, he was sound asleep at his Mandara residence.

He told the court that these allegations are an attempt to extort money by the Maramwidzes. They had, before these allegations were raised, sent the two girls to ask him to pay for their school fees which were in arrears in the amount of $8,000. He had refused to give them. For that refusal, they were out to fix him.

He also drew the court's attention to the fact that he had made political enemies who were behind the framing of the allegations because he had exposed their fraudulent activities. These enemies ranged from his immediate boss, Gideon Gono, the head of the Central Intelligence Organisation, one Happyton Bonyongwe, and an officer in that organization, one Jimias Madzingira. The three want to silence him for exposing their fraudulent activities at the Reserve Bank of Zimbabwe (RBZ).

The other political enemies, former Vice President Joyce Mujuru, former Minister Webster Shamu, and David Butau were bent on tarnishing his political career through these allegations.

The trial court took note of the fact that the appellant had developed a new defence. It was this:

The former Member of Parliament, David Butau, was romantically involved with Chipo Maramwidze, the mother of the two complainants. Through Chipo Maramwidze, the complainants, and their grandparents, had concocted these allegations in order to fix him politically.

David Butau allegedly confessed to the plot.

To confirm this plot, and Butau's subsequent confession, the appellant read to court a text message sent by Butau.

Patience Muswapadare Taruvinga (Patience) testified, that, between 20 and 27 August 2010, Tinashe and Nicole were at 11 Tovey Road, Borrowdale, her residence. She, however, disputed the claim, that, in March 2010 Tinashe and Nicole had visited her. Therefore, any claims of sexual harassment by Tinashe against her husband could not be true.

Regarding the events of the period from 21 August 2010 to 23 August 2010 she told the court, that, she had come home around 20:00 on 21 August 2010. She had left some thirty minutes later and did not come back that night. Therefore, she could not have woken up in the early hours of 22 August 2010 to cook for the appellant.

Put differently, her evidence was that Nicole lied to the court in this regard.

She indicated that the two girls had previously asked her to approach her husband with a request that he pays their school fees as well as arrange for their travel to the United Kingdom to visit their mother. Should he fail to do this, they warned, they would fix him.

She believed, then, that this was said in jest but later realized that this was the genesis of her husband's woes.

She confirmed the phone call from Maramwidze on 31 October 2010. She only managed to go there on the next day. There, she learnt of these allegations for the first time.

When the appellant came to pick her up, she noticed that Maramwidze did not respond to her husband's greeting.

The reason she and her mother paid a subsequent visit to the Maramwidzes was to get the full details of the issues involved on her father's instruction.

She disputed the claim that Nicole was raped during the early hours of 22 August 2010.

Alphious Njodzi Chinhamo, the current Chief Mukangamwi, told the court, that, in 2013, they had approached the Vice President Mujuru with a request that the appellant be allowed to stand as a candidate for Bikita West Constituency. When they got to the Vice President's Office they met up with Francis Maramwidze. They were later advised by the Vice President that the appellant was facing rape allegations and therefore not suitable to contest on their party ticket.

Cletos Kereke's evidence was that he visited the appellant at his hospital in Mount Pleasant on 20 August 2010. From the hospital they had gone to 11 Tovey Road, Borrowdale. Since Patience had not yet arrived home, they did not spend time there. They proceeded to 75 Wallis Road, Mandara where they slept. To his knowledge, the appellant did not get out of the house the whole night. The next day, they had both gone to the hospital in Mount Pleasant and spent the whole day there. They had then gone to Borrowdale before proceeding to Mandara where they both spent the night. Accordingly, it is improbable, on his evidence, for appellant to have raped the complainant around 03:00 on 22 August 2010.

The evidence of the two guards was led to establish, as fact, that both the appellant and his brother would arrive at 75 Wallis Road, Mandara, at 21:00 and only left the following morning at 10:00. They said police had taken their Occurrence Book during investigations. This book would have confirmed their evidence....,.

The fourth ground of appeal attacked the manner in which the court a quo dealt with the appellant's conduct which it found to be suspicious without considering whether there were other possible reasons why he behaved in the manner he did.

Finally, the appellant submitted, that, the court a quo erred in disbelieving his alibi when there was no evidence tendered by the State to rebut it....,.

The court a quo considered the defence witnesses evidence.

It concluded, after a careful and detailed analysis, that no weight can be attached to this evidence as these witnesses were apparently coached on what to say by the appellant.

The court pointed out the anomaly surrounding the fact that the witnesses statements were in affidavit form, were commissioned by one lawyer, and were given on the same date.

He ruled that these witnesses were lying and they were lying at the behest of the appellant who faced serious charges.

Where a court rejects the evidence of an alibi testimony, it follows that the court would have, by implication, found that the defence of alibi had been disproved.

Therefore, in my view, the court correctly adverted to the appellant's defence and rejected it as false.

It found, that, the appellant had been untruthful on not just the issue of the alibi defence but the pistol and his presence at Tovey Road, Borrowdale on 22 August 2010.

The relevant page of the Occurrence Book was certified by the police. The two witnesses disowned it. The court also determined that their evidence was a direct effort by the appellant to adduce favourable evidence by influencing them on what to tell the court.

In our view, the court a quo properly assessed the evidence...,.

This is an appeal against the judgment of the High Court (the court a quo) rendered in favour of the respondent on 24 July 2019 following a full trial. The judgment directed the appellant to pay to the respondent interest on the sum of $84,827=17 at the rate of 19.5% per annum from 1 November 2010 to the date that amount was paid to the respondent.

In addition, the appellant was ordered to pay to the respondent the sum of US$3,207,450=68 together with interest thereon at the rate of 19.5% per annum from 1 November 2010 to date of payment and costs of suit.

This Court observes, that, the dispute between the parties was resolved purely on findings of credibility of the two witnesses pitted against each other in respect of whose evidence the trial court made factual findings.

That led the court a quo to conclude, that, at the time the appellant gave instructions for cessation of work which was being performed by the respondent, in terms of the contracts, the latter had already completed its mandate of designs and drawings for the appellant. Payment in terms of the contracts entered into by the parties was therefore due.

The court finds, that, on appeal, the appellant has not made a case for interference by the Appellate Court with the credibility and factual findings of the court a quo. The appellant has not even begun to set out any valid grounds for impugning the findings of the court a quo in that regard.

Regarding the relief in United States dollars granted a quo, the court finds that it was incompetent as the court a quo was precluded from granting relief denominated in foreign currency. The liability of the appellant fell due several years before 22 February 2019, the effective date.

In terms of section 4(1)(d) of Statutory Instrument 33/19, SI33 of 2019, as interpreted by this Court in Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC03-20, the liability of the appellant having been expressed in United States dollars immediately before the effective date of 22 February 2019, fell within the remit of that provision.

As such, relief should have been granted in Zimbabwe dollars at the rate of one to one to the Unites States dollar.

The court also finds that the question of interest on the sum of US$84,827=17 paid by the appellant following admissions it made at the pre-trial conference of the parties before a judge, was an issue placed before the court a quo for determination. That court was obliged to determine it.

Having found the appellant liable, the court a quo was correct to award interest on that amount. The court however finds. that, as with the rest of the liability, that interest should also be reckoned in the local currency at the same rate.

The appellant, a tertiary institution established in terms of section 3 of the Midlands State University Act [Chapter 25:21], engaged the respondent, a company involved in the business of providing civil engineering services, to design civil and engineering works for it on 3 September 2003.

The appellant desired the respondent to design and produce drawings for the construction of certain buildings and Master Site Services at its main University Campus in Gweru. As a result, the parties concluded and signed seven contracts, four of which form the basis of the present dispute. These are:

(a) Contract 1 - for the construction of the Faculty of Commerce and Information Systems, Faculty of Law and Administration on Block;

(b) Contract 2 - for the Faculty of Architecture, Art and Design;

(c) Contract 3 - for the Vice Chancellor's House; and

(d) Contract 4 - being the Master Site Service Design for the whole site, that is, the Master Plan.

Contract 5 - for the Faculty of Natural Resources; Contract 6 - for the Faculty of Science & Technology; and Contract 7 for the Commercial Centre and Sports facilities fall outside the scope of the present case.

The contracts entered into by the parties comprised of the Standard Form Zimbabwe Association of Consulting Engineers (ZACE) contracts and memorandum of agreement for each of them.

The conditions of engagement prescribed the manner in which the engineering works contained in the contracts were to be undertaken. These included:

(i) Stage one; a report relating to consultation between the parties, inspection of the site, and collation of data.

(ii) Stage two related to the preliminary design involving preparation of plans, drawings, and making modifications on the designs.

(iii) Stage three related to the establishment of final design criteria and included the development of the design.

(iv) In stage four, the consultant would work on the drawings themselves.

The respondent performed certain work in terms of the contracts although there is no convergence between the parties as to the stage reached by the works at the time of disengagement.

What is however common cause is that the construction of the relevant buildings had advanced when, on 14 June 2005 and 5 August 2005, the appellant addressed letters to the respondent instructing it to stop work on all the projects.

It is at that point that the dispute arose as to the amount of work the respondent had already performed in fulfilment of the contracts when it was instructed to stop working. The balance due by the appellant for what had been done was also disputed.

The position taken by the respondent was that, at that point, it had already completed all the work that needed to be done on all the four contracts. The respondent insisted, that, having fulfilled its contractual mandate, it was entitled to payment for the full services rendered within the scope of clause 18 of the Zimbabwe Association of Consultant Engineers Standard Contract.

On the other hand, the appellant was adamant, that, the respondent had not completed the work as per the contracts. It contended, that, when it directed the respondent to stop all work on the project on 5 August 2005, it had not completed its mandate.

The appellant insisted, that, the respondent had continued to work after being instructed to stop, and, as such, any work performed by the respondent after the instruction to stop had been given could not be paid for - the respondent having been on a frolic of its own.

The appellant also took the position, that, an amendment had been effected to the original contracts to introduce a clause which placed the obligation to pay for the projects on a third party, the Government of Zimbabwe; until such time that the third party gave a signal that it had allocated funds for payment, no payment was due to the appellant in terms of the contracts.

In any event, so the appellant continued, the respondent had been paid in full for the works that it performed.

On 16 July 2015, the respondent instituted summons action against the appellant based on the four contracts mentioned above. The respondent claimed payment of the sum of $3,292,277=90 together with interest on that amount at the rate of 19,5% per annum calculated from 1 November 2010 to date of payment. It also claimed collection commission.

The basis of the claim was that the respondent had provided professional consulting civil engineering services in respect of the first, second, third, and fourth construction projects for the appellant in fulfilment of all its contractual obligations. The respondent averred, that, following its issuance of invoices for settlement, the appellant failed or neglected to pay in breach of the contracts between the parties.

The appellant contested the action.

It refuted that the respondent fulfilled all its contractual obligations. The appellant asserted, that, it stopped the respondent from carrying out any further work on the project on 5 August 2005 before completion of the mandate.

As such, so the appellant contended, the respondent was not entitled to payment for any additional work performed after that date.

Regarding payment, the appellant relied on an addendum to the agreement which was signed by the parties and introduced clause 4.1 to it. According to the appellant, the clause in question regulated how the respondent was to be paid. It contained a suspensive condition which was not satisfied. For that reason, no further payment was due to the respondent.

In terms of clause 4:

“4. Fees Chargeable and Reimbursements

Notwithstanding the provisions in paragraph 17 (under the heading Fees and Expenses) of the Conditions of Engagement ZACE Forum 2 1999:

4.1 The parties herein agree that the client is a public institution, wholly funded in its operations by the Government of Zimbabwe and that it is wholly dependant on the national budget for its funding, which budget is announced once every year. It is therefore agreed that the Consultant will hold in abeyance all invoices until advised by the client that funds are now available. In this case, the client will act in good faith and advise the Consultant to submit invoices within 14 days of receiving funds. Thereafter the client shall settle invoices within 60 days of receipt from the Consultant.

If such accounts are then not paid within 60 days from date of invoice, interest may be charged at 1.2 times the prevailing bank overdraft rate available to the Consulting Engineer.”…,.

At the pre-trial conference of the parties before a judge, the appellant made an admission recorded in the Statement of Agreed Facts, later prepared and submitted to the trial court, as follows:

“7 It is also common cause that defendant paid the sum of US$84,827=17 of Project 1. The parties agree that, this was in full and final payment in respect of that project and it is no longer in contention save for…, only the interest amount that remains upaid.”…,.

Following the submission of a Statement of Agreed Facts, in terms of which the matter was referred to trial, only three (3) narrow issues were placed before the court a quo for determination. These are:

“(a) Whether or not the plaintiff had completed all the works as at the 5th of August 2005 when the defendant gave instruction to stop all work.

(b) If so, what is the quantum of fees due to the plaintiff.

(c) If not, what stage of work had plaintiff reached by the 5th of August 2005 and what quantum of fees is it entitled (to) for such work, if any.”

At the trial, each party led evidence from one witness. The respondent relied on the evidence of Engineer Wilfred Tamayi Vengesai to prove its case while the appellant brought in Engineer Innocent Masunungure to disprove it.

In assessing the credibility of the two witnesses, the court a quo found;

“It is Engineer Wilfred Tamayi Vengesai's evidence which accords with the documentary evidence. It accords also with the statement of agreed facts.

His testimony was clear and straight forward. It was not dented under cross-examination.

The same cannot be said of defendant's evidence. It went against the grain of documentary evidence.

The defendant's witness contradicted the Statement of Agreed Facts in fundamental respects. I also was not impressed with the demeanor of the defendant's witness. He was evasive under cross examination. It was clear to me that he was simply ducking and diving in a desperate endeavour to avoid the truth.

The net result is that I will accept the plaintiff's testimony wherever it conflicts with that of the defendant.”

The court a quo went on to find, that, the appellant had commissioned the respondent to design and produce drawings for use by contractors in erecting the structures so designed. It further found, that, by November 2004 the designs had been completed and forwarded to the appellant.

The court a quo based its finding in that regard on the fact, that, after completion of the contractual mandate, the respondent had proceeded to break down the designs into nine sub-contracts to allow for stage implementation of the works to suit priority and funding of the appellant.

In the court a quo's view, this could not have been done if the contractual mandate had, by then, not been fulfilled.

In addition, the court a quo applied the doctrine of fictional fulfilment to conclude that the appellant, having acted in bad faith in failing to invite the respondent to submit estimates of fees owed, and in not bidding for funding from the Government of Zimbabwe for an unreasonably long time, the suspensive condition in clause 4:1 had been fulfilled.

The court a quo then entered judgment in favour of the respondent as already stated.

The appellant was aggrieved. It noted the present appeal on the following grounds:

1. The court a quo erred and misdirected itself in granting an order denominated in United States dollars when it was incompetent to do so.

2. The court a quo erred and misdirected itself in awarding the respondent interest on the sum of US$84,827=17 when such an issue was not among the issues which were submitted to the court a quo for determination by the parties.

3. The court a quo further erred in holding that the respondent had completed all its contractual obligations when the appellant instructed the respondent to stop work in circumstances where the evidence showed that the respondent had not completed all the work.

4. The court a quo erred in awarding the respondent's claim for an amount for the completion of the work in full, whereas, the evidence before it pointed to the fact that the work was incomplete as at the cut-off date.

5. It was an error of law on the part of the court a quo to apply the doctrine of fictional fulfilment against the appellant in circumstances where a third party (Government of Zimbabwe) was the one which had an obligation to fulfil the suspensive condition.

6. The High Court misdirected itself in ignoring that the respondent neither pleaded nor proved the fulfilment of the suspensive condition.

The grounds of appeal may be six but they are generally repetitive and speak to only two issues for determination in this appeal. They are:

(i) Whether the court a quo erred in entering judgment in favour of the respondent and ordering the appellant to pay interest; and

(ii) Whether the court a quo erred in granting judgment denominated in the United States dollars.

Counsel for the appellant submitted, that, the finding of the court a quo, that the respondent had completed all its contractual obligations at the time it was instructed to stop work cannot withstand scrutiny. In counsel's view, such a finding runs counter to documentary evidence on record which indicates the contrary.

To support that assertion, counsel for the appellant drew attention to correspondence exchanged between the parties which discussed the works performed by the respondent. The letters in question, so it was argued, tend to show, that, right up to 5 August 2005, the parties were still discussing work which had not been completed.

Per contra, counsel for the respondent submitted, in the main, that, the appellant's case at the trial, and on appeal, remains vexing in that while on one hand the appellant argues that the mandated work was not completed, on the other hand, it argues that payment is not yet due. This is by virtue of the suspensive condition in clause 4.1 reposing the duty to pay on the Government of Zimbabwe.

Counsel for the respondent drew attention to a letter dated 6 November 2004, written by the appellant's own architects, Maboreke Architects, as proof that the work of producing drawings had been completed. He also referred to another letter, dated 29 May 2015, to the Permanent Secretary in the Ministry of Higher & Tertiary Education, Science & Technology Development by the appellant's Vice Chancellor. The latter entreats the Ministry to assist with funds to settle the debt which had been demanded.

By virtue of their importance in the resolution of this appeal, I produce the letters hereunder.

On 6 November 2004, Maboreke Architects wrote to the appellant as follows:

“RE: MSU - PROPOSED CONTRACT FOR THE IMPLEMENTATION OF THE MASTER SITE SERVICES

Forwarded herewith is a set of drawings from the Civil Engineer depicting the proposed works in eight different contracts for the realisation of the Master Site Services for your approval.

We are in concurrence with the Civil Engineer that the development of the structure precedes the building programme in order that the buildings will be adequately serviced on completion.”

It was submitted, on behalf of the respondent, that, the contents of that letter suggest, that, as early as November 2004, work on the drawings had been completed. It is for that reason that the drawings had been forwarded to the architects who relayed them to the appellant.

On 29 May 2015, Professor N. M. Bhebe, the Vice Chancellor, wrote to the Ministry in the following:

“RE: OUTSTANDING FEES FOR GALAXY ENGINEERING CONSULTANCY SERVICES: MIDLANDS STATE UNIVERSITY

The following matter refers.

Following our telephone conversation, please find attached demand letters from Gill, Godlonton & Gerrans Legal Practitioners who are representing Galaxy Engineering.

The demands are arising from the non-payment of services provided for the development of Midlands State University Master Plan (Civil Engineering Works, preliminary designs), services which were rendered in September 2003. The total bill was ZWD33,114,907,800=.

As discussed, please kindly go through the letters and determine how far the Ministry had paid for the services rendered. By copy of this letter, Galaxy Engineering Consultancy are being advised, through their lawyers, that their claim has been submitted to our parent Ministry for actioning.”

In the respondent's view, the foregoing letter was a clear acceptance that work was performed fully and that payment was due.

Regarding the issue of the suspensive condition, counsel for the appellant submitted, that, it was an error on the part of the court a quo:

(i) Firstly, to invoke the doctrine of fictional fulfilment because it was not pleaded by the respondent.

(ii) Secondly, the doctrine does not apply in circumstances where the party accused of having deliberately prevented the fulfilment of the obligation had no such obligation in the first place.

This is so, it was submitted, because the obligation to pay lay with the Government of Zimbabwe.

To counter that argument, counsel for the respondent submitted, that, the court a quo was invited to relate to the doctrine by none other than the appellant itself.

This is so because, in its closing submissions, the appellant had, citing the authority of R.H. CHRISTIE, Business Law in Zimbabwe…, argued that clause 4.1 of the contract was a condition precedent or suspensive condition. It suspended the payment of fees due to the respondent until such time that the appellant was placed in funds for the project by the Government of Zimbabwe.

To that extent, according to the respondent's counsel, the court a quo was within its mandate to inquire into the issue. In doing so, the court a quo concluded, that, the appellant had deliberately frustrated the fulfilment of the condition precedent. For that reason, fictional fulfilment applied.

On the order for payment of interest on the sum of $84,827=17, it was submitted on behalf of the appellant, that, the question whether the respondent was entitled to claim interest on that sum was not one of the issues placed before the court a quo for determination.

Relying on the authority of Nzara v Kashumba N.O. & Ors SC18-18, counsel made the point, that, the function of the court is to determine only those disputes placed before it by the parties.

Again, counsel for the respondent was of a different view.

He pointed to a passage in the Statement of Agreed Facts, which I have already quoted above, placing the issue of that interest squarely within the ambit of what the court a quo was asked to determine.

Finally, on the relief granted in United States dollars, counsel for the appellant submitted that it was incumbent upon the court a quo, in terms of section 4(1)(d) of Statutory Instrument 33/19, SI33/19 to pronounce an order that does not conflict with that provision. Accordingly, so it was argued, the judgment should have sounded in the local currency.

While conceding the effect of section 4(1)(d) of S.I.33/19, counsel for the respondent sought to defend the judgment a quo on the basis, that, the United States dollars denominated judgment shall be converted on the day of execution.

What was before the court a quo were two mutually destructive positions of the disputants.

The respondent took a position, using documentary as well as viva voce evidence, that, at the time it was instructed to cease operation, it had completed the work. On the other hand, the appellant, again using documentary and viva voce evidence, took the position, that, the work had not been completed.

I have related to both the viva voce and documentary evidence which confronted the court a quo above.

The court a quo resolved the dispute on the basis of credibility of witnesses.

It found the appellant's witness to be evasive and unreliable. It embraced the evidence of the respondent's witness as being reliable and in sync with the documentary evidence.

On the letters I have reproduced above, the court a quo cannot be faulted for making those findings.

More importantly, neither the grounds of appeal relied upon by the appellant, nor its submissions on appeal, advert to the basis upon which an Appellate Court may interfere with factual and credibility findings of the lower court.

As stated in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,:

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

On the issue of credibility of witnesses, again, it is trite that an Appellate Court will not lightly interfere with findings of fact based on the credibility of witnesses. This is so, because, the trial court is eminently better placed to assess credibility than an Appellate Court.

In my view, no foundation has been laid to allow this Court to interfere with the findings made a quo, that, at the time that the appellant gave instructions for cessation of work, the respondent had already completed its mandate.

In that regard, it was entitled to payment in full.

This is an opposed application for condonation of late noting of an appeal and extension of time within which to file a notice of appeal. The applicant brings the application in terms of Rule 43 of the Rules of Court 2018.

The first applicant is a former employee of the third respondent (the company). He was employed as its Chief Executive Officer. He was dismissed from employment sometime in 2015 following disciplinary proceedings.

The first applicant claimed to own 30% shares in the third respondent through the agency of the second applicant, a duly incorporated company, and, to that extent, a juristic person.

His claim to the directorship of the company is in dispute. He claims to be duly authorised to represent the second applicant, a factor which is also disputed by the respondents.

The first and second respondents are natural persons bearing the same surname of 'Chingwena'.

The third to ninth respondents are duly incorporated companies.

The 10th, 11th, 15th-22nd, 29th, 33rd respondents are also duly incorporated companies clothed with juristic personality.

The remaining parties, though cited, did not appear to oppose the appeal.

The 4th to 38th respondents are companies in which the first appellant alleges the company has investments liable to his 30% claim of the shares allegedly held by the third respondent therein.

The law relating to applications of this nature is well known such that it cannot be the subject of any controversy. The requirements for the application to succeed were spelt out in Kombayi v Berckout 1988 (1) ZLR 53 (S). These are:

(a) The extent of the delay;

(b) The reasonableness of the delay; and

(c) The prospects of success on appeal....,.

The first applicant approached the court a quo in terms of section 196(1) as read with section 198 of the Companies Act [Chapter 24:03] complaining that the affairs of the company, Croco Holdings (Private) Limited are being, or have been, conducted in a manner that is oppressive or unfairly prejudicial to the interests of some part of the members including himself. The section provides as follows:

“196 Order on Application of Member

A member of a company may apply to the court for an order in terms of section one hundred and ninety-eight on the ground, that, the company's affairs are being, or have been, conducted in a manner which is oppressive or unfairly prejudicial to the interests of some part of the members, including himself, or that any actual or proposed act or omission of the company, including an act or omission on its behalf, is or would be so oppressive or prejudicial.”

The first applicant deposed to the founding affidavit wherein he averred, that, he owns 30% shares in the company whereas the first respondent owns the remaining 70%.

His complaint is that the first respondent has been, and is, abusing his position as the majority shareholder.

He alleged that the first respondent was conducting the company's affairs in an oppressive and prejudicial manner to its members including him.

He averred, that, the first respondent and he were the promoters and founding directors of the company. The first respondent had, however, fraudulently removed his name from the company's register of directors.

He proffered some documentary evidence tending to show that he was an initial subscriber of shares and Director of the company. To that end, he submitted, that, all the essential company records showed that he owned 30% of the shares in the company. He contended that he subscribed for the shares in terms of a shareholding agreement he signed on 27 May 2006.

The first applicant cast aspersions on the first respondent alleging that since 2014 he had conducted himself contrary to the Shareholders Agreement. He further accused the first respondent of making decisions outside the forum of the Board of Directors.

It was his averment, that, in frustration, he offered to sell his shares to the first respondent but he was evasive and non-committal. Eventually, the first respondent turned the tables against him and began to dispute his shareholding in the company. They, however, subsequently met and agreed that the shares be evaluated before disposal. Despite having ordered that evaluation of the shares be carried out, the first respondent, again, made an about turn and denied ever having entered into such an agreement with him.

Having failed to resolve their differences amicably, the first applicant alleged that the first respondent proceeded to suspend him from work leading to his dismissal from employment. He has since challenged his dismissal in the courts.

On that score, he complained, that, the first respondent had violated his rights as a shareholder which rights are protected by the Companies Act. Consequently, he implored the court a quo to provide him with the following relief:

“WHEREUPON after reading documents filed of record and hearing counsel;

IT BE AND IS HEREBY ORDERED THAT:

1. A forensic audit and valuation of the 3rd respondent and its investments in the 4th to 38th respondent be and is hereby ordered to be conducted by an accounting firm registered in terms of the Public Accounts and Auditors Act [Chapter 27:12] to be appointed by the 39th respondent within 5 days of granting this order, all fees and costs of the evaluation being paid by the 3rd respondent.

2. 3rd respondent be and is hereby ordered to pay the applicants the full value of thirty percent (30%) of its total issued ordinary shares and 30% of its investments in the 4th to the 38th respondents within 5 days of completion of the forensic audit and valuation; such value having been established in terms of paragraph 1 above.

3. 3rd respondent be and is hereby directed to reduce 3rd respondent's share capital once the full amount of its thirty percent (30%) issued ordinary shares have been paid by 3rd respondent.

4. The Sheriff of the High Court and/or his lawful deputies be and are hereby ordered to execute terms of paragraph 2 above.

5. The 1st respondent pays the costs of suit on a legal practitioner and client scale.”

The respondents opposed the application, arguing that the first applicant was never a shareholder of the company.

They accused him of relying on forged fraudulent documents and challenged him to prove how he had acquired the alleged company shares.

Riding on that challenge, they raised a point in limine disputing his locus standi.

They submitted, that, only a member of a company, in the form of a shareholder, can bring an application in terms section 196 as read with section 198 of the Companies Act. The first applicant, not being a shareholder of the company, was not a member of the company, and, therefore, not qualified to bring the application before the court a quo.

As a second point in limine, the respondents challenged the first applicant's authority to represent the second applicant.

The court a quo found, that, the application was founded on material falsehoods based on fraudulent documents. Both the Shareholders Agreement and the share transfer documents were adjudged to be fraudulent documents. It also found, that, in relation to the point in limine, the applicant was unable to explain two conflicting CR2 documents.

Thus, the court a quo upheld both points in limine.

Ultimately, the learned judge a quo upheld the two preliminary points, and, in the process, found, that, the application was bad at law in that it did not meet the requirements of section 95 as read with section 196 of the Companies Act.

In the result, he dismissed the application with costs.

The onus of proof lies squarely on the first applicant to prove, that, if granted the court's indulgence, he has reasonable prospects of success on appeal.

The case of Essop v S [2020] ZASCA 114…, provides guidance on what is required of the applicant to discharge the onus of proof. In that case, the court had occasion to remark that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the applicant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success; that the case is arguable on appeal; or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

The applicants contention is that they have bright prospects of success on appeal because the court a quo ignored uncontested evidence which proved that the first applicant was indeed a shareholder in the third respondent. The first applicant further argued, that, the court a quo erred in holding that the Shareholders Agreement, and the share certificates, were fraudulent documents.

As we have already seen, the respondents challenged the first applicant's locus standi and invited him to prove what he alleged.

The respondent did not have to do more than to simply challenge the first appellant to bring forth credible evidence that would reasonably persuade the Appeal Court to come to a different decision from that of the court a quo.

The cardinal factual issue for determination in the court a quo was whether the first applicant was a shareholder of the company.

It is settled law in our jurisdiction that an Appeal Court will not easily interfere with factual findings made by a lower court. To that extent, case law has set the test for discrediting and upsetting factual findings by a lower court so high that they cannot easily be overturned on appeal.

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01 this Court held that:

“An appeal to this court is based on the record. If it is to be related to the facts there must be an allegation that there has been misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision; and a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

In this case, the court considered all the evidence placed before it and came to the conclusion that the documents relied upon by the first applicant were forged, fraudulent documents.

The applicant's contention is that the Shareholders Agreement, and the share certificate, are authentic and valid because they were prepared and signed by Gwatidzo, the auditor. He accuses the court a quo of ignoring evidence he proffered to the effect that Gwatidzo admitted that he prepared the documents.

As evidence of the alleged admission, he filed a transcript of a long telephone conversation that he had with Gwatidzo…,.

That transcript does not support his assertion that Gwatidzo admitted preparing the disputed documents.

This is what Gwatidzo said at p16 of the transcript:

“A. MR GWATIDZO: I actually do not remember preparing the shareholders agreement. Did I prepare the shareholders' agreement?

…,.

Q. FARAI: In all honest did you not prepare the transfer of shares?

A. MR GWATIDZO: No it was done by Bekker Tilly.”

It is axiomatic that the authenticity of the questioned document was premised on them having been prepared and signed by the auditor Gwatidzo.

Gwatidzo's denial that he is the author of the questioned documents was fatal to the applicant's case. It destroyed the whole foundation and basis of his case.

In his opposing affidavit, the first respondent averred, that, the first applicant forged the Shareholders Agreement document by super-imposing his genuine signature on a copy of the agreement and then photocopying it.

The first applicant did not lead any evidence to rebut the allegation.

Failure to rebut the allegation of forgery of the material document was fatal to the applicants case.

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.

Against that order, the appellant now appeals to this court.

In October 2012, the appellant, as plaintiff, issued summons against both respondents before the High Court, Harare, claiming payment of the sum of $30,094=98 being arrear rentals in respect of the respondents tenancy of premises known as Shop 5, Zimre Centre, Corner Kwame Nkrumah Avenue and Leopold Takawira Street, Harare.

The second respondent had bound himself as surety and co-principal debtor in respect of the first respondent's indebtedness.

In their plea, the respondents, as defendants, raised the defence of prescription. More specifically, they averred, that, in instituting proceedings on 19 October 2012, more than three years after the debt became due, the claim had become time-barred.

The plea was not set down for hearing. Instead, the defendants pleaded over to the merits in the same plea.

In its replication, the appellant denied that the claim had prescribed. It averred, that, the first defendant had, on 22 October 2009, acknowledged the debt and had undertaken to pay the outstanding amount in full by 10 November 2009.

There was no rejoinder by the respondents.

In a joint pre-trial conference minute, the parties agreed, that, the issues requiring determination at trial were:

(a) Whether the plaintiff's claim had prescribed;

(b) Whether the first respondent had breached the lease agreement by failing to pay rental and other costs;

(c) Whether the respondents were liable to pay the sum of US$30,094=98 together with interest and costs of suit;

(d) Whether there had been mutual termination of the agreement between the parties and whether the appellant had unlawfully and unilaterally ejected the respondents from its premises; and

(e) Whether such conduct had resulted in the respondents suffering damages “in respect of the first respondent's assets and business” and, if so, the quantum thereof.

At the hearing of the matter, the respondents, through their lawyer, sought the leave of the court to deal with the issue of prescription first and lead evidence on it.

Despite opposition from the appellant, the court a quo decided that the issue of prescription be determined first, and, thereafter, depending on the outcome, the court would again hear evidence on the remaining issues.

In its judgment, the court a quo was of the view, that, the issue that fell for determination was the authenticity of the letter purportedly written by one Annet Mbedzi on behalf of Saintcor Holdings in October 2009.

In this regard, it made a number of observations.

The letter was not written on any letterhead, unlike in previous correspondence; it reflected the appellant's postal address; the letter was also written on behalf of Saintcor Holdings, a company both parties were agreed does not exist and was not a party to the lease agreement; the letter was addressed to a Mr Muringani, but, the name had been cancelled in black ink and in its place the name Muringi inserted; nowhere in the letter is it suggested that Saintcor Holdings was acknowledging indebtedness on behalf of Saintcor (Pvt) Ltd.

On a consideration of all these features, the court a quo concluded, that, the letter had not been written on behalf of the first respondent.

Consequently, the court upheld the plea of prescription and dismissed the plaintiff's claim with costs, hence this appeal.

In its grounds of appeal, the appellant has attacked the decision of the court a quo on the basis that it:

(a) Erred in fact and at law in holding that the appellant's claim had prescribed;

(b) Misdirected itself by holding that the letter that was received by the appellant on 22 October 2012 was not authentic;

(c) Misdirected itself by making a finding that the author of the letter that was received by the appellant on 22 October 2009 did not have authority to author the same.

It is apparent from the above grounds, that. it is the conclusion reached by the court a quo, that the letter in question had not been written on behalf of the respondent that the appellant is challenging.

In their heads of argument, the respondents raised two points in limine:

(i) The first was that the judgment of the court a quo reflects three different dates as the dates when the judgment was handed down.

The date of the judgment reflected in the Notice of Appeal is at variance with the date appearing ex facie the judgment itself, and, consequently, there has been no compliance with Rule 29 of the Rules of this Court.

(ii) Secondly, the relief sought is defective as it seeks to substitute the decision of the court a quo with one referring the matter back to the court a quo itself.

In his response, counsel for the appellant drew the attention of the court to a letter from the Registrar of the High Court which states, that. the ex-tempore judgment was handed down on 10 February 2015, which is the date appearing in the Notice of Appeal.

On the prayer, he conceded, that, the wording was inelegant but argued that the relief sought was clear. He submitted that the inelegance does not invalidate the appeal as ultimately the court will make an order it deems appropriate in the circumstances.

After hearing argument on the two preliminary issues, this court was of the view, that, the issues be rolled over for determination together with the issues that arise on the merits.

In both his heads of argument and oral submissions, counsel for the appellant raised the following issues:

(i) First, that the judgment of the court a quo does not derive from the pleadings.

(ii) Second, the appellant's cause of action was predicated upon a valid cancellation of the lease agreement. Such cancellation was effected on 18 November 2009 and the cause of action would have accrued on that day. Therefore, when the appellant issued summons on 22 October 2012, the debt had not prescribed.

(iii) Third, that the appellant would have had no reason to cause the letter of 22 October 2012 to be generated. Once it had accepted that the letter had not been generated by the appellant, the court should have concluded that the letter had indeed been authored by the respondents.

(iv) Fourth, that the second respondent knew how to contact Annet Mbedzi, the author of the letter in question. Annet Mbedzi had been involved in the goings-on at the premises of the first respondent, and yet both respondents had not found it proper to call him.

(v) Lastly, counsel for the appellant submitted, that, it was improper for the court to have heard evidence piecemeal. Once the plea of prescription had not been set down and the respondent had then proceeded to plead over to the merits, the court should have heard evidence on all the issues and an assessment of the credibility and integrity of the witnesses undertaken only after all the evidence had been led.

In response, counsel for the respondents made the following submissions:

(i) First, that, what is being attacked by the appellant are findings of fact which cannot be interfered with on appeal in the absence of a finding of irrationality on the part of the trial court.

(ii) Second, that, the court a quo was correct in its findings that the letter received by the appellant on 22 October 2009 had not been written by or for the respondents. This is because the appellant had admitted that, by that date, the first respondent had been evicted from the premises, and, consequently, the first respondent would not have used that address in correspondence with the appellant.

(iii) Third, that, the appellant has not established a lawful basis for the suggestion that the judgment does not derive from the pleadings as no leave of the court had been sought to advance argument on this ground, contrary to the Rules of this court. In any event, the respondents, in their plea, had placed prescription in issue.

(iv) Lastly, that, the debt did not become due on cancellation since rent was due monthly in advance, and, therefore, the cause of action arose whenever such rental was not paid on due date. The appellant had, in any event, evicted the first respondent in August 2009 for non-payment of rent and the “debt” included outstanding rentals up to the date of such eviction.

It is clear from the above, that, a number of issues arise before this court. These will be dealt with in turn....,.

The appellant has attacked various findings made by the court a quo on the facts, and, in particular, the finding that the letter received by the appellant on 22 October 2009 was not authentic and that the author of the letter did not have authority to write the same.

The court a quo made the following findings of fact:

(i) First, that the letter was written for and on behalf of an entity called Saintcor Holdings and not Saintcor (Pvt) Ltd.

(ii) Second, the name of the addressee had been incorrectly spelt.

(iii) Third, the letter was not written on the first respondent's letter head.

(iv) Fourth, the appellant's address, reflected in the letter, was incorrect.

(v) Fifth, the letter of acknowledgment had been written in October 2009 and yet purported to use the same address from which the first respondent had been evicted.

(vi) Sixth, the company that the author, Annet Mbedzi, purported to represent in the capacity of Financial Director does not in fact exist, and the company does not, in any event, purport to act on behalf of the first respondent.

On the basis of the above observations, the court reached the conclusion, that, the letter had not been written on behalf of the first respondent and that the letter did not specify which debt was being acknowledged.

The above conclusion cannot be said to be irrational: nor can it be said that it is not supported by the evidence.

The position is now settled, that, an Appellate Court will not interfere with the findings of fact made by a trial court unless the court comes to the conclusion, that, the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion.

Where there has been no such misdirection, the Appeal Court will not interfere.

This position was aptly captured by this court in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S). At 670, KORSAH JA remarked:

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

In my view, this appeal lacks merit and must therefore fail.

The appeal is accordingly dismissed with costs.

This is an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicant's mineral claims described in the papers as Contrica 9 Registered Number 23331BM; Contrica 21 Registered Number 24482BM; Contrica 45 Registered Number 24866BM; and Contrica 46 Registered Number 24867BM.

The order also seeks the barring of the first respondent from coming within two hundred metres of the mining claims referred to above.

The terms of the final order, in addition to seeking the interdict as recited above and costs of suit, asks the court to set aside the first respondent's mining claims under Registration numbers 41334BM and 42332BM.

The mining claims in dispute are in an area falling under the Pfura Rural District Council.

The application is opposed by the first respondent.

The second respondent, through his legal practitioner, advised that he would abide by this court's decision.

The brief facts upon which the application is founded are as set out below:

The third applicant is the holding company in the first applicant. The first applicant is the holder of the mining claims described above. It registered the claims in 1996. The current certificates of registration and inspection are attached to the applicants papers.

At some point, the applicants and the first respondent had business dealings involving minerals from those claims. It appears that the agreement was not pursued.

The respondent went on to register mining claims over a piece of land which included the claims already registered under the applicants names.

The applicants became aware of the first respondent's intention to carry on mining operations on the claims in dispute on 19 February through an article which appeared in The Herald newspaper of 14 February 2018.

The first respondent does not dispute that it has registered the claims in dispute. It, however, contests the relief being sought in this application....,.

The second ground of objection which is set out in the opposing affidavit is that the relief sought in the draft order is incompetent, because, according to the respondent, it is final in its effect.

That submission is incorrect as clearly the relief is being sought pending the determination of this matter on the return date.

This is an application for condonation of the late filing of an application for rescission of judgment.

The parties have been engaged in protracted litigation dating far back as 2006.

The parties, in 2006, entered into a loan agreement. Part of the terms of the loan agreement were that:

“That the loanee offers his house, being Stand 32699 Bulawayo Township of Bulawayo Township Lands as security.”

Clause 10 of the loan agreement also provides as follows:

“In the event the loanee breaches any content of this agreement, the house that he has given as security to the loaner shall hold him to this agreement (sic) and claim transfer of the pledged stand number 32699 Entumbane area (above-named).”

In this matter, the applicant was the loanee and the respondent was the loaner.

The applicant did make some payments towards the loan, although it looks like they were not made timeously. It is also not clear as to whether the loan was paid up or not.

In such applications, what is central are the following principles:

“It is well established, that, in considering application for condonation, the court has a discretion to be exercised judicially upon a consideration of all the facts, and that, in essence, it is a question of fairness to both sides.

In this enquiry, relevant considerations may include the degree of success…, (agreements); the importance of the case; the respondent's interest in the finality of his judgment; and the avoidance of an unnecessary delay in the administration of justice.

The list is not exhaustive.

These factors are not individually decisive but are inter-related and must be weighed one against the other; thus, a slight delay and a good explanation, may help compensate for prospects of success which are not strong.”

Per the case of United Plant Hire (Pvt) Ltd v Hills & Ors 1976 (1) SA 717 (A)…,.

Our Supreme Court also listed the considerations relevant to the determination of such an application in the case of KM Auctions (Pvt) Ltd v Adanesh Samuel & Anor SC15-12.

In this case, they were listed as:

(i) The degree of non-compliance.

(ii) The explanation for it.

(iii) The importance of the case.

(iv) The prospects of success.

(v) The respondent's interest in the finality of the case.

(vi) The convenience of the court.

(vii) The avoidance of unnecessary delay in the administration of justice.

Apparently, the delay in this matter has been quite lengthy; initially, a default judgment against the applicant was rescinded in 2008, the applicant did nothing, prompting the respondent to seek directions on how to proceed.

Eventually, default judgment awarding the respondent Stand 32699 Entumbane Township was granted on 10 November 2011.

The applicant states, in his founding affidavit, that, he learnt of the default judgement in February 2012, when the respondent intended to evict him from the said property. He states, that, his legal practitioner relocated and went to Botswana and that he never was aware that the legal practitioner had relocated and that there were court proceedings against him. He then approached another firm of lawyers who filed an urgent application for stay of execution that was eventually dismissed.

He says he then had financial problems and could not approach lawyers for assistance.

He then approached his current legal practitioners who advised him, that, condonation had to be sought in order to file an application for rescission of judgment.

The applicant has not gone into much detail as to the specific times he approached these different firms of lawyers. His explanation lacks information and is very slippery. He does not volunteer much information on the delay of more than two (2) years counting from February 2012 to October 2014 when this application was filed.

He tries to blame the departure of his legal practitioner from Zimbabwe to Botswana.

However, he had a duty to check on his matter and not wait until when he hears from the Deputy Sheriff upon execution of the order. A diligent litigant does not wait for his lawyer to communicate with him - especially when the lawyer becomes silent. The litigant is duty bound to enquire from his legal practitioner the status of his case.

In any event, the legal practitioner in question was no longer in the picture from February 2012 when the applicant became aware of the judgment against him.

In this regard, STEYN CJ, in the case of Salajee & Anor NNO v Minister of Community Development 1965 (2) SA 135…, said:

“A litigant…, is not entitled to hand over a matter to his attorneys and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney…,.”

I accordingly make a finding that:

The applicant was negligent in the prosecution of his own case. He has difficulty explaining the delay. What he has attempted to throw in as an explanation for the delay does not hold any water.

Having found, that, the delay has not been explained to the satisfaction of the court, I therefore move on to find if there are any other factors that could find favour in the applicant's situation, for, the enquiry does not end with the reasonableness or otherwise of the explanation for the delay.

It goes beyond that.

In the case of Mahachi v Barclays Bank of Zimbabwe SC06-06, it was held, that, in a case where no acceptable explanation for non-compliance with the Rules has been given, the applicant must show very good prospects of success.

In the case of Melane v Santana Insurance Co. Ltd 1962 (4) SA 531 (A)…, it was stated thus:

“In deciding whether sufficient cause has been shown, the basic principle is, that, the court has a discretion, to be exercised judicially upon a consideration of all the facts, and, in essence, it is a matter of fairness to both sides.

Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily, these facts are interrelated, they are compatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation.

An attempt to formulate a rule of thumb would only save to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts.

Thus, a slight delay and a good explanation may help to compensate for prospects of success which are not strong or the importance of the issue may tend to compensate for a long delay. And the respondent's interest in finality must not be overlooked.”…,.

I now turn to assess the merits.

In this case, the parties entered into a loan agreement, on the face of it which strikes as an agreement that has certain terms, like clause 10, that may be found to be unlawful.

Clause 10 of the agreement, in my view, is a pactum commissorium.

A pactum commissorium is defined, in the case of Chimutanda Motor Spares (Pvt) Ltd v Musare & Anor 1994 ZLR 310 (H), as:

“A pact by which the parties agree, that, if the debtor does not, within a certain time, release the thing given in pledge by paying the entire debt, after the lapse of the time fixed, the full property in the thing will irrevocably pass to the creditor in payment of the debt.”

WILLES, Principles of South African Law, 8th Edition…, established, that, a valid pledge merely confers the right to retain possession of the thing pledged as security by the pledgor as long as the debt remains unpaid - it does not confer the right of ownership. The pledger retains ownership of the pledged property.

It would appear, that, from the afore-stated authorities, there is a well grounded contention, prima facie, that the agreement between the parties, and the subsequent transfer of the property to the respondent, was in fact premised on an illegality.

There is also a problem raised by a reading of the two (2) letters written by both the applicant's former legal practitioner to the respondent's legal practitioner and the respondent's legal practitioner's response thereto.

These are annexure C on page 28 and the unmarked annexure on page 29 of the bound record.

Annexure C is a letter written by the applicant's former legal practitioner to the respondent's legal practitioner. It is dated 21 March 2007. It reads as follows:

“Re: Jabulani Ncube vs Innocent Nyathi

The above matter refers.

Please find attached the sum of $630,000 (Zim Dollars) being the full and final payment of ours indebtedness to yours.

We accordingly await receipt of your notice of withdrawal.”

On 26 March 2007, the respondent's legal practitioners responded in the following manner:

“Re: Jabulani Ncube & Innocent Nyathi

Your letter of 21st instant refers.

We have receipted your client's payment and wish to quickly indicate that:

There is the issue of costs which your client has to settle, and these, on a comprise, are, $370,000 +15% VAT = $425,000.

There is the issue of inflation, as discussed by clients, which, however, is not part of the summons.

Therefore, if your client pays ours within 7 days of the date of this letter we shall withdraw the matter.

Your client's payment is not full and final bill (sic).”

It is important to note, that, these letters give an impression that the debt was paid up save for costs.

The interest referred to in the letter from the respondent's lawyers, is, by their own admission, not part of the summons.

The immediate question that arises therefore is: what then was the cause of the transfer of the house from the applicant to the respondent when the debt was seemingly paid up save for costs?

Is there not a danger that the respondent was paid the debt in cash and also took the immovable property?

Even if a balance could be found to have been owing on the loan, would it equate to the appropriation of the immovable property whose value was not even established for purposes of settlement of the loan?

I am of the considered view, that, the applicant has a good case on the merits.

This was an appeal from a decision of the Magistrate's Court. We dismissed it soon after argument and gave reasons ex tempore. The appellant has now sought written reasons.

In the court a quo, the respondent, hereafter referred to as “the purchaser” where appropriate, sued for specific performance in respect of a property that she had bought from the appellant in terms of a written agreement of sale.

She proceeded by way of a court application.

The draft order, apart from costs, sought an order directing the appellant, hereafter referred to as “the seller” where appropriate, to sign forthwith all the documents necessary to enable transfer of the property to herself, failing which the Messenger of Court should be empowered to stand in his stead and sign.

She said, in terms of the agreement, the parties had consented to the jurisdiction of the Magistrate's Court.

In his notice of opposition, the appellant took a point in limine, that, the remedy sought was not one contemplated by the Agreement of Sale. He said in terms of it, in the event of a breach by himself, the only remedy available to the respondent was cancellation of the agreement upon a prior demand to make good the breach within 14 days, and that this had not been done.

He said specific performance was a remedy alien to the written agreement.

An adjunct to the above objection was that, in terms of the Magistrates Court Act [Chapter 7:10], a Magistrates Court has no jurisdiction to grant specific performance in the absence of an alternative claim for damages. He cited section 14(1)(d) of the Magistrates Court Act.

On the merits, the appellant's basic defence was that the respondent had only paid part of the purchase price; that, as such, she was in breach of the Agreement of Sale; and that therefore she was not entitled to specific performance. He prayed for the dismissal of the application with costs.

The court a quo felt there was a dispute of fact that was incapable of resolution on the papers. It referred the matter to trial.

After a full scale trial, the court a quo found in favour of the respondent and granted specific performance.

The appellant appealed.

We felt the appeal had no merit. We dismissed it as aforesaid....,.

On the merits, most of the essential facts were common cause.

The agreement of sale was brokered by a firm called Net Seven Real Estate (“Net Seven”). The property was a 3-bedroomed house, and other rooms, in the high density suburb of Runyararo West, Masvingo. The purchase price was $31,000. It was payable in cash upon the signing of the agreement. An additional $300 was payable by the purchaser by way of service charges to cover administration costs.

All payments would be made into Net Seven's trust account with Standard Chartered Bank.

The purchase price would be held in trust pending transfer of the property. But, before transfer, payments out of the purchase price would be permissible for any mortgage bond; agents commission; rates, water and electricity and capital gains tax. The balance would be disbursed to the seller upon the registration of transfer.

The purchaser signed the agreement on 30 March 2015. The actual date, in March, when the seller might also have signed was not inserted. In fact, there is no telling whether it was in March or some other month that the seller signed. However, this was not an issue.

On 2 April 2015, the seller signed the special power of attorney to pass transfer. The purchaser deposited $300 and $31,000 into Net Seven's trust account on 8 April 2015. From the purchase price, the seller withdrew $16,290 to clear the mortgage bond outstanding against the property.

On 16 April 2015, both parties signed the statutory declarations regarding capital gains tax, whereby the purchaser guaranteed that she had paid the purchase price in full, and the seller also guaranteed that he had received it in full.

What triggered the litigation was, according to the purchaser and her witnesses, the lack of co-operation by the seller to take the necessary final step to effect transfer.

The parties had to appear before the Zimbabwe Revenue Authority (“Zimra”) for the purposes of pre-transfer interviews in connection with the sale, as a prelude to the issuing by Zimra of the capital gains tax clearance certificate that is one of the batch of documents required to be lodged with the Deeds Registry on the registration of transfer.

That the seller was not co-operative was self-evident.

He claimed the purchaser had not paid the purchase price in full. But, this was factually incorrect. The purchaser had paid the purchase price in full.

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.

The court a quo found that the arguments by the appellant were bare, unsubstantiated allegations as there was no supporting evidence.

In any event, it seems highly unusual that the Judicial Service Commission would have relayed this information to a judge through a phone call.

The allegations against the appellant were serious.

The applicant seeks a rei vindicatio order. It seeks to recover its property retained by the respondent.

The applicant is a body corporate duly constituted in terms of the Great Zimbabwe University Act [Chapter 25:24].

The respondent was an employee of the applicant holding the position of Chief Security Officer.

The respondent holds property belonging to the applicant, which property the respondent was holding by virtue of his being an employee of the applicant. The property consists of guns, a security motor vehicle and office and gun cabinet keys.

The respondent's contract of employment with the applicant has been terminated....,.

On the merits, the application is for rei vindicatio.

In Chitungwiza Municipality v Maxwell Karenyi HH93-18 TAGU J formulated the requirements of rei vindicatio the applicant must satisfy as follows…,:

“1. That, he is the owner of the property; Jolly Shannon and Anor 1998 (1) ZLR 78.

2. That, at the commencement of the action, the thing to be vindicated was still in existence and the respondent was in possession of the property; Masuli v Jera HH67-07; and

3. That, the respondent's possession is without his consent; Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262.”

The respondent avers, that, he is challenging the termination of his employment. That is clearly not material.

When dealing with the same contention, MWAYERA J, in The Minister of Higher and Tertiary Education, Science and Technology Development v Rudolf Pimai Matsanga HH104-19 says as follows…,:

“Whether or not the respondent is challenging the termination of employment is immaterial. The basis of occupation, which is employment, no longer exits, and the owner of property is entitled to vindicate.”

In the case of Montclair Hotel and Casino v Farai Mukutwa HH200-15, MATHONSI J made pertinent remarks emphasizing, that, once the basis of occupation has been terminated then the owner is entitled to vindicate. The Honourable Judge MATHONSI remarked:

“Just from where do former employees think they can derive the authority to hold onto property belonging to a former employer given to them for use during the subsistence of the contract of employment, in the discharge of their duties as employees, after they have lost employment? This matter is one of several of its nature which are now finding their way to the court with alarming frequency of late where a dismissed employee would simply not surrender the employer's property but would cling to it as if life depends on it.”

The above sentiments apply with equal force to the instant matter.

Apparently, as a red herring, the applicant contends, that, the guns in question are registered in his name and he fears that if they get in the wrong hands mayhem may ensure and he will be held accountable.

It is common cause that the guns are owned by the applicant and the respondent's name appears on the firearm certificate as a representative of the applicant.

Apparently, efforts are underway by the applicant to appoint persons to be responsible for the firearms: see the letter dated 4 November 2019 addressed to the Officer Commanding, Masvingo Province, ZRP by the applicant through its Registrar's Office.

Whilst an attempt has been made to justify possession of the keys to the office and cabinet wherein the guns are lodged, the issue of the security vehicle is not addressed in depth by the respondent.

The applicant contends, that, the vehicle in question is a security vehicle and its absence impacts on the security of the applicant's premises.

It is common cause that the guns, the office, and cabinet where they are lodged belong to the applicant. The keys to both the office and gun cabinet belong to the applicant. The same applies to the security vehicle.

It is common cause that the above property existed at the time of action and that the respondent was in possession of the said property. The efforts by the applicant, to have the property retained, has not succeeded. The action by the police is one such result of the applicant's attempt to retain its property. It also reflects that the respondent possesses the property without the applicant's consent.

A somewhat novel argument was raised by counsel for the respondent; it is to the effect that there has not been a demand for the return of the property in question.

A number of letters addressed to the respondent reflect that a request was made for the return of the applicant's property in the possession of the respondent. A letter dated 30 September 2019, addressed to the respondent, reads, in part, as follows:

“Pursuant to our letter dated 25 September 2019 informing you of the abolishment of the post of Chief Security Officer, kindly handover property of the University in your possession to Mr Richard Tivakudze, the Senior Security Officer. For security sensitive items, such as guns and ammunition, kindly do the handover in the presence of the Acting Vice Chancellor, Dr E. Chikodza, Acting Registrar, Mr I. Chinyemba, and Acting Bursar, Mr I. Jamela.”

Following the above letter are other letters addressed to the respondent requesting the handing over of the property in question; see letters dated 10, 21, 23 and 29 October 2019.

In the circumstances, I find that the applicant has proven that he is entitled to the interim relief he seeks. For clarity, I will grant the interim order as prayed for as amended. The applicant appears to have repeated the contents of paragraph 1. To that end, paragraph 2 of the draft order is deleted.

Pending confirmation or discharge of this provisional order, the applicant is granted the following relief;

1. The respondent be and is hereby ordered to surrender and return –

(a) 3 guns and rounds of ammunition (the details of the guns are listed below);

(a)(i) Revolver Taurus, Serial Number 1290665.

(a)(ii) Shortgun B.S.A. Serial Number 111-3754.

(a)(iii) Pistol Norinco Serial Number 49109461.

(b) Keys to the gun cabinet.

(c) Applicant's vehicle, MAZDA BT50 Registration Number 9417.

(d) Applicant's office and keys; upon service of this order, failing which the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised to take all the necessary steps to recover the said property from the respondent or any person, whomsoever, is in possession thereof and wherever the property may be situate and return the same to applicant where it shall be kept by the applicant.

2. The applicant and/or his legal practitioners be and are hereby authorised to serve this Provisional Order on the respondent.

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008.

He goes on to say, that, he should be allowed to contest the eviction because he bought the house from the first respondent and he paid the full purchase price.

In support of that claim, he has filed documents showing that the first respondent, as employer, offered houses to its employees, including the applicant. Those documents also show that the housing units were valued, their values determined and what each employee was expected to pay as the purchase price assessed and agreed.

The applicant also submitted his payslip showing that deductions were made by the first respondent from his salary under the caption “rent to buy”. The same payslip also reflects the balance after each deduction of the said 'rent to buy' showing that the amount charged was being progressively reduced. In addition, he filed receipts issued by the first respondent for further lump sum payments marked “payment of House 1495.”

For that reason, the applicant is of the firm view, that, having paid the full purchase price for the house, he cannot be evicted from it and has prospects of success on the merits.

The first respondent strongly opposes the application on the basis that the applicant has not shown good and sufficient reasons for the rescission of the judgment entered in default.

It has been argued on behalf of the first respondent, that, as the owner of the house, with title, it is entitled to vindicate against the applicant and that there was never an agreement of sale between the parties involving the house in question.

Counsel for the first respondent insisted that the relationship between the parties was governed by the written lease agreement signed in December 2003, which document the applicant says only recorded the financial arrangement between the parties for the conveyance, to the first respondent, of the purchase price. He vehemently argued, that, in terms of that lease agreement, the applicant would only be eligible for consideration to purchase the house at the expiration of 60 months from the date of the signing of that lease agreement.

Regrettably, counsel for the first respondent did not explain what governed the relationship between the parties before the lease agreement of 29 December 2003 was signed.

He took the view, that, as the applicant retired in March 2007, before the 60 month period had expired, he was not eligible to purchase the house and the first respondent was entitled to reclaim it.

There is a dispute as to when the applicant retired and two (2) different letters purporting to inform him of his resignation have been produced.

The first respondent produced a letter dated 14 November 2007 recording the applicant as having resigned on 31 March 2007.

Counsel for the applicant insists that letter is a recent fabrication by the first respondent, and has produced a letter written by the applicant's Human Resources Manager, M. Nyamadzawo, on 22 June 2005, giving the applicant notice of his retirement on 31 December 2005.

The first respondent has not explained the circumstances under which that letter was written if the applicant had not resigned.

Rule 63 of the High Court of Zimbabwe Rules 1971 provides:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971 are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226E-H. Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant, for failure to respond to the summons, is not
convincing, especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to responded to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S), that, the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgement has discharge the onus of showing “good and sufficient cause” for the rescission.

I had occasion, in Mazuva v Simbi and Ors HB155-11, a matter in which an applicant for rescission had not given a good explanation for failure to act, to comment…, that, even in such a situation such applicant can still discharge the onus if all the factors are taken together. In that matter, I stated:

“While the explanation for the first respondent's failure to respond to the application in HC905/10 is what MAKARAU JP (as she then was) referred to in Mwanyisa v Jumbo & Ors HH03-10 as 'a dog's breakfast' if the factors to be taken into account in deciding a rescission of judgment application, as set out in Stockill v Griffiths (supra), are taken in conjunction with one another, the applicant has discharged the onus of proving 'good and sufficient cause' for the rescission of the judgment entered on 1 July 2010. It simply cannot stand.”

Here is a company which avails to its employees an opportunity to purchase houses they are leasing from it. It signs an understanding with the employees representatives which has, appended to it, a list of beneficiaries which list sets out the value of each housing unit and the monthly instalment to be paid by each beneficiary - the applicant included. It goes on to deduct the equivalent of such instalment from the applicant's salary clearly stating that it is rent to buy the house and to also show the balance outstanding after such deduction.

The same instalment is reflected on a written lease agreement.

It must be understood, that, in an application of this nature, the applicant is not required to prove his case but merely to show a bona fide defence carrying prospects of success.

Counsel for the first respondent referred me to the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 (unreported) in which the Supreme Court ruled, that, the agreement signed between the first respondent and its employees, on 1 December 2003, which the applicant relies upon, was not a sale.

That issue was considered by MAKARAU JP…, in: 1. Antonio v Ashanti Goldfields Zimbabwe Ltd & Anor; 2. Mujati v Ashanti Goldfields Zimbabwe Ltd & Anor; 3. Ashanti Goldfields Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H); which matters involved the same arguments as in casu.

She distinguished that case and concluded…, as follows:

“I am bound by all decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

I find myself in agreement with that postulation.

I am not aware if that judgment has been challenged, but, until such time that it is overturned, I am entitled to use it as I am persuaded by it.

Following the guidance given in Stockill v Griffiths 1992 (1) ZLR 172 (S), to consider the factors not only individually but in conjunction with one another and with the application as a whole, I am of the view, that, the applicant has discharged the onus resting on him to show 'good and sufficient cause' for the rescission of the default judgment.

Justice demands that the issues raised ought to be interrogated fully in a trial and that the applicant should not be shut out, as it were, on the technicality of default judgment.

In the result, I make the following order; that

1. The default judgement entered on 26 June 2008 be and is hereby rescinded.

2. The applicant should file his notice of appearance to defend in HC642/08 within ten (10) days of the date of this order.

3. The costs of this application shall be costs in the main action.

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.

The Court has been unable to find any evidence that the arbitrator mis-interpreted the terms of the lease agreement between the parties.

Clearly, the applicant has been unjustly enriched by the deposit and rental in advance paid by the first respondent.

On the termination of the lease agreement, it was just and equitable that the first respondent be re-imbursed US$16,800, in the absence of evidence of fraud, corruption, breach of public policy, breach of the rules of natural justice, as provided in Article 34 of the Model Law.

The test for contravening public policy, that: “…, 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” was not established.

There was nothing immoral about the arbitral award that the applicant return monies given to him pursuant to a lease agreement which was terminated before it commenced, due to failure on his part to complete renovations to the property by an agreed date.

That award did not defy logic, or intolerably hurt the concept of justice in Zimbabwe.

In fact, the opposite is true; the concept of justice in Zimbabwe would have been hurt by allowing the applicant to keep the US$16,800. The applicant would have been unjustly enriched at the expense of the first respondent, who was innocent of any wrongdoing which resulted in the termination of the lease agreement.

The applicant is not entitled to have the arbitral award set aside.

Further, the basis of the application before the court is so flimsy; it would appear the application was conceived as a gimmick to frustrate the first respondent by delaying payment. It is for that reason that the court acceded to the application that costs be awarded on a higher scale, to discourage such conduct in future, and to mark its displeasure at the blatant abuse of court process.

This application is entirely devoid of merit and is dismissed with costs on the higher scale of legal practitioner and client.

It is ordered that the second respondent cease to be a party to these proceedings, and that the applicant pay the second respondent's costs on a legal practitioner client scale.

This is an application for summary judgment whose draft order reads:

“1. The respondent be and are (sic) hereby ordered to vacate the plaintiff's premises to wit House No. 1117 Haka Way, Chipadze Township, within seven (7) days of this order.

2. The respondent pays costs of suit.”

This is one of several similar matters in which the applicant is seeking the eviction of its former employees from company houses on the basis that the former employees were mere tenants whose employment has since terminated.

The former employees, just like the respondent herein, argue that the applicant sold the houses to them.

The respondent argues that he has a bona fide defence to the applicant's claim. That defence is explained as follows:

In 1998, the applicant, as part of its staff retention scheme, proposed to sell its housing units to its employees over a five year period. By then, the life-span of the mine had been projected to be around five years. The scheme would also help the applicant realize better value from the disposal of the houses in that manner as opposed to by selling them upon closure of the mine in an environment akin to a ghost town.

As a sequel to the proposal, a lot of deliberations were held on the issue and a Housing Committee was put in place composed of representatives of the employees and the applicant.

The relevant minutes were attached to the opposing papers.

Minutes of 8 May 2003 read:

“2.1 Sale of Residential Properties

The process was still ongoing and progressing well. The Finance Director, together with the workers representative went to consult a lawyer to resolve the outstanding issues. The lawyer came up with what he advised as the best option. Minor changes were made to what the lawyer proposed to suit the employee's needs. Whether that is acceptable will be determined when forms are taken back to the lawyers. IT WAS AGREED that the issue be pursued closely so that it comes to rest.”

Minutes of 24 August 2003 read:

“2.1 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. A hurdle on the revaluation of the houses was cleared with Mr Kwaku-Akosah-Bempah when he visited the mine during the second quarter. The Finance Director, together with the worker's representative, had been to the lawyer with the final draft to which the lawyer had already responded….,.”

Thereafter, what was termed a Memorandum of Agreement BETWEEN Ashanti Goldfields Management and Employees was signed. It provided:

“Ashanti Goldfields Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats and Low Density to its employees who are sitting tenants effective 1 December 2003. Find the agreed prices attached.”

The attached schedule has names of the sitting tenants, house number, new valuation of the house, and monthly repayment amount.

On 12 December 2003, the respondent (and other employees) entered into what is headed Agreement of Lease with the applicant.

The material clauses of the “lease” state that the lease period would be for five years, monthly rent of not more than 25% of the lessee's basic salary which would escalate periodically at a rate and on the basis described in Annexure 'A' viz:

“The value of the property will be revalued each time the employee is awarded the annual salary increment. The outstanding balance as at the effective date of the increment is what is revalued. The revaluation will be calculated as follows:

50% of the salary increment (%) x the outstanding balance (as at that date). The revalued outstanding balance will then be divided by the remaining period to get the monthly payment.”

The purported lease agreement was simply a vehicle through which deductions would be made from the respondent's salary.

This explains why the applicant, on the respondent's payslip, put a deduction titled “Rent to Buy” and why the applicant accepted a lump sum payment in full and final settlement of the sums payable to it under the agreement of sale before the expiration of the purported lease period.

Also, the minutes of 16 December 2003 are apposite. The relevant part reads:

“3.0 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. Management had approved and concluded the sale. The employees are busy filling in the contract forms.”

Pertinent to note here is that this was said after 12 December 2003 purported lease agreement.

While there exists a plethora of case law on the subject of summary judgment, the locus classicus is that of Maharaj v Barclays National Bank Limited 1976 (1) SA 418 (AD)…, where CORBETT JA said:

“Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the court, by affidavit, that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material alleged by the plaintiff in his summons…, are disputed, or new facts are alleged constituting a defence, the court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of one party or the other.

All that the court enquires into is:

(a) Whether the defendant has fully disclosed the nature and grounds of his defence and the material facts upon which it is founded; and

(b) Whether, on the facts so disclosed, the defendant appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law.”

On the facts so disclosed in casu, I am persuaded that the respondent's defence is bona fide and good in law.

I also derive solace in reaching this conclusion from the salutary words of GUBBAY JA…, in Jena v Nechipote 1986 (1) ZLR 29 (S)…, where the LEARNED JUDGE OF APPEAL held:

“All the defendant has to establish in order to succeed in having an application for summary judgment dismissed is that there is a mere possibility of his success; he has a plausible defence; there is a triable issue; or there is a reasonable possibility that an injustice may be done if summary judgment is granted.”

The respondent's explanation, expounded above, right through its chronology of events pertaining to the disposal of residential properties, does amount to a trial issue. There exists a reasonable possibility of an injustice being done if summary judgement were to be granted.

I am constrained to utter the following strictures concerning the applicant's obduracy.

As stated above, there are scores of similar cases involving the applicant and its former employees. One such is Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 wherein I dismissed a similar application on the same grounds.

The applicant seems to be engaged in a process of judge-hunting because several similar cases are either pending before other judges or have been dealt with meeting with the same fate of dismissal.

In 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 MAKARAU JP…, following a full trial based on similar claims, distinguished Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 which the applicant seems to rely on in its claims and held that the facts in HH139-09 established a sale.

Those facts fall on all fours with the facts in casu as well as those in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 in which I dismissed the application for summary judgment and gave the respondent unconditional leave to defend.

Although the judgment in 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 was appealed against, and the appeal is still pending, it is only prudent and proper that the applicant should await its outcome and stop judge hunting in order to avoid creating a multiplicity of contradictory judgments involving the same issue thereby causing confusion and injustice.

Since the facts and argument in casu fall on all fours with the cases dealt with by MAKARAU JP…, cited supra, and Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 I dealt with supra, the present application for summary judgement be and is hereby dismissed and the defendant is given unconditional leave to defend the action.

The applicant is ordered to pay the costs of this application.

This is an application to compel transfer consequent upon an agreement of sale of “proposed subdivision B of Lot 369 Highlands Estate of Welmoed measuring approximately 2033 square metres” entered into between the applicant and the first respondent in January 2015.

It is not in dispute, that, the parties entered into the agreement of sale aforesaid or that the purchase price was $75,000. Nor is it disputed, that, at the time the agreement was entered into, a subdivision permit had not yet been granted by the local authority, or that the agreement was never cancelled.

It is further not disputed, that, the plaintiff made payments towards the purchase price in full.

The parties are not agreed as to who appointed the Estate Agents in the matter.

The applicant avers, that, Trevor Dollar Real Estate Company was the agent for the first respondent, while the first respondent avers the contrary.

Further, there is a dispute as to whether the purchase price was paid to the first respondent.

The applicant claims that it paid the purchase price in full to the first respondent's agents, Trevor Dollar Real Estate Company. It attached receipts and RTGS transfer forms showing payment to Trevor Dollar trust account in the amount of $87,200.

It argues, that, the estate agents, being the first respondent's agent for the sale of her property, on commission, once the applicant paid the purchase price and transfer fees to them, it discharged its obligations and was entitled to transfer.

The applicant based this averment on the fact, that, the first respondent was a personal friend of Mr Trevor Dollar, and, Trevor Dollar Estate Agents advertised that the first respondent intended to sell subdivisions of her land.

In any event, if Trevor Dollar Real Estate Company was its agent, that would be tantamount to making payment to itself, which would be illogical.

On her part, the first respondent submits, that, she never received any payment from the estate agents.

Besides, she was not the principal of Trevor Dollar Estate Agents, and, since she never received the purchase price from them, she is therefore not obliged to transfer the property.

The third area of dispute is whether there was a valid agreement of sale between the parties.

The applicant submits, that, the parties concluded a conditional sale, subject to the first respondent obtaining a subdivision permit, which was a condition precedent. There was thus no contract between the parties until the permit was obtained. Once the permit was issued, it brought the contract into existence. Therefore, at the time the contract came into existence it was not contrary to the provisions of the law as it did not contravene sections 39 and 40 of the Regional Town and Country Planning Act [Chapter 29:12].

On her part, the first respondent submits, that, there was no condition precedent to the sale and it was thus illegal as it was contrary to the Regional, Town and Country Planning Act aforesaid and is therefore unenforceable.

It seems to me, that, once I make a finding on Trevor Dollar Real Estate Company's agency, the second area of dispute will be resolved as well.

The documentary proof, on its own, is not very helpful.

The receipts from the estate agents show the applicant as the “client”. On the other hand, the estate agent charged commission against the first respondent, thus raising the presumption that she was indeed the client.

However, there exists communication between the first respondent and the estate agents showing that she received, at the very least, some advances which she did not dispute in those communications.

It seems that this communication, between the first respondent and Mr Trevor Dollar, points to a relationship of familiarity.

It is clear from the communication, that, she was the one who informed Mr Trevor Dollar of her financial problems and her decision to subdivide her property and sell the sub-divisions to overcome those challenges.

It was as a result of her discussions with Mr Trevor Dollar that an advertisement was flighted in the press.

In addition, the existence of communication between her and the estate agents, showing that she requested and received some advances, which she did not dispute in those communications, points to her being the principal of the estate agent.

Going further, it is apparent that money was paid to Trevor Dollar Real Estate Company in payment of the subdivision to be held on her behalf. That is why she was able to request for advances which were given to her without the applicant being consulted at all.

This, coupled with her admission to Mr Trevor Dollar to pay his commission, confirms that Trevor Dollar Real Estate Company was her agent.

It seems to me, that, the first respondent seeks to trifle with the court by alleging otherwise.

The law is clear; the applicant was obliged, in terms of the agreement of sale, to pay the money to Trevor Dollar Real Estate Company. The money was indeed paid for the first respondent's benefit. By her own admission, she was liable for the commission. Ergo, Trevor Dollar Real Estate Company was her agent: see Lens Agencies (Pvt) Ltd v Knight Frank Beverly & Anor 1997 (2) ZLR 167 (SC); see also Ami Zimbabwe (Pvt) Ltd v Casalee Holdings (Pvt) Ltd 1997 (2) ZLR 77 (SC).

By the same token, since the law provides that he who does an act through an agent does it himself, it made no sense for the applicant to pay the purchase price to itself, by paying it to its own agent.

Further, flowing from the same principle of law, it was totally unnecessary to join the estate agent company to the suit.

How the estate agent dealt with the money is not the applicant's problem.

The applicant discharged its legal obligation upon making payment to the estate agent. At the very least, therefore, since the first respondent is the one seeking to withdraw from the contract, the applicant is entitled to restitution from her.

It is obvious that the first respondent was quite aware of this, given the tenor of her communication with the estate agent. In fact, I note that she even, at one point, instructed the agent to make restitution to the applicant. Failure by the agent to do so reposes the obligation to restitute squarely on her.

In the premises, it seems clear to me, that, the first respondent instructed her friend, Mr Trevor Dollar, to sell her property, on her behalf, on commission. He was therefore her agent. Mr Trevor Dollar, through his company, sourced for prospective purchasers, drafted the necessary agreements, and received payment of the purchase price on the first respondent's behalf. He even made some advance payments to the first respondent from the purchase price received.

Whether or not the first respondent received all or any portion of the purchase price, is entirely between her and her agent.

Once the applicant made payment to Trevor Dollar Estate Agents Trust account, it discharged all its obligations to the first respondent and is entitled to transfer - subject, of course, to the contract being legal.

But, even if it was not a legal contract, the first respondent has not pleaded the in pari delicto principle, and cannot claim that the loss should fall where it lies. She must therefore make restitution.

This is an application for summary judgment wherein the applicant seeks the eviction of the respondent and all those claiming occupation through him from House Number 1131, Chipadze Township, Bindura and costs of suit.

The facts of this matter are largely common cause:

The respondent was employed by the applicant. With the passage of time, the apparently benevolent employer, being the applicant, decided to sell some of the houses to some employees who were sitting tenants.

Some sort of agreement was entered between the applicant, represented by its General Manager and Financial Director, and the employees, represented by the Workers Committee members being the Chairman and two Committee members.

The said agreement or memorandum is dated 1 December 2003 and is in the following terms;

“MEMORANDUM OF AGREEMENT BETWEEN ASHANTI GOLD FIEDS MANAGEMENT AND EMPLOYEES

Ashanti Goldfield Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats, and Low Density to its employees, who are sitting tenants, effective 01 December 2003. Find the agreed prices attached.”

The said agreement is attached to the applicant's founding affidavit as Annexure F1 to F4.

Attached to this agreement is a schedule which has a list of the employees involved, the house they occupy, the value of each house (in Zimbabwe dollars) and the monthly instalments or repayment each employee was to pay.

The respondent occupied House No.1131 which was then valued at Zimbabwean dollars $1,200,000 and was to pay a monthly instalment of Zimbabwe $20,000.

Pursuant to the signing of the Memorandum of Agreement explained above, and on 12 December 2003, the applicant and the respondent entered into what is called “Agreement of Lease” in which the applicant agreed to lease House No.1131 Chipadze, Bindura (the house) to the respondent for a period of 60 months (5 years) commencing 1 January 2004 at the monthly rentals of Zimbabwean $20,000 which was reviewable in accordance with Annexure 'A' to that lease agreement (which provided for revaluation of the property whenever employees are awarded a salary increment).

These monthly rentals were deducted from the respondent's salary.

Clause 3 of the lease agreement provided for the option to buy the house. It provides as follows;

“3. OPTION TO PURCHASE

3.1. The lessee shall have the option to purchase the property after sixty months.

3.2. The rentals paid by the Lessee to the Lessor in terms hereof shall be taken and be deducted from the amount due in respect of the purchase price determined in accordance with the provisions of Clause 3.1. (above).”

The lease agreement is signed by a representative of the applicant and the respondent.

From other decided cases I have been referred to, dealt with by this court, it is common cause that a number of employees entered into such a lease agreement.

It would appear to my mind, that, the dispute in this case, and other cases already dealt with by this court, relates to interpretation to be accorded to the “Memorandum of Agreement” dated 1 December 2003 and the lease agreement dated 12 December 2003 and the relationship between the two documents.

I shall revert to this point later.

After the issuing of the Memorandum of Agreement, on 1 December 2003, and before the signing of the lease agreement, on 12 December 2003, the Workers Committee, through what was now called the Housing Committee, issued out a Memorandum to all employees of the applicant copied to the applicant.

This Memorandum explained the Agreement reached on 1 December 2003. Most importantly, it invited the employees who were sitting tenants to take up the offer to buy the houses.

The relevant part of this Memorandum, dated 2 December 2003, reads as follows;

“Please note that you have until February 29, 2004 to decide whether to purchase the house you are living in or not, after which date the offer will be extended to an employee who is willing to purchase the property. The offer is now open, therefore, employees who are ready can see the Members to formalise the purchase.”…,.

It was after this invitation that the respondent entered into the lease agreement with the applicant on 12 December 2003.

In addition to that, the respondent has attached as Annexures A1 to A3 his payslips which reflect that money was deducted from his salary which money is reflected as “rent to buy”.

The payslips are as follows;

A1, dated 31 October 2004, has a deduction indicated as “Bal rent to buy $52,755”

A2, dated 25 March 2004, has a deduction indicated as “Bal rent to but $116,000”

A3, dated 25 June 2004, has a deduction reflected as “Bal rent to buy $56,895”

The respondent has also attached to his opposing affidavit a memorandum from the applicant, written by the applicant's Financial Controller to the respondent and copied to the Housing Committee dated, 14 March 2004. Its contents are as follows;

“This memo serves as an acknowledgement that we have received $1,100,000 (one million one hundred thousand dollars) as payment towards yours house. The outstanding balance is now $60,000 (sixty thousand dollars).”

It is common cause that the respondent, who was employed by the applicant, and was the sitting tenant in this house as at 1 December 2003, was summarily dismissed on 15 July 2009 following a disciplinary hearing held in terms of their Code of Conduct.

This means, that, as at the date of his dismissal, the respondent has been in occupation of the house for a period of sixty seven (67) months - which is in excess of the sixty months stipulated in the Lease Agreement dated 12 December 2003.

After the dismissal, on 15 July 2009, the respondent, on 4 September 2009, was advised to vacate the house on the basis that the lease agreement which entitled him to occupy the house had lapsed due to the termination of the respondent's contract of employment (see Annexure D to the applicant's founding affidavit).

The respondent refused to vacate the house.

This prompted the applicant to issue summons out of this court in HC4395/09 (main matter) seeking the eviction of the respondent and all those claiming occupation through him and costs of suit.

The respondent entered an appearance to defend and filed a plea, which plea had been dismissed by the applicant as not raising a good prima facie defence, culminating in this application for summary judgement.

It is useful, at this stage, to deal with the respondent's plea (Annexure E to E4 to the applicant's founding affidavit).

In his plea, the defendant stated, that, prior to 1 December 2003, he was occupying the house in issue on the basis of the contract of employment and that since 1 December 2003 he was now occupying the house on the basis of a sale agreement.

The respondent said he has since fully paid for the house and awaits the transfer of the house into his name.

It is the respondent's contention, that, the lease agreement dated 12 December 2003 was the vehicle through which the respondent, and other employees, purchased the houses as they paid for the houses through the process of rent to buy with the monthly repayments deducted from their salaries.

The respondent, in his plea contends, that, he has now acquired rights and interest in the same house hence the applicant cannot evict him from the house.

In fact, the respondent proceeded to file a counter-claim seeking an order to compel the applicant to transfer its rights, interest, and title in the said house to the respondent within 30 days of the grant of such an order and costs of suit.

The question to be addressed in this matter is whether, given the facts I have painstakingly outlined, the applicant is entitled to this extraordinary remedy in the form of a summary judgment?

An application for summary judgment is made in terms of order 10 Rule 64 of the High Court Rules 1971 in circumstances where the applicant is of the belief that the respondent has no bona fide defence to his action.

The respondent may oppose such an application in terms of Order 10 Rule 66(1)(b) of the High Court Rules by showing that he has got a prima face defense to this action.

The law, in relation to the requirements for granting a summary judgment, is clear.

The old case of Roscoe v Stewart 1937 CPD 138 which is cited by the celebrated authors HERBSTEIN and Van WINSEN – Civil Procedure of The Superior Courts In South Africa, 2nd Edition…, makes the point, that, summary judgement is a remedy designed to eliminate or dispose of bogus defences and defences which are bad at law.

The mischief which is curbed by this drastic remedy is to prevent unscrupulous litigants seeking to delay a clear and just claim by raising frivolous defences: see Nedlaw Investments & Trust Corporation Limited v Zimbabwe Development Bank SC05-00 in which it was clearly stated that;

“…, the quintessence of the drastic remedy is that a plaintiff, whose belief is that the defendant's defence is not bona fide and entered solely for dilatory purposes should be granted immediate relief without the expense and delay of a trial.”

In order to successfully fend off an application for summary judgment, a defendant has to show that he has a good prima facie defense to the action.

Our courts have had the opportunity to define what constitutes a good prima facie defence.

In the case of Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…, MALABA J…, has this to say;

“…, he must at least disclose his defense, and material facts upon which it is based, with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence: Haharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 426D…, the statement of material facts (must) be sufficiently full to persuade the court that what the defendant has alleged, if proved at trial, will constitute a defense to the plaintiff's claim.”

Having laid out these principals of law applicable to this case, I now proceeded to apply these principles to the facts of this case.

The applicant believes, that, the appearance to defend entered by the respondent, and his subsequent plea, do not disclose a bone fide defence but was solely entered for purposes of delay.

In argument, the applicant submitted, that, there was never an agreement of sale between the applicant and the respondent.

It is the applicant's view, that, the memorandum of agreement, dated 7 December 2003, cannot be construed as an agreement of sale, and, reliance was placed on the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in which CHEDA JA had to interpret this same document and clearly stated, that, it cannot be said to be an agreement of sale.

Similarly, the applicant submitted, that, the lease agreement, dated 12 December 2003, cannot be construed also on an agreement of sale as it merely provides, in Clause 3, that, an option to purchase this property would be offered to the respondent after sixty months.

The applicant's case, therefore, is that the agreement of lease, having been terminated after the respondent left the employ of the applicant, the respondent has no right, whatsoever, to remain in the house as the applicant remains the registered owner of the house.

While it is correct, that, the pronouncements of the Supreme Court are binding to this court, I believe the case in which the applicant seems to have reposed all his faith in, of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09, can be distinguished from the facts of this case.

In fact, MAKARAU JP…, in a number of cases involving the applicant and its employees, in Antonio v Ashanti Goldfields Zimbabwe & Anor; Mujati v Ashanti Golfields Ltd & Anor; Ashanti Goldfieds Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H)…, distinguished Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 as follows;

“I am bound by all the decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret their facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

A number of my brother and sister judges who have been seized with matters involving the applicant and its employees, in relation to these houses, have adopted the approach enunciated by MAKARAU JP…, in arriving at a different conclusion, on the facts presented in each particular case, despite the sentiments expressed in Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in relation to the Memorandum of Agreement, dated 7 December 2003, and the Lease Agreement dated 12 December 2003.

Few examples are sufficient to illustrate this point.

In the case of Ashanti Goldfields Zimbabwe Ltd v Jhafati Mdala HC5664/07 CHATUKUTA J, after a protracted trial, did find, that, on the facts presented before her, inclusive of the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement dated 12 December 2003, indeed, Ashanti Goldfields Zimbabwe Ltd had sold the house to the defendant.

In the case of Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Shingirai Matimura & Ors HH54-11, GOWORA J…, declined to grant a summary judgment wherein the applicant had sought the eviction of the respondents; whilst the respondents had advanced a similar argument like in the instant case. Indeed, the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement, similar to one dated 12 December 2003, were some of the documents in issue in that case.

Lastly, in the case of Govha v Ashanti Goldfields Zimbabwe t/a Freda Rebecca Mine & Anor HH48-12, and, in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Ephraim Pfidze HH347-12 MATHONSI J, in both cases, faced with facts almost on all fours with the present case, declined to grant a summary judgement in both cases for the eviction of the respondents (employees).

It is clear from the facts of this case that the respondent has raised a good prima facie defence to the action for eviction.

The Memorandum of Agreement, dated 1 December 2003, which I have alluded to in my introductory remarks, shows, that, the respondent was one of the sitting tenants who were eligible to purchase the house in issue. The respondent contends, that, he acted in terms of the Memorandum, dated 2 December 2013, which invited all employees who were sitting tenants to exercise the offer to purchase the houses as at 29 February 2004.

In fact, the respondent argues, that, he proceeded, in exercising this option, to enter into a lease agreement, dated 12 December 2003, which he described as the vehicle with which the employees were to purchase the houses, as they all started to pay what was called “rent to buy”.

Indeed, the respondent attached some of his payslips, for 2004, which show that monthly deductions in various amounts were made as “rent to buy”.

In addition to that, the respondent has included a memorandum from the applicant, addressed to him, acknowledging receipt of $1,100,000 towards the purchase of house, and indicating that outstanding balance as $60,000 only.

As already stated, the respondent was in occupation of this house (as a sitting tenant) for a period in excess of 60 months (Clause 3 of the lease agreement) before he was dismissed from work and the lease agreement purportedly terminated.

Considering all these the factors placed before the court by the respondent, one cannot say, with certainty, at this stage, that the respondent did not exercise the option to purchase the house in issue.

The applicant has not been able to meaningfully explain why, after a period of 60 months, and in view of the proof of monthly deductions and confirmation by the applicant of such payment as part of the purchase price, in March 2004, the applicant is still of the view that the respondent did not purchase the house.

I am satisfied that the respondent has presented an arguable case.

It cannot be said that the defence raised by the respondent is simply raised for purposes of delaying the inevitable. It would therefore be unfair and improper, and this stage, to close the door to the defendant and deny him the opportunity to defend the claim.

On the facts before me, it cannot be said, that, the applicant's case is unanswerable and unassailable.

The parties should be allowed to have their day in court and present evidence on whether the respondent exercised the right to purchase the house in issue and paid the full purchase price.

The claim for eviction, at this stage, is premature.

The application for summary judgment is therefore without merit. In the result, the summary judgement application is dismissed with costs.

If seems to me, that, the illegality conducted by the appellant would obviously impact the decision on whether or not to waive the penalty equivalent to the unpaid non-residents tax on fees under paragraph 6(2) to the Schedule. If adjudged illegal, then, it would not qualify for waiver as the intention on the part of the appellant would be to evade withholding such tax arising from any payments from its local foreign currency account.

The appellant averred, that, it made no payments to the agents. The agents simply deducted the fees due to them offshore before making telegraphic transfers into the evidence accounts at the appellant's local bankers.

Counsel for the appellant submitted, that, in those circumstances, there was no amount against which tax could be withheld.

Like in G Bank Zimbabwe Ltd v Zimbabwe Revenue Authority HH207-15, counsel for the appellant relied on the decision of this Court in Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimbabwe Revenue Authority 2004 (1) ZLR 506 (H) which appeared to suggest, that, the local safari operator was not a payer of the commission that was deducted offshore from the overall fees due to him in Zimbabwe.

The facts in that case are unclear.

They appear in the recitation of the taxman's arguments on pp508G and 509G of the report. It would appear, that, the safari operator provided the foreign independent operators with the gross value of its hunting services. Foreign prospective hunters paid this amount to the foreign independent operators who, in turn, deducted some agreed amounts as commission before remitting the balance to the account of the safari operator.

CHEDA J held, that, the source of the payment was from outside Zimbabwe, and, for that reason, the payment did not constitute fees. He also held, that, as the payment had been made to the agent by the prospective hunter and not by the safari operator, the safari operator was not the type of payer contemplated by the Seventeenth Schedule to the Income Tax Act.

In G Bank Zimbabwe Ltd v Zimbabwe Revenue Authority HH207-15 …, I said of Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimbabwe Revenue Authority 2004 (1) ZLR 506 (H)…,:

"If the commission in the Sunfresh case was deducted from the overall hunting fee remitted to the safari operator, as submitted by Mr de Bourbon, I would, with respect, differ from the finding of CHEDA J. The payment by the foreign client to the foreign based agent, in my view, would simply constitute a prepayment on behalf of the safari operator. It would have been subject to withholding tax."

I remain of the view, that, if the deduction of the commission was made from the total package charged by safari hunting services from Zimbabwe, then, it would constitute an the safari operator to the independent agent from moneys due to the I could have found that the source of the payment was from the originating cause of the payment was from the hunting services in Zimbabwe.

The words "from a source in Zimbabwe" denote the originating cause.

In K v Commissioner 1990 (1) ZLR (H)…, SMITH J stated that:

"I accept, that, it is settled law that the source of any payment means the originating cause thereof, and, prima facie, that would be where the work was performed - see Commissioner of Taxes v Shein 1958 R&N 384 (FSC) at 387E; 1958 (3) SA 14 (SC) at 16H (also (1958) 22 SATC 12) where TREDGOLD CJ said:

'It may be accepted, that, prima facie, the test of the source of a payment for services rendered is the place where those services are rendered.'

The learned CHIEF JUSTICE went on, however, to say, that, the ultimate test of source is the originating cause."

I would, for these reasons, disagree with the decision in Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimbabwe Revenue Authority 2004 (1) ZLR 506 (H) and would therefore decline to follow it.

There is also a more fundamental reason for rejecting Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimbabwe Revenue Authority 2004 (1) ZLR 506 (H) and the argument advocated by counsel for the appellant.

The provisions of paragraph 1(2)(c) to the Seventeenth Schedule of the Income Tax Act provide that "fees shall be deemed to be paid to the payee if they are credited to his account or so dealt with that the conditions under which he is entitled to them are fulfilled, whichever occurs first."

I understand this provision to mean, that, even though the actual payment is pending, if the payer, in this case the appellant, has credited the account of the payee, the agent, with the fees, the payer is deemed to have paid the fees.

This first rung does not apply to the facts of this case.

The second rung deems the fees paid where such fees are due and payable and the payer makes prior arrangements for their payment. The payer thus incurs an unconditional liability to pay and arranges for the payment of such fees.

In the present case, the fees became due and payable to the agent and the appellant incurred an unconditional liability to pay each time a sale was made.

The arrangements that were made, in respect of payment, before the payment took place were that the agent would retain the fees from the gross FCA value of the exports receipts.

It seems to me, that, the making of the sale, together with these prior arrangements, is deemed to constitute payment of the fees by the second rung of paragraph 1(2)(c) to the Seventeenth Schedule.

The argument advanced by counsel for the appellant, that liability for the appellant was based on actual payment, flounders on the provisions of the second rung of paragraph 1(2)(c) to the Seventeenth Schedule of the Income Tax Act.

In any event, the agreements in the present case, in terms of clause 5, are governed by the is inter alia applicable to this case. CHRISTIE, in Business Law in Zimbabwe (Juta 1998 reprinted 2014)…, provides the working definition of agency in these words:

"Agency may be defined as a contract whereby one person (the principal) employs another to enter into contractual relationships binding between him and third parties.”

LEE and HONORE in The South African Law of Obligations (Butterworths 1950) are to the same effect. In para 606 the learned authors write:

"A contract of agency is a contract whereby one person (termed the agent) agrees to represent another (termed the principal) in dealings with third parties."

The learned authors go on to explain, in para 658, that:

"An agent contracting as agent, whether for a named or unnamed principal, does not generally render himself personally liable or acquire rights under a contract made with third parties, but, he may contract in such terms as to do so."

Again, SILKE, in The Law of Agency in South Africa 3rd ed…, provides a more illuminating definition of agency in these words:

"The essence of the modern view of agency is that there must be a third party in contemplation and the agent acts purely as a channel bringing the principal into legal relations of a contractual nature with the third party. The acts of the agent are done in the name of the principal and are deemed to be the acts of the principal himself, ensuring to his benefit or rendering him liable, without any benefit accruing or liability attaching to the agent."

The academic writers make the self-evident point, that, an agent acts for the principal and its actions are ascribed to the principal.

The deduction of the commission from the gross FCA value of the exports by the agent, by operation of law, are attributed to the appellant, who, it is common cause, is resident within Zimbabwe.

It cannot lie in the mouth of the appellant to protest that it made no payment to the agents.

I find that it did.

It was obliged, by paragraph 2(1) of the Schedule, to withhold non-residents tax on fees. It failed to do so. It was therefore legally liable to pay such fees under the provisions of paragraph 6 of the same Schedule.

I therefore find, that, the Commissioner correctly fostered liability on the appellant.

The appeal, based on the decision of the Commissioner, is dismissed.

I do not find the grounds of appeal to have been frivolous. In accordance with the provisions of section 65(12) of the Income Tax Act, I therefore make no order as to costs.