Final Orders re: Composition of Bench iro Precedents, Disparate Facts, Effect of Ex Post Facto or Subsequent Statutes

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.

The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring authority and is responsible for the administration and implementation of the Land Acquisition Act [Chapter 20:10] and other allied pieces of legislation currently in force.

The second respondent is Nyasha Chikafu who is, in terms of the Land Acquisition Act [Chapter 20:10], the beneficiary of subdivision 1 of Dodhill in Chegutu District, Mashonaland West Province; which, incidentally, the applicants claim to have legitimate right over.

For purposes of this judgment, I will refer to the property in question as Dodhill Farm.

THE BACKGROUND

From the papers filed of record, coupled with the submissions made by the two legal practitioners representing the applicants and the second respondent, there are conflicting perceptions as regards the current status of Dodhill Farm.

The applicants feel very strongly that annexure '2' confirms their legitimate possession of the property.

Annexure '2' is a court order which was consented to at a time when the other portions of the property were voluntarily conceded to the State for purposes of agricultural resettlement following the formal gazetting of the applicants farm in January of 2005.

The second respondent's position is that following the promulgation of the constitutional amendment number 17/05, Dodhill Farm was properly allocated to her by the first respondent.

I accept the position adopted by the second respondent, that, annexure '2' was overridden by the subsequent promulgation of constitutional amendment number 17/05 which culminated in the introduction of, inter alia, section 16B(2)(a)(i) of the Constitution which conferred the ownership of the farm in question firmly in the hands of the first respondent.

I will therefore proceed on the basis that Dodhill Farm was indeed allocated to the second respondent.

APPLICANTS CASE

The applicants case is predicated upon the mandament van spolie.

Their argument is, that, on the evening of Thursday 5th day of February 2009, the second respondent, without the applicants prior knowledge and consent, summarily entered Dodhill Farm and set up a camp near the main security gate housing the applicants residence, barns, and other buildings. A tent was put up as well as a makeshift shelter. The allegations went further to say, that, the second respondent introduced or brought with her some youth who camped in the premises.

On 20 February 2009, the second respondent summarily, and without the consent of the applicants, commenced ploughing in the applicants fields where tobacco had just been harvested and on which the applicants had intended to plough an onion crop, in conformity, with the applicants programme of rotational cultivation.

The applicants outlined other incidents which amounted to the second respondent's summary occupation of Dodhill Farm.

The applicants sought the services of the police to have the status quo ante restored - but to no avail.

According to the applicants, when the second respondent was confronted, she said she had a right to occupy Dodhill Farm on the strength of her offer letter, a copy of which is marked annexure '3' in the papers filed of record.

THE SECOND RESPONDENT'S CASE

The second respondent's response to the allegations of unlawful dispossession were basically three-pronged, viz;

(i) Lack of urgency in this matter;

(ii) Lack of locus standi on the party of the applicants in bringing this application; and

(iii) In the alternative, a complete denial of the allegations levelled against her by the applicants.

In order for one to effectively deal with the second respondent's two main defences, one must consider whether the allegations by the applicants are true or not. If they are not, the two main defences would fall away.

If the allegations are found to be true, the court must then proceed to deal with those allegations in so far as they impact on the defences of lack of urgency and locus standi on the applicants.

THE ALLEGATIONS BY THE APPLICANTS

In her notice of opposition, the second respondent has emphasized the point that the ownership of Dodhill Farm now vests in the first respondent and the fact that her offer letter authorizes her to stay on the farm in question to carry out agricultural activities.

I wish to re-affirm the accepted legal position, that, in applications for a spoliation order, the question of ownership of the property in issue does not arise. As I will demonstrate later in this judgment, lawfulness to possession of the farm is equally irrelevant.

There are numerous aspects which can be gleaned from the second respondent's notice of opposition which confirm the allegations levelled against her, not only on a balance of probabilities but beyond reasonable doubt.

(i) Firstly, despite her attempt to paint the picture that the applicants consented to her occupation of the farm, the second respondent gives a completely different picture when she states:

“…,. Applicants seem to be complaining, that, I should have sought their permission first before ploughing and that they wanted to plant onions on the land which I ploughed. I am advised, which advise I accept, that, I have the lawful authority to carry out agricultural activities at the farm in the form of an offer letter. Since applicants do not own the farm, there is no reason at all for me to seek their permission to do that which is lawful.

In any event, the applicants have no right whatsoever to continue carrying out agricultural activities at the farm since doing so amounts to a criminal offence. I intend to allow applicants to finish harvesting their crops before I commence to prepare the land…,.”…,.

In my view, the above averments confirm the point made by the applicants, that, the second respondent simply moved onto Dodhill Farm without their consent, because, in her view (of course as advised by her counsel), the applicants have no right to be on the farm.

It is inconceivable, that, given her perception of the law, as advised by her counsel, the second respondent would have sought the consent of the applicants before occupying the disputed property.

Further, in her affidavit, the second respondent confirms, that, there were fights between her own employees and those of the applicants which culminated is some employees being arrested by the police from Chegutu.

If the second respondent had occupied the farm in question by consent there would have been no cause to have such running battles on the farm between the two groups of employees.

All in all, I am satisfied, that, a cursory perusal of the second's respondent's affidavit lends credence to the allegations raised by the applicants. I have absolutely no doubt in my mind, that, the second respondent acted in the manner complained of by the applicants....,.

LOCUS STANDI

The issue of locus standi on the part of the applicants cannot be looked at in a vacuum. It must be looked at in the light of the legal position governing the principle of the mandament van spolie.

THE LEGAL POSITION

There can be no doubt, that, spoliation, as a remedy, has its core value or objective, protection to possession of property against unlawful dispossession.

This is a remedy that has been recognized in our jurisdiction and beyond for over decades.

In dealing with the principles of spoliation, I find the views of HERBSTEIN J quite apposite when the learned judge stated:

“…,. Two allegations must be made and proved, namely;

(a) That applicant was in peaceful and undisturbed possession of the property; and
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.”

See Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230E…,.

In Amler's Precedents of Pleadings, 3rd Edition LTC HARM and JH HUGO, Butterworths…, it is stated:

“Unlawfulness in this context means, a dispossession without plaintiff's consent or due legal process.”

This time honoured principle of our law has been enunciated in a plethora of cases in our jurisdiction and beyond: see, for example; Nino Bonino v De Lange 1906 TS 120…,.; Silo v Naude 1929 AD 21; Mutsotso and Others v Commissioner of Police and Anor 1993 (2) ZLR 329 (H); Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

In the classic and leading case of Nino Bonino v De Lange 1906 TS 120 INNES CJ…, had this to say:

“It is a fundamental principle, that, no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.”

In Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) REYNOLDS J remarked as follows:

“Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party….,. The lawfulness or otherwise of the applicants possession of the property does not fall for considerations at all. In fact, the classic generalization is sometime made, that, in respect of spoliation actions…, even a robber or thief is entitled to be restored possession of the stolen property.”…,.

Counsel for the second respondent passionately argued, that, the applicants had no locus standi to bring an application for spoliation.

The main thrust of his argument was, that, because the applicants had exceeded the 45 and 90 day statuary maximum periods which allows them to remain on the farm and the homestead respectively (section 3 of Gazetted Land (Consequential Provisions) Act [Chapter 20:28]), therefore, the applicants must not be protected by this court.

In counsel's view, which borrowed heavily from the position adopted by my learned brother UCHENA J in the case of Andrew Roy Ferrera and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08, if this court accepted locus standi on the part of the applicants, then, the court would be sanctioning an illegal stay on Dodhill Farm by the applicants since the applicants are occupying that farm in complete violation of the law.

There was also an attempt by the second respondent's counsel to seek to rely on the decision by their Lordships in one of the much celebrated land cases in this country, viz Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04.

Simplified, the argument, as put forward by the second respondent's counsel, was that because the applicants hands are tainted with their illegal occupation of Dodhill Farm, the court could not entertain them let alone grant them an order that would perpetuate their continued stay on the farm.

The applicants counsel held a different view.

She argued, that, once the applicants possession is established and there is proof of dispossession without reference to due process, the applicants locus standi, is thereby established.

I agree with this position.

The position adopted by the second's respondent's counsel is fraught with so many challenges.

Firstly, his approach would be an attempt to re-define the very basic requirements of a mandament van spolie which is not concerned with the legality or otherwise of the possession itself: see the remarks of REYNOLDS J in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

I am fully cognisant of other decisions from South Africa which have attempted to shift from the orthodox approach in dealing with spoliation matters.

One such matter is the case of Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250…, where VAN DEN HEEVER J stated as follows:

“Moreover, the rule that goods dispossessed against the will of the possessor must be restored forthwith, is not an absolute one.

The reason for the rule is, according to the authorities, certainly not because the fact of possession is elevated to a right stronger than plenum dominimum, but, to discourage breaches of the peace by self help in the case of disputes.

Despite generalizations that even the thief or robbers entitled to be restored to possession, I know of no instance where our courts, which disapprove of metaphorical grubby hands, have come to the assistance of an applicant who admits that he has no right vis-a-vis the respondent to the possession he seeks to have restored to him.”…,.

Commenting on Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250 and another similarly decided case of Coetzee v Coetzee 1982 (1) SA 933, the learned judge, MAKARAU J, in the recent case of Shiriyekutanga Bus Service v Total Zimbabwe remarked as follows:

“With respect, the weight of authority appears to be against the learned judge. It has not been established as part of our law in any other decided case that an application for spoliation order has to show some reasonable or plausible claim to the property despoiled.

The learned judge seems to suggest, that, the court determining an application for a spoliation order will look into but possession of the applicant: see Coetzee v Coetzee (supra).

I hold a different opinion, and do so with the greatest of respect and due deference to the learned judge.

The decided cases referred to by GUBBAY CJ in Botha and Another v Bennet (supra) are quite clear that the court does not at all look into the juridical nature of the possession claimed.

The doctrine of stare decisis binds me to follow the decision in Botha and Another v Bennet (supra) and Coetzee v Coetzee (supra) HH64-08.”…,.

I entirely associate myself with the position adopted by the learned judge MAKARAU J...,.

HH29-10 : PRODUTRADE (PVT) LTD vs CONTINENTAL BAKERIES (PVT) LTD and MUNYUKI ROBERT CHIKWAVIRA
Ruled By: CHATUKUTA J

The material facts giving rise to this application are that the applicants issued summons on 22 April 2005 in case No. HC1929/05 claiming the sum of $485,316,000=, interest at the rate of 115% calculated from 4 February 2005 to the date of payment and costs on a higher scale. The claim arose from an agreement of sale ...

The claim arose from an agreement of sale between the applicant and the first respondent in terms of which the applicant was required to deliver flour to the value of $485,316,000= to the first respondent. The flour was duly delivered on 25 January 2005. The first respondent was obliged, under the agreement, to pay the purchase price for the flour by 4 February 2005. The second respondent bound himself as surety and co-principal debtor in respect of the first respondent's liability. The purchase price was not paid on the due date resulting in the claim.

The respondents defended the claim.

On 27 May 2005 the applicant filed an application for summary judgment in case No. HC2433/05. The judgment was duly granted in favour of the applicant on 19 July 2006. The respondent appealed against that judgment on 26 July 2006. However, on 22 March 2007, the respondents tendered payment of $970,632= being the judgment debt plus interest. In a letter dated 13 April 2007, the applicant accepted the payment on a without prejudice basis and reserved their right to claim interest accrued on the sum of $970,632=. Following the payment, the Notice of Appeal was withdrawn on 26 March 2007.

On 18 November 2007, the applicant then filed the present application claiming interest on the capital debt in case No. HC1929/2005 from 4 February to the date of payment….,.

The applicant contended that the in duplum rule does not apply in the present case because proceedings had already been instituted and the delay was attributable to the justice delivery system. In support thereof, the applicant referred me to the case of Standard Bank of South Africa v Oneanate Investments (Pty) Ltd 1998 (1) SA 811 (SCA) and Ehlers v Standard Chartered Bank Zimbabwe Limited 2000 (1) ZLR 136 (H).

Counsel for the applicant contended that the effect of the order sought by the applicant is that interest continues to run until payment in full is made irrespective of the in duplum rule.

The respondent urged me to follow the case of CBZ Limited v MM Builders & Suppliers (Private) Limited & Ors 1996 (2) ZLR 420 (H) and Conforce (Pvt) Ltd v City of Harare 2000 (1) ZLR 445 (H).

The proposition that interest ceases to run when it has reached the capital amount and only commences to run afresh upon judgment is found in CBZ Limited v MM Builders & Suppliers (Private) Limited & Ors 1996 (2) ZLR 420 (H)…,.

As rightly submitted by counsel for the respondent, the decision in Standard Bank of South Africa v Oneanate Investments (Pty) Ltd 1998 (1) SA 811 (SCA) is merely persuasive. The decision in CBZ Limited v MM Builders & Suppliers (Private) Limited & Ors 1996 (2) ZLR 420 (H) was decided by a full bench of the High Court and is therefore binding on me.

HH135-09 : SIMBARASHE ANTONIO and KINGSTONE MUJATI and ASHANTI GOLDFIELDS ZIMBABWE LIMITED vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED and REGISTRAR OF DEEDS and KWADZANAYI BONDE
Ruled By: MAKARAU JP

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 ...

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

In this Chamber application, the applicant seeks an order to depart from the Supreme Court Rules in regard to the set down of a Constitutional Court application made in terms of section 24(1) of the Constitution of Zimbabwe (hereinafter referred to as “the Constitution”).

In other words, this is an application for the hearing of the Court application on an urgent basis.

Both counsel agree the matter is urgent.

I accept that the matter is urgent. I, however, do not accept that the matter should be set down because the Constitutional Court application is fatally defective in that it does not comply with section 24 of the Constitution.

Section 24 of the Constitution is peremptory.

This Court has no discretion to condone a departure from compliance with section 24 of the Constitution. Consequently, failure to comply with the procedure set out in section 24 of the Constitution is fatal to any Court application made in terms thereof.

Although the Court application does not, as it should, state explicitly that it is being made in terms of section 24(1) of the Constitution, it is quite clear from the papers that it is being made in terms of that subsection.

In my view, the applicant cannot proceed in terms of section 24(1) of the Constitution.

The Court application arises from proceedings in the Magistrate's Court and the applicant should have proceeded in terms of section 24(2) of the Constitution. Put differently, the Court application should have come to the Supreme Court by way of referral in terms of section 24(2) as opposed to a direct application in terms of section 24(1) of the Constitution.

The relevant part of section 24 of the Constitution provides as follows:

“24 Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being, or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress.

(2) If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall refer the question to the Supreme Court, unless, in his opinion, the raising of the question is merely frivolous or vexatious.

(3) Where, in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).

(4) The Supreme Court shall have original jurisdiction -

(a) To hear and determine any application made by any person pursuant to subsection (1) or to determine without a hearing any such application which, in its opinion, is merely frivolous or vexatious; and

(b) To determine any question arising in the case of any person which is referred to it pursuant to subsection (2); and may make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights:

Provided that the Supreme Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are/or have been available to the person concerned under other provisions of this Constitution or under any other law.”

Thus, section 24 of the Constitution is very explicit in the following two respects -

(1) A party alleging violation of a guaranteed Constitutional right can approach the Supreme Court directly in terms of section 24(1); and

(2) If the alleged violation of the guaranteed right has arisen in any proceedings in the High Court or in any court subordinate to the High Court, the Supreme Court can only adjudicate on the matter upon referral by the lower court in terms of section 24(2).

Thus, when a matter is before the High Court, or any court subordinate to the High Court, such as the Magistrate's Court as in this case, the question of the contravention of the guaranteed right should be referred to the Supreme Court by the court mero motu or at the instance of any one of the parties to the proceedings. That Constitutional question cannot be brought to the Supreme Court by way of an application in terms of section 24(1) of the Constitution.

Section 24(3) of the Constitution expressly prohibits that.

If the lower court fails to act mero motu, or refuses, upon application, to refer the matter to the Supreme Court for reasons other than those permitted under section 24 of the Constitution, an applicant is then entitled to approach the Supreme Court in terms of section 24(1) of the Constitution: see Martin v Attorney-General 1993 (1) ZLR 153 (S).

Section 24(3) of the Constitution specifically prohibits the making of an application in terms of section 24(1) in respect of matters arising in any proceedings in the High Court or in any court subordinate to the High Court.

This Court has drawn the attention of legal practitioners to this provision in a number of cases.

MALABA JA…, dealt with this issue in some detail in the case of Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05. The learned JUDGE OF APPEAL had this to say at pp10-12 of the cyclostyled judgment:

“There are, however, two separate procedures prescribed in sections 24(1) and 24(2) of the Constitution by which redress of a contravention of the Declaration of Rights may be sought from the Supreme Court.

In this case, the question is whether the applicant ought to have used the procedure prescribed in terms of section 24(2) for the enforcement of the protection of the rights he claimed were contravened in relation to him.

In Mandirwhe v Minister of State 1986 (1) ZLR 1 BARON JA said that compliance with the procedure prescribed in section 24(2) of the Constitution was mandatory where there was litigation in progress and the determination of the question as to the contravention of the Declaration of Rights by the Supreme Court had a bearing on the decision by the High Court or the court subordinate to it on the matter in dispute in the proceedings in that court.

The learned JUDGE OF APPEAL said at 7F-8D:

'The purpose of section 24 is to provide, in a proper case, speedy access to the final court in the land. The issue will always be whether there has been an infringement of an individual's fundamental rights or freedoms, and frequently will involve the liberty of the individual; constitutional issues of this kind usually find their way to this Court, but a favourable judgment obtained at the conclusion of the normal, and sometimes very lengthy, judicial process could well be of little value. And, even where speed is not of the essence, there are obvious advantages to the litigants and to the public to have an important constitutional issue decided directly by the Appellate Division [now the Supreme Court] without protracted litigation.

Subsection (1) contemplates the situation in which it is clear from the outset that the existence of a remedy depends on whether there has been (or is likely to be) a contravention of the Declaration of Rights, when the person alleging to be aggrieved is given the right to go direct to the Appellate Division.

Subsection (2) deals with a different situation; it contemplates that proceedings have been commenced in the General Division [now the High Court] or in a subordinate court in circumstances in which it was not anticipated that the question of a contravention of the Declaration of Rights would necessarily arise, since otherwise one expects subsection (1) to be invoked. The question having arisen, the subsection provides a speedy procedure for the determination, by the Appellate Division, of, in effect, a constitutional point of law without the necessity first to conclude the trial in the court of first instance and to come to this Court by way of appeal.

When the question is referred to this Court, the proceedings are merely interrupted; this Court answers the question but the matter must be concluded in the court a quo. The subsection does not authorise the proceedings to be transferred to this Court.'

Section 24(2) of the Constitution only applies when there is a question arising in the proceedings in the High Court or in the court subordinate to the High Court.”

The learned JUDGE OF APPEAL went on to explain, in some detail, what constitutes a question arising in proceedings. The following is what he said at pp12-13 of the judgment:

“The question is whether there were proceedings in the High Court at the time that (the) question as to a contravention of the Declaration of Rights arose.

My view of the facts is that I must answer the question in the affirmative.

The words 'in any proceedings in the High Court' mean proceedings that have come to or have been instituted in the High Court. They are proceedings that have found existence in the High Court, in the sense, that, that court has been called upon, through a method prescribed by law, to exercise the judicial functions of the State over the matter in dispute between the parties and it is in control of the conduct and progress of the proceedings.

The word 'proceedings' has a wider meaning in section 24(2) of the Constitution than 'goings-on' in court. There are no proceedings without an action or case. Proceedings ordinarily progress in steps. The word is, therefore, a general term, referring to the action or application itself and the formal and significant steps taken by the parties in compliance with procedures laid down by the law for the purpose of arriving at a final judgment on the matter in dispute.

There are proceedings in being in the High Court from the moment an action is commenced or an application made until termination of the matter in dispute or withdrawal of the action or application: see Re Appleton French & Scrafton Ltd [1905] 1 Ch.D 749 at 753; Mundy v the Butterley Co Ltd [1932] 2 Ch.D 227 at 233; Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at 219.

There is, therefore, no need to limit the very general words of section 24(2) of the Constitution and say that the question as to the contravention of the Declaration of Rights arises only when the court is actually sitting.

The words 'if in any proceedings in the High Court any question arises as to the contravention of the Declaration of Rights' imply that proceedings may take place in the High Court without any such question arising.”

The judgment in Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 was followed in Dr Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor SC11-08, where, after referring to the above passage of MALABA JA, I had this to say…,:

“Thus, it would appear, from Tsvangirai's case supra, that, once proceedings are commenced in the High Court or any subordinate court, and a constitutional point arises from the pleadings or circumstances of the case, the constitutional point has arisen from proceedings in that court.”

The facts of this case are that the applicant was placed on remand by the fifth respondent. The Court takes judicial notice of what constitutes a remand.

It is the first formal procedure by a court to commence a criminal trial. There has to be a sufficient legal basis for a court to place an accused person on remand.

The applicant contends, that, there was no legal basis to place her on remand.

She makes the following averment in paragraph 6 of the founding affidavit:

“(The fifth) respondent is Mishrod Guvamombe, the Provincial Magistrate at Rotten Row Magistrates Court who is cited herein in his official capacity as the magistrate who I believe unlawfully purported to remand me in custody without considering the unlawful circumstances that led to my appearance before him. His address for service is care of Rotten Row Magistrates Court, Harare.”

The applicant cites the fifth respondent in his official capacity as the person who presided in proceedings as a result of which the applicant was remanded in custody. The applicant contends that remanding her in custody was unlawful and violated her constitutionally guaranteed right.

On these facts, clearly, the question of the alleged violation of the applicant's constitutional guaranteed rights, in particular the allegation of unlawful remand, arises from the proceedings in the Magistrate's Court before the fifth respondent.

The argument by the applicant's counsel, that the issue of the contravention of the Declaration of Rights was not specifically raised during those proceedings is simply untenable. Indeed, a similar argument was raised in Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 and was dismissed by this Court.

Thus, quite clearly, the Constitutional application should have been brought to this court by way of referral in terms of section 24(2) of the Constitution and failure to do so is fatal to the application.

As I have already stated, the parties are in agreement that this matter is urgent. Counsel for the respondents had indicated, that, while he accepted that the matter was urgent, he had intended to raise the issue of non-compliance with section 24 of the Constitution at the actual hearing of the Constitutional Court application.

The applicant's counsel indicated that they would prefer the matter to be set down before the full Constitutional Court and the issue of the non-compliance with section 24 of the Constitution be determined then.

In my view, following that course would not be in the best interest of the applicant as that would lead to further unnecessary delay in the determination of the issues that she raises.

The previous decisions of this Court on this point are very clear and setting this application down before a full Constitutional Court is an exercise in futility.

Justice will not be served by following a road that leads nowhere.

Indeed, I would have considered setting down the matter in the Constitutional Court for determination of the issue if the applicant's counsel had wished to argue that both Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 and Dr Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor SC11-08 were wrongly decided.

However, that is not his stance.

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

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 ...

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…,.

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

The applicant has referred me to two South African authorities on which he relies for his right to claim the relief that he seeks, viz: Buchholtz v Buchholt 1980 (3) SA 424 (W) and Steenkamp v Mienies and Ors 1987 (4) SA 186 (NCD)....,.I note with interest, that, the applicant ...

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

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....,.

Both in England and in South Africa, it is well established that foreign judgments are cognisable and enforceable under the common law: see NORTH and FAWCETT: Cheshire and North's Private International Law (13th ed. 2004)…,; FORSYTH: Private International Law (4th ed. 2003)…,.

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.

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

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.

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS
Ruled By: NDOU J

Rule 63 has been categorically interpreted by the Supreme Court, and we are bound by such interpretation.

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS
Ruled By: NDOU J

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 ...

HB62-09 : SAI ENTERPRISES (PRIVATE) LIMITED vs GIRDLE ENTERPRISES (PRIVATE) LIMITED t/a QUALITY ENGINEERING SERVICES (PRIVATE) LIMITED
Ruled By: NDOU J

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 ...

HB91-09 : GOODBYE BENJAMIN MUHWATI vs MBONGI KWENULE THEBE
Ruled By: NDOU J

In her submissions, counsel for the respondent did not refer to Rule 85A of the High Court Rules 1971. She referred to South African authorities which were alluded to above.

HH36-10 : BRANSON MARKETING (PRIVATE) LIMITED vs NATIONAL BLANKETS LIMITED
Ruled By: KUDYA J

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 ...

HH42-10 : BERNCORN (PVT) LTD T/A TWO KEYS TRANSPORT vs ZIMBABWE REVENUE AUTHORITY
Ruled By: CHATUKUTA J

The respondent conceded that it was bound by the decision in Zimbabwe Revenue Authority Anor v Murowa Diamonds (Pvt) Ltd SC41-09. It appears to me that the concession was proper as it is a decision of a superior court.

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

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 ...

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O.
Ruled By: BERE J

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 ...

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) ...,.

(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.

Logically, it should follow that the debate on the certificate of urgency and its form has not been sealed by the decision in Chafanza v Edgars Stores Ltd & Anor 2005 (1) ZLR 301 (H). The debate remains open and must be further broadened or opened up.

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED
Ruled By: MAWADZE J

The applicant seeks a provisional order in the following terms:-“Terms of the provisional order granted1. Respondents be and are hereby ordered to forthwith hand over a property listed in Annexture 'B' to the founding affidavit to the applicant upon service of this order.1(a) In the event of the respondents refusing ...

The applicant seeks a provisional order in the following terms:-

“Terms of the provisional order granted

1. Respondents be and are hereby ordered to forthwith hand over a property listed in Annexture 'B' to the founding affidavit to the applicant upon service of this order.

1(a) In the event of the respondents refusing or forbidding to comply with the terms of para 1 above, the Deputy Sheriff be and is hereby authorized to retrieve the said property from the respondents' property and deliver it to the applicant.

2. Respondents are required to account for one applicant's property sold prior to 14 of July 2010 and to handover all proceeds of such sales to the applicant within 48 hours of service of this order.

3. Leave is given to the applicant's attorney to serve a copy of this order.”

The terms of the final order sought are constructed as follows:-

“Terms of the final order sought

1. It is hereby declared that the property listed in annexture 'B' attached to the founding affidavit is the exclusive property of the applicant.

2. Respondents be and are hereby ordered to pay costs of suit on legal practitioner client scale.”

The brief facts of the matter can be briefly stated as follows:-

The applicant conducts the business of interior and exterior decorations and sells diversified specifically-designed household goods and effects. On or about October 2009, the applicant entered into negotiations with the first respondent who was allegedly representing herself and the second respondent. It was agreed that that the first respondent, through the second respondent, would act as an agent of the applicant.

The nature of the agency relationship was that the applicant would supply the respondents with goods for sale which would be sold on the applicant's behalf by the respondents who would, in turn, receive 20% commission on any goods sold.

On 14 July 2010, the applicant wrote to the respondents cancelling the agency agreement alleging improper conduct and breach of the material term of the agreement between the parties by the respondents.

The second respondent, by way of letter on 15 July 2010, confirmed the cancellation of the agency agreement but sought to remain in possession of the property listed in Annexture 'B' until a certain date and that the respondents be paid certain amounts due arising from the applicant's cancellation of the agreement.

The applicant persisted in demanding to be handed over the property in Annexture 'B' valued at US$116,627=50 but the respondents refused indicating that certain conditions should be met.

When the applicant visited the respondent's shop, on 13 August, ostensibly for a stock take, the applicant was denied access into the shop. The applicant alleges that some of the property had been removed from the shop and property valued at about US$100,000 was no longer in the shop.

The applicant's fear was that the respondents were disposing of the applicant's property hence causing possible irreparable loss to the applicant.

The applicant then approached this court, on a certificate of urgency, praying for the interim relief already alluded to.

This application is opposed.

Counsel for the respondents raised three points in limine, two of which he argued are capable of resolving the matter without even going into the merits of the application. The points in limine are;

(i) Firstly, that the certificate of urgency is defective;...,.

Certificate of Urgency

Counsel for the respondents submissions in this regard is that the court papers filed by the applicant are not in order as the certificate of urgency was prepared by one Tamuka Moyo, a legal practitioner with the law firm Mutamangira & Associates who are acting as the applicant's legal practitioner. This argument is based on the ratio formulated by CHEDA J in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 wherein…, the learned judge said;

“To my mind, it is totally undesirable for a legal practitioner to either attest to an affidavit or sign an urgent certificate for and on behalf of a client who is being represented at his firm as such a lawyer clearly has an interest in the matter at hand.”

It is quite apparent that legal practitioners have not taken heed of the learned judge's advice, as in many urgent applications brought before this court the ratio formulated in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 is ignored and invariably judges have been asked to deal with this aspect in most urgent chamber applications.

I am aware that there has been no unanimity in this court as regards the correctness of the ratio formulated in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299. To my knowledge, the Supreme Court has not pronounced itself on this issue. The two divergent views emerging from this court can be illustrated by a few cases dealt with by my brother and sister judges as shown below:

In the case of Attorney General v Chiringa Estate & Ors HC659/10 KUDYA J…, came to the conclusion that Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 was made by a panel of two judges of concurrent jurisdiction with the learned judge and that in line with the principle of stare decisis, a single judge is bound by a determination made by a panel of two or more judges of concurrent jurisdiction. The learned judge was not persuaded to depart from the ratio decidendi in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299.

In the case of Route Toute BV & Ors v Sunspun Bananas (Pvt) Ltd & Anor HH27-10 CHATUKUTA J took virtually a different view from that of KUDYA J. On p3 of the cyclostyled judgment, the learned judge had this to say:-

“I am persuaded by Mr Chikumbirike's submission that the Rules do not prescribe that a legal practitioner who signs an urgent certificate must not be from the same firm that represents the applicant in that matter. 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. As Mr Mlotshwa conceded, the decision in Chafanza case is not binding. It is my view that there is no conflict of interest. Even if there was such conflict, it does not seem that the conflict would render the application not urgent. I am therefore of the view that nothing much turns on the propriety of the certificate of urgency,”

It is apparent, therefore, that the reasoning by CHATUKUTA J is in conflict with the view clearly expressed by KUDYA J in Attorney General v Chiringa Estate & Ors HC659/10.

The pertinent issue which remains unresolved after considering these two cases is whether irrespective of what the correct interpretation of Rule 242(2) is, this court is not bound by the decision in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 on the basis of the principle of stare decisis as that decision was made by a panel of two judges.

In the case of African Consolidated Resources & Ors v Minerals Marketing Corporation of Zimbabwe & Ors HC2238/10 PATEL J had the privilege of comparing the apparently conflicting conclusions arrived at by KUDYA J and CHATUKUTA J in the cases already alluded to. At p4 of the cyclostyled judgment the learned judge had this to say:

“While I am prepared to accept that the certificate of urgency in this case is improper and undesirable but not fatally defective, I might still be persuaded to strike this matter off the roll for want of compliance with the Rules as construed and applied in Chafanza case. However, it is not necessary for me to make any definitive decision on this point in light of the following determination of the question of urgency.”

The approach by PATEL J, in my view, seems to be the middle of the road option as it were and is not in direct conflict with the conclusions arrived at by both KUDYA J and CHATUKUTA J.

However, in the case of Ngoni Mudekunye and Ors v Garon Evans Mudekunye & Ors HH190-10 BERE J, after discussing the apparent conflicting views of KUDYA J, CHATUKUTA J and PATEL J came to the conclusion that the decision in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 may not be in line with the correct interpretation of Rule 242(2) and that it was not a decision made by a panel of two judges. After dealing with a number of relevant issues pertaining to the conflicting views on this matter BERE J, at p9 of the cyclostyled in Ngoni Mudekunye and Ors v Garon Evans Mudekunye & Ors HH190-10, had this to say:-

“There is no doubt that this is a sound legal principle insofar as it applies to affidavits (i.e. the ratio in Chafanza case). It is however doubtful if this same principle could be extended to a certificate of urgency as currently provided for in our Rule 242 which, in my view, is very clear in its requirements…,.

My very strong view, as highlighted, is that this principle of law, sound as it is, cannot override a specific provision in our Rules particularly where the Rule itself has gone further to provide sufficient safeguards by giving the presiding judge the power to either confirm or dismiss the urgency of the matter irrespective of the existence of a certificate of urgency.”

The definitive finding made by BERE J, in Ngoni Mudekunye and Ors v Garon Evans Mudekunye & Ors HH190-10, is captured as on pp9 to 10 of the cyclostyled judgment as follows:

“Coming to the case before me, I am satisfied that there was nothing improper about Itai Ndudzo filing a certificate of urgency to certify the urgency of a matter which was being handled by his law firm. In my view, this is what it should be. In fact, it appears to me such a certificate is better and more informative document if prepared by the applicant's counsel. The point of objection raised in limine in this regard is not sustainable.”

While I am prepared to accept the lucid reasoning in the judgment of BERE J, I am unable to agree with the learned judge that Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 was not made by a panel of two judges of concurrent jurisdiction and that it is not binding to a single judge of this court.

I am more inclined to agree with PATEL J, that, while on the basis of Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299, the certificate of urgency may, under certain circumstances, be deemed to be improper and that it may be undesirable for a legal practitioner to sign an urgent certificate for and on behalf of a client who is being represented by such a law firm, that, on its own, would not make the certificate of urgency fatally defective.

The point in limine in this regard, raised by counsel for the respondents, is therefore dismissed.

HH01-11 : MUROWA DIAMONDS vs COMMISSIONER GENERAL OF THE ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA J

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 ...

HHH130-10 : STATE vs NETSAI MAFUSIRE
Ruled By: MUSAKWA J and ASSESSORS

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 ...

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.'

Tenganyika's case (supra) has been followed in this country despite criticism of it in Krull's case (supra), see for example R v Bureke 1959 (2) R&N 353 (FSC); R v Majhaye 1965 RLR 106. We are not bound by these decisions – see section 24(2) of the Supreme Court Act No.28 of 1981 – but unless there is a good reason for departing from them we would not want to give a new direction to the law at this stage. Practice Direction (Precedent) 1981(4) SA 1981…..,.”

HH222-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs LOVEMORE MAKUNUN'UNU and THE MINISTER OF LANDS, LAND REFORM AND RESETTLEMENT N.O.
Ruled By: MAKONI J

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 ...

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.

2. The applicant to pay first respondent's costs.

HH225-10 : SOUTHEND CARGO AIRLINES (PVT) LTD and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE and THE SHERIFF OF ZIMBABWE and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

In May 2003, an attempt was made by the applicant(s) to have the consent order set aside. In her judgment, HH123-04, delivered on 16 June 2004, MAKARAU J..., dismissed the application for rescission. The papers before me indicate that an appeal against that judgment, filed in 2004, still awaits prosecution – leading to the ...

HH252-10 : MUNYUKI ROBERT ARMITAGE CHIKWAVIRA vs PRODUTRADE (PRIVATE) LIMITED and REGISTRAR OF DEEDS, HARARE
Ruled By: GOWORA J

In any event, it had not been sufficiently argued before me for me to make an informed decision on the matter. I was not referred to case authority by either counsel and I was not about to embark on a research on an issue which the parties to the dispute appear not to treat ...

HH226-10 : PEPUKAI MUSARIRI vs MUSIWA MUTAVAYI and BLESSING KUPARA and NORTON TOWN COUNCIL and REGISTRAR OF DEEDS
Ruled By: MUSAKWA J

Counsel for the plaintiff's written submissions make no reference to any case law. This does not assist the court in resolving any legal issues. Counsel cannot limit their addresses to a discussion of the facts without applying relevant authorities to the facts.

HH263-10 : RITENOTE PRINTERS (PRIVATE) LIMITED vs ADAM AND COMPANY and MESSENGER OF COURT
Ruled By: GOWORA J

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 ...

HB123-10 : EDGAR HOWERA vs HERBERT MUDZINGWA and NAOMI MUDZINGWA and DEPUTY SHERIF, KWEKWE and DIRECTOR OF HOUSING, MBIZO, KWEKWE and THE REGISTRAR OF DEEDS, BULAWAYO
Ruled By: MATHONSI J

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. As stated earlier, it is not necessary, in this matter, to deal with that issue as, even without ...

HH33-11 : ALAN McGREGOR vs NEHEMIAH SABURI and ATTORNEY GENERAL and OTHERS
Ruled By: CHIWESHE JP

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 ...

HH104-13 : BOKA INVESTMENTS (PRIVATE) LIMITED vs THIRDLINE TRADING (PRIVATE) LIMITED and ONCLASS INVESTMENTS (PRIVATE) LIMITED and MASTER OF THE HIGH COURT
Ruled By: PATEL J

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 ...

View Appeal
HH129-13 : AIR ZIMBABWE [PRIVATE] LIMITED and AIR ZIMBABWE HOLDINGS [PRIVATE] LIMITED vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

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. Kuvarega v Registrar-General Anor 1998 [1] ZLR 188 [H] has withstood the test of time. It was decided in 1998. It has ...

HH339-13 : MARYLOU PALACPAC MORTEN vs MARLENE DENISE KEMUI MORTEN and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

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 ...

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

(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.

Her application for absolution from the instance cannot, therefore, succeed.

HH174-11 : TAFIREYI NYIKADZINO vs JOHN CAMERON ASHER and MINISTER OF LANDS & RURAL RESETTLEMENT and THE DEPUTY SHERIFFF
Ruled By: MUTEMA J

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. We are talking procedural law at this juncture and not substantive law.

HB99-11 : NOBUHLE NCUBE vs CBZ BANK LIMITED and THE SHERIFF FOR ZIMBABWE and BULAWAYO REAL ESTATE
Ruled By: MATHONSI J

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: “This court is bound by the precedents set ...

HB131-11 : POTENTIAL INVESTMENTS (PVT) LTD and RALEMA INVESTMENTS (PVT) LTD vs JOSEPH TAYALI (in his personal capacity) and TAYALI AND SONS and NERGER PROPERTIES (PVT) LTD
Ruled By: NDOU J

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 ...

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.”

The Supreme Court upheld the applicants' right of first refusal.The respondents are occupying the property in defiance of the abovementioned Supreme Court order. The respondents are litigants with dirty hands and their appeal is affected by that fact – Scheelite King Mining P/L v Mahachi 1998 (1) ZLR 173 (H) and Deputy Sheriff, Harare v Mahleza & Ors 1997 (2) ZLR 425 (H).

SC31-10 : COMMERCIAL FARMERS UNION and OTHERS vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

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 ...

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.

The SADC Tribunal has not been domesticated by any municipal law and therefore enjoys no legal status in Zimbabwe. I believe the same obtains in all SADC States, that is, that there is no right of appeal from the South African Constitutional Court, the Namibian Supreme Court, the Lesotho Supreme Court, the Swaziland Supreme Court, the Zambian Supreme Court and the Supreme Courts of other SADC countries to the SADC Tribunal.

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

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.BackgroundThe appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. ...

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.

HHH409-15 : THE STATE vs WALTER MUFEMA and CALLINGTON CHAVHUNDUKA and TAFADZWA RUZVIDZO and CLAUDIOS BAUNDI
Ruled By: MAFUSIRE J and TSANGA J

Not only is this court bound by the decisions of the Supreme Court and the Constitutional Court, but also the manner those courts have expressed themselves on the subject is, in my view, and with due respect, the mark of leadership in the development of jurisprudence.

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O.
Ruled By: MANGOTA J

Whilst the words of CORBETT JA…, in South Cape Corporation v Engineering Management Services 1977 (3) SA 534 (A) emanated from a court which falls outside our jurisdiction, the persuasive value of CORBETT JA's dictum cannot be taken to be without weight.

HB103-16 : DANIEL SIBANDA vs RAY C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MOYO J

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.

HH402-15 : NYASHA ZHOU and PATRICIA ZHOU and GIFT SHOKO and NYATRISH PROPERTY INVESTMENTS PL and SINCIA INVESTMENTS PL vs THE TRUSTEE OF TOMORROW TODAY YESTERDAY TRUST and SHERIFF FOR ZIMBABWE
Ruled By: MATHONSI J

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.”

Appealed
SC10-18 : UNITRACK (PRIVATE) LIMITED vs TELONE (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

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 ...

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

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 ...

Appealed
HH232-15 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: UCHENA J

The Supreme Court's decision in ICRC v Sibanda Anor 2004 (1) ZLR 27 (SC) is..., binding on this Court and must be followed.

View Appeal
SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

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), ...

Appealed
CC11-18 : LYTTON INVESTMENTS (PRIVATE) LIMITED vs STANDARD CHARTERED BANK ZIMBABWE LIMITED and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ

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 ...

HH101-15 : MICHAEL LESLIE MITCHELL STUBBS vs RENE STUBBS (nee DU PLOOY)
Ruled By: UCHENA J

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 ...

“(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.

(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

(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.

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.

HH137-15 : OLIVER CHIDAWU and DANOCT INV and DANNOV INV and BROADWAY INV vs JAYESH SHAH and TN ASSET MANAGEMENT and PELHAMS LTD and ORS
Ruled By: MATHONSI J

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

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

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.

View Appeal
CC06-19 : BONNYVIEW ESTATE (PRIVATE) LIMITED vs ZIMBABWE PLATINUM MINE (PRIVATE) LIMITED and MINISTRY OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA CJ and MAVANGIRA JCC and BHUNU JCC

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 ...

View Appeal
CC09-19 : SIMON SHONHAYI DENHERE vs MUTSA DENHERE (nee MARANGE) and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ and GWAUNZA DJC and BERE JCC

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 ...

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.

View Appeal
HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

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 ...

HH07-09 : CATHERINE CHIWAWA vs APOSTOLOS MUTZURIS and PANAYOTA MUTZURIS and GRAMMATIKI MUZTURIS and IRENE MUTZURIS and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

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 ...

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Final Orders re: Composition of Bench iro Precedents, Disparate Facts, Effect of Ex Post Facto or Subsequent Statutes

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU Ruled By: BERE J

HH29-10 : PRODUTRADE (PVT) LTD vs CONTINENTAL BAKERIES (PVT) LTD and MUNYUKI ROBERT CHIKWAVIRA Ruled By: CHATUKUTA J

HH135-09 : SIMBARASHE ANTONIO and KINGSTONE MUJATI and ASHANTI GOLDFIELDS ZIMBABWE LIMITED vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED and REGISTRAR OF DEEDS and KWADZANAYI BONDE Ruled By: MAKARAU JP

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

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO Ruled By: GOWORA J

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER) Ruled By: PATEL J

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER) Ruled By: PATEL J

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS Ruled By: NDOU J

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS Ruled By: NDOU J

HB62-09 : SAI ENTERPRISES (PRIVATE) LIMITED vs GIRDLE ENTERPRISES (PRIVATE) LIMITED t/a QUALITY ENGINEERING SERVICES (PRIVATE) LIMITED Ruled By: NDOU J

HB91-09 : GOODBYE BENJAMIN MUHWATI vs MBONGI KWENULE THEBE Ruled By: NDOU J

HH36-10 : BRANSON MARKETING (PRIVATE) LIMITED vs NATIONAL BLANKETS LIMITED Ruled By: KUDYA J

HH42-10 : BERNCORN (PVT) LTD T/A TWO KEYS TRANSPORT vs ZIMBABWE REVENUE AUTHORITY Ruled By: CHATUKUTA J

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS Ruled By: GOWORA J

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O. Ruled By: BERE J

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED Ruled By: MAWADZE J

HH01-11 : MUROWA DIAMONDS vs COMMISSIONER GENERAL OF THE ZIMBABWE REVENUE AUTHORITY Ruled By: GOWORA J

HHH130-10 : STATE vs NETSAI MAFUSIRE Ruled By: MUSAKWA J and ASSESSORS

HH222-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs LOVEMORE MAKUNUN'UNU and THE MINISTER OF LANDS, LAND REFORM AND RESETTLEMENT N.O. Ruled By: MAKONI J

HH225-10 : SOUTHEND CARGO AIRLINES (PVT) LTD and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE and THE SHERIFF OF ZIMBABWE and THE DEPUTY SHERIFF Ruled By: MTSHIYA J

HH252-10 : MUNYUKI ROBERT ARMITAGE CHIKWAVIRA vs PRODUTRADE (PRIVATE) LIMITED and REGISTRAR OF DEEDS, HARARE Ruled By: GOWORA J

HH226-10 : PEPUKAI MUSARIRI vs MUSIWA MUTAVAYI and BLESSING KUPARA and NORTON TOWN COUNCIL and REGISTRAR OF DEEDS Ruled By: MUSAKWA J

HH263-10 : RITENOTE PRINTERS (PRIVATE) LIMITED vs ADAM AND COMPANY and MESSENGER OF COURT Ruled By: GOWORA J

HB123-10 : EDGAR HOWERA vs HERBERT MUDZINGWA and NAOMI MUDZINGWA and DEPUTY SHERIF, KWEKWE and DIRECTOR OF HOUSING, MBIZO, KWEKWE and THE REGISTRAR OF DEEDS, BULAWAYO Ruled By: MATHONSI J

HH33-11 : ALAN McGREGOR vs NEHEMIAH SABURI and ATTORNEY GENERAL and OTHERS Ruled By: CHIWESHE JP

HH104-13 : BOKA INVESTMENTS (PRIVATE) LIMITED vs THIRDLINE TRADING (PRIVATE) LIMITED and ONCLASS INVESTMENTS (PRIVATE) LIMITED and MASTER OF THE HIGH COURT Ruled By: PATEL J

View Appeal HH129-13 : AIR ZIMBABWE [PRIVATE] LIMITED and AIR ZIMBABWE HOLDINGS [PRIVATE] LIMITED vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF FOR ZIMBABWE Ruled By: MAFUSIRE J

HH339-13 : MARYLOU PALACPAC MORTEN vs MARLENE DENISE KEMUI MORTEN and THE MASTER OF THE HIGH COURT Ruled By: UCHENA J

HH174-11 : TAFIREYI NYIKADZINO vs JOHN CAMERON ASHER and MINISTER OF LANDS & RURAL RESETTLEMENT and THE DEPUTY SHERIFFF Ruled By: MUTEMA J

HB99-11 : NOBUHLE NCUBE vs CBZ BANK LIMITED and THE SHERIFF FOR ZIMBABWE and BULAWAYO REAL ESTATE Ruled By: MATHONSI J

HB131-11 : POTENTIAL INVESTMENTS (PVT) LTD and RALEMA INVESTMENTS (PVT) LTD vs JOSEPH TAYALI (in his personal capacity) and TAYALI AND SONS and NERGER PROPERTIES (PVT) LTD Ruled By: NDOU J

SC31-10 : COMMERCIAL FARMERS UNION and OTHERS vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

HHH409-15 : THE STATE vs WALTER MUFEMA and CALLINGTON CHAVHUNDUKA and TAFADZWA RUZVIDZO and CLAUDIOS BAUNDI Ruled By: MAFUSIRE J and TSANGA J

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O. Ruled By: MANGOTA J

HB103-16 : DANIEL SIBANDA vs RAY C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: MOYO J

HH402-15 : NYASHA ZHOU and PATRICIA ZHOU and GIFT SHOKO and NYATRISH PROPERTY INVESTMENTS PL and SINCIA INVESTMENTS PL vs THE TRUSTEE OF TOMORROW TODAY YESTERDAY TRUST and SHERIFF FOR ZIMBABWE Ruled By: MATHONSI J

Appealed SC10-18 : UNITRACK (PRIVATE) LIMITED vs TELONE (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

Appealed HH232-15 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE LIMITED and THE SHERIFF OF ZIMBABWE Ruled By: UCHENA J

View Appeal SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

Appealed CC11-18 : LYTTON INVESTMENTS (PRIVATE) LIMITED vs STANDARD CHARTERED BANK ZIMBABWE LIMITED and ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MALABA CJ

HH101-15 : MICHAEL LESLIE MITCHELL STUBBS vs RENE STUBBS (nee DU PLOOY) Ruled By: UCHENA J

HH137-15 : OLIVER CHIDAWU and DANOCT INV and DANNOV INV and BROADWAY INV vs JAYESH SHAH and TN ASSET MANAGEMENT and PELHAMS LTD and ORS Ruled By: MATHONSI J

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY Ruled By: CHIGUMBA J

View Appeal CC06-19 : BONNYVIEW ESTATE (PRIVATE) LIMITED vs ZIMBABWE PLATINUM MINE (PRIVATE) LIMITED and MINISTRY OF LANDS AND RURAL RESETTLEMENT Ruled By: MALABA CJ and MAVANGIRA JCC and BHUNU JCC

View Appeal CC09-19 : SIMON SHONHAYI DENHERE vs MUTSA DENHERE (nee MARANGE) and ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MALABA CJ and GWAUNZA DJC and BERE JCC

View Appeal HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE Ruled By: CHIWESHE JP and CHAREWA J

HH07-09 : CATHERINE CHIWAWA vs APOSTOLOS MUTZURIS and PANAYOTA MUTZURIS and GRAMMATIKI MUZTURIS and IRENE MUTZURIS and THE REGISTRAR OF DEEDS Ruled By: MAKARAU JP

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Zimbabwe

HH40-09 : DODHILL (PVT) LTD and SIMON KEEVIL vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and NYASHA CHIKAFU
Ruled By: BERE J

HH29-10 : PRODUTRADE (PVT) LTD vs CONTINENTAL BAKERIES (PVT) LTD and MUNYUKI ROBERT CHIKWAVIRA
Ruled By: CHATUKUTA J

HH135-09 : SIMBARASHE ANTONIO and KINGSTONE MUJATI and ASHANTI GOLDFIELDS ZIMBABWE LIMITED vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED and REGISTRAR OF DEEDS and KWADZANAYI BONDE
Ruled By: MAKARAU JP

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

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS
Ruled By: NDOU J

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS
Ruled By: NDOU J

HB62-09 : SAI ENTERPRISES (PRIVATE) LIMITED vs GIRDLE ENTERPRISES (PRIVATE) LIMITED t/a QUALITY ENGINEERING SERVICES (PRIVATE) LIMITED
Ruled By: NDOU J

HB91-09 : GOODBYE BENJAMIN MUHWATI vs MBONGI KWENULE THEBE
Ruled By: NDOU J

HH36-10 : BRANSON MARKETING (PRIVATE) LIMITED vs NATIONAL BLANKETS LIMITED
Ruled By: KUDYA J

HH42-10 : BERNCORN (PVT) LTD T/A TWO KEYS TRANSPORT vs ZIMBABWE REVENUE AUTHORITY
Ruled By: CHATUKUTA J

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O.
Ruled By: BERE J

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED
Ruled By: MAWADZE J

HH01-11 : MUROWA DIAMONDS vs COMMISSIONER GENERAL OF THE ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA J

HHH130-10 : STATE vs NETSAI MAFUSIRE
Ruled By: MUSAKWA J and ASSESSORS

HH222-10 : FORRESTER ESTATE (PRIVATE) LIMITED vs LOVEMORE MAKUNUN'UNU and THE MINISTER OF LANDS, LAND REFORM AND RESETTLEMENT N.O.
Ruled By: MAKONI J

HH225-10 : SOUTHEND CARGO AIRLINES (PVT) LTD and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE and THE SHERIFF OF ZIMBABWE and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

HH252-10 : MUNYUKI ROBERT ARMITAGE CHIKWAVIRA vs PRODUTRADE (PRIVATE) LIMITED and REGISTRAR OF DEEDS, HARARE
Ruled By: GOWORA J

HH226-10 : PEPUKAI MUSARIRI vs MUSIWA MUTAVAYI and BLESSING KUPARA and NORTON TOWN COUNCIL and REGISTRAR OF DEEDS
Ruled By: MUSAKWA J

HH263-10 : RITENOTE PRINTERS (PRIVATE) LIMITED vs ADAM AND COMPANY and MESSENGER OF COURT
Ruled By: GOWORA J

HB123-10 : EDGAR HOWERA vs HERBERT MUDZINGWA and NAOMI MUDZINGWA and DEPUTY SHERIF, KWEKWE and DIRECTOR OF HOUSING, MBIZO, KWEKWE and THE REGISTRAR OF DEEDS, BULAWAYO
Ruled By: MATHONSI J

HH33-11 : ALAN McGREGOR vs NEHEMIAH SABURI and ATTORNEY GENERAL and OTHERS
Ruled By: CHIWESHE JP

HH104-13 : BOKA INVESTMENTS (PRIVATE) LIMITED vs THIRDLINE TRADING (PRIVATE) LIMITED and ONCLASS INVESTMENTS (PRIVATE) LIMITED and MASTER OF THE HIGH COURT
Ruled By: PATEL J

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HH129-13 : AIR ZIMBABWE [PRIVATE] LIMITED and AIR ZIMBABWE HOLDINGS [PRIVATE] LIMITED vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

HH339-13 : MARYLOU PALACPAC MORTEN vs MARLENE DENISE KEMUI MORTEN and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

HH174-11 : TAFIREYI NYIKADZINO vs JOHN CAMERON ASHER and MINISTER OF LANDS & RURAL RESETTLEMENT and THE DEPUTY SHERIFFF
Ruled By: MUTEMA J

HB99-11 : NOBUHLE NCUBE vs CBZ BANK LIMITED and THE SHERIFF FOR ZIMBABWE and BULAWAYO REAL ESTATE
Ruled By: MATHONSI J

HB131-11 : POTENTIAL INVESTMENTS (PVT) LTD and RALEMA INVESTMENTS (PVT) LTD vs JOSEPH TAYALI (in his personal capacity) and TAYALI AND SONS and NERGER PROPERTIES (PVT) LTD
Ruled By: NDOU J

SC31-10 : COMMERCIAL FARMERS UNION and OTHERS vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

HHH409-15 : THE STATE vs WALTER MUFEMA and CALLINGTON CHAVHUNDUKA and TAFADZWA RUZVIDZO and CLAUDIOS BAUNDI
Ruled By: MAFUSIRE J and TSANGA J

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O.
Ruled By: MANGOTA J

HB103-16 : DANIEL SIBANDA vs RAY C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MOYO J

HH402-15 : NYASHA ZHOU and PATRICIA ZHOU and GIFT SHOKO and NYATRISH PROPERTY INVESTMENTS PL and SINCIA INVESTMENTS PL vs THE TRUSTEE OF TOMORROW TODAY YESTERDAY TRUST and SHERIFF FOR ZIMBABWE
Ruled By: MATHONSI J

Appealed
SC10-18 : UNITRACK (PRIVATE) LIMITED vs TELONE (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

Appealed
HH232-15 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: UCHENA J

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SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

Appealed
CC11-18 : LYTTON INVESTMENTS (PRIVATE) LIMITED vs STANDARD CHARTERED BANK ZIMBABWE LIMITED and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ

HH101-15 : MICHAEL LESLIE MITCHELL STUBBS vs RENE STUBBS (nee DU PLOOY)
Ruled By: UCHENA J

HH137-15 : OLIVER CHIDAWU and DANOCT INV and DANNOV INV and BROADWAY INV vs JAYESH SHAH and TN ASSET MANAGEMENT and PELHAMS LTD and ORS
Ruled By: MATHONSI J

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

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CC06-19 : BONNYVIEW ESTATE (PRIVATE) LIMITED vs ZIMBABWE PLATINUM MINE (PRIVATE) LIMITED and MINISTRY OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA CJ and MAVANGIRA JCC and BHUNU JCC

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CC09-19 : SIMON SHONHAYI DENHERE vs MUTSA DENHERE (nee MARANGE) and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ and GWAUNZA DJC and BERE JCC

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HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

HH07-09 : CATHERINE CHIWAWA vs APOSTOLOS MUTZURIS and PANAYOTA MUTZURIS and GRAMMATIKI MUZTURIS and IRENE MUTZURIS and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP