I am bound by all decisions of the Supreme Court on points of law.

Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in  light of the law handed down by the Supreme Court.

The doctrine of stare decisis applies to points of law and not to factual disputes.

The two cases cited by Mr Chaskalson, namely, J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932), were concerned with the constitutionality of statutory provisions that permitted voting by absentee voters such as soldiers serving abroad. The basis of challenging the constitutionality of the statutes providing for the absentee voters was that they violated the secrecy of the ballot guaranteed by the State Constitution, Article VI section 6.

Section 6 of Article VI declared that all elections by the people shall be by ballot, and all elections by the General Assembly shall be viva voce….,.

The contention, which was dismissed in the above American cases in respect of which the above cited passages were made, was that statutes allowing absentee votes would of necessity lead to the identification of the voter, thereby violating the secrecy of the ballot guaranteed by the Constitution of the State of North Carolina. The ratio decidendi of the court, in dismissing the challenge, was that the impugned statutes, by allowing voters to vote by postal ballot, did not compel voters to disclose their votes leading to a breach of their right to voting in secrecy. The courts held that the impugned statutes simply provided the voter with a choice either to vote secretly by presenting himself or herself at the polling booth or vote by postal ballot if he so wished, thereby compromising the secrecy of his or her vote. The court held, in both cases, that a secret ballot is not compulsory so far as the voter is concerned, for the statute provides that the ballot may be deposited for the voter by the Registrar or by one of the judges of the election or by the voter himself if he so chooses.

I wish to make the following observations regarding the above cases.

The judgments cited above are judgments of foreign courts. They are not binding but they are persuasive. The higher the courts are in their jurisdictions the more persuasive are their judgments. The cited judgments are not from the highest courts in North Carolina.

The second observation I wish to make is that the courts in the cited cases were interpreting statutes in their jurisdictions. They were not making pronouncements on general jurisprudential principles.

When interpreting statutes, courts are guided primarily by the wording and the context of the statutes. A court should not simply translocate one court's interpretation of a statute in that court's jurisdiction to an interpretation of a statute differently worded in its own jurisdiction.

In the above judgments, the courts of North Carolina were interpreting Article VI section 6 of the Constitution of North Carolina, which provided that:

"In all elections by the people, the vote shall be by ballot, and, in those by the Legislature, it shall be viva voce."

The courts, in both J Jenkins v State Board of Elections of North Carolina & Ors 180 NC 169 (1920) and State ex rel. Hutchins v Tucker et al 106 Fla 905 (1932) interpreted Article VI section 6 as conferring a right to vote in secret, which can be waived. They ascribed this meaning to Article VI section 6 despite the use of the peremptory word "shall" in the section. I have some doubts about the correctness of this interpretation.

Be that as it may, I accept the conclusion in those two cases that where a Constitutional provision confers on the voter the right to vote by secret ballot that right is intended to protect the voter and the voter has the right to waive that right without violating the secrecy of the ballot.

I also accept the proposition that public policy requires that the veil of secrecy shall be impenetrable unless the voter himself voluntarily determines to lift it: see also Boyer v Teague 106 NC 625; McRary on Elections 3ed…,; and Crolly Con. Lim. 7Ed…,.

I note with interest that the applicant did not find it necessary to discuss the Zimbabwean case of Pedzisa v Chikonyora 1992 (2) ZLR 445 (S) even though the respondents had placed heavy reliance on the same.

It is a judgment of the Supreme Court of this country, and is, therefore, binding.

The two applicants herein were parties, together with 77 others, in a matter that was adjudicated by the Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007.

The Tribunal gave its judgment in favour of the applicants on the 28th of November 2008. They now seek an order for the registration of the decision of the Tribunal for the purposes of its enforcement in Zimbabwe....,.

In South Africa, the procedure for and scope of recognition proceedings are lucidly expounded in JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…, as follows:

“…, the present position is that a foreign judgment is not directly enforceable in South Africa; but, if it is pronounced, by a proper court of law, and certain requirements are met, any determination therein (for example of a party's rights or status) will be recognised and the judgment will in fact found a defence of res judicata if it would have founded such a defence had it been a South African judgment. In addition, an authenticated foreign judgment constitutes a cause of action, and, as such, is enforceable by ordinary action in a South African court, including, where appropriate, an action for provisional sentence or for a declaratory order or for default judgment.

A South African court will not pronounce upon the merits of any issues of fact or of law tried by the foreign court and will not review or set aside its findings though it will adjudicate upon a 'jurisdictional fact' establishing international competency.”

The general requirements for recognition and enforcement of foreign judgments are set out in JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,. These requirements were adopted and applied by the Appellate Division in Jones v Krok 1995 (1) SA 677 (A)…, and in Purser v Sales 2001 (3) SA 445 (SCA)…,.

In Jones v Krok 1995 (1) SA 677 (A), CORBETT CJ summarised these requirements as follows:

“As is explained in Joubert…, the present position in South Africa is that a foreign judgment is not directly enforceable, but constitutes a cause of action and will be enforced by our Courts provided:

(i) That the court which pronounced the judgment had jurisdiction to entertain the case according to the principles recognised by our law with reference to the jurisdiction of foreign courts (sometimes referred to as 'international jurisdiction or competence');

(ii) That the judgment is final and conclusive in its effect and has not become superannuated;

(iii) That the recognition and enforcement of the judgment by our Courts would not be contrary to public policy;

(iv) That the judgment was not obtained by fraudulent means;

(v) That the judgment does not involve the enforcement of a penal or revenue law of the foreign State; and

(vi) That enforcement of the judgment is not precluded by the provisions of the Protection of Businesses Act 99 of 1978, as amended.”

In the present matter, counsel have not referred me to any Zimbabwean case authority on the subject, either following or deviating from the South African position, and I have been unable to readily locate any.

I accordingly take the view, pursuant to the provisions of section 89 of the Constitution governing the law to be administered by our courts, that our common law position is ad idem with the common law of South Africa as stated in the authorities cited above and that it has not been overtaken or significantly modified by local statute.

What constitutes public policy in any given country is a matter that eludes precise definition.

The notion is clearly not immutable and must perforce vary with time, place, and circumstance, in tandem with changing social mores. Antecedent case authorities are obviously highly persuasive but may not always be germane or decisive.

I, however, in passing, would urge the lawmakers to have a look at Rule 63 with a view of removing the unfairness to those litigants who file their applications for rescission within thirty days as is the case here.

Rule 63 may be amended to distinguish between procedural steps over which an applicant has control, like the issue and service of the application, and steps over which he has no control, like dates of hearing, postponements, etc – Fisher v Commercial Union Assurance Co. of SA Ltd 1977 (2) SA 449 (C); Peters v Union and National South British Insurance Co. Ltd 1978 (2) SA 58 (D) and Tladi v Guardian National Insurance Co. Ltd 1992 (1) SA 76 TPD.

Counsel for the respondent's submissions are in line with decisions in some South African cases – Fisher v Commercial Union Assurance Co. of SA Ltd 1977 (2) SA 499 (C); Peter v Union and National South British Insurance Co. Ltd 1978 (2) SA (D) and Tladi v Guardian National Insurance 1992 (1) SA 76 TPD.

Counsel for the respondent based his submission that the Supreme Court may overturn my findings mainly on the basis of the contravention of section 4(1)(a)(i) of the Exchange Control Regulations S.I.109 of 1996.

He fell into the error of giving evidence on the manner in which the auction system of foreign currency operated in his heads of argument. This was not adduced during the trial or in the respondent's opposing affidavit. It was grounded in speculation. He speculated that payment would be made in Zimbabwe. The respondent's submissions that are based on the Exchange Control Regulations are misplaced for two reasons.

Firstly, they are based on speculation, and, secondly, they seek to attack comments that I made after I had already determined the matter on the facts and on the issues that were fully ventilated during the trial. The comments I made mero motu, on the possible application of the Exchange Control Regulations and the par delictum rule, were raised without affording counsel the opportunity to present argument – were orbiter dictum. They were not the ratio decidendi of my judgment. Raising them in the present matter, at the eleventh hour, is further proof that the respondent is hard-pressed to attack the judgment granted in favour of the applicant on the basis of the evidence adduced during the trial.  

Accordingly, it is ordered that -

1. The applicant be and is hereby granted leave to execute upon the judgment by this Honourable Court in Branson Marketing (Private) Limited v National Blankets Limited handed down on 7 November 2007 under case number HC4807/06 pending appeal.

2. The applicant shall, prior to executing upon the judgment, deposit with, and to the satisfaction of the Registrar of the High Court, a bond of security de restituendo.

The respondent conceded that it was bound by the decision in Zimbabwe Revenue Authority & Anor v Murowa Diamonds (Pvt) Ltd SC41-09.

Counsel for the applicants has sought reliance on a South African authority on the issue before me. Counsel for the respondent submitted that South African authorities are merely persuasive on our courts – they are not binding..,.

The only saving grace is that the minority judgment by TROLLIP A.R. is instructive and was quoted with approval by GILLESPIE J in one of the few Zimbabwean authorities on the issue in question.

THE ALLEGED DEFECT IN THE CERTIFICATE OF URGENCY

It is clear that in raising the alleged defect in the certificate of urgency counsel for the respondents was being guided by the ratio in Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H)..., and many other decisions from this court which felt bound by the decision in that case.

It will be noted that there has been a divergent of opinion in this court as regards the decision in Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H). Basically, two schools of thought have emerged. Some Judges of this court feel very strongly that the decision in Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H) was a majority decision by two Judges of this court, and, therefore, binds single Judges of this court. In this regard KUDYA J remarked as follows –

“The case of Chafanza was made by a panel of two judges of concurrent jurisdiction with me. In line with the principle of stare decisis, a single judge is bound by the determination made by a panel of two or more judges of concurrent jurisdiction. To comply with the Rules of Court, as interpreted in Chafanza's case, the Attorney General should have utilized the services of a legal practitioner from outside his office to certify the certificate of urgency. Mr. Mutangadura has failed to persuade me to depart from the ratio decidendi in Chifanza's case. Being the deponent in the founding affidavit he basically raised a certificate of urgency for himself. His actions were improper and in direct conflict with the principle set out in Chafanza's case.” See The Attorney General of Zimbabwe vs Chiriga Estates and Ors HC659/10...,.

PATEL J, in African Consolidated Resources PLC & Ors vs Minerals Marketing Corporation of Zimbabwe & Ors HC2238/10, adopted a slightly different approach from KUDYA J. The learned judge acknowledged that the certificate of urgency before him was improper and undesirable, but, nevertheless, held it was not fatally defective. PATEL J appears to have adopted a more cautious approach in following the ratio in Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H).

In contrast, CHATUKUTA J adopted a completely different approach in the case of Route Toute BV & Three Ors vs Sunspun Bananas (Pvt) Ltd & Anor HH27-10..., when she ruled that she was not bound by the decision in Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H). The learned Judge reasoned, inter alia, as follows -

“Rule 242(2) simply prescribes that where an applicant is legally represented in an urgent chamber application, the application must be accompanied by a certificate from a legal practitioner supporting the urgency of the application,..,; the decision in the Chafanza case is not binding....,..” ...,. 

With due deference to my brother KUDYA J, I hold a different view of the Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H) case, and my conviction is that that case is not a majority decision. I am more inclined to concur with the position adopted by CHATUKUTA J for the reasons which I will hereunder expand on.

WAS THE DECISION IN CHAFANZA A MAJORITY DECISION?

On the face of it, it would seem that the Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H) decision was a majority decision because of the indication on the face of the judgment that NDOU J concurred with CHEDA J. However, a closer look at the judgment shows that this was an urgent chamber application which CHEDA J had the privilege of hearing as a single sitting judge of this court. The head-note of this case, as reported, makes this position beyond reproach. There is no indication or suggestion that NDOU J sat with CHEDA J in hearing this urgent application. If my observation is correct (which I am certain it is) it may not have been proper for NDOU J to have concurred with CHEDA J in a case which he did not sit. It is imperative that in a civil matter before a judge can enjoy the privilege of concurring with, or dissenting from, the decision of a fellow judge of concurrent jurisdiction, that judge must have sat together with the other judge in the hearing of the matter. This situation is different from criminal reviews where judges are statutorily empowered to review matters sitting as single judges; if need be, write review judgments and then seek the views of another judge of concurrent jurisdiction. This approach in criminal matters is specifically provided for in terms of the High Court Act, and so is the approach in handling civil matters.

In as far as the adjudication of civil matters is concerned the relevant section of the High Court Act itself provides as follows -

“3 Composition of the High Court

Subject to section four, the High Court shall be duly constituted-

(a) For the purpose of exercising its original jurisdiction in any civil matter, if it consists of one or more judges of the High Court;

(b) ...,.

(c) ...,.

(d) ...,.

4. Decision of High Court

When more than two judges of the High Court are sitting together the decision of the majority shall be the decision of the High Court.” ...,.

It is quite clear to me that in order to bring about a majority decision in the Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H) case the two judges of the High Court must have sat together to hear the matter. Only then would their decision have constituted a majority decision.

There is also another aspect to this case that seems to confirm that CHEDA J did sit alone in the hearing of this case. Order 32 Rule 244 of the High Court of Zimbabwe Rules, 1971 reads as follows -

“244. Where a chamber application is accompanied by a certificate from a legal practitioner in terms of para (b) of subrule (2) of Rule 242 to the effect that the matter is urgent, giving reasons for its urgency, the Registrar shall immediately submit it to a judge who shall consider the papers forthwith. Provided that, before granting or refusing the order sought, the judge may direct that any interested person be invited to make representations in such manner and within such time as the judge may direct, as to whether the application should be treated as urgent”...,.

It is not accidental that both the cited Rule and its proviso specifically refer to a judge. This is consistent with the common practice in the High Court that urgent applications are normally handled by single sitting judges.

If one would want to depart from the established practice and invite another judge of the High Court to sit with him/her in hearing an urgent chamber application one can safely do so, but this would be in extremely rare situations. However, there is no indication that this is what happened in the Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H) case. Really, the non-sitting of NDOU J in hearing the Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H) case cannot, and should not, be a subject of speculation. It is clear that the judge did not have the privilege of sitting in this matter. If this argument is accepted (which I am convinced it should be) then the decision in Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H) cannot, by any stretch of the imagination, be regarded as a majority decision. It remains the decision of that of a single sitting judge, and, as such, assumes its persuasive value and not a binding one.

This matter was argued before me on 25 October 2010.

Counsel for both the applicant and the respondent undertook to furnish me with authorities for the arguments advanced on behalf of both litigants. Unhappily, counsel did not act on their undertaking with the result that the authorities filed by counsel for the respondent was only availed on 11 November 2010. To date, I have not received any from the applicant's counsel, and, as a result, this judgment will be prepared without the benefit of those authorities.

In other cases, other than murder, the defence of provocation operates merely to mitigate sentence.

In murder cases there is a two-stage approach. The first stage is to decide whether X had intention to kill when he or she reacted to the provocation. If X did not have intention to kill, X will not be convicted of murder but only of culpable homicide. If X had intention to kill, then the court will proceed to the second stage which is to decide whether X lost his or her self-control and killed intentionally in circumstances where even the reasonable person, faced with this extent of provocation, would also have lost self-control. If X did lose his or her self-control and the reasonable person would have done likewise, X will have a partial defence and will be found guilty of culpable homicide and not murder. (In South Africa, on the other hand, if X killed intentionally, X will be found guilty of murder and the provocation will only act in mitigation of sentence).”

This is the approach that was adopted in S v Tenganyika 1958 R&N 228 (FSC) and S v Nangani 1982 (1) ZLR 150 (SC). S v Nangani 1982 (1) ZLR 150 (SC), which has a closer bearing to the present case, the appellant and the deceased had lived together for two years and a child had been born from the union. They subsequently separated. When the appellant went to look for the deceased he found her sharing a blanket with a man outside the hut. When the appellant asked who the man was, the deceased whispered something to the man who then ran away. The appellant pursued the man and returned to where he had left the deceased. On his way back he met the deceased who started to run away. The appellant, who was armed with a rifle, then shot and killed the deceased. The appellant was convicted of murder with no extenuating circumstances. The conviction was set aside on appeal and substituted with culpable homicide. This is what FIELDSEND CJ had to say with regard to the defence of provocation..,-

“In Tenganyika v R (supra) the Federal Supreme Court, albeit to some extent obiter, considered a different approach to the problem, perhaps best summarized at page 245 of BURCHELL and HUNT as follows-

“Where the charge is one of murder, and there is evidence of provocation, it was held that two separate inquiries must be made. First, was intention to kill present? In making this inquiry, account must be taken of all the facts – provocation, intoxication, and any other eccentricity or abnormality the accused may have had. And since the test for intention is subjective, at this stage provocation will be considered subjectively. If the court is left in doubt as to whether the intention to kill was present, the accused could, at most, be convicted of culpable homicide. On the other hand, if the court is satisfied that the intent to kill was proved, the Federal Supreme Court took the view that a second inquiry must be made, namely, whether the “provocation which the accused received was sufficient to warrant a verdict of culpable homicide despite the fact that the killing was intentional.” On this point, TREDGOLD CJ held the test to be objective 'whether the accused was so provoked that, in the circumstances, a reasonable man would have lost his self-control.'”….,.

The learned CHIEF JUSTICE did not, of course, say that where an intention to kill has been established an accused can escape conviction for murder by showing merely that in the circumstances a reasonable man would have lost his self-control. Clearly, there would have to be some evidence (leaving aside the question of onus) that the accused himself lost his self-control. As he said of p237-

“…, to suggest that provocation is only a defence when it excludes the intention to kill is to narrow its limits unwarrantable…, it is not difficult to envisage circumstances in which it might properly be held that the accused had been provoked beyond endurance and to a point when any ordinary person would have been deprived of his self-control and acted in the same manner.”

The question is what is meant by loss of self-control, and how that may differ from a lack of intention are separate matters. As LORD DIPLOCK indicated in Phillips v R (1969) 53 Cr App R 132…,-

“A loss self-control is not absolute but is a matter of degree: there are many intermediate stages between icy detachment and going beserk. And as SCHREINER JA said in Krull's case (supra) at pages 398-99:

'That acts done after a man has lost control of himself may still, in a sense, be said to be intended is no doubt true. But also, it may fairly be, and is, said that such acts are not really intended…,. Whether one says that a provoked man loses the power of self–control or becomes unable to form the intention to kill seems to me to be substantially a question of the choice of words. Either form is probably only a roughly approximate description of the actual mental processes. Legal systems can only attempt by one approach or another to give effect to the basic idea which is that the provoked person may have been so upset that the mental element requisite for murder may not have been present.'

I will now turn to consider the second issue relating to the offer letter.

The applicant contends that the offer letter does not entitle the respondent to take the law into his own hands and occupy the farm without the consent of the applicant or a court order.

What comes to mind is the question posed by CHIDYAUSIKU CJ in Nyasha Chikafu v Dodhill (Pvt) Ltd &  2 Ors SC28-09 which is -

“Can unlawful occupation constitute a defence to a claim for mandament van spolie?”

After posing the above question, CHIDYAUSIKU CJ continued with the following remarks -

“It is quite clear that the authorities are divergent on this issue. One line of authorities, which includes judgments of the High Court of Zimbabwe, supports the contention that unlawful occupation can be a defence; while other authorities that include High Court of Zimbabwe judgments as well, are to the effect that unlawful occupation is irrelevant. Given this situation, whichever party lost in the High Court had prospects of success as its contention is supported by a line of cases.”

PATEL J in Forrester Estate (Pvt) Ltd v MCR Vengesayi & the Minister of Lands in the Office of the President and Cabinet HH19-10..., was of the view that the respondent in that matter, who is in the same situation as the respondent in casu, had minimal prospects of success. He said the view expressed by CHIDYAUSIKU CJ in Nyasha Chikafu v Dodhill (Pvt) Ltd & 2 Ors SC28-09..., were made orbiter and that it cannot be relied upon to overrule the decision of the full bench of the Supreme Court in Botha & Anor v Berret 1996 (2) ZLR 73 (S) of 79 which enunciate the traditional requirements for the grant of a spoliation order.

With the greatest of respect to PATEL J, I am of the view that the respondents have prospects of success on appeal. The judgments of this court regarding spoliation have sent divergent views to litigants. The issue is now before the Supreme Court for the court to make a pronouncement on the various conflicting judgments of the court. The judgments which support the respondents' position make very good reading. See Konrad Van der Merwe v Nixon Chirinda & 2 Ors HC3217/07; Top Crop (1976) Pvt Ltd & Anor v Minister of Lands, Land Reform and Resettlement & Anor HH74-09; and Andrew Roy Ferera & Anor v Bessie Nhendera HC3995/08. In view of that the best approach, in the circumstances, would be to await the Supreme Court decision which might go either way.

Both parties had made preparation for the 2009/2010 farming season. They are both likely to suffer some prejudice. In view of my finding regarding prospects of success the balance of convenience favours that the first respondent remains on the farm pending the determination of the appeal. Accordingly, I make the following order -

1. The application is dismissed.

In PTC v Mahachi 1997 (2) ZLR 71 (H), CHATIKOBO J chose to follow Phiri & Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (1) ZLR 45. In Kudinga v Dhliwayo & Anor HH22-08 MAKARAU JP…, added her voice to those eminent judges who before her had expressed the fervent calls for clarity in the law relating to the suspension of judgments from statutory tribunals or courts of inferior jurisdiction and for the Supreme Court to revisit its decision in Phiri & Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (1) ZLR 45.

I respectfully agree.

I have been urged by counsel for the applicant to exercise my discretion and right a wrong that has been alleged to have been committed against the applicant. This submission is premised on the view that the noting of the appeal automatically suspended the operation of the order appealed against.

I am aware of the contrary interpretation by the Supreme Court in Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 where it came to a different conclusion regarding the same issue.

In his heads of argument, in support of this application, the applicant has raised a number of legal issues and cited several judgments of this Honourable Court tending to lend credence to his interpretation of those issues.

The applicant gives the impression that this court has been consistent in its pronouncements in various land cases and that the court has generally granted applications of this nature. The correct position, however, is that there have been a number of conflicting judgments emanating from this court with some judges favouring the approach that the applicant advocates to be the correct one and other judges begging to differ.

In the same vein, I do not think that the decision in the Militala N.O. & Others v Zimbabwe Textile Workers Union & Others SC67-11 case can be construed to support the applicant's position. In that case, an appeal against the decision of this Court in Case No. HC2540/11 was allowed and it was ordered that the provisional order for judicial management of the applicants “remains of full force and effect until discharged in terms of the law.”

The applicants' counsel dismissed the Kuvarega v Registrar-General & Anor 1998 [1] ZLR 188 [H] case on the basis that it was wrongly decided.

I did not agree.

Section 25 of the Civil Evidence Act [Chapter 8:01] provides as follows;

“(1) A court shall not take judicial notice of the law of any foreign country or territory, nor shall it presume that the law of any such country or territory is the same as the law of Zimbabwe.

(2) Any person who, in the opinion of the court, is suitably qualified to do so on account of  his knowledge or experience shall be competent to give expert evidence as to the law of any foreign country or territory, whether or not he has acted or is entitled to act as a legal practitioner in that country or territory.

(3) In considering any issue as to the law of any foreign country or territory, a court may have regard to -

(a) Any finding or decision purportedly made or given in any court of record in that country or territory, where the finding or decision is reported or recorded in citable form; and

(b) Any written law of that country or territory; and

(c) Any decision given by the High Court or the Supreme Court as to the law of that country or territory.

(4) The law of any foreign country or territory shall be taken to be in accordance with a finding or decision mentioned in paragraph (a) of subsection (3), unless the finding or decision conflicts with another such finding or decision on the same question.

(5) For the purposes of paragraph (a) of subsection (3), a finding or decision shall be taken to be reported or recorded in citable form only if it is reported or recorded in writing in a report, transcript or other document which, if the report, transcript or document had been prepared in connection with legal proceedings in Zimbabwe, could be cited as an authority in legal proceedings in Zimbabwe.” 

This issue will depend on whether the first defendant qualifies to give expert evidence on the Philippines' law on divorce as provided by section 25(2) of the Civil Evidence Act [Chapter 8:01]. She, in her evidence, said she is not an expert on Philippine law, and that concession settles the question whether or not expert evidence has been led on divorce laws of the Philippines.

The issue will, however, further depend on the acceptability of the reported decision in the case of Van Dorn  vs Judge Romilo G.R No L-68470  October 8, 1985, a decision of the Supreme Court of  the Republic of the Philippines, where MELENCIO-HERRERA J…., said;

“What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle, embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognised in the Philippines, provided they are valid according to their national law.”

Without going into detail, I am satisfied that this is a decision recorded and  reported in citable form as required by section 25(3)(a) of the Civil Evidence Act [Chapter 8:01] which I can have regard to in considering the Philippines' law on divorce and how it will affect the plaintiff's purported divorce in the Dominican Republic. It meets the criteria set by section 25(5) of the Civil Evidence Act [Chapter 8:01]. At this stage, I will, however, remain open to any evidence the plaintiff may lead to the contrary effect as envisaged by section 25(4) of the Civil Evidence Act [Chapter 8:01]. This, however, means the plaintiff must open her case and lead evidence.

It matters not that there is now in existence the case of Commercial Farmers Union & Ors v The Minister of Lands and Rural Resettlement & Ors SC31-10 upon which, on the merits, the applicant has prospects of success.

As this issue has been settled by the Supreme Court in a number of cases I find myself in total agreement with the words of NDOU J in Sai Enterprises (Pvt) Ltd v Girdle Enterprises (Pvt) Ltd t/a Quality Engineering Services (Pvt) Ltd HB62-09…, where he said:

Prospects of success on Appeal

HC1583/07

In this case, the court confirmed the provisional order and upheld the applicants' rights to the ownership of the property in terms of the earlier Supreme Court judgment and thus ordered eviction of the respondents. In terms of section 26(1) of the Supreme Court Act, a judgment of the Supreme Court is final and cannot be revisited. By refusing to move out, after the Supreme Court judgment, the respondents were arrogantly defying the judgment of the Supreme Court.

A closer examination of the grounds of appeal will show that they do not address any issues in respect of the part of the judgment pertaining to HC1583/07. This is notwithstanding the fact that the notice of appeal purports to be in respect of the whole of the consolidated judgment – see Rule 29(d) and Rule 29(e) of the Supreme Court Rules. There is also no relief that is sought in the prayer in respect of this part of the judgment.

There is no reason why the applicants should continue to suffer deprivation of this property and it is therefore just and equitable that the applicants be allowed to execute the judgment pending appeal.

HC2747/07

The court dismissed the respondents' application on the grounds that they were seeking relief on a matter which had already been dealt with by the Supreme Court and was therefore res judicata. A reading of the draft order under HC2747/07 will show that the respondents sought to alter paragraph by paragraph the relief that was granted to the applicants when the Supreme Court confirmed the provisional order by its judgment under SC140-05. By asking the High Court to deal with the matter for the second time, the respondents were asking the High Court to alter the judgment of the Supreme Court.

It is trite law that the High Court is bound by decisions of the Supreme Court – Ethnomusicology Trust v Deputy Chairman Labour Relations 1997 (2) ZLR 207 (H); Ex parte Jones 1929 CPD 134…, and HAHLO & KHAN – The South African Legal System and its Background.

In Ex parte Jones 1929 CPD 134…, GARDNER JP observed –

“Stare decisis is, to my mind, a good practical maxim. It is better that the law should be unsound historically than that it should be uncertain. Laymen, in their usual commercial transactions, wish to have a certain rule of law which they may be guided, and care not whether it can be supported by the niceties of legal argument. To them, what matters is that the law has been laid down in a certain way; once it has been so laid down they must follow it. But it concerns them not at all whether it is a correct interpretation of Voet or Averanius.”

Counsel for the applicants cited the decision of the SADC Tribunal in Mike Campbell (Pvt) Ltd and Ors v The Republic of Zimbabwe SADC (T) case 2/2007, which he submitted was in stark contrast to this Court's decision in Mike Campbell (Pvt) Ltd and Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement and Anor SC49-07.

It is not clear why this judgment was cited.  

Counsel for the applicants, in his submission, made the point that his clients reserve the right to benefit from the decision of the SADC Tribunal.

For the avoidance of doubt, I wish to make the following observations regarding the status and the relationship between this Court and the SADC Tribunal.

The legal system of Zimbabwe consists of the following courts in their order of ranking;

(i) At the base are the Small Claims courts, established in terms of the Small Claims Act [Chapter 7:12], and the local courts, established in terms of the Customary Law and Local Courts Act [Chapter 7:05].

(ii) Above these are the Magistrates Courts, established in terms of the Magistrates Court Act [Chapter 7:10].  

(iii) Above the Magistrates Courts are the Labour Courts and the Administrative Courts, established in terms of the Labour Act [Chapter 28:01] and the Administrative Court Act [Chapter 7:01], respectively.

(iv) Above the Labour Courts and the Administrative Courts is the High Court, established in terms of the High Court Act [Chapter 7:06].  

(v) At the apex of the legal system of Zimbabwean courts is the Supreme Court of Zimbabwe, established in terms of the Supreme Court Act [Chapter 7:13].

Section 26 of the Supreme Court Act [Chapter 7:13] provides as follows:

"26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.

(2) The Supreme Court shall not be bound by any of its own judgments, rulings or opinions nor by those of any of its predecessors."

The decisions of the Supreme Court are final. No appeal lies from the Supreme Court to any other Court.  No appeal lies to the SADC Tribunal from the Supreme Court. The decisions of the SADC Tribunal are, at best, persuasive but certainly not binding.

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.

Background

The appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. Their periods of employment ranged from 2007 and 2008 until January and April 2011 when their contracts of employment expired by effluxion of time.

Their contracts were not renewed because the project for which they were employed was finally wound up in 2011.

In July 2010, in a separate matter involving the respondent, its Workers Committee, and its employees, the first arbitrator (Nasho) ordered the payment of back pay, from 1 March 2009 to the date of the award, in line with the multi-currency system.

In conformity with that award, a Works Council Agreement was concluded, on 15 September 2010, to fix the back-pay due to all employees and the salary structure for non-managerial employees from 1 January 2010 onwards.

In a subsequent matter, the appellants in casu challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

The second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012.

On appeal, the arbitral award was upheld by the Labour Court. That decision is currently pending an application for leave to appeal to this court.

On 10 December 2012, following the rejection of their unfair dismissal claim by arbitrator Mugumisi, the appellants filed a further claim for the payment of arrear salaries and benefits.

The third arbitrator (Mambara) found in their favour and awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimant was retrenched.

The respondent, being aggrieved by that award, applied to the Labour Court for the review of the award.

Decision Appealed and Grounds of Appeal

The court a quo rejected two of the grounds of review mounted by the respondent.

It found, that, the Mambara award did not improperly seek to review or enforce the Nasho award. It also found, that, the prior decision of the court, upholding the Mugumisi award, was different from the matter currently before it because the former concerned back pay from the date of termination to the date of reinstatement as opposed to salary and benefits accrued before termination.

Consequently, it was not necessary that the current matter be held in abeyance pending the determination of the appeal in the earlier matter.

The court a quo found in favour of the respondent on the remaining two grounds of review:

(i) Firstly, it held, that, the Mambara award did operate to review and alter the court's previous decision that the appellants had not been unfairly dismissed. This resulted in uncertainty on the employment status of the appellants and the possible institution of other unnecessary claims.

Moreover, the arbitrator's findings, that, the appellants had implied permanent contracts of employment and that they had been retrenched were equally erroneous.

(ii) Secondly, the court found, that, the issue of the appellants grades was not part of the arbitrator's terms of reference. Thus, the arbitrator had misdirected himself in going beyond his remit and basing his award on extraneous terms of reference.

The court accordingly held, that, the review succeeded on these two grounds.

The arbitral award was set aside and substituted with the dismissal of the appellants claim.

The grounds of appeal in casu are that the court a quo erred in the following respects:

(i) In concluding, that, the arbitrator's award, mandating the quantification of an admitted liability, had the effect of altering the court's previous judgment.

(ii) In placing any significance on the arbitrator's misuse of the word retrenchment.

(iii) In concluding, that, the arbitrator had effectively conducted a re-grading exercise in determining what was due to the appellants.

(iv) In concluding, that, there was a reviewable issue raised before the court.

Jurisdiction to Review Arbitral Awards

In his heads of argument, and at the hearing of the appeal, counsel for the appellants embarked upon an excursus outside the stated grounds of appeal into the review jurisdiction of the Labour Court.

He submits, that, section 89(1)(d1) of the Labour Act [Chapter 28:01] limits that court to the same review powers as are exercisable by the High Court.

Therefore, since the review of arbitral awards cannot be instituted in terms of the High Court Act [Chapter 7:06] but only under the Model Law scheduled to the Arbitration Act [Chapter 7:15], it follows that the Labour Court, being a creature of statute, and having no inherent jurisdiction, cannot review the decisions of arbitrators.

Counsel for the appellants relies for this proposition upon the decisions in Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Another 2001 (2) ZLR 388 (S) and National Social Security Authority v Chairman, National Social Security Authority Workers Committee & Others 2002 (1) ZLR 306 (H).

In Catering Employers Association of Zimbabwe v Zimbabwe Hotel and Catering Workers Union & Another 2001 (2) ZLR 388 (S), it was held, that, Article 34(2) of the Model Law sets out the sole grounds on which the High Court may set aside an arbitral award.

The court cannot, therefore, rely on the grounds set out in section 27 of the High Court Act to set aside an arbitral award on review.

This position was adopted in National Social Security Authority v Chairman, National Social Security Authority Workers Committee & Others 2002 (1) ZLR 306 (H) on the somewhat questionable basis, that, the general power to review proceedings, conferred by section 26 of the High Court Act, does not extend to arbitral awards because an arbitrator does not fall into any of the stipulated categories, i.e. inferior courts of justice, tribunals, or administrative authorities.

In any event, it was re-affirmed, that, the narrow grounds on which an arbitral award may be set aside are set out in Article 34 of the Model Law, and recourse to the courts against an award may only be made by way of an application under that Article.

The legislature had, in enacting the Model Law, so it was held, deprived the High Court of its inherent jurisdiction to review the conduct of an arbitrator.

Counsel for the respondent submits, that, section 89(1)(d1) of the Labour Act was inserted by Act No.7 of 2005: therefore, the earlier authorities cited on behalf of the appellants do not apply.

This position is placed beyond doubt by the decision of this court in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S) to the effect, that, the Labour Court has full powers of review in addition to those of the High Court.

Moreover, section 92EE(1) of the Labour Act, inserted by Act No.5 of 2015, makes it very clear, that, the Labour Court can exercise review powers over the decisions of arbitrators.

I entirely agree with these submissions....,.

Section 89 of the Labour Act [Chapter 28:01] prescribes the functions, powers, and jurisdiction of the Labour Court. In particular, section 89(1) of the Labour Act, in its relevant portions, provides that:

“(1) The Labour Court shall exercise the following functions —

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment;

(b)...,.;

(c)...,.;

(d)...,.;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.”

The interpretation of this provision was lucidly elaborated by GARWE JA in Zimasco (Pvt) Ltd v Marikano 2014 (1) ZLR 1 (S)..., as follows:

“The above provisions are, in my view, clear and unambiguous. In respect of labour matters, the Labour Court shall exercise the same powers of review as does the High Court in other matters. The jurisdiction to exercise these powers of review is in addition, and not subject to, the power the court has to hear and determine applications in terms of the Act….,.

The suggestion…, that, the Labour Court has been given the same power of review as would be exercisable by the High Court in respect of labour matters, is, in my considered view, incorrect and inconsistent with the provisions of the Act. I say this for two reasons:

(i) Firstly, the Act is clear, that, no court, other than the Labour Court, shall have jurisdiction in the first instance, to hear and determine any application, appeal, or matter referred to in section 89(1) of the Act – see section 89(6) of the Act….,.

(ii) Secondly, it is clear, that, the interpretation given relies on a superficial reading of the wording of section 89(1)(d) [sic]. The section should be understood to mean 'the same powers of review in respect of labour matters as would be exercisable by the High Court' or alternatively 'the same powers of review, as would be exercisable by the High Court, in respect of labour matters.'

Any other reading of the paragraph would clearly result in an absurdity.”

I fully endorse the above reasoning.

The only possible meaning and effect to be ascribed to section 89(1)(d1) of the Labour Act is that the Labour Court has the same power to review any inferior proceedings in labour matters on the same grounds of review as may be invoked by the High Court in the exercise of its powers of review in relation to other matters not embraced by the Labour Act....,.

Any possible room for misconstruing section 89(1)(d1) of the Labour Act has been inescapably shut down by the recently enacted section 92EE of the Labour Act which provides as follows:

“92EE Grounds of Review by Labour Court

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision conducted or made in connection with this Act may be brought on review before the Labour Court shall be –

(a) Absence of jurisdiction on the part of the arbitrator or adjudicating authority concerned;

(b) Interest in the cause, bias, malice, or corruption on the part of the arbitrator or adjudicating authority concerned;

(c) Gross irregularity in the proceedings or the decision of the arbitrator or adjudicating authority concerned.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals, or authorities.”

The purpose of section 92EE of the Labour Act, as I perceive it, is to bolster the review powers of the Labour Court, under section 89(1)(d1), by spelling out, in unambiguous terms, the specific grounds upon which those powers may be exercised, viz. the same grounds as are enumerated in section 27 of the High Court Act.

Moreover, the provision makes it clear, ex abundante cautela, that, the review powers of the Labour Court are exercisable over arbitrators and adjudicating authorities in all labour matters.

Both counsels have not given me authority from Zimbabwe on that such requirements are specific and binding as it follows that the statutory requirements of a neighbouring country do not apply in Zimbabwe.

As stated by NDOU J in Sai Enterprises (Pvt) Ltd v Girdle Enterprises (Pvt) Ltd 2009 (1) ZLR 352 (H)…,:

“This court is bound by the precedents set by the Supreme Court. Arguing against such clear decisions of the Supreme Court is the province of academics and not this court.”

In Pyramid Motor Corporation (Pvt) Ltd v Zimbabwe Banking Corporation 1984 (2) ZLR 29, the court had this to say:

“When GOLDIN J decided that case he was a judge of the High Court. As a judge of parallel jurisdiction, I think I can only refuse to follow his decision. To make a declaration that he wrongly decided the Rhostar case would, I think, be treading on the prerogative of the Supreme Court.”

Although in Poli v Minister of Finance and Economic Development & Anor 1987 (2) ZLR 302 (SC) the learned Chief Justice sought reliance from an American authority on this issue, it is a principle of our law of evidence which seems to have been settled in Waterhouse v Shields 1924 CPD 115, wherein GARDINER J made the following remarks:

“As far as I have been able to ascertain there is no such general provision in our statutes with regard to civil cases, but seeing that in criminal cases, and in many instances in civil cases, the law of England in regard to evidence, where there is nothing to the contrary in our law, is to be followed, it seems to me as a general rule we should follow the law of evidence in England. Our system of procedure and our practice is based, in the main, upon the English system and not upon the system which used to prevail in the Courts of Holland. Now, in England, if a witness is subpoenaed duces tecum and is simply called to produce, without giving evidence or identifying the documents, he need not be sworn.”

The Court holds that the Food and Agriculture Organisation (FAO), like any other international organisation, enjoys functional immunity which protects it from any legal process and execution under the local legal system.

The Court holds, further, that the decision of the Supreme Court in Red Cross v Sibanda and Anor 2004 (1) ZLR 27 (S) (the ICRC case), to the extent that it held that an international organisation does not enjoy functional immunity, is wrong.

It must not be followed….,.

1….,.

2….,.

3. The decision in the case of International Committee of the Red Cross v Sibanda & Anor 2004 (1) ZLR 27 (SC), extending the principle of restrictive immunity applicable to sovereign States to international organisations, is hereby overruled for the reason that it is wrong at law.

A decision of the Supreme Court, on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-Constitutional matter.

Only the Supreme Court can depart from or overrule its previous decision, ruling, or opinion on a non constitutional matter.

Section 25 of the Civil Evidence Act [Chapter 8:01] requires that expert evidence be led to prove to the court the applicable foreign law as the court cannot take judicial notice of foreign law. It provides as follows;

“(1) A court shall not take judicial notice of the law of any foreign country or territory, nor shall it presume that the law of any such country or territory is the same as the law of Zimbabwe.

(2) Any person who, in the opinion of the court, is suitably qualified to do so on account of his knowledge or experience shall be competent to give expert evidence as to the law of any foreign country or territory, whether or not he has acted or is entitled to act as a legal practitioner in that country or territory.

(3) In considering any issue as to the law of any foreign country or territory, a court may have regard to -

(a) Any finding or decision purportedly made or given in any court of record in that country or territory, where the finding or decision is reported or recorded in citable form; and

(b) Any written law of that country or territory; and

(c) Any decision given by the High Court or the Supreme Court as to the law of that country or territory.

(4) The law of any foreign country or territory shall be taken to be in accordance with a finding or decision mentioned in paragraph (a) of subsection (3) unless the finding or decision conflicts with another such finding or decision on the same question.

(5) For the purposes of paragraph (a) of subsection (3), a finding or decision shall be taken to be reported or recorded in citable form only if it is reported or recorded in writing in a report, transcript or other document which, if the report, transcript or document had been prepared in connection with legal proceedings in Zimbabwe, could be cited as an authority in legal proceedings in Zimbabwe.”

The section is clear on the court not being allowed to take judicial notice of foreign law. It also does not allow the court to presume that foreign law is the same as Zimbabwean law. Subsection 2 prescribes how foreign law should be proven through the evidence of a witness who is an expert on that foreign law. In considering any issue as to the law of a foreign country or territory the court can, in terms of subsections 3, 4 and 5, have regard to;

(a) Authoritative, citable, reported or recorded decisions of the courts of that country whose decisions do not conflict with another such finding or decision on the same question.

(b) Written law (i.e statute law) of that country.

(c) Zimbabwean High Court or Supreme Court decisions on what the law of the country in issue is. This refers to proof, through precedents by Zimbabwean superior Courts, on the foreign law in question.

This court is bound by the pronouncements of the Supreme Court.

As previously stated, it is this court's considered view that it cannot be bound by the Supreme Court decision because the circumstances of this case are substantially and materially different from those brought before the Supreme Court, on appeal, in University of Zimbabwe v Jirira & Ors SC06-13.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CC11-18, the Court held…, that the principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Act, are clear. The Court then said:

“A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter. The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

The applicant was the defendant in a divorce action instituted by the first respondent in the High Court. The action culminated in a judgment in which the High Court granted an order of divorce, coupled with the distribution of the assets of the spouses, maintenance, and an order governing custody of and access to two minor children.

The applicant was aggrieved by the judgment of the High Court on the distribution of property and appealed to the Supreme Court (“the court a quo”). The first respondent cross-appealed. The applicant's main argument, in the main appeal, was that the High Court failed to properly exercise its discretion in terms of section 7(4) of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes Act”), which provides for the circumstances which a court may have regard to when considering the issues of the division, apportionment or distribution of the assets of the spouses and the payment of maintenance. He argued that the High Court failed to act in accordance with the principle laid down in Takafuma v Takafuma 1994 (2) ZLR 103 (S). In that decision the Supreme Court said:

“…, the court does not simply lump all the property together and then hand it out in as fair a way as possible. It must begin, I would suggest, by sorting out the property into three lots, which I will term 'his', 'hers' and 'theirs'. Then it will concentrate on the third lot marked 'theirs'. It will apportion this lot using the criteria set out in section 7(3) of the Act. Then, it will allocate to the husband the items marked 'his' plus the appropriate share of the items marked 'theirs', and the same to the wife.”

The court a quo found that the High Court had acted in accordance with the provisions of section 7(4) of the Matrimonial Causes Act, and, as such, had not erred. It dismissed both the appeal and the cross-appeal on the basis that they had no merit. On the question of the applicability or otherwise of the principle enunciated in Takafuma v Takafuma 1994 (2) ZLR 103 (S), the court a quo…, in Simon Denhere v Mutsa Denhere SC51-17, said:

“…, the court, in Takafuma's case (supra), was setting out an approach on the correct way of achieving an equitable distribution. The factors that a court had to take into account in the distribution are set out in the Act. The principle itself is found in the Act. The appellant fails to appreciate that what Takafuma prescribes is a formula and it is not one that is applicable in every situation. It is erroneous, in my view, to suggest that the court a quo should have strictly followed the formula as set out by mcnally ja.. In this case, the court found that all the property, with the exception of the stand in Chitungwiza, was acquired during the union. In such a case one cannot speak of piles. They do not exist as all the property is matrimonial property and falls for distribution.

The court a quo did not create three lots of the matrimonial estate. That is not to say that its approach was incorrect. Having found that theirs was a marriage of equals, there were no baskets in which to place the properties. It became unnecessary to do so.”

The applicant was aggrieved by the decision of the court a quo and filed the application for an order for direct access to the Constitutional Court. He seeks to approach the Constitutional Court in terms of section 85(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”), alleging that the court a quo breached his right to equal protection of the law enshrined in section 56(1) of the Constitution.

The applicant argued that the High Court erred by not following the law, as pronounced in Takafuma v Takafuma 1994 (2) ZLR 103 (S); a judgment binding on it according to the doctrine of stare decisis. He argued that the failure to apply the formula enunciated in Takafuma v Takafuma 1994 (2) ZLR 103 (S) imposed on the court a quo the obligation to set aside the judgment of the High Court on appeal. The basis of the applicant's argument was that the court a quo, in dismissing the appeal, failed to protect his right to equal protection of the law, as it was obliged to correct the error and set aside the judgment of the High Court. The contention was that it was in the interests of justice to grant the order of direct access for the Constitutional Court to vindicate the rule of stare decisis, which is an important aspect of the rule of law....,.

The question which was before the court a quo for determination was whether or not the decision of the Supreme Court in Takafuma v Takafuma 1994 (2) ZLR 103 (S), on the formula that a court faced with the task of the division, apportionment or distribution of the assets of the spouses upon dissolution of marriage by divorce can use to secure an equitable distribution, applied in every case regardless of the circumstances.

The court a quo considered the wide discretion given to a court faced with the task of the division, apportionment or distribution of the assets of the spouses upon dissolution of marriage by divorce under section 7(4) of the Matrimonial Causes Act. It took into account the fact that the object of the exercise of jurisdiction by the court is to secure equitable distribution of the property. The court a quo concluded that the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S), on the formula enunciated therein, applied to similar cases and not to every case.

The effect of the decision of the court a quo on the issue before it for determination was that the applicability of the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S) as a binding precedent in a case depended on the facts of that particular case. It reasoned that the High Court, being faced with a case the facts of which were entirely different from those that formed the basis of the decision on the point of law in Takafuma v Takafuma 1994 (2) ZLR 103 (S) was faced with a new controversy calling for a different decision....,.

The applicant's contention was that the court a quo's decision “trashed” the rule of stare decisis, which is of fundamental importance to the rule of law. The argument was that the court a quo ought to have reached the conclusion that the High Court was bound by the decision of the Supreme Court in Takafuma v Takafuma 1994 (2) ZLR 103 (S) on the formula for the distribution of the assets of spouses upon dissolution of marriage by divorce enunciated in that case. The contention was that failure by the court a quo to hold the High Court to the obligation to follow the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S) on the point of law pronounced upon in that case violated the applicant's fundamental right to equal protection of the law enshrined in section 56(1) of the Constitution.

To show the fallacy in the applicant's contention, it is necessary to consider the content and scope of the doctrine of stare decisis.

The words “stare decisis” are Latin words which mean that things that have been decided should be left to stay undisturbed. The meaning of the doctrine of stare decisis is that when a point of law has been once solemnly and necessarily settled by a decision of a competent court it will no longer be considered open to examination or to a new ruling by the same tribunal or those which are bound to follow its adjudication. The doctrine of stare decisis is therefore a rule of precedent or authority, addressed to lower courts and members of the public, who are decision-makers, to the effect that decisions of the higher courts on particular points of law presented to and passed upon by those courts are law. Lower courts are bound to obey them in similar cases in future until they are over-ruled; even though a rigorous adherence to them might, at times, work individual hardship.

COOLEY “Constitutional Limitations” (2ed)..., sets out the rationale for the rule of stare decisis. The learned author says:

“All judgments, however, are supposed to apply the existing law to the facts of the case; and the reasons which are sufficient to influence the court to a particular conclusion in one case ought to be sufficient to bring it or any other court to the same conclusion in all other like cases where no modification of the law has intervened. There would thus be uniform rules for the administration of justice and the same measure that is meted out to one would be received by all others. And even if the same or any other court, in a subsequent case, should be in doubt concerning the correctness of the decision which has been made, there are consequences of a very grave character to be contemplated and weighed before the experiment of disregarding it should be ventured upon. That state of things, when judicial decisions conflict, so that a citizen is always at a loss in regard to his or her rights and his or her duties, is a very serious evil; and the alternative of accepting adjudged cases as precedents in future controversies resting upon analogous facts, and brought within the same reasons, is obviously preferable.”

The often quoted passage on the reasons which underlie the rule of stare decisis is by CHANCELLOR KENT in Kent's Commentaries 475, found in COOLEY's Constitutional Limitations 2ed….,. CHANCELLOR KENT said:

“A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands un-reversed, unless it can be shown that the law was misunderstood or misapplied in the particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favour of its correctness, and the community have a right to regard it as a just declaration or exposition of the law and to regulate their actions and contracts by it. It would therefore be extremely inconvenient to the public if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them, and people in general can venture to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has once been deliberately adopted and declared, it ought not to be disturbed unless a court of appeal or review, and never by the same court, except for very urgent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a perplexing uncertainty as to the law.”

The importance of the rule of precedent to the rule of law cannot be gainsaid. It is indeed a rule of law, the purpose of which is to ensure uniformity and legal certainty in the decisions of courts, particularly lower courts, and points of law arising for determination in similar cases. Every decision on a point of law is informed by a set of facts that are distilled into the ratio decidendi of the case which controls decisions in future similar cases. The doctrine of stare decisis therefore forms the basis of the policy of the courts and the principles upon which rests the authority of judicial decisions as precedents in subsequent litigation.

In Payne v Tennessee 501 US 808 (1991)…, the rule of stare decisis was lauded for promoting “the even-handed, predictable and consistent development of legal principles” and contributing to “the actual and perceived integrity of the judicial process”. See DANIEL A FARBER, The Rule of Law and the Law of Precedents 90 MINN.L.Rev. 1173, 1179 (2006).

The rule of stare decisis is subject to certain necessary and proper limitations. On the one hand, the limitations secure and enhance its practical utility, whilst, on the other, they prevent its abuse. The first obvious limitation is that the rule commands obedience to a decision on a point of law in subsequent similar cases. If a decision of a court is, in essence, merely the determination of a fact, it is not entitled to the same sanction against subsequent decisions of lower courts which, under the rule of stare decisis, is accorded to a decision on a point of law.

The rule of stare decisis does not require decision-makers to comply with a decision which is a precedent on a particular point of law in every case regardless of the circumstances. The language of the decision is to be construed not as a statement of abstract propositions without limitation. It must be construed in connection with the particular facts of the case and the specific matters that were in view when the language was used. In other words, every rule of precedent has a set of juristic facts which it governs. The rule of stare decisis does not require adherence to a decision on a point of law in a case in which the state of facts is entirely different from the juristic facts governed by the precedent.

The court a quo took into account the requirements of the rule of stare decisis. It concerned itself with the possible results of compliance with the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S) when the facts of the case were essentially different from the juristic facts at the heart of the precedent. The decision of the court a quo that the decision in Takafuma v Takafuma 1994 (2) ZLR 103 (S) was not applicable in the case on appeal was consistent with the rule of stare decisis, which demands that lower courts ought to adhere to previous decisions of the higher courts on points of law in similar cases.

The conclusion reached by the court a quo, and the reasons for it, had nothing to do with disobeying the rule of precedent. The issue for determination was whether the case on appeal was a similar case for which the precedent in Takafuma v Takafuma 1994 (2) ZLR 103 (S) was intended.

This matter was set down on 22 June 2017 as an urgent chamber application. The applicant sought stay of his detention pursuant to disciplinary proceedings in accordance with the Police Act [Chapter 11:10], pending finalisation of his application for review, by the High Court, of the proceedings before a single trial officer.

The judge declined to hear the matter citing conflicting High Court judgments on matters arising out of police disciplinary proceedings. He thus directed the parties to agree on a Statement of Agreed Facts and contentious points of law for a two-judge panel to render an authoritative decision regarding this Court's powers over police disciplinary processes.

Counsel for the plaintiff has referred me to the authority of Van Vuuren v Boshoff 1964 (1) SA 395 (TPD) as authority for the submission he made in the matter to the effect the service on the debtor of an unsuccessfully prosecuted process has the effect of delaying the completion of prescription….,.

With respect, the wording of the statute under consideration in Van Vuuren v Boshoff 1964 (1) SA 395 (TPD) and section 19 of the Prescription Act [Chapter 8:11] are different and the obiter in that case cannot bind me in the circumstances.

I also note that the case was not followed in any of the other divisions in South Africa and that later decisions construing relevant provisions of the South African prescription legislation that are similar to the provisions of our current legislation have not come to the same conclusion as was reached in Van Vuuren v Boshoff 1964 (1) SA 395 (TPD).

Whilst the court a quo did not articulate the reason why it believed that the judgment by the Appeal Court was not binding on it, the argument was advanced, on appeal, and on behalf of the respondent, that both courts enjoyed parallel jurisdiction and therefore the previous decision of one was not binding on the other. Reliance in this regard was placed on the provisions of the rules of the Labour Court, 2006 which were in use when the judgment was written, and which in Rule 35 provided:

“Where a case similar or identical to the one being heard by the court has been previously decided, any principle by the case shall have persuasive authority.”

This rule, in effect, reinforced the principle of stare decisis in its horizontal application.

With respect, the situation that was before the court a quo did not fall to be resolved by the application of the principle of stare decisis - either horizontally or hierarchically. The situation before the court a quo was not an instance where one court of parallel jurisdiction was being called upon to adopt or apply a principle that had been discovered and applied by an earlier court. It could not, and was not, suggested that the Labour Court, sitting on appeal against the merits of the award, was higher in ranking than the court a quo. It was not conceivably the situation that the two courts were determining similar issues and were being called upon to be consistent in their findings unless there was a basis for departing from the earlier finding.

This, in essence, and very briefly, is what the doctrine of the stare decisis postulates.

To the contrary, the situation that was before the court a quo was simply an instance where the same court was being called upon to make pronouncements, at different times, on two components of the same cause of action. The one dealt with the issue of liability whilst the other was supposed to deal with the quantification of that liability - only in the event that liability was established.

Reliance for the argument advanced on behalf of the respondent was also sought from the decision in Matanhire v BP Shell Marketing Services SC05-05 where this Court was faced with two conflicting decisions of the same court over the same issue. In resolving the issue that was before it in that matter, this court applied the basic principle that once a matter has been finalised by a court, that court becomes functus and thereby loses authority and competence to adjudicate on the matter again.

Again, with respect, the ratio in Matanhire v BP Shell Marketing Services SC05-05, is not of assistance to the respondent at all.

An analysis of the two decisions before the court a quo shows that the decision of the Appeal Court, absolving the appellant from liability, was a stand-alone judgment. It was complete in itself. It was properly and competently sought and obtained. It therefore became extant and was not only binding on the parties to the dispute - but on the court itself.

If it is again correctly viewed that judgments belong to courts and not to the individual authors, then it is easy to find that the judgment on liability became binding on the entire Labour Court. This would include the court a quo.

On the basis of the ratio in Matanhire v BP Shell Marketing Services SC05-05, the Labour Court became functus on the issue of the liability of the appellant to pay bonus to the respondent once this judgment was handed down. It follows that the Labour Court, as an institution, no matter how constituted, could not pronounce on the issue again.

Viewed in this light, the assertion by the court a quo that it was not bound by the earlier judgment loses all colour and must accordingly be rejected.

Quite apart from the above, the judgment by the Appeal Court judge was binding on the court a quo not because of any ranking of the courts but because it resolved the issue of liability whilst the court a quo was seized with the quantification of that liability.