Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court

SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

On 20 December 2006 the High Court granted a decree of divorce and other ancillary relief in a divorce action in which Mr Beckford was the plaintiff and Mrs Beckford the defendant. Aggrieved by part of the Order, Mr Beckford appealed to this Court. The Notice of Appeal, in relevant part, reads as follows:

“The appellant appeals against paragraphs 2, 3, 9, 10, 12 (only insofar as it relates to the respondent), 14, 15 (insofar as the time for payment by the appellant is required), 16, 17, 18, 19 (only insofar as it imposed upon the appellant the obligation to deliver such property to the respondent at his cost), 22 and 23 of the Order given by the High Court of Zimbabwe.”...,.

The parties were married to each other in Blackpool, Lancashire, England, on 26 November 1994. Two children were born of the marriage. These are Elsbeth Bridie Beckford, born on 7 August 1996, and Theodore Hugh Beckford, born on 9 February 1999. Both children were born in the United Kingdom.

At the pre-trial conference, the issues were identified as follows –

“1. Whether it is in the best interests of the minor children that custody be awarded to (the) plaintiff or (the) defendant, or that an award of joint custody be made.

2. Dependent upon the award of custody, the quantum of maintenance payable in respect of the children.

3. What order should be made in respect of the children's schooling?

4. The quantum of maintenance payable by (the) plaintiff to (the) defendant and the period thereof.

5. What assets constitute the matrimonial estate?

6. The apportionment thereof.

7. Costs.”

After a trial which lasted eight days the learned trial Judge prepared a long judgment in which he carefully considered the issues before him. I now wish to consider those paragraphs of the order of the court a quo which are challenged on appeal, and determine whether the learned trial Judge erred in any way.

PARAGRAPH 2

In terms of this paragraph, the learned trial Judge granted the custody of the two minor children of the marriage to Mrs Beckford. In this regard, the learned Judge relied mainly on the evidence of Mrs Beckford and that of Mr Jean-Francois Desvaux de Marigny (“Mr de Marigny”), a clinical psychologist with much experience in the psychological aspects of custody of and access to minor children after divorce.

Although Mr Beckford originally sought sole custody of the two minor children, he finally sought joint custody of them. However, Mrs Beckford, who sought sole custody of the children, maintained that joint custody was a practical impossibility in this case because it would not work.

The learned Judge found that Mrs Beckford gave her evidence well and was an honest and fair witness.

In his evidence, Mr de Marigny said that although joint custody was the “first prize”, if it was a practical possibility, he did not believe that the necessary ingredients for joint custody, such as trust and the ability to communicate with each other in a mature manner, existed in this case. It was his view that Mrs Beckford was the more appropriate custodian of the two parties.

The learned Judge accepted Mr de Marigny's evidence and commented as follows at pp 38-39 of the cyclostyled judgment (judgment no. HH124-06):

“I have dealt at length on Mr Marigny's testimony because, in my view, it was delivered in a professional and impartial manner. His opinion was based on a credible methodology. He conducted in depth interviews with a wide array of collaterals, the plaintiff, the defendant, the children, and Dr Bester…,. He carried out a first class appraisal of the issues and the facts. He was alive to the thirteen criteria for custody considerations set out in McCall v McCall 1994 (3) SA 20 (C) (sic) at 204-205 and the views expressed by DE VOS J, in Krugel v Krugel 2003 (6) SA 220 (W), on joint custody. He was commissioned by the plaintiff. He conducted himself well and with dignity in the witness-box….,. I am satisfied that he told the truth. I believe his evidence in its totality.”

It is pertinent to note that, in the Heads of Argument prepared on behalf of Mr Beckford, no challenge is made to Mr de Marigny's evidence and his reports. That, in my view, supports the learned Judge's view of the manner in which Mr de Marigny gave his evidence and the substance of that evidence.

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

Mr Benjamin Matambanadzo gave evidence for the plaintiff. He is a panel beater by profession and owner of Imperial Motors. He did his apprenticeship with the City of Harare from 1989 to 1992. After 1992 he qualified as a panel beater. He worked as a panel beater from the time of apprenticeship to the present. ...

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD AND GORDON NGONIDZASHE MOYO
Ruled By: KUDYA J

The girl was attended to by doctors who included Dr. Arnold Tawanda Vhumisai. The doctor compiled a medical affidavit…, on 14 November 2008. The child suffered injury of the left hand. It was severe and would result in permanent disability. The wound constituted 5% of her total body surface. A skin graft was carried out ...

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

The defendant called two witnesses. The first witness was Michael Mukombami.

At the time of hearing, he was the Acting Senior Vehicle Inspector. He had been in the employment of the Vehicle Inspection Department for 13 years since 1985. One of his duties was to examine vehicles involved in road accidents.

He examined the defendant's vehicle following the accident and issued the notice prohibiting use of vehicle in the plaintiff's bundle of documents marked as Exhibit G.

He examined all the systems and the body of the defendant's vehicle to assess the damage and the cause of the accident. It was his finding that the front of the car was extensively damaged. He could not state whether or not the lights were on prior to the accident because of the extent of the damage and because the headlights were crushed.

He found that there was no brake fluid in the master cylinder. The right front brake hose had separated leading to fluid leaking. He concluded that the hose separated as a result of the impact of the accident. This conclusion was based on the fact that the hose was still wet from the leaking oil.

The inspector disputed the assertion, by the defendant, that the brakes had failed before the accident.

He testified, under cross-examination, that the nature of the damage to the defendant's vehicle showed that the vehicle had been travelling at a very high speed.

The witness gave his evidence well. The plaintiff's counsel did not need to cross examine the witness to great lengths. He was an independent and credible witness who corroborated the plaintiff's case…,.

I preferred his evidence to that of the defendant.

I am guided by the decision in Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) where it was held that expert evidence can be preferred where the direct evidence of eye witness of a collision is not credible....,.

The plaintiff's version of the accident was as follows:

He testified that he had lived in the neighbourhood of the scene of accident for 12 years. He was familiar with the intersection where the accident occurred. He had been travelling along Breach Road in an easterly direction. The road had not been repaired for over five years and was full of potholes. He was therefore driving slowly.

When he got into the intersection with Kingsmead Road, he was suddenly hit on the right driver's side by the defendant's vehicle. The defendant had been driving along Kingsmead in a northerly direction. The impact caused the front wheels of his vehicle to get off the ground. His vehicle rolled twice. He was thrown out of the window. He hit against a durawall. His vehicle hit a ZESA pole some distance away and across Kingsmead Road.

The accident happened so suddenly that he could not react.

The defendant did not have his lights on otherwise he would have noticed him and taken corrective measures. There was a Give Way sign against the defendant.

It was his evidence that the defendant must have been moving very fast to cause his vehicle to roll over as it did and for him to be thrown out of the vehicle. He testified that even if the defendant's vehicle had working brakes, he could still not have stopped the vehicle from hitting into him because of the high speed he was traveling at.

The plaintiff sustained severe injuries.

He was taken to Parirenyatwa Hospital. He was in a coma for a week. Thereafter, he was in the High Dependency Unit for another seventeen days. He spent seven and a half months in St Giles Rehabilitation Centre. The total period of hospitalization was about one and a half years.

He was placed under Professor Kalangu's care. He produced a report by the Professor on the extent of his injuries. The following is the full text of the report by the Professor dated 12 November 2007:

“This is to certify that the above named is under my care since 24-07-06. Patient was apparently involved in a Road Traffic Accident on 06/05/2006 in which he sustained complete paralysis of the left and complete paralysis both lower limbs. This motor impairment to upper limb due to major destruction of the brachial plexus (brachial plexus is a structure made by the nerves which supplies power and sensation to the upper limb) and by compression of the spinal cord for the lower limbs. Patient's conscious level was normal (15/15). Radiological investigations revealed: fracture of the left clavicle, fracture of the spine in C5 and C6 and MRI revealed a dislocation of the vertebra in C5-6 associated to spinal cord compression.

Patient was taken to the operating theatre on 29/07/2006 and spinal cord decompression + fusion were carried out. Post operatively, patient made slow but significant recovery.

Currently, he still has weakness of the forearm and arm on the left side. Moreover, patient suffers now from pain which we call, in neurosurgery, phantom pain and is typical of this type of lesion.

This patient will, unfortunately, have pain for a long time and another operation for this purpose is not excluded. In the meantime, patient requires a lot of physiotherapy. Mr. Mbundire is walking now on his own.

His percentage of disability is 60%.

If you require any further information please do not hesitate to contact me.

Yours truly,

Prof. K. K. N. KALANGU
Neurosurgeon.”

(The plaintiff produced a report dated 20 June 2008 whose contents are identical to the above except that it was signed by someone else on behalf of the Professor).

The plaintiff produced another report by Professor Mielke, of the Clinical Neurophysiology Laboratory, Parirenyatwa Hospital, Harare, dated 11 December 2006. The report reads:

“Clinically, he has weakness of all the muscle groups in the left arm, with no movement in shoulder and elbow muscles.

There is no sensory loss.

EMG today shows active denervation as low at T1, which is much more consistent with a brachial plexus lesion than a spinal injury: the upper plexus is seriously injured with no sign of recovery at present, but, the lower plexus should show good improvement.

I would recommend repeat studies in six months.”...,.

It should be noted that, except for the dates and the signatures, the two reports from Professor Kalangu, dated 12 November 2007 and 20 June 2008 are identical. This is despite the fact that a period of seven months had lapsed after the first report.

One would have expected the later report to have indicated any changes that may have occurred during that period. It appears that whoever signed on the later report merely printed the report of 12 November 2007....,.

The defendant sought to dispute the nature of the injuries suffered by the plaintiff by putting into issue the report by Professor Kalangu. The defendant contended that the report states that the plaintiff had been under the care of the Professor since 24 July 2006 as a result of injuries suffered from an accident which happened on 6 May 2006. This gave the impression that the plaintiff was suffering from pre-existing injuries on 23 July 2006 when the accident occurred.

There is no dispute that the plaintiff was involved in the accident with the defendant on 23 July 2006. The report by Professor Kalangu demonstrated that the plaintiff sustained complete paralysis of the left and both lower limbs, fracture of the left clavicle, fracture of the spine and C5 and C6 and a dislocation of the vertebra in C5 to C6 associated with the spinal compression.

The nature of the injuries described by the Professor is such that the plaintiff would not have been driving any vehicle, at all, on 23 July 2006 if he had sustained those injuries on 6 May 2006.

To imply that the applicant sustained the above injuries from an accident prior to 23 July 2006 and be able to still drive on 23 July 2006 borders on absurdity, and, in my view, an insult to the plaintiff.

The injuries to the plaintiff were apparent when he testified. He had difficulties walking to the witness stand. He could not stand for a long time and had to request to sit down during the hearing. Both the defendant and his counsel had to assist the plaintiff by flipping the pages of the plaintiff's bundle of documents as he was testifying.

It appears to me that the date is a genuine error. The doctor does not make any reference to the accident of 23 July 2006 at all. In my view, it was not even necessary for the doctor to be called to clarify the apparent error.

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

The second witness for the plaintiff was Anthony Derek Lamb. He has been a Chartered Accountant, registered with the Institute of Chartered Accountants in Zimbabwe, for the past forty years..., he supplied his qualifications in Planning and Development in the Construction Industry. Between 1968 and 1970, he was a Director of Pettigrew, a Rhodesian construction company which ...

The second witness for the plaintiff was Anthony Derek Lamb.

He has been a Chartered Accountant, registered with the Institute of Chartered Accountants in Zimbabwe, for the past forty years..., he supplied his qualifications in Planning and Development in the Construction Industry. Between 1968 and 1970, he was a Director of Pettigrew, a Rhodesian construction company which built Ashdown Park at the time. He, over the years, has had experience in the planning and construction of Seke National in Chitungwiza, and under his influence, Huruyadzo Supermarket complex was built in St. Mary's, Chitungwiza. He is also involved in the development of high class cluster homes..., in Borrowdale, and in phase three for..., Fairview Park in the northern area of Ruwa....,.

He has never met the defendant. He has dealt with the plaintiff's son..., and acted as a mediator between the parties by engaging them through the plaintiff's son and the defendant's wife.

He alleged that he owed no allegiance to either party.

In his mediation attempts, he wrote exhibit 6 on 28 February 2007. It was based on the financial figures and information availed to him by the plaintiff's son...,. Anthony Derek Lamb worked on the assumption that these figures were accurate to compile the Table...,. The Table was first prepared as at the end of July 2007 but was updated as at the end of November 2007 to reflect the time value of money in Zimbabwe caused by hyperinflation.

He used the Consumer Price Index to calculate the values as at the end of September 2007, the latest figures then available from the Central Statistical Office. He then used his own index from September to November to update the values. His index was arrived at by comparing the prices that make Consumer Price Index basket in September and at the end of November.

He did not make use of the Old Mutual Implied Rate, which is related to the value of the Old Mutual share on the Zimbabwe Stock Exchange in comparison with its US Dollar value on foreign bourses where it trades, like the London Stock Exchange and the Johannesburg Stock Exchange. He distrusted the impetus on its movement on the local bourse on the basis that it was driven more by sentiment (irrational exuberance) rather than by any fundamentals. His view was that it did not set out the true rate of inflation in the country. In any event, it gave a higher rate of inflation than would his index...,.

The witness supplied the values for July 2007 and how the parties would share equally in the assets and liabilities of the properties in issue. He upgraded the values, and each party's entitlement, as at November 2007. He relied on the figures provided by Seef Properties Real Estate..., to compute the fixed property valuation. He did not interrogate the figures as he relied on their expertise in the field of valuation...,.

He was adamant that the two parties had a partnership for they, in reality, shared profits and losses, in a predetermined ratio. He disputed that the business relationship between the parties was a joint venture.

He accepted that he based his view without hearing the defendant's side of the story...,. He did not see the need to talk to the defendant as the report was for the attention of the plaintiff whom he believed was aware of the expenses incurred by the defendant...,. He accepted that if the defendant had incurred expenses, then his Table would be inaccurate.

He had to use the Consumer Price Index, a consumer-related index, which was devoid of infrastructural development information on building and machinery indices. He said it was an acceptable method used by all professional organisations to track price movements. He reiterated how he came up with his own personal index and utilised it to estimate the rentals, and the escalation of costs of the reservoir. He accepted its limitations...,.

He relied on the TSW Project Managers and Consulting Engineers letter of..., to estimate the cost of infrastructural development...,. Notwithstanding his doubts about the efficacy and accuracy of using the Old Mutual Implied Rate (used by TSW Project Managers and Consulting Engineers...,.) he came to an estimate of $110 billion.

It is noteworthy that pages...., of exhibit 1 are dedicated to the Mhangura Bakery accounts...,. The share of profits of each partner is indicated. Anthony Derek Lamb did not demur from accepting, and using them, notwithstanding that they were not signed by either partner.

I am unable to agree with his calculation...,.

He also relied on documents that were prepared by others, which were supplied to him by the plaintiff's son. He did not interrogate their assumptions and contents, but used them on the assumption that they were correct.

The contents of these documents were not challenged. What was put in issue was their accuracy. He could not vouch for their accuracy.

The bases of some of these documents was questionable. I have in mind the use of the Old Mutual Implied Rate, a formula that he was prepared to use notwithstanding that he did not agree with its rationale. He also used his own self-created index to project the time value of our currency...,. The use of both his personal index and the Old Mutual Implied Rate were, in my view, irrational.

The Table..., is the mainstay of the plaintiff's case.

It is, however, based on inaccurate, unacceptable, and wrong assumptions, which destroy Anthony Derek Lamb's credibility to the extent that he advanced it as a fair and equitable apportionment of the joint assets of the parties. Anthony Derek Lamb's evidence was coloured by his partiality towards the plaintiff. At all times, he acted for the interests of the plaintiff. He relied heavily on the version of the plaintiff. Though at one stage he was approached by the defendant's wife to assist in resolving the impasse, after she declined to consider his proposition, he decided to act as an agent of the plaintiff...,.

Notwithstanding my criticism of his testimony, in determining this matter, I will pay regard to the suggestions he made in his letter of 28 February 2007 because at that time he appeared intent on an equitable apportionment of the joint assets of the parties.

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

The next witness was Nikita Masaya. He has been in the employ of Seef Properties for twenty-one years. He has seventeen years experience in all aspects of property sales, management, and valuation. He has been a registered estate agent and valuer since 1989; an associate member of the Real Estate Institute of Zimbabwe since 1995; and ...

The next witness was Nikita Masaya.

He has been in the employ of Seef Properties for twenty-one years. He has seventeen years experience in all aspects of property sales, management, and valuation. He has been a registered estate agent and valuer since 1989; an associate member of the Real Estate Institute of Zimbabwe since 1995; and on the panel of the Master of the High Court for valuators of movable and immovable property, and plant and machinery, for the past fifteen years.

He personally carried out the valuations of the four properties in dispute, firstly in July and then updated them on 14 November 2007, at the request of the plaintiff's son. He compiled standard reports which are replete with technical jargon.

He stated that he acted with professional competence. Further he had no interest in the properties, and that his remuneration was not dependent on the values of the properties.

In conducting the evaluation of each property, he paid regard to the location of the property, and the title deeds, to establish its ownership and size. He sought to establish the open market value of each property. This is the reasonable price that a willing, able, and informed purchaser and seller, acting at arm's length, and within reasonable time, would agree on. To arrive at this value he had regard to comparable properties with similar attributes on locality, age and design, and which enjoyed the same town planning characteristics, and could be used by similar market segments. He also considered the highest and best use to which the properties could be put, in compliance with the conditions in their title deeds, to achieve maximum returns. He considered the physical condition and capacity utilisation of each building, and factored in its future usefulness, to arrive at its estimated value...,.

Mr. Masaya truly performed a thorough job...,.

He acted on the information supplied to him...,. He utilised the parallel market exchange rate of the local currency against the US Dollar as a guideline to upgrade the July figures and arrive at the November figures. He stated that the values were initially calculated in local currency and then converted to a stable currency which stored value. Thereafter, the foreign currency equivalent was converted into the local currency at the parallel market rate...,. He accepted that in light of hyperinflation, his valuation was already out of date...,.

I found the witness knowledgeable in evaluation. The major blemish on his testimony was his reliance on the parallel market to set the values of the properties.

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

The last witness called by the plaintiff was Trenly Miles, an engineer with TSW Project Managers and Consulting Engineers. He was consulted to carry out the structural work on Tawona of Galway Estate. He produced the estimate on page 81 of exhibit 2 of 1 August 2007. It concerned the estimated cost of completing phase 1 ...

The last witness called by the plaintiff was Trenly Miles, an engineer with TSW Project Managers and Consulting Engineers.

He was consulted to carry out the structural work on Tawona of Galway Estate. He produced the estimate on page 81 of exhibit 2 of 1 August 2007. It concerned the estimated cost of completing phase 1 on Tawona of Galway Estate. He used the Consumer Price Index from April 2005 to April 2007. When he did the estimate in August, the Central Statistical Office had not released the inflation figures for May, June, and July 2007, and so he used the Old Mutual share price variations as quoted locally and abroad. He testified that this rate is posted on the Imara website. He further stated that Imara was a financial, and investment, company established in the 1950's as Edwards and Company, which commanded respect in local financial circles for its expertise. He alleged that the Old Mutual Implied Rate was accepted in business circles as a fair indicator of the value of the Zimbabwe Dollar against major global currencies....,.

He accepted that the Government does not recognise the Old Mutual Implied Rate. He himself did not compare the local bourse share values of Old Mutual with those on the London Stock Exchange but relied on the Imara website data which compared with the parallel market rate of the local currency against foreign currencies.

The basis of calling Trenly Miles was to justify the figure of $475 billion in Anthony Derek Lamb's Table.

A reading of Trenly Miles testimony shows how unreliable that figure is. It is based on an illegal parallel market costing. His figure relied solely on information posted on a website. He could not vouch for the accuracy of that information. The motivation of the website was unknown, as was its sources of information. The blogger's information, and methods, are not recognised nor approved by those whose duty it is to set monetary and currency policies.

The use of an illegal formula to calculate the time value of money cannot be regarded as fair and equitable.

While Trenly Miles evidence served as a rich source of information, it failed to demonstrate the justification of the plaintiff's proposed apportionment of the joint assets.

HH104-09 : BSKY ENERGY (PVT) LTD vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ANOTHER
Ruled By: BHUNU J

The applicant is a duly registered company in terms of the laws of this country. It is in the business of importing and marketing fuel in terms of licence number 000228 issued by the respondent Ministry on the 2nd of January 2009. It is common cause that on the 4th of September 2009 a consignment of 476,427 litres ...

It is common cause that on the 4^th of September 2009 a consignment of 476,427 litres of diesel was imported into the country from Sasol South Africa through the Beitbridge boarder post. The diesel was delivered to Zimbabwe in train wagons to be off-loaded at NOCZIM, Beitbridge but destined for Chiredzi. The transporter was unable to off load the product on the instructions of the second respondent, a director in the first respondent's ministry.

The second respondent's functions include:

1. Managing, monitoring and reviewing all Government-initiated or sponsored liquid fuel supplies contract and all fuel safety and quality standards; and

2. Providing leadership and facilitating the strategic management process to guide the operation of the Petroleum Department and the oil industry.

The applicant's complaint is basically that the second respondent is abusing his authority and has taken the law into his own hands by placing an embargo on the product when there is no law which authorizes him to do so.

The responsible Minister in the respondent's ministry has since filed an affidavit dated 8^th October 2009 ratifying the second respondent's conduct. In that affidavit he acknowledges responsibility for his conduct in the following terms:

"4. On the 14^th September 2009 I ordered the return of substandard diesel imported by a company called BSKY because it did not meet the quality specifications that we have determined. The level of 4400ppm imported by BSKY was too high and thus unacceptable.

5. Moreso is the fact that the high sulphur content of 50ppm to 500ppm is a Regional standard that has been agreed upon by South Africa, Zimbabwe, Tanzania, Mozambique, and Malawi. This position has been approved by Cabinet.

6. This Cabinet position is known and was communicated to the oil industry leading to the setting up of the National Procurement Committee to enforce quality and prices monitoring, and, sometimes, control.

7. Soon after we liberated the importation of fuel the rule of practice in the industry to set the quality has now been breached by BSKY.

8. There is no understanding the damage that can be caused by high sulphur diesel being imported in the knowledge of the serious corrosive effect.

9. The imported diesel is hazardous to property and I believe, as Minister of the State of Zimbabwe, I have a duty flowing from the Constitution to protect our citizens and property posed by such dangers knowingly caused by a licensed company because it believes there may be a gap in the law in terms of quality level stipulation by statutory instrument.

10. I am reliably informed that the diesel is a hazardous substance therefore is limited in its use as it damages the environment.

11. I am informed, in terms of the Environmental (Hazardous Substances Pesticides and Other Toxic Substances) Regulations, 2007 such substance(s) can only be imported under notification and license from the Environmental Management Agency.

12. I am also informed that counsel for the applicant has failed to produce the same under law.

13. The licence issued by my ministry is not for the importation of the substandard fuel."

Upon placing an embargo on the fuel in dispute the ministry constituted an investigating team comprising Ministry and NOCZIM staff. The team's terms of reference were to inspect the product by way of reading documents or breaking seals and taking samples for testing. Thereafter, the team would gather information and report on the quality of fuel being imported by various companies through the Beitbridge boarder post.

In discharging its mandate, the team was supposed to work in conjunction with ZIMRA staff. ZIMRA however objected to the intended investigations particularly the breaking of seals and taking of samples pointing out that it was unlawful. With much reluctance ZIMRA management finally granted the team access to the relevant documents. The team then proceeded to discharge its mandate by restricting itself to perusing the documents without breaking the seals and analyzing samples. In its written report the investigating team made the following findings:

"Findings

(a) We found that all fuel from SASOL was of the high sulphur type (0.5/500ppm). This is far above Zimbabwe spec.

(b) All companies importing SASOL products were dumping its product on poor countries (Zambia, Zimbabwe, DRC and other countries).

(d) We have always been using high sulphur diesel in our engines, so there is no new harm that can be done now.

(e) Ministry, in collaboration with EMA and ZIMRA, to draft an instrument on fuel specifications that is legally binding.

(f) ZIMRA to act on the basis of the instrument on fuel specifications so that they deny product on entry.

(g) SASOL to be advised of Zimbabwe's required fuel specifications.

(h) BSKY fuel is released as demurrage charges may be charged to the Ministry upon losing its case.

(i) Fuel samples should be collected at destinations as companies may possibly change their paper work without changing their product quality.

OPTIONS

Option One

Stopping high product entry.

Implication of Option One

It has some legal implications as there is no instrument to that effect. This may also result in critical fuel shortage…,.

Option Two

To continue business while putting the required legislation in place.

Implications of Option Two

This will ensure a smooth change over to agreed specs without interrupting product inflow into the country."

The above report is expertly written and presented such that one cannot imagine a better report or recommendations.

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

Vincent Muyeza, a Director in Jackson Muyeza Pools, a reputable company in the construction of pools, gave sworn evidence to the effect that it is necessary to add pool plaster hardener. He had this to say: “I am aware of the mabelite supplied by Cemcrete South Africa. I have used it before. This product comes with ...

HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

The plaintiffs called one Jeremiah Hlanga. He works as an economic researcher with a local company. According to his research and findings, as at 8 October 2008, there was no traceable relationship between the sum of Z$10 billion in the second Agreement of Sale and the amount of US$265,000= in the first Agreement of Sale. While, in ...

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

The plaintiff called Professor Median Chidzonga. He holds qualifications in dentistry and is a professor in maxillo-facial, oral and dental surgery. He has specialized in facial surgery and has thirty years experience under his belt. The evidence of this witness was of great benefit to the court and great reliance shall be placed upon it in ...

HH123-10 : SPORROW HAULIERS (PRIVATE) LIMITED t/a J & J TRANSPORT vs GILBERT MASVINGISE and FAXRIDGE (PRIVATE) LIMITED t/a MUKAHIWA HAULAGE
Ruled By: KUDYA J

(c) The quantum of damagesIn a bid to prove its damages, the plaintiff called the evidence of its Workshop Manager, Richard Vernon Kee Tui. He qualified as a diesel, petrol and tractor mechanic at the Bulawayo Technical College in 1983. Thereafter, he worked for three companies before joining the plaintiff. He has been a Workshop ...

(c) The quantum of damages

In a bid to prove its damages, the plaintiff called the evidence of its Workshop Manager, Richard Vernon Kee Tui. He qualified as a diesel, petrol and tractor mechanic at the Bulawayo Technical College in 1983. Thereafter, he worked for three companies before joining the plaintiff. He has been a Workshop Manager for fifteen (15) years.

He was responsible for validating all workshop work. He issued out job cards, checked and supervised staff. He observed the damage to the horse occasioned by the collision. The front axle was completely damaged and had to be replaced; the bonnet was damaged and had to be remolded, the belly housing made of aluminum had to be replaced, the rear diff was extensively damaged. The tyres were replaced. The horse was repaired using an assortment of parts listed in the job card - exhibit 3. Panel beating and spray painting were carried out in his workshop. The assortment of parts, oils and paints are listed on pages 2 and 3 of exhibit 3.

They cost the plaintiff US$1,350=.

These smaller items and their values were not challenged by the defendants.

The bigger components utilized in replacing the front axle, the belly-housing and the rear differential together with three rear suspension air bags, fuel filter housing, mudguard bracket and front shock bracket, valued at US$6,325=25, were cannibalized from a broken down truck that belonged to the plaintiff.

The labour costs for the whole repair job amounted to US$450=.

The total amount of US$9,751=25 was the aggregate of US$884-04 for panel beating and spray painting, US$7,241=98 for materials and US$1,625=20 for sundries and disbursements.

He stated that the plaintiff, as a big transporter, stockpiled large quantities of an assortment of second- hand spare parts for its fleet that it imported from the United States and South Africa. It benefited from large discounts which came with these bulk purchases. At the time availability of spare parts was a problem. The plaintiff had a big workshop which employed mechanics, panel beaters, and spray painters. It conducted in-house repairs and outsourced machining functions only. It was cheaper to repair the horse in-house as opposed to outsourcing the job. He stated that the cost of repairs in exhibit 3 were necessary and reasonable. He believed that had the job been outsourced it would have cost the plaintiff in excess of US$10,000=.

He was cross examined.

The damaged horse had been in use for four (4) years. He estimated its value at the time at between US$45,000= and US$55,000=. The values that were challenged in exhibit 3 in cross-examination were of the front axle, belly housing and rear diff. He estimated the cost of a new rear diff at US$3,000= and that of a good second hand at US$1,800=. He was adamant that a used complete axle would cost US$3,500= instead of the sum of US$200= that was suggested by the defendants. He agreed with the defendants that a good second-hand belly housing would cost US$425=.

The defendants challenged the values of the replacement parts of the three major components used by the plaintiff in the repair of the horse. They disputed the values of the front axle, belly housing and rear diff.

They called the expert evidence of James Mwanaka, a qualified Class 1 motor mechanic. He completed his journeyman in 2000. He worked for three reputable companies before joining his present employer, Country Petroleum, as a Workshop Manager.

I am satisfied from his professional experience in general motor mechanics that he is an expert in his field.

He indicated that good second hand front axles presently cost between US$900= and US$1,200=; used belly housings in good working condition presently cost between US$300= and US$450=. He estimated the cost of the rear diff, similar to the one replaced by the plaintiff, at between US$1,100= and US$1,300=. He opined that the values that were supplied by the plaintiff were inflated.

He has been involved in repairing and rebuilding trucks similar to the plaintiff's. Used spare parts are sourced from such local suppliers as Zimapan Investments (Pvt) Ltd, Balance Sales and Sam Trucking, which companies were already operational at the time of the collision. These local suppliers import used parts from the United States. He produced a quotation sourced by the second defendant from Zimapan Investments (Pvt) Ltd on 3 June 2010 as exhibit 4. He was not the author of the document. It indicates that one Freightliner complete front axle would cost US$900= while one engine bell housing would cost US$425= and one new crown and pinion for a diff costs US$1,200=. The three major components, in his opinion, should have cost the plaintiff US$2,325=. In his estimation labour would have cost between US$1,500= and US$1,600=.

He was cross examined.

He exhibited technical knowledge of Freightliners. He did not see the damages on either motor vehicle….,. He was shown a quotation from Selected Motor Suppliers which indicated that a used front axle was selling for US$6,235= and a new one for US$11,132=; while a used diff was selling for US$1,800= and a new one for US$2,297=. He averred that they were inflated as Selected Motor Suppliers was a new parts dealer who purchased used parts from cheaper dealers and sold them at a profit. He was adamant that a used horse, such as the plaintiff's, could be purchased for US$6,000=. He also challenged the 90 hours allegedly spent on repairing the horse. He estimated that a total of 40 hours was all that was needed to complete the whole job.

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

DamagesThe next issue for determination revolves on the measure of damages, if any, that are due to each party.The plaintiff abandoned her claim for the following damages:(a) Hospital, x-rays, and other related expenses;(b) Orthopaedic surgeon's costs;(c) Charges for towing the damaged motor vehicle;(d) Costs of replacing spectacles; and(e) Value of ...

Damages

The next issue for determination revolves on the measure of damages, if any, that are due to each party.

The plaintiff abandoned her claim for the following damages:

(a) Hospital, x-rays, and other related expenses;

(b) Orthopaedic surgeon's costs;

(c) Charges for towing the damaged motor vehicle;

(d) Costs of replacing spectacles; and

(e) Value of the groceries lost in the accident.

She however persisted with her claim of:

(a) US$10,000 in respect of damages for pain, shock, suffering and loss of amenities;

(b) US$5,000 in respect of future medical expenses; and

(c) US$9,000 being the pre-accident value of the motor vehicle.

The defendant abandoned his counter-claim for special damages.

He persisted with the following counterclaim:

(a) USD40,000 for pain and suffering and loss of amenities;

(b) USD1,000 for future medical expenses; and

(c) USD4,000, being the pre-accident value of the second defendant's vehicle....,.

Plaintiff's claim

It is not in issue that the plaintiff sustained serious injury to the knee and ankle requiring surgery. She was hospitalized at Westend Hospital for four days and received treatment during that period. She was attended to by Dr Owen Senzai Makoni, an orthopaedic surgeon. She sustained an open dislocation of the left patellar with abrasions on the patellar femoral cartilage. The right knee was bruised together with the left side of the neck and chest. The surgeon attended to these injuries in theatre.

On 19 August 2007, the surgeon compiled a report which he produced in court.

He concluded that the plaintiff had a nasty permanent scar on the left knee and would develop secondary to post traumatic osteo-arthritis of the left knee and ankle joints and would require a total knee replacement in the future. He assessed her permanent disability at 7 and a half percent for the knee joint, 7 and a half percent for the ankle joint, and 5 percent for permanent scars, giving a total disability of 20 percent. He concluded that the plaintiff would have endured severe pain soon after the accident but the pain would subside with time.

The plaintiff testified that she still experienced pain on the left knee when climbing stairs or walking for considerable distances. She can no longer do some of the household chores she used to do and can no longer kneel or jog. At the time of the accident she had abandoned formal employment as an accountant and was into horticulture. Although she had workers who did the work, she used to move around her plot supervising their work. She can no longer move around with ease and this has forced her to return to formal employment as an accountant.

The defendants accepted the plaintiff's degree of permanent disability of 15 percent for the knee and ankle joints. They however disputed the 5 percent awarded for a scar on the knee.

I am persuaded by the submissions by the defendants to discount the 5 percent disability.

Dr Makoni was unable to justify how he arrived at that degree of disability. He conceded that whilst the other degrees of disability, totalling 15 percent, were arrived at based on the Workmen's Compensation Schedule, the 5 percent was not. In his opinion, the assessment was justified because it disfigured the plaintiff in that she could no longer wear short skirts.

The plaintiff did not state, in her evidence, that the scar precluded her from wearing short skirts. It is therefore not clear on what basis the doctor arrived at his conclusion.

Further, I had the benefit of the evidence of Dr Vera, the first defendant's orthopaedic surgeon.

He confirmed Dr Makoni's evidence that scarification was not classified as a disability under the Workmen Compensation Scheme. He testified that a percentage would be awarded for scarification in very special circumstances where the scarification can constitute a set back in the achievement of one's profession. He gave the example of a model. The other special circumstance was where the scarification results in interference with motion of a joint in which event the Workman's Compensation Schedule gives a percentage of what the scar does to movement of the joint as opposed to appearance. In such a case, the doctor would be considering how the disfigurement contributes to disability or might give rise to pain and restricts or affects motion.

The explanation by Dr Vera was very enlightening....,.

Dr George Vera, an orthopaedic surgeon, testified that he attended to the first defendant after the accident. On 12 March 2008 he examined an x-ray taken of the defendant's ankle and concluded that he required further surgical attention. In the medium term, the first defendant would require mild pain killers. However, in the long term, he would require stronger ones. The first defendant would develop degenerative osteo-arthritis requiring surgical relief. The doctor testified that the ankle is a weight-bearing joint and subject to high stresses. The injury to the ankle was therefore serious. He assessed the defendant's permanent disability to be 25 percent....,.

The plaintiff did not challenge Dr Vera's assessment of the first defendant's degree of disability or that the first defendant has endured pain and suffering and loss of amenities.

Counsel for the plaintiff urged me to make a determination on the extent of the first defendant's disability on the basis of my own observations in court.

I do not believe that it is competent for me to do so for two reasons:

(i) Firstly, I am not a medical expert and do not have the competence to make that assessment.

(ii) Secondly, as already indicated, the plaintiff did not meaningfully challenge the orthopaedic surgeon who attended to the first defendant and is qualified to make the assessment....,.

Damages for Loss of Motor Vehicle

It is trite that the measure of damages is the value of the motor vehicle at the time of the accident: see Muzeya NO v Marais & Anor HH80-04; Monica Komichi v David Edwin Tanner & Anor HH104-05; Edward Marume & Anor v Todd Muranganwa HH27-07; SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A); and Law of Damages, VISSER & POTGIETER…,.

The parties are agreed on this principle of the law.

Plaintiff's claim

The plaintiff testified that her motor vehicle was damaged beyond repair. She produced photographs of the vehicle before and after the accident.

When the vehicle was purchased, in 1992, it was a second hand vehicle but was in a good condition. She was not sure of the value of the vehicle at the time of the accident. She did not know how the value of Z$10 billion reflected in the summons, before amendment, had been arrived at. She had later amended her claim to US$9,000 based on an estimate by Amtec Motors. She however conceded, under cross-examination, that Z$10 billion was the replacement value of the vehicle at the time when summons were issued. She conceded that she did not obtain and did not know the pre-accident value of the vehicle.

The plaintiff relied on Owen Mupambwa's evidence to establish her damages.

Owen Mupambwa testified that he was employed by Amtec Motors as a Sales Administrator and he had held that position for a year, and, therefore, his experience at valuation of motor vehicles was a mere one year. However, his sole qualification was not in vehicle valuation but what he termed Call Centre Management. This involved attending to client queries. Before that, he had been an Assistant Systems Administrator.

On 28 April 2009, he valued the plaintiff's vehicle at US$9,000 as per the valuation he produced in court.

Ordinarily, he relies on various factors such as the bodywork, the year of manufacture, interior of vehicle, the mileage, and the prevailing economic environment, in arriving at the value of a vehicle.

In the present case, he only relied on the year of the manufacture of the plaintiff's vehicle in arriving at the amount of US$9,000 as the estimated value of the plaintiff's vehicle. The other factors were not relied on because the vehicle had been extensively damaged.

Under cross examination, Owen Mupambwa was confused as to whether or not his valuation of the vehicle was a pre-accident value or a replacement value of the vehicle.

In one breath he testified that the estimate of US$9,000 was the value of the vehicle before it was damaged. In the other breath, he testified that the amount reflected the replacement value of the vehicle.

He testified that the value of the vehicle may have been US$6,000 in 2007, and, therefore, the US$9,000 was the current value of the motor vehicle.

He conceded that the year of manufacture would only assist depending on how the owner of the car handled it. He had not seen the plaintiff's vehicle before and had not accessed records of the service of the vehicle as alleged by the plaintiff in her evidence. He had no prior dealings involving a Mazda 929.

It is my view that the plaintiff failed to establish the value of her vehicle at the time of the accident.

Her expert witness, Owen Mupambwa, turned out to be no expert at all with only a year's experience in the sales department and had not dealt in Mazda 929s before. His concessions, that he failed to consider the variables used in assessing the value of vehicles, did not assist the plaintiff.

Therefore, there was no basis for the valuation.

HH196-10 : MONDAY BOPOTO NYANDORO vs MINISTER OF HOME AFFAIRS and COMMISSIONER OF POLICE
Ruled By: PATEL J

Thereafter, he continued to feel severe pain in his chest, ribs and left leg. He was then taken to Shamva Hospital where he was treated with medication as an out-patient for two 2 weeks [Exhibit 2]. As his condition did not improve, he sought the assistance of the National Constitutional Assembly and was taken to a ...

HH125-10 : SNOCROSS INVESTMENTS (PVT) LTD vs IRVINES ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

Arnold Musoko explained how the Win-Weigh-Pro Software that he installed in 2004 operates. He was called to ascertain whether the weighbridge system was working properly. A different vehicle was weighed twice and the system performed to expectation. He went into the database and discovered that James Chidhindi, the Stock Controller who held the password into the ...

Arnold Musoko explained how the Win-Weigh-Pro Software that he installed in 2004 operates.

He was called to ascertain whether the weighbridge system was working properly. A different vehicle was weighed twice and the system performed to expectation. He went into the database and discovered that James Chidhindi, the Stock Controller who held the password into the computer program, had deleted the automatic computer entry of the weight of the horse and fully loaded trailer and typed in the higher weight. He confirmed Joshua Ushe's testimony on how the system functioned when the computer was down. The weighbridge clerk would record the weight on a card, by pen, and take it to the Stocks Controller, who would use the computer keyboard to enter the figures. At the request of Cletos Makono, he downloaded the previous transactions…, from the server. He highlighted all the motor vehicles from the plaintiff, including the truck and trailer in issue, over that period. He, further, marked a cross, by pen, on all transactions involving the truck and trailer in issue. An odd pattern emerged on the trucks from the plaintiff. Entries for the loaded vehicles were manually recorded, but when the same vehicle was leaving, after unloading, it was automatically measured. Most of the loaded transactions were sandwiched between other vehicles from different transporters which were automatically weighed. He formed the opinion that the manual entries were deliberate.

Under cross-examination, he admitted that there were entries for other transporters which were manually captured. There were a few which were manually captured when the computer was not working. More than 90% of the plaintiff's transactions were captured manually when the computer was working.

The mechanical test he conducted was simple, fast and efficient. He clarified that the Stocks Controller was the administrator of the computer system whose password would allow him to enter the program and delete information such as incomplete transactions. The weighbridge clerks had passwords which allowed them to operate the system but not to delete or alter information.

HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS
Ruled By: CHITAKUNYE J

The next witness for the plaintiff was Harrison Shumbamhini. He is a holder of a Class 1 Panel Beating Certificate; with ten years' experience in the industry. He came in as an expert witness. He testified that his duties involved assessing damages and estimates of the cost of repairs of such damages. As regards this ...

HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

The defendant called two witnesses the first witness was Mr Tafadzwa Shumba...,.. He said he holds a Bachelor of Science Degree in applied Mathematics and is employed by Deliottes and Touche as a quantitative analyst. Together with Edric Prince and Amon Kubikwa (his seniors in the Financial Advisory department) they had, on behalf of the ...

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HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED
Ruled By: KUDYA J

On the replacement value of his motor vehicle the plaintiff relied on the testimony of George Muzunze, a panel beater with M and G Panel beaters and Zivanai Naggo an internal vehicle assessor with Nicoz Diamond Insurance Brokers. George Muzunze was called to establish the salvage value of the plaintiff's vehicle. He has been in the panel ...

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HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: KUDYA J

The defendant called the evidence of the seventy-six (76) year old Chartered Structural Engineer, Duncan Hugh Cocksedge. He qualified as a Structural Engineer in 1969 at a college in the United Kingdom whose name he could not recall. He became a Chartered Structural Engineer in 1972. In 1980 he became a partner in Markensson and Smallwood ...

The defendant called the evidence of the seventy-six (76) year old Chartered Structural Engineer, Duncan Hugh Cocksedge.

He qualified as a Structural Engineer in 1969 at a college in the United Kingdom whose name he could not recall. He became a Chartered Structural Engineer in 1972. In 1980 he became a partner in Markensson and Smallwood which later became Markensson and Cocksedge. He was involved in designing factories, structural steel works and reinforced concrete buildings that cover the Harare skyline. He viewed the leased premises a few days before he testified. The substructure has a concrete framework inlaid with bricks while the superstructure has a saw-tooth roof with south facing vertical glazing. The roofing sheets are of corrugated iron with a shallow slope of 17 degrees. The sections of the roof are supported by structural steel spanning across the building for 15 to 20 metres. On the lower part of the roof, and adjacent to the vertical glazing, runs the main 3mm mild steel plate box gutter which transports water from the roofing sheets. It has a girth of 800mm to 1,200mm. Three gutters are found on each bay. These are called internal gutters and are different from external gutters which most buildings have at the end of the eaves projecting over external walls. These internal gutters prevent water from penetrating the building and are held by structural steel pillars from within the building. If they were not there, water would flow from the roofing sheets into the factory space inside the building. He indicated that the internal box gutters were part of the roof even though they were made of different materials from the roofing sheets. In his experience, the life span of a gutter depended on its maintenance. Such maintenance involved the use of emery paper to remove rust, and, thereafter, coat the gutter with bitumen paint. He suggested that the life span would be extended by coating the gutter with bitumen every five years. He was familiar with the Graniteside industrial area and opined that factories close to the leased premises emitted chemicals that discharged acids into the atmosphere that in turn contributed to the corrosion of the gutters.

HH71-11 : NIGEL DAMIAN MORRIS vs CHIQUITA MORRIS and MASTER OF HIGH COURT
Ruled By: MAWADZE J

The forensic report on pages 8-9 of the record is not in original form. The forensic scientist, in paragraph 1 of the report lamented that the documents he used in the examination, that is, the questioned documents, the standard documents were in poor quality photocopy forms. It is not clear how this may have ...

Appealed
HH86-13 : GOLDEN MILLION ENGINEERING (PVT) LTD vs METTALON GOLD ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

The evidence of Patrick Sana, a holder of a Bachelor of Science Degree in Engineering who is in good standing with the Zimbabwe Institute of Engineers and Engineering Council of Zimbabwe, was calculated to show that the mixers supplied by the plaintiff and paid for by the defendant were latently defective. It was common cause that ...

It was common cause that the mixers supplied by the plaintiff frequently broke down at Mazowe and Shamva mines while mixers of the same design and type worked well at How Mine and Redwing Mine. Patrick Sana, an engineer of 20 years' experience in the mining field attributed the failures to latent mechanical defects.

The plaintiff, supported by the university lecturer and its own internal engineers such as Saweto, attributed the frequent breakdown to operational ineptitude by the defendant's employees at Mazowe Mine and Shamva Mine.

The findings in the commissioning reports of Patrick Sana of 25 November 2010 and 29 March 2012 highlight the nature of the breakdowns. The motor tripped as a result of overloading, the electric motor rotor shaft key-ways wore out at a high rate, electric and wet-end rotor shafts suffered frequent breakdowns, the wet-ends frequently bent. The gearboxes overheat and damaged gears, bearings and flanges. He attributed the breakdowns to poor design. Saweto attributed the breakdowns to failure to follow operating procedures. Apparently the mixers were started with the blades embedded in silt without first freeing them. The report of 25 November 2010 indicated that at times the mixers were running efficiently and various corrective measures were put in place.

The university lecturer is not registered with the Engineering Council of Zimbabwe as required by section 22 of the Engineering Council Act [Chapter 27:22] and does not hold a practising certificate. He holds a BSc Engineering Honours 1992 and MSc in Manufacturing Systems and Operations Management 2007. He has been a lecturer at the University of Zimbabwe Mechanical Engineering Department for the past two years. He worked for Hwange Colliery, CAPS Holdings and the Harare Polytechnic before that. He did not have experience of mixers used in gold mining. He had experience of mixers used in water purification and soap-making. His area of competency is in design engineering. His opinion was that the problems highlighted by Patrick Sana were operational and not mechanical. He convincingly explained that blades are bent by rotating them in heavy slurry, which in turn overloads the motor, burns it and damages the gearbox.

The effect of the counteracting testimony of the university lecturer was that the defendant failed to prove, on a balance of probabilities, that the problem of the mixers was mechanical and not operational.

HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE
Ruled By: KUDYA J

Bartholomew Mswaka confirmed the method that was used to dispose of the shares. He produced exhibit 8, the brokers' note for the sale of the shares. The brokerage fees he charged were confirmed by Interfin Merchant Bank Limited in exhibit 6. He stated that the number of shares placed on the market was beyond ...

Bartholomew Mswaka confirmed the method that was used to dispose of the shares.

He produced exhibit 8, the brokers' note for the sale of the shares. The brokerage fees he charged were confirmed by Interfin Merchant Bank Limited in exhibit 6. He stated that the number of shares placed on the market was beyond the capacity of the market to absorb. There were no takers above ZWD300= per share. He stated that while splitting could be done, it was cumbersome and did not guarantee a higher price….,.

The defendants called the evidence of Robert Mutakwa to demonstrate that they utilized three dividend pay outs towards the reduction of the loan amount. Robert Mutakwa produced exhibit 9, a schedule of the dividends paid to Barato Holdings Limited between 4 September 1998 and 9 June 2004 that were declared between 7 August 1998 and 19 December 2003. Five dividends, numbers 48 to 52 were declared between 18 January 2002 and 19 December 2003. For the dividend declared on 18 January 2002 a net amount of ZWD8,865,756=70 was paid out on 18 March 2004. The dividend declared on 14 June 2002 resulted in payment of a net amount of ZWD7,092,605=36 on 18 March 2004; that of 17 January 2003 resulted in payment of a net amount of ZWD46,101,934=84 on 18 March 2004; that of 20 June 2003 resulted in the payment of a net amount of ZWD359,521,720=50 on 18 March 2004 and lastly the dividend declared on 19 December 2003 resulted in the payment of ZWD359,521,720.=0 on 9 June 2004. Robert Mutakwa stated that the dividend payments moved from his dividend account with Ariston Holdings Limited into the Barato Holdings Limited account held with the Merchant Bank of Central Africa. Robert Mutakwa, as the transfer secretaries, for Ariston Holdings Limited, issued dividend advice slips and cheques to the Shareholder - Barato Holdings Limited. Barato Holdings Limited was a foreign company. Central Scrip did not have foreign currency to pay the dividend in foreign currency. It held the money until Ariston Holdings Limited instructed it to remit the funds to the Merchant Bank of Central Africa. He did not know what happened to the funds thereafter. Under cross-examination, he revealed that he did not know if the last five payments were remitted to Barato Holdings Limited or not. He was not aware whether the plaintiff ever received any dividends due to Barato Holdings Limited.

Robert Mutakwa did not confirm the defendants' assertions that three dividend pay outs were used to reduce the debt….,.

Emmanuel Munyukwi supplied the meanings of market price and special bargain in the stock exchange lexicon. He defined market price as the price at which a willing seller and a willing buyer concluded a share sale. He proceeded to define a special bargain by reference to a market price as the price reached by a willing buyer and a willing seller at either a discount or a premium to the market price. He stated that a foreign investor is legally required to conduct transactions on the market. The procedure often utilized before a special bargain is reached is that the seller's broker tests the market for willing buyers; if he fails to find them, he enters into a special bargain. A special bargain is usually preceded by off market negotiations between the buyer and the seller. The negotiations are underpinned by perceptions of the value of the share to the negotiators and considerations of control and saving costs to the buyer. He produced exhibit 10, a three page document of the schedule of special bargains transacted at the local bourse in 2009 and 2010. The document showed, amongst other transactions, that in 2009 Renaissance Securities Limited conducted a special bargain for 177,085,674 shares at a small premium above the market price. It further showed that in 2010, of the 26 special bargains 4 were below, 6 were at par and 16 were above the market price. The exhibit further showed that the margin of the discount or premium to the market price was small.

He further produced exhibit 11, the local bourse official record of trade on 29 July 2005. It recorded that a special bargain of 42,296,673 Ariston Holdings Limited shares traded at ZWD300= per share. Buyers wanted to buy at ZWD650= while sellers offered to sell at ZWD680= but sales were recorded for 76,000 shares at ZWD675=. He commented that the difference between the special bargain and the market price was very significant and rather unusual.

Under cross-examination, he stated that without checking the order trail of that day, he could not dispute Bartholomew Mswaka's testimony that he failed to find buyers at ZWD675=. He conceded that the local bourse had approved the sale notwithstanding the unusual difference between the market price of ZWD675= and the special bargain price of ZWD300=. He opined that the approval was granted because the transacting parties were both foreigners for whom the local bourse appreciated their desire to save on transacting costs. He also conceded that an important consideration in special bargains was the availability of the funds to purchase the share.

Three factors undermined the probative value of Emmanuel Munyukwi's testimony. The first was that he conceded that exhibit 11 was at variance with the testimony of Bartholomew Mswaka on the transactions of 27 July 2005. The second was that both exhibit 10 and 11 were not canvassed with Bartholomew Mswaka. This would have assisted the court to properly assess the truth of what transpired during the sale. The third was that the economic environment in 2005, when the sale was concluded, was different to the one in 2009 or 2010 from which the information in exhibit 10 refers. Emmanuel Munyukwi's testimony would have carried more weight had he produced documents of other special bargains conducted in 2005 by other foreign investors.

It is for these reasons that I am compelled to accept Bartholomew Mswaka's testimony where it differs with that of Emmanuel Munyukwi.

HB88-13 : MARIA MANOLAKAKIS vs ESTATE LATE DR JOHN J. MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER
Ruled By: MAKONESE J

The first witness, Leonard Tendai Nhari, is the holder of a Bachelor of Science Degree in Zoology and a Master of Science Degree in Biochemistry. He was previously employed by the Government of Zimbabwe at the Forensic Laboratory between 1980 and 1999. His duties in Government involved forensic investigations. He also dealt, whilst in that position, with questioned documents. Mr Nhari stated that he now does private consultancy and in the main his work involves examination of questioned documents. He examines documents to establish the authenticity or otherwise of disputed documents. In the instant case, he was requested to examine the “Will” of the late Dr John Joseph Manolakakis and provide an opinion as to whether it could have been authored by the late Dr John Joseph Manolakakis. Mr Nhari said he compared the handwriting on the disputed will or questioned document and other specimen handwritten notes by the late Dr John Joseph Manolakakis. As a result of the examination, he came to the conclusion that the design and construction of the handwriting on the disputed Will was not similar to the “standard” documents, being the handwritten notes by the late Dr John Joseph Manolakakis. Mr Nhari opined that there was no physical evidence that the late Dr John Joseph Manolakakis could have authored the disputed Will. The full written report of Mr Nhari was tendered into evidence by consent and reads as follows:

“SL04/09

REPORT

On 5 August 09 the following documents were received from Sansole & Senda Legal Practitioners

Questioned Document

The last Will & Testament of J.J. Manolakakis dated 3/6/05

Standard Documents

Two letters dated 24 October & 16 November 2005 respectively

A copy of note on complimentary slip dated 21 February 2006

I have examined and compared the handwriting & signatures on the abovenamed documents and observed the following,

1. I have found the design and construction of the signature on the questioned document (i.e. The last Will & Testament of J.J. Manolakakis dated 3/6/05) not to be similar and therefore not consistent with the standard signatures of J. J. Manolakakis. The differences between the question and standard signatures cannot be attributable to natural variation, which is a common feature of an individual's handwriting. The apparent differences between the standard signatures of J. J. Manolakakis are attributable to natural variation. See comparison charts attached.

2. Similarly, I have found the design and construction of handwriting on the question document (i.e. The last Will & Testament of J. J. Manolakakis dated 3/6/05) not to be similar and therefore not consistent with the standard handwriting of J. J. Manolakakis. See comparison chart attached.

3. I have therefore found no physical evidence (in the design and construction) to indicate that J. J. Manolakakis could have authored the questioned document (i.e. The last Will & Testament dated 3/6/05).

L.T. NHARI (Forensic Scientist – Consultant)

For SCREENLAB (PVT) LTD.”

HB01-14 : COTIM TRADING (PVT) LTD vs ZIMBABWE POWER COMPANY t/a HWANGE POWER STATION
Ruled By: MUTEMA J

Exhibit 15, the analysis report the defendant seemed to rely upon in its defence for refusal to pay is not without trammel for several reasons, chief among them being the following: The taking of the two samples the defendant says were sent to France for analysis is shrouded in controversy. James Muyambiri said they were ...

Exhibit 15, the analysis report the defendant seemed to rely upon in its defence for refusal to pay is not without trammel for several reasons, chief among them being the following:

The taking of the two samples the defendant says were sent to France for analysis is shrouded in controversy. James Muyambiri said they were extracted by him in February 2013 from four bags – two of each resin type – and put in plastic bottles with a screw cap. Cooneous Jacobus Bester said they were extracted in April 2013 from two bags – one of each resin type – and put in plastic bottles closed by a screw cap. While Cooneous Jacobus Bester said he witnessed the samples being extracted, James Muyambiri did not allude to this at all. And while there remains a dispute as to whether no one could have tampered with the samples or even whether the samples came from the plaintiff's consignment and whether the samples could not have been affected by the handling and transportation as well as temperatures, it is not known what quantum of each sample was analysed or whether the same quantity of Dow's product was also analysed and compared with the one said to have come from the plaintiff's consignment.

The extraction of the samples was also shrouded in secrecy – it is not explained why the defendant did not invite the plaintiff's representative(s) to witness the event and why the containers in which they were put were not sealed and tamper-proof.

The plaintiff's Jasper Nare's qualifications and experience in chemistry are well documented as stated above. Cooneous Jacobus Bester's qualifications were not stated, when he qualified and where, yet he purported to speak like a fundi in chemistry.

In any event he did not perform the chemical analysis let alone compile the report, exhibit 15. The analysis was done by D. Scherer – J. Henry and the compiler of the report is D. Scherer. Cooneous Jacobus Bester is indicated only as the Sales and Marketing contact person. So, over and above the fact that his qualifications are unknown, Cooneous Jacobus Bester is not qualified to vouch for the authenticity of the analysis and report. All he could do was to refresh his memory on the basis that he said the report was done on his instructions. The probative value of the report, therefore, cannot be given any consideration in the absence of evidence to that effect by D. Scherer.

Also, it was improper for the defendant to have an interested party do the sample analysis.

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER
Ruled By: MAKONESE J

Leonard Nhari 's evidence did not have any tinge of exaggeration and he explained that the other expert witnesses for the defence had the handicap that they worked with photocopies and based their conclusions on the photocopies presentend to them. Mr Nhari indicated that he found no physical evidence in the design and construction ...

Leonard Nhari 's evidence did not have any tinge of exaggeration and he explained that the other expert witnesses for the defence had the handicap that they worked with photocopies and based their conclusions on the photocopies presentend to them.

Mr Nhari indicated that he found no physical evidence in the design and construction of the words in the questioned documents to indicate that it was authored by the late Dr Manolakakis.

I accept the report of Mr Nhari as a fair report which is accepted by the court….,.

Cecil Greenfield tendered a very long and impressive curriculum vitae. He conceded that his credentials, as they appeared on his documents, were not quite accurate. He was no longer an associate member of the American Association of Handwriting Analysts. He stated that he was still an active member of the Forensic Science Organisation (UK) and a member of the South African Association of Forensic Documents Examiners. He indicated that he had no formal training as a handwriting expert. He indicated that he was “self taught.” He averred that his reports and findings have been accepted in the South African courts….,.

Mrs Louricka Buckley indicated that she is a professional handwriting examiner. She operates from Johanesburg in South Africa. She stated that she holds a certificate in Forensic Handwriting Identification, a course accredited by the Tecknicon of Pretoria.

She was unable to produce any documentary proof of her qualifications.

It is noted that where experts are called in as expert witnesses they should always anticipate that their professional qualifications can be challenged. It is therefore, in my view, prudent for an expert witness to have his/her academic and professional qualifications at hand, more particularly where such an expert is testifying in a foreign jurisdiction. The court must not be left to speculate on whether an expert witness is indeed an expert. It is not helpful for an expert to simply state that their evidence has been accepted in the courts in South Africa or any other jurisdiction for that matter.

SSC77-14 : NKOSIYABO NDZOMBANE vs THE STATE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

Section 278 of the Criminal Procedure and Evidence Act allows the production of medical reports from doctors in affidavit form. However, the court has the discretion, in terms of section 280 of the Criminal Procedure and Evidence Act, to order that the doctor be summoned to give oral evidence at the trial. The court may also send written questions to the expert who is enjoined to reply thereto. As was observed in G. FELTOES's Judges' Handbook for Criminal Cases, 1^st ed, 2009, Legal Resources Foundation…,.;

“It will be necessary to use the power to ask the doctor to give oral testimony when the original affidavit is inadequate and the court is unable to arrive at a just decision on the basis of this report. If the information is very scanty or vital information is omitted, or the information in the report seems to be contradictory, this power should be exercised. But if it contains all the necessary information there will be no need to summon the doctor. Anock 1973 RLR 154 (A); Sibanda A – 10 - 72 Melrose 1984 (2) ZLR 217 (S).”

The interrogation, through oral testimony, of expert evidence given on affidavit is necessary to avoid the error of treating such evidence as gospel truth or divine revelation.

Expert opinion evidence is admitted to assist the court to reach a just decision by guiding the court and clarifying issues not within the court's general knowledge. In Mandy v Protea Assurance Co. Ltd 1976 (1) SA 565…, it was stated that it was not the mere opinion of the expert witness which is decisive but his or her ability to satisfy the court that, because of the special skill, training and experience, the reasons for the opinion expressed are acceptable. However, in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion, and simply adopt it without questioning or testing it against known parameters.

In S v Zuma 2006 (2) SACR 257…, the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court's own capabilities and responsibilities in drawing inferences from the evidence. And, in my view, the court can only do this well if it requires the expert witness to give oral evidence in the clarification and elucidation of an affidavit that is otherwise technically dense and incomprehensible, contradictory, or inadequate in all respects except the conclusion.

A court errs when it merely adopts the conclusions of an expert report without exercising its mind on it by, for example, calling for oral testimony or drawing the necessary inferences from the evidence.

View Appeal
HH98-16 : VADAC PROPERTIES [PRIVATE] LIMITED vs CURE CHEM OVERSEAS [PRIVATE] LIMITED
Ruled By: MAFUSIRE J

Except, perhaps, for Mr Scott, whose professional qualifications none of the parties ventured to highlight beyond asserting his ownership of the premises through the plaintiff, virtually all the witnesses from both sides were not only qualified personnel in their fields of endeavour but also they each had vast years of post-qualification experience behind them. Counsel had the ...

HH103-15 : RICHARD MATTHEWS vs THE HONOURABLE MR JUSTICE A. EBRAHIM and UMESHKUMAR DWARKADAS KOTECHA and DHIRUBHAI MAGANLAL DESAI
Ruled By: ZHOU J

Article 26 of the Schedule to the Arbitration Act [Chapter 7:15] provides as follows in relation to the appointment of an expert by an arbitrator: “(1) Unless otherwise agreed by the parties, the arbitral tribunal – (a) May appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; (b) May ...

Article 26 of the Schedule to the Arbitration Act [Chapter 7:15] provides as follows in relation to the appointment of an expert by an arbitrator:

“(1) Unless otherwise agreed by the parties, the arbitral tribunal –

(a) May appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal;

(b) May require a party to give the expert any relevant information or to produce, or to provide access to any relevant document, goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points in issue.”

In terms of the above provision, it is the arbitrator who has the authority to appoint an expert. The expert appointed is to report to the arbitrator on the specific issues to which the appointment relates. Those issues would then have to be determined by the arbitrator. Further, if a party so requests or the arbitrator considers it necessary, after delivery of his report to the arbitrator, the expert is then required to take part in the hearing and may be asked questions by the parties. The parties are entitled to lead expert evidence in respect of the matters for which the expert was appointed. It is only when the parties agree otherwise that the arbitrator is excused from complying with the requirements of sub-articles (1) and (2). The reason for requiring an expert to be appointed by the arbitrator to report to the latter is to ensure that the arbitral tribunal remains seized with the matter until it is finalized.

Permitting the parties to put questions to the expert and/or to lead their own expert evidence is meant to ensure that the proceedings comply with the rules of natural justice, particularly the audi alteram partem rule, by giving the parties an opportunity to cross-examine the expert witness and to lead their own evidence either to support or to contradict the evidence of the expert appointed by the arbitral tribunal.

View Appeal
CC10-19 : THE STATE vs WILLARD CHOKURAMBA (JUSTICE FOR CHILDREN'S TRUST INTERVENING AS AMICUS CURIAE and ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE)
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and MAKONI AJCC

McNALLY JA, in S v A Juvenile 1989 (2) ZLR 61 (S), said: “I am in danger of straying into fields of sociology and psychology where I have no expertise….,.”

HB149-16 : MUNATSI SHOKO vs OLD MUTUAL ZIMBABWE LIMITED
Ruled By: MOYO J

I have accepted the rate of the United States dollar to the Zimbabwean dollar in 1993 and the subsequent years, as contained in the annexure from the Reserve Bank of Zimbabwe as while the defendant's counsel had objected to its production. I advised both parties to address that in their closing submissions whereupon I would then deal ...

SC30-19 : BRITISH AMERICAN TOBBACO ZIMBABWE vs JONATHAN CHIBAYA
Ruled By: GARWE JA, GOWORA JA and MAVANGIRA JA

The charge arose after it was discovered that there were two withdrawals of an amount of USD2,605= from the appellant's Standard Chartered Bank account on two occasions, namely, 18 May 2012 and on 31 May 2012 using one withdrawal instruction. The withdrawal of 18 May 2012 was authorised and was made by the respondent. The withdrawal of 31 May 2012 was unauthorised and was deemed fraudulent as the instruction used on 18 May 2012 was the same one which was used again to withdraw money on 31 May 2012. On the face of it, the latter withdrawal was also made by the respondent….,.

A disciplinary hearing was held and the Disciplinary Committee found the respondent guilty as charged on the basis of a forensic report by a forensic scientist, who, after analysing several samples of the respondent's signature, concluded that the signature on 31 May withdrawal slip was consistent with the respondent's standard signature….,.

Aggrieved…, the respondent further appealed to the NEC Grievance and Disciplinary Committee which upheld his appeal and set aside the order by the Works Council. The NEC Grievance and Disciplinary Committee's reasoning in arriving at this decision was that the only evidence which the appellant had relied on, namely, the handwriting expert's report, was unreliable as it was based on photocopies which do not clearly show some of the features and that therefore the appellant had failed to prove its case against the respondent….,.

The expert found that the signature on the withdrawal slip was the same as the appellant's standard signature. The expert's conclusion was based on an examination of photocopies and it was on this score that the respondent challenged the expert's finding as well as the fact that his true signature had no dots as reflected on the signature appearing on the photocopies….,.

Regarding the evidence of the handwriting expert, it is trite that expert opinion evidence is admitted in evidence to assist the court to reach a just decision by guiding the court and clarifying issues not within the court's general knowledge.

In Menday v Protea Assurance Co. Ltd 1976 (1) SA 565…, it was stated that;

“It is not the mere opinion of the expert witness which is decisive but his (or her) ability to satisfy the Court that, because of his (or her) special skill, training and experience, the reasons for the opinion which he (or she) expresses are acceptable.”

In R v Chidota 1966 (3) SA 428 (another criminal matter) the learned judge QUENET (JP) held that:

“Where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”

It is trite that, in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters.

In S v Zuma 2006 (2) SACR 257, 263 the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court's own capabilities and responsibilities in drawing inferences from the evidence.

In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent's signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.

Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

Exhibit 7 is an EEG Test report dated 20 September 2010 for the plaintiff. It is further interpreted in Exhibit 8. Exhibit 8, dated 6 November 2010, is a Psychiatric Evaluation Report for the plaintiff by Dr Dickson Chibanda. This evaluation was done at the plaintiff's request due to her inappropriate behaviour including outbursts of extreme agitation ...

HHH185-15 : ITAI MOTSI vs THE STATE
Ruled By: HUNGWE J and BERE J

The Constitutional Court of South Africa expressed itself on the subject of expert witnesses in Glenister v President of the Republic of South Africa and Others (CCT 28/13) (2013) ZACC 20; 2013 (11) BLCR 1246 (CC) (14 June 2013) (accessed on 9 February 2015); “In essence, the function of an expert is to assist the court to reach ...

“In essence, the function of an expert is to assist the court to reach a conclusion on a matter on which the court itself does not have the necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his ability to satisfy the court that, because of his special skill, training or experience, the reasons for the opinions he expresses are acceptable. Any expert opinion which is expressed on an issue which the court can decide without receiving expert opinion is, in principle, inadmissible because of its irrelevance. The rule was crisply stated in Gentiruco A.G. v Firestone S.A. (Pty) Ltd 1972 (1) SA 589 (A) at 616H:

'[T]he true and practical test of the admissibility of the opinion of a skilled witness is whether or not the Court can receive “appreciable help” from that witness on the particular issue'. Expert witness testimony on an ultimate issue will more readily tend to be relevant when the subject is one upon which the court is usually quite incapable of forming an unassisted conclusion. On the other hand, the opinion of the witness is excluded not because of a need to preserve or protect the fact-finding duty of the court, but because the evidence makes no probative contribution.”

Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves - no more, no less. The weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Two critical matters spring to mind as a consequence;

(i) Firstly, expert evidence does not “trump all other evidence”. Woodhouse v Britannic Assurance p.l.c., Employment Appeal Tribunal, U.K.E.A.T. 0132/03/RN para. 25.

Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula against which actions are then to be rigidly judged with a mathematical precision. Stewart v Glaze (2009) E.W.H.C. 704.

In HKSAR v Chan Sze Pui, Gloria (2004) H.K.C.U. 298 it was held that a court is not compelled to accept the evidence of an expert but is entitled to accept or reject that evidence, like any other, bearing in mind the whole of the evidence in the case. The court had placed the expert testimony in the context of the whole of the evidence and determined what weight could be placed upon it.

(ii) Secondly, a court must not consider expert evidence in a vacuum. It should not therefore be artificially separated from the rest of the evidence. To do so is a structural failing. A court's findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa.

Similarly, the South African courts have said that expert testimony can serve as a useful tool or guide against which the reliability of the testimony of eyewitnesses can be checked and tested. Van der Westhuizen and Another v SA Liberal Insurance Co. Ltd 1949 (3) S.A. 160 (C). It is for the court to determine, on the balance of probability, on all the evidence, where the probabilities lie.

In Routestone Ltd v Minories Finance Ltd and Another (1997) B.C.C. 180, JACOB J observed that what really mattered in most cases was the reasons given for an expert's opinion, noting that a well-constructed expert report containing opinion evidence sets out both the opinion and the reasons for it. The judge pithily commented “(if) the reasons stand up the opinion does, if not, not…,.” A court should not therefore allow an expert merely to present their conclusion without also presenting the analytical process by which they reached that conclusion.

In R v Nyamayaro 1967 (4) SA 263 (RA) BEADLE CJ adopted the well-known dicta of GREENBERG JA in Annama v Chetty and Others 1947 AD 142…, where the learned Judge of Appeal said, in speaking of the evidence of a handwriting expert:

“His function is to point out similarities or differences in two or more specimens of handwriting and the court is not entitled to accept his opinion that these similarities or differences exist, but once it has seen for itself the factors to which the expert draws attention, it may accept his opinion in regard to the significance of these factors.”

See also S v Sibanda 1963 (4) SA 182 (SR).

The fact of the matter in the present case is that the expert witness, Assistant Inspector Innocent Dube, did not compile his report in a manner which would permit a court to understand and follow the reasoning behind his conclusions. He sought to excuse the scanty nature of his report by stating that although it was desirable to include the detail which would allow the court to follow his reasoning, this was not a legal requirement for the sufficiency of his report.

In maintaining this stance, he failed to play his role as an expert….,.

I am persuaded by the argument so clearly laid down in the case law, in this and other jurisdictions, that there has to be such evidence laid before the trier of fact as sufficient for him or her to make up his own mind as to the correctness of any proposition which the expert makes in his testimony.

Clearly, there is nothing, besides Assistant Inspector Innocent Dube's say so, to enable the court a quo to have arrived at the conclusion that the bullet which was fired at the complainant in the Christon Bank incident was discharged by the pistol recovered from the appellant. As such, one cannot state with certainty that this was indeed the case, as the prosecution argued. Without this detail, the trial court was not entitled to find, as it did, that the expert's evidence was admissible. It was not. His opinion was not backed by evidence. It remained that - an opinion; and was therefore irrelevant to the issue to be decided.

HH189-15 : ELTON NYABUSHA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY
Ruled By: MATANDA-MOYO J

Mrs Chebanga testified that she is employed by the Forest Commission as a District Forest Extension Officer….,. She also said in terms of section 78(b) of the Forestry Act [Chapter 19:05] she is regarded as a fire expert. However, this witness did not fare well under cross-examination. She was rude and evasive. If she was not biased her ...

HH25-09 : KWINDIMA FABIOLA vs MVUNDURA LOUIS
Ruled By: MAKARAU JP

The plaintiff called the evidence of one Emmanuel Mutambirwa. He is employed by the City of Harare as a Chief Valuations Officer. He holds a Diploma in Quantity Surveying, a Bachelor of Banking and Commerce degree and an MBA amongst his qualifications, all of which are set out in the report that he compiled on ...

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MAFUSIRE J

The second witness called by the plaintiff was one Leonard Nhari, a forensic scientist. One of the issues was whether or not Sandra Muir had acknowledged receipt of certain payments made by the Gurupiras. Mr Nhari's evidence was that after he had examined Sandra Muir's purported signatures on the questioned documents it was his conclusion that ...

HH352-18 : N.R BARBER (PRIVATE) LIMITED vs ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED
Ruled By: MUZENDA J

The plaintiff, N.R Barber (Private) Limited (hereinafter referred to as “plaintiff”) is a company duly registered in terms of the laws of Zimbabwe, whose registered office is 114 Seke Road, Graniteside, Harare. The plaintiff specialises in mining operations, underground, open cast, mining plans, transport logistics for ferrying the ore from one place to the supplier and related business.

The first letters of the plaintiff stand for Nolan Robert whose surname is Barber. Incidentally, he is the Managing Director and alter ego of the plaintiff.

The defendant, Zambezi Gas Zimbabwe (Private) Limited (hereinafter referred to as the “defendant”) is equally a duly registered company in terms of the law of Zimbabwe whose offices are situated at Number 28 Transtobac Complex, Hillside Road Extension, Msasa, Harare.

Mr Francis Chirimuuta, the Managing Partner of Chirimuuta and Associates, is the Board Chairman of the defendant; Mr E. Raradza is the Managing Director; Mr Thomas Nherera is the Executive Director for Finance and Administration; Mr M. Raradza is the Executive Director for Operations and Marketing; Mrs R.M Kajese being the fifth Director.

The defendant is a proprietor and hence holder of a coal mine situated in Hwange under a special Grant Number 4084 in respect of coal reserves which comprise of approximately 20,000,000 (twenty million) tonnes mineable and extractable in situ tons of coal. The defendant then formed a Special Purpose Vehicle under the name of Entuba Coal Fields of Zimbabwe (Private) Limited whose registered office address is given as 28 Hillside Road Extension Transtobac Complex, Msasa, Harare whose directors are Dr C. Msipa, Mr Hlongwani, Mr E. Raradza, Mr T. Nherera and Mr M. Raradza.

Dr C. Msipa and Mr Hlongwani are directors of another entity called Coal Brick which company is known to the plaintiff. Hence, Mr E. Raradza and Mr T. Nherera are both directors of the defendant and Entuba Coal Fields of Zimbabwe (Private) Limited.

On 28 August 2017, the plaintiff issued summons against the defendant for the following relief;

(a) Payment of the amount of USD3,885,000, being payment of money due and owed to the plaintiff by the defendant in terms of an acknowledgment of debt which was executed by the defendant in favour of the plaintiff on the 15th of February 2017;

(b) Interest on the amount at the prescribed rate of 5% per annum calculated from the date of summons to the date of payment in full; and

(c) Costs of suit on attorney client scale.

In paragraph 3 of the plaintiff's declaration it summarises the plaintiff's cause of action as follows:

“3. On the 15th of February 2017 the defendant executed an acknowledgement of debt in favour of the plaintiff wherein it admitted that the amount of $3,885,000 (three million eight hundred and eighty five thousand United States dollars) was due and owed to the plaintiff as a debt arising from the work done by the plaintiff at Entuba Mine at the instance and request of the defendant.”

In paragraph 5 of its declaration the plaintiff adds:

“The defendant failed to pay the monthly instalments as per the acknowledgement of debt and the amount of US$3,885,000 is now due and owed to the plaintiff.”

The defendant entered appearance and filed its plea and the gravamen of its plea is contained in paragraph 3 which states the following:

“3: Ad Paragraph 3 Defendant denies;

(a) The existence of any privity of contract between plaintiff and itself and denies that any work was allegedly performed on its behalf.

(b) That plaintiff performed work on its behalf or for whomsoever at its special instance and request. It puts plaintiff to the proof thereof.

Defendant, consequently, denies that there was any legal cause for the alleged acknowledgement of debt.”

On the strength of this plea, the defendant prays that the plaintiff's claim be dismissed with costs.

On 29 January 2018 the parties signed a joint pre-trial conference minute which streamlined issues for trial as follows:

“1. Whether there was legal cause for the acknowledgement of debt.

2. Whether the debt acknowledged by the defendant arises from work done by the plaintiff at the instance and request of the defendant.

3. What amount is due by the defendant to the plaintiff?”

On 13 June 2018 the matter proceeded to trial.

Mr N R Barber, the plaintiff's Managing Director, gave evidence. He stated that between 2013 and 2014 he was tasked to do work at Hwange by Entuba Mine, a company owned by the defendant company. The total amount due from Entuba was $3,012,493=46, and, on 12 May 2016, the defendant's Chief Executive Officer, Mr Thomas Nherera, wrote to the plaintiff acknowledging its indebtedness to the plaintiff for that amount.

The first acknowledgement of debt, authored and signed by the defendant's Directors, was produced by the plaintiff in court and accepted as exhibit number 1.

In the contents of exhibit 1, the witness pointed out that the defendant thought it acknowledged its indebtedness to the plaintiff in the sum of $3,012,493=46, a reconciliation of the total capital owed was going to be carried out and factor in any amount towards fuel expense issued to the plaintiff during the operations, thereafter, interest was going to be added to the capital.

On 15 February 2017, Mr N.R. Barber told the court that indeed a second acknowledgement of debt showing a deduction in capital and a figure of interest was signed by the defendant. The second acknowledgement of debt, exhibit 2, was produced in court.

Mr NR Barber further clarified and confirmed that although all the invoices were reflecting Entuba Coal Mine, those were subsequently accepted by the defendant and the defendant acknowledged its indebtedness to the plaintiff and what was more crucial to the plaintiff were the acknowledgements of debt specifically created, authored, and signed, by the defendants which formed the plaintiff's cause of action.

He clearly testified that Entuba Mine was a special purpose vehicle formed by the defendant and he was not surprised when the defendants delivered to him exhibit(s) 1 and 2. He believed the defendant when it told him that it was going to take over the debt.

In any case, according to the witness, the defendant was the beneficiary of the product the plaintiff produced.

He added that at all material times Mr T Nherera was aware of all the invoices issued to Entuba and Mr T. Nherera used the same invoices to prepare and reconcile figures which he ultimately used to compile the acknowledgement of debts.

Mr N.R. Barber was extensively cross examined by the defendant's counsel but he maintained his stance, and, further, added that although the defendant was joined by Linos Masimura, well after the signing of the acknowledgement of debt, the defendant did not challenge the authenticity of the acknowledgment.

Mr NR Barber was actually surprised when Mr E Raradza and Mr T Nherera refused to honour the defendant's indebtedness. The amount of $3,885,000 was calculated and reconciled by the defendant and it ought to be honoured he contended.

The plaintiff's second witness was Mr Antiock Kuraone who was appointed as agent by the plaintiff to recover the outstanding debt.

When the witness was appointed he engaged the Directors of the defendant, the Managing Director, Mr E Raradza, and Mr T. Nherera. The defendants unreservedly acknowledged owing the plaintiff an amount of $3,885,000 and they produced exhibit no. 2 where the defendant indicated the proposed date of payment with a cut-off date for last payment being February 2020.

The witness reiterated the fact that in as far as the legal cause of the acknowledgement of debt was concerned, the acknowledgements themselves, prepared by the defendant, succinctly disclosed the cause, that is, for payment of money for the work done for the defendants at Entuba Mine in Marange.

Exhibit 2 was signed by the Managing Director, Mr E Raradza, and Director Finance and Administration, Mr T Nherera.

The two were not forced and co-operated throughout the engagement, he said.

He also clarified that at no time did the defendant raise the issue of liability; the sticking issue that arose when he came into the matter was basically reconciliation, more particularly, of factoring in the fuel aspect. Otherwise, the parties were in agreement as to the amount.

During cross examination by the defendant's counsel, the witness remained adamant that the issue of legal causa did not arise during the engagement.

Mr T. Nherera was fully aware of all the verifications and he (Mr T Nherera) is the one who did the reconciliation.

Mr Kuraone rejected the amount of $896,884 as the correct amount and denied that Mr Masimura engaged him for a revisit on the alleged reconciliation of the figures contained on the acknowledgements.

After the acknowledgement, what Mr Kuraone and the plaintiff were waiting for was payment. When the defendant did not honour the payment he advised the plaintiff to take legal action, which the plaintiff did.

Mr Antiock Kuraone impressed the court as an honest witness, he did not exaggerate but remained forthright. He actually confirmed Mr N.R. Barber's testimony and both witnesses were credible. Their evidence tallies with the exhibits produced in court....,.

The defendant called Mr Edward Raradza, its Managing Director; to give evidence. I will deal with portions of his evidence relevant to the matter before me.

He told the court that sometime in September 2013 the defendant and Coal Producers and Processors Trust Zimbabwe entered into a joint venture agreement where the two parties formed a Special Purpose Vehicle, Entuba Coalfields (Private) Limited. The defendant was to avail its mining concession to the joint venture and Coal Producers Trust was to provide resources to mine the coal.

The plaintiff was brought on site to Entuba Coalfields to provide mining contractor services.

According to the witness, it was Coal Producers Trust which brought the plaintiff to Entuba and payment of work done by the plaintiff, per Entuba, was Coal Producers Trust's responsibility. He repeated what is contained in the defendant's plea, that there was no contractual arrangement between the plaintiff and the defendant.

In July 2015, the Special Purpose Vehicle, Entuba Coal Mine Company, became dysfunctional and the defendant repossessed its mining concession. The defendant was aware of the plaintiff's debt, and, according to Mr E Raradza, the defendant, without any legal obligation thereto, executed an acknowledgement of debt in favour of the plaintiff in the amount that the plaintiff had indicated was wrong subject to a reconciliation being conducted.

He added that the defendant could not pay because the income flows from the mining operations did not permit fulfilment of such undertakings that the defendant had made.

During cross-examinations by the plaintiff's legal practitioner, Mr Raradza unequivocally admitted that the Directors and the defendant company confirm that the plaintiff is owed but the only contentious issue was the amount. He accepted the authenticity of both exhibit 1 and 2, and, per exhibit 2, he accepted that he co-signed it but he was not familiar with issues relating to costing mining invoices. He admitted that efforts were made to reconcile the figures acknowledged but was not clear as to when such efforts were made before the drafting of exhibit 2 or after it was already signed.

Most of his evidence actually substantiated the plaintiff's case.

The defendant's second witness was Mr Thomas Nherera. In principle, the witness dwelt more on corporate divisibility, that, as long as there are two existing companies, the liability of one does not cross the demarcating line to the other side. Each company is accountable to its own liabilities. Hence, the defendant did not enter into any contractual relationship with the plaintiff, and, as such, there was no pretext for the writing of the acknowledgement of debt.

He however brought a very crucial revelation which greatly assisted this court. He admitted, under cross examination, that the Managing Director of the defendant and himself were both directors of Entuba. He was its Chief Executive Officer and he is the one who received all the invoices from the plaintiff. Using those invoices, he prepared exhibit 1 and 2. However, when exhibit 1 and 2 were prepared and signed, the real motive was to retain business relationship and rapport with Mr NR Barber but thus far.

He also admitted that Entuba had no assets at all and was fictitious in principle.

Mr T Nherera was evasive during cross-examination and had difficulties in answering simple questions. He contradicted Mr E Raradza especially on the aspect of liability of the defendant to the plaintiff.

Mr Linos Masimura was the defendant's third witness.

He holds a Masters in Business Leadership and is involved in mining operations in Zimbabwe and South Africa. He is the Deputy Managing Director of the defendant from June 2017. When he joined the defendant he was briefed about the defendant's status, its employees and liabilities. He was shown exhibit 1 and 2 and undertook to do a verification exercise. He visited the mine at Hwange with Mr E Raradza, the Mining Manager, and Mr Kurauone. He worked out a reconciliation thereafter and came out with a figure of $896,884 as being the “real” amount per the work done by the plaintiff. He also worked out the total sum of payments made to the plaintiff by Entuba or payments made to the plaintiff for work done.

He strengthened the defendant's plea that there was no legal causa between the plaintiff and the defendant.

During “conciliation” of figures, he worked with Mr Kurauone who was representing the plaintiff but when the witness engaged Mr Kurauone with the figure of $896,884 Mr Kurauone could not accept it.

The witness is not an accountant, he did not produce a comprehensive audit report based upon the acknowledgement figures and show the deductions of double invoicing. The document shown by the witness is but scanty. It does not show the reconciliation process for one to come up with the amount of $896,884.

The witness was cross-examined by the plaintiff's counsel and was at pains to explain how he arrived at that figure of $896,884.

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

Once it was accepted that the appellant was entitled to nullify the examination results, it must follow that it was also entitled to decide what steps should be taken to remedy the situation that had arisen.The court a quo was clearly not endowed with the requisite tools or technical expertise ...

Appealed
SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE
Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

This is an appeal against the whole judgment of the High Court declaring the Agreement of Sale between the appellant and the respondents valid and binding on the basis that the appellant had the requisite mental capacity to contract and granting the consequential relief of eviction of the appellant.FACTUAL BACKGROUNDPrior ...

FACTUAL BACKGROUND

Prior to 26 January 2006, the appellant had rights and interest in a property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare (“the property”). She instructed Fingold Real Estate (Fingold) to sell the property on her behalf. An advertisement of the sale of the property was published in the Herald newspaper by Fingold, prompting one Abel Murape, the first respondent's father, who acted as the respondents' agent, to engage with Fingold regarding the sale.

The respondents are husband and wife.

The engagement resulted in an Agreement of Sale between the appellant and the respondents, wherein the appellant sold her rights and interest in the property to the respondents. The Agreement of Sale was reduced to writing and duly signed by the appellant and Abel Murape before the estate agent and two witnesses on 26 January 2006.

It is not in dispute that the full purchase price of ($1,950,000,000) one billion nine hundred and fifty million Zimbabwean dollars was paid in full on the date of signature of the agreement. It was paid through Fingold Real Estate, and, of that amount, the appellant withdrew fifty million ($50,000,000).

Thereafter, the appellant, together with Abel Murape, proceeded to the Ministry of Local Government and National Housing (The Ministry) for confirmation that the purchase price had been paid in full. As the property had no title deeds, the parties proceeded to the City of Harare offices to effect cession from the appellant into the respondents' names.

A few days later, on 30 January 2006, and before the respondents had taken occupation, the appellant wrote a letter to Fingold Real Estate cancelling the Agreement of Sale. The appellant indicated that the money paid towards the purchase price was of no use to her. This was done notwithstanding the fact that the appellant had already withdrawn part of the money that had been paid for the property for her own use.

The respondents, on 5 March 2006, instituted proceedings in the court a quo seeking a declaratur that the agreement entered into between the parties was valid, the eviction of the appellant from the property, and costs of suit.

The appellant resisted the claim on the basis that, at the material time that she entered into the Agreement of Sale, she did not have the requisite mental capacity to contract. She pleaded in the following terms;

“1. At the material time, the Defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.”

Thereafter, the matter was referred to trial.

PROCEEDINGS IN THE COURT A QUO

One of the issues for determination at trial was whether or not the appellant had capacity to enter into a valid contract.

The appellant adduced evidence from two witnesses....,. The second witness was Dr Sekai Nhiwatiwa, a medical doctor specialising in psychiatry....,.

Dr Sekai Nhiwatiwa testified that she treated the appellant from 2005. She found that the appellant suffers from 'bipolar affective disorder' the effects of which include impairment of judgment. She stated that if a patient takes her medicine properly, she could have lucid intervals and could work as a professional such as a lawyer or a doctor. She however conceded that she could not, with certainty, state that the appellant was not lucid in January 2006 when she sold the house as she neither examined the appellant nor stayed with her. She further highlighted that the letter she had written at the time the appellant sold her property, that she was mentally incapacitated, was at the request of the appellant's son.

No medical records were availed to the court to substantiate her averments....,.

The court a quo..., found that the evidence of the expert witness was not sufficient to prove that, at the material time, the appellant was mentally ill. Instead, her testimony was that if the appellant took her medication daily, she would be sane. She could not dispute that the appellant might have had a lucid interval at the time the Agreement of Sale was entered into....,.

I do not find counsel for the appellant's contention that the court overlooked the appellant's medical history persuasive.

The court considered the evidence of Dr Nhiwatiwa and correctly discounted it.

It is significant to note that no medical records were placed before the court to establish the medical history of the appellant, except for letters which were drawn at the request of the appellant's son. In one of the letters dated 20 January 2010 the Doctor stated the following:

“I have been looking after the above named lady for over ten years now. When she sold her house in 2006 she was psychotic and did not know what she was doing. I believe the house was sold below market value. The buyer, at some point, knew that Muchaneta was ill but proceeded with the deal anyway. If a detailed report is needed I need time to complete it.”

She conceded, during her testimony, that she did not have independent knowledge of the facts surrounding the Agreement of Sale as she neither examined the appellant nor lived with her.

The court a quo cannot therefore be faulted for discounting her evidence.

View Appeal
HH339-18 : KUDAKWASHE MURAPE and MABLE MURAPE vs MUCHANETA CHATAMBUDZA
Ruled By: CHIKOWERO J

The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity....,.

Doctor Nhiwatiwa, a psychiatrist, testified that the defendant was her patient from about 2005. She, and other psychiatrists, were treating the defendant. She was treating the defendant for a condition called Bipolar Affective Disorder.

It came out clearly from Doctor Nhiwatiwa's testimony, for the defendant, that as long as the latter took her medication daily she would be fine. Persons suffering from Bipolar Affective Disorder, as long as they take their medication, would be able to work even as professionals.

Doctor Nhiwatiwa conceded that because she did not stay with the defendant at the material time she could not dispute that the latter was having a lucid interval when the Agreement of Sale was entered into.

View Appeal
HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: UCHENA J

The plaintiff is a medical doctor....,.The defendant has a certified medical condition which prevents her from continuing with her business as a beautician. See exhibit 1, an affidavit by Dr A. J. Gunning, in particular paragraphs 3 to 11 which gives details of the defendant's ailments. She suffers from haemoptysis ...

The plaintiff is a medical doctor....,.

The defendant has a certified medical condition which prevents her from continuing with her business as a beautician. See exhibit 1, an affidavit by Dr A. J. Gunning, in particular paragraphs 3 to 11 which gives details of the defendant's ailments.

She suffers from haemoptysis (the coughing out of blood which the doctor said is increasing. She also suffers from “pulmonary emboli, which refers to the presence of blood clots within the pulmonary arterial circulation, and that condition requires lifelong anti-coagulation.” She was diagnosed, by Dr Frost, to have “chronic sensory polyneuropathy and bilateral carpel tunnel syndrome.” This means “the nerve endings in her lower legs do not function normally and she suffers abnormal sensations in the lower limbs comprising numbness, tingling, and pain.” This also affects her wrists, hands, and fingers. She also suffers from type 2 diabetes for which there is no specific available therapy. She, as from March 2012, has developed moderately severe oedema of both lower limbs. In addition to the above, Dr Gunning also diagnosed that the defendant has “chronic lumbar spinal spondlodysthesis.” He described it as a chronic arthritis of the lower spine, a condition for which there is no known curative treatment. In paragraph 11, Dr Gunning said the defendant's condition “could very conceivably make it extremely difficult for her to stand for any length of time, and, for which conditions there is no effective curative therapy.” He, in paragraph 12, concluded by saying; “It is therefore, to my mind, very credible that any occupation or profession which she might seek to conduct, which involves standing for long periods of time, might be extremely difficult, perhaps impossible for her to endure.”

The defendant's condition is apparent over and above being medically certified. She had to be allowed to lead her evidence while seated because it had been accepted by the court, and the plaintiff's counsel, that she could not do so while standing in the wittiness stand.

The plaintiff had, while on a journey to their son's graduation, arranged for her to be assisted to move from the plane to where they could board transport from the airport. See exhibit 2 in which the plaintiff said;

“She can walk but has severe arthritis of her knees and back and cannot do long distances and certainly cannot manage all the luggage that she is carrying. I have booked the meet and assist but she remains worried that she will not be able to manage the express even with help. Is there anything else that I could arrange to make her journey less stressful and easier?”

This confirms the plaintiff's acceptance of the defendant's condition, as described by Dr Gunning, and the plaintiff's personal knowledge of the defendant's condition.

HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI
Ruled By: GUVAVA J

The plaintiff in this matter issued summons out of this court claiming a decree of divorce, custody of the minor children of the marriage, and other ancillary relief.Four issues were referred to trial in terms of a joint pre-trial conference minute filed by the parties on 27 November 2008. The ...

The plaintiff in this matter issued summons out of this court claiming a decree of divorce, custody of the minor children of the marriage, and other ancillary relief.

Four issues were referred to trial in terms of a joint pre-trial conference minute filed by the parties on 27 November 2008. The issues were agreed to as follows:

1. Whether the marriage has irretrievably broken down.

2. Who amongst the parties should have custody of the minor children and who should have reasonable access to them?

3. In what way and/or in what sum should the non-custodial parent contribute towards the minor children's maintenance?

4. What constitutes the parties' marital estate and how should it be distributed between the parties upon divorce?

At the commencement of the trial, the defendant conceded that the marriage had irretrievably broken down.

Therefore, the only issues that remained for determination by the court related to the custody and maintenance of the minor children and division of the property.

The plaintiff testified that he married the defendant on 2 May 1987. The marriage between them has irretrievably broken down as they have lived apart from 2002 when the defendant went to work in the United Kingdom. He is of the view that the marriage can no longer be resuscitated.

Three children were born out of the marriage. The eldest is a major and is living with the defendant and studying at a University in the United Kingdom. The two minors live with the plaintiff in Zimbabwe where they attend school, save for a brief period in 2004 when they relocated to the United Kingdom but had to come back when the defendant fell ill.

On 13 August 2002, and during the subsistence of the marriage, they purchased an immovable property being a certain piece of land situate in the District of Salisbury called Stand 322 Vainona Township of Vainona measuring 4,164 square meters otherwise known as Number 5 Otter Road, Vainona. The purchase price of the property was Z$38,000,000 (thirty eight million dollars). The plaintiff stated that this amount included the transfer costs and the furniture which they took over from the previous owner.

The plaintiff stated that in order to raise the purchase price the defendant sent 10,000 British pounds as her contribution towards the purchase price. He converted this money on the informal market at a rate of $1 to Z$1,000 and obtained Z$10 million. They sold a property which they owned in Marimba Park for Z$20 million. The plaintiff paid Z$11 million from his earnings from buying and selling cars and took out a mortgage for $5 million.

The property is registered in the joint names of the parties.

He suggested that upon divorce the property be retained until the youngest child attains the age of 18 whereafter it should be sold and the proceeds shared equally between the parties.

The plaintiff further testified that in May 2003 he purchased a Pajero motor vehicle from Japan. He bought the motor vehicle with no assistance from the defendant. He sold the motor vehicle in 2005 so that he could raise money to collect the children from the United Kingdom after their mother fell ill.

With regards to the movable household goods he suggested that each party keep the items in their possession. It was his opinion that as the defendant had been living in the United Kingdom since 2002 she had acquired property there and therefore she should retain what she had acquired whilst he retained what had been accumulated in Zimbabwe....,.

In cross examination, it was put to the plaintiff that the free rate of exchange in July 2002 was US$1 to Z$1,400 and not Z$1,000 which he said he had exchanged the money. He denied that that was the exchange rate. He also denied that the defendant had sent him a further 3,000 pounds in August 2002. He stated that although he did not dispute that the money was withdrawn from her bank account he does not know what she used the money for. He however could not explain why the defendant had withdrawn the money a few days after signing the Agreement of Sale. He denied that she had contributed towards the construction of a wall around the property. He stated that it had only cost Z$1,8 million. He also conceded that although the defendant had made a withdrawal of 5,823 pounds from her account he did not know how she had used the money....,.

When questioned by the court, he stated that he was in a position to pay out the defendant her share of the immovable property if he was given an opportunity to do so. He also stated that he was happy to share the movable property as they had agreed prior to the commencement of the trial....,.

The plaintiff's evidence, in relation to his contributions towards the purchase price of the immovable property, did not ring true. Indeed, a mathematical calculation of the money, according to his evidence, would end up with a surplus amount. He stated that he contributed Z$11 million, the defendant paid Z$10 million, and the proceeds of Z$20 million from the proceeds of the Marimba Park house all went to the purchase price of the house. He also took out a loan of Z$5 million for transfer fees. Thus, the total amount raised was Z$46 million when the purchase price was only Z$38 million.

Throughout his evidence, and cross-examination, he insisted that he wanted to retain all the movable property which they acquired in Zimbabwe. It was only when he was questioned by the court that he stated that they could share the movables in accordance with the agreement that they had reached prior to the commencement of the trial....,.

The defendant confirmed that she and the plaintiff had agreed on the distribution of their movable property. She produced, by consent, exhibit 11 which shows how their property should be shared.

Thus, the only dispute between the parties related to the immovable property.

The defendant told the court that she had given the plaintiff 10,000 pounds. She produced a document which she downloaded from the internet which showed the exchange rates as at July 2002. The defendant urged the court to accept the rate on this document as opposed to the rate which the plaintiff had said he changed the money.

In August 2002, she sent a further sum of 3,000 pounds towards the purchase price of the property. The defendant testified that in November of 2002 she sent a further amount of 5,823=94 pounds to assist with renovations on the property. A wall was erected around the property and a new leather lounge suite purchased. They put in tiles in the swimming pool and relocated the gazebo from the tennis court to the swimming pool.

The defendant stated that, from her calculations, she had paid the full purchase price for the immovable property without the assistance of the plaintiff and she was thus entitled to a 90% share. She stated that if she were to be given a period of six months she would be able to pay him out.

In cross examination, the defendant maintained that the plaintiff did not contribute at all towards the purchase price of the immovable property. She was adamant that the black market rate upon which they changed their money was set by Government. She stood firm in her evidence that she had sent further amounts to the plaintiff towards the purchasing and renovations of the house....,.

I found the defendant to be a good witness who was fair and gave credit where it was due....,.

With regards to her evidence in relation to her contributions towards the purchase price of the house it was apparent that she had no real knowledge about the rates of exchange and had left the financial responsibility in the hands of the plaintiff. Whilst there was clear evidence that she had withdrawn various sums of money from her bank account in the United Kingdom there was no real link between the withdrawal and how the money was subsequently used....,.

MATRIMONIAL PROPERTY

The plaintiff and the defendant were both agreed on how they would share their movable assets.

The bone of contention remained with regards to how the immovable property should be shared. The plaintiff argued that he is entitled to 50% share of the property as he not only contributed towards the purchase price but he is also a registered owner. The defendant, on the other hand, submitted that she should get 90% of the property as she paid the whole purchase price of the property.

It is now settled that in order for the court to achieve an equitable distribution it must take into account all the factors that are set out in section 7(4) of the Matrimonial Causes Act. In making the award, the court must endeavor to place the parties in the position they would have been had the marriage continued. In Shenje v Shenje 2001 (2) ZLR 160 (H) GILLESPIE J stated that the court must consider all the factors set out in section 7(4) of the Matrimonial Causes Act. He stated as follows…,:

"The factors listed in the subsection deserve a fresh comment. One might form the impression, from the decisions of the court, that the crucial consideration is that of the respective contributions of the parties.

That would be an error.

The matter of the contributions made to the family is the fifth listed of seven considerations. The first four listed considerations all address the needs of the parties rather than their dues. Perhaps, it is time to recognize that the legislative intent and the objective of the courts, is more weighed in favour of ensuring that the parties needs are met rather than that their contributions are recouped."

The evidence led during the trial related to the amount contributed by each party towards the purchase and development of the matrimonial home.

Whilst there was very little dispute with regards the amount the defendant sent from the United Kingdom towards the purchase of the property, the dispute centered largely in regard to the exchange rate which was used to change the money from pounds to Zimbabwean dollars.

The court is faced with a real challenge as the parties both accept that the money was exchanged illegally using the black market rate. Being an illegal rate there is no documentation which sets out the actual rate of exchange. The problem is also compounded by the fact that such transactions are carried out on a willing buyer and willing seller basis after negotiating the rate of exchange. As the transaction is illegal nothing is written down, and, therefore, it is impossible to ascertain what the actual rate used was for the transaction.

The defendant sought to persuade the court to use a document which she had downloaded from the internet which set out the rate of exchange on the black market at that time. It was her belief that the document had emanated from the Government.

However, an examination of the document shows that it is not an official document but an article which was prepared by an individual quoting the Governor of the Reserve Bank. The rate of exchange on the document which she asked the court to accept is an illegal rate which is not recognized by the laws of this country. I thus had difficulties in accepting the document as proof of the exchange rate between the Zimbabwe dollar and the American dollar at the relevant time; it would mean an acceptance by the court of the black market rate.

View Appeal
HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

The plaintiff issued summons against the defendants claiming payment of US$13,868=90 for car rental charges due to the plaintiff and interest thereon at the rate of 3.5% from 1 April 2016 to date of full payment.

The undisputed facts are that the first defendant entered into a car hire agreement with the plaintiff in October 2015. In terms of the agreement, he was issued with a motor vehicle, a Ford Everest, that he used and was expected to make payments. He failed to do so until the motor vehicle was withdrawn from him.

The plaintiff had to seek the services of the police for the first defendant to return the motor vehicle. The plaintiff laid criminal charges against the first defendant. The second defendant, a sister to the first defendant, offered to settle the debt and the criminal charges were withdrawn.

In due course, the second defendant withdrew the offer to settle the debt. It is then that the summons was issued. The second defendant applied for the appointment of a curator ad litem over the first defendant.

On 17 March 2017 a provisional order was granted. No final order was sought by the second defendant.

As a result of the appointment of the curator ad litem persona the plaintiff withdrew its claim against the first defendant.

This trial therefore relates to the second defendant only.

At the pre-trial conference meeting held after the withdrawal of charges against the first defendant the parties agreed that the following issues would determine the case;

1. Whether or not the agreement entered into between the first defendant and the plaintiff was valid....,.

The second witness was Dr Patience Maunganidze. She is a medical doctor, a psychiatrist, based at Parirenyatwa Psychiatrist Unit. She wrote a letter setting out Bernard's condition based on the examination she carried out on Bernard in 2016 and the records kept at the Unit. The letter was produced as an exhibit.

She said Bernard's condition was called bipolar disorder. It's a problem with mood.

Bernard exhibited mania in that he believed he was excessively wealthy. Generally, such persons should not manage their affairs or make decisions but they do so. Under cross-examination, she said when a patient is examined, and an opinion is expressed, it relates only to the time of examination. It does not apply in retrospect or for the future. The assessment in casu was correct only as on 25 October 2016. She did not examine Bernard between August 2015 and August 2016.

She expressed an opinion that if Bernard signed a contract for a car hire and paid the money he could have entered into the agreement with a sound mind. She also said if a patient adheres to medication he or she can lead a normal life.

HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY
Ruled By: MAKONESE J

Where a defect or dangerous condition in the conductor or any appliance of a power company, causing injury to a person or persons, negligence does not per se give rise to liability as against the power company. Liability on the part of the power company turns on whether it knew, or by the exercise of reasonable diligence, should have known of the defect in time to have avoided injury.

The standard test for determining negligence in regard to liability for delictual damages is whether a diligent paterfamilias in the position of the defendant would have foreseen the reasonable possibility of his conduct injuring another person or property and causing the patrimonial loss. Negligence arises where the reasonable person would have taken reasonable test to guard against the occurrence of injury but fails to take such steps to prevent harm from occurring.

On the night of the 13th December 2015 there was a heavy storm in the Hozheri village of Gweru. During the overnight storm, a bolt of lightning struck a wooden electricity pole carrying three electricity conductors, destroying the insulator pin and insulation porcelain on the cross-arm, causing one of the three conductors to dislodge from its position on the cross-arm, leaving it hanging two metres above the ground.

The following morning, there was a slight drizzle, the plaintiff, who was 19 years old at the time, was herding cattle. He was wearing a raincoat. The plaintiff came into contact with a 100 volt electric conductor thereby “precipitating a short-circuit fault to earth” and was electrocuted. He suffered extensive burns as the electric current surged through his body, discharging into the ground. The plaintiff was taken to Mpilo Central Hospital in Bulawayo where he was hospitalized for three months. His left hand was amputated.

The plaintiff issued summons against the defendant, a power distribution company, claiming damages for the injuries sustained as a result of the electrocution. The amount claimed is broken down as follows:

(a) $60,000 for pain and suffering.

(b) $160,000 for permanent disfigurement and loss of amenities.

(c) $30,000 for future medical expenses.

This third claim was however abandoned before the commencement of the trial.

The plaintiff based his claim on three particulars of negligence, as set out in paragraph 5 of his declaration, namely, that:

(a) Defendant failed to take reasonable steps to fix a fault which had occurred knowing fully the danger associated with such fault, in that the live low lying cable was low-lying for over a month before the electrocution.

(b) Defendant failed to take reasonable measures to disconnect electricity transmission after the fault had occurred so that the low lying cable would not carry electric current which ended up injuring the plaintiff.

(c) Defendant failed to take the necessary action in time and only took action after the plaintiff was injured, such delay was the cause of the plaintiff's injuries.

The defendant entered appearance to defend the plaintiff's claims, and, in its plea, denied liability for the injuries suffered by the plaintiff as a result of the electrocution. The defendant averred that the electrocution was solely caused by the plaintiff who deliberately handled the live electricity conductor which was hanging two metres above the ground, a distance about the plaintiff's height. The defendant further averred that the cause of the conductor hanging two metres above the ground was a natural event, a lightning bolt, for which defendant was not responsible.

The issues for trial were set out in a joint pre-trial memorandum and agreed as follows:-

1. Whether or not the plaintiff was injured due to the negligence or wrongfulness on the part of the defendant.

2. Whether or not the plaintiff is entitled to the damages claimed against the defendant. If so, whether the plaintiff is entitled to the quantum claimed in the declaration or any lessor amount.

3. Whether or not there was contributory negligence on the part of the plaintiff, and, if so, the effect on the quantum of damages, if any.

Plaintiff's case

The plaintiff testified that, on the 14th of December 2015, while he was herding cattle in the Hozheri Village, the raincoat he was wearing got into contact with a live conductor that was lying about 50cm from the ground resulting in a bolt of fire. When the plaintiff saw the fire he was startled and panicked resulting in him getting into contact with the live electric conductor. The plaintiff was electrocuted and became unconscious, and, when he woke up, he was in a hospital bed at Mpilo Central Hospital.

The plaintiff stated that there was no way he could have avoided getting into contact with the conductor since everything happened quickly and in a flash.

The plaintiff sustained burns on his back, on the right leg, and on the head, and behind the right ear. The plaintiff's left hand was amputated and he spent three months in hospital receiving treatment.

In his evidence, the plaintiff contended that the injuries arose as a result of the defendant's negligence in that it failed to take reasonable measures to fix an electrical fault which had occurred in its distribution system, knowing fully well the dangers associated with such a fault. The plaintiff contended that the defendant, as the sole distributor of electricity in the national grid, it should have exercised a high degree of maintenance and care of its assets.

The plaintiff stated that he was claiming the sum of US$60,000 for pain and suffering because he endured a lot of pain when his hand was being amputated and also for the wounds on his back, leg, head and right ear. The plaintiff stated that he suffered a great deal of pain as the electric current surged through his body. The plaintiff further claimed the sum of $160,000 for permanent disfigurement because the electrocution changed his whole life. He stated that his ambition was to become a soldier or policeman but his dream was shuttered by the injuries he sustained. The plaintiff indicated that he was now limited in the things he could do as a result of the amputation of his left hand. The plaintiff claimed a further sum of US$30,000 in respect of future medical expenses. The plaintiff did indicate the burn wounds he sustained to the court, and the court observed that indeed his left arm had been amputated from shoulder level.

It is noted that the plaintiff, in giving oral evidence in court, never adverted to or substantiated the particulars of negligence alleged against the defendant as pleaded in paragraph 5 of his declaration. No explanation was proffered for the departure from the pleaded particulars of negligence.

Under cross-examination by defendant's counsel, the plaintiff alleged two particulars of negligence which were never pleaded, namely:-

(1) Defendant was required to clear the grass and trees on the way – leave along the electricity line where plaintiff was electrocuted.

(2) Defendant was supposed to note that there was a low-lying cable on its electricity network and fix the hazard that had been created.

Under cross examination by the defendant's counsel, the plaintiff was confronted with the defendant's version of the cause of electrocution and the plaintiff persistently denied that the electricity conductor which electrocuted him was hanging two metres above the ground and that he deliberately handled the live conductor thereby precipitating a short-circuit fault to earth, hence the electrocution.

The plaintiff persisted with his denial of the defendant's version even when confronted with photographs depicting the position of the conductor which electrocuted him and the condition of the ground on the way-leave along the electricity line. The plaintiff persisted with his version that the conductor which electrocuted him was only 50cm above the ground and was covered in grass.

It was put to him that it was not possible for the electric conductor to have been covered by grass because this would have caused the circuit to trigger automatically in which event the conductor would not have been live at the time of electrocution.

The plaintiff closed his case without calling any further witness.

The plaintiff struck as a witness who was evasive and who could not accept basic factual scenarios presented by the evidence. An example of this is that the photographs where the electrocution occurred, which position was incidentally pointed out to the defendant by the villagers, showed that the conductor was two metres above the ground. There was no grass or shrubs covering the conductor as shown by the photographs.

Defendant's case

The defendant called its first witness, Mitchel Chiungwe. This witness testified that he was the lead artisan responsible for maintenance, control, and operation of the defendant's electricity networks, which covers Senale sub-station which feeds the Hozheri village area where the plaintiff was electrocuted.

Mr Chiungwe's evidence was that on the afternoon of the 14th of December 2015 he received a telephone call from a late Member of Parliament, Mr Chivamba, who informed him that there had been an accident involving the electrocution of the plaintiff. Mr Chiungwe abandoned the repair work he was engaged in and drove to the sub-station which fed the Hozheri line. Upon arrival at the substation he observed that the Auto-Recloser Circuit Breaker had not tripped, meaning that the particular line was live. He manually tripped the circuit breaker to ensure that the point at which the accident was safe. He then drove to the scene of the electrocution and the exact spot was identified to him by villagers. The plaintiff had already been taken to hospital. At the scene of the accident, Mr Chiungwe made the following observations:-

1. There was an electric conductor that was hanging roughly two metres above ground.

2. He observed an insulator and insulator pin which were supposed to be sitting on the cross-arm of the electricity pole which had been damaged, causing the conductor to fall off the cross arm, leaving it hanging two metres from the ground.

3. The ground at the scene of the accident was wet and the villagers indicated that there had been a heavy storm the previous night.

4. The wooden pole which was carrying the conductors and the cross-arm was damaged from the top and there was no doubt that the damage had been caused by a lightning strike.

5. There was a dark patch on the conductor, being the point of contact between the plaintiff and the conductor, and the ground beneath the point of contact had burnt grass indicating the point where the electricity was discharged into the ground during the electrocution.

The witness explained that the electricity network protection system had three components, namely, the Auto Recloser Circuit Breaker, the current transformers, and the Relay. The system is designed to protect against fault current, current overload, and phase faults. The Auto Recloser Breaker operates by tripping when conditions for a trip are achieved and recloses. The tripping and opening operation is so fast that it takes 0.2 to 0.5 seconds. If the conditions for a trip persist beyond the closing and opening operation, the circuit breaker trips permanently to stop the current from flowing through that particular conductor.

Mr Chiungwe further explained that the plaintiff created the conditions for a trip of the circuit breaker when he had direct contact with the conductor and his body created a direct contact between the conductor and the earth.

The Auto Recloser Circuit breaker protection system is designed in such a way that if the contact is temporary or intermittent, it trips and re-closes on its own, hence, the plaintiff was released and managed to get off the conductor when the circuit breaker opened in the course of that fast operation. The circuit breaker was closed after the plaintiff was released and fell to the ground, hence, the conductor was live even after the plaintiff's electrocution.

Mr Chiungwe disputed the plaintiff's version of how he got electrocuted by pointing out the following factors;

(1) A live conductor cannot be covered by grass and shrubs as such objects create the conditions for a trip and the line would have tripped upon the conductor getting in contact with the grass and shrubs.

(2) The conductor which electrocuted the plaintiff is high voltage conductor carrying 11,000 volts. A raincoat coming into contact with such a conductor would have burnt on the plaintiff as the raincoat material is highly conductive.

(3) The way-leave along the electricity line was cleared of grass and shrubs a few months prior to the electrocution and the photographs of the scene of the accident show that the conductor was hanging two metres above the ground and there were no shrubs or bushes covering the conductor.

Mr Chiungwe testified that the lightning strike which caused the conductor to fall off the cross-arm did not trigger a trip of the circuit breaker because lighting adds more voltage to the current carried in the conductor and the protection system is designed to absorb such over-voltages without causing a trip.

According to the finding made by this witness the factual cause of the electrocution was the plaintiff's conduct in deliberately handling the conductor which was hanging two metres above the ground after the lighting had struck the wooden pole on which the conductor was sitting....,.

The second witness for the defendant was Engineer Martin Kanyepe who is the senior engineer responsible for the area where the incident occurred.

He testified that his role was to carry out an investigation into the circumstances leading to the electrocution. He travelled to Hozheri village, on 15 December 2015, to make observations at the scene and to interview witnesses. He was shown the scene of the incident by villagers and he took some photographs....,.

The witness corroborated Mitchel Chiungwe on how the network protection system operates.

From his investigations, Engineer Kanyepe concluded that there was a deliberate handling of the electrical conductor which resulted in the plaintiff being electrocuted....,.

The plaintiff maintained, throughout the trial, that the defendant was negligent in that it failed to take notice of the fact that a fault had occurred in its system. The plaintiff averred that the defendant was exclusively responsible for electricity transmission and distribution, and, as such, where a fault occurred causing injury they should be held liable....,.

It is my view that the plaintiff's version of how the electrocution occurred is inherently implausible and not consistent with all the established facts.

The defendant led evidence from qualified persons who indicated that where a live electricity conductor falls off from the cross-arm on the pole and hangs at 50cm above the ground where it is covered by grass and trees this will trigger a trip of the circuit breaker as they become the direct link between the live conductor and earth, causing short-circuit to earth.

The plaintiff's account of how he got into contact with the live conductor is clearly not sustainable on the facts.

In Matambo v Mutsago 1996 (1) ZLR 101 (S)…, the Supreme Court stated the approach in evaluating the evidence where a witness makes an assertion that is mechanically impossible. McNALLY JA had this to say:

“However charmingly, smoothly, or impressively Mr Mutsago made these statements, the fact is that they are mechanically impossible. If a witness says he saw water flowing uphill, unaided by a pump, you do not judge his veracity by reference to his demeanor. You apply the law of physics.”

HB124-03 : EMMAH MUHAMBI vs STANLEY MUSENDO
Ruled By: CHEDA J

On 24 September 2003, the applicant, through an urgent chamber application, applied for custody and the terms of that order are:

“1. That custody of the minor child, Precious Paidamoyo Musendo, be and is hereby granted to the applicant with the respondent being accorded access on prior arrangement with the applicant.

2. That the Deputy Sheriff be and is hereby authorised and directed to remove the minor child from the respondent's custody and deliver it to the applicant forthwith.

3. That the respondent bears the cost of this application at an attorney and client scale.

Interim Relief Granted

4. That the applicant be and is hereby granted leave to immediately assume custody of the minor child, Precious Paidamoyo Musendo.

5. That the Deputy Sheriff be and is hereby directed to uplift the minor child and place it in the custody of the applicant.”

I granted the interim order on 25 September 2003. The matter then came for argument on 30 October 2003.

The parties were married under customary law and were blessed with one child, Precious Paidamoyo Musendo (female), born on 11 May 2001. In August 2001, the applicant secured employment in Bulawayo which necessitated her to move there leaving behind the minor child with its father.

The arrangement had been that the applicant would stay with the respondent's uncle, which she did, but, subsequently left due to some family misunderstandings which are irrelevant to the issue at hand.

The parties, however, came to live together.

In February 2003, the respondent ordered her to move out with the child - which she did. On 9 August 2003, the respondent approached her seeking custody. The parties would not agree and they ended up at Hillside Police Station. At the police station, the respondent advised the police that he only wanted to have custody of the child for a few days and this was mutually agreed to by the parties.

However, the respondent did not return the child as promised, but, instead, approached the Harare Magistrates' Court on 1 September 2003 seeking custody of the said minor child.

His application was however dismissed.

The applicant then approached this court for the relief referred to supra.

The respondent argues that his reason for taking the child is because the applicant has denied him access. Further, that she is a member of the Apostolic Faith Church whose doctrine does not subscribe to medical treatment.

To back up his story, he filed a “medical report” from a Dr B Madzima which reads:-

“To whom it may concern

Re: Precious Musendo, 2 and a half years

I can confirm that I am the medical practitioner of the above named since December 2002. I can confirm that I have seen her in May and in August 2003 with signs and symptoms of malnutrition, social neglect, and respiratory tract infection.

I can also confirm that on all occasions the father has been very supportive in terms of buying medication and bringing the baby for review.

To me, as it stands, the child seems to be doing very well in terms of weight for age, height for age etc and would definitely approve of whoever is currently looking after the child, serve for the two incidences mentioned earlier….,.

I make these statements sorely believing its true.

Yours sincerely

(Signed)

Dr B Madzima, MBChB”

I find that the parties were married under customary law and the applicant had custody of the child by consent of the respondent. The respondent unlawfully and deceitfully took the child from the applicant.

Counsel for the applicant has argued that I ignore Dr Madzima's letter.

I agree with his suggestion because it is clear that it was solicited by the respondent in order to strengthen his case.

Doctors are professional people who are expected to practice their profession without fear or favour. This is the hallmark of their profession and part of their ethics. A doctor should understand that his observations and opinion in a particular case will go a long way in helping the court in making a proper determination, and, as such, it is important that he remain neutral in his report. He should not be partisan to a party that has consulted him.

This practice, by some doctors, if allowed to continue, will no doubt shake the public's confidence in them.

SC03-09 : JESTINA MUKOKO vs COMMISSIONER GENERAL OF POLICE and MINISTER OF STATE SECURITY and ATTORNEY-GENERAL and COMMISSIONER OF PRISONS and MISHROD GUVAMOMBE
Ruled By: CHIDYAUSIKUCJ

Before concluding, I wish to make the following observation:I was advised, from the Bar, following my enquiry, that the applicant has not received proper medical examination despite Dr Frances Ann Lovemore's affidavit that the applicant should be examined in appropriate medical circumstances.Doctor Lovemore had this to say in paragraph 3 ...

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

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

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

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

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

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

3. US$187 being damages for contumelia.

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

The issues for determination were essentially two, namely:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unfortunately, this was not done.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It was thus pertinent to rebut that.

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

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

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

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

Appealed
SC01-21 : BERNARD MARANGE vs ZVIDZAI MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION AND PRESERVATION OF NATIONAL CULTURE AND HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, PATEL JA and BERE JA

This is an appeal against the whole judgment of the High Court setting aside the appointment of the appellant to the Marange chieftainship in 2016. It is a matter concerning the procedure to be followed in the appointment of chiefs in Zimbabwe pursuant to the advent of the current Constitution ...

Background

The substantive Chief Marange died on 6 September 2005. Two of his relatives acted in his place and stead following his death. Following a long and arduous selection process, the appellant was eventually installed as Chief Marange on 27 October 2016.

The first respondent challenged this appointment as having taken place irregularly and improperly. In particular, he averred that he was the people's preferred candidate for the position and that the second respondent (the Minister) had hand-picked the incumbent and imposed him on the people against their wishes.

The first respondent moved the court a quo to review the conduct of the Minister and to set aside the appointment of the appellant as Chief Marange. The appellant, together with the other respondents a quo, opposed the application on the basis that the court lacked jurisdiction to hear and determine the application by reason of the provisions of section 283 of the Constitution.

Judgment of the High Court

The court a quo rejected the point in limine taken by the respondents before it. It found that it did have the jurisdiction, by virtue of sections 26 and 27 of the High Court Act [Chapter 7:06], to inquire into the conduct of the Minister, as an administrative authority, and to ascertain whether that conduct fell within the law.

The court further found that the people chosen by the Minister to advise him on the selection process were not conversant with the customs and traditions of the Marange people.

The court took the view that the chieftainship dispute should have been resolved by the Minister in terms of section 283(c)(ii) of the Constitution. He should have referred the dispute to the Provincial Assembly of Chiefs to consider the matter and report back to him as provided by section 42(3) of the Traditional Leaders Act [Chapter 29:17]. Instead, he acted outside the law in accepting the recommendation of one of the commissions that had been illegally set up by him to identify a suitable candidate for the chieftainship. Consequently, he acted ultra vires the Constitution in appointing the appellant as Chief Marange.

As regards the first respondent's claim to the chieftainship, the court a quo found that the documents that he had produced did not substantiate his allegations. He did not produce anything to support his claim to be the people's choice. On the other hand, the court held that the first respondent had proved his case, for the setting aside of the appellant's appointment, on a balance of probabilities.

The court accordingly ordered that the appointment of the appellant, as the substantive Chief Marange, be set aside. Additionally, the appellant and the Minister were ordered to pay the costs of the application. In effect, the third respondent (the President) was entirely absolved of any responsibility for the Minister's unlawful conduct.

Grounds of Appeal and Relief Sought

The four grounds of appeal herein impugn the judgment of the court a quo on the following bases:

(i) The first is that the jurisdiction of the court to deal with chieftainship disputes was ousted by section 283 of the Constitution.

(ii) The second is that the dispute in this case arose when the first respondent challenged the appellant's appointment, and, it is at that point that the Minister should have referred the dispute for resolution by the President.

(iii) The third takes issue with the court, having found that the first respondent had not proven his case, but, nevertheless, granting the relief sought by him setting aside the appellant's appointment.

(iv) The fourth attacks the implied finding of the court to the effect that the appellant's appointment was not in accordance with the custom and practice of the people of Marange.

The relief sought by the appellant is that the appeal be allowed with costs and that the judgment a quo be set aside and be substituted with an order dismissing the application with costs.

The Governing Provisions

Section 280 of the Constitution recognises the institution, status, and role of traditional leaders under the Constitution, while section 281 underscores the principles to be recognised by traditional leaders. Section 282 spells out the functions of traditional leaders within their respective areas of jurisdiction.

Sections 285 and 286 of the Constitution provide for the establishment and functions of the National Council of Chiefs and Provincial Assemblies of Chiefs.

In terms of section 285(2), a Provincial Assembly of Chiefs must be established for each province by an Act of Parliament. By virtue of section 286(1)(f), one of the functions of a Provincial Assembly is “to facilitate the settlement of disputes between and concerning traditional leaders” within its Province.

The critical provision for consideration in casu is section 283 of the Constitution relating to the appointment and removal of traditional leaders. It is necessary to set it out in full as follows:

“An Act of Parliament must provide for the following, in accordance with the prevailing culture, customs, traditions and practices of the communities concerned —

(a) The appointment, suspension, succession and removal of traditional leaders;

(b) The creation and resuscitation of chieftainships; and

(c) The resolution of disputes concerning the appointment, suspension, succession and removal of traditional leaders; but —

(i) The appointment, removal, and suspension of Chiefs must be done by the President on the recommendation of the Provincial Assembly of Chiefs through the National Council of Chiefs and the Minister responsible for traditional leaders and in accordance with the traditional practices and traditions of the communities concerned;

(ii) Disputes concerning the appointment, suspension and removal of traditional leaders must be resolved by the President on the recommendation of the provincial assembly of Chiefs through the Minister responsible for traditional leaders;

(iii) The Act must provide measures to ensure that all these matters are dealt with fairly and without regard to political considerations;

(iv) The Act must provide measures to safeguard the integrity of traditional institutions and their independence from political interference.”…,.

Turning to the Traditional Leaders Act [Chapter 29:17], section 3(1) of this Act empowers and obligates the President to appoint chiefs to preside over communities inhabiting Communal Land and Resettlement areas.

In performing this function, the President is enjoined, by section 3(2), to give due consideration to the prevailing customary principles of succession, and, wherever practicable, to appoint a person nominated by the appropriate persons in the community concerned in accordance with those principles. In the event that such nomination is not made within two years after the chieftainship became vacant, the responsible Minister is then required, in consultation with the appropriate persons, to nominate a person for appointment as chief.

Section 3(3) of the Traditional Leaders Act enables the President, where he is of the opinion that good cause exists, to remove a chief from office. This power is subject to section 7 which prescribes the disciplinary procedures to be followed where a chief commits or is alleged to have committed a specific offence or act of misconduct.

Part IX of the Act provides for the establishment and functions of Provincial Assemblies and the Council of Chiefs.

In terms of section 35(1), there is constituted a Provincial Assembly for each province of all the chiefs of that province.

Section 35(2) requires every Provincial Assembly “to meet at least twice a year at such time and place as the Minister may from time to time determine.”

One of the principal functions of a Provincial Assembly, as stipulated by section 36(b), is “to consider and report on any matter which is referred to it by the Minister, the Council, or a member of such provincial assembly.”

Following exchanges with the Court, it was accepted, by both counsel, that section 283 of the Constitution does not constitute the actual Code that governs the appointment and removal of chiefs or the resolution of disputes in that connection.

What section 283 does is to enunciate the template to be applied in the formulation and implementation of that Code.

It is also common cause that the Traditional Leaders Act, duly modified so as to fully conform with the Constitution, provides the requisite legislative framework contemplated by section 283 of the Constitution.

Thus, even without having been exactly aligned to the Constitution, the Traditional Leaders Act makes it clear that it is the President who is vested with the power to appoint and remove chiefs from office and that he must do so in accordance with the prevailing customary principles of succession, following nominations by the local community and/or the responsible Minister.

To a significant extent, therefore, the provisions of the Traditional Leaders Act that I have alluded to are perfectly capable of being applied in accordance with the requirements of section 283 of the Constitution.

I am amply fortified in adopting this approach by having regard to paragraph 10 of the Sixth Schedule to the Constitution, which dictates the continuation in force of all existing laws to be construed in conformity with the Constitution.

Jurisdiction to entertain chieftainship disputes

As I have already stated, section 283 of the Constitution is not a substantive provision that impacts directly on the law governing the appointment and removal of traditional leaders. Rather, it declares what that law should provide in regulating, inter alia, the resolution of chieftainship disputes. Consequently, it cannot be construed, per se, as ousting the jurisdiction of the courts over such disputes.

At common law, the High Court enjoys original review jurisdiction. This jurisdiction is now codified in section 26 of the High Court Act [Chapter 7:06] which endows the court with the “power, jurisdiction, and authority to review all proceedings and decisions of all inferior courts of justice, tribunals, and administrative authorities within Zimbabwe.”

Section 27 of the High Court Act elaborates “the grounds on which any proceedings or decision may be brought on review” and includes “any gross irregularity in the proceedings or the decision.”

The powers of the court, on review of civil proceedings and decisions, are spelt out in section 28 which enables the court “subject to any other law, [to] set aside or correct the proceedings or decision.”

It is trite that Parliament is at large, subject to the Constitution, to curtail or oust the jurisdiction of any court. However, it is equally trite that any such ouster must be effected in clear and un-ambiguous terms.

In the present context, even if section 283 of the Constitution were to be regarded as a substantive provision, I am unable to discern anything in its language that might be construed, whether expressly or by necessary implication, to curtail or oust the review jurisdiction of the High Court.

By the same token, there is nothing contained in section 3 of the Traditional Leaders Act, being the relevant substantive provision currently in force, which might be taken as effecting any such ouster.

It follows from the foregoing that the court a quo was correct in adopting the stance that it was invested with the requisite jurisdiction to review the acts and conduct of the Minister, in his capacity as an administrative authority, on the recognised grounds of illegality, irrationality, or procedural impropriety.

More specifically, what is reviewable is not how the President exercises his discretion but whether those who formulate their advice to him acted on sound principle: see Rushwayo v Minister of Local Government & Anor 1987 (1) ZLR 15 (S)…,.; Chigarasango v Chigarasango 2000 (1) ZLR 99 (S); Moyo v Mkoba & Ors SC35-13; Munodawafa v Masvingo District Administrator & Ors HH571-15.

It further follows that the first ground of appeal, challenging the assumption of jurisdiction by the court a quo in a chieftainship dispute, as having been ousted by section 283 of the Constitution, is misplaced and cannot be sustained.

What remains in issue, however, is the decision made by the court, pursuant to the exercise of its jurisdiction, to set aside the appointment of the appellant as the substantive Chief Marange.

Appointment to substantive chieftainship

The court a quo proceeded on the basis that the commissions of inquiry established by the Minister were not provided for in the current Constitution or in the Traditional Leaders Act. One such Commission identified the appellant as a suitable candidate for the position of Chief Marange. This, according to the learned judge, offended section 283 of the Constitution. Both the Commission and the Minister acted ultra vires the Constitution. Their actions were nullities and therefore could not be allowed to stand.

The Minister was called upon to revisit the matter “properly guided by section 283 of the Constitution of Zimbabwe as read with section 42(3)(b) of the Traditional Leaders Act.”

In the event, the court was satisfied that the applicant (the first respondent herein) had proved his case on a balance of probabilities. It accordingly ordered that the appointment of the first respondent (the appellant herein), as the substantive Chief Marange, be set aside.

Both counsel are in agreement that the court a quo relied upon and applied the wrong provisions in setting aside the decision of the Minister and the appointment of the appellant.

As I have concluded earlier, section 283 of the Constitution is not directly applicable to the resolution of the dispute in casu.

As for section 42(3)(b) of the Traditional Leaders Act, which was referred to by the court a quo, there is no such provision in the Act. This provision simply does not exist.

It is clear, therefore, that the learned judge a quo mis-apprehended and mis-applied the law governing the appointment of chiefs. He consequently set aside the decision of the Minister and the ensuing appointment of the appellant, as Chief Marange, on the wrong legal basis.

Equally critically, it would appear that the court a quo opted to delve into the substantive merits of the respective positions advanced by the contesting parties.

The first respondent's case was that he was the people's preferred candidate for chieftainship and that the appellant had been hand-picked by the Minister and imposed upon the people of Marange against their wishes.

In support of his case, the first respondent tendered the supporting affidavits of nine other persons and two seemingly relevant documents. The court a quo rejected the first respondent's averments on the basis that he had failed to substantiate them and had produced nothing to support his claims.

In short, it was held that he had failed to prove his case.

The appellant's case was that the first respondent was disqualified for appointment as he had seriously violated certain cultural and customary practices. He therefore failed to meet the criteria to become a chief. As for himself, the appellant averred, that, at the third Commission of Inquiry, he was publicly selected as the only remaining candidate without any violations of the traditions, customs, and practices of the Marange clan. He defended his appointment as chief on the basis that he stood in the line of chieftainship of the clan, that he was the oldest surviving father of the clan without any customary or traditional infringements, and that proper consultations had been carried out with the clan leading to his election by the clan as its chief.

In weighing up these opposing positions, the court a quo commended the Minister's efforts in setting up the commissions of inquiry. However, the court found, that, the shortcoming in these efforts was that the people whom the Minister chose to drive the process were not in any way conversant with the customs, culture, and traditions of the Marange people.

In the event, the court found that the appellant had been irregularly appointed as the substantive Chief Marange and ordered that this appointment be set aside. However, having so concluded, the learned judge did not proceed to decree any corrective measure to rectify the irregularity. He simply left the parties to their own initiatives and devices.

What can be gleaned from all of the foregoing is the implied finding that the appellant's appointment, as Chief Marange, was not in accordance with the customs and practices of the Marange clan.

In this respect, therefore, there is some merit in the appellant's fourth ground of appeal, to the extent that the court itself was ill-equipped to venture into that particular field. In effect, the court appears to have overruled the decisions taken by the Minister and the President without having been possessed of the expertise or qualifications necessary to do so.

It is settled law that the courts should not take over the functions of an administrative authority and interfere with its actions or decisions by substituting them or setting them aside: see Affretair (Pvt) Ltd & Anor v M.K. Airline (Pvt) Ltd 1996 (2) ZLR 15 (S)…,.; Zimbabwe School Examinations Council v Mukomeka & Govhati SC10-20…,.

I would extend this broad principle to postulate that, in certain limited circumstances, it might become necessary and appropriate to invoke such judicial restraint, even where the administrative action or decision in question is shown to have been procedurally irregular. This might arise, for instance, where judicial interference would entail serious administrative disruption or result in some grave miscarriage of justice.

In any event, the general principle of judicial non-interference is not immutable and may be departed from in exceptional cases:

(i) Where the end result is a foregone conclusion and it would be a waste of time to remit the matter for corrective action;

(ii) Where further delay would prejudice the applicant;

(iii) Where the extent of bias or incompetence displayed is such that it would be unfair to force the applicant to submit to the same administrative jurisdiction;

(iv) Where the court is in as good a position as the administrative body or functionary to make the appropriate decision.

See Affretair (Pvt) Ltd & Anor v MK Airline (Pvt) Ltd 1996 (2) ZLR 15 (S)…,.; Gurta AG v Gwaradzimba N.O. HH353-13…,.; C.J. Petrow & Co (Pvt) Ltd v Gwaradzimba N.O. HH175-14…,.

In casu, I do not perceive any of the above exceptions as having been applicable to the circumstances before the court a quo....,.

It cannot possibly be said that the learned judge was sufficiently conversant with the requisite criteria for appointment to the Marange chieftainship, to wit, the prevailing customary principles of succession and the administrative needs of the Marange community (cf. section 3(2)(a) of the Traditional Leaders Act)....,.

The most competent body to which this matter should have been assigned, within the broad scheme of section 283 of the Constitution and the Traditional Leaders Act, would have been the Provincial Assembly of Chiefs responsible for the Marange community.

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT
Ruled By: FOROMA J

This matter was originally filed as court application for contempt of court and ancillary relief. BERE J…, referred the matter to trial.

At the pre-trial conference held before MAKONI J…, the issues were agreed upon as follows:

(1) Whether or not the first and second defendants are in contempt of court in respect of the order granted in HC2887/05 and confirmed in SC37/09, and, if so, the appropriate remedy; and

(2) Whether the defendants should pay the costs of suit on a legal practitioner client scale.

The burden of proof was agreed to be on the plaintiff.

The relevant factual background to this dispute can best be summarised as indicated herein below:

The plaintiff, a group of residents of Knowe Housing Development. Each member of the Group purchased an undeveloped Stand from the first defendant, a duly registered company, whose business was developing and selling residential Stands on the property owned by the first defendant which had obtained a permit from Norton Town Council, as the Local Authority, to develop a portion of a farm known as sub-division of Lot 2 of Knowe Hartley District as a housing project.

The permit obliged the first defendant to service the area concerned in order to provide tarred roads, proper drainage, reticulated water supplied to all Stands, and sanitary systems.

As a result of the plaintiff's membership's disgruntlement with the first defendant's failure to fulfil the terms of the permit, which the defendant had agreed to comply with when it sold the unserviced Stands to the plaintiff, they sued the first defendant in the High Court for specific performance.

GUVAVA J…, presided over the dispute and handed down the following order:

1. The first respondent be and is hereby ordered to fully service the residential area in Phase 1 of the Knowe Housing Development in Norton within 90 days of this order. In particular, the first respondent shall provide the following services:

(a) Ensure that reticulated water supplies are connected to all Stands;

(b) Ensure that sanitary systems are connected;

(c) Ensure that proper drainage systems are put in place; and

(d) Ensure that roads are properly tarred.

2. The first respondent shall pay the costs of suit.

It is common cause that the first defendant appealed the decision of the High Court to the Supreme Court and lost the appeal which was dismissed with costs.

Despite dismissal of its appeal, the first defendant did not comply with the High Court order.

Consequent upon the said default, the plaintiff instituted contempt of court proceedings against the first defendant and the second defendant, which is its Managing Director.

The contempt of court proceedings which the plaintiff instituted are the subject of this matter which the defendants defended.

The contempt of court proceedings were instituted as a court application which BERE J…, referred to trial for resolution; with the court application and founding affidavit standing as the summons and opposing affidavit standing as the appearance to defend.

Pursuant to the order of BERE J, referring the matter to trial, the plaintiff filed a declaration and the defendants filed a plea.

In their joint plea, the first and second defendants denied being in contempt of court and averred that the order the plaintiff sought had been over taken by events in that the defendants had already constructed infrastructure described in the declaration which was the subject of the High Court order of GUVAVA J.

It is clear from the defendants' plea that the defendants adopted the position, that, by the time that the plaintiff instituted HC2887/05 the infrastructure forming the subject of contempt of court proceedings was already in place thus suggesting there was nothing further to be done to comply with GUVAVA J's order.

This was mischievous, as, in essence, the defendants were clearly arguing that the court's judgement was ill-advised and would not be complied with.

That the defendants displayed contemptuous mischief is supported by the fact, that, before the trial of this matter, the parties filed a joint Statement of Agreed Facts in which the first and second defendants conceded, that, after the judgment of the Supreme Court, dismissing the defendant's appeal with costs, no further development work was done by the first defendant in respect of Knowe Phase 1 in terms of the order of GUVAVA J of the 12 September 2007.

As a result of the concession that no further construction/development work was done post the Supreme Court dismissal of the first and second defendant's appeal, the factual position that the defendants had not complied with the order of GUVAVA J became irrevocably established.

For this reason, the parties then agreed, in the Statement of Agreed Facts, to refer the only issue to trial as “whether or not non-compliance with the order of the High Court handed down by GUVAVA J was wilful and mala fide.

At the commencement of the trial, the duty to begin was agreed to be on the defendants as clearly the onus had shifted as a result of the filling of the Statement of Agreed Facts, namely, paragraph 3.

The trial accordingly proceeded with the defendants calling upon the second defendant.

I must say, the calling of the second defendant was not only ill advised but a clear demonstration by the defendants of their persistence with contempt.

This unrepentant attitude is clearly demonstrated by the fact that both defendants admitted the contents of a report prepared by an engineer, one Dr Diarra, which vindicated the findings and order of GUVAVA J. The said engineer prepared the report after an inspection in loco conducted by the said engineer and witnessed by the parties' legal representatives.

Dr Diarra's report, which was admitted by the defendants, highlighted the areas or aspects which GUVAVA J found and ordered as requiring attention in order for the defendants to complete servicing of Knowe Phase 1.

The defendants determined that they did not agree with the judgment of GUVAVA J hence their appeal against the said judgment. This they were entitled to do.

However, when their appeal was dismissed by the Supreme Court, it was incumbent upon them to abide and comply with the order of the High Court.

Any suggestion by the first and second defendants that there was nothing needing further attention despite confirmation of the High Court order by the Supreme Court, on appeal, was a contemptuous, wilful, and malafide disregard of a court order which remained extant.

The defendants' mala fides is clearly demonstrated by their plea wherein they plead that the judgment of GUVAVA J had in fact been overtaken by events that took place before instituting HC2887/05.

For these reasons, I dismiss, unreservedly, the evidence put forward by the defendants seeking to excuse their contempt as totally without merit and also a further demonstration by the defendants of their determination to persist with their contemptuous conduct.

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

IntroductionThe plaintiff claims a default judgment for sexual harassment. She is unrepresented.The matter appeared on the unopposed motion roll on 20 October 2021. It was one of several such appearances. In the past, the matter would be removed from the roll for one reason or other. The matter has had ...

Introduction

The plaintiff claims a default judgment for sexual harassment. She is unrepresented.

The matter appeared on the unopposed motion roll on 20 October 2021. It was one of several such appearances. In the past, the matter would be removed from the roll for one reason or other. The matter has had a long and turbulent history. The plaintiff says the wheels of justice have turned ever so slowly for her.

There can be no denying that.

She has been to this court. She has been to arbitration. She has been to the Supreme Court. She is back in this court. She strives for closure. Any lesser mortal would probably have given up. Plainly, the plaintiff is no lesser mortal. Her tenacity and fighting spirit have moved mountains. She is still fighting. This judgment only settles half the case. The other half still continues.

I shall explain.

Nature of Claim

The plaintiff has pleaded sexual harassment at the work place in 2002 to 2003. Then, she was employed by the second defendant. She alleges that sexual harassment of female employees at the second defendant's workplace was rampant. She says, as against herself, the first defendant was the sole culprit. He was the Chief Executive Officer. She was his personal assistant.

She says despite reporting him, the second defendant, through its President, was flippant, if not contemptuous.

Her claim is for USD500,000 [five hundred thousand United States dollars]. It is against both defendants.

Initially, they both defended vigorously. But, by and by, she barred the first defendant in default of a plea. That did not just happen. It was after sweat and blood. The details emerge later. But, having barred the first defendant she now seeks a default judgment as against him only.

As against the second defendant, the case continues. At the time of this judgment, it was poised for a pre-trial conference.

Details of the Claim

The sexual harassment was over some nine months. It started when she was still on probation. She got employed by the second defendant in September 2002. She got fired in July 2003. It was an unfair dismissal. The first defendant engineered it all. He schemed it. She had reported him for the sexual harassment. He took revenge. The charges were trumped up.

The sexual harassment took the following forms:

(i) Inappropriate touching;

(ii) Unwelcome offensive jokes;

(iii) Invitation, by innuendo, to an inappropriate sexual relationship;

(iv) Receiving offensive telephone messages;

(v) Receiving pornography on the computer;

(vi) An attempt to kiss by force, causing an injury on the thigh in the process of resisting.

On record, there are several electronic messages from the first defendant to her. One e-mail, in January 2003, at 12:16 hours, is worth reproducing. On it, a deliberately misleading subject caption was used, “Call from Mr Miller (Superior Holdings)”. The email goes:

“Rita,

I have used the above caption just in case. Please delete completely immediately after reading. Look at the time I am sending this note – just to show you I could not sleep before writing this note to you.

Rita, I love you very much and wish you could be mine.

When I am taking a bath with Clara I always pretend it's you; the torture is unbearable. It hurts me that when I touch your lovely hand you cringe and ask me to stop. Do I repulse you? I desperately need to kiss you.

Shamwari, if I do get dismissed, it will be because I would like to do whatever I can for the person I care for most - you.

Right now, I am under pressure to balance the budget of CZI. You have just completed your probation, and, according to CZI rules, you are not eligible for the general increase for permanent staff, but the small adjustment that is in your appointment letter. I am bending the rule – for you; please hold on tight to me – if we crash, we crash together.

I am awarding you the same percentage increase as everybody else. I am defending it against the treasurer this morning. Doing so will cost CZI an extra $3 million in employment and other costs for the three people involved. The others are lucky to be associated with you. This will wipe out the surplus we were going to make after selling the Land Rover. The treasurer had made his recommendations following the rule and I have asked Venek! ai to make the change before he comes for the final meeting this morning.

I feel guilty as it is no right to expropriate you from your husband, but, unfortunately…,. Please God help me on this one as it has been giving me sleepless nights.

You are the love of my love. I will do anything for you.”...,.

Amongst her pile of papers is a brief medical report from a general practitioner. There is also a more detailed one from a psychiatrist.

The sum total of these reports is that, as a result of the sexual harassment, the plaintiff suffered severe post-traumatic stress disorder. This condition manifested almost immediately after the abuse. She experienced recurrent involuntary and intrusive memories of the traumatic event. Her pain was acute, with chances of recovery rated as being very poor. Treatment would be extensive and indefinite. During treatment, which included counselling, the plaintiff would often meander and get distracted. She suffered physical and emotional pain, with scarcely suppressed anger. During the counselling sessions, she would lose track of her answers midway through and would ask that questions be repeated.

The psychiatric report notes that the psychological damage is widespread.

Her personality has changed significantly. Before the incident, she was engaging, outgoing, and loved reading. She had a good sense of humour.

All that is gone.

She experiences recurrent nightmares. Her sleep is broken most nights. That leaves her drained physically and mentally. She was pursuing a law degree. She has had to drop. She has lost all confidence in herself.

There was another kind of collateral damage.

She says her marriage broke up; largely because of the change in her personality. Furthermore, being out of employment, and, therefore, without a steady income, she had to sell her immovable property to finance medical bills, legal costs, and the general upkeep of her family.

All this was in the psychiatric report.

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Expert Evidence, Opinion Evidence and Toolmark Evidence re: Approach and the Limited Expert Knowledge of the Court

SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED Ruled By: CHITAKUNYE J

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD AND GORDON NGONIDZASHE MOYO Ruled By: KUDYA J

Appealed HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS Ruled By: CHATUKUTA J

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

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

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

HH104-09 : BSKY ENERGY (PVT) LTD vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ANOTHER Ruled By: BHUNU J

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

HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA Ruled By: MAKARAU JP

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

HH123-10 : SPORROW HAULIERS (PRIVATE) LIMITED t/a J & J TRANSPORT vs GILBERT MASVINGISE and FAXRIDGE (PRIVATE) LIMITED t/a MUKAHIWA HAULAGE Ruled By: KUDYA J

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

HH196-10 : MONDAY BOPOTO NYANDORO vs MINISTER OF HOME AFFAIRS and COMMISSIONER OF POLICE Ruled By: PATEL J

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View Appeal HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED Ruled By: KUDYA J

HH71-11 : NIGEL DAMIAN MORRIS vs CHIQUITA MORRIS and MASTER OF HIGH COURT Ruled By: MAWADZE J

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HB01-14 : COTIM TRADING (PVT) LTD vs ZIMBABWE POWER COMPANY t/a HWANGE POWER STATION Ruled By: MUTEMA J

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER Ruled By: MAKONESE J

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HHH185-15 : ITAI MOTSI vs THE STATE Ruled By: HUNGWE J and BERE J

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HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF Ruled By: MAFUSIRE J

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HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY Ruled By: MAKONESE J

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Appealed SC01-21 : BERNARD MARANGE vs ZVIDZAI MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION AND PRESERVATION OF NATIONAL CULTURE AND HERITAGE and PRESIDENT OF ZIMBABWE Ruled By: GWAUNZA DCJ, PATEL JA and BERE JA

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT Ruled By: FOROMA J

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAFUSIRE J

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SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

HH85-09 : MARTIN GONDOKONDO (in his capacity as the guardian of Leobah Gondokondo) vs TAKROSE BUSES (PVT) LTD AND GORDON NGONIDZASHE MOYO
Ruled By: KUDYA J

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

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

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

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

HH104-09 : BSKY ENERGY (PVT) LTD vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ANOTHER
Ruled By: BHUNU J

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

HH124-09 : MAXWELL TAWODZERA AND MARGARET TAWODZERA vs DANNY MASUKUMA
Ruled By: MAKARAU JP

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

HH123-10 : SPORROW HAULIERS (PRIVATE) LIMITED t/a J & J TRANSPORT vs GILBERT MASVINGISE and FAXRIDGE (PRIVATE) LIMITED t/a MUKAHIWA HAULAGE
Ruled By: KUDYA J

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

HH196-10 : MONDAY BOPOTO NYANDORO vs MINISTER OF HOME AFFAIRS and COMMISSIONER OF POLICE
Ruled By: PATEL J

HH125-10 : SNOCROSS INVESTMENTS (PVT) LTD vs IRVINES ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS
Ruled By: CHITAKUNYE J

HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

View Appeal
HH215-10 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PRIVATE) LIMITED
Ruled By: KUDYA J

View Appeal
HH281-10 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: KUDYA J

HH71-11 : NIGEL DAMIAN MORRIS vs CHIQUITA MORRIS and MASTER OF HIGH COURT
Ruled By: MAWADZE J

Appealed
HH86-13 : GOLDEN MILLION ENGINEERING (PVT) LTD vs METTALON GOLD ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE
Ruled By: KUDYA J

HB88-13 : MARIA MANOLAKAKIS vs ESTATE LATE DR JOHN J. MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER
Ruled By: MAKONESE J

HB01-14 : COTIM TRADING (PVT) LTD vs ZIMBABWE POWER COMPANY t/a HWANGE POWER STATION
Ruled By: MUTEMA J

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER
Ruled By: MAKONESE J

SSC77-14 : NKOSIYABO NDZOMBANE vs THE STATE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

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HH98-16 : VADAC PROPERTIES [PRIVATE] LIMITED vs CURE CHEM OVERSEAS [PRIVATE] LIMITED
Ruled By: MAFUSIRE J

HH103-15 : RICHARD MATTHEWS vs THE HONOURABLE MR JUSTICE A. EBRAHIM and UMESHKUMAR DWARKADAS KOTECHA and DHIRUBHAI MAGANLAL DESAI
Ruled By: ZHOU J

HB149-16 : MUNATSI SHOKO vs OLD MUTUAL ZIMBABWE LIMITED
Ruled By: MOYO J

SC30-19 : BRITISH AMERICAN TOBBACO ZIMBABWE vs JONATHAN CHIBAYA
Ruled By: GARWE JA, GOWORA JA and MAVANGIRA JA

Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

HHH185-15 : ITAI MOTSI vs THE STATE
Ruled By: HUNGWE J and BERE J

HH189-15 : ELTON NYABUSHA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY
Ruled By: MATANDA-MOYO J

HH25-09 : KWINDIMA FABIOLA vs MVUNDURA LOUIS
Ruled By: MAKARAU JP

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MAFUSIRE J

HH352-18 : N.R BARBER (PRIVATE) LIMITED vs ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED
Ruled By: MUZENDA J

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed
SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE
Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

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HH339-18 : KUDAKWASHE MURAPE and MABLE MURAPE vs MUCHANETA CHATAMBUDZA
Ruled By: CHIKOWERO J

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HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: UCHENA J

HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI
Ruled By: GUVAVA J

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HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY
Ruled By: MAKONESE J

HB124-03 : EMMAH MUHAMBI vs STANLEY MUSENDO
Ruled By: CHEDA J

SC03-09 : JESTINA MUKOKO vs COMMISSIONER GENERAL OF POLICE and MINISTER OF STATE SECURITY and ATTORNEY-GENERAL and COMMISSIONER OF PRISONS and MISHROD GUVAMOMBE
Ruled By: CHIDYAUSIKUCJ

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

Appealed
SC01-21 : BERNARD MARANGE vs ZVIDZAI MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION AND PRESERVATION OF NATIONAL CULTURE AND HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, PATEL JA and BERE JA

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT
Ruled By: FOROMA J

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J