This is an appeal against the judgment of the High Court dismissing, with costs on a legal practitioner and client scale, an application for condonation of the failure to apply for the rescission of a default judgment granted in Case No. HC2424/17 within the time stipulated by the High Court Rules 1971.

The appellant had simultaneously filed an application for the rescission of the default judgment. However, this part of the application was abandoned following strenuous opposition by the respondents and with the concurrence of the court a quo.

The respondents issued summons against the appellant on 21 March 2017, in Case No. HC2424/17, for the payment of $98,979=, together with interest, in respect of sums allegedly misappropriated by the appellant from the second respondent.

The appellant disputed the claim and denied owing any monies as alleged.

A pre-trial conference was set down for 9 October 2017 and was postponed to 26 October 2017. The appellant failed to appear at the pretrial conference because he was unaware that he was required to be present. His legal practitioner also did not appear himself but was represented by his colleague who was unable to explain the appellant's absence.

A default judgement in favour of the respondents was entered against the appellant who consequently filed the dual application for condonation and rescission referred to above through a different firm of legal practitioners.

As was noted by the court a quo, none of the appellant's erstwhile lawyers had filed any supporting affidavits explaining their conduct and the appellant's absence from the pre-trial conference. Furthermore, there was no supporting affidavit from the employee in that firm of lawyers who was said by the appellant to have called him belatedly on the day of the pretrial conference.

In his founding papers, the appellant lamented the “gross negligence” on the part of his erstwhile lawyers and the “great disservice” occasioned to him by their conduct.

The court a quo found, that, in view of the above evidentiary deficiencies, the appellant's averments remained unsubstantiated.

In the court's view, this was a typical case where the dereliction of professional duty, imputed by the appellant to his legal practitioners of choice, should be held against him personally.

The court observed that the pre-trial conference was postponed and that the appellant must have been aware of the postponement. There was therefore no reason why he did not attend the pretrial conference since any diligent litigant would attend unless excused from so doing.

Additionally, the fact that the appellant had accepted the wrong legal advice from his lawyers, in noting an appeal against the default judgement, did not justify his subsequent attempt to follow the correct procedure because, if he were allowed to do so, there would be no finality to litigation.

As regards the appellant's prospects of success, the learned judge a quo found, that, the appellant had not shown that the intended application for rescission had any merit. This was due to the fact that his defence to the claim instituted by the respondents was not articulated in his application.

As for costs, the learned judge took the view, that, the appellant had persisted with the application even though he knew that it had no merit. Consequently, the respondents had been unnecessarily put out of pocket for the costs of attendance by an advocate on two different days when the matter could have been argued in less than an hour.

In the event, the application for condonation of the failure to timeously apply for rescission of the default judgment was dismissed with costs on a punitive scale.

The grounds of appeal in this matter, as grammatically corrected, are as follows:

(1) The court a quo erred at law in finding, that, the appellant did not articulate his defence to the claim despite such defence being addressed in the application for condonation and the heads of argument. The failure to properly deal with prospects of success amounts to a failure to determine the matter according to law.

(2) The court a quo erred in not making a cumulative assessment on whether all the requirements had been satisfied as required by law. A court is bound, at law, to consider and evaluate all the requirements in conjunction with each other and not to place too much emphasis on the requirements individually.

(3) The court a quo grossly misdirected itself in extending the sins of the appellant's erstwhile legal practitioners to the appellant. The peculiar circumstances of the matter were that the appellant could not make an independent assessment or give a considered instruction on the remedies adopted, and, therefore, non-compliance should not have been extended to him.

(4) The court grossly erred at law in failing to find that the appellant had high prospects of success and in failing to exercise its discretion to grant condonation in the interests of justice.

The factors to be considered in an application for the condonation of any failure to comply with the rules of court are well-established. They are amply expounded in several decisions of this Court in which the salient criteria are identified. They include the following:

(a) The extent of the delay involved or non-compliance in question.

(b) The reasonableness of the explanation for the delay or non-compliance.

(c) The prospects of success should the application be granted.

(d) The possible prejudice to the other party.

(e) The need for finality in litigation.

(f) The importance of the case.

(g) The convenience of the court.

(h) The avoidance of unnecessary delays in the administration of justice.

See Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Maheya v Independent African Church SC58-07; Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

As was observed in the latter case, the factors listed above are not exhaustive.

In its judgment, the court a quo found that “the applicant has not shown that the intended application for rescission has merits [because] the applicant's defence to the claim is not articulated in this application.”

Having regard to the contents of the applicant's founding affidavit a quo, the above finding is patently erroneous.

In that affidavit, the appellant not only attacks the order sought to be rescinded but also categorically articulates his defence to the main claim, to wit, that the alleged payments of salary were not made by the second respondent but by a different company run by the first respondent and that, therefore, the respondents had no cause of action against him.

In their opposing papers, the respondents did not challenge the appellant's averments as to his defence.

What this shows is that there was a dispute between the parties which required a determination on the merits.

The court a quo did not find that the appellant's defence was spurious or unsustainable. It simply declared that there was no defence whatsoever.

It is relatively clear, therefore, that, the court a quo failed to take into account the appellant's averments, and, consequently, made findings that were entirely inconsistent with the affidavits filed by the parties.

In this regard, it obviously erred and misdirected itself in the exercise of its discretion on the facts that were placed before it, by not dealing properly with the appellant's defence and his prospects of success.

An interesting point of law that arose in the course of submissions by counsel relates to the following question: which prospects of success must a court assess in considering an application for condonation of the failure to apply timeously for the rescission of a default judgment?

Is it the prospects of success in the application for rescission or the prospects of success in the main matter in which the default judgment was granted?

Counsel for the respondents insists, that, it is the former only, while counsel for the appellant contends that it is either the latter or both, the former and the latter.

In this context, the cases relied upon by both counsel do not afford any definitive answer to the question raised.

In Maheya v Independent African Church SC58-07, the Court was seized with an application for the reinstatement of an appeal. MALABA JA…, held…, that, the appellant could not escape the consequences of the lack of diligence on the part of her legal practitioners and that this, coupled with the absence of prospects of success on appeal, justified the dismissal of the application for reinstatement of the appeal.

In Chomurema & Anor v Telone SC86-14, the applicants sought leave to file a belated appeal against their dismissal from employment.

GWAUNZA JA…, noted…, that, there was nothing to prevent the Labour Court, in the interests of finality to litigation, from hearing a composite application for condonation of the late filing of an application for leave to appeal together with an application for leave to appeal to the Supreme Court.

Finally, the case of Hove v Zimphos Ltd & Ors SC08-18 concerned an application for condonation of the late noting of an application for the rescission of a default judgment.

ZIYAMBI AJA…, found that the applicant had to establish that the intended application for rescission enjoyed prospects of success. The learned judge then proceeded to find that it had not been shown that there were prospects of success on appeal on the grounds of appeal raised or that there was any impropriety in the manner in which the Labour Court exercised its discretion to dismiss the application for condonation. For these combined reasons, the instant application for condonation was dismissed with costs.

As I have already intimated, these decisions, rendered in chamber applications, do not decisively answer the question posed.

My tentative and obiter view is that it is the merits of the main matter and the prospects of success therein that the court is enjoined to consider in an application for the condonation of the late noting of an application for the rescission of a default judgement.

I take this view on the basis, that, it is necessary for the court seized with either application to grapple with the merits of the main matter in order to properly address the gravamen of the real dispute between the parties involved. Any other approach would tend to militate against the need for finality in litigation as well as the interests of justice.

In any event, my view on this question is rendered somewhat superfluous by the fact that the court a quo did not address any prospects of success whatsoever in disposing of the application before it.

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008.

He goes on to say, that, he should be allowed to contest the eviction because he bought the house from the first respondent and he paid the full purchase price.

In support of that claim, he has filed documents showing that the first respondent, as employer, offered houses to its employees, including the applicant. Those documents also show that the housing units were valued, their values determined and what each employee was expected to pay as the purchase price assessed and agreed.

The applicant also submitted his payslip showing that deductions were made by the first respondent from his salary under the caption “rent to buy”. The same payslip also reflects the balance after each deduction of the said 'rent to buy' showing that the amount charged was being progressively reduced. In addition, he filed receipts issued by the first respondent for further lump sum payments marked “payment of House 1495.”

For that reason, the applicant is of the firm view, that, having paid the full purchase price for the house, he cannot be evicted from it and has prospects of success on the merits.

The first respondent strongly opposes the application on the basis that the applicant has not shown good and sufficient reasons for the rescission of the judgment entered in default.

It has been argued on behalf of the first respondent, that, as the owner of the house, with title, it is entitled to vindicate against the applicant and that there was never an agreement of sale between the parties involving the house in question.

Counsel for the first respondent insisted that the relationship between the parties was governed by the written lease agreement signed in December 2003, which document the applicant says only recorded the financial arrangement between the parties for the conveyance, to the first respondent, of the purchase price. He vehemently argued, that, in terms of that lease agreement, the applicant would only be eligible for consideration to purchase the house at the expiration of 60 months from the date of the signing of that lease agreement.

Regrettably, counsel for the first respondent did not explain what governed the relationship between the parties before the lease agreement of 29 December 2003 was signed.

He took the view, that, as the applicant retired in March 2007, before the 60 month period had expired, he was not eligible to purchase the house and the first respondent was entitled to reclaim it.

There is a dispute as to when the applicant retired and two (2) different letters purporting to inform him of his resignation have been produced.

The first respondent produced a letter dated 14 November 2007 recording the applicant as having resigned on 31 March 2007.

Counsel for the applicant insists that letter is a recent fabrication by the first respondent, and has produced a letter written by the applicant's Human Resources Manager, M. Nyamadzawo, on 22 June 2005, giving the applicant notice of his retirement on 31 December 2005.

The first respondent has not explained the circumstances under which that letter was written if the applicant had not resigned.

Rule 63 of the High Court of Zimbabwe Rules 1971 provides:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971 are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226E-H. Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant, for failure to respond to the summons, is not
convincing, especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to responded to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S), that, the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgement has discharge the onus of showing “good and sufficient cause” for the rescission.

I had occasion, in Mazuva v Simbi and Ors HB155-11, a matter in which an applicant for rescission had not given a good explanation for failure to act, to comment…, that, even in such a situation such applicant can still discharge the onus if all the factors are taken together. In that matter, I stated:

“While the explanation for the first respondent's failure to respond to the application in HC905/10 is what MAKARAU JP (as she then was) referred to in Mwanyisa v Jumbo & Ors HH03-10 as 'a dog's breakfast' if the factors to be taken into account in deciding a rescission of judgment application, as set out in Stockill v Griffiths (supra), are taken in conjunction with one another, the applicant has discharged the onus of proving 'good and sufficient cause' for the rescission of the judgment entered on 1 July 2010. It simply cannot stand.”

Here is a company which avails to its employees an opportunity to purchase houses they are leasing from it. It signs an understanding with the employees representatives which has, appended to it, a list of beneficiaries which list sets out the value of each housing unit and the monthly instalment to be paid by each beneficiary - the applicant included. It goes on to deduct the equivalent of such instalment from the applicant's salary clearly stating that it is rent to buy the house and to also show the balance outstanding after such deduction.

The same instalment is reflected on a written lease agreement.

It must be understood, that, in an application of this nature, the applicant is not required to prove his case but merely to show a bona fide defence carrying prospects of success.

Counsel for the first respondent referred me to the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 (unreported) in which the Supreme Court ruled, that, the agreement signed between the first respondent and its employees, on 1 December 2003, which the applicant relies upon, was not a sale.

That issue was considered by MAKARAU JP…, in: 1. Antonio v Ashanti Goldfields Zimbabwe Ltd & Anor; 2. Mujati v Ashanti Goldfields Zimbabwe Ltd & Anor; 3. Ashanti Goldfields Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H); which matters involved the same arguments as in casu.

She distinguished that case and concluded…, as follows:

“I am bound by all decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

I find myself in agreement with that postulation.

I am not aware if that judgment has been challenged, but, until such time that it is overturned, I am entitled to use it as I am persuaded by it.

Following the guidance given in Stockill v Griffiths 1992 (1) ZLR 172 (S), to consider the factors not only individually but in conjunction with one another and with the application as a whole, I am of the view, that, the applicant has discharged the onus resting on him to show 'good and sufficient cause' for the rescission of the default judgment.

Justice demands that the issues raised ought to be interrogated fully in a trial and that the applicant should not be shut out, as it were, on the technicality of default judgment.

In the result, I make the following order; that

1. The default judgement entered on 26 June 2008 be and is hereby rescinded.

2. The applicant should file his notice of appearance to defend in HC642/08 within ten (10) days of the date of this order.

3. The costs of this application shall be costs in the main action.

This is an application for summary judgment whose draft order reads:

“1. The respondent be and are (sic) hereby ordered to vacate the plaintiff's premises to wit House No. 1117 Haka Way, Chipadze Township, within seven (7) days of this order.

2. The respondent pays costs of suit.”

This is one of several similar matters in which the applicant is seeking the eviction of its former employees from company houses on the basis that the former employees were mere tenants whose employment has since terminated.

The former employees, just like the respondent herein, argue that the applicant sold the houses to them.

The respondent argues that he has a bona fide defence to the applicant's claim. That defence is explained as follows:

In 1998, the applicant, as part of its staff retention scheme, proposed to sell its housing units to its employees over a five year period. By then, the life-span of the mine had been projected to be around five years. The scheme would also help the applicant realize better value from the disposal of the houses in that manner as opposed to by selling them upon closure of the mine in an environment akin to a ghost town.

As a sequel to the proposal, a lot of deliberations were held on the issue and a Housing Committee was put in place composed of representatives of the employees and the applicant.

The relevant minutes were attached to the opposing papers.

Minutes of 8 May 2003 read:

“2.1 Sale of Residential Properties

The process was still ongoing and progressing well. The Finance Director, together with the workers representative went to consult a lawyer to resolve the outstanding issues. The lawyer came up with what he advised as the best option. Minor changes were made to what the lawyer proposed to suit the employee's needs. Whether that is acceptable will be determined when forms are taken back to the lawyers. IT WAS AGREED that the issue be pursued closely so that it comes to rest.”

Minutes of 24 August 2003 read:

“2.1 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. A hurdle on the revaluation of the houses was cleared with Mr Kwaku-Akosah-Bempah when he visited the mine during the second quarter. The Finance Director, together with the worker's representative, had been to the lawyer with the final draft to which the lawyer had already responded….,.”

Thereafter, what was termed a Memorandum of Agreement BETWEEN Ashanti Goldfields Management and Employees was signed. It provided:

“Ashanti Goldfields Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats and Low Density to its employees who are sitting tenants effective 1 December 2003. Find the agreed prices attached.”

The attached schedule has names of the sitting tenants, house number, new valuation of the house, and monthly repayment amount.

On 12 December 2003, the respondent (and other employees) entered into what is headed Agreement of Lease with the applicant.

The material clauses of the “lease” state that the lease period would be for five years, monthly rent of not more than 25% of the lessee's basic salary which would escalate periodically at a rate and on the basis described in Annexure 'A' viz:

“The value of the property will be revalued each time the employee is awarded the annual salary increment. The outstanding balance as at the effective date of the increment is what is revalued. The revaluation will be calculated as follows:

50% of the salary increment (%) x the outstanding balance (as at that date). The revalued outstanding balance will then be divided by the remaining period to get the monthly payment.”

The purported lease agreement was simply a vehicle through which deductions would be made from the respondent's salary.

This explains why the applicant, on the respondent's payslip, put a deduction titled “Rent to Buy” and why the applicant accepted a lump sum payment in full and final settlement of the sums payable to it under the agreement of sale before the expiration of the purported lease period.

Also, the minutes of 16 December 2003 are apposite. The relevant part reads:

“3.0 Sale of Residential Properties

There was a lot of progress on the sale of residential properties. Management had approved and concluded the sale. The employees are busy filling in the contract forms.”

Pertinent to note here is that this was said after 12 December 2003 purported lease agreement.

While there exists a plethora of case law on the subject of summary judgment, the locus classicus is that of Maharaj v Barclays National Bank Limited 1976 (1) SA 418 (AD)…, where CORBETT JA said:

“Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the court, by affidavit, that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material alleged by the plaintiff in his summons…, are disputed, or new facts are alleged constituting a defence, the court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of one party or the other.

All that the court enquires into is:

(a) Whether the defendant has fully disclosed the nature and grounds of his defence and the material facts upon which it is founded; and

(b) Whether, on the facts so disclosed, the defendant appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law.”

On the facts so disclosed in casu, I am persuaded that the respondent's defence is bona fide and good in law.

I also derive solace in reaching this conclusion from the salutary words of GUBBAY JA…, in Jena v Nechipote 1986 (1) ZLR 29 (S)…, where the LEARNED JUDGE OF APPEAL held:

“All the defendant has to establish in order to succeed in having an application for summary judgment dismissed is that there is a mere possibility of his success; he has a plausible defence; there is a triable issue; or there is a reasonable possibility that an injustice may be done if summary judgment is granted.”

The respondent's explanation, expounded above, right through its chronology of events pertaining to the disposal of residential properties, does amount to a trial issue. There exists a reasonable possibility of an injustice being done if summary judgement were to be granted.

I am constrained to utter the following strictures concerning the applicant's obduracy.

As stated above, there are scores of similar cases involving the applicant and its former employees. One such is Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 wherein I dismissed a similar application on the same grounds.

The applicant seems to be engaged in a process of judge-hunting because several similar cases are either pending before other judges or have been dealt with meeting with the same fate of dismissal.

In 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 MAKARAU JP…, following a full trial based on similar claims, distinguished Ashanti Goldfields Zimbabwe Limited v Clemence Kovi SC07-09 which the applicant seems to rely on in its claims and held that the facts in HH139-09 established a sale.

Those facts fall on all fours with the facts in casu as well as those in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 in which I dismissed the application for summary judgment and gave the respondent unconditional leave to defend.

Although the judgment in 1. Simbarashe Antonio v Ashanti Goldfields Zimbabwe Limited & Registrar of Deeds; 2. Kingstone Mujati v Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine & Registrar of Deeds; and 3. Ashanti Goldfields Zimbabwe Limited v Kwadzanayi Bonde HH135-09 was appealed against, and the appeal is still pending, it is only prudent and proper that the applicant should await its outcome and stop judge hunting in order to avoid creating a multiplicity of contradictory judgments involving the same issue thereby causing confusion and injustice.

Since the facts and argument in casu fall on all fours with the cases dealt with by MAKARAU JP…, cited supra, and Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Joachim C Nguwo HH58-12 I dealt with supra, the present application for summary judgement be and is hereby dismissed and the defendant is given unconditional leave to defend the action.

The applicant is ordered to pay the costs of this application.

On 23 January 2015, after hearing counsel and having gone through papers filed of record, and the parties having failed to settle the matter on the basis of recent precedent, I gave an order dismissing the appeal with costs and indicated that reasons thereof will follow in due course.

I now proceed to set them down below.

The facts of this matter are common cause:

By correspondence dated 13 March 2007, the respondent made a ruling, that, the appellant was obliged to withhold and remit non–resident tax on fees paid to an entity known as Centachrome, an agent based in Switzerland.

Centachrome was appointed “sub-agent” in an agreement entered into by and between the appellant (“producer”), the Minerals Marketing Corporation of Zimbabwe (MMCZ) (“marketing agent”) and Centachrome.

Centachrome was supposed to facilitate the selling of ferrochrome produced by the appellant, but sold through the Minerals Marketing Corporation of Zimbabwe (MMCZ) in terms of the Minerals Marketing Corporation of Zimbabwe Act [Chapter 21:04] which requires that all minerals mined in Zimbabwe are marketed by and through the MMCZ.

On 11 May 2007, the appellant wrote to the respondent objecting to the ruling. By letter dated 15 November 2007, the respondent disallowed the objection but reduced the penalty to 60% from the initial 100% it had stipulated.

Aggrieved by the decision of the respondent, the appellant noted an appeal to this Court challenging the decision of the respondent on grounds that may be summarised as follows:

(a) The appointment of Centachrome had the effect of making it an agent of the Minerals Marketing Corporation of Zimbabwe (MMCZ) and not an agent of the appellant.

(b) The appellant was not obliged to pay withholding non–resident tax since the money paid to Centachrome was commission and commission is not fees as defined in terms of the 17th Schedule of the Income Tax Act [Chapter 23:06].

(c) The money paid to Centachrome was not derived from a source within Zimbabwe as stipulated by the 17th Schedule of the Income Tax Act [Chapter 23:06]....,.

The next issue is whether money paid to Centachrome, as commission, constituted “fees” in accordance with the 17th Schedule of the Income Tax Act.

The appellant contended, that, it did not pay any fees or monies to Centachrome. Rather, it argued that Centachrome would deduct all charges and commissions from monies earned from the sale of ferrochrome on behalf of the appellant and remit the balance to the appellant.

On the other hand, the respondent averred, that, the money paid by the appellant to Centachrome was indeed commission for the services rendered, and, even if the court agreed with the appellant that Centachrome had deducted the monies itself, such amounts constituted fees in terms of the 17th Schedule of the Income Tax Act, and, in the premises, the appellant was obliged to withhold non–resident tax on them.

The respondent further pointed to clause 3.6 of the agreement entered into by the appellant, the Minerals Marketing Corporation of Zimbabwe (MMCZ) and Centachrome which provides that:

“3.6 The selling Agent/Producer will pay the Sub Agent a commission of 2.0% (two percent) on gross invoice value sale.”

This, the respondent argued, meant that the appellant was charged with the obligation of payment of commission.

In resolving this dispute, one can look no further than to the 17th Schedule of the Income Tax Act, which defines “fees” as follows:

“1. (1) In this Schedule, subject to subparagraph (2) —

'fees' means any amount from a source within Zimbabwe payable in respect of any services of a technical, managerial, administrative or consultative nature, but does not include any such amount payable in respect of —…,.…”…,.

The respondent submitted that the words “any amount” above give a broad definition to the term fees and contended that money paid as commission could be regarded as 'any amount' for the purposes of section 1(1) of the 17th Schedule of the Income Tax Act.

In my view, the respondent was correct in its interpretation of the words “any amount” to include commission.

From the above definition, it is clear that the legislature intended “fees” to cover any sum of money, by whatever name called, paid for services rendered of a technical, managerial, administrative or consultative nature save for those that are expressly excluded.

As far as the method of payment is concerned, fees are deemed to have been paid to the payee if they “are credited to his account or so dealt with that the conditions under which he is entitled to them are fulfilled, whichever occurs first:” (section 1(2)(c) of 17th Schedule of the Income Tax Act).

Thus, the fees in question can be held to have been directly paid to Centachrome, or, at the very least, deemed to have been so paid by the appellant.

The appellant disputes that the source of the commission is from within Zimbabwe and seeks to rely for that proposition on the decision in Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimra HB78-04; 2004 (1) ZLR 506 (H).

In that case, CHEDA J held, inter alia, at paragraph 15, that, payment of a commission by a foreign client to a foreign marketing agent of a local safari operator outside the country did not, under paragraph 1(1) of the 17th Schedule of the Income Tax Act, constitute payment of fees from within Zimbabwe even though the originating cause was the safari operation in Zimbabwe.

In my view, however, the facts in this case are distinguishable from those in Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimra HB78-04; 2004 (1) ZLR 506 (H).

In casu, the appellant clearly qualifies as the “payer” i.e. “any person who or partnership which pays or is responsible for the payment of fees…,” and is ordinarily resident in Zimbabwe; whereas, in Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimra HB78-04; 2004 (1) ZLR 506 (H) the payment of fees or commission was ostensibly done by foreign clients to a foreign marketing agent.

I am also of the respectful view, that, even in Sunfresh Enterprises (Pvt) Ltd t/a Bulembi Safaris v Zimra HB78-04; 2004 (1) ZLR 506 (H), had the court addressed itself to why the fees or commission were paid, it could well have concluded that it was for the services rendered by the foreign agent to the local safari operator and accordingly resolved the matter.

This is an application for summary judgment wherein the applicant seeks the eviction of the respondent and all those claiming occupation through him from House Number 1131, Chipadze Township, Bindura and costs of suit.

The facts of this matter are largely common cause:

The respondent was employed by the applicant. With the passage of time, the apparently benevolent employer, being the applicant, decided to sell some of the houses to some employees who were sitting tenants.

Some sort of agreement was entered between the applicant, represented by its General Manager and Financial Director, and the employees, represented by the Workers Committee members being the Chairman and two Committee members.

The said agreement or memorandum is dated 1 December 2003 and is in the following terms;

“MEMORANDUM OF AGREEMENT BETWEEN ASHANTI GOLD FIEDS MANAGEMENT AND EMPLOYEES

Ashanti Goldfield Zimbabwe agrees to dispose of its housing units situated in Chiwaridzo, Grey Line Flats, and Low Density to its employees, who are sitting tenants, effective 01 December 2003. Find the agreed prices attached.”

The said agreement is attached to the applicant's founding affidavit as Annexure F1 to F4.

Attached to this agreement is a schedule which has a list of the employees involved, the house they occupy, the value of each house (in Zimbabwe dollars) and the monthly instalments or repayment each employee was to pay.

The respondent occupied House No.1131 which was then valued at Zimbabwean dollars $1,200,000 and was to pay a monthly instalment of Zimbabwe $20,000.

Pursuant to the signing of the Memorandum of Agreement explained above, and on 12 December 2003, the applicant and the respondent entered into what is called “Agreement of Lease” in which the applicant agreed to lease House No.1131 Chipadze, Bindura (the house) to the respondent for a period of 60 months (5 years) commencing 1 January 2004 at the monthly rentals of Zimbabwean $20,000 which was reviewable in accordance with Annexure 'A' to that lease agreement (which provided for revaluation of the property whenever employees are awarded a salary increment).

These monthly rentals were deducted from the respondent's salary.

Clause 3 of the lease agreement provided for the option to buy the house. It provides as follows;

“3. OPTION TO PURCHASE

3.1. The lessee shall have the option to purchase the property after sixty months.

3.2. The rentals paid by the Lessee to the Lessor in terms hereof shall be taken and be deducted from the amount due in respect of the purchase price determined in accordance with the provisions of Clause 3.1. (above).”

The lease agreement is signed by a representative of the applicant and the respondent.

From other decided cases I have been referred to, dealt with by this court, it is common cause that a number of employees entered into such a lease agreement.

It would appear to my mind, that, the dispute in this case, and other cases already dealt with by this court, relates to interpretation to be accorded to the “Memorandum of Agreement” dated 1 December 2003 and the lease agreement dated 12 December 2003 and the relationship between the two documents.

I shall revert to this point later.

After the issuing of the Memorandum of Agreement, on 1 December 2003, and before the signing of the lease agreement, on 12 December 2003, the Workers Committee, through what was now called the Housing Committee, issued out a Memorandum to all employees of the applicant copied to the applicant.

This Memorandum explained the Agreement reached on 1 December 2003. Most importantly, it invited the employees who were sitting tenants to take up the offer to buy the houses.

The relevant part of this Memorandum, dated 2 December 2003, reads as follows;

“Please note that you have until February 29, 2004 to decide whether to purchase the house you are living in or not, after which date the offer will be extended to an employee who is willing to purchase the property. The offer is now open, therefore, employees who are ready can see the Members to formalise the purchase.”…,.

It was after this invitation that the respondent entered into the lease agreement with the applicant on 12 December 2003.

In addition to that, the respondent has attached as Annexures A1 to A3 his payslips which reflect that money was deducted from his salary which money is reflected as “rent to buy”.

The payslips are as follows;

A1, dated 31 October 2004, has a deduction indicated as “Bal rent to buy $52,755”

A2, dated 25 March 2004, has a deduction indicated as “Bal rent to but $116,000”

A3, dated 25 June 2004, has a deduction reflected as “Bal rent to buy $56,895”

The respondent has also attached to his opposing affidavit a memorandum from the applicant, written by the applicant's Financial Controller to the respondent and copied to the Housing Committee dated, 14 March 2004. Its contents are as follows;

“This memo serves as an acknowledgement that we have received $1,100,000 (one million one hundred thousand dollars) as payment towards yours house. The outstanding balance is now $60,000 (sixty thousand dollars).”

It is common cause that the respondent, who was employed by the applicant, and was the sitting tenant in this house as at 1 December 2003, was summarily dismissed on 15 July 2009 following a disciplinary hearing held in terms of their Code of Conduct.

This means, that, as at the date of his dismissal, the respondent has been in occupation of the house for a period of sixty seven (67) months - which is in excess of the sixty months stipulated in the Lease Agreement dated 12 December 2003.

After the dismissal, on 15 July 2009, the respondent, on 4 September 2009, was advised to vacate the house on the basis that the lease agreement which entitled him to occupy the house had lapsed due to the termination of the respondent's contract of employment (see Annexure D to the applicant's founding affidavit).

The respondent refused to vacate the house.

This prompted the applicant to issue summons out of this court in HC4395/09 (main matter) seeking the eviction of the respondent and all those claiming occupation through him and costs of suit.

The respondent entered an appearance to defend and filed a plea, which plea had been dismissed by the applicant as not raising a good prima facie defence, culminating in this application for summary judgement.

It is useful, at this stage, to deal with the respondent's plea (Annexure E to E4 to the applicant's founding affidavit).

In his plea, the defendant stated, that, prior to 1 December 2003, he was occupying the house in issue on the basis of the contract of employment and that since 1 December 2003 he was now occupying the house on the basis of a sale agreement.

The respondent said he has since fully paid for the house and awaits the transfer of the house into his name.

It is the respondent's contention, that, the lease agreement dated 12 December 2003 was the vehicle through which the respondent, and other employees, purchased the houses as they paid for the houses through the process of rent to buy with the monthly repayments deducted from their salaries.

The respondent, in his plea contends, that, he has now acquired rights and interest in the same house hence the applicant cannot evict him from the house.

In fact, the respondent proceeded to file a counter-claim seeking an order to compel the applicant to transfer its rights, interest, and title in the said house to the respondent within 30 days of the grant of such an order and costs of suit.

The question to be addressed in this matter is whether, given the facts I have painstakingly outlined, the applicant is entitled to this extraordinary remedy in the form of a summary judgment?

An application for summary judgment is made in terms of order 10 Rule 64 of the High Court Rules 1971 in circumstances where the applicant is of the belief that the respondent has no bona fide defence to his action.

The respondent may oppose such an application in terms of Order 10 Rule 66(1)(b) of the High Court Rules by showing that he has got a prima face defense to this action.

The law, in relation to the requirements for granting a summary judgment, is clear.

The old case of Roscoe v Stewart 1937 CPD 138 which is cited by the celebrated authors HERBSTEIN and Van WINSEN – Civil Procedure of The Superior Courts In South Africa, 2nd Edition…, makes the point, that, summary judgement is a remedy designed to eliminate or dispose of bogus defences and defences which are bad at law.

The mischief which is curbed by this drastic remedy is to prevent unscrupulous litigants seeking to delay a clear and just claim by raising frivolous defences: see Nedlaw Investments & Trust Corporation Limited v Zimbabwe Development Bank SC05-00 in which it was clearly stated that;

“…, the quintessence of the drastic remedy is that a plaintiff, whose belief is that the defendant's defence is not bona fide and entered solely for dilatory purposes should be granted immediate relief without the expense and delay of a trial.”

In order to successfully fend off an application for summary judgment, a defendant has to show that he has a good prima facie defense to the action.

Our courts have had the opportunity to define what constitutes a good prima facie defence.

In the case of Hales v Doverick Investments (Pvt) Ltd 1998 (2) ZLR 235 (H)…, MALABA J…, has this to say;

“…, he must at least disclose his defense, and material facts upon which it is based, with sufficient clarity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence: Haharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 426D…, the statement of material facts (must) be sufficiently full to persuade the court that what the defendant has alleged, if proved at trial, will constitute a defense to the plaintiff's claim.”

Having laid out these principals of law applicable to this case, I now proceeded to apply these principles to the facts of this case.

The applicant believes, that, the appearance to defend entered by the respondent, and his subsequent plea, do not disclose a bone fide defence but was solely entered for purposes of delay.

In argument, the applicant submitted, that, there was never an agreement of sale between the applicant and the respondent.

It is the applicant's view, that, the memorandum of agreement, dated 7 December 2003, cannot be construed as an agreement of sale, and, reliance was placed on the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in which CHEDA JA had to interpret this same document and clearly stated, that, it cannot be said to be an agreement of sale.

Similarly, the applicant submitted, that, the lease agreement, dated 12 December 2003, cannot be construed also on an agreement of sale as it merely provides, in Clause 3, that, an option to purchase this property would be offered to the respondent after sixty months.

The applicant's case, therefore, is that the agreement of lease, having been terminated after the respondent left the employ of the applicant, the respondent has no right, whatsoever, to remain in the house as the applicant remains the registered owner of the house.

While it is correct, that, the pronouncements of the Supreme Court are binding to this court, I believe the case in which the applicant seems to have reposed all his faith in, of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09, can be distinguished from the facts of this case.

In fact, MAKARAU JP…, in a number of cases involving the applicant and its employees, in Antonio v Ashanti Goldfields Zimbabwe & Anor; Mujati v Ashanti Golfields Ltd & Anor; Ashanti Goldfieds Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H)…, distinguished Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 as follows;

“I am bound by all the decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret their facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

A number of my brother and sister judges who have been seized with matters involving the applicant and its employees, in relation to these houses, have adopted the approach enunciated by MAKARAU JP…, in arriving at a different conclusion, on the facts presented in each particular case, despite the sentiments expressed in Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 in relation to the Memorandum of Agreement, dated 7 December 2003, and the Lease Agreement dated 12 December 2003.

Few examples are sufficient to illustrate this point.

In the case of Ashanti Goldfields Zimbabwe Ltd v Jhafati Mdala HC5664/07 CHATUKUTA J, after a protracted trial, did find, that, on the facts presented before her, inclusive of the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement dated 12 December 2003, indeed, Ashanti Goldfields Zimbabwe Ltd had sold the house to the defendant.

In the case of Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Shingirai Matimura & Ors HH54-11, GOWORA J…, declined to grant a summary judgment wherein the applicant had sought the eviction of the respondents; whilst the respondents had advanced a similar argument like in the instant case. Indeed, the Memorandum of Agreement dated 7 December 2003 and the Lease Agreement, similar to one dated 12 December 2003, were some of the documents in issue in that case.

Lastly, in the case of Govha v Ashanti Goldfields Zimbabwe t/a Freda Rebecca Mine & Anor HH48-12, and, in Ashanti Goldfields Zimbabwe Limited t/a Freda Rebecca Mine v Ephraim Pfidze HH347-12 MATHONSI J, in both cases, faced with facts almost on all fours with the present case, declined to grant a summary judgement in both cases for the eviction of the respondents (employees).

It is clear from the facts of this case that the respondent has raised a good prima facie defence to the action for eviction.

The Memorandum of Agreement, dated 1 December 2003, which I have alluded to in my introductory remarks, shows, that, the respondent was one of the sitting tenants who were eligible to purchase the house in issue. The respondent contends, that, he acted in terms of the Memorandum, dated 2 December 2013, which invited all employees who were sitting tenants to exercise the offer to purchase the houses as at 29 February 2004.

In fact, the respondent argues, that, he proceeded, in exercising this option, to enter into a lease agreement, dated 12 December 2003, which he described as the vehicle with which the employees were to purchase the houses, as they all started to pay what was called “rent to buy”.

Indeed, the respondent attached some of his payslips, for 2004, which show that monthly deductions in various amounts were made as “rent to buy”.

In addition to that, the respondent has included a memorandum from the applicant, addressed to him, acknowledging receipt of $1,100,000 towards the purchase of house, and indicating that outstanding balance as $60,000 only.

As already stated, the respondent was in occupation of this house (as a sitting tenant) for a period in excess of 60 months (Clause 3 of the lease agreement) before he was dismissed from work and the lease agreement purportedly terminated.

Considering all these the factors placed before the court by the respondent, one cannot say, with certainty, at this stage, that the respondent did not exercise the option to purchase the house in issue.

The applicant has not been able to meaningfully explain why, after a period of 60 months, and in view of the proof of monthly deductions and confirmation by the applicant of such payment as part of the purchase price, in March 2004, the applicant is still of the view that the respondent did not purchase the house.

I am satisfied that the respondent has presented an arguable case.

It cannot be said that the defence raised by the respondent is simply raised for purposes of delaying the inevitable. It would therefore be unfair and improper, and this stage, to close the door to the defendant and deny him the opportunity to defend the claim.

On the facts before me, it cannot be said, that, the applicant's case is unanswerable and unassailable.

The parties should be allowed to have their day in court and present evidence on whether the respondent exercised the right to purchase the house in issue and paid the full purchase price.

The claim for eviction, at this stage, is premature.

The application for summary judgment is therefore without merit. In the result, the summary judgement application is dismissed with costs.

This is an income tax appeal filed in the High Court in terms of section 65 of the Income Tax Act [Chapter 23:06].

The two questions for determination are:

(i) Whether the appeal is valid; and

(ii) Whether the commission paid to two foreign agents for facilitating the sale of tobacco constituted fees for services of a technical, managerial, administrative or consultative nature as contemplated by section 30 of the of the Income Tax Act and the Seventeenth Schedule to the Income Tax Act.

The appellant, an exporter and seller of processed tobacco from Zimbabwe, is a locally registered company. It entered into two successive sales and marketing agreements with two foreign companies on 1 April 2004 (annexure 1 of respondent's case and p1-2 of appellant's bundle) and 1 April 2011 (annexure 2 of respondent's case and p3-4 of appellant's bundle) respectively, for the sale of export tobacco in foreign markets.

The sales were on commission of 7.5% of the aggregate net export sales and FCA Zimbabwe sales value of each export, respectively.

In 2007, the respondent audited the affairs of the appellant. It decided that the commission paid for the period to 2005 constituted fees for services of a technical and administrative nature performed by the overseas agent on behalf of the appellant for which the appellant was liable for withholding non-resident tax in terms of the Seventeenth Schedule to the Income Tax Act.

On 5 April 2007, the respondent submitted schedules showing the appellant's withholding tax liability on the tobacco sales commissions payable to the overseas agent.

The tax adviser of the appellant objected to the schedules and imposition of withholding tax on the sales commissions.

On 10 August 2007, the respondent disallowed the objection.

A notice of appeal was filed on 24 August 2007.

The appellant's case was not filed within 60 days of the service of the notice of appeal or at all. In accordance with the provisions of section 65(3) of the Income Tax Act, the appeal lapsed.

The appellant continued to remit non-residents withholding tax to the respondent until the advent of the multi-currency era.

On 24 October 2013, officials of the respondent conducted a routine audit visit at the premises of the appellant during which the Finance Director of the appellant indicated that further remittals had stopped in consequence of the unresolved 2007 appeal.

In a further meeting of 5 December 2013, the appellant requested and was provided with a schedule of the non-residents tax on fees payable from January 2009 to October 2013.

The schedules consisted of 11 columns showing the period covered, the amount of commission paid, the withholding tax rate, the witholding tax due, the penalty charged at 100%, the period covered in respect of interest computation, the period of delay in paying, the interest rate, and the amount of tax due.

The principal amount of the non-residents tax on fees due was in the sum of US$4,252,647=57. An equivalent amount was imposed as penalty and a further US$795,988=62 was imposed as interest.

The penalties were later reduced by half leaving the revised total liability of US$5,974,959=97.

The appellant responded to the schedule by way of the objection letter dated 10 December 2013, which was served on the respondent on the same day.

It disputed that the commissions constituted the fees contemplated in section 30 and the Seventeenth Schedule of the Income Tax Act. It undertook to pay the outstanding principal amount in four instalments between 13 December and 20 January 2014. In consequence of the undertaking, the respondent further waived the reduced penalty and interest by e-mail of 19 December 2013.

The appellant, however, paid the principal amount by 20 December 2013.

A meeting was held between the appellant's tax advisers and the respondent on 13 December 2013. The parties appeared to have agreed, in that meeting, that, the objection had been improperly made.

However, the appellant filed a notice of appeal on 25 March 2014 and served it on the respondent on the following day. The appeal was based on the deemed decision arising from the failure to respond to the letter of objection within three months as contemplated by section 62(4) of the Income Tax Act. The parties filed their respective cases on 28 May 2014 and 13 August 2014....,.

The facts in this matter are derived from the pleadings, the Rule 11 documents, and the appellant's bundle. Both the appellant and the respondent did not call any oral evidence.

The facts were as follows:

The appellant company executed two successive "Sales and Marketing Commission Agreements" with two foreign companies domiciled in Bermuda and Switzerland, respectively. The appellant was identified, in both Agreements, as the "Principal" while the two were specifically termed agents.

In the first agreement, the appellant was represented by its Managing Director and Finance Director while the agent was represented by its Management Committee member and secretary. In the second, the parties were represented by their respective Managing Director and President.

Except for the first two declarations in the preamble and the initial rate of commission in the first agreement, all the other terms of the two agreements were similar.

In terms of clause 6 of the agreements:

"…, the validity, interpretation and enforcement of the agreement shall be governed by the laws of Zimbabwe."

The preamble proclaimed that the agent had "demonstrated expertise in the international marketing and trading of leaf tobacco enabling it to provide such services with greater efficiency and lower costs" and was willing to utilize its sales and marketing capacity and render services on behalf of the appellant.

Four duties of the agent were set out in clause 1:

(i) The agent undertook to use its "best efforts" to help the principal in the export sale of leaf tobacco without incurring financial responsibility or obligations even where it did not disclose that it was an agent of the appellant;

(ii) The agent also undertook to promote the export sales by the appellant in all major markets based on prices and conditions set by the appellant;

(iii) It undertook to maintain and safeguard the quality of the product and image of the appellant; and

(iv) To supply personnel and materials necessary for the promotion of the appellant's exports.

In addition, the agreements authorised the agents to inform the appropriate local authorities in those export countries, where necessary, that it was the sales and marketing agent representing the principal's business interests for the sale of leaf tobacco exported from Zimbabwe.

The commissions under the first agreement were initially equal to 8.5% of the aggregate net sales from the export tobacco of the principal for each statutory year ending 31 March during the term of the agreement but was reduced to 7.5% in November 2005 to comply with the Zimbabwe Exchange Control approval.

Under the second agreement, the agent was paid commission of 7.5% of the Foreign Currency Account Zimbabwe sales value of each export of the principal during the term of the agreement.

Both the aggregate net sales and the FCA Zimbabwe sales value for exports were computed by deducting freight costs to the destination port from the gross invoice value CIF port of destination. These amounts were captured in the CD1 Form as gross FCA value.

The commissions payable were approved by the Exchange Control Authority.

In terms of paragraph 2 and 3 of the Exchange Control Authority, dated 1 February 2012, the authority was granted on condition the 7.5% commission, as well as value addition, would be declared on all the relevant Form CD1 prior to the export and "payment of the commission shall be from the appellant's local FCA".

The provisions of the sales agreement constituted the entire agreement between the parties.

It was certainly not a term of the agreement that the agents would deduct commission before remitting the balance into the FCA account of the appellant.

The suggestion, in the pleadings, that it was in the agreement was contrived.

A meeting was held, on 18 July 2013, at the premises of the appellant, between the appellant and the respondent.

As a result, the appellant wrote the letter of 30 July 2013 in which it set out the duties of the agent in detail.

The agent accompanied a major tobacco buyer and took part in price negotiations in Zimbabwe with the appellant. Other customers did not purchase their tobacco requirements in Zimbabwe. They were first supplied with samples of the available export tobacco before placing their orders. The customers assessed the colour and appearance (the styles) and the sugar and nicotine levels, texture and quality (the smoking characteristics) of the export tobacco.

Generally, price negotiations and marketing logistics for these customers were held outside Zimbabwe by the agent.

The shipping mandate was the final responsibility of the Sales Administration Director. The invoice papers of all export sales from the appellant flowed through the agent.

The agent's main function was to establish and maintain customer relationships on a global scale.

In the letter of 30 July 2013, the appellant listed eight functions of the agent.

The agent interacted with international customers by phone, e-mail, and visits and conducted reviews of previous purchases and deliveries and projected order indications of the new season. In addition, it arranged customer samples and volumes and assessed the price expectations of each customer and followed up customers shipping arrangements. All shipping documents were sent to the agent for processing. The agent also invoiced the customers, collected payments, and retained the commissions.

The appellant's bundle contains the kind of documentation handled by the agent during the process of facilitating and making a sale. They show that the agent played a major role in selling the export tobacco.

The appellant contended, that, as the commissions were not fees, as defined in the Seventeenth Schedule of the Income Tax Act, it had no obligation to withhold non-residents tax.

In addition, the appellant further contended, that, as the commissions were deducted by the agents from the gross foreign currency account value outside Zimbabwe, before the balance was remitted to its account, it could not have withheld any non-residents tax nor would it have been obliged to remit any such tax to the respondent.

The respondent contended, that, the commissions were fees, as defined, and that the appellant, as the principal, was obliged to withhold and remit the non-residents tax on fees due to the respondent.

The issues for determination are:

(i) Whether the commissions constituted fees as defined in the Seventeenth Schedule that were chargeable, leviable, and collectable under section 30 of the Income Tax Act?

(ii) Whether the appellant was liable for withholding and remittal of non-residents tax on fees arising from the deduction of these commissions outside Zimbabwe before any proceeds of the sales had been remitted to it?

The relevant tax is imposed by section 30 of the Income Tax Act which reads:

"30 Non-residents Tax on Fees

There shall be charged, levied, and collected throughout Zimbabwe for the benefit of the Consolidated Revenue Fund a non-residents tax on fees in accordance with the provisions of the Seventeenth Schedule at the rate of tax fixed from time to time in the charging Act."

The Seventeenth Schedule of the Income Tax Act defines fees, foreign company, non-resident person, payee, and payer in paragraph 1(1) in the following manner:

"1(1) In this Schedule, subject to subparagraph (2) —

'fees' means any amount from a source within Zimbabwe payable in respect of any services of a technical, managerial, administrative or consultative nature, but does not include any such amount payable in respect of — (none of the 8 apply herein)

'foreign company' means a body corporate that is incorporated in a state or territory other than Zimbabwe under the laws of that state or territory;

'Non-resident person' means -

(b) A partnership or foreign company which is not ordinarily resident in Zimbabwe;

'payee' means a non-resident person to whom fees are payable or paid;

'payer' means any person who or partnership which pays or is responsible for the payment of fees…,.”

The non-residents tax is imposed on the agents.

The first agent was resident in Bermuda and the second in Switzerland. The two agents were foreign companies and non resident persons as defined in paragraph 1(1) and (1)(b) of the Seventeenth Schedule.

The two agents would also be payees, if the commissions constituted fees payable or paid.

Again, in the event that the commissions were fees, as defined, the appellant would be a payer, defined "as any person who…, pays or is responsible for the payment of fees."

A positive duty to withold such tax is thrust upon the payer by paragraph 2(1) of the Seventeenth Schedule of the Income Tax Act. It reads:

"2(1) Every payer of fees to a non-resident person shall withhold non-residents tax on fees from those fees and shall pay the amount withheld to the Commissioner within ten days of the date of payment or within such further time as the Commissioner may for good cause allow."

Such a payer is mandated, in subsection (2) of paragraph 2, to furnish the payee with a certificate showing the amount of fees paid and the amount of non-residents tax on fees deducted and kept back. A payee who fails to furnish such a certificate, or who furnishes an inaccurate certificate, is liable to suffer the criminal sanctions set out in paragraph 2(3) of the Schedule.

The duties and responsibilities of the payer, and the resultant sanctions stipulated in paragraph 2 above, apply in equal measure in terms of paragraph 3(1)(2) and (2a) of the same Schedule to an agent who receives the gross fees due to the payee from the payer.

In terms of sub-paragraph (3), the agent is deemed to be an agent of the payee if the payer records its address as the address of the payee and delivers the fees to that address. The agent is treated, under subparagraph (4), as an agent of a taxpayer who is absent from Zimbabwe.

It is apparent from the provisions of paragraph 6 of the Seventeenth Schedule that the agent contemplated by paragraph 3(3) and (4) of the same Schedule is one who is in Zimbabwe.

In terms of paragraph 5, the payer or agent attaches a prescribed form to the payment of the fees.

In terms of paragraph 6(1), a payer or agent who fails to withhold or pay the prescribed tax to the Commissioner, under paragraph 2 or 3, is personally liable for the payment not later than 10 days from the period that the actual amount was due and to an additional equivalent amount of such tax.

Counsel for the appellant listed six (6) other instances in the Income Tax Act where Parliament thrust a similar duty on a payer to withhold tax from a third party and remit it to the statutory tax collecting body.

He correctly submitted, that, the resident payer had no obligation to pay the non-resident tax unless it failed to deduct and keep back the tax from the fees paid or from the fees payable.

Counsel for the appellant submitted, that, paragraph 6 of the Schedule did not create a tax liability for a resident taxpayer, rather, it created a penalty for the resident taxpayer.

He suggested, that, the heading of the section be amended to reflect that it was a penalty for failure to withhold non-residents tax. He based his submission on the well-recognised and established common law principle that the Commissioner is not accorded any legal right to waive taxes.

I agree that the Commissioner is not accorded the legal right to waive taxes: see Foroma v Minister of Public Construction and National Housing and Anor 1997 (1) ZLR 447 (H)…,.; Ritch & Bhyat v Union Government (Minister of Justice) 1912 AD 719…,.; and SAR & H v Transvaal Consolidated Land & Exploration Co. Ltd 1961 (2) SA 467…,.

The Commissioner is only accorded the power to waive the equivalent penalty imposed under paragraph 6(1)(a). He cannot waive the amount of tax not withheld.

The logical conclusion of the argument by counsel, arising from such an inability to waive the tax not withheld, would be that this paragraph creates a tax liability and not a penalty for the appellant.

In my view, Parliament imposed a tax on the resident who failed to withhold the non-resident tax on fees. Paragraph 6(1)(a) therefore created a tax payable by the appellant if it is found that it failed to withhold the contemplated tax.

In this vein, counsel contended, in paragraph 13 of his written submissions, that:

"The resident becomes personally liable for the payment of the tax only if he, she, or it fails to withhold the tax from the fees payable, in the sense, that, he could do so and did not withhold the tax or thereafter failed to remit the tax so withheld to the Commissioner. But, in normal circumstances, the local resident is not the taxpayer in terms of section 30."

The word 'withhold' is defined in the Shorter Oxford English Dictionary as "to keep from doing something, to hold back, restrain, refrain from, to keep back, to keep in one's possession what belongs to or is due to."

I would accept the word "to keep back" as the best possible meaning of the word in the context of the provision.

I turn to determine whether the commissions constituted fees as defined in the Seventeenth Schedule of the Income Tax Act.

I dealt with a similar question in G Bank Zimbabwe Ltd v Zimbabwe Revenue Authority HH207-15. The facts in that case are distinguishable with those in the present case in two material respects:

(i) In that case, the appellant used the term bank charges interchangeably with bank fees, while, in the present matter, the appellant used the term "commissions" for the contract payments that it was obliged to pay.

(ii) Again, G Bank admitted paying the charges directly to the foreign banks while in the instant case the appellant disputed making any direct payments.

At paragraph 109 [p29-30 of the cyclostyled judgment] I said:

"Mr de Bourbon submitted, that, the Nostro bank charges were not subject to withholding tax as they did not fall under any one of the four categories of technical, administrative, managerial or consultative.

It seems to me that the four categories in question are merely adjectives which describe a particular activity.

According to the Shorter Oxford English Dictionary 'administer' means inter alia 'to manage'; 'to handle'; while 'administrative' is defined as 'pertaining to management.'

One of the many permutations of 'to manage' is 'to deal with carefully'. Like McDONALD JP in Commissioner of Taxes v 1 supra at 115F, where he was of course referring to 'transaction, operation or scheme' I would agree that each of the words 'technical, managerial, administrative and consultative' that is used in the para under consideration is of wide and general import and there are a few activities of a taxpayer which will not be appropriately described by one or other of them.”

Counsel for the appellant vigorously attacked my finding, that, the four categories in the definition of fees are of wide and general application and suffice to cover almost every activity undertaken by a taxpayer.

My finding was based on the meaning I ascribed to the ordinary grammatical meaning of the adjectives "technical, managerial, administrative or consultative".

The Income Tax Act itself does not define any of these words.

The established position in Zimbabwe is to adopt the ordinary, literal, and grammatical meaning of words unless doing so leads to glaring absurdity or to results which Parliament would never have intended (per GARWE J…, in Mashamhanda v Mpofu 1999 (1) ZLR 1…, and CHATIKOBO J in Expedite Haulage (Pvt) Ltd v Scotfin Ltd 2000 (2) ZLR 113 (H)…,.

See also Madoda v Tanganda Tea Company 1999 (1) ZLR 374 (S)…,. and the cases cited thereat.

In doing so, the Court must be mindful of the words of WESSELS AJA…, in Stellenbosch Farmers Winery Ltd v Distillers Corp (SA) Ltd 1962 (1) SA 458 (A)…, on the importance of the textual context in which words sought to be interpreted are found, that:

“In my opinion, it is the duty of the court to read the section of the Act which requires interpretation sensibly, i.e. with due regard, on the one hand, to the meaning or meanings which permitted grammatical usage assigns to the words used in the section in question, and, on the other hand, to the contextual scene, which involves consideration of the language of the rest of the statute as well as the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

See also the sentiments of CHEDA J in Sunfresh Enterprises (Pvt) Ltd v Zimra 2004 (1) ZLR 506 (H)…,.

Counsel for the appellant contended, that, our established position is better expressed by WALLIS JA in Natal Joint Municipal Pension v Endumeni Municipality 2012 (4) SA 593 (SCA)…, in these words:

"The present state of the law can be expressed as follows:

Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.

Whatever the nature of the document, consideration must be given to the language used in the light of ordinary rules of grammar and syntax; the context in which the provision appears, the apparent purpose to which it is directed and the material known to those responsible for its production.

Where more than one meaning is possible, each possibility must be weighed in the light of all these factors.

The process is objective not subjective.

A sensible meaning is to be preferred to one that leads to insensible or un-businesslike results or undermine the apparent purpose of the document. Judges must be alert to and guard against the temptation to substitute what they regard as reasonable, sensible or businesslike for the actual words used. To do so, in regard to a statute or statutory instrument, is to cross the divide between interpretation and legislation; in a contractual context, it is to make a contract for the parties other than the one they in fact made.

The inevitable point of departure is the language of the provision itself, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document."…,.

Again, the same learned judge of appeal emphasised, in Firstrand Bank Ltd v Land and Agricultural Development Bank of South Africa 2015 (1) SA 38 (SCA)…, that:

"The process of interpretation is no longer one in which we seek out a notional plain meaning of the words used, ignoring context and the circumstances in which the document being interpreted, whether a contract or a statute or a patent specification, came into being. Nonetheless, it must start with the actual words used."

It seems to me, that, barring the semantics used, the formulation advanced by WALLIS JA is not different from the approach followed in Zimbabwe. A court is not concerned with the notional meaning but with the practical application of the principles that emerge from the formulation.

I proceed to deal with the essential requirements of fees as defined.

Before I do so, I emphasize, that, what constitutes fees is defined; therefore, all reference by counsel for the appellant, in oral argument, to the perceived notional meanings of 'fees' with reference to advocates and 'commissions' by reference to commodity brokers is of no significance.

The meaning of fees, in the present case, is delineated by the definition in the Seventeenth Schedule of the Income Tax Act.

The first amount is defined in section 2 of the Income Tax Act, in relation to the determination of gross income, income, and taxable income in terms of section 8(1) as "money or any other property, corporeal or incorporeal property having an ascertainable money value".

The commissions would constitute part of the gross income of the agents.

It was common cause that the amount was received by or accrued to or was in favour of the agents from a source deemed to be within Zimbabwe by virtue of paragraph 1(2)(a) of the Seventeenth Schedule of the Income Tax Act. It reads:

"(2) For the purposes of this Schedule —

(a) Fees shall be deemed to be from a source within Zimbabwe if the payer is a person who…, is ordinarily resident in Zimbabwe;"

The appellant was, at all material times, ordinarily resident in Zimbabwe.

Counsel for the appellant made a conditional concession, that, if the commissions were found to constitute fees, then, they would be deemed to have been from a source within Zimbabwe. He contended that the agent, and not the appellant, was the payer.

The word payable connotes a payment that is due, which ordinarily arises from an unconditional obligation on the payer to pay: see Edgar Stores Ltd v Commissioner for Inland Revenue 1988 (3) SA 876 (A) at 889A-C; 50 SATC 81 (A) and ITC 1587 (1994) SATC 197 at 103-104.

The sales commission and marketing agreements, in clause 2, imposed such an unconditional obligation to pay on the appellant. The responsibility of paying the commissions was imposed on the appellant by the agreements and by the Exchange Control Authority.

Payer is defined as "any person who pays…, or is responsible for the payment of fees."

In my view, a payer could be one of two persons, between the one who actually pays and the one who has the unconditional obligation to pay.

Thus, while on the contention of the appellant, that the agent paid itself, I would find that the person who was responsible for the payment of the fees was the appellant. If the commissions constitute fees, I would therefore find the appellant to have been the payer.

The starting point is that the four categories of services are disjunctive rather than conjunctive.

A finding that the physical activities of the agents fell into any one of these categories would suffice to found liability for the payment of non-residents tax on each category.

It was common cause that the agents supplied a service to the appellant. The appellant and the agents termed the service a sales and marketing of export leaf tobacco service.

The physical activities carried out by the agents, on behalf of the appellant, were first outlined in the minutes of 18 July 2013 whose accuracy was confirmed by the signatures of both parties on 6 and 7 August 2013. These activities were further listed in the letter of the appellant to the respondent of 30 July 2013.

The sales and marketing of export leaf tobacco involved negotiating prices with foreign purchasers. There were two types of foreign purchasers:

(i) The first was the major purchaser from the Far East, which accounted for between 40 and 50% by volume and between 50 and 60% by value of the appellant's exports.

The purchaser in question negotiated with the appellant in Zimbabwe. The tone of the minutes indicated that these meetings were facilitated and co-ordinated by the agent. While the directors of the appellant had the final say on the prices and volumes allocated to the major purchaser, the agent played a prominent role in the negotiations. In terms of the sales and marketing agreement the agent assisted the appellant by exerting its best efforts and demonstrated expertise in international marketing and trading of the export leaf tobacco.

(ii) The second type of buyer was the one who did not come to Zimbabwe to negotiate and assess the packed tobacco.

This type of buyer requested a sample of the tobacco on sale. The "price negotiations and other marketing logistics" for this buyer were done by the agent.

The four adjectives that describe the nature of fees are not defined in the Income Tax Act.

WALLIS JA recognised, in both Natal Joint Municipal Pension v Endumeni Municipality 2012 (4) SA 593 (SCA) and Firstrand Bank Ltd v Land and Agricultural Development Bank of South Africa 2015 (1) SA 38 (SCA), the primacy of the actual words used in the statute.

The appellant did not refer to any dictionary for the meanings of each of these four words. The respondent referred to the Oxford Advanced Learner's Dictionary. I relied on the Shorter Oxford English Dictionary.

Counsel for the appellant, without reference to any dictionary, suggested that the word "technical" was a term of art which referred to manufacturing, engineering or architectural activities.

The Selling Dictionary renders the word as 'connected with the skills needed for a particular job'; 'an adjective relating to a particular subject, art or craft or its techniques'.

The Shorter Oxford English Dictionary defines the word as follows: "of a person; skilled in or practically conversant with some particular art or subject, belonging to or relating to an art or arts; appropriate or peculiar to or characteristic of a particular art, science profession, occupation; also pertaining to the mechanical arts and applied sciences generally;"

I am unable to agree with counsel for the appellant, that, there exists, in the context of the Income Tax Act, any limitation for this meaning of the word to applied sciences only, when, by definition, it also applies to the mechanical arts.

Thus, whether one considers the skills needed in selling tobacco as mechanical arts or applied sciences, the "best efforts" and "demonstrated expertise" of the agent is covered in the definition of technical.

The practical application of the knowledge possessed by the agent of the climatic and soil conditions, the style and smoking characteristics of the export leaf necessary for determination of the appropriate blend required by the customers fell into the ambit of technical services provided by the agent to the customer on behalf of the appellant.

But, even if the narrow definition advocated by counsel for the appellant were adopted, the appellant did not establish, on a balance of probabilities, that, the agent did not require knowledge of the type of export blending leaf required in the manufacture of cigarettes in order to make a sale.

The averment made, that knowledge of these characteristics was not a requirement to effect a sale, were contrary to the averment in the letter of 30 July that the appellant used such technical knowledge to purchase the appropriate blend on the auction floors and from contract farmers for export.

This technical knowledge was the expertise that the appellant required in making local purchases from both auction floors and contract farmers, and, in negotiating suitable prices with the major purchaser.

The appellant also relied on this technical knowledge to purchase the tobacco that met these specifications from both auction floors and contract farmers in order to satisfy the ultimate manufacturing requirements of the end customers.

The Bill of Lading…, indicates the expertise of the agents in regards to the shipping of export tobacco.

The six documents required were Bills of Lading, EUR 1 certificates, fumigation certificates, detailed weight lists, container packing lists, and invoices. These were all distributed to the agent. The agent gave special instructions on the time frames for dispatching documents and the type of containers used for carrying export tobacco and the manner of storage and fumigation standards applicable to the tobacco.

I would find, that, the agent supplied technical services to the appellant.

In paragraph 19 of his written submissions, counsel for the appellant contended, that, the word managerial was synonymous with directing the activities of the appellant.

In paragraph 1.3 of the minutes on p5 of the Rule 11 documents, the appellant indicated the agent was responsible for "price negations and other marketing logistics."

In my view, these activities were carried out on behalf of the appellant by the agent. The agent was directing the activities of the appellant in these foreign markets and was required to even advise the local authorities that it was acting for the appellant.

I find that the practical activities of the agents fell into the ambit of the definition of managerial advocated by counsel for the appellant.

Again, applying the definition of "manage" derived from the Shorter Oxford English Dictionary; the agents were running the affairs of the appellant in those markets. The agents exercised actual authority on behalf of the appellant.

Indeed, the letter of 30 July established that the eight functions of the appellant that were managed by Sales Administration Director in Zimbabwe were mirrored by the eight functions run by the agents outside Zimbabwe on behalf of the appellant.

I agree with counsel for the respondent, that, some of the functions constituted both managerial and administrative services.

The word is defined in the Oxford Advanced Learner's Dictionary as "relating to the running of a business, organisation, etc."

The synonyms accorded to the word include 'managerial'.

In both his oral and written submissions, counsel for the appellant was unable to make any practical distinction between administrative and managerial services. He conceded, that, filling forms, rendering reports, filing documentation, and making payments constituted administrative functions.

These administrative services were, in my view, inseparable from managerial services.

These were carried out by the agent on behalf of its principal - the appellant.

The documentation consisted of sales confirmation invoices, orders, shipping instructions, bills of lading, EUR 1 certificates, fumigation certificates, detailed weight lists, container packing lists, and customs clearance invoices which were dispatched to the agent for processing exports in the countries of destination.

I find that the practical activities of the agents administrative services.

In the Shorter Oxford English Dictionary, consultative means “pertaining to consultation, deliberative, advisory, take counsel, deliberate, confer, to plan, advise, have recourse to professional advice."

The preamble to the agreements proclaim the purpose for selecting the agents was based on their professionalism and ability to promote, supply, safeguard, and maintain personnel and materials required to make a sale.

In paragraph 19 of his written submissions, counsel for the appellant contended, that, the word 'consultative' connoted the offering of expert professional services and not "simply speaking to the appellant."

The suggestion, that, the agents were engaged for their expertise in "simply speaking" to the appellant is devoid of merit.

The very fact that the agents accompanied an accomplished and major international buyer of export tobacco demonstrates the high pedigree of the professional services rendered to the appellant by these agents.

Again, I find, as a matter of hard fact, that, the agents provided consultative services to the appellant.

The four words appear in the context of section 30 of the Income Tax Act.

That section is designed to tax fees that are payable or paid to an agent who is based outside Zimbabwe but from a source in Zimbabwe.

In my view, the words 'payable' and 'paid' as used in the definition of 'payee' in paragraph 1(1) to the Seventeenth Schedule of the Income Tax Act are synonymous with 'received by' or 'accrued to' or 'in favour of' that are used in section 8(1) of the Income Tax Act.

The overall purpose of the Income Tax Act is to tax taxable income "received by or accrued to or in favour of” the targeted taxpayer - including the non-resident in question.

The objective and sensible application of the meaning of each of these words is one which discards the notional plain meaning of the words in favour of the contextual meaning.

It seems to me, that, the real test of the pudding prepared by WALLIS JA is in the actual application of the facts found in each matter to the principles that he outlined.

The narrow meaning contended by counsel for the appellant does violence to the context and purpose of enacting the provision.

The true essence of a sale involves technical, managerial, administrative, and consultative competencies of the agent. That is why I maintain, that, there are hardly any activities of a taxpayer that can escape the wide embrace of the definition of fees that is found in the Seventeenth Schedule.

Accordingly, I am satisfied, that, the commissions in question constitute the type of fees contemplated by section 30 and paragraph 1 of the Seventeenth Schedule of the Income Tax Act.

Counsel for the appellant submitted, that, paragraph 6(1) merely imposed a penalty and not a tax on the payer or agent who failed to deduct and keep back or pay the appropriate non-resident tax on fees to the Commissioner in the stipulated period.

He argued, that, the personal obligation did not extend to a payer who could not physically deduct the non-resident tax on fees in Zimbabwe retained outside Zimbabwe. He contended, that, as the appellant did deduct and keep back the fees from the gross FCA value of the legal obligation to remit any non-residents tax on fees to the Commission.

The Seventeenth Schedule of the Income Tax Act reads:

“Penalty for non-payment of tax

"6. Subject to subparagraph (2), a payer or an agent in Zimbabwe who fails to withhold or pay to the Commissioner any amount of non-residents tax on fees as provided in paragraph 2 or 3 shall be personally liable for the payment to the Commissioner, not later than the date on which payment should have been made in terms of paragraph 2 or 3, as the case may be, of —

(a) The amount of non-residents tax on fees which the payer or the agent, as the case may be, failed to pay to the Commissioner; and

(h) A further amount equal to one hundred per centum of such non-residents tax on fees.

(2) The Commissioner, if he is satisfied in any particular case, that, the failure to pay to him non-residents tax on fees was not due to any intent to evade the provisions of this Schedule, may waive the payment of the whole or such part as he thinks fit or repay the whole or such part as he thinks fit of the amount referred to in subparagraph (b) of subparagraph (1).

(3) If a defaulting payer or agent referred to in subparagraph (1) does not pay the penalty in full on the date on which the default has ceased, interest, calculated at a rate to be fixed by the Minister by statutory instrument, shall be payable on so much of the penalty as remains unpaid by the payer or agent during the period beginning on the date the default has ceased and ending on the date the penalty is paid in full, and, such interest shall be recoverable by the Commissioner by action in any court of competent jurisdiction; provided, that, in special circumstances, the Commissioner may extend the time for payment of the penalty without charging interest."

In my view, whether the above cited paragraph is regarded as a penalty or non-residents tax on fees charging provision, it creates a legal liability for the holder or agent who fails to withhold or pay this type of tax to the Commissioner.

I have already found, that, the commissions in question constituted fees as contemplated by both section 30 and the Seventeenth Schedule of the Income Tax Act.

The next sub-issue to determine is: whether the appellant was the payer of the fees.

It was agreed, that, the appellant was required, by Exchange Control Authority, to pay the fees from its local foreign currency account.

In terms of clause 5 of the Sales and Marketing Commission Agreements these agreements were negotiated and executed within the laws of Zimbabwe. The validity, interpretation and enforcement of the agreements were, also in terms of the same clause, governed by the laws of Zimbabwe.

That the Exchange Control Authority had the force of the laws of Zimbabwe is beyond dispute.

The powerful influence of this Exchange Control Authority was highlighted by the reduction of the commission payable for the first agent from 8.5% to the 7.5% in compliance with the requirements of the Foreign Exchange Control Authority.

The appellant did not disclose the basis on which the offshore payment arrangements of the commission were made. They were certainly made outside the order of the Exchange Control Authority, and were, to that extent, illegal.

It is necessary that I resolve the issue of onus.

I discussed the issue in H Bank Zim Ltd v Zimbabwe Revenue Authority HH575-15. I concluded my analysis, at 1022C, thus:

“The onus, therefore, rests on the taxpayer to establish, on a balance of probabilities, that, the opinion formed by the Commissioner was wrong. I therefore agree with Mr Magwaliba, that, the Commissioner bears no onus to establish, on a balance of probabilities, that his opinion was correct.”

Counsel for the appellant relied on two South African Supreme Court of Appeal cases for the submission, that, the onus lies on the Commissioner to show that the effect of the transaction was to avoid, postpone, or reduce the tax liability.

In Commissioner for Inland Revenue v Conhage (Pty) Ltd (formerly Tycon (Pty) Ltd) 1999 (4) SA 1149 (SCA)…,; 61 SATC 391 (SCA)…., HEFER JA stated that:

“The onus is on the Commissioner to prove that its effect was to avoid or postpone the liability for tax or reduce the amount thereof. Upon proof that this was the case, it is presumed in terms of ss(4) that the effect of the transaction was also its sole and main purpose.”

Again, HEHER JA in Commissioner, South African Revenue Services v LG Electronics SA (Pty) Ltd 2012 (5) SA 439 (SCA)…, said:

“Affording due weight to those of the grounds relied on by the appellant which were either common cause or not seriously denied by the respondent, the conclusion of the learned judge, that, the Commissioner had proved no stratagem on the part of the respondent in regard to the importation of the screens, appear to have been justified.

There was no evidence to suggest, that, the respondent manipulated the design or manufacturing or the importation process to avoid payment of duties. This seems clearly to fall within that category of cases where a man may legitimately order his affairs so that the tax is less than it otherwise would be.”…,.

The views of the South African Court of Appeal in these two cases, are at variance with the sentiments of MACDONALD JP in Commissioner v F 1976 (1) RLR 106 (A)…, that:

“The next point is that the Commissioner is obliged to exercise his powers under the section if the transaction, operation, or scheme has the stipulated 'effect' if he is of the 'opinion' that the requisite abnormality is present and if he is further of the 'opinion' that the taxpayer's purpose was as stated in the section.

Here, again, there is a clear indication that it is the intention of the Legislature to cast the net in such a way as to block every possible avenue of escape.

This intention is also manifest by the further provision, that, when the stipulated effect is present and the requisite opinions are held, the onus rests on the taxpayer (under the Eleventh Schedule to the Act) to establish, on a balance of probabilities, that, he did not have the purpose set out in the section.

Moreover, the section strikes not only at avoidance but also at mere postponement and reduction. This is a further indication of the Legislature's intention to make the section all-embracing.

In short, the Legislature, by every conceivable means, has endeavoured to make it extremely difficult for a taxpayer to avoid the payment of tax, which, in the normal course of his business, and, but for his desire to avoid, postpone, or reduce such payment, would fall due.”

The sentiments expressed by MACDONALD JP are binding on me and override the expressions of the South African Supreme Court of Appeal which merely constitute persuasive authority.

Both the statutes governing this Court's operations, and judicial precedent, confirm that our decisions are final.

First is section 167(1) of the Constitution, which sets the Constitutional Court as the highest and final court in constitutional matters. Then, section 5(3) of the Constitutional Court Act [Chapter 7:22] entrenches the finality of our decisions. It provides:

“(3) Subject to section 22(2), there shall be no appeal from any judgment of the Court.

(4) The Court shall not be bound by any of its own judgments, rulings, or opinions nor by the judgments or opinions of its predecessors.”

I draw attention to the apposite remarks of MAKARAU JCC in President of the Senate & Ors v Gonese & Ors CC01–21. She stated the following:

“A decision of the Constitutional Court, on a constitutional matter, is final. No court has power to alter the decision of the Court. Only this Court can depart from its previous decisions, rulings, or opinions. I venture to add for emphasis, that, only this Court, in a future and appropriate constitutional matter, may overrule or depart from its previous order. This application is not such a case where the court can overrule or depart from its previous order.”...,.

The applicant seeks a declaration of invalidity in respect of additional income tax assessments for the tax years ended 2019 and 2020. It also seeks another declaration of invalidity of the additional value added tax [VAT] assessments issued against it by the respondent for the period March 2019 to October 2021. It claims costs of suit on an attorney and client scale against the respondent.

The applicant is an integrated manufacturer, seller, and distributor of a wide range of products, including alcoholic and non-alcoholic beverages. It is a registered taxpayer. It earns revenue in both local and foreign currency, principally United States dollars [USD]. Likewise, its expenditure is incurred in both local and foreign currency.

The respondent is a central collector of revenue for Government through the various pieces of the tax legislation, principally the Income Tax Act [Chapter 23:06] and the Value Added Tax Act [Chapter 23:12] (”the VAT Act”).

The system of taxation involves the compilation by the taxpayers of self-assessments of their tax liabilities and the submission of tax returns to the respondent in respect of any year of assessment. The respondent can adjust these assessments for any anomalies it may pick during its own audit processes.

The matter before the court is largely one of law, more precisely, the interpretation of the relevant provisions of the tax statutes, the facts being largely common cause and useful only as background material.

These facts are as follows:

Following a tax audit on the applicant's tax affairs for the period 1 January 2019 to 31 October 2021, the respondent concluded that the applicant had improperly computed its income tax in the sense, that, despite having received foreign currency for some of its sales in the relevant period, it had neglected or omitted to remit its income tax in respect thereon in foreign currency, but had purported to pay it all off in the local currency. The respondent further concluded, that, the applicant had improperly deducted certain expenses from its taxable income.

Perceiving the applicant's conduct to be a violation of the tax statutes, the respondent disallowed the expenses which it considered to have been improperly deducted. Further, it proceeded to re-compute the applicant's tax liability and issued it with amended tax returns, apportioning the tax payable by the applicant in the proportion of the ratio of its turnover in foreign currency to local currency.

In effect, it required the applicant to pay its taxes in foreign currency in respect of the applicant's revenue received in foreign currency, and in local currency in respect of the revenue received in local currency.

The respondent conducted a similar audit and a re-assessment of the applicant's value added tax (VAT) obligation.

It concluded, that, the applicant had paid its foreign currency component of the value added tax (VAT) all in the local currency, contrary to law. Furthermore, the respondent considered, that, the applicant had not properly completed the VAT returns in that it had left out a whole section altogether - this is the section that separates the foreign currency input and output taxes from the local currency input and output taxes.

Generally, and in very simple terms, output tax is the tax charged and received by a registered operator for subsequent transmission to the respondent. Input tax is the tax that the operator pays on imports. Input tax is deducted from the output tax and the balance is what is remitted to the respondent.

In its amended notices of assessment, the respondent required that the foreign currency input and output taxes be separated from the local currency input and output taxes so that there would be no cross-currency deductions. In other words, the respondent required that only foreign currency input tax be deductible from the foreign currency output tax, and, similarly, that, only local currency input tax be deductible from the local currency output tax.

According to it, that is the correct interpretation of the relevant tax provisions.

The applicant objected to the respondent's re-assessments on multiple grounds. The case was argued on several fronts. Severely truncated, the case before the court crystallized into five areas as laid out below. I proceed to deal with each one of them in turn, summarizing the arguments for and against, and, immediately afterwards, pronouncing my decision on each....,.

In the main, the applicant's ground of objection, severely truncated, was that the respondent's refusal to accept the payment of all the applicant's taxes in the local currency is unlawful because the new Zimbabwe currency has, by statute, been made the sole legal tender; as such, the discharge of tax obligations using the medium of exchange which is the sole legal tender should be regarded as good payment. The respondent is obliged to accept.

The respondent has completely misconstrued the non-obstante clauses of section 4A of the Finance Act [Chapter 23:04] and section 38(4) of the Income Tax Act to improperly require that tax on foreign currency receipts be paid in foreign currency.

Should it be found that there exists a conflict between section 4A of the Finance Act, as read with section 38(4) of the Income Tax Act and the subsequent Finance [No.2] Act of 2019, which introduced the new Zimbabwean currency and made it the sole legal tender, then, the latter legislation must take precedence and prevail over the older provisions, an approach allegedly in line with the rules of statutory interpretation.

The respondent's counter argument is that the applicant has manifestly misunderstood and misconceived the relevant provisions of the law because the payment of taxes in foreign currency on income received in foreign currency is one of the exceptions to the concept of sole legal tender introduced by section 23 of the Finance [No.2] Act of 2019.

It argues that the legislation, properly construed, requires that tax on receipts in foreign currency be paid in foreign currency.

For this particular point, the relevant provisions of the legislation and the parties intrinsic arguments are these:

By section 44C of the Reserve Bank of Zimbabwe Act [Chapter 22:15], an amendment introduced in 2019 (by section 2 of the Finance [No.2] Act, No.7 of 2019 following the publication of SI33 of 2019 [Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars) (RTGS Dollars) Regulations, 2019]), the Reserve Bank of Zimbabwe (“the RBZ”) was empowered to issue an electronic currency in Zimbabwe, but, only after the Minister [of Finance] had, through a statutory instrument, given such electronic currency a name.

As a matter of historical fact, the Minister, by S.I.33 of 2019…, gave the electronic currency a name. He called it the Real Time Gross Settlement dollar, or RTGS. It would be legal tender in Zimbabwe at par with the USD at a rate of one-to-one. Its effective date was 22 February 2019.

From 24 June 2019 that new currency was made the sole legal tender in Zimbabwe.

By section 23(1) of the Finance (No.2) Act, No.7 of 2019, itself an amendment introduced via the Reserve Bank of Zimbabwe (Legal Tender) Regulations 2019, SI142 of 2019, the use of foreign currencies, including the USD, was outlawed as legal tender in Zimbabwe.

The Real Time Gross Settlement Dollar (RTGS) was made the sole legal tender.

By section 41 of the Reserve Bank of Zimbabwe Act, the old banknotes and coins which have not been demonetized are legal tender in Zimbabwe. Historically, these banknotes and coins had been introduced by the Reserve Bank of Zimbabwe in 2016, through the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2016, SI133 of 2016, signalling the return of the local currency after it had been demonetised in 2015, through the Reserve Bank of Zimbabwe (Demonetisation of Notes and Coins) Notice 2015, SI70 of 2015 to usher in a multi-currency dispensation.

The applicant says it is aware of the provisions of section 4A(1)(c) of the Finance Act, particularly the non obstante provision in relation to section 41 of the Reserve Bank of Zimbabwe Act. This provision reads:

“Notwithstanding section 41 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] and the Exchange Control Act [Chapter 22:05] —

(a)…,.

(b)…,.

(c) A company, trust, pension fund or other juristic person whose taxable income is earned, received or accrued in whole or in part in a foreign currency shall pay tax in the same or another specified foreign currency on so much of that income as is earned, received or accrued in that currency;”

The applicant further says, that, it is also aware of the provisions of section 38(4) of the Value Added Tax Act which also has a non-obstante clause, also in relation to section 41 of the Reserve Bank of Zimbabwe Act before an amendment in 2022, by Finance (No.8) Act of 2022, to extend that non obstante clause to include section 44C of the Reserve Bank of Zimbabwe Act.

At the relevant time, section 38(4) of the Value Added Tax Act read as follows:

“4. Notwithstanding section 41 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] and the Exchange Control Act [Chapter 22:05] where a registered operator —

(a) Receives payment of any amount of tax in foreign currency in respect of the supply of goods or services, that operator shall pay that amount to the Commissioner in foreign currency;

(b) Imports or is deemed…, to have imported goods into Zimbabwe, that operator shall pay any tax thereon to the Commissioner in foreign currency.”

Both parties agree that a non-obstante clause in a statutory provision overrides the other provisions it refers to.

The point of departure between them is that, according to the applicant, the non-obstante clauses of section 4A(1)(c) of the Finance Act and section 38(4) of the Value Added Tax Act, before the amendment, both refer to section 41 of the Reserve Bank of Zimbabwe Act, and exclude section 44C of the Reserve Bank of Zimbabwe Act.

The applicant's intrinsic argument in this regard is that the overriding effect of these non-obstante clauses should be restricted to the old bondnotes and coins to which section 41 of the Reserve Bank of Zimbabwe Act refers, and should never be extended to the new RTGS currency to which section 44C of the Reserve Bank of Zimbabwe Act refers.

The applicant adds, that, both section 4A(1)(c) of the Finance Act and section 38(4) of the Value Added Tax Act predate section 44C of the Reserve Bank of Zimbabwe Act which made the new RTGS currency the sole legal tender in Zimbabwe and which must now be accepted if offered in payment.

The respondent's core argument on the point is that the applicant is manifestly mistaken to think that it was section 44C of the Reserve Bank of Zimbabwe Act that introduced the new RTGS currency. It says that this provision merely empowers the Central Bank to do so. As such, section 44C of the Reserve Bank of Zimbabwe Act would not be relevant to any consideration whether or not any tax is payable in foreign currency.

I find the applicant's approach rather flawed. Its argument is fragmented and selective.

In regards to the non obstante clauses of section 4A of the Finance Act and section 38(4) of the Value Added Tax Act, I find the distinction the applicant seeks to draw rather artificial, in suggesting that the sole legal tender concept applies only in relation to the old bond-notes and coins issued by the Reserve Bank of Zimbabwe but not to the electronic currency introduced by the Reserve Bank of Zimbabwe following the insertion of section 44C into the Reserve Bank of Zimbabwe Act.

The scheme of the Reserve Bank of Zimbabwe Act, in Part VI, is this:

By section 40, the Reserve Bank of Zimbabwe is empowered to issue banknotes. By section 41, these banknotes, if not demonetized, are legal tender. By section 43, the Bank is empowered to issue coins which are legal tender if not demonetised. By section 44B, both the bond notes and coins are legal tender. By section 44A, the Minister is empowered to make any foreign currency legal tender in Zimbabwe. By section 44C, the Bank can issue an electronic currency as legal tender in Zimbabwe.

The banknotes, the bond notes, and the bond coins have not, as yet, been demonetized. They are as much legal tender in Zimbabwe as the Real Time Gross Settlement Dollar (RTGS) currency.

In terms of section 44B(2) of the Reserve Bank of Zimbabwe Act, the Minister can prescribe that the bond-notes and coins are exchangeable at par value with any specified currency other than the Zimbabwean currency.

The Reserve Bank of Zimbabwe Act makes no such distinction as the applicant seeks to make between the raft of what constitutes the local currency of Zimbabwe, comprising the banknotes, the bond notes and coins, on the one hand, and the electronic Real Time Gross Settlement Dollar (RTGS) currency, on the other.

They are all legal tender.

The applicant's purported differentiation is on the basis of the dates of issue of the currencies: yet, SI142 of 2019, that introduced the sole legal tender concept, did not single out the electronic currency. It simply referred to the “Zimbabwe dollar”.

The heading to section 2 of S.I.142 of 2019 reads:

“Zimbabwe dollar to be the sole currency for legal tender purposes.”

In the operative part of that provision, the currencies of the specified countries, including Britain and the United States, are outlawed and would not be legal tender in Zimbabwe “…, alongside the Zimbabwe dollar in any transactions….,.”

Plainly, the reference to the “Zimbabwean dollar” was a reference to the banknotes, the bond notes and coins, and the electronic currency, without distinction.

The applicant's argument is ill-conceived in another respect.

As pointed out above, the sole legal tender concept, in relation to the Zimbabwe dollar, was introduced by SI142 of 2019 whose provisions were subsequently incorporated in the Finance [No.2] Act of 2019. This instrument, despite making the Zimbabwe dollar the sole legal tender, made exceptions in certain regards. Examples of those exceptions were the operation of Nostro accounts, the payment of customs duty, and the payment of value added tax (VAT) on imports.

Further exceptions to the sole legal tender concept were subsequently introduced in September 2019 when the Exchange Control (Exclusive Use of Zimbabwe Dollar for Domestic Transactions) Regulations 2019, SI212 of 2019 was promulgated.

By this instrument, all domestic transactions would be payable in Zimbabwean dollars - but, certain categories were excluded from the meaning of domestic transactions.

They included the payment of carbon tax for foreign registered vehicles, third party insurance payments for foreign registered vehicles, payments to local insurance companies for bond guarantees or bonds for designated goods, payments of duty at ports of entry by individuals opting to pay in foreign currency, and so on.

The applicant argues, that, the exclusion of taxes in S.I.212 of 2019 means that the legislator intended that it is only in respect of those listed transactions that the sole legal tender concept would not apply.

But, all relevant legislation has to be considered together to arrive at the true intention of the legislature.

Plainly, it is the intention of the legislature that companies whose income comprise a component in foreign currency should pay tax in foreign currency on any such foreign currency component. The applicant ignores the omnibus provision of section 4 of SI212 of 2019 which extended the list of transactions exempted from the meaning of domestic transactions. It reads:

“4. The following transactions are not within the scope of the definition of 'domestic transaction' in subsection (1) for the purposes of these regulations —

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e) Transactions in respect of which any other law expressly mandates or allows for payment to be made in any or a specified foreign currency.”

Undoubtedly, the 'any other law' which expressly mandates or allows 'for payment to be made in any or a specified foreign currency' is section 4A of the Finance Act and section 38(4) of the Value Added Tax Act.

The absurdity of the applicant's position becomes clearer with regards to value added tax (VAT) on receipts in foreign currency.

What it would mean, if its argument were to prevail, would be that it would have the liberty to unilaterally convert the foreign currency value added tax (VAT) income from its customers into local currency at some unspecified rate of exchange before remitting to the respondent.

That is untenable.

In fact, this court has since settled the position. In Prosperous Days Investment v ZRA HH24-21 it was held that where any output value added tax is received in foreign currency it should be paid in foreign currency.

The conflict of statutes alleged by the applicant, that one set requires payment of taxes on receipts in foreign currency and another prescribes the payment of all taxes only in the local currency, as the sole legal tender, does not exist. As shown above, it is only a misconception that there may be such a conflict.

The applicant's objection under this head has no merit....,.

This is an appeal against the whole judgment of the High Court handed down on 1 June 2020 granting an interdict in favour of the first and second respondents (Lilian Timveos and Thabitha Kuhumalo).

On 3 April 2020, the second appellant (Douglas Mwonzora), in his capacity as Secretary General of the first appellant (Movement for Democratic Change-Tsvangirai), sent identical letters to the third and fourth respondents (Speaker of the National Assembly and President of the Senate) recalling the first and second respondents from the Parliament of Zimbabwe.

The reason for the recalls was that they had ceased to be members of the first appellant, Movement for Democratic Change-Tsvangirai (MDC-T).

On 5 May 2020, the third and fourth respondents informed their respective houses of the receipt of the second appellant's letter and vacancies created thereby.

The Zimbabwe Electoral Commission (ZEC) was duly informed of the same so that the electoral process could begin in terms of section 39(3) of the Electoral Act [Chapter 2:13] (herein after referred to as the Act).

The first and second respondents were aggrieved by the recalls. They approached the High Court with an urgent chamber application in a bid to stop the appellants from replacing their seats in Parliament.

The provisional order they sought was couched as follows:

“TERMS OF FINAL ORDER SOUGHT

It is ordered that:

1. It is hereby declared that first, second, and third respondents or anyone acting through them or on their behalf have no power or authority to replace second and third applicants (sic) who are members of the MDC–Alliance as members of the Senate and National Assembly respectively by members of the MDC-T, or any of their appointees and that such replacement of applicants is unlawful.

2. Pending a resolution of the applications in Case Nos. HC2308/20, HC2351/20 and HC2352/20 the replacements of applicants as Members of Parliament by the respondents be and is hereby stayed.

3. Respondents to bear the costs, jointly and severally, the one paying the other to be absolved.

Pending confirmation or discharge of the provisional order, it is ordered that:

1. First, second, and third respondents or anyone acting through them or on their behalf be and are hereby interdicted, barred, and stopped from replacing applicants as members of the Senate and National Assembly, respectively, by members of MDC-T or any of their appointees.

2. Sixth respondent be temporarily interdicted from Gazetting the existence of vacancies in applicants Constituencies for purposes of taking steps to have them filled by nominees of first, second, and third respondents.”

In their founding affidavit, the first and second respondents alleged that they did not belong to (MDC-T) but to Movement for Democratic Change Alliance (MDC-A) led by Nelson Chamisa, a party completely different from MDC-T.

According to them, only MDC-A could recall them from Parliament.

They further alleged that they were nominated to be voted into Parliament under MDC-A.

In opposing the application, the second appellant (Douglas Mwonzora) contended, that, the first appellant (MDC-T) was entitled to replace the first and second respondents as they were voted into office under the MDC-T party.

Further, he averred that the relief sought by the first and second respondents had an effect of interfering with the first appellant's right to replace its own members of Parliament.

He further stated, that, MDC-A is a pre-election pact of seven political parties that were constituted in terms of a Composite Political Agreement. The nominated candidates did not individually belong to the MDC-A, but to their respective political parties which formed the Alliance.

Further, he averred that the matter was not urgent.

The third appellant (Dr. Thokozani Khupe) raised the following preliminary points, that:

(i) The certificate of urgency was defective in that it did not state the date on which the need to act arose;

(ii) The Zimbabwe Electoral Commission ought to have been cited as a party and not citing the Chairperson;

(iii) The matter was not urgent as the founding affidavit did not have a cause of action;

(iv) There was material non-disclosure of the judgment under SC56-20 which nullified the appointment of Nelson Chamisa as president;

(v) The interim and final relief sought was the same;

(v) The court could not grant interim relief as the vacancies should be filled within 90 days.

On the merits, the third appellant associated herself with the arguments raised by the second appellant in as much as the argument that MDC-A is not a political party on its own.

She further averred, that, the first and second respondents have an alternative remedy which was to have the main matter resolved expeditiously.

The third and fourth respondents (Speaker of the National Assembly and President of the Senate) also filed their opposition.

In their opposition, they averred that the matter was not urgent as the alleged urgency was self-created.

They further contended, that, the High Court did not have jurisdiction to entertain the matter as the matter was a constitutional one.

They submitted, that, the first and second respondents case was based on the allegation that Parliament failed to fulfil its constitutional obligations by violating section 129(1)(k) of the Constitution. This allegation therefore placed the matter within the exclusive jurisdiction of the Constitutional Court in terms of section 167(2)(d) of the Constitution.

The court a quo dismissed all the points in limine.

It held that the certificate of urgency was not defective as it contained crucial information relating to the fears of the first and second respondents.

It further held that the matter was urgent.

On the question of non-citation of the Zimbabwe Electoral Commission (ZEC) the court a quo held, that, the citation of the Chairperson of ZEC, instead of the Zimbabwe Electoral Commission was proper.

It reasoned, that, the citation of the Zimbabwe Electoral Commission (ZEC) in legal proceedings is governed by section 14 of the Electoral Act which provides that the State Liabilities Act [Chapter 8:14] applies whenever ZEC is to be cited in legal proceedings.

The State Liabilities Act provides that when suing a Ministry, the Minister is to be cited.

The court held, that, equating the Zimbabwe Electoral Commission (ZEC) to a Ministry, the citing of the Chairperson of ZEC is proper.

In this regard, the court a quo also relied on the case of Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S)...,.

On the issue of material non-disclosure, the court a quo held that judgments of the courts are in the public domain.

It further held that the Supreme Court judgment declared what the position in the MDC was and this did not pertain to the expulsion of the first and second respondents from Parliament.

It also found that the substance of the interim relief sought and the final order sought was not the same.

On the merits, the court a quo found that the first and second respondents had established a prima facie right which must be protected. It thus granted the order on the premise, that, the first and second respondents had established a prima facie case for the grant of the provisional order.

The order granted reads as follows:

“Pending the determination, or disposal by this Court, of the proceedings under the reference case nos. HC2351/20 and HC2352/20, the first, second and third respondents, or anyone acting through them, or on their behalf, shall refrain and desist from, and they are hereby interdicted, barred, and restrained from submitting any nomination papers in terms of section 39(4)(b) of the Electoral Act [Chapter 2:13], or submitting or supplying the names of any other person for the purposes of filling up any perceived vacancies in the Parliament of Zimbabwe in respect of the seats held by the first and second applicants in the Senate and National Assembly, respectively, as at 3 April 2020.”

Dissatisfied with the decision of the court a quo, the appellants noted this appeal. The appellants raised ten (10) grounds of appeal.

In motivating the appeal, counsel for the appellants, on reflection, abandoned the first two grounds relating to findings on urgency. He also seemed to have abandoned grounds 4 and 10 as he did not address these grounds.

The grounds that remained pertained to:

(i) The findings that the joinder of the Zimbabwe Electoral Commission (ZEC) was not necessary;
(ii) That, the interim relief was not the same as the final relief;
(iii) That, the court a quo had jurisdiction to grant the interdict as it did not interfere with the process by the Zimbabwe Electoral Commission (ZEC); and
(iv) That, the respondents had established a case for the interdict.

Before counsel could make detailed submissions on the remaining grounds of appeal, the court drew the attention of counsel for the parties to the order granted by the court a quo and whether such was in sync with the relief the first and second respondents had approached the court for.

In addressing this point, counsel for the appellants submitted that though the grounds of appeal had not succinctly captured this anomaly, grounds 8 and 9, on the interim relief being the same as the final relief, were in fact intended to address the fact that the order granted was not proper as it was final in nature when the respondents had only sought a provisional order.

He further submitted, that, the court a quo erred in granting a final order upon a finding that only a prima facie case had been established.

It was his view that this Court may exercise its powers in terms of section 25 of the Supreme Court Act [Chapter 7:13].

As regards the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) and not ZEC, counsel for the appellants submitted that the court a quo also erred in finding that the joinder of the Zimbabwe Electoral Commission was not necessary and the non-joinder was not fatal.

He also submitted, that, the court a quo erred in law in not finding that it had no jurisdiction to interdict a lawful process, namely, that it could not interdict the filling of vacancies that have arisen by operation of law.

Counsel for the first and second respondents conceded, that, the court a quo erred by granting a final order based on a finding that the first and second respondents had only established a prima facie case.

He submitted, that, the only amendment he made to the interim relief sought was the abandonment of paragraph 2 which sought to temporarily interdict the Zimbabwe Electoral Commission (ZEC) from gazetting the existence of vacancies in their respective constituencies. There was thus no other amendment to their prayer warranting the order that was granted.

He confirmed that what the court a quo granted was not what his clients had approached the court for.

Just as with the appellants counsel, he submitted that he only saw that the court had granted such an order upon reading the judgment.

In the circumstances, he was not averse to this Court exercising its powers in terms of section 25 of the Supreme Court Act in resolving the irregularity.

Regarding the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) instead of ZEC, counsel insisted that the citation or joinder of the Zimbabwe Electoral Commission was not necessary, and failure to do so was not fatal, as no order was made against it.

Counsel for the third and fourth respondents (Speaker of the National Assembly and President of the Senate) had no submissions to make save to indicate that his clients would abide by the decision of the court.

Counsel for the fifth respondent (Chairperson of the Zimbabwe Electoral Commission) indicated that whilst his client would abide by the court's decision, there was, however, an unsatisfactory position of the law regarding whether the Zimbabwe Electoral Commission (ZEC) should have been cited or not.

In this regard, he alluded to section 14 of the Electoral Act as amended by Act 3 of 2012 and Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S).

He juxtaposed these with section 4A of the Electoral Act as amended by Act 3 of 2012 on the corporate status of the Zimbabwe Electoral Commission (ZEC) and the Constitution of Zimbabwe Amendment (No.20) Act of 2013 which provides corporate status for independent commissions, of which ZEC is one.

Upon a careful consideration of the submissions made we are of the view that this appeal may be disposed of on the basis of the order granted.

The issue of citation is only pertinent in as far as it is necessary to bring to the fore the inconsistency alluded to.

The issues for determination may thus be restricted to:

(i) Whether or not the order granted by the court a quo was proper in the circumstances.

(ii) Whether or not the court a quo erred in finding that the citation of the chairperson of the Zimbabwe Electoral Commission (ZEC) was proper and that non-joinder of the Zimbabwe Electoral Commission, as a party, was not fatal to the proceedings as it was not necessary in terms of section 14 of the Electoral Act.

The finding on the first issue in effect disposes of this appeal. However, we considered it pertinent, and for the sake of completeness, to address the issue of non-citation of the Zimbabwe Electoral Commission (ZEC) in view of the apparent inconsistencies in the law.

This matter brings to the fore the need for the appropriate authorities to address the unwelcome inconsistency through legislative intervention.

It is common cause, that, in arriving at its decision, the court a quo relied on section 14 of the Electoral Act as amended and Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S)...,.

In that case, this court held, inter alia, that it was clear from section 18 of the Electoral Act that the Chairperson of the Zimbabwe Electoral Commission (ZEC) is to be cited wherever the Zimbabwe Electoral Commision is being sued.

The then section 18 of the Electoral Act was similar to the current section 14 of the Electoral Act relied upon by the court a quo which provides that:

“(1) Subject to subsection (1), the State Liabilities Act [Chapter 8:14] applies, with any necessary changes, to legal proceedings against the Commission as if the Chairperson of the Commission were a Minister.”

Whilst the law, as espoused in Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S), was the legal position obtaining at the time, it is common cause that subsequent to that case, the Electoral Amendment Act 2012 (No.3 of 2012) was passed.

This amendment introduced, inter alia, section 4A to the Electoral Act which granted corporate status to the Zimbabwe Electoral Commission (ZEC) in these terms:

“(1) The Zimbabwe Electoral Commission shall be a body corporate capable of suing and being sued and subject to the Constitution and this Act, of performing all acts that bodies corporate may by law perform.”

An unsatisfactory state was created by the amended section 14 of the Electoral Act above which seemed to contradict the corporate status granted in section 4A of the Electoral Act. This position became untenable with the amendment of the Constitution of Zimbabwe in 2013.

The Constitution, as amended in 2013, provides for independent commissions, of which the Zimbabwe Electoral Commission (ZEC) is one, under Chapter 12. Section 319 of the Constitution states that:

“The commissions are bodies corporate with perpetual succession and are capable of suing and being sued in their own names.”

It is clear that section 14 of the Electoral Act is inconsistent with section 319 of the Constitution.

Such inconsistency is resolved by reference to section 2(1) of the Constitution which states that:

“This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.”

The position of the law, prior to the aforesaid amendments, where the Zimbabwe Electoral Commission (ZEC) could only be sued through its Chairperson is now invalid to the extent of that inconsistency.

The Zimbabwe Electoral Commission (ZEC) has been clothed with legal persona and is thus capable of suing or being sued in its own name.

The court a quo therefore erred in relying on the law prior to the aforesaid Constitutional Amendment.

Though the question as to whether the non-citation of the Zimbabwe Electoral Commission (ZEC) was fatal in this matter was contentious, it is our view, that, in the light of the fact that the first and second respondents abandoned the paragraph which sought to interdict the Zimbabwe Electoral Commission in its operations, and the order granted has no paragraph interdicting ZEC in its electoral processes, it is no longer necessary to determine the point.

On 16 February 2017, the plaintiff sued out a summons against the first defendant seeking an order couched in the following terms:

“(i) An order confirming the cancellation of an agreement of sale entered into by and between plaintiff and defendant in respect of a property known as a certain piece of land being Stand number 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo and which cancellation was occasioned by defendant's breach of the terms and conditions of the said sale agreement.

(ii) An order evicting the defendant and all those claiming through him from the aforesaid premises on the basis that the defendant and his claimants no longer have a lawful right to remain in occupation of the premises following the cancellation of the sale agreement.

(iii) An order that the defendant pays occupational damages to the plaintiff in the sum of US$800 per month or US$26=67 per day, from the 4th September 2015, this being the date of the sale agreement was cancelled to the date of eviction.

(iv) Cost of suit at an attorney and client scale.”

The defendant referred to in the order sought by the plaintiff is the first defendant in this matter....,.

In the summons, the plaintiff sought an order that the first defendant pays occupational damages to the plaintiff in the sum of US$800 per month or USS26 per day calculated from 4 September 2015 to the date of eviction.

In Silonda v Nkomo HB60-19, BERE J…, expressed the view that where parties entered into a sale agreement, the court could not read into it anything other than what such agreement states. It could therefore not be taken as a lease agreement to entitle a litigant to claim holding over damages.

Whilst this judgment was appealed, the Supreme Court, in Silonda v Nkomo SC06-22 did not interfere with the learned judge's exposition of the law as this was not one of the grounds of appeal ventilated before the Supreme Court.

This exposition of the law applies with full force in this case.

The plaintiff and the first defendant did not enter into a lease agreement. The first defendant resided at the property, not as tenant but a purchaser (notwithstanding that the agreement was subsequently cancelled).

For this reason, the claim for holding over damages is not sustainable and must fail.

This is a partial appeal against the judgment of the Labour Court (the court a quo) LC/H/2/19 dated 7 February 2019. The appeal is against the court a quo's ruling on the question of citation of the parties and the arbitrator's failure to award damages as an alternative to reinstatement....,.

The 56 appellants were employed by the respondent, Freda Rebecca Mine Holdings Limited, in various capacities at its mine in Bindura. Owing to virulent economic hardships at the time, the respondent ceased its mining operations sometime in 2008 without terminating the appellants respective contracts of employment.

Sometime in 2009, the respondent sought to resuscitate its mining operations.

In doing so, it unilaterally sought to re-engage the appellants on inferior contracts different from those obtaining as at the time it ceased operations in 2008.

A dispute then arose concerning the appropriate terms of employment upon resumption of mining operations.

Following failure to resolve the dispute, the respondent arbitrarily wrote to the appellants terminating their original contracts of employment.

The termination letters were written on a standard letterhead bearing the name FREDA REBECCA GOLD MINE. The letters were signed by one T Chivonivoni who designated himself/herself as the GENERAL MANAGER-FREDA REBECCA GOLD MINE.

Dissatisfied by the turn of events, the appellants took the dispute to the Designated Agent.

The Designated Agent referred the dispute to conciliation.

Upon failure of the conciliation process, the conciliator issued a Certificate of No Settlement and completed a Reference to Arbitration on a standard form in which he designated the parties as “Freda Rebecca Mine alleged unfair labour practice of E Mapondera and 60 others.”…,.

The reference form is dated 12 May 2010.

It is common cause that the proper citation of the respondent, as a party to legal proceedings, ought to have been Freda Rebecca Gold Mine Holdings Limited.

The arbitrator's terms of reference were “to determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”

At the hearing before the arbitrator, the respondent took the preliminary objection, that, apart from Edmond Mapondera, the rest of the remaining appellants had no locus standi because their names had not been listed as claimants and E. Mapondera was not authorised to represent them.

Counsel for the appellants argued, that, the respondent had always been aware that the case involved 61 employees whose identities had not been placed in issue at conciliation stage. It was only at the arbitration stage that the respondent belatedly sought to make it an issue.

During the course of the arbitration proceedings, the arbitrator was then provided with a list of the concerned employees comprising a total of 58 claimants. The list of the claimants who were party to the proceedings was availed to the respondent.

The arbitrator dismissed the objection in limine on the ground, that, the appellants had a real and substantial interest in the matter and that right from the initiation of the legal proceedings the respondent knew the identity of its adversaries.

Having dismissed the preliminary objection, the arbitrator proceeded to make an award in favour of E. Mapondera and 57 others on 12 January 2011. The award was couched in the following terms:

“1. That, the claimants are hereby reinstated to their positions without loss of salary and benefits with effect from the date of unlawful dismissal.

2. Each party to meet its own costs.”

Dissatisfied with the arbitral award, the respondent appealed to the court a quo with partial success. It took the following four (4) grounds on appeal:

“1. The Honourable arbitrator unprocedurally accepted evidence submitted by the claimants subsequent to the arbitration hearing in respect of the purported hearing in respect of the purported identity of the innominate (sic) 60 other claimants who had not been included by name in the original claim.

2. The Honourable arbitrator fundamentally misdirected himself in finding, that, since the alleged 60 other employees had a substantial interest in the matter they did not need to be identified and to be made parties in arbitration proceedings before him. The fact that the employees have any kind of interest in the matter did not dispense with the entitlement of the appellant to know who the said appellants were at the commencement and during the course of the proceedings. The production of the names of the employees subsequent to the hearing, and without an opportunity for the appellant to challenge the accuracy of the names and the positions so stated for the employees, violated the appellant's right to a fair hearing before an independent and impartial tribunal.

3. The Honourable Arbitrator fundamentally misdirected himself in failing to find that the contracts of employment for the said employees, E. Mapondera & 60 Others, had terminated by operation of law and the appellant could only re-engage the employees in terms of new contracts of employment. The said former employees, having refused to sign new contracts of employment, the appellant lawfully confirmed the termination of their contracts of employment by operation of law on the 5th of March 2010.

4. The Honourable arbitrator fundamentally misdirected himself in ordering the reinstatement of E. Mapondera & 60 other employees without affording the Appellant an opportunity to pay damages in lieu of reinstatement. The order of reinstatement, without the alternative for the payment of damages, is not consistent with the ordinary rules of the law of contract and the specific circumstances of the appellant.”

On the basis of the above grounds of appeal, the appellant sought the following relief:

“(i) That the claimant's claim be and is hereby dismissed.

(ii) Alternatively, that, in the event that the Honourable court finds that the contracts of employment for the Respondents were not lawfully terminated, that the Appellant is hereby directed to pay the Respondents damages in lieu (sic) of reinstatement.

(iii) The Respondents shall pay the costs of suit.”

Upon consideration of the facts and the law, the court a quo found that the arbitration proceedings were a nullity at law because the claimants had cited a non-existent person and that the 2nd to 60th employees were not a party to the arbitration proceedings.

It also found, that, the arbitrator had no discretion to award reinstatement without an alternative of payment of damages for unlawful dismissal. It therefore ordered as follows:

“It is accordingly ordered that -

1. The appeal be and is hereby allowed on grounds 1, 2, 4 and 5.

2. The appeal falls on ground of appeal 3.

3. Overly, the appeal succeeds as the proceedings were a nullity due to wrong identity of the employer.

4. Each party to bear its costs.”

Aggrieved by the above order, the appellants appealed to this Court challenging the court a quo's order on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that the citation of the respondent, through its trade name 'Freda Rebecca Mine' was such an irregularity whose effect rendered the entire proceedings a nullity.

2. The court erred at law in finding that 2nd to 61st appellants were not properly cited before the Arbitrator and that the extent of the impropriety was such that they were all not party to the arbitration proceedings.

3. The court a quo erred at law in finding that the Arbitrator has no power to order an employer to reinstate an unlawfully dismissed employee without giving the same employer the option to pay damages in lieu of reinstatement to the employee.”

On the basis of the above grounds of appeal, the appellants prayed for the following relief:

1. That the appeal succeeds with costs.

2. That the judgment of the court a quo is partially overturned and the order substituted with the following:

“(a) The preliminary point raised by the Appellant relating to its mis-citation be and is hereby dismissed.

(b) The preliminary point raised by the Appellant relating to the proper citation of the 2nd to the 61st Respondents be and is hereby dismissed. The 2nd to 61st Respondents are hereby held to be properly before the court.

(c) The appeal be and is hereby dismissed with costs and the arbitration award be and is hereby upheld.”

The grounds of appeal raise the following three cardinal issues for determination:

1. Whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.

2. Whether or not the appellants were properly before the Arbitral Tribunal.

3. Whether or not it was proper for the Arbitral Tribunal to order reinstatement of the appellants without an alternative of payment of damages in lieu of reinstatement.

It will be remembered, that, the arbitrator's terms of reference were “to determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”

It is trite, that, an arbitrator is bound by the given terms of reference. He has no jurisdiction outside the terms of reference.

The respondent's objection sought to amend the terms of reference by limiting the terms of arbitration to E. Mapondera to the exclusion of the 60 other employees.

This the arbitrator could not do as it would amount to a violation of his terms of reference.

Placing reliance on the High Court cases of Panganai and 20 Others v Kadir and Sons (Private) Limited HH26-95 and Prosser and 35 Others v Ziscosteel Company Limited HH201-93, the learned judge a quo held that apart from E. Mapondera the other 60 employees were not properly before the arbitrator.

He reasoned, that, this was because the arbitrator had not been provided with a list of their names and they had not filed affidavits professing joinder to the arbitral proceedings....,.

On 24 July 2013, the High Court granted judgment in favour of the respondent herein. Consequent thereto, the court ordered that the appellant vacate premises known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare and pay the sum of USD22,730=99 being arrear rentals, and holding over damages in the sum of USD5,000 together with operating costs from 1 November 2011 to the date of eviction.

The court ordered the appellant to pay interest on the abovestated sums at a rate that is 5 percent above the lending rate of commercial banks, and costs of suit at the ordinary rate.

The appellant was aggrieved and noted an appeal against the whole judgment.

The respondent was equally unhappy with part of the judgment and noted a cross-appeal against the finding by the court that it was required to give the appellant fifteen (15) days notice of cancellation of the lease in the event of failure by the appellant to pay rent on due date.

In addition, the respondent particularly appealed against the finding by the court, that, the letter dated 26 September 2011 by the respondent did not constitute a cancellation of the agreement.

The appellant and the respondent are private limited companies duly registered as such under the laws of Zimbabwe and carrying on business as such within the country.

On or about 30 March 2010, the respondent and the appellant entered into a written agreement of lease in terms of which the former leased to the latter commercial property known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare.

The agreement was initially for a period of six months and was terminable on 31 August 2010.

Although the lease agreement suggests that it commenced on 30 March 2010, evidence from the appellant during the trial reveals that it first occupied the premises sometime in 2005.

This fact is, however, of no moment as it was never disputed that there was a subsisting lease between the parties.

It is worth noting, that, while there is no specific clause providing for the renewal of the lease, clauses in the agreement suggest that it was to endure beyond the stated period of six months.

Indeed, when the dispute erupted, the appellant had been in occupation of the premises for over twelve months.

After the lease period expired, the parties continued with the lease on the same terms and conditions.

This is because the accepted sum due as rental, at that stage, was USD5,000 - an amount far in excess of the USD1,000 stated in the original written lease.

Moreover, from the manner in which the proceedings in the court below were conducted, it can be inferred that the lease was still subsisting.

The terms and conditions of the lease agreement are the bone of contention between the two.

The terms of the agreement that are pertinent to the dispute are to be found in clauses 3 and 12 of the agreement and relate to the payment of rentals and operating costs.

The parties agreed that the appellant would pay monthly rentals within the first seven days of each month, together with operating costs at agreed rates.

The respondent alleged, that, the appellant was in breach of a material term of the agreement by failing or neglecting to pay monthly rentals and operating costs within the time stipulated in the lease agreement.

Due to the breach, the appellant allegedly incurred arrear rentals in the sum of US$22,730=99.

As a consequence of the breach, the respondent averred that it had cancelled the lease agreement, demanded vacant possession of the leased premises, and payment of the arrear rentals and operating costs.

The respondent posits, that, it did so by letter dated 26 September 2011 from its legal practitioners to the appellant cancelling the said agreement.

On 12 October 2011, the respondent issued summons against the appellant in which it claimed the following relief:

“(a) An order for the eviction of the defendant together with its tenants, assignees, invitees, and all other persons claiming occupation through it from the plaintiff's premises known as Shops 1 and 2 Benhay Art House, located at 120 Chinhoyi Street, Harare.

(b) Payment of the sum of USD22,730=99 in respect of arrear rentals.

(c) Payment of holding over damages at a monthly rate of USD5,000 together with operating costs from 1 November 2011 to the date of eviction.

(d) Payment of interest on the sums of money claimed herein at a rate which is 5 percent above the commercial bank minimum lending rate per month, or part thereof, calculated from due date to date of payment in full.

(e) Payment of costs at the scale of legal practitioner and client.”

It is common cause that the parties thereafter attempted to enter into without prejudice negotiations.

A Deed of Settlement was drafted which required the appellant to acknowledge its indebtedness in the sum of US$16,980 and to discharge its indebtedness at the rate of US$2,500 a month with effect from 1 November 2011.

Further, the appellant was to continue to pay monthly rentals of US$5,000 in accordance with the terms of the lease agreement.

The respondent's legal practitioners signed the draft Deed of Settlement. The appellant's legal practitioners did not.

As it had threatened, the respondent proceeded with the suit culminating in the holding of a pre-trial conference before a judge in chambers.

At the pretrial conference, the matter was referred to trial on the following issues:

1.1 Whether or not the respondent properly cancelled the lease agreement in respect of Shops 1 and 2 Benhay Art House, No.120 Chinhoyi Street, Harare.

1.2 Whether or not any agreement for the out of court settlement of this matter was concluded between the parties.

1.3 If so, what were the terms of the agreement?

2.1 Whether or not the respondent was entitled to an eviction order.

For the purposes of the trial, the court a quo formulated the issues that were before it for determination as:

1. Whether the respondent gave adequate notice of intention to cancel the lease agreement before the agreement was cancelled.

2. Whether there was a valid cancellation of the lease agreement between the parties.

3. Whether the parties entered into a separate agreement relating to the outstanding rent.

The court a quo found in favour of the respondent and issued the order referred to above.

In arriving at its decision, the court a quo noted that clause 3.2 of the lease agreement stipulated that rent was to be paid monthly in advance, at the latest by the seventh day of the month.

It also found, that, clause 12 stipulated that if rent was not paid as agreed, or where the tenant breached any other condition of the agreement and remained in default for a period of fifteen days after being given notice in writing by the landlord, then, the landlord could cancel the lease forthwith and retake possession of the premises without prejudice to any claim for damages.

The court also found, that, in the light of these clauses, the letter dated 26 September 2011 did not effectively cancel the lease agreement.

The court noted, that, instead, the letter gave the appellant three days to rectify the breach and that this period was contrary to the agreement which allowed for a period of fifteen days to remedy a breach.

The letter in question was delivered to the appellant on 27 September 2011. The court, therefore, found that, that is when the fifteen days contemplated by clause 12 began to run.

Consequently, the court concluded, that, the appellant had up to 12 October 2011 to remedy the breach.

Accordingly, the court a quo found, that, by 12 October 2011, when the respondent issued summons, it did so in compliance with the lease agreement as the fifteen days from the date the appellant received the letter had elapsed.

The court further found that the letter of 26 September 2011, by which the respondent said it cancelled the lease agreement, had the effect of placing the appellant in mora.

Thereafter, the court reasoned, the appellant had fifteen days from the date of being placed in mora to remedy the breach, failing which the respondent had the right to cancel the agreement.

The court further determined, that, there was no compromise agreement as, by the appellant's own admission, it failed to sign the Deed of Settlement.

The court a quo, therefore, granted the respondent's claim in its entirety.

The appellant has noted the present appeal on the following grounds:

“1. The court a quo erred in granting an order for the monetary claim as made out in the summons when it was apparent from the evidence that this money had been cleared.

2. The court a quo erred by extending the time of notice after it had made a finding that there was insufficient notice given.

3. The court a quo erred in finding, as it did, that notice, though insufficient, was given, when, in actual fact, the respondent cancelled the agreement of lease without giving the notice required in terms of the agreement.

4. The court a quo misdirected itself as it made a finding that there was no compromise reached by the parties because the Deed of Settlement was not signed by the appellant, yet, the Deed was for proof purposes only as the agreement had already been reached.

5. The court a quo erred, generally, by ordering eviction after the compromise and when the arrears had been cleared.

6. The court a quo erred by making a finding that the appellant's witness was not credible when he gave straight forward evidence.”

In its heads of argument, the respondent has conceded that its cross appeal was ill-founded. As a consequence, it was not proceeding to argue the same.

The concession is proper.

The cross-appeal sought to challenge findings of fact made by the court a quo without a corresponding prayer to alter the judgment itself.

The concession leaves only the main appeal for determination.

In my view, the remaining issues for determination, therefore, are the following:

(i) Whether the lease was properly cancelled;

(ii) Whether the court a quo should have ordered the eviction of the appellant from the premises;

(iii) Whether the parties reached a compromise; and

(iv) Whether the court a quo was correct to grant the monetary claim in its entirety.

The appellant contends, that, the court a quo fell into error in three respects:

(i) The first, it argues, is that the court found that the respondent was required, in terms of the agreement of lease, to give notice to the appellant to rectify its breach and that the former did in fact give the notice aforesaid.

The appellant argues, that, the respondent was obliged to give it fifteen days notice before it could validly cancel the lease. Instead, the respondent only availed it notice amounting to three days.

As a consequence, there was no notice and the finding by the court a quo, that there was notice and a valid cancellation consequent thereto, was erroneous.

A lease comes into being once the landlord and the tenant have agreed on the formalities that form the basis of their contract.

There must be a property available for lease and the rent in respect thereof must be settled.

The lessor's obligation is to make the property's occupation, use, and enjoyment available. In fulfilling this obligation, he has to refrain from disturbing the lessee in the enjoyment of the property leased and he must maintain the property in the condition agreed upon. In addition, the property must be fit for the purpose for which it is being let. Further, he must warrant the lessee against eviction by a third party with better title.

The primary obligations of the lessee are to pay the rent and incidental costs, and the charges incidental thereto, at the proper time and place agreed in the agreement, and, at the time of termination of the lease, to restore the property in the same condition he would have found it.

In casu, it is not in dispute that the appellant fell behind in the payment of its rent and accumulated arrears.

The breach is admitted.

The accumulation of arrear rentals is the cause of the conflict between the parties.

The respondent cancelled the lease after alleging a breach on the part of the appellant.

Cancellation of a contract is a legal act that delineates the relationship between the parties to the contract at a specific moment. Not every breach entitles the injured party thereto to cancel the contract.

The trite position is that, unless otherwise agreed, it is only that breach that goes to the root of the contract that can give rise to a right to cancel. In other words, it is a breach that goes to the root of the contract that entitles the aggrieved party to cancel.

The court a quo agreed with the appellant on the question of notice.

It found, however, that, the respondent had given notice to the appellant to rectify its breach when summons was issued for the eviction of the appellant and its assignees. The court reasoned as follows:

“In my view, the letter of 23 September 2011, did not effectively or adequately cancel the lease agreement. It gave the defendant 3 days within which to rectify its breach. Clause 3.2 as read with clause 12.2 of the lease agreement clearly stipulates that fifteen days be given to the defendant within which to rectify the breach.

That letter was delivered to the defendant on 27 September 2011. That is when the fifteen day period began to run. The defendant had up to 12 October 2011 to remedy the breach.

Letters were exchanged between the parties, on a without prejudice basis, in settlement negotiations.

On 3 November 2011, well after 12 October 2011 when the defendant was legally obliged to remedy its breach, the plaintiff indicated that the defendant should sign the draft deed of settlement. The defendant did not do so, by its own admission.

It is my view, that, by 12 October 2011, when the plaintiff issued summons for eviction and for recovery of arrear rentals, it did so in compliance with the provisions of the lease agreement. The stipulated period within which the defendant ought to have remedied its breach had lapsed.

After 12 October 2011, the plaintiff became entitled to cancel the lease agreement, and to re-enter its premises. By coincidence, summons for eviction was issued on 12 October 2011, which I accept constituted notification of intention to cancel the lease agreement at common law.”

Although the respondent has not persisted with the cross-appeal, it does not support the finding by the court that notice was required before the contract could be cancelled.

It persists with the contention that the lease was validly cancelled. The respondent contends that the lease did not require such notice.

The manner of cancellation was the cause of contention between them, the critical issue being whether or not the respondent was obliged to give the appellant fifteen days notice to rectify its admitted breach and pay the arrears before the lease could lawfully be cancelled.

Where the parties to a contract have settled a procedure for the termination of the agreement, they are bound by that procedure.

This was the dictum in Minister of Public Construction v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S), wherein this Court said…,.:

“I do not understand the above quotation to mean that the appellant was not entitled to terminate the contract. The appellant may well have been entitled to do so, but, where parties to a contract have agreed upon procedures for terminating an agreement, they are bound by the provisions spelling out those procedures as if they had been imposed upon them by law; and, a departure from the agreement procedures will not result in an effective termination of the contract. All that was required of the appellant was, if there was justification for terminating the contracts, to terminate them in compliance with the procedures spelt out in clause 20(a).”

There is ample authority for the proposition, that, in the absence of an agreement to the contrary, a party who wishes to exercise his right to cancel a contract must convey such decision to the other party before the cancellation can become effective.

There is also authority to the effect, that, this applies equally to a notice calling upon the defaulting party to purge his default.

The ratio for the proposition is that termination of a contract has significant and over-reaching consequences upon the reciprocal rights and duties of the parties to the contract.

In Swart v Vosloo 1965 (1) SA 100 (A), HOLMES JA said the following:

“…, it must be taken as settled, that, in the absence of agreement to the contrary, a party to a contract who exercises his right to cancel must convey his decision to the mind of the other party, and cancellation does not take place until that happens.”

Generally, as in this case, the payment of rent for leased premises must be effected within a stipulated timeframe. Where the parties have fixed a time for performance, and the debtor does not perform accordingly, the debtor is in mora.

In this scenario, the creditor does not need to demand performance from the debtor. In legal terms, this is said to be in mora ex re; that is, mora from the transaction itself.

Reliance for this proposition may be found in a paragraph to that effect by the learned authors HUTCHINSON, Van HEERDEN, VISSER & Van Der MERWE in their book Willes Principles of South African Law, 8ed…, to the following effect:

“If the time for performance has been fixed, performance must be made by the time agreed upon. If the debtor has culpably failed to perform his obligations by such time, he is automatically in default or in mora (debitoris). Mora, in this case, is known as mora ex re for no notice to the debtor is necessary, the rule being dies interpellatio pro homine.

Where the time for performance has not been fixed by the contract, the general rule applies; namely, that, performance may be demanded immediately or within a reasonable time depending on the nature of the obligation and the surrounding circumstances; provided, of course, that the party making the demand is himself able and willing to perform his own obligations.

Although the performance may be due and claimable forthwith, the debtor need not perform until he is called upon by the creditor to do so.

Only when a specific time for performance has been set can the debtor's default possibly constitute a breach of contract.

Thus, the creditor must make a demand calling upon the debtor to perform by a date reasonable in the circumstances, and, if the debtor fails to comply with the demand by the specified date, he will fall into mora.

This form of mora is known as mora in persona, since it arises as a result of the personal intervention of the creditor.

The demand or interpellatio may be made either judicially, that is, by means of a summons, or extra-judicially, by means of a letter of demand. But, no formal demand is required, and it may be made orally…,.”

See Noel v Cloete 1972 (2) SA 150.

The principle of law related above was discussed in the South African case of Legagote Development Co. v Delta Trust & Finance Co. 1970 (1) 584 TPD wherein VILJOEN J opined at p587C-E:

“In my view, this was an unnecessary onus which the plaintiff assumed. The plaintiff relied on a term of the agreement in which a date for performance had been fixed, and it would have been sufficient to allege that the defendant had not performed before or on that day and that the plaintiff suffered damages as a result.

In expressing this view, I have not lost sight of the statement by Wessels, Law of Contract, 2nd ed, para 2858, that, before there can be mora, the failure or delay must have been due to the culpa of the debtor; but, Steyn, Mora Debitoris (to whom Wessels refers) makes it clear at p42 what type of culpa he postulates, namely, that the debtor must or should have been aware of his obligation to perform timeously and of the nature of the performance.

See also Victoria Falls Power Co. Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1 at p31; West Rand Estates Ltd v New Zealand Insurance Co. Ltd 1926 AD 173 at p195.”

It is settled, therefore, that, where the contract itself does not fix the time for performance, a creditor may fix the time for performance by making demand for the due performance of the obligation by the debtor by a certain date; the demand in this particular instance being interpellatio.

If the debtor fails to perform once demand has been made, the debtor is in mora, justifying cancellation.

Whether or not a party to a contract has the right to cancel, based on a breach, depends on the agreement between the parties as to what entitles the aggrieved party to exercise the right to cancel and if the right has been exercised properly.

The parties intention, expressed in the contract, is at the heart of the decision to exercise the right.

In his book, The Law of Contract in South Africa, 3ed the learned author RH CHRISTIE says the following…,:

“It is undoubtedly correct, that, if the contract contains an express forfeiture clause permitting cancellation for a specified breach, the court will not investigate the materiality of the breach but will give effect to the clause however hard the result.

But, the flaw in Greenberg J's reasoning seems to be a mis-application of the concept of a tacit term.

The question the officious bystander ought to be asking is not: 'Do you both intend there should be forfeiture for any breach of this term however trivial?' to which he would probably receive conflicting answers; but 'Do you both intend there should be forfeiture for such a breach of this term as to strike at the root of the contract?' which would almost certainly result in his dismissal with a common 'Oh, of course.'”

The appellant contends, that, the agreement required the respondent to place it in mora before it could lawfully cancel the lease.

It argues that the notice required in the contract was fifteen days.

The appellant contends, that, the lease provided for such notice and that the cancellation was invalid absent such notice.

It posits that the respondent, in complete defiance of the terms of the lease, gave it, the appellant, three days to remedy the breach.

It contends further, that, the respondent paid no regard to the terms of the lease agreement and proceeded to exercise a right that the agreement did not provide for.

Further, the appellant suggests that the termination of the lease by the respondent was summary and not permissible in law.

It further suggests, that, the lease agreement in the present matter provided for a notice period and that the demand or notice could not have been made by means of a summons as posited by the respondent. It argues that the court should find the cancellation was invalid in this scenario.

My considered view is that, as evinced in the agreement, the parties intention guides the court.

On a consideration of the principles set out above, it is evident that the correctness of the finding by the court a quo, that the lease was cancelled lawfully, can only be considered by construing the clause relating to the payment of rent against the one dealing with breach.

The clause that delineates breach is clause 12, which reads as follows:

“12. Breach

If -

12.1 Any rent is not paid on due date; or

12.2 The tenant commits any breach or fails to observe or perform any of the terms and conditions of this agreement and remains in default for a period of fifteen (15) days after the giving of notice in writing by the landlord drawing attention to the breach or omission requiring it to be remedied;
the landlord may forthwith cancel this lease and re-enter upon and take possession of the premises without due prejudice to any claim for damages which the landlord any have against the tenant for any breach of the lease by the tenant.”

In turn, the clause providing for rent reads as follows:

“3. Rent

3.1 The rental for the remaining period of this lease shall be the sum of USD1,000 per month.

Any other market-related figure may be agreed between the parties from time to time in writing.

3.2 The rental shall be paid monthly, in advance, within the first seven (7) days of the month, free of bank charges whatsoever on or before the first day of the month throughout the period of this lease and any renewal and extension thereof.

3.3 Any overdue rent or any other monies, including operating costs, which the tenant fails to pay on time shall attract interest calculated at 5 percent (five percent) above the commercial bank minimum lending rates per month or part thereof from due date until payment in full.”

Thus, the critical consideration is whether the finding by the court a quo, that the respondent was required to give notice to the lessee, and, in fact, gave the requisite fifteen days notice to remedy its mora, was the correct finding in light of the terms of the contract and the surrounding circumstances.

The clause relating to breach is in two parts. The critical issue for consideration is whether the construction placed on the clause by the court a quo can pass scrutiny.

In casu, the contract of lease provided that if rent was not paid on due date as agreed, or if the tenant did not rectify any breach after fifteen days notice to do so, then, the landlord was entitled to cancel the lease immediately and take possession of the premises.

The issue in contention is whether, in the present case, the breach by the appellant of its obligations entitled the landlord to cancel the agreement immediately upon failure to pay the rent.

I find that the court's construction a quo of the clause on breach was incorrect. It went against established principle.

The clause is in two parts with 'or' joining the parts. The word 'or' is the determining factor in the construction of the clause.

The first part provides for failure to pay rent, with the second providing for breaches in general.

The latter part, relating to general breaches, is the one calling for notice to be given to the lessee to rectify the breach within fifteen days from the date of issuance of the notice by the lessor.

What was at issue in casu did not relate to general breaches. It was concerned with the sole failure to pay rent - a material breach going to the root of the contract.

The clause should be construed in a manner that gives effect and meaning to “or” such that the two parts are read to be disjunctive as opposed to conjunctive.

Within this jurisdiction, the meaning to place on the word 'or' has been determined in the case of S v Ncube & Ors 1987 (2) ZLR 246. At p264E, GUBBAY CJ, commenting on the word 'or' had this to say:

“In the first place, the word 'or' is usually treated as disjunctive unless there is a compelling indication that in its context, it means 'and': see Colonial Treasurer v Eastern Collieries Ltd 1904 TS 716 at 719; Hayward, Young and Co. (Pty) Ltd v Port Elizabeth Municipality 1965 (2) SA 825 (AD) at 829B; Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board & Ors 1982 (4) SA 427 (AD) at 444C-D.”

In turn, in Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board & Ors 1982 (4) SA 427 (AD), the court opined that:

“That conclusion rests on an interpretation of section 15(2)(a) with which I cannot agree, viz that paras (i),(ii), (iii), and (iv) of section 15(2)(a) are to be read conjunctively.

No glaring absurdity or other compelling reason for disregarding the ordinary meaning of language suggests itself for construing 'or' conjunctively in the several places where it occurs in section 15(2)(a).

On the contrary, there are weighty considerations which, in my view, point to an intention to attribute to the word 'or' its normal meaning rather than an intention to treat 'and' as a substitute for 'or.'

The first consideration is that a conjunctive interpretation would necessarily require proof of paras (ii) and (iv) in every case whereas these paragraphs concern issues which may often be irrelevant. The second consideration is this: in contra-distinction to the use of 'or' between paras (i)-(iv), the word 'and' links paras (i)-(iv) with para (v); a clear indication that the Legislature had no intention of deviating from the ordinary meaning of two words which are in daily use.”

The Oxford Dictionary defines 'or' as a disjunctive that connects two or more alternatives. It also connects words, phrases, or clauses with the same grammatical meaning.

It was therefore imperative that the court a quo interpret the whole clause, as it was duty bound to do, in order to give meaning to the word 'or' in the clause.

A perusal of the judgment leaves one with the impression, that, the court a quo paid scant or no attention to clause 12.1. Instead, the court focused on clause 12.2.

The court, to that extent, did not interpret the whole clause.

Instead, it placed attention on the clause relating to default in general. The critical clause on rent remained untouched, and, as a result, the decision was reached based on an erroneous reading of the clause.

But, even if the appellant had properly pleaded a proper jurisdictional basis for the relief she sought, the High Court would still not have the competence to set aside the decision of the first respondent for yet another reason.

It is that only the Constitutional Court has the jurisdiction to set aside the decision of the first respondent on the ground that it is at variance with and predicated upon a failure to fulfil his constitutional obligations.

The decision sought to be set aside, which relates to the role of the Executive in the removal of Judges, can also be said, on the authority of Mliswa v Parliament of the Republic of Zimbabwe CC02-21, to be a constitutional decision bearing upon the comity between the Executive and the Judicial arms of the State.

For that reason, it must be passed upon by the highest court in constitutional matters.

On the test espoused in Chirambwe v President of the Republic of Zimbabwe & Others CC04–21 for determining whether a matter falls within section 167(2)(d) of the Constitution, the unavoidable conclusion is that the issues raised and the relief sought against the first respondent would demonstrably constitute an intrusion into the domain of the President's powers and obligations in the removal of Judges.

What fortifies this view is the fact, that, before this Court, the submissions made on behalf of the appellant strongly suggested, that, the basis upon which the decision of the first respondent would be set aside is that the first respondent has a duty to ensure that the Constitution, and other laws, are faithfully observed.

That suggestion is reinforced in the appellant's heads of argument filed with this Court.

In paragraph 3.14 of the appellant's heads of argument, after citing section 90(1) of the Constitution, providing for the first respondent's duty to uphold, defend, obey, and respect the Constitution, as the supreme law of the nation, and to ensure that the Constitution, and all the other laws, are faithfully observed, the submission is made that:

“3.1.4. As is clear from this constitutional provision, the 1st Respondent has a duty to ensure that the Constitution, and all other laws of the land, are faithfully observed. That this duty extends to decisions made in terms of section 187(8) of the Constitution is without a doubt. Section 187(8) of the Constitution states that;

'The President must act in accordance with the tribunal's recommendation in terms of subsection 7.'”…,.

The appellant contends, that, it is compliance with the Constitution, and all other laws of the land, that makes the first respondent's decision a decision in terms of the Constitution.

In paragraph 3.15 of her heads of argument, the appellant adds, that, the first respondent acts in accordance with the recommendation of a Tribunal established in terms of section 187(3) of the Constitution in his capacity as the President of Zimbabwe, and thus “he remains duty-bound to ensure that the removal of a Judge from office is in accordance with the Constitution and all other laws.”

In paragraph 3.16 she further argues that the word 'ensure' means that the first respondent “has a constitutional responsibility to make sure that the removal process is done in accordance with the law.”

Without repeating what I have already said, it suffices to state, that, from the heads of argument, the appellant also appreciates that her basis for setting aside the decision of the first respondent would be his failure to fulfil a constitutional obligation.

That requires a determination that can only be made by the Constitutional Court.

At the conclusion of the hearing of an appeal noted to the Labour Court by the appellant, the Labour Court upheld the point in limine taken by the respondent, that, the appeal was improperly before the court as it sought to impugn findings of fact rather than law.

As a consequence of that finding, the court a quo dismissed the appeal with costs.

It is against that order that the appellant has now approached this Court seeking an order setting aside that finding and remitting the matter to the court a quo for a determination of the matter on the merits.

The respondent was employed by the appellant as its Finance Director. Although both the arbitrator and the court a quo say that she was employed on fixed term contracts which were periodically renewed, the record, in fact, shows that she was employed in that capacity on a fixed three-year contract which commenced on 8 June 2009 and was set to expire on 7 June 2012.

For the duration of the contract period, either party had the right, in terms of the contract, to terminate the contract upon giving six months notice in writing of such termination.

On 27 March 2012, less than three months before her contract was set to expire, the appellant's Human Resources Committee held a meeting at which all the members present (excluding the respondent, who had been asked to recuse herself) recommended that her contract be renewed, subject to approval by the Council of the appellant.

A special executive committee of the Council met two days later and also “strongly and unanimously” recommended that the respondent's contract of employment as Finance Director be renewed for a further period of three years, on the same terms and conditions, subject to approval by the Minister.

On 7 June 2012, the date on which her contract was set to expire, the Vice-Chancellor of the appellant, a Dr P. Kurasha, wrote to the respondent advising that the Council of the appellant had decided to appoint her in an acting capacity from 9 June 2012 “until further notice”.

Pursuant to that communication, the respondent continued offering her services as Finance Director until 27 June 2013, over a year later, when she received a letter from the chairman of the Council.

The letter advised that the Council was now in a position to make a substantive appointment of a Finance Director.

In the letter, the chairman gave the appellant notice of termination of her contract of employment, effective 30 September 2013.

It bears mention, at this stage, that, as a matter of fact, the chairman of Council gave her three calendar months notice of the termination of her employment.

The letter also requested that she vacates her office immediately and that she carries out a handover-takeover of assets and records with the Acting Finance Manager.

Unhappy with the sudden turn of events, the respondent lodged a complaint of unfair dismissal with a labour officer.

Having failed to conciliate the dispute between the parties, the Labour Officer (then) referred the matter to an arbitrator to determine whether she had been unlawfully dismissed, and, if that was the case, the appropriate remedy.

In proceedings before the arbitrator, the appellant disputed that the respondent could have entertained a legitimate expectation of her contract being renewed. It argued that the respondent could not rely on a mere recommendation of a committee of the Council.

The appellant also argued, that, the respondent had accepted her termination, and, pursuant thereto, had vacated her office and accepted her terminal benefits.

In his findings, the arbitrator rejected the contention that the respondent had waived her right to appeal.

The arbitrator agonised over the status of the respondent between 7 June 2012 and 27 June 2013 when her employment was formally terminated.

He noted that the acting appointment did not “mention an extension of the fixed term contract…,.; nor does it specify the basis for such acting appointment or the duration of the same.”

He concluded that this was a contract without limit of time as there could not be an employment relationship “on a temporary basis.”

He expressed the view that the nature of the employment relationship that subsequently subsisted between the parties was one of a contract without limit of time.

Notwithstanding that conclusion, the arbitrator proceeded to determine whether the respondent had a legitimate expectation of being re-engaged.

He noted that the position that she had previously occupied had been filled by someone else in an acting position. He concluded, that, the respondent may have had a legitimate expectation of her contract being renewed, taking into account the favourable recommendation made by both the Human Resources Committee and the Special Executive Committee of Council, and the fact that she was appointed to act in the same position, albeit for an indefinite period.

Consequently, he determined that the respondent had been unfairly dismissed and that she should be reinstated to her position without loss of salary or benefits, or, alternatively, that the appellant pays damages in lieu of reinstatement.

Aggrieved by the above arbitral determination, the appellant appealed to the Labour Court. It did so on a number of grounds of appeal.

As the determination of the Labour Court was predicated on the validity of those grounds of appeal, it is necessary to set these out in full. I cite them verbatim:

“1. The Honourable Arbitrator erred at law in exploring and making a finding on the nature of the contract entered into between the parties with effect from 9 June 2012 when such was not an issue before him.

2. The Honourable Arbitrator erred, grossly, on the facts, in finding that the contract entered into between the parties, with effect from 9 June 2012, was a contract without limit of time. The Honourable Arbitrator's findings in this respect is not supported by any evidence and is so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

3. The Honourable Arbitrator made a finding to the fact, that, the respondent had legitimate expectation of renewal of a contract based on recommendations made during Council meetings.

4. The Honourable Arbitrator erred at law in relying on the proceedings and resolutions in those meetings.

The Honourable Arbitrator erred, grossly, on the facts, in finding that respondent was legitimately entitled to expect the renewal of her contract. The Arbitrator's findings in this regard are so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

4.1 The Honourable Arbitrator also made a finding that the fact that the Executive Committee made its decision subject to the approval of full Council or the Minister did not deny respondent a legitimate expectation since her appointment on 7 June 2012 was not blessed with Council or Ministerial approval.

The Arbitrator's finding in this regard is grossly unreasonable as:

(a) Whether or not the consent of Council or the Minister was asked for and/or obtained for the 7 June 2012 appointment was never an issue; in any event, the 7 June 2012 appointment was a temporary appointment (sic) while the appointment allegedly expected is a three (3) year appointment;

(b) Further and any event, it is the employer's prerogative to choose which appointment to subject to approval and which not. Once one is informed that a specific appointment is subject to approval, then, without such approval, no legitimate expectation can arise.

(c) The Arbitrator also made a finding that a year's delay in obtaining Council or Ministerial approval entitled respondent to legitimately expect that her three year (3) fixed term contract will be renewed. This finding by the Arbitrator is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive to such a decision.

4.3 The Arbitrator also held that no proof of a negative decision from the decision maker was furnished, and, as a result, respondent was entitled to legitimately expect that her contract will be renewed. The Arbitrator's decision in this respect is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive at such a decision.”

In its submissions a quo, the appellant stated as follows:

1. First, that the arbitrator made a finding on an issue that was not before him and in respect of which no evidence had been led. In particular, the appellant submitted that the nature of the contract that subsisted between the parties, from 7 June 2012, was not an issue before the arbitrator, and, therefore, his finding that there existed a contract without limit of time was irregular.

2. Second, that the crux of the matter revolved around the question of legitimate expectation. The recommendation to extend her contract had not been communicated to her. It had been made by the appellant's Executive Committee of Council, not to her, but to the appellant. The respondent could not, therefore, rely on a representation that was never made to her. In any event, no representation was ever made by the appellant so as to induce her to legitimately expect that her contract was to be extended.

3. Third, the recommendation made by Council was subject to acceptance or rejection by the appellant. That recommendation was therefore “not clear, unambiguous, and devoid of relevant qualifications” as required by the law.

4. Lastly, the submission was made that criminal conduct, involving abuse of trust, had been unearthed in the finance department, and the respondent's innocence was therefore questionable. She could not therefore have expected her contract to be extended given that circumstance.

In her submissions before the Labour Court, the respondent argued that the arbitrator had correctly found that she had a legitimate expectation to be re-engaged as Finance Director. It being common cause that another person had been engaged in her place, she had therefore been unlawfully dismissed.

The respondent also took the point, that, the appeal had been noted against findings of fact and not law. No real question of law had been ventilated.

She therefore prayed that the appeal should fail on that basis and that costs be awarded in her favour.

At the hearing of the appeal, the court a quo, quite correctly, decided to determine the point in limine raised by the respondent, that the appeal was not properly before the court as it did not implicate any issues of law.

The first and second grounds of appeal were abandoned by the appellant at the commencement of the hearing. The court a quo accordingly confined its enquiry to the remaining grounds of appeal.

The court found, that, the third ground of appeal raised a factual finding since no allegation had been made that the arbitrator's reasoning was so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided would have arrived at such a conclusion.

It also found the fourth ground to have been similarly afflicted.

Whilst in this ground the appellant had alleged that the arbitrator's finding had been grossly unreasonable, the court found, that, on a perusal of the record, it was apparent that the issue whether or not the recommendation had been communicated to her had not been raised before the arbitrator. It accordingly found, that, it was improper for the appellant to have raised this issue for the first time on appeal; the issue raised before the arbitrator having been whether the respondent could rely on a recommendation made by a Committee of Council to found a claim for legitimate expectation.

The court also considered the submission by the appellant, that, the Executive Committee of Council had made its decision to recommend the re-appointment of the respondent subject to approval by the full Council and the Minister, and that, in the circumstances, no legitimate expectation could have arisen.

The Court accepted the respondent's submission, that, a legitimate expectation can arise from a representation made by, or the conduct of, the employer.

It determined, that, the placement of the respondent in an acting position, coupled with the recommendation by the Executive Committee of Council that her contract of employment be extended, gave rise to that expectation. Therefore, the arbitrator could not be faulted for relying on previous conduct by the appellant, regard being had to the fact that the two meetings that recommended her re-engagement were held before she was re-appointed in an acting capacity.

It found that the arbitrator's reasoning in this regard could not be termed outrageous or irrational.

The court also considered the attack against the arbitrator's finding, that a year's delay in obtaining a determination from the Council or the Minister, on the recommendations previously made, was a basis for legitimate expectation.

It considered, that, in the absence of a further averment that the finding was so grossly unreasonable that no person properly applying his mind to the fact would have arrived at such a decision, the attack remained one on a factual finding.

Lastly, the court a quo found that the attack against the finding by the arbitrator that “no proof of a negative decision from the decision maker was furnished” and, consequently, that the respondent legitimately expected that her contract would be renewed, did not elaborate in what way the finding was grossly unreasonable. Merely stating that the decision was grossly unreasonable does not suffice.

The court accordingly found, as it had done with the other grounds, that the appeal was improper as it sought to impugn factual findings.

Having found that all the grounds of appeal were impugning factual findings, the court a quo upheld the point in limine. Consequently, it dismissed the appeal with costs.

Hence the appeal to this Court.

The appellant seeks an order setting aside the judgment of the court a quo and remittal of the matter to the Labour Court for a determination of the dispute between the parties on the merits.

“1. The court a quo erred in finding that the grounds of appeal relied upon by appellant did not raise points/issues of law either in the primary or secondary sense of the expression.

2. The court a quo erred in finding that grounds of appeal which attack factual findings made by a Labour Arbitrator fail by that circumstance to disclose points/issues of law as required by statute.

3. The court a quo erred in failing to appreciate the distinction between the validity of grounds of appeal, on the one hand, and the sufficiency thereof, on the other, and, so erred in finding that there were no valid grounds of appeal based on the view it took to the effect that the grounds were meritless.

4. Having found, at any rate, that there were no valid grounds of appeal, the court a quo erred in -

(a) Relating to the substantive issues raised in the grounds which it had found to be non-existent; and

(b) In dismissing the appeal instead of striking it off the roll.

5. Alternatively, the court a quo erred in finding that the Arbitrator had properly come to the conclusion that respondent had a legitimate expectation of continued employment with appellant and that appellant's failure to so employ her constituted unfair dismissal.”

In its submissions before this Court, the appellant has argued, that, in large part, the determination of the court a quo was predicated on a finding that the grounds of appeal had no merit.

This, the appellant submitted, was an incorrect approach.

The court a quo was limited to an assessment of the phraseology of the grounds of appeal, without reference, at that stage, to the merits. Instead, the court assessed the merits of the grounds of appeal in order to determine whether or not they properly raised issues of law. It was for that reason that the court a quo remarked at one stage that it found “…, the arbitrator's reasoning cannot be termed outrageous or irrational.”

The merits were not a relevant consideration in determining the validity of the grounds of appeal.

Therefore, the court a quo conflated the two processes, namely, the assessment of the validity of the grounds of appeal and their sufficiency.

Further, the appellant submitted, that, if, indeed, there were no valid grounds of appeal before the court a quo, the court should have found that there was no valid appeal before it. Consequently, it should have simply struck the matter off roll instead of dismissing it.

A dismissal would ordinarily suggest that the matter was considered on the merits and was then dismissed.

The appellant has further argued, that, there was no legitimate expectation that the contract would be renewed. No evidence of the expectation was given.

Moreover, the resolution on which the respondent's claim was predicated was never officially communicated to her by the full Council of the appellant. In any event, the resolution remained a mere recommendation which meant that Council was at liberty either to accept or reject it.

Lastly, the appellant submitted, that, having found that the respondent was not on a fixed term contract, but, was on a contract without limit of time, the question of legitimate expectation did not, therefore, arise.

Since the acting appointment did not provide for the duration of the contract, she became a permanent employee whose tenure could be terminated on notice as enunciated in the case of Nyamande & Anor v Zuva Petroleum SC43-15.

The arbitrator could not, therefore, apply section 12B of the Labour Act which applies to a person on a fixed term contract.

In her response, the respondent has submitted, that, the court a quo was correct in finding that the grounds of appeal were impugning factual findings and that they were, therefore, not valid.

It is not sufficient, in formulating grounds of appeal, to merely assert that a judicial officer erred at law. The particular mistake of law should be stated, and, unless substantiated, such a ground remains one of fact.

The respondent further argued as follows:

Since the sole issue for determination before the court a quo was whether the arbitrator's findings on the issue of legitimate expectation could be impugned, that issue could only be dealt with by considering the merits.

In any event, a court can interrogate the record of the proceedings in order to resolve the question whether there is substance to the grounds themselves. Having found that the grounds raised factual issues, and that the grounds had no merit, the court a quo correctly dismissed the appeal.

Further, the court a quo was correct in finding that the respondent had a legitimate expectation that her contract would be extended.

Lastly, the submission made by the appellant, that, the contract was terminated on notice was not an issue before the court a quo and cannot, therefore, be an issue before this Court.

On a consideration of the record of the proceedings, and the submissions made by both parties before this Court, it seems to me that three issues arise for determination by this Court:

(i) The first relates to the correct approach in determining whether a ground of appeal raises an issue of law, and whether, in so determining, it is permissible for a court to have regard to the merits of the matter in order to make that determination.

(ii) The second is whether the grounds of appeal before the Labour Court raised questions of law, i.e. whether they were valid grounds of appeal.

(iii) The third is whether the court a quo was correct in dismissing the appeal once it found, as it did, that the grounds of appeal were not valid.

I consider each of the issues in turn.

There is a dispute in this matter on the correct approach by a court in determining whether a ground of appeal raises an issue of law. There is, therefore, need to clarify the correct approach in assessing whether a ground of appeal complies with the legal requirement that it must be predicated on an issue of law.

The term “question of law” is used in three distinct, though related, senses:

(i) First, it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit;

(ii) Second, it means a question as to what the law is; and

(iii) Third, any question which is within the province of the judge instead of the jury or assessors;

See Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S)…,.; Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10.

Used in the three related senses referred to above, the term causes no difficulty.

It is, however, used in a fourth sense, that is: where the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person, who has applied his mind to the question to be decided, could have arrived at such a conclusion.

The nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.

A serious misdirection on the facts amounts to a misdirection in law: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC)…,.

The dispute in this case centres around how an appellant, who alleges a misdirection on the facts, should formulate such a ground in his Notice of Appeal.

To answer this question, I proceed to look at cases previously decided by this Court on the subject.

In Reserve Bank of Zimbabwe v Granger & Anor SC34-01, MUCHECHETERE JA remarked as follows:

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

In Zvokusekwa v Bikita Rural District Council SC44-15, this Court further added:

“(22)…,. The remarks in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying, that, to constitute a point law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person, properly applying his mind, would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form….,.

What is important, at the end of the day, is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.”

The pertinent question in the present case is this: in determining whether a ground of appeal raises an issue of law, should a court be confined to the wording of the ground of appeal only or should it, additionally, have recourse to the record or the merits of the case?

In Chinyange v Jaggers Wholesalers SC24-04 GWAUNZA JA…, writing for the court, stated at page 2 of the cyclostyled judgment:

“…,. The appellant must, in other words, not only allege, but, also show, that the Labour Court misdirected itself on a point of law.”

At page 3, the learned judge continued:

“The appellant has not alleged, nor shown, that the Labour Court misdirected itself, nor that such misdirection, being based on findings of fact, was so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.”

In Mutsuta and Anor v Cagar (Private) Limited SC47-09 SANDURA JA stated at page 6 of the cyclostyled judgment:

“Applying the principles set out in the three cases cited above, I have no doubt in my mind that the appeal raises questions of law. There are allegations in the grounds of appeal that the Labour Court committed misdirections on the facts which are so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. The appeal is, therefore, properly before the court.”

In Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, this Court remarked at page 5 of the judgment:

“The first ground of appeal is that the Labour Court erred on a question of law in holding that the disciplinary committee was improperly constituted. It is the respondent's submission that this question is one of fact and not law. I agree with the respondent's submission in this regard.”

And at page 7:

“There is no suggestion by the appellant that the court a quo misdirected itself on the facts in coming to the conclusion that the committee was not properly constituted and that such misdirection constitutes a question of law. I would agree with the respondent that this ground of appeal raises a question of fact and not law.”

It is correct, that, in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, the impression was created that a court can have regard to the merits in order to determine the validity of a ground of appeal.

It is clear, however, on a proper reading of the case, that, in fact, the court determined the validity of the grounds of appeal based only on the specific allegations made in the grounds of appeal and not the merits of the matter.

Everything considered, therefore, the correct approach, in my view, is that, in determining whether a ground of appeal raises an issue of law, a court will confine itself to the wording of the ground of appeal only and not to the merits of the matter.

The merits of the matter only become relevant if a ground of appeal is found to be valid.

Whether or not an appellant's case has merit and whether or not the appeal should succeed are issues to be determined separately - and only after a finding on the validity of the grounds of appeal.

A ground of appeal which attacks findings of fact must, therefore, not only allege that the lower court misdirected itself on the facts, but, must go further and show how that misdirection came about.

Merely alleging a misdirection, without further substantiation, would not be enough, as the attack would remain one against a factual finding.

In other words, in alleging a misdirection on the facts, the ground of appeal must also show in what way those findings of fact are irrational.

To the extent, therefore, that the decision of this Court in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10 may have created an impression to the contrary, it does not reflect the correct approach and should therefore, to that extent, not be followed.

“I am firmly of the opinion, that, in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative lead taken both in Miliangos v George Frank (Textiles) Ltd [1975] 3 All ER 801 (HL) and the subsequent extensions to the rule there enunciated, and in the Murata Machinery Ltd v Capelon Yarns (Pty) Ltd 1986 (4) SA 671 (C) at 673C-674B and 674E case in South Africa, is to be adopted.

This will bring Zimbabwe into line with many foreign legal systems: see Mann The Legal Aspect of Money 4ed at pp339-340.

Fluctuations in world currencies justify the acceptance of the rule, not only that a court order may be expressed in units of foreign currency, but, also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment.

Justice requires that a plaintiff should not suffer by reason of a devaluation in the value of currency between the due date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment.

Since execution cannot be levied in foreign currency, there must be a conversion into the local currency for this limited purpose, and the rate to be applied is that obtaining at the date of enforcement.”

On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.

At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. Set out hereunder are the Court's reasons thereof.

The appellant is a prospective Presidential candidate in the forthcoming Presidential Election slated for 23 August 2023. The first respondent is a registered voter in Ward 1 Mhondoro Ngezi Constituency. The second respondent is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (the Constitution). It is responsible for the administration of elections in Zimbabwe. The third respondent is the Minister of Justice, Legal and Parliamentary Affairs. He is cited in his official capacity.

The facts founding the instant appeal are as follows:

On 21 June 2023, the appellant, amongst other prospective candidates, successfully lodged his nomination papers as a Presidential candidate before the Nomination Court. The first respondent became aware of the appellant's nomination and acceptance of candidature through the social media.

He took exception to the acceptance of the appellant's candidature.

In a letter dated 22 June 2023, addressed to the Chief Elections Officer, the first respondent stated, that, the appellant had not been resident in his constituency, and in the country, for a continuous period of eighteen (18) months.

He further stated, that, the appellant did not therefore meet the requirements set out under section 91(c)–(d) of the Constitution.

He also stated that section 23(1) and (3) of the Electoral Act [Chapter 2:13] (the Act) mandated that a registered voter ceased to be retained on the voters roll if he had not resided in that constituency for a continuous period of eighteen (18) months.

In reply to the letter, the second respondent advised the first respondent to approach the Electoral Court for relief.

The first respondent, thereafter, filed, in the High Court, an urgent court application under section 85(1)(a) of the Constitution alleging that his fundamental rights under section 56(1), section 67(1)(a) and 67(3) had been violated.

He contended, that, the decision of the Nomination Court to accept the nomination for candidature of the appellant violated section 91(1)(c)–(d) as read together with paragraph 1(2) of the 4th Schedule to the Constitution as read with section 23(3) of the Electoral Act.

The first respondent averred, that, he approached the High Court as he was of the view that the Electoral Court does not have the jurisdiction to issue declaratory relief.

He further averred, that, the Electoral Act and Electoral (Applications Appeals and Petitions) Rules 1995 (S.I.74A of 1995) (the Electoral Rules) did not provide him with any relief.

In opposing the application, the appellant raised several preliminary objections:

He stated, that, the court a quo did not have the jurisdiction to hear and determine electoral matters in which the Electoral Court has exclusive jurisdiction. He argued, that, the first respondent could have proceeded in terms of section 28(1) and 33(1) of the Electoral Act.

He further stated, that, the first respondent had no locus standi to bring the application.

The appellant further alleged, that, the first respondent approached the court a quo on wrong choice of law, and in violation of the principle of subsidiarity.

On the merits, the appellant stated that the first respondent failed to show how the decision of the Nomination Court violated his constitutional rights.

The appellant admitted that he temporarily left the country on medical grounds but denied that he was out of the country for a continuous period of eighteen (18) months.

The second respondent filed a notice indicating that it would abide by the decision of the court a quo.

On the preliminary points raised, the court a quo made the following findings:

(a) On jurisdiction, that it had jurisdiction in terms of section 171(1)(a) and (c) as read with section 85(1) of the Constitution;

(b) In respect to locus standi of the first respondent, it found that he had the locus by virtue of section 85(1)(a) of the Constitution, which accords an individual the right to approach a court alleging a violation of his fundamental rights;

(c) On wrong choice of law, it found that the Electoral Court does not have the necessary jurisdiction to issue declaratory orders. It further found, that, the application was not a review disguised as a declarator as the first respondent had no remedy of review under any other law; and

(d) On the question of breach of the principle of subsidiarity, it held that the first respondent had no other remedy under any other law but to approach a court under section 85(1)(a) of the Constitution.

On the merits, the court a quo made the following findings:

(a) That, once the first respondent had made a negative averment, which was admitted by the appellant, that the appellant had left the country, the onus shifted to the appellant to prove that he was not out of the country and his constituency for a continuous period of eighteen (18) months;

(b) That, the appellant had failed to discharge the reverse onus placed upon him;

(c) In interpreting section 23(3) of the Electoral Act, it held that once a person is absent from the country, and, therefore his/her constituency, for the prescribed period, he/she is deemed, by operation of law, to have ceased to be a registered voter.

It further found, that, cessation of registration as a voter in turn disqualifies one from nomination as a Presidential candidate;

(d) That, the appellant was not resident in the country, and, as such, not resident in his constituency for a continuous period of eighteen (18) months.

Accordingly, the court found, that, the appellant had ceased to be a registered voter, and, consequently did not qualify for nomination as a Presidential candidate.

Following the above findings, the court a quo issued the following order:

“IT IS DECLARED:

1. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 was a violation of the provisions of section 91(1)(c) and (d) read together with paragraph 1(2) of the Fourth Schedule of the Constitution of Zimbabwe 2013 as further read together with section 23(2) of the Electoral Act.

2. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is in violation of applicant's constitutional rights as set out in sections 56(1), 67(2)(a) and 67(3)(a) of the Constitution of Zimbabwe 2013.

3. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is declared null and void and of no force and effect and hereby set aside.

4. That, first respondent is not a candidate for election to the office of President of Zimbabwe in the elections scheduled to be conducted on 23 August 2023.

ACCORDINGLY, IT IS ORDERED:

5. Second and third respondents shall not include the name of first respondent in the preparation of ballot papers to be used in the elections scheduled to be conducted on 23 August 2023.

6. First respondent is interdicted from representing of holding himself out to the general public and electorate in Zimbabwe of abroad, whether physically or through any form of media, as a candidate for election to the office of the President of Zimbabwe in elections scheduled to be held on 23 August 2023.

7. Each party shall bear its own costs.”

Dissatisfied with the court a quo's decision, the appellant filed the instant appeal on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that it had the requisite jurisdiction to deal with the matter when the dispute before it clearly emanated from the Electoral Act [Chapter 2:13], and, in particular, sections 23, 28 and 33 thereof.

2. By finding that the 1st respondent had locus standi in judicio and adopting a liberal approach to it in a clearly non-constitutional matter, the court a quo committed an error at law which must be impeached by this Court.

3. By finding that the General Notice 1128-2023 made in terms of section 106 of the Electoral Act [Chapter 2:13] did not constitute law, the court a quo grossly erred and misdirected itself as it ignored the provisions of section 15A and 20 of the Interpretation Act [Chapter 1:01].

4. By entertaining the application on constitutional basis as it did, the court a quo erred and violated the constitutional principle of subsidiarity as it ignored specific provisions in the Electoral Act [Chapter 2:13], Administrative Justice Act [Chapter 10:28] and/or common law, which provide specific, adequate, and satisfactory remedies to the 1st respondent.

5. A fortiori, the court a quo erred in making an uncanny finding, that, the decision of the Nomination Court did not constitute a reviewable decision at law thereby dismissing the preliminary point that the application was a disguised review process.

6. The court a quo further erred in placing reverse onus to the appellant to prove his residence status in violation of the law and in complete disregard of the averments that were made by the 1st respondent in evidence.

7. Further, the court a quo erred in making a finding that the averments pertaining to the residence status of the appellant, as made by the 1st respondent, were in the negative thereby improperly applying the law.

8. Related to ground number 7 above, the court a quo grossly misdirected itself in making a factual finding that the appellant was not or has not been in the country for a period stipulated in section 23(3) of the Electoral Act in the absence of evidence establishing the same.

9. In taking purported judicial notice of the alleged absence of the appellant from Zimbabwe, the High Court erred, in using the principle of judicial notice to assist the 1st respondent in discharging an onus that he had miserably failed to establish on the founding papers.

10. The court a quo erred and misconstrued section 23 of the Electoral Act in deeming the appellant removed from the voters roll without having regard to section 28 of the same which posits a process which must be followed in removing a registered voter from the voters roll thereby disqualifying him as a Presidential candidate for the forthcoming plebiscite.

11. All in all, the court a quo erred at law by granting as it did, an unspeaking order with the result that no one knows what relief exactly was granted in the absence of an un-issued draft order which does not form part of the disposition of the judgment.

12. The court a quo erred at law in granting an application without making a positive finding on the infringement of section 67 of the Constitution.

The appellant prays that the appeal be allowed with costs and that the judgment of the court a quo, handed down under EC10/23, on 12 July 2023, be set aside and in its place and stead thereof be substituted with the following:

'IN THE MAIN, the court declines its jurisdiction.

IN THE ALTERNATIVE, the application is struck off the roll with costs.

IN THE ALTERNATIVE, the application is dismissed with costs on an attorney-client scale.'”

By consent, the above grounds were amended by adding the following:

“13. In dealing with the question of the perceived absence of the appellant from a constituency, and not cessation of residence in a constituency, the court a quo erred, and, by so doing, conducted a wrong enquiry leading to a judgment that is contrary to the dictates of section 23(3) of the Electoral Act.

The court a quo erred at law in disposing of the matter before it on the basis of perceived absence from a constituency when the law upon which the application was predicated, section 23(3) of the Electoral Act, relates to cessation to reside in a constituency, a totally different concept that has its own different requirements.”

Prior to the hearing of this appeal, the appellant had, by letter dated 21 July 2023, and addressed to the Registrar, requested the appointment of a five-member Bench to determine whether or not the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 was properly decided.

At the commencement of the proceedings, the appellant abandoned the request and submitted that the matter should proceed before the Bench as constituted....,.

The applicant, one Lovedale Mangwana (“Mangwana”), filed this application through the urgent Chamber Book.

He filed it in terms of Rules 59(6) and 107 of the High Court Rules 2021.

He is moving me to grant him a declaratur and consequential relief.

He premises his application on section 85(1) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act [Chapter 2:13] (“the Act”).

His suit is against one Saviour Kasukuwere (“Kasukuwere”) whom he cites as the first respondent and also against the Zimbabwe Electoral Commission (“the Commission”) and the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”) who are, respectively, the second and third respondents herein.

His bone of contention is that the Commission, which sat as the Nomination Court on 21 June 2023, acted in error when it accepted Saviour Kasukuwere's nomination paper for election to the office of the President of Zimbabwe in the election which shall be held on 23 August 2023.

He insists that Saviour Kasukuwere, whom he claims was out of Zimbawe for more than eighteen (18) consecutive months, is, in terms of section 23(3) of the Electoral Act, no longer a registered voter.

He claims, that, as a person who ceased to be a registered voter, Saviour Kasukuwere cannot vote in the forthcoming election, and, because he cannot vote, he cannot be voted into any public office, let alone that of the President of Zimbabwe.

He, accordingly, seeks a declaration which is to the effect that the decision of the Nomination Court, which accepted Saviour Kasukuwere's papers as a candidate for election to the office of the President of Zimbabwe, violated section 91(1)(d) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act.

The decision, he alleges, is a violation of his rights as contained in section 67(1)(a) and 67(1)(d) of the country's Constitution.

He, in short, moves me to grant him an order which is to the effect that Saviour Kasukuwere cannot be a candidate for election to the office of the President of Zimbabwe in the 23rd August 2023 plebiscite. He moves me, in consequence, to direct the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) not to include the name of Saviour Kasukuwere in their preparation of ballot papers which will be used in the electoral process of 23 August 2023. He moves me, further, to interdict Saviour Kasukuwere from holding himself out to the public and to the electorate in this country, as well as abroad, physically or through any form of media, as a Presidential candidate for the forthcoming election.

Saviour Kasukuwere opposes the application.

The Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) did not file any notice of opposition. The Commission filed what it terms its notice to abide with the decision of the court. It filed the notice on 30 June 2023.

My view is that the Minister is also of the same view.

The non-attendance of the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) leaves Lovedale Mangwana and Saviour Kasukuwere in the question.

Saviour Kasukuwere raises five (5) in limine matters, after which he proceeds to deal with the merits of the application. The preliminary issues which he raises are that:

(i) The court does not have the jurisdiction to hear and determine the matter;

(ii) The application is one for review which is disguised as a declarataur;

(iii) Lovedale Mangwana does not have what is normally referred to as the locus standi in judicio;

(iv) Lovedale Mangwana approached the court in terms of an incorrect law and in an incompetent forum; and

(v) Lovedale Mangwana violated the principle of subsidiarity.

He denies, on the merits, that he was out of his constituency, and, therefore, out of Zimbabwe, for more than eighteen (18) consecutive months.

He challenges Lovedale Mangwana to prove the allegation which he (Lovedale Mangwana) is making.

He avers that he is duly nominated to be a Presidential candidate in the forthcoming general election because he meets the legal requirements for nomination.

He challenges Lovedale Mangwana to state the manner in which his candidature would affect Lovedale Mangwana's constitutional rights.

He insists that he has a local address where he resides and is domiciled.

He claims that he left Zimbabwe on a temporary basis on medical grounds.

He avers that he is a registered voter and that the Zimbabwe Electoral Commission (the Commission) verified his address in terms of section 23(3) of the Electoral Act.

It is his appearance on the voters roll which makes him compliant with section 91 of the Constitution of Zimbabwe, according to him.

He alleges that he appears on the voters roll of Ward 40, Pfura Rural District Council, Mount Darwin South Constituency. He gives Chiunye Primary School A as his polling station.

He claims that Lovedale Mangwana makes bare allegations regarding his absence from Zimbabwe.

He contends that Lovedale Mangwana has not established any right which the court should protect.

Lovedale Mangwana has not, according to him, shown that he is a registered voter in the ward or the constituency he alleges to be registered. He insists that his inclusion on the ballot paper does not interfere with Lovedale Mangwana's right to vote.

Lovedale Mangwana, he claims, has not set out any substantial interest in the matter nor a factual cause to motivate the relief which he seeks.

There is, according to him, no legal basis for the Zimbabwe Electoral Commission's conduct to be set aside, and, consequently, for his nomination to be quashed.

He insists that the application does not meet the requirements of urgency.

Lovedale Mangwana, he avers, should have engaged the processes in terms of the Electoral Act well before 21 June 2023. The conduct of Lovedale Mangwana, he claims, is self-inflicted urgency.

He alleges that the application is no more than Lovedale Mangwana's attempt to curtail his right as it is provided for in section 67 of the country's Constitution.

He moves me to dismiss the application with costs which are at attorney and client scale.

The application succeeds.

An election is, by its nature, a very emotive subject. Once it is at hand, people push and shove each other. They do so with one object in mind. They do so to either get into, or deny others from, entering or participating in the electoral race.

More often than not, the protagonists fail to find each other.

Where such occurs, they take each other to court which will resolve the dispute between them.

The court takes no side. All it does is to listen to the respective narratives of those who have approached it, the facts of each in particular, apply the relevant law to the same, and render a decision which, in its view, accords with the applicable law.

In this jurisdiction, a judicial officer wears two hats during the period which leads onto, during, and after an election.

Depending on the facts of the case, the judicial officer can sit as an ordinary court or as an electoral court.

The position which he/she assumes largely depends on the substance of the suit which the parties place before him/her.

Because the case can fall into one law and its rules to the exclusion of the other law and its rules, it more often than not occurs that one litigant, plaintiff or applicant, files his/her case under one law and its rules which, from a prima facie perspective, are divorced from the substance of the case.

Where the litigant does so, he/she creates fertile ground for his/her adversary, defendant or respondent, who will be quick to tell the court that the litigant's suit is misplaced. Misplaced in the sense, that, it should have been lodged in terms of the other law and its rules.

What I stated in the foregoing paragraphs of this judgment applies to the current application, whose substance is that of an electoral matter which has been filed in terms of the High Court Act and its rules and not in terms of the Electoral Act and its rules.

Lovedale Mangwana's adversary, for instance, remains of the view that the same should have been filed under the latter, and not the former piece of legislation.

Whether or not the stated matter reflects the correct position of the law depends, in a large measure, on the substance of the application, which, as is evident from Lovedale Mangwana's founding papers, is one for a declaratur and consequential relief.

It is pertinent for me, at this stage, to deal with Lovedale Mangwana's application.

In doing so, I remain alive to the preliminary issues which Saviour Kasukuwere raises.

Those technical issues are allowed by law. They are more often than not raised by the parties legal practitioners who are schooled in substantive law as well as in the law of practice and procedure.

The issues colour the case of the parties for better or for worse. Where they are properly raised, they have the effect of stifling the suit of the plaintiff or the applicant to a point where no further debate of it may be entertained by the court. They cannot therefore be wished away. They should be taken account of on the basis of the audi alteram partem rule which, simply considered, enjoins a court to hear both parties before it determines their dispute.

Lovedale Mangwana, Saviour Kasukuwere argues, does not have the locus to bring this application.

Locus standi, simply defined, is the right of a person or group of people to bring an action before a court for adjudication. It is used interchangeably with terms like 'Standing to sue' or 'Title to sue.'

It is a right to be heard by a court of competent jurisdiction.

The right arises when a party to a case shows that he has interest sufficient enough to link him with a court's case; and, it stands, that, without showing such an interest, the court would not entertain his claim.

See GODWIN N. OKEKE 'Re-examining the Role of Locus Standi, the Nigerian Legal Jurisprudence' (2013)(6)(3) Journal of Politics and Law 209.

Chijuka v Maduewesi (2011) 16 NWLR (Pt.1272)…, takes the definition of locus further than where GODWIN N. OKEKE leaves it. It states, on the same, that:

“A plaintiff must show sufficient interest in the suit in order to have standing to sue. One criterion of sufficient interest is whether the party could be joined as a party to the suit? Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship arising from the litigation? If the judge is satisfied that he will suffer, then, he must be heard.”

From the contents of the above-cited case authority, it is evident that sufficient interest in a case is what gives the party locus standi to sue in any court of law.

The doctrine of locus gives the court jurisdiction in a case. Where the party lacks the right to sue, the court would have no jurisdiction to hear his case.

The locus standi of a plaintiff is therefore a pre-condition for the court to assume jurisdiction.

Where the plaintiff does not satisfy this initial condition in the judicial process, he cannot go to the next stage of litigation ie leading of evidence on the matter: Lawsan and Policy Review (2018) Volume 1..,.

The above is the restrictive approach to the concept of locus.

Under this approach, a person who does not have a sufficient interest, nor has suffered, or is likely to suffer specific or personal injury in respect of a matter has no locus to sue nor can he obtain a remedy in court in respect of a matter.

The advantage of the approach is that it assists the court to ward off professional and meddlesome litigants from rushing to court to file frivolous and vexatious suits on matters that do not concern them. Its demerits are that it discourages public interest litigations and it has, more often than not, hindered people's rights of access to court.

On the other side of the scale is the liberal approach to locus.

This is a wide, dynamic, or less rigorous application of the doctrine of locus. Its aim is to promote as well as protect human rights and effective dispensation of justice. It enhances the protection and promotion of people's fundamental human rights, the rule of law, due process, and access to justice by all and sundry.

LORD DIPLOCK discusses this approach in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd (1981) 2 WLR 723…, in the following words:

“It would, in my view, be a grave lacuna in our system of public law if a pressure group like the Federation, or even a single spirited public tax payer, were to be prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.”

The above-cited case authority resonates well with the new Constitution of Zimbabwe in terms of which fundamental human rights, the rule of law, and access to justice by persons, of whatever status, are guaranteed.

It encourages the court to welcome public interest litigation in the human rights field so that no human rights case may be dismissed or struck off the roll of the court for want of locus standi.

Human rights activists, advocates or groups, as well as any non-governmental organizations, individual persons included, have a discretion to sue on behalf of himself or herself, or on behalf of any potential applicant.

In human rights litigation, therefore, the applicant may include any of the matters which are stated in section 85 of the Constitution which, in extensor, provides as follows:

“(1) Any of the following persons, namely -

(a) Any persons acting in their own interests;

(b) Any persons acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed and the court may grant appropriate relief, including a declaration of rights….,.”

It follows from the cited section of the Constitution, that, a person such as Lovedale Mangwana is accorded the right to approach the court on the allegation that his rights, as contained in Chapter 4 of the Constitution, has been, is being, or is likely to be infringed.

Whether or not he will succeed will depend on the substance of his case and the importance to which the court, in its discretion, attaches to his case.

His ability to approach the court is taken as given. The law accords the same to him. He cannot, in terms of section 85 of the Constitution, have the door of the court closed against him.

The court will be failing in its duty if it does so in the face of Mawarire v Mugabe NO & Others CC01-13 in which CHIDYAUSIKU CJ endorsed the liberal approach to locus. The learned Chief Justice remarked in the same that:

“…,. Certainly, this court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has engulfed them. This court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”

The above expose shows that, whilst Saviour Kasukuwere premises his argument on the restrictive approach, which is applicable in civil cases which litigants bring to court on a day-by-day basis, Lovedale Mangwana bases his application on the liberal approach which is more in consonant with the due observance of the rights of people as they are enshrined in Chapter 4 of the Constitution.

His narrative is simple and straightforward.

It is to the effect, that, section 67(1)(a) of the Constitution confers upon him the right to vote. For him to exercise his right, the process which leads to the election must be within, and not without, the law. His further view is that the acceptance by the Zimbabwe Electoral Commission (the Commission) of Saviour Kasukuwere's nomination papers taints the process with an illegality which, according to him, violates section 91(1)(d) of the Constitution as read with section 23(3) of the Electoral Act.

It does so, because, he argues, in submitting his paper to the Zimbabwe Electoral Commission (the Commission) when he was/is not in Zimbabwe for a continuous period of eighteen (18) consecutive months, both the Commission and Saviour Kasukuwere are in violation of section 23(3) of the Electoral Act.

Their conduct, it is his view, is inconsistent with section 2 of the Constitution making the same to be null and void.

He, in short, does not want to associate himself with what he terms an illegal electoral process which is a nullity. He wants an election which resonates well with the law. A process which is inconsistent with the supreme law of the land impinges on his right to vote, according to him.

To redress the impingement, therefore, Saviour Kasukuwere's nomination papers should, he insists, be expunged from the voters register. It should be expunged because, as a non-voter, Saviour Kasukuwere, in his view, cannot be voted into any public office, let alone that of the President of the country. He cannot, goes the argument, ask the electorate to vote him into a public office when he himself cannot vote in the forthcoming election.

Saviour Kasukuwere's reliance on the restrictive approach to locus cannot assist him.

The approach is more in sync with the day-to-day application of locus in civil and/or criminal cases than it is in consonant with the human rights discourse upon which Lovedale Mangwana rests his application.

Saviour Kasukuwere's averments, which are to the effect, that, Lovedale Mangwana does not have any direct and substantial interest in his nomination into the Presidential race, are therefore of no moment.

Equally, all case authorities which he cited, amongst them Ecocash Zimbabwe (Pvt) Ltd v RBZ HH333-20; Zimbabwe Teachers Association v Minister of Education & Culture 1990 (2) ZLR 48 (HC); United Diamond Co. (Pty) Ltd v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) and a host of others which I have not mentioned in this part of the judgment, which support his restrictive approach to locus, cannot take his case any further than where he has left it.

On a proper conspectus of this application of the correct principles of law to the issue of locus, therefore, Lovedale Mangwana cannot be said not to have the requisite locus standi in judicio to approach me.

He has that on the strength of section 85(1) of the Constitution, upon which he bases his application. He also has locus on the strength of Mawarire v Mugabe NO & Others CC01-13 which, as is known, is binding on me.

His locus to apply as he did cannot be wished away. It stands undisturbed and it cannot therefore be interfered with.

The in limine matter on locus is therefore without merit and it is dismissed.

The applicants are importunate. They want back their money, $142,000, all in the currency of the United States dollars [USD].

If the first respondent, their banker, will not pay, then the second and third respondents, collectively the monetary authorities, should.

The applicants allege these monetary authorities are partly the reason the first respondent will not pay.

The applicants want a whole range of some financial legislation, and certain monetary policies or directives, set aside on the grounds of constitutional invalidity.

They first came to this court in 2019. The subject matter was the same. This court ruled in their favour. It directed the first respondent to pay: see Stone & Anor v CABS & Ors HH287-20.

The first respondent did not pay.

All the respondents appealed separately. The appeals succeeded. The judgment of this court was vacated: see CABS & Ors v Stone & Ors SC15-21.

That was in March 2021.

In August 2021, the applicants were back in this court. It is still the same subject matter. But the thrust is now different. They seek the following orders:

(i) That, Exchange Control Directive No. R120/2018 issued by the Reserve Bank [is] unconstitutional and invalid as it violates section 71 of the Constitution;

(ii) That, the Exchange Control Directive No. RT120/2018 is grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI 109 of 1996, and is invalid;

(iii) That, section 44B(3) and (4) of the Reserve Bank Act are unconstitutional and invalid as they violate section 71 of the Constitution;

(iv) That, section 22(1)(b) and (d), section 22(4)(a) and section 23(1) and (2) of the Finance (No.2) Act of 2019 are unconstitutional and invalid as they violate section 71 of the Constitution;

(v) That, the conversion of the applicants USD142,000 to RTGS142,000 is unconstitutional and invalid as it violates section 71 of the Constitution;

(vi) That, the first respondent should pay to the applicants the amount of USD142,000;

(vii) That, the first respondent is to pay interest on the aforestated amount at the rate of 5% per annum from 28 November 2016 to the date of payment; and

(viii) That, the respondents must pay costs of suit, jointly and severally, the one paying the other[s] to be absolved.