Corroborative Evidence re: Approach, Affidavit of Interest, Uncorroborated or Single Witness Evidence & Evidence Aliunde

HH30-11 : PRIMAC ENTERPRISES (PRIVATE) LIMITED t/a PRIMAC TELECOMMS vs NATIONAL HANDICRAFT CENTRE (PRIVATE) LIMITED and VICE SECURITY COMPANY (PRIVATE) LIMITED
Ruled By: MTSHIYA J

The second and last witness of the plaintiff was Mr Austin Munyavhi. He said his company, Utsanzi Product Industries, also rented premises from the first defendant and the company had the same security arrangements as the plaintiff (i.e. with the landlord being responsible for security and lessee paying for part of the security bill). He said ...

The second and last witness of the plaintiff was Mr Austin Munyavhi.

He said his company, Utsanzi Product Industries, also rented premises from the first defendant and the company had the same security arrangements as the plaintiff (i.e. with the landlord being responsible for security and lessee paying for part of the security bill). He said he, like the plaintiff, also received invoices for security as from 2005 when he became a tenant.

Mr Austin Munyavhi denied the existence of a Tenants Association at the time he became a tenant. He, however, said a Tenants Association was formed later but he was never a member of it.

Under cross examination, Mr Austin Munyavhi said his company was no longer a tenant of the first defendant. He said he had left after the expiry of his lease and had no grudge with the first defendant. He said he was not aware of the verbal agreement between the plaintiff and the first defendant. He, however, maintained that security arrangements were the responsibility of the first defendant. He also did not know if the second defendant was the one guarding the premises. He said as tenants they were only involved in the issue of security in the sense that they liaised with the first defendant's accounts department whenever they noticed security was not provided.

The last and second witness called by the first defendant was Mr Kingston Mhako. Mr Kingston Mhako said he was the Managing Director of Kingsport.

His company had, in 2006, signed a lease agreement with the first defendant similar to the one signed between the plaintiff and the first defendant. The first defendant, he testified, had not undertaken to provide security for his company. To that end his company, which was small, had, until July 2007, relied on the first defendant's security arrangements. He said his company had, as from August 2007, directly engaged the second defendant. He said that in 2007 all other companies at the premises had no security. He had asked the first defendant, as landlord, to arrange for all tenants to discuss the issue of security but that had failed until he made his own arrangements in August 2007. He said the plaintiff did not attend meetings that were called to discuss security. He further stated that as from 1 February 2008, the first defendant became responsible for security arrangements - but only for those tenants who contributed/paid for the security. His company was the only one paying. Mr Kingston Mhako said when the burglary occurred, on 18 April 2008, the plaintiff's premises were not guarded. It was only his company that had security.

HH43-13 : FORM SCAFF (PRIVATE) LIMITED vs CHARLES LINZI
Ruled By: KUDYA J

The defendant called Norman Kapofu. He testified that while he was employed by Crispen Thomu as a foreman for the construction of Nicetime Supermarket, he was moonlighting with the contractor, the defendant, who was his equal partner in that construction project. He stated that on a date in December 2008, Aleck a guard employed by the ...

The defendant called Norman Kapofu.

He testified that while he was employed by Crispen Thomu as a foreman for the construction of Nicetime Supermarket, he was moonlighting with the contractor, the defendant, who was his equal partner in that construction project. He stated that on a date in December 2008, Aleck a guard employed by the plaintiff, who resided near Nicetime complex, observed the clearly marked equipment of his employer in use. On the following day Munorwei Sibanda visited the premises with Godfrey Ngomani. Munorwei Sibanda returned the following day with Chiwanza, the driver, Godwin Nyandoro, James and Arnold Mazivise and forcibly removed all the equipment belonging to the plaintiff from the site. Munorwei Sibanda, the driver and the witness signed a collection list of all the equipment that was removed. The witness retained a copy that he handed over to Crispen Thomu. When the defendant came he made a follow up at the plaintiff's premises. He found them closed. The witness worked for the plaintiff as a yard checker until mid- 2008 when he absconded from employment under a cloud. He outlined the system used by the plaintiff in the hire and return of scaffolding equipment that was in full agreement with that of Geraldine Mountford and Munorwei Sibanda. A hirer was not permitted to transfer equipment from the site address without the written authority of the executive director, Les Bennet. He emphasized that on collection, the plaintiff's driver would sign a collection list that would be countersigned by the hirer. The hirer would then follow up at the plaintiff's premises to confirm that the property collected was all received at Formscaff. He would receive a hire return note to this effect on which he would append his signature.

Under cross examination, he was not forthright about his reasons for leaving Formscaff. He disputed that the equipment collected from Nicetime had been hired by Fourth Fort. He denied having diverted that equipment from Fourth Fort to Nicetime. He unwittingly confirmed Munorwei Sibanda's testimony that the basis for collecting the equipment on three different dates was to allow the deck to set. He also unwittingly confirmed Munorwei Sibanda's testimony that he left some equipment that belonged to other contractors that the witness disclosed in his testimony as belonging to J and K. He disclosed under cross-examination that he did not properly verify that Munorwei Sibanda collected equipment belonging to the plaintiff only. He stated that when he was shown the plaintiff's claim, in 2011, he did not have the collection list left by Munorwei Sibanda with him that he said was with Crispen Thomu.

HH50-13 : MADOCK CHIVASA vs AARON NYAMAYARO and LAWRENCE MOYO and ZIMBABWE NEWSPAPERS (1980) LTD
Ruled By: KUDYA J

Hillary Zhou confirmed the plaintiff's version to the hilt both in his evidence in chief and under cross-examination. A visibly drunk Rumbidzai Zambuko barged into the flat and broke the two beer bottles she had. When he escorted her out, she kicked his flat door, broke it and re-entered. He took her outside and left ...

HH73-13 : SIBONGILE KAZIBONI vs CHAMPION CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MATHONSI J

Violet Aleck Manda, the Managing Director of Fingold Real Estate and a registered estate agent also gave evidence on behalf of the plaintiff. The thrust of her evidence is that her company was engaged by the defendant and acted as an agent in selling the property to the plaintiff. The defendant insisted on the deposit of ...

HH364-13 : ENNETY GUNDA vs OLIVER MASOMERA N.O. and TSITSI GUNDA and LANGTON MASHIRI and THE MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MAWADZE J

The evidence of Juliet Chinewaro and Isaac Chigidi, who are close relatives of the late Cecilia Gunda, corroborates the second defendant's evidence on the dispute of the plaintiff's maternity. These two witnesses have no interest in the matter. I find it strange that they would disown the plaintiff, Ennety Gunda, in preference of the second ...

HB10-11 : JENNIFER NDLOVU [nee NYONI] vs CHRISTINA NDLOVU [nee SITHOLE] and ASSISTANT MASTER OF THE HIGH COURT and ADDITIONAL ASSISTANT MASTER, TREDGOLD
Ruled By: MATHONSI J

The evidence of the plaintiff was corroborated by three (3) witnesses. Josiah Nyoni, the plaintiff's brother, confirmed that he was present when the customary marriage was contracted and when the deceased came to apologise for his misdeeds in 1993 and was allowed to take his family back to his home. He added that as far ...

HB40-11 : TINASHE CHIKARA vs VENNAH MATIKA
Ruled By: MATHONSI J

The plaintiff called Abraham Chikozho who confirmed having been sent by the plaintiff to deliver $45,000= to the defendant in 2001. After failing to locate the defendant he handed the money over to the defendant's sister, one Florence Matika. He did not know what the money was for and whether it was passed on ...

HB48-11 : FORT GROUP ENTERPRISES (PVT) LTD vs BRIGHT INVESTMENTS (PVT) LTD
Ruled By: CHEDA J

The defendant also called Systa Denga. Her evidence was very brief. She told the court that she was present when Mr Simbarashe Nopi came to lock the premises. She knew nothing about the lease agreement as she was only a witness. Her evidence therefore did not add any probative value to the defendant's case. ...

HB60-11 : REZIMOSI DUBE vs SANDRA FARAI DUBE
Ruled By: KAMOCHA J

The plaintiff called his accountant, Mr Stanford Gwanzura, to testify in support of his story. Stanford Gwanzura has been a Chartered Accountant for over 20 years and runs an accounting firm called S.G. Company. The circumstances in which he met the plaintiff were that the plaintiff was dealing with his clients who owned Binga Wildlife Safaris. ...

The plaintiff called his accountant, Mr Stanford Gwanzura, to testify in support of his story.

Stanford Gwanzura has been a Chartered Accountant for over 20 years and runs an accounting firm called S.G. & Company.

The circumstances in which he met the plaintiff were that the plaintiff was dealing with his clients who owned Binga Wildlife Safaris. In order to protect the interests of his clients, Stanford Gwanzura encouraged the plaintiff to set up the Raz Dube Family Trust. He alleged that the setting up of the Trust would also benefit the plaintiff as follows:

1. Minimization of income tax;

2. Less interference in the event of the death of the settlor;

3. To ensure that in the event of the death of both husband and wife the children could be looked after by the Trust;

4. The settlor would get instant advice from the Trustees who are normally professionals;

5. It was also easy to attract other investors as shareholders because of its security id est being run by professionals;

6. It also minimized death duties; and

7. At death ones estate remains intact. It is not fragmented.

The Deed of Trust was set up for estate planning purposes.

Hence, in the event of the plaintiff's death, the defendant would be appointed settlor in his place. He explained fully, in 1999, to both the plaintiff and the defendant, the nature and purpose of the Trust and how it works when they purchased Learmonth (Pvt) Ltd which was to be the holding company for the Trust. It was the holding company which was to do the trading as the Trust itself was not allowed to trade. The Raz Family Trust had a 100% shareholding in Learmonth (Pvt) Ltd whose Directors were Rezimosi Dube and Sandra Farai Dube in 1999 but were joined by Stanford Gwanzura in 2002. They appended their signatures on the share certificate as Directors on 6 April 1999 in Stanford Gwanzura's office. The first asset for the Trust was a donation from the settlor in the sum of $5,000=. Presently, the Trust holds two assets, namely Learmonth Investment (Pvt) Ltd and the matrimonial home of the couple, 499 Accacia Crescent. The house was registered under the family Trust on the advice of Stanford Gwanzura. The witness detailed the involvement of the plaintiff in Learmonth Investment (Pvt) Ltd. It was his evidence that the plaintiff initially got 40% for which he did not have cash. He, however, had a boat trading licence while Stanford Gwanzura's clients had a boat, mini bus and a truck but had no trading licence. He then negotiated that the plaintiff be given 40% of the company in exchange of the trading licence. The balance was put on a loan account.

According to Stanford Gwanzura, the balance was supposed to have been paid through trading. It was, however, never paid as it was written off because the plaintiff brought value to Stanford Gwanzura's clients. He did not disclose to the plaintiff that the balance had been written off as the plaintiff did not even know how much value he had brought to Stanford Gwanzura's clients. His clients, who owned shares in Binga Wildlife Safaris (Pvt) Ltd, are Gail Christine van Jaarsvedlt, Kevin Richard van Jaarsvedlt and Harley Knoth. They became nervous about keeping businesses in this country. At the height of farm invasions during the years 2001 and 2002 they thought businesses would not be spared and started making arrangements outside the country. Harley Knoth actually lost a farm in Chiredzi. They sold most of their assets and retained only three companies. Stanford Gwanzura persuaded them not to liquidate Binga Wildlife Safaris (Pvt) Ltd. Thereafter, he persuaded the plaintiff to make an offer in respect of Binga Wildlife Safaris (Pvt) Ltd. He, too, was nervous but only did so after being assured by Stanford Gwanzura that he (Stanford Gwanzura) would remain the accountant of the company. [His clients finally left the country as the tourism industry in Victoria Falls was no longer viable]. He persuaded the plaintiff by assuring him that he would assist the business by injecting funds on a monthly basis into it for running it. He did so from 2002 up to 2007 and filed of record a document reflecting funds injected into Binga Wildlife Safaris (Pvt) Ltd by Vivstan (Private) Limited which is a company owned by his Trust, S. Gwanzura Family Trust, owning 50% of Learmonth Investments (Pvt) Ltd after the parties had agreed at an Annual General Meeting of Learnmonth Investments (Private) Limited that Binga Wildlife Safaris (Pvt) Ltd and Mama Africa were unable to repay the funds injected into them by Vivstan (Private) Limited it should take 50% shareholding in Learnmonth Investments (Private) Limited. Stanford Gwanzura told the court that his involvement in the plaintiff's business was an investment.

Stanford Gwanzura found it very difficult to understand the suggestion that the defendant had not met him in 1999 because she was employed by his clients in one of their companies as a Shop Manager from 9 January 1999 on the strength that the plaintiff was a Director in Binga Wildlife Safaris (Pvt) Ltd. He emphasized that the defendant had never been a shareholder in Binga Wildlife Safaris (Pvt) Ltd, Delicacy Investments trading as Mama Africa and Learmonth Investment (Pvt) Ltd.

Finally, the witness said he was aware of the case wherein the defendant allegedly tempered with company documents which was pending in the courts and the trial had been scheduled for 10 June 2009. The tempered documents reflect Stanford Gwanzura and the plaintiff having been resigned from the holding company and appointed the son, who was a minor, as a Director. That was not proper as Directors can only be removed through death, resignation or shareholders removing them. But none of that happened in this case. Stanford Gwanzura claimed to have warned the plaintiff about under invoicing and externalizing of funds. He made sure that the plaintiff did not use the money from the under invoicing for his personal use. The externalized funds had to come back in the form of assets such as boats and motor vehicles which were bought outside the country and brought in. Building materials were also brought into the country.

The witness was cross-examined but was not shaken. He said the suggestion that the defendant only met him in 2004 could not possibly be true unless she was denying that she had been employed as a Shop Manager by his clients from 9 January 1999. It emerged, in cross examination, that although the defendant had documents to reflect that the plaintiff and Stanford Gwanzura had resigned she had not tampered with the shareholding.

In relation to the Trust Deed, the witness was asked why he did not have an input from the defendant. His reply was that there was no input from her because she was just an income beneficiary the input only came from the settlor who is the plaintiff. He did not consult beneficiaries when setting up Deeds of Trust but only consulted settlors. He emphasized the three Trustees were in control of the Trust. To that extent, therefore, it was not possible for one Trustee to dispose of trust property without the consent of the other Trustees. The property can only be disposed of for the benefit of the family. He went on to tell the court that the two children were the capital beneficials of the Trust as the property belongs to them in the end.

When asked, in re-examination, to explain why he only took instructions from the settlor his explanation was that when forming a Trust the holder of the assets is the settlor who donated those assets into the Trust for his benefit and the benefit of his loved ones. He always looked at it as an open will of the settlor. The plaintiff donated $5,000= Zimbabwe dollars and 40% of Binga Wildlife Safaris (Pvt) Ltd shareholding.

The plaintiff's case was closed after the evidence of this witness.

HB69-11 : WINNIE PAMACHECHE vs ESTHER PAMACHECHE and ESTATE LATE KENNETH PAMACHECHE and BRUCE LONGHURST N.O. and MASTER OF THE HIGH COURT N.O.
Ruled By: MATHONSI J

The plaintiff's evidence was corroborated by correspondence between the legal practitioners which is filed of record. In a letter dated 18 August 2000, Mr N Lang, of Ben Baron and Partners, stated as follows: “We refer to the above matter and to our recent telephone conversation. We confirm that the writer met with Ms Ncube and Mr ...

The plaintiff's evidence was corroborated by correspondence between the legal practitioners which is filed of record.

In a letter dated 18 August 2000, Mr N Lang, of Ben Baron and Partners, stated as follows:

“We refer to the above matter and to our recent telephone conversation. We confirm that the writer met with Ms Ncube and Mr Nkomo on the 16^th August 2000 and the following arrangement was made: The house will be revalued by Messrs Brian Bell Estate Agents. Mrs Winnie Pamacheche will be afforded an opportunity to pay out the other heirs their respective shares in terms of the proposal put forward on the 18^th July 2000. The parties have yet to reach agreement on the time frame for Mrs Winnie Pamacheche to make the payment but we believe this is a matter that can be resolved by the correspondence between the parties. It should be noted that Esther Pamacheche has indicated that should Winnie Pamacheche be unable to pay within a reasonable time she (Mrs Pamacheche) would like to have the opportunity to purchase the house at the agreed valuation…,.”

Mr Lang followed that up by another letter to Lazarus and Sarif dated 3 October 2000 which reads, in part, as follows:-

“We refer to the above matter and to our letter of the 18^th August 2000. We would be grateful to receive your advice as to when Winnie Pamacheche proposes to pay for the house. We would be grateful to receive this information within the next fourteen days.”

Lazarus and Sarif responded to that letter on 18 October 2000 as follows:

“We refer to your letter dated the 3^rd October 2000. Please be advised that we are holding the money in trust and once we agree on an amount we will pay. We shall await to hear from you.”

Clearly, therefore, at that stage an agreement to the effect that the plaintiff would pay for the remaining ½ share of the house had been reached. As the plaintiff's legal practitioners were now holding the purchase price, after an evaluation had been undertaken, I have no reason to disbelieve that the money was paid to the executor thereby completing the sale to the plaintiff especially as it has not been disputed that a lot of relevant and important documents proving the plaintiff's claim disappeared while in fourth defendant's custody.

HB71-13 : ROBSON NDIWENI vs PETER JOHANNES CLOETE
Ruled By: CHEDA AJ

The plaintiff called one Zethi Ndlovu. His evidence was that he was with the plaintiff on the day in question and the defendant is their neighbour. On the day in question, they went to remove cattle from where they were settled. They were 20 people and they were removing cattle to take them to the defendant's ...

The plaintiff called one Zethi Ndlovu.

His evidence was that he was with the plaintiff on the day in question and the defendant is their neighbour. On the day in question, they went to remove cattle from where they were settled. They were 20 people and they were removing cattle to take them to the defendant's farm. They met the defendant who emerged from the beasts driving at high speed. He got out of the vehicle wielding a firearm. He fired into the air then threw the firearm to his son. The defendant took a pick handle from one of his workers and hit the plaintiff on the head. The plaintiff staggered backwards and fell down. The plaintiff hooked the defendant with his legs and the defendant fell. The defendant rose and started to hit the plaintiff with a wooden handle. Mguni, one of the defendant's employees, took part in the assault using a knobkerrie. The plaintiff was paralyzed. Each time they tried to move forward the defendant's son would fire a shot and bullets passed them. They left the plaintiff for dead. The plaintiff did not fight back at all. He was hit on the lower part of the right leg. He said initially the plaintiff was hit on the head then on the right leg with the assistance of the defendant's colleagues. He said the defendant attacked the plaintiff because the plaintiff was walking on the road while most of them were driving cattle on the side of the road. He said there were no utterances of words before the assault.

He denied that the defendant asked where the cattle were being taken to. He repeated that the plaintiff and the defendant did not speak to each other at all. When told that the plaintiff said he told the defendant they were driving cattle to his home he said he did not hear that. He said the defendant was seated while hitting the plaintiff whose legs had hooked those of the defendant. He said the defendant hit the plaintiff once. The plaintiff raised a piece of stick from the cattle pen and he was hit on the head once. Asked if he was sure he said he was sure. When told that the plaintiff said he was hit three (3) times the witness said he did not see that. He claimed that he witnessed all of it. He said they had reported the cattle many times to the police.

On the injuries, he said he saw only the injury in the plaintiff's right leg. Later, he said he saw the broken leg bleeding.

He repeated, under cross-examination, that both the plaintiff and the defendant did not say anything. He said one Mguni and Dlamini, the defendant's employees, joined the assault. They were using knobkerries. They were hitting the same spot on the right leg. All three (3) of them. Asked how many shots were fired he said only one shot by the defendant and the defendant's son fired twice. He said the stick that the plaintiff had was about 1,8 metres long. He said the first blow landed the plaintiff on the ground and he became unconscious. The defendant then rose locking his legs on the plaintiff's legs….,.

The defendant called his son, Dillen, who narrated a similar story like that of his father concerning the encounter with the gang that was driving his father's cattle and the fight between his father and the plaintiff. He said when they met the cattle they stopped, and on realizing that they had left rifles in the vehicle they returned, removed the rifles and locked the car as they feared someone might reach the vehicle and the firearms. They went towards the cattle and the plaintiff was in front leading the rest of the people. One of their workers saw a calf that was pushed by the stampeding cattle then he gave him the rifle while picking up the calf. As a result he had two (2) rifles in his hands. He stood behind his father who asked the plaintiff what was going on. The plaintiff was carrying two (2) sticks and started swearing at his father. The plaintiff attacked the defendant and struck him on the left ear. He heard the exchange between his father and the plaintiff. After his father was struck on the left ear he retaliated by striking the plaintiff on the right thigh. The plaintiff fell down. His father's stick broke into pieces. The plaintiff put his legs around those of his father and hit his father with the stick from a sitting position. When the defendant tried to turn, the plaintiff hit him several times on the back. Ngwenya, one of his father's workers tried to stop the fight but the whole crowd charged forward shouting “Bulala! Bulala! Bulala!” which means “Kill! Kill!” One of the persons who was hit left a knobkerrie which his father picked up and struck the plaintiff. Dillen says when he saw the whole crowd get on his father, he fired two (2) warning shots. He said his father never fired any shots as the rifles were with him. He said proof of this is that the police recovered the two (2) empty cartridges at the scene. He denied that his father struck the plaintiff first. He said the fight actually ended after he had fired the two (2) shots. The crowd of people were heavily armed with axes and knobkerries. After the fight ended, he observed one Sibanda talking to the plaintiff and trying to get him up. The plaintiff claimed to the police and the Governor that he had been shot and that the defendant and his son should stay in jail. He said when the police saw blood on his father's ear and shirt they told them to rush to the hospital. At the hospital, both the defendant and the plaintiff were taken into the X-ray room and the plaintiff was still commenting about the incident. The police alleged that the plaintiff was shot. He took photographs of the statement made by the plaintiff but that and other papers were taken by the police. He was then detained with his father for 10 days on allegations that they had shot the plaintiff.

HB158-13 : KERRIES ENGINEERING (PVT) LTD vs MAKOMO RESOURCES (PVT) LTD
Ruled By: MAKONESE J

The second witness for the plaintiff was Davina Porter. She is the Personal Assistant and Secretary to Donovan Jones. Her evidence corroborated the testimony of Donovan Jones in all material respects. She confirmed the arrival of Emmanuel and Sam Omar at the plaintiff's premises on the 24th January 2012. She further confirmed that she sent an ...

HH314-14 : TERERAI MUGWADI vs MTANDAZO DUBE and ZIMBABWE NEWSPAPERS (1980) LIMITED and EDDIE DHLIWAYO
Ruled By: CHIGUMBA J

Everisto Elarius Mugwadi He testified on behalf of the plaintiff and told the court that he is the plaintiff's father, a legal practitioner, an officer of the court, and a successful farmer. He told the court that his daughter had been defamed by the article which was published in the Sunday Mail of 3 July 2011, ...

Everisto Elarius Mugwadi

He testified on behalf of the plaintiff and told the court that he is the plaintiff's father, a legal practitioner, an officer of the court, and a successful farmer. He told the court that his daughter had been defamed by the article which was published in the Sunday Mail of 3 July 2011, and that he had come to court to help her to seek redress because the article did not state the truth. The witness told the court that he had raised the plaintiff from childhood and that when he read the article he was stunned, surprised, and taken aback. He told the court that he was shocked and traumatized by the tone of the report, and that he sought out the first and third defendants and demanded an explanation, and that the third defendant flatly denied that he had supplied the first defendant with the information that formed the basis of the article.

Mr. Mugwadi told the court that his daughter had a decent upbringing which was based on his culture and tradition, and a normal childhood. He said that she is a talented musician. He told the court that his daughter has never exhibited any symptoms of alcoholism or drug abuse, and that, as her father, he would have noticed if there was anything amiss. He described himself as a strict disciplinarian and said that he believed his daughter when he quizzed her, after the article was published, that she is a social drinker who is not addicted to any prohibited substances. The witness told the court that he was surprised and outraged at the suggestion that no one cared about his daughter, that he was derelict in his duty as a father to her, to the extent that an association of young musicians was having to raise money to check his daughter into a rehabilitation centre. Mr. Mugwadi told the court that his grandson, Gabriel, was fathered by David Mukwedeya, of the Museyamwa clan. The witness told the court that his daughter did not abuse any prohibited substances while she was studying for her degree in South Africa. He accused the first defendant of sensationalism for the sole reason of improving circulation of the newspapers, and of being unethical, of not verifying the truth, of failing to report in a balanced manner by seeking comments from the plaintiff or members of her family. He said that the article tarnished his image and damaged the Mugwadi name, with family members in the diaspora contacting him to demand that he seek redress.

The court believed the witness when he said that the defendants knew where he lived, and that they knew the plaintiff's husband, so it was not feasible or honest to say they tried and failed to publish a balanced article when they never sought a comment or opinion from the plaintiff or from members of her family. The court accepted this witness's evidence that the defendants were not bona fide and that they had ulterior motives in their portrayal of the plaintiff's sexual proclivities, her alleged addiction to alcohol, mbanje, hardcore drugs, the status of her relationship with her husband, and her alleged inability to pinpoint the father of her son Gabriel. The court accepted his evidence that the allegation that the plaintiff did not know who fathered her son is simply not true. The court accepted that the allegation that the plaintiff graduated from alcohol abuse to hard core drugs whilst she was studying in South Africa is simply not true. The first defendant admitted that he had no basis for making the allegations, and the third defendant said he knew nothing about the plaintiff's lifestyle while she was a student.

HH314-14 : TERERAI MUGWADI vs MTANDAZO DUBE and ZIMBABWE NEWSPAPERS (1980) LIMITED and EDDIE DHLIWAYO
Ruled By: CHIGUMBA J

Enoch Manhanga He told the court that he was not there to testify for the defendants but to clarify the issue of the minutes of the Urban Groovers Association of 13 April 2010. This witness told the court that he is a professional singer and a member of the Urban Groovers Association. He said that he ...

HB99-14 : ELLEN MAJOLA vs BEKEZELA NYONI
Ruled By: MAKONESE J

I found the evidence of Getrude Lusinga to be credible and consistent with the plaintiff's evidence in material respects. She gave her evidence well and was comfortable on the witness stand. She indicated that she stood to gain nothing by giving evidence in court but wanted to ensure that the facts were presented in their ...

SSC20-15 : BIGKNOWS WAIROSI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and MAVANGIRA AJA

This court has stated that lies told by an accused person can properly be taken as evidence to corroborate the evidence of State witnesses. See S v Mhlanga 1987 (1) ZLR 71.

HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER
Ruled By: MATHONSI J

Winnie Mpofu called three (3) relatives of the deceased to vouch for her, namely, Ndatanda Echo Nevana, Martin Soraidema and Vorster Soraidema. The thread running through their evidence is that Winnie Mpofu was born of the second marriage between the deceased and Ettah Sibanda. The latter went on to obtain a birth certificate ...

HB90-16 : L. SACRE KWETE MINGA vs ITAYI MATIVONESE GUNDA
Ruled By: TAKUVA J

The plaintiff called Mr Malaba, the erstwhile Chairman of Masakhane Traders Association which owns Stands at Unity Village. He said he used to see the plaintiff and the defendant moving together in 2005 at the flea market at Unity Village. The parties applied to purchase shares in respect of Stand 70 and ...

Appealed
SC34-18 : MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY vs GRANDWELL HOLDINGS PL and MBADA DIAMONDS and ANOR
Ruled By: PATEL JA, GUVAVA JA and UCHENA JA

In this case, the first respondent relied on an assumption that the third appellant would have made it impossible for the resolution to be passed. That assumption is supported by sufficient evidence that it would have been futile to call for a meeting to resolve that Mbada Diamonds (Private) Limited should make the application. The futility was clearly ...

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HH193-16 : GRANDWELL HOLDINGS PL vs MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY and MBADA DIAMONDS PL and ANOR
Ruled By: MAFUSIRE J

I was satisfied with events aliunde that Marange Resources (Private) Limited would not have tagged along with Grandwell Holdings (Private) Limited. Among other things, it energetically opposed the application.

HH564-15 : LAMECK KUFANDADA vs DAIRIBOARD ZIMBABWE LIMITED and JANAWAYS (PRIVATE) LIMITED and MICHAEL MUSAMIRAPAMWE
Ruled By: MTSHIYA J

It is…, not clear whether the agreement signed on 8 December 2012 is the one that the applicant is relying on. To me the agreement attached to the papers appears to be a draft. It was not dated by the first respondent. Nevertheless, it is clear that there was indeed an agreement between the first respondent and ...

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

The plaintiff's next witness was Mr Antony Robert Root. Robert Root Property Consultants [“Robert Root”] had been the managing agents of the premises throughout the lease period. Mr Root was the Managing Director. He had upwards of forty-five years' experience in property management. The gist of Mr Root's evidence was to confirm the defendant's tenancy; the periodic inspections carried ...

HH176-15 : BARBARA MAKAHAMADZE vs DOUGLAS MUTUVIRA
Ruled By: MWAYERA J

The defendant recalled that on 2 January 2009, after they separated, he sold the Nyanga house to one Mr Henry Mugore Muringai with whom he entered into an agreement of sale.

I must hasten to point out that such agreement of sale was not satisfactorily supported by both the defendant and Mr Muringani's evidence.

The plaintiff disputed there was ever a sale transaction as she continued to receive rentals from the tenant - even after the separation. Also, at the time of trial, after five years from the purported sale, no transfers of ownership had been made. The property remains registered in the defendant's name.

Mr Muringani, the alleged buyer's testimony, did not change the complexion of the matter.

Mr Muringani's version was riddled with inconsistencies and was difficult to follow. It was not clear why he took so long to pay for the house and the manner they conducted sale was not consistent with the contract. Further, Mr Muringani appeared not well versed with the nature, type, and extent of property he deemed to be his. He could not explain, satisfactorily, why, if he had bought the property, the tenants would pay rentals to the defendant and/or his wife. He did not even know the rental amount.

Other than his mere say so, there was no proof that he paid for the house in question.

In fact, the picture painted by the witness, of having paid more than 10 instalments contrary to the sale agreement, and the unavailability of receipts when payment was made for purchase of an immovable property, painted the defence witness and the defendant's story as incredible.

Mr Muringani's evidence, about him having bought a house whose specifications he was not well versed with, and making payment of up to $19,500 with no record whatsoever, was not only unsatisfactory but unbelievable, given his background as a lawyer.

He would naturally be expected to appreciate the difference between buying a loaf of bread and a house. The manner in which he testified left a lot to be desired.

His testimony did not bolster the defence's claim of a sale. If anything, it painted a picture that the Nyanga house was still the defendant's property, acquired during the customary law union.

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

The appellant alleges that the surety document that he signed was on behalf of Limpopo Investments and not SM Tyres (Pvt) Ltd. He alleges that his friend, one Wycliffe Chiunda, is the one who asked him to stand as surety for his company, Limpopo Investments. Having made those submissions no further evidence was adduced on his behalf ...

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

The law relating to a single witness was set out in R v Mokoena 1956 (3) SA 81 (A)…,. It was held that: “The uncorroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would…,. ...

The law relating to a single witness was set out in R v Mokoena 1956 (3) SA 81 (A)…,. It was held that:

“The uncorroborated evidence of a single witness should only be relied upon if the evidence was clear and satisfactory in every material respect. Slight imperfections would not rule out reliance on that evidence but material imperfections would…,. However, in the latter case of S v Sauls & Ors 1981 (3) SA 172 (A) the Appellate Division stated that there was no rule of thumb to be applied when deciding upon the credibility of single witness testimony. The court must simply weigh his evidence and consider its merits and demerits. It must then decide whether it is satisfied that it is truthful, despite any shortcomings, defects or contradictions in that testimony. The approach adopted in the Sauls case was followed in the case of Nyabvure SC23-88. See also Worswick v State SC27-88; S v Mukonda HH15-87; S v Nemachera SC89-86; and S v Corbett 1990 (1) ZLR 205 (S).”

The evidence of a single witness was also discussed by BECK JA in his article in the 1986 Vol 1 No.1 Prosecutors Bulletin…,. where he says:

“In assessing the quality of the single witness' evidence, to decide whether the accused should be convicted on the basis of this evidence, the court should be most attentive to the nature of the witness, looking at his apparent character, his intelligence, his capacity for observation, his powers of recall, his objectivity and things like that. The evidence should be carefully weighed against the objective probabilities of the case, and against all the other evidence which is at variance with it. The court must have rational grounds to conclude that the evidence of the single witness is reliable and trustworthy and is a safe basis for convicting the accused.”…,.

In casu, the evidence adduced by the respondent's witness was clear and unequivocal. She stated that at the time the respondent entered into the agreement with SM Tyres (Pvt) Ltd she was not yet the General Trade Manager but the Retail Manager. She further stated that she was aware of the agreement that was entered between the respondent and SM Tyres as well as the surety agreement entered on behalf of SM Tyres by the appellant and Shadreck Mawire. Although she was not present when the agreement was drafted and signed she confirmed that the agreement was available and produced it before the court. Her evidence was in accordance with the undisputed evidence that was before the court and it accordingly was satisfied that she was a credible and reliable witness.

View Appeal
HH222-16 : TOTAL ZIMBABWE (PVT) LTD vs RONALD BAKARI
Ruled By: DUBE J

The trial opened with the plaintiff calling its General Trade Manager, Ester Verenga. She was the plaintiff's sole witness….,. The witness gave her evidence well. She maintained her story under cross examination. Although this is a single witness case, the evidence of the witness was clear, truthful and satisfactory. Her version was corroborated by the contents of ...

SC35-19 : MHLANGA MXOLISI vs MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: GWAUNZA DCJ, MAKONI JA and MOYO AJA

The appellant's failure to cross-examine the minor student on material aspects meant that her evidence stood unchallenged. The Labour Court found the student to be a credible witness and stated that it had no reason to disbelieve her. It then found that the appellant did improperly associate with the minor student.

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

The plaintiff gave evidence and called the following witnesses:- 1. George Nyashanu. 2. Medeline Van Gruenen. 3. Desmond Thompson. 4. Sandra Dombo Zhuwawo. 5. Dr Dickson Chibanda. The defendant, who-9 had indicated, as per the joint pretrial conference minute, that he would call eight (8) witnesses and had been directed to file supplementary summaries of evidence to be given by the eight (8) witnesses he intended to ...

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

Sloppy drafting aside, the application was well supported by very strong evidence of abuse by the respondents in the form of sworn statements by eyewitnesses; pictures; media reports; documents; correspondence, and the like. Undoubtedly, the first respondent's defence was wool over eyes.

HH50-12 : CHEMATRON PRODUCTS ZIMBABWE (PVT) LTD vs TENDA TRANSPORT (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: BERE J

The story told by the plaintiff's sole witness, Mr Killian Kufahakurambwi, struck me as a credible…,.

HH112-12 : ASTRA STEEL & ENGINEERING SUPPLIES (PVT) LTD vs P M MANUFACTURING (PVT) LTD
Ruled By: MUTEMA J

Exhibit 4 is Solution Motor's letter addressed to the plaintiff announcing that they were the defendant's suppliers and promised to deliver 200 tyres on 10 July 2008. This shows when Solution Motors came into the equation for the first time. It is clear therefore that when the agreement, exhibit 1, was concluded, there was no ...

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

The plaintiff called four witnesses to testify on his behalf. Of the four only his caretaker was present on the day in question.

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

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

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

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

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

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

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

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

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

View Appeal
HB179-18 : YUSUF GAIBIE and MAHMOUD GAIBIE vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: MAKONESE J

The defendants have made an application for absolution from the instance at the close of the plaintiffs case.

The defendants contend that the plaintiffs had failed to lead evidence upon which a court might find in favour of their claims. The application is made on the basis that an essential of the claim, an alleged breach of contract, was not proved in sufficient evidence. Further, the plaintiffs alleged right to cancel the agreement was not proved. The defendants aver that the evidence led by the plaintiffs was fraught with glaring inconsistencies and unacceptable variance with the plaintiffs' pleaded case.

The plaintiffs are opposing the application for absolution from the instance.

The plaintiffs' aver that taking into account the applicable law, and evaluating all the evidence adduced on behalf of the plaintiffs, the pleadings filed of record, the exhibits, and all the discovered documents as well as the viva voce evidence, the application for absolution from the instance is unsustainable and ought to fail with costs.

The plaintiffs aver that they have established a prima facie case of breach of contract and the plaintiffs' right to cancel the contract as a result of such breach. The plaintiffs alleged that the application for absolution from the instance is premised on a mis-interpretation of the terms of the Agreement of Sale, as amended, and a misconception of the consequences at law of the defendants' failure to pay the full purchase price after they were called upon to remedy their breach.

The Factual Background

On the 25th of January 2006 the parties entered into an Agreement of Sale in terms of which the plaintiffs sold to the defendants an immovable property for the agreed price of Z$11,5 billion, subject to certain terms and conditions as set out in the agreement. The plaintiffs alleged that the defendants breached the agreement by failing to pay the purchase price in full despite the extension of time to pay by the 28th of February 2006 in terms of an addendum to the Agreement of Sale signed on the 16th of February 2006.

The defendants deny having breached the agreement of sale and state that they have paid the purchase price in full. They aver that the Capital Gains Tax was paid to the plaintiffs' legal practitioners, who, incidentally, were also the defendants' legal practitioners at the relevant time in accordance with the Agreement of Sale.

The joint pre-trial conference memorandum filed by the parties' legal practitioners set out the following issues for trial;

1. Whether the defendants are in breach of contract.

2. Whether the plaintiffs' cancellation of the Agreement of Sale was in terms of the Contractual Penalties Act [Chapter 8:04].

3. Whether the plaintiffs' attempted to restitute the amount paid by the defendants towards the sale due to breach.

4. Whether the plaintiffs are entitled to cancel the agreement based on the defendants' breach of contract.

5. The onus on the plaintiffs on all the issues.

The Pleadings and Burden of Proof

This being a cause based on breach of contract, the onus of proof rests on the plaintiff to prove breach and the nature thereof. The plaintiffs not only have to allege breach in sufficiently clear terms in their pleadings, but also to prove such breach in evidence. In their pleadings, the plaintiffs allege breach in the following respects:

(a) Failure by the defendants to pay a balance of Z$1,2 billion.

(b) Failure by the defendants to pay the sum of Z$2,3 billion to the conveyancers. The breach, as alleged, is mentioned in paragraphs 4, 5, 6, 7 and 9 of the declaration.

(c) Failure to pay interest in the sum of Z$54,208,814.

In their plea, the defendants denied breaching the terms of the agreement and contend that they have complied fully with the Agreement of Sale.

Assessment of evidence

The plaintiffs filed both the Agreement of Sale and the addendum as part of their case. During the course of the proceedings, the plaintiffs also produced, as exhibit 2a, a schedule showing the defendants' payments totaling Z$9,2 billion made to the first plaintiff, and exhibit 3, a letter from Joel Pincus, Konson and Wolhuter, legal practitioners who were then legal practitioners for the plaintiffs.

The plaintiffs led oral evidence from two witnesses. The first plaintiff confirmed, wholesale, together with all and any defects therein, the evidence, beliefs, and recollections of the second plaintiff.

The evidence of the first plaintiff that he confirmed and adopted the evidence of the second plaintiff was of little probative value to the court.

The first plaintiff had no independent recollection of the matter and did not corroborate the second plaintiff's evidence in any material respects.

It has to be noted that corroboration can only be supplied by independent evidence of a witness giving independent recollections of an incident at issue....,.

The only independent aspect of the witness' evidence was that he and not the second plaintiff, and not him and the second plaintiff is the registered owner of the property.

CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

The two applicants are Members of Parliament. They brought two separate applications in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read with Rule 27 of the Constitutional Court Rules.

They alleged failure by Parliament to fulfil the constitutional obligation to act in accordance with the procedure for amending the Constitution prescribed by section 328 of the Constitution.

The allegations in the applications are the same. So are the issues. The two applications were consolidated and heard as one.

The applicants challenged the validity of the proceedings that culminated in the passing of Constitutional Amendment Bill (No.1) 2017.

The relief sought is by way of a declaratory order in the terms that:-

1. Parliament failed to fulfil the constitutional obligation provided for in section 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No.1) of 2017 on 25 July 2017 and 1 August 2017 in the National Assembly and the Senate respectively.

2. Accordingly, the proceedings in Parliament, pertaining to Constitutional Amendment Bill (No.1) of 2017, on 25 July 2017 and 1 August 2017, be and is hereby set aside.

3. The first respondent pays costs of suit.

The Constitutional Bill was intended to amend section 180 of the Constitution insofar as it related to the procedure for the appointment of the Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court. The proposed amendment would also add to section 180 of the Constitution a provision relating to the appointment of the Senior Judges of the Labour Court and the Administrative Court by the Chief Justice.

The application was filed on 6 September 2017. Before it could be heard, the President signed Constitutional Bill (No.1) 2017 into law.

The applicants filed another application under CCZ58/17. They sought an order setting aside the Constitutional Amendment Act on the basis that Parliament had failed to fulfil a constitutional obligation in the passing of the Constitutional Bill.

There are two distinct challenges to the passing of the Constitutional Bill.

The validity of the passing of the Constitutional Bill is challenged by impugning the proceedings in the National Assembly and the Senate.

In respect of the proceedings in each House, the contention is that the passage of the Constitutional Bill was in contravention of the amending procedure prescribed by section 328(5) of the Constitution. The grounds for the claimed violation of section 328(5) of the Constitution are different.

In respect of the proceedings in the National Assembly, the grounds raise factual questions, whilst the grounds in relation to the proceedings in the Senate raise a question of law.

The Court holds that the applicants have failed to show, on a balance of probabilities, that there was no voting conducted in the National Assembly. They also failed to show that the “Aye” votes did not reach the required minimum threshold of 180 votes.

The Court is of the view that the applicants have not been able to prove failure on the part of the National Assembly to act in accordance with the procedure for the amendment of the Constitution prescribed by section 328(5) of the Constitution.

The constitutional obligation imposed on Parliament, by section 328 of the Constitution, when exercising the power to amend the Constitution is to ensure that the procedures prescribed are complied with.

The Court entertains no doubt that, to amend the Constitution by the method prescribed by section 328, every requirement prescribed by the provision must be observed. The omission to comply with any one of the requirements is fatal to the validity of the proposed amendment.

The applicants established that the Constitutional Bill was not passed with the requisite two-thirds majority in the Senate. There was no compliance with the requirements of the procedure prescribed by section 328(5) of the Constitution.

The reasons for the decision now follow.

The Court notes the fact of the conflicting versions of facts and the interpretation of the applicable constitutional provisions. The granting of the relief sought by the applicants depends on one reality. It is discoverable by the finding of the facts on the matters in dispute, the declaration of the true meaning of the applicable constitutional provisions, and the application of the law to the facts.

The proposed amendment to section 180(1) of the Constitution was the cause of the events which culminated in the cause of action pleaded by the applicants for the relief sought. Nothing turned on the substantive value of the proposed amendment of the Constitution.

Before the proposed amendment, section 180 of the Constitution read as follows:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must -

(a) Advertise the position;

(b) Invite the President and the public to make nominations;

(c) Conduct public interviews of prospective candidates;

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.

(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned….,.”

Section 180 of the Constitution would read as follows after the proposed amendment:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.

(3) If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable: Provided that, for the avoidance of doubt, it is declared that the decision of the President, as to such appointment, shall be final.

(4) Whenever it is necessary to appoint a judge, other than the Chief Justice, Deputy Chief Justice or Judge President of the High Court, the Judicial Service Commission must -

(a) Advertise the position; and

(b) Invite the President and the public to make nominations; and

(c) Conduct public interviews of prospective candidates; and

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (5), the President must appoint one of the nominees to the office concerned.

(5) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.

(6) The President must cause notice of every appointment under this section to be published in the Gazette.

(7) The offices of senior judge of the Labour Court and senior judge of the Administrative Court must be filled by another judge or an additional or acting judge, as the case may be, of the court concerned, and are appointed by the Chief Justice after consultation with the Judicial Service Commission.”

FACTUAL BACKGROUND

The main contention by the applicants was that there was no proper vote in Parliament.

The allegations of fact on which the applicants' cause of action was based had no support from the evidence produced.

That was the case in respect of what they alleged happened in the National Assembly.

NATIONAL ASSEMBLY

The applicants made the following allegations of fact.

There were 234 Members of the National Assembly present in the House on 25 July 2017 out of a total number of 270. This appears from the Order Paper. There was a debate on the Mid-Term Budget Review and the Economic Outlook Statement presented by the Minister of Finance on 20 July 2017.

The fourth respondent (Emmerson Mnangagwa) moved a motion to adjourn the debate in favour of the presentation of the Constitutional Bill.

There was argument between the second respondent (the Speaker of the National Assembly) and Members of the opposition. Eventually, the second respondent agreed with the fourth respondent. He ruled that the House was to proceed with the third reading of the Constitutional Bill.

The first applicant (Innocent Gonese) moved a motion in terms of Standing Order 152(3) that the Constitutional Bill be sent back to the Committee stage to ensure that it incorporated matters that had not been included in the text.

The motion was disallowed by the second respondent.

Bells rang so that voting could commence. According to the applicants, the House was not properly divided at this stage.

A point of privilege was raised to the effect that there had to be a secret vote.

The raising of the point, that the voting be by secret ballot, was based on the suspicion that some Members of the ruling party had been intimidated to vote for the Constitutional Bill. The contention was that a secret ballot was necessary in the circumstances.

The second respondent ruled that the vote was not going to be by secret ballot.

While the point of privilege was being considered, the tellers were counting Members. The Members who were sitting on the Government benches were counted as part of the “Aye” vote. Those who sat on the opposition benches were counted as being part of the “Noe” vote.

The tellers told the second respondent that the “Aye” votes were 187.

The first applicant raised an objection and pointed out that the second respondent had the obligation to ascertain whether there were more than 180 Members in the House. He argued that the second respondent was obliged, by Standing Order 127, to separate Members who voted in favour of the Constitutional Bill from those who voted against it.

The applicants aver that the process was not in accordance with Standing Order 127. They relied on the un-revised Hansard and the Order Paper to advance their argument.

According to the unrevised Hansard, there was commotion in the House following the communication to the second respondent by the tellers that 187 Members had voted in favour of the Constitutional Bill.

Some Members left the House.

The second respondent acceded to the request that the counted numbers should be verified.

The Sergeant-at-Arms was ordered, by the second respondent, to conduct a recount.

After the recount, the un-revised Hansard records that the second respondent said:

“After the verifications, the figure given of the results of the count is: Ayes – 182 and the Honourable Members who left are Honourable Matuke, Honourable Chinomona, Honourable Ruvai, Honourable Nyamupinga and Honourable Muchenje. Those against – 41. The number of affirmative votes recorded is not less than two-thirds of the membership of the House.

I, therefore, declare the final votes in the House on the Constitutional Amendment Bill to have been in accordance with the provisions of section 328(5) of the Constitution.”

According to the applicants, the irregularities in the vote were as follows -

1. When the bells were rung, the doors of the Chamber were closed. Before the vote was concluded, and before the verification was conducted, an Honourable Member walked in.

2. The second respondent breached the Standing Orders by opening the doors before the process of the vote was completed.

3. No vote took place and the verification process became the vote. The counting of the votes was based on an assumption that those on the Government benches supported the motion. This is not permitted by the Standing Orders and the Constitution.

4. The second respondent failed to properly divide the House, as is required by the Rules.

5. The second respondent did not allow the Chief Whips and the Sergeant-at-Arms, together with the tellers, to move around to make the necessary verifications after the vote.

6. Honourable Pedzisayi was counted twice for the “Aye” votes according to the Order Paper.

The applicants averred that the names of those alleged to have voted with the “Ayes” appear in both the un-revised Hansard and the Order Paper. According to both sources, there were 182 “Aye” votes. Those who voted with the “Ayes” included the names of Honourable Beremauro G, Honourable Mukanduri and Honourable B Tshuma. These Members were not in Zimbabwe on 25 July 2017. They were in Uganda on a Parliamentary visit.

The allegation was also that Honourable D Marapira and Honourable G Mabuwa, who were recorded as part of the Members who voted in favour of the Constitutional Bill, were absent on official leave.

The applicants said that Honourable M Chikukwa, Honourable M Hlongwani, Honourable P Dutiro, Honourable Y Simbanegavi and Honourable D Ndlovu were not present. They were, nonetheless, recorded as being part of the “Aye” vote.

According to the applicants' calculation, there were 171 “Aye” votes against a required threshold of 180 votes in favour of the proposed amendment to the Constitution.

There was a contradiction in the averments.

The applicants alleged that voting did not take place in the National Assembly. They also said that the vote was conducted in an irregular manner. They averred that the required minimum threshold of 180 votes in favour of the Constitutional Bill was not reached in the National Assembly....,.

On the merits, the first and the third respondents averred that the procedural requirement that there must be an affirmative two-thirds vote for a valid Constitutional amendment was complied with.

The second respondent averred that he acted in accordance with Standing Order 127 in the conduct of the vote.

The bells were rung, and all Members present moved into the Chamber. He then appointed tellers and divided the House, by directing that the “Ayes” should go to the right and the “Noes” should go to the left. An objection was raised when the House had already been divided. The unrevised Hansard relied on by the applicants did not capture everything that transpired. The revised Hansard and the audio recording show that voting was conducted properly. There were 182 “Aye” votes as recorded in the corrected Hansard, unlike the numbers relied on by the applicants which are based on the unrevised Hansard.

The first and the second respondents relied on the Journal of the House (“the Journal”) and alleged that it was the correct record of the proceedings of the House. They alleged that the un-revised Hansard, relied upon by the applicants, was subsequently corrected after reconciliation with the audio recording.

Their position was that, contrary to the allegations made by the applicants, the audio recording captured both the division of the House and the conducting of the vote.

The first and the second respondents contended that the applicants' case was based on the report in the unrevised version of the Hansard. The names of those Members who voted were corrected in the Journal in terms of Standing Order 131. They explained that, in terms of the procedure of the Journals Office and the Hansard Operational Manual, the corrected version of the Hansard and the corrected Votes and Proceedings were filed in the Journal of the House, which is bound at the end of each Session.

The Master Copy of the Hansard was prepared by the Hansard Reporters after they had gone through the un-revised version of the Hansard while listening to the audio recording.

The Order Paper relied on by the applicants contained errors, which were corrected using this method.

The second respondent conceded that, according to the corrected records, Honourable Mukanduri, Honourable Beremauro and Honourable Tshuma were out of the country. However, he maintained his position that Honourable Marapira and Honourable Mabuwa were present during the proceedings in the House relating to the voting on the Constitutional Bill. Their inclusion on the list of Members absent with leave was an error which was corrected.

The second respondent maintained that, whilst the Hansard is the official report of the proceedings in Parliament, it does not necessarily constitute an accurate record of what transpired on the day in question. The accurate record is contained in the Journal, which is bound at the end of each Session after it has been proof-read and corrected if necessary. The Journal is a security item and is kept by the Clerk of Parliament.

The second respondent stated in the opposing affidavit, in part, as follows:

“I conducted the vote in terms of Standing Order 127. The un-revised Hansard relied upon by the applicants did not capture that part. The audio record recording at minute 01:58:16-20 (which audio will be played at the hearing if required) and the corrected Hansard (vide 'CC' hereto) clearly show that the voting was done properly…,.

It is also important for this Court to note that, unlike the unrevised Hansard, the Journal (vide Annexure 'BB' hereto) is the correct record of proceedings. See also the alterations of the Master Copy of the Hansard (vide Annexure 'CC') before submitting it to the printers to produce Annexure 'DD' hereto which forms part of the Journal….,.

These allegations are denied.

The audio recording clearly shows what transpired…,. The applicant relied on the 'Unofficial Report Un-revised' Hansard as shown on its cover and the 'Advance copy - Uncorrected Votes and Proceedings' which the applicant is referring to as the 'Order Paper', which may, at times, contain errors, as in this case, and such errors in the names of the division list were corrected in the Journal of the House in terms of Standing Order 131 of the Standing Rules and Orders of the National Assembly.”

The second respondent took the argument further.

He averred that the unrevised Hansard left out four Members, Honourable Muchinguri, Honourable Mukupe, Honourable Madzinga and Honourable D Mpofu, who were present and voted with the “Ayes”. This was confirmed by the Attendance Register and the corrected copy of Votes and Proceedings.

According to this record, the “Aye” votes remained at 182.

It was also the second respondent's contention that the Attendance Register and the corrected copy of the Votes and Proceedings showed those Members who were present and voted for the proposed amendment of the Constitution. According to these records, Honourable Chikukwa, Honourable Hlongwani and Honourable Dutiro were present and voted “Aye”.

In terms of the Attendance Register compiled by the Sergeant-at-Arms, Honourable Simbabegavi was marked absent but she came late and participated in the voting and voted with the “Ayes”.

The second respondent alleged that the Sergeant-at-Arms failed to correct the error.

As for Honourable D Ndlovu, the second respondent said there was an error. The intended entry was Honourable A Ndlovu.

In regard to the issue that Honourable Pedzisayi was counted twice, he admitted that there was an error, which was corrected in terms of Standing Order 131.

The second respondent maintained that the Journal confirmed that 182 Members voted in favour of the Constitutional Bill. He contended that the Constitutional Bill was passed in accordance with the procedure prescribed by section 328(5) of the Constitution.

Finally, the first and the second respondents averred that, at the verification of the votes, the five Members who had voted, but subsequently left the House, were not included in the 182 “Ayes”. They had initially been counted as part of the 187, but were excluded following the verification exercise because they had left before the verification was conducted.

The applicants alleged, in their answering affidavits, that the documents relied on by the first, the second and the third respondents were fabricated, doctored, and tampered with.

The applicants relied on the unrevised Hansard and the Order Paper. They rejected the corrections made to the documents.

The first applicant averred, in the answering affidavit, as follows:

“I also wish to state that the recordings of Parliament, on the 25th of July 2017, must have been recorded and captured on video.

Surely, this Honourable Court has powers, which I do not have, of summoning both the video recording of what happened in Parliament which I notice the respondents do not refer to in their papers.”...,.

The interpretation and application of the provisions of section 328 of the Constitution, in the context of the effect of the principles on the amendment of the Constitution, disclose the invalidity of the passing of the Constitutional Bill in the Senate.

The process confirms the constitutionality of the conduct of the National Assembly....,.

Section 328 of the Constitution provides, in part:

“328 Amendment of Constitution

(1) In this section —

'Constitutional Bill' means a Bill that seeks to amend this Constitution;…,.

(2) An Act of Parliament that amends this Constitution must do so in express terms.

(3) A Constitutional Bill may not be presented in the Senate or the National Assembly, in terms of section 131, unless the Speaker has given at least ninety days' notice in the Gazette of the precise terms of the Bill.

(4) Immediately after the Speaker has given notice of a Constitutional Bill, in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings and through written submissions, and must convene meetings and provide facilities to enable the public to do so.

(5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two-thirds of the membership of each House.

(6) Where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16 —

(a) Within three months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and

(b) If it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted, without delay, to the President, who must assent to and sign it forthwith.”...,.

The amendment of different Constitutional provisions is not done by the same process.

An amendment of a provision other than Chapter 4, Chapter 16 and section 328 of the Constitution requires affirmative votes to be not less than two-thirds of the membership of each House of Parliament.

An amendment of a provision under Chapter 4, Chapter 16 and section 328 requires a referendum in addition to the special majority referred to in section 328(5) of the Constitution.

The Constitution thus follows the tradition whereby certain subjects are too important to be amended by a special majority in Parliament. This means that the issue of constitutional amendment is not an ordinary provision. It is one which enjoys special protection by the Constitution itself.

When interpreting section 328(5) of the Constitution, this underlying principle ought to be borne in mind.

INTERPRETATION OF SECTION 328(5) OF THE CONSTITUTION

The question for determination is whether section 328(5) of the Constitution requires that the amount of the votes in support of the Constitutional Bill must not be less than two-thirds of the total number of persons the Constitution declares that the House consists of. Does the subsection mean that the votes must not be less than two-thirds of the Members of the House who are alive and capable of voting at the time the voting is conducted?

The two Houses of Parliament interpreted the phrase “the membership of each House”, as used in section 328(5) of the Constitution, differently.

The National Assembly interpreted the words to mean the total number of persons the Constitution has declared the House to consist of as its Members. The Senate interpreted the phrase to mean the number of Members of the House who are alive and capable of voting at the time the vote on the proposed amendment to the Constitution is taken at the third reading.

The interpretation must take into account the language used, the context, the subject-matter, the purpose, and the object of section 328(5) of the Constitution. The Court must bear in mind that it is the Constitution it is construing.

Section 328(5) of the Constitution is a fundamental law which prescribes the procedural and substantive requirements for a valid amendment of the Constitution. It sets out an objective standard for the determination of the validity of the amendment. The words “the membership of each House”, as used in section 328(5) of the Constitution, refer to an element of the prescribed requirements of the objective standard for the measurement of the validity of the amendment of the Constitution which is peculiar to each House.

The requirement that the amount of the vote in favour of the Constitutional Bill must be not less than two-thirds of the membership of the House is applicable to votes by each House. The only factor of the requirement of the objective standard for the measurement of the validity of the proposed amendment which differentiates one House from the other, and relates to its membership, is the total number of persons the Constitution declares to be what each House consists of.

Section 120(1) of the Constitution provides that the Senate consists of eighty Senators, who become its members by being elected by the electorate in the manner prescribed. Section 124(1) of the Constitution provides that the National Assembly consists of two hundred and seventy Members, who are elected in the manner prescribed.

It is necessary to consider the meaning and purpose of other provisions of the Constitution that have a bearing on the subject of section 328(5) of the Constitution. No single constitutional provision may be taken out of its context and interpreted by itself.

The fundamental principle is that a Constitution is a mode of limited government, characterised by the apportionment and distribution of powers. The powers concerned must be exercised for the benefit of the people as a whole in accordance with the constitutionally prescribed procedures.

Section 117(2)(a) of the Constitution expressly provides that the power to amend the Constitution conferred on the Legislature must be exercised in accordance with section 328 of the Constitution.

Sections 120(1) and 124(1) of the Constitution are the laws governing the composition of the Houses. The contents of each provision provide the meaning of the words “the membership of each House”, as used in section 328(5) of the Constitution.

The subject-matter of section 328(5) of the Constitution is the objective standard for the measurement of the validity of the amendment.

As an element of the standard by which the validity of the amendment of the supreme law of the land is to be measured, the membership of each House has to be a constant element enjoying a degree of permanence. Considering the fact that amendment of section 328(5) of the Constitution is rendered more difficult by the requirements of section 328(9) of the Constitution, the membership of each House, in the context of section 328(5) of the Constitution, is a constant factor.

Section 138(1) of the Constitution provides that all questions proposed for decision in either House of Parliament are to be decided by a majority of the votes of the Members of that House present and voting.

The provision of a special procedure, under section 328 of the Constitution, for the exercise of the power to amend the Constitution, means that the procedure prescribed by section 138(1) of the Constitution is not applicable to the special process of amending the Constitution.

The exclusion of the procedure for deciding questions proposed for decision in either House of Parliament, prescribed in section 138(1)(a) of the Constitution, from the special process of amending the Constitution is evidence of the intention of the makers of the Constitution to protect the Constitution from fluctuating standards for the measurement of the validity of the amendment of the Constitution.

The effect of the contention by the respondents that the words “the membership of each House”, as used in section 328(5) of the Constitution, mean the total number of Members of the House who are alive and capable of voting at the time the vote is taken is the importation of the procedure prescribed by section 138(1)(a) of the Constitution into the special process of amending the supreme law of the land.

The interpretation of the words “the membership of each House”, as used in section 328(5) of the Constitution, to mean the total number of persons the Constitution declares each House to consist of is consistent with the object of the provision.

The purpose and object of the requirements of the procedure for the exercise of the power to amend the Constitution, prescribed by section 328(5) of the Constitution, is to ensure that the amendment of the Constitution is of common benefit to the people. The procedural and substantive requirements of section 328(5) of the Constitution ensure that there is representation of the people and protection of their interests in the process of the amendment of the Constitution.

In making the Constitution, and committing themselves to it as the supreme law of the land, the people imposed on themselves the obligation to accept an amendment of the Constitution effected by a vote in accordance with the standard of validity prescribed by section 328(5) of the Constitution.

The meaning of the words “the membership of each House” as the whole number of persons the Constitution has declared the House to consist of receives support from the provisions of section 344(3) and (4) of the Constitution. The section reads, in relevant part, as follows:

“344 Quorum and effect of vacancies in Constitutional bodies

(1)…,.;

(2)…,.;

(3) Any reference in this Constitution to the votes of —

(a) Half of the membership of a body whose membership is not a multiple of two;

(b) Two-thirds of the membership of a body whose membership is not a multiple of three; or

(c) Three-quarters of the membership of a body whose membership is not a multiple of four; is to be interpreted to mean that the number of votes must be not less than the whole number next above one-half, two-thirds or three-quarters, as the case may be, of the body's membership.

(4) Any reference to the total membership of Parliament is a reference to the total number of persons who, for the time being, are Members of Parliament.”

Counsel for the applicants argued that the Constitution maintains a distinction between section 344(4) and section 328(5).

He submitted that the Constitution must be interpreted purposively and not in the abstract.

He took the point further and argued that section 344 is not a substantive section. It is a definition section. There is a difference in the construction of the two. Any other interpretation would render section 328(5) meaningless. The provision is meant to make constitutional amendment difficult.

He finally argued that section 328 of the Constitution grades different provisions based on how important they are.

Counsel for the first, second, and third respondents a contrary view.

He argued that the first port of call is the definition of “Member of Parliament” in the Constitution. 'Membership' is derived from 'Member of Parliament'. Hence, in order to understand what “membership” means, regard has to be had to the definition of “Member of Parliament”. Membership depends on the construction of 'Member of Parliament'.

He further contended that the law does not allow for a vacuum.

The interpretation to be given to the provision must be one which best achieves the intention of the lawmakers.

Counsel for the first, second, and third respondents urged the Court to find, in respect of the Senate, that the relevant number is 79. He said the reason was that section 328(5) of the Constitution relates to “membership”, which is derived from “Member”. 'Member of Parliament' relates to a person who is alive and is able to carry out Parliamentary business.

Section 344(4) of the Constitution is related to sections such as section 109(1), which relates to a vote of no confidence in Government, section 114(2), which relates to the revocation of a declaration of war, section 113(2), which relates to the approval of a declaration of a State of Emergency, section 122(8)(f), which relates to the vacation of office by the President of the Senate, and section 126(8)(f), which relates to the vacation of office by the Speaker.

The provisions, which give substance to section 344(4) of the Constitution, show that its application is determined by the subject-matters to which the specific provisions relate and is confined to those provisions. The provisions of section 344(4) cannot be interpreted as giving meaning to section 328(5) of the Constitution. To the contrary, section 344(4) of the Constitution sheds light on what section 328(5) of the Constitution does not mean.

There is no provision which is similar to section 328(5) in the Constitution.

The contrast can be seen in section 113(6) of the Constitution, which provides:

“113(6) If, by a resolution passed by a majority of the members present at a joint sitting of the Senate and the National Assembly, Parliament resolves that a declaration of a State of Public Emergency —…,.”…,.

This provision relates to Members “present”.

The majority that carries the day depends on the Members actually present and voting.

Another example of a similarly worded provision is section 138 of the Constitution, which provides:

“138 Voting and right of audience in Parliament

(1) Except where this Constitution provides otherwise —

(a) All questions proposed for decision in either House of Parliament are decided by a majority of the votes of the Members of that House present and voting;…,.”

The provision under which the Constitution is amended does not relate to the presence of the Members. Its provisions are an exception referred to in section 138(1) of the Constitution.

It means that, in terms of section 328(5) of the Constitution, the controlling concept is the membership of the House, which relates to the total number of persons the House is declared, by the Constitution, to consist of. The number does not fluctuate since it is fixed by the Constitution.

It is a definite number.

When the provisions are contrasted, it becomes apparent that “the membership of each House”, as used in section 328(5) of the Constitution, does not mean persons who are, at any given time, Members of Parliament.

Section 328(5) of the Constitution has two references to membership of the House. The first relates to the exercise of the power to vote. The vote can only be cast by Members of Parliament who are present and voting. The second reference is to the objective standard for the measurement of the votes cast in favour of the proposed amendment to the Constitution. It is the requirement of that objective standard that the votes in favour of the proposed amendment must not be less than two-thirds of the membership of the House concerned.

For the purposes of the objective standard for the measurement of the validity of amendment of the Constitution, in terms of section 328(5) of the Constitution, the makers of the Constitution decided to fix the minimum threshold to be reached by the votes in favour of the proposed amendment by reference to the constant constitutive element of each House. They were free, in the exercise of the power of sovereignty, to do so. They were not under delegated authority, as the Legislature is.

Section 328(5) of the Constitution is not in conflict with any other provision of the supreme law. The matters it regulates are exclusive to its provisions.

“The membership of each House” is an essential element of the requirement of the objective standard fixed by the fundamental law. It is therefore binding on all Members of the House, individually and collectively, in the exercise of the power to amend the Constitution.

The people decreed, by the supreme law, that the validity of the exercise of the power to amend its provisions be determined by application of an objective standard, which takes into account the representation and the protection of their interests.

When searching for the true construction of a constitutional provision, a court must constantly bear in mind that its authors were not executing a delegated authority, limited by other constitutional constraints. They were establishing a fundamental law. To that extent, the people, in the exercise of the power of sovereignty, were intent upon establishing such principles as seemed best calculated to produce good government and promote public happiness. They did so at the expense of any, and all, existing institutions which might stand in their way.

The objective standard for the determination of the validity of the proposed amendment of the Constitution is applied to the amount of votes in favour of the amendment at the third reading. It is that vote which decides the question whether the Constitutional Bill is passed by the House concerned. Compliance with all the procedural requirements prescribed by section 328 of the Constitution is obligatory.

In enacting the provisions of section 328(5) of the Constitution, the people deliberately chose the formulation of the objective standard for the determination of the validity of an amendment of the Constitution. The objective standard subjects the votes in favour of the proposed amendment to a minimum threshold fixed by reference to the whole number of persons fixed by the Constitution itself as the anchor for the standard. The people settled for the formula prescribed by section 328(5) of the Constitution because they were satisfied that its application would secure the object of protection and promotion of their interests. It is a means of affording indirect popular participation in the process of amending the fundamental law.

Section 344(3) of the Constitution relates to provisions which use the formula for determining the validity of decisions on any questions for decision by the House by requiring the votes in favour of what is proposed to reach a minimum threshold fixed by reference to the membership of the body. The sub-section prescribes what should happen when “the membership of a body” is not a multiple of the denominator to the vulgar fraction to express the minimum threshold.

The words “membership of a body”, as used in section 344(3) of the Constitution, relate to the whole number of members the body is declared by the Constitution to consist of.

It is clear, from section 344(3) of the Constitution, that reference to the “membership of a body” in any provision of the Constitution is reference to the total number of persons the Constitution has declared the body to consist of.

It is important to note, for the purpose of the determination of the question before the Court, that section 344(3) of the Constitution refers to “the membership of a body” when used in the Constitution in reference to the votes of a constitutional body.

Section 328(5) of the Constitution falls into the category of provisions in which the formula fixing the minimum threshold for votes in favour of the proposed action by reference to the membership of the body concerned is used.

The words “the membership of each House” are used in section 328(5) of the Constitution in a constitutive sense to refer to what constitutes each House, as prescribed by the fundamental law. The words refer to what constitutes the full strength of each House.

The correctness of the construction of section 328(5) of the Constitution, linking the minimum threshold the votes in favour of the proposed amendment of the Constitution have to reach to the whole number of Members making up each House, as fixed by the Constitution itself, is supported by the provisions of section 344(4) of the Constitution.

Section 344(4) of the Constitution provides that any reference in the Constitution to “the total membership” of Parliament is reference to the total number of persons who for the time being are Members of Parliament.

The definition of the total membership of Parliament is given immediately after the provisions of section 344(3), where reference is made to “the membership of a body”.

The effect of section 344(4) of the Constitution is that where reference is made in a provision of the Constitution to the “membership of a body”, and that body is one of the Houses of Parliament, reference is not being made to the total number of persons who for the time being are Members of Parliament.

Section 332 of the Constitution defines “Member of Parliament” to mean a Senator or a Member of the National Assembly.

The people decided that the objective standard for the determination of the validity of an amendment of the Constitution should not include an essential element which would depend on the effects of unpredictable occurrences of such events as death or removal from office of Members of either House. This self-restriction in the Constitution serves to guarantee stability and respect for the established constitutional order.

The amendment of the Constitution must not be an easy process.

Section 328 of the Constitution prescribes the procedure for amending the Constitution, reflecting different degrees of difficulty depending on the provision sought to be amended. The amendment of the Constitution is a matter on which the public places a lot of importance. A swift and easy method of amending the Constitution would weaken the sense of security which the rigid Constitution gives. There would be too little distinction from the method for amending ordinary legislation. That would erode the special status of the supremacy of Constitutional Law.

The Constitution would not occupy the special place it occupies today in the country's legal system.

Changing provisions of the Constitution, without following the special procedure provided for in section 328, would expose the Constitution to passing interests. The idea reigns that solidity and security are the most vital attributes of a fundamental law. See BRYCE “The American Commonwealth” Vol 1…,.

The effect and substantive value of the foundational principle of supremacy of the Constitution is that, once ordained by the people, the Constitution and its provisions bind the people themselves. The people must respect and obey the dictates of what has been done by Parliament within the ambit of the limited powers they would have conferred on it and in accordance with the procedure they would have prescribed for its conduct.

Democracy is a limited form of government. The principle of supremacy of the Constitution is to the effect that, once the people have given the representatives they would have put in Parliament, the power to make the final decision by the prescribed amount of votes in favour of the amendment of the Constitution in accordance with the prescribed procedure, they would have bound themselves to accept the amendment as being in the common interests of the entire people.

Therein lies and governs the principle of the rule of law.

It is to the effect that law is the master to be obeyed by the State, every person, and every institution and agency of Government at every level.

When a Member of a House of Parliament casts a vote in favour of the proposed amendment to the Constitution, he or she is discharging a democratic mandate. He or she is not casting the vote for personal interests. The principle of representative democracy guarantees every Member of Parliament not only freedom in the exercise of his or her mandate but also equal status as a representative of the entire people.

In principle, each House complies with its function as a body of representation in its entirety. The law does not differentiate votes in favour of the proposed amendment to the Constitution according to the political affiliation of the Members casting the votes. The voter acts as a Member of the House who is required to act in accordance with his or her conscience within the confines of the duties of the office of membership.

The fact that a political party with a majority of Members of Parliament manages to secure the requisite special majority of two-thirds of the membership of the House to amend the Constitution does not change the fact that, at law, the affirmative votes for the amendment of the Constitution represent the entire citizenry.

The reason is that, although cast by an individual, the vote is an exercise of the power belonging to Parliament as a constitutional body established for the purpose of exercising legislative authority for the common good of the entire people. The people established Parliament as a means by which they would exercise, through representatives, the legislative authority they vested it with for their common interests. The Constitution creates a representative democracy, under-girded by the doctrine of separation of powers.

The interpretation of section 328(5) of the Constitution must seek to give effect to the fundamental values on which a republican form of government is founded.

Section 328 of the Constitution does not only prescribe the procedures that those entrusted with the power to amend the fundamental law have to keep in mind and bear the obligation to act according to their requirements in the exercise of the power. The duty-bearers must also appreciate the rationale behind the limitation on the exercise of the power conferred on them in the context of the dynamism of the relationship with the people. They have to appreciate the legal consequences of failure to act in accordance with the procedures prescribed by section 328 of the Constitution.

ANALYSIS OF THE FACTS

NATIONAL ASSEMBLY

The parties agreed that the applicable figure with regards the National Assembly is 270. They agreed that two-thirds of that number is 180.

The agreement was based on the interpretation of section 124(1) of the Constitution which provides for the composition of the National Assembly.

The question was whether the applicants established, on a balance of probabilities, that there was no vote in Parliament.

The cause of action, as pleaded, was the alleged complete failure by the Speaker to conduct voting proceedings in the House to enable the Constitutional Bill to be passed. In the same breath, the applicants accepted that the voting did take place.

The cause of action, on this version of pleadings, was that the votes cast in favour of the Constitutional Bill failed to reach the minimum threshold of 180 votes required by the provisions of section 328(5) of the Constitution.

The finding of the facts in issue depended on the finding on the accuracy of the sources of information produced as evidence by the parties.

It is necessary to make a finding on the credibility of the evidence adduced by the parties.

Counsel for the applicants argued that the unrevised Hansard and the Order Paper showed that the votes in favour of the Constitutional Bill did not reach the required minimum threshold of 180. He said the 182 votes relied upon by the respondents to prove compliance with the procedural and substantive requirements of section 328(5) of the Constitution included Members who were in Uganda on official duties and those who were absent for undisclosed reasons.

When asked why the records of Parliament were later corrected, counsel for the applicants argued that the “correction” was not a correction; it was a “creation” because the error in the original documents had not been identified. He went on to argue that “the so-called correction” went to the substantive business of Parliament.

He said it introduced a record that differed materially from the one reflective of the contemporaneous objections made by the first applicant during the proceedings of 25 July 2017.

The contention was that the correction was designed to cover up the irregularities in the proceedings conducted by the Speaker.

Counsel for the first, second, and third respondents took the view that there was compliance with the Constitution.

He argued that the applicants' cause of action was premised on the un-revised Hansard and Order Paper, documents subsequently lawfully corrected. He argued that the amended documents of Parliament remain extant until they are set aside. He reasoned that there was a need for an application for a declaration of invalidity of the amended documents because they are an official record of Parliament.

The contention was that there was nothing in the applicants' case on which reliance could be placed for rebuttal of the presumption that the contents of the official documents in the revised version represent the truth.

The Court noted that the applicants produced documents, the contents of which supported some of the averments they made. The respondents did not take issue with the authenticity of the documents produced by the applicants to support their case. The second respondent accepted that the documents were authentic.

The point of departure was that the second respondent took the view that the documents relied upon by the applicants were inaccurate. They were subsequently lawfully corrected. The applicants, on the other hand, rejected the corrections made to the documents, describing them as “creations”.

The evidence showed that the Hansard recorders recorded at ten minute intervals. In addition, there was an audio recording of proceedings. There was also a video recording process which was contemporaneous with both the manual and audio recordings. A closer analysis of the scenario suggests that Parliament had realised that it could not rely on the Hansard recorders' record only. The fact that there were contemporaneous audio and video recordings of the proceedings was an indication of the fact that there was an acceptance of the fact that a manual recording process is potentially inaccurate.

It was difficult to understand why the applicants sought to rely on the manual recording of the Hansard recorders, which was the basis of the unrevised Hansard. It is the audio and video recordings which are used to correct the un-revised Hansard record so that it reflects accurately what transpired in the National Assembly.

The second respondent stated that the un-revised Hansard and the Order Paper used by the applicants were corrected in terms of Standing Order 131. The applicants did not deny that those documents could be lawfully corrected in terms of Standing Order 131.

Standing Order 131 provides that:

“…, if the numbers have been inaccurately reported or an error occurs in the names of the division lists, the chair, on being informed of such errors, must order the Journal of the House to be corrected.”

Standing Order 199, on the Journal of the House, provides:

“199 (1) The Clerk must produce the Votes and Proceedings of the House which must be printed and distributed to Members from day to day.

(2) The Votes and Proceedings so printed, bound, and signed by the Speaker, must constitute the Journal of the House.”

KATHERINE SWINTON, in an article titled “Challenging the Validity of an Act of Parliament: The Effect of Enrolment and Parliamentary Privilege”, Osgoode Hall Law Journal, Vol 14, No.2 (October 1976)…, while writing on Parliamentary practice, said:

“Therefore, the enrolled copy of an Act would appear to be the original copy retained by the Clerk of the Parliaments. This makes no reference to the number of votes recorded nor the number of readings in the passage of the bill, showing only that the House of Commons and Senate passed the bill and royal assent was recorded on stated dates.

To learn of the exact number of votes in favour of a bill and the number of readings, it is necessary to refer to the Journals of the respective Houses or to Hansard.

The Journals are the official record of the proceedings of the House. They are compiled daily from the 'scroll' of the Clerk. The scroll, in reality, foolscap sheets written in longhand by the Clerk, records the events of the House, whether the tabling of documents, the readings of a bill, or the votes on a bill or an amendment.

The Journals made up from the scroll are more comprehensive, as they include the text of amendments and the results of recorded divisions, as well as the date of royal assent to bills, the Speaker's rulings on procedure and questions of privilege, and the text of royal recommendations.

According to BEAUCHESNE, any conflict between the scroll and the Journals would be solved by reliance on the Journals.

The Journals do not serve the same purpose as Hansard, although there is some slight degree of overlap in their content.

Hansard records the verbatim proceedings of the House, that is, the speeches and comments in the Chamber. The Journals are much more cryptic and are similar to minutes of a meeting. Their judicial treatment is also potentially different: the Journals are admissible evidence, whereas Hansard is normally excluded.

In practice, it may be that the Journals can rarely be admitted due to Parliamentary privilege, but, they are at least potentially open to judicial scrutiny.”…,.

When the second respondent produced documents that corrected some of the errors, it was incumbent on the applicants to rebut the respondents' version by tendering evidence which showed that the respondents' version of events could not be possibly true.

In paragraph 58.4 of the first applicant's answering affidavit, he averred:

“This is why, even at this late stage, the second respondent has failed to produce affidavits from the two Honourables Mabuwa and Marapira to prove that they were in Parliament. They were not. I do not recall seeing them there and the Hansard confirms this.”

The second respondent denied the averment and produced documents that proved that the two Members were in the House during the time the voting for the proposed amendment of the Constitution was conducted.

It was not for the second respondent to prove the presence of the Members concerned. It was for the applicants to prove their absence.

The applicants obtained an affidavit from the Honourable Brian Tshuma, who said that at the relevant time he was away in Uganda on Parliamentary business.

That fact did not take the applicants' case any further.

It was confirmed by the corrected record of proceedings.

The applicants did not allege that they had correlated the manual recording and the audio recording in order to verify the accuracy of what the respondents alleged. On the other hand, the second respondent took the trouble to go through the audio recording in order to satisfy himself that the unrevised Hansard tallied with it. As a result of the process, the second respondent made corrections to the master copy of the un-revised Hansard to create documents that accurately reflected what transpired in the House on 25 July 2017.

The applicants cannot deny the correctness of the audio recording without themselves having correlated their unrevised Hansard to the audio recording.

One cannot deny the correctness of a superior recording mechanism on the strength of a document prepared using a potentially inaccurate method of recording without first verifying the contents of the more superior method of recording.

Before criticising the revised Hansard, the applicants needed to correlate the manually prepared Hansard with the audio recording.

The version backed by the evidence with more probative value is the one to be preferred.

The probative value of evidence is impacted upon, negatively or positively, as the case may be, when regard is had to the manner in which the evidence was compiled. The documents produced by the second respondent are corroborated by the audio recording, the more accurate of the means of recording.

The Court would lean towards the party who took the trouble to revisit the audio recording.

The National Assembly is a creature of the Constitution and it is one of the constituent parts of Parliament. There is a presumption of constitutionality as regards the conduct of business of the House. It has been said that the presumption is in favour of every legislative act, and that the whole burden of proof lies on the party who denies its constitutionality: Brown v Maryland 25 US 419, 436 (1827); Lawrence v State Tax Commission of Mississippi 286 US 276, 283 (1932).

Having made the finding that the revised Hansard is the true record of what ensued in the National Assembly, regard must be had to the contents of the revised Hansard in an effort to establish whether or not a vote did take place in the House.

View Appeal
HH321-17 : NORMAN MAFERERA vs SUSAN JANUARY
Ruled By: MATANDA-MOYO J

The plaintiff instituted eviction proceedings against the defendant before this court. He claimed for the eviction of the defendant from Stand No.936 Glen Norah Township, Harare and holding over damages of $330 per month from the date of summons to date of vacation. The plaintiff also sought an order for costs on a higher scale.

The plaintiff claimed that he is the owner of Stand 936 Glen Norah Township and that the defendant is unlawfully occupying the premises.

The defendant opposed the claim on the basis that she is lawfully occupying the property; it being owned by her late father, Bafion January.

The defendant claimed that the initial transfer of the property to Chabuka was done fraudulently, and, hence, any subsequent transfer should be declared null and void.

She denied that the plaintiff is entitled to any holding over damages.

She prayed that the plaintiff's claim be dismissed with costs.

At the pre-trial conference, the issues referred for trial were as follows;

(a) Whether or not the plaintiff is the lawful owner of Stand No.936 Glen Norah Township, Harare.

(b) Whether or not the plaintiff is entitled to holding over damages, and, if so, the quantum thereof.

The plaintiff led evidence on his own behalf. His evidence was that he bought the property from a Mr Felix Katsvamutima Shamuyarira in 2013 for $20,000. At the time of purchase, the property was in the name of Bafion January. At City of Harare there were documents indicating the property had been sold by Bafion January to Felix Katsvamutima.

This witness was advised that the property had to be transferred from Bafion January to Felix Katsvamutima before any transfer to him could be done. Mr Katsvamutima had the property ceded to him, and, thereafter it was ceded to the plaintiff. The rates and water bills were also changed to reflect the plaintiff's name.

The plaintiff insisted that as the owner of the property he was entitled to vindicate his property from the defendant.

The plaintiff said he wanted holding over damages in the sum of $330 per month from date of summons. He testified that the amount was the average rentals payable by tenants in that area.

Under cross-examination, the plaintiff said Felix Katsvamutima bought the house from Bafion January in 1991.On being asked why he failed to take cession of the house for so long this witness said Felix Katsvamutima informed him that he (Katsvamutima) had lost the documents pertaining to the property.

He also mentioned that Bafion January's two children, who witnessed the sale, did not appear on the house card kept at Council but the defendant's name appeared on the card.

When questioned whether he was aware that he bought property acquired fraudulently, this witness responded that if it were so the defendant would have made a police report.

This witness testified that the purchase price was only released to Mr Katsvamutima after cession had passed.

Felix Elijah Shamuyarira testified that he bought the property in question from Bafiona January in 1991. He explained that he grew up using his mother's surname, Chabuka. He later changed his name to his paternal one. Shamuyarira.

He produced documents to that effect.

When he purchased the house, he explained that Ellen Manyanga (Bafion January's ex-wife) and her brothers were in occupation of the house. They indicated they wanted to buy back the house from him. Ellen Manyanga and Bafion January had divorced when the house was sold to Felix Shamuyarira.

This witness only changed ownership with the Council on 3 October 2013. He explained that the delay in transferring property was due to lost documents. He only recovered the documents in 2012. He admitted that he sold the property to the plaintiff before changing ownership into his name. He testified that the sale was above board. Officials from the City council and he even visited the house and met with the defendant, who did not raise any objections when told that the house had been sold. The defendant even assisted this witness in evicting her uncles from the property. It was only after such eviction that the defendant moved into the property.

Under cross-examination, Felix Elijah Shamuyarira denied that he changed his name in order to steal the house. He insisted he bought the house and later sold it to the plaintiff who is the current owner of the house.

Susan Matanhire testified that she was a neighbour to the late Bafion January. Sometime around 2012 she was told that a letter had been received from Felix Elijah Shamuyarira who wanted to know the persons residing at the property. She sent word to the defendant who was then in the rural areas. The two proceeded to Felix Elijah Shamuyarira's offices. Felix Elijah Shamuyarira offered to assist the defendant to evict her uncles who were residing at the property. Thereafter, he indicated the keys were to be brought to him. This witness testified that after the uncles were evicted the defendant moved in.

Felix Elijah Shamuyarira was not happy with the move.

This witness and the defendant approached Felix Elijah Shamuyarira and requested him to assist in recovering documents from one Rashiwe. Felix Elijah Shamuyarira retrieved the documents. This witness heard from the defendant that the bills were coming in the name of Chabuka. After two months, bills were in the name of the plaintiff.

Under cross-examination, she admitted she would not know whether the property was sold or not as she was only a neighbour.

Winnie Musendekwa testified that the defendant updated her on developments relating to the property. She admitted that the defendant advised her that (she), the defendant, had been called by Felix Elijah Shamuyarira to discuss about the property. The defendant refused to go in the absence of her older siblings. This witness testified that she advised the defendant to check with the City Council on whether the property was sold. The defendant advised her that the file could not be located. This witness said she knew Bafion January divorced his wife and there was a court order which directed that the house was to be sold and money generated from the sale was to be shared between the two. However, she testified that Bafion January's wife was given money to pay off Bafion January.

She had no knowledge of how the house documents ended up with Felix Elijah Shamuyarira.

Under cross-examination, she admitted she was not aware of the house being sold. She admitted the estate was not registered.

The defendant testified that the property in question belongs to her late parents. In 2012 she was shown documents by Felix Elijah Shamuyarira that the property was sold to Chabuka in 1991. She first met Felix Elijah Shamuyarira at his offices in response to a letter he had written enquiring on residents at the property. Felix Elijah Shamuyarira was worried about the ballooned City Council bills. She said it was clear Felix Elijah Shamuyarira was not Chabuka. They discussed and Shamuyarira indicated that he would evict the persons occupying the premises. He stressed, though, that the keys were to be handed to him. Those persons were later evicted and the defendant moved into the house.

In January and February 2013 this witness noticed that Council bills were in the name of Chabuka. In March, the bills were reflecting the plaintiff's name.

Under cross-examination, she insisted that Bafion January could not sell the house without his wife's consent, hence the sale was fraudulent. She agreed that whilst the signature of Bafion January, appearing on the Agreement of Sale, was similar to that on the certificate of occupancy she still believed the agreement was forged. She admitted her parents were divorced then. She also admitted that the house was never part of her father's estate. When her mother passed on the house was also not registered as part of her mother's estate.

Analysis of Evidence

From the evidence led, it is common cause that the late Bafion January and his late wife had divorced – Harare Community Court case No.1098/90 refers.

According to that order, the house was to be sold with Bafion January's late wife getting two thirds from the proceeds.

The late Bafion January indeed sold the house to Mr Felix K Chabuka. The late Bafion January instructed his lawyers, Gutu and Jakachira, to defend any proceedings in relationship to the sale. The late Bafion January wrote a letter to that effect to his then lawyers on 23 April 1991. The lawyers had advised the late Ellen Manyanga, through a letter dated 10 April 1991, to collect her share of the money amounting to $3,333=33.

On 23 April 1991, the late Bafion January was responding to a letter from his lawyers that his late wife had the intention to buy the late Bafion January's share of the property.

This then bolsters the plaintiff's version that the said F.K. Chabuka delayed getting transfer in order to allow the late Bafion January's wife to buy back the property.

No evidence was placed before me, by the defendant, to prove that the late Ellen Manyanga bought back the property.

The defendant suggested that Mr Shamuyarira was not the same F.K Chabuka appearing on the Agreement of Sale. She made bold assertions that the said F.K. Chabuka was deceased. To that end, she suggested Mr Shamuyarira was a fraudster intending on defrauding her of the property.

Mr Shamuyarira, in rebuttal of such evidence, produced his birth certificate which showed that his birth certificate was initially registered with the names Felix Katsvamutima Chabuka. The surname was later altered to Shamuyarira from Chabuka; birth entry HRE6303/68 refers.

I am of the view that Mr Shamuyarira did manage to show that Felix Elijah Katsvamutima Chabuka and Felix Elijah Katsvamutima Shamuyarira is one and the same person.

The defendant's suggestion, that Mr Shamuyarira was not the same Chabuka who bought the property, falls away.

Of course, the mere fact that the agreement was concluded in 1991 and transfer only taken in 2013, some twenty two years later, required some explanation.

Mr Shamuyarira explained that, initially, he could not take title to the property as the late Bafion January's wife had wanted to buy back the property.

As I observed above, that has been corroborated by letters produced to that effect from the late Bafion January's lawyers. I have no reason to disbelieve that.

Mr Shamuyarira also explained that the documents were lost as their offices were burnt and they had to move offices. He stumbled upon the documents later.

The Agreement of Sale was produced before the court.

I took note that the signature appearing on the agreement resemble that of the late Bafion January. In any case, no plausible evidence was produced to show that the agreement was forged.

The suggestion was simply an attempt by the defendant to hold on to a property she knew was sold.

I do not, therefore, agree with the defence by the defendant that the property belongs to her late parents.

The evidence before me shows that the defendant's late father sold the house to F.K. Shamuyarira (then Chabuka). Evidence also shows that the said F.K. Shamuyarira paid for the property in full. The late Ellen Manyanga's two thirds share of the proceeds was deposited into Gutu and Jakachira lawyers' trust account.

That sale was lawful.

The plaintiff gave his evidence well. His evidence was simple and straight forward.

He testified that he bought the property from F.K Shamuyarira. F.K. Shamuyarira agreed that he sold the property to the plaintiff. Both parties agreed that the purchase price was paid in full. It is also common cause that cession was done to the plaintiff.

The plaintiff is the owner of the property.

On the other hand, the defendant's witnesses were not very useful. Their evidence did not deal with the crux of the matter; that is, that the late Bafion January did not sell the property.

The defendant's first witness admitted she had no knowledge of whether the property was sold or not. Equally, the defendant's second witness's testimony was speculative. She only said if the house was sold she would have known. She never said she had information that the house was not sold.

It also baffles one's mind why the defendant would not have reported to the police if she had evidence of fraud.

The defendant's evidence was also fraught with inconsistencies. For example, when she was called by Felix Elijah Shamuyarira to his office, where she admitted Felix Elijah Shamuyarira was concerned with the ballooned bills from City Council, she failed to explain why Shamuyarira would want to assist her and why he would be concerned with the high bill if he was not the owner. She never alleged she knew Shamuyarira before. She also failed to explain why she was supposed to surrender the keys to Shamuyarira.

The probable conclusion is that the plaintiff's version of events is the correct one.

Felix Elijah Shamuyarira called her to explain that he had bought the property and needed vacant possession of the same. The defendant's conduct, from 2012 to date, is not consistent with that of a person who believed there was a fraud.

From the evidence, I am of the view that the facts are that the property was sold to F.K. Chabuka in 1991 and F.K. Chabuka, now F.K. Shamuyarira, sold the property to the plaintiff.

View Appeal
HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

The plaintiff sued the defendant by way of summons for the following relief;

(a) An order evicting the defendant and all those claiming occupation through him from the plaintiff's premises known as Number 20 Saint Stephens Road, Meyrick Park, Harare;

(b) Holding over damages in the sum of $500 per month with effect from 1 November 2011 to date of vacation or eviction; and

(c) Costs of suit on a legal practitioner-client scale.

The plaintiff alleged that he is the owner of Number 20 Saint Stephens Road, Meyrick Park, Harare which is described as Stand 3206 Marbelreign Township 17 of Greeba of Mabelreign measuring 1,065 square metres, held under Deed of Transfer 4941/2011 dated 18 October 2011. The defendant is in occupation of that property. As a result of such occupation by the defendant, the plaintiff alleged he is suffering $500 per month holding over damages from 1 November 2011. The $500 represents the amount the plaintiff would realize from renting out the above property.

The defendant disputed the plaintiff's ownership of the property. The defendant, instead, claimed ownership of the property.

It is the defendant's case that if the plaintiff indeed holds title to the property then such title would have been fraudulently acquired. The defendant denied having transferred his property to the plaintiff nor to any other person. Instead, the defendant pleaded that he borrowed $19,000 from a certain Frank Buyanga. He was made to sign a purported Agreement of Sale in respect of the property, hence, after the defendant failed to settle the debt, Frank Buyanga sold the property to Gildastone Holdings (Pvt) Ltd who have a pending eviction matter before the Magistrates Court against the defendant. It is the defendant's case that if indeed the plaintiff purchased the property, then he was and is not a bona fide purchaser.

The defendant denied being liable for holding over damages, insisting he was the owner of the property, and also denied that the plaintiff was entitled to costs on a legal practitioner-client scale. He also prayed for dismissal of the plaintiff's claim with costs on a higher scale.

Without replicating, the matter was set down for pre-trial conference. The issues for trial were as follows;

1. Whether or not the defendant has a defence to the plaintiff's claim;

2. Whether or not the plaintiff is entitled to recover holding over damages in the sum of $500 from 1 November 2011 to date of eviction; and

3. Whether or not the plaintiff is entitled to costs on a higher scale of legal practitioner and client.

Mr Mosley Mashingaidze testified that he is a Logistics Manager for a transport company based in DRC. He testified that he is the registered owner of Stand 3206, Mabelreign Township. He produced the title deed which is in his name; namely, Deed of Transfer number 004941/2011. The transfer was done on the authority of High Court Order 3931/11 dated 19 July 2011. He said he bought the property for $55,000. Receipts to that effect were produced.

The plaintiff testified that he entered into an Agreement of Sale with Goldastone Holdings (Pvt) Ltd. The sale was concluded through Floburg Real Estate agents. This was after the sale of the property was advertised through the newspapers. He then sent his sister to view the house. Thereafter, he also came over to view the property. The property was occupied then and so he was able to view the house. No one told him that there was a dispute in relation to the property. The defendant was in occupation of the house at the time of viewing.

Around April 2010, two or three months after purchasing the property, this witness learnt that the defendant was claiming ownership to the property. To his surprise, the defendant sat back and did nothing to assert his purported rights.

On holding over damages, this witness testified that he had not been able to occupy his property as the owner. The defendant, without just cause, continued in occupation. The defendant has not been paying rentals.

The house in question comprises of 3 bedrooms, 2 toilets, dining room, lounge and a verandah. The market rentals for such property is $500 per month. This witness also added that no mention of Frank Buyanga was ever made in these transactions.

Under cross examination, this witness said whilst it is true that at some point the defendant paid rentals through Nyamushaya, Kasuso and Rubaya Legal Practitioners, he had not presented such proof in the form of receipts. He insisted the defendant paid such rental for two months.

On being questioned on the existence of a court order cancelling the sale from the defendant to Lalapanzi, this witness said since he was not party to the proceedings he was unaware of the court order cancelling the sale from the defendant to Lalapanzi. He insisted he was not aware of the participation of Frank Buyanga in these matters.

On re-examination, this witness denied knowledge of Frank Buyanga nor one Akim Ndlovu.

The defendant opened his case by calling Mr Cheza, the Client Services Manager for the Zimbabwe Revenue Authority.

He testified that during the course of his duties he received a request from the defendant's lawyers to confirm whether the transfer to the plaintiff of the property in question passed through his office. He confirmed transfer to Lalapanzi did not exist in their records. There was no record of the defendant having paid capital gains tax. In fact, he said he failed to get any records pertaining to the transfer.

Under cross-examination, he confirmed he has been working for the Zimbabwe Revenue Authority (ZIMRA) since 2001 and in the present capacity since 2014. He clarified that his evidence was to the effect that no records were found. He could not say for sure that the parties did not deal with the Zimbabwe Revenue Authority (ZIMRA). He admitted it could be a question of mis-filing. He confirmed transfer could not be effected without proof of payment of capital gains tax.

Under re-examination, he maintained his position that it was possible that documents were lost at the Zimbabwe Revenue Authority (ZIMRA).

The defendant testified that no evidence was led by the plaintiff to show capital gains tax was paid by the defendant to the Zimbabwe Revenue Authority (ZIMRA)....,.

The defendant called Mr Cheza from the Zimbabwe Revenue Authority (ZIMRA). His evidence did not take the matter any further. He could not say for sure capital gains tax over the property was not paid for. There was no evidence from him that the Zimbabwe Revenue Authority (ZIMRA) was indeed following up on unpaid capital gains tax. Although he said no records pertaining to the sale of he property in question were found, he did not rule out misfiling. In any case, this witness was not employed within that department responsible for capital gains tax at the time of the transfer. Someone else could have handled the assessment of capital gains.

However, this witness admitted that without a capital gains tax certificate, transfer would not have gone through.

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

This is an application for stay of execution.

The first respondent was an Executive Dean in the Faculty of Commerce and Law of the applicant. At the end of his fixed term contract as Dean, a dispute arose on his status. The parties failed to agree on whether he automatically assumed his former post or whether his contract of employment was terminated.

Conciliation failed and the matter was referred to arbitration.

On 10 January 2011, the applicant was ordered to reinstate the first respondent as a Senior Lecturer, and, in the alternative, to negotiate his exit package in lieu of reinstatement. It was further directed that they approach the arbitrator if they failed to agree on the exit package.

On 2 February 2011, the applicant noted an appeal to the Labour Court against the arbitral award and applied for interim relief seeking the suspension of the award pending the appeal.

While these were pending in the Labour Court, the first respondent requested for the quantification of the exit package in lieu of reinstatement.

On 22 August 2011, the arbitrator quantified the amount in the sum of US$77,302.

On 26 September 2011, the applicant filed a combined application for review and an appeal with the Labour Court against the quantification.

On 27 September 2011, the first respondent, on notice to the applicant, applied in the High Court for the registration of the arbitral award. He served the applicant with the application for registration of the arbitral award on that date.

The applicant did not oppose the registration.

Instead, aware of the application in the High Court, it filed an urgent chamber application in the Labour Court, on 5 October 2011, seeking interim relief for the suspension of the arbitral award of 22 August 2011. The interim relief was granted by the Labour Court on 31 October 2011.

In the meantime, the award was registered by the High Court on 15 November 2011.

On 26 January 2012, the second respondent served a Notice of Attachment to remove the applicant's property for execution without any notice period.

The applicant launched the present application on 27 January 2012. I set it down for hearing on 1 February 2012.

The first respondent raised four preliminary points contesting the urgency of the matter.

I deal with each in turn.

(i)...,.

(ii)...,.

(iii) The third was that the applicant was coming to court with dirty hands.

The dirty hands policy was set out with clarity in Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity and Ors 2004 (1) ZLR 538 (S). The rationale for the rule being that a court of law cannot connive or condone open defiance of the law and that citizens are obliged to obey the law and argue afterwards.

The third preliminary point was based on the fact that when the Deputy Sheriff went to execute on the registered High Court order, the applicant stopped him by waving the interim relief granted by the Labour Court suspending the operation of the arbitral award pending appeal. The applicant proceeded to remove the items from the reach of the Deputy Sheriff before he could attach the property.

The contention by counsel for the first respondent was that the applicant deliberately frustrated the Deputy Sheriff from effecting a High Court order and thus acted in defiance of the High Court order.

As pointed out by GOWORA J, in Dhlodhlo v Deputy Sheriff Marondera & Ors HH76-11, it was improper to expect the Deputy Sheriff to choose sides by interpreting the law.

It was up to the applicant to bring an application such as the present to stop execution rather than defy the implementation of judgment that it did not oppose.

If the averment was correct, it is clear that the applicant had dirty hands.

Counsel for the applicant, however, argued that whether or not the Deputy Sheriff was stopped from attachment was a question of fact proved by evidence of his return of service.

In the absence of the return of service, or an affidavit from the second respondent, I am not prepared to non-suit the applicant.

I therefore dismiss the third preliminary point.

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

These are twelve cases, which were consolidated into two matters, which were heard at the same time.For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita ...

These are twelve cases, which were consolidated into two matters, which were heard at the same time.

For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita Maseko.

The other matter involved what may be called the National Housing Fund (“NHF”) houses ((seven (7) defendants under HC2225/08). The seven defendants being Loida Nyathi, Everson Ndebele, Collen Ndebele, Phindile Ncube, Sihlobo Sibanda, Shadreck Ndlovu and Stephen Ndlovu.

The trial lasted twelve days, which is understandable, considering that there were two witnesses for the plaintiff and twelve (12) witnesses for the defendants i.e. all the defendants.

Two of the defendants had died by the time the trial commenced, and they were substituted by the executrix of their estates.

There was a bundle of documents with slightly over four hundred (400) pages as well as some more documents which were later introduced during the course of the trial. However, a closer analysis will show that the issues are fairly simple, and are similar in the seven National Housing Fund (NHF) houses and the five ZimSun houses.

Basically, it boils down to this:

(a) Is the plaintiff the owner of the twelve houses in question, or are the defendants the owners?

(b) If the plaintiff is the owner, then the plaintiff is entitled to an order for:-

(i) Evicting the defendants.

(ii) Damages.

(iii) Costs of suit.

(c) If the defendants are the owners, then they are entitled to transfer of these houses into their names with an order for costs against the plaintiff.

In essence, the defendants have to prove that there were valid contracts of purchase in respect of each of the houses in dispute. The houses concerned are the following:

Loida Nyathi - House 4251
Everson Ndebele - House 4255
Collen Ndebele - House 4247
Phindile Ncube - House 4242
Sihlobo Sibanda - House 4246
Shadreck Ndlovu - House 4241
Stephen Mpofu - House 4244
Alice Ndlovu - House 4403
Sivumo Ndlovu - House 4401
Smolita Maseko - House 4408
Kambashu Zex Raura - House 4407
Fred Khumalo - House 4400

All these properties are at Chinotimba, Victoria Falls.

Cut to the bone, in all instances, the plaintiff claims that these are pool houses for use by plaintiff employees. The plaintiff contends that the defendants were given these pool houses by virtue of their employment with the plaintiff. It further being contended that upon termination of such employment, each individual defendant will cease to occupy the property in issue.

This position does not apply to one of the defendants, Stephen Mpofu, who was never employed by the plaintiff. His case is different but the bottom line is that he was granted occupation through a lease.

Of the twelve defendants, only two, namely, Sihlobo Sibanda and Smolita Maseko are still in the employ of the plaintiff.

As alluded to above, the defendants' counter claim is for an order directing the plaintiff to take all necessary steps to transfer the various stands to each defendant on the basis that the defendants purchased the Stands on a rent-to-buy scheme.

This is denied by the plaintiff.

It is beyond dispute that these properties in issue are registered in the name of the plaintiff. The plaintiff is the registered owner of these twelve Stands. This point is admitted in paragraph 2.3 of each of the defendants' plea under HC2225/08 and paragraph 2.5 in each defendants' plea under HC2224/08.

There are documents from the Ministry of Local Government (“Ministry”) dated 20 July 2000 (pages 45 and 55 of the bundle of documents) which evince the transfer from the Ministry to the plaintiff.

This creates a problem for the defendants who contend the Stands still belong to the Ministry.

They, however, did not take any legal action against the Ministry to prevent the transfer of the Stands from the Ministry to the plaintiff. Be that as it may, I propose to consider the evidence adduced by the parties in turn.

Phillip Ndlovu

He testified on behalf of the plaintiff. He evinced that he has been the Chamber Secretary of the plaintiff since 2006. Whilst he was not employed by the plaintiff in the 1980s or 1990–1992, when most of the events occurred, from the official records available to him, and from his own investigations, the plaintiff was the legitimate owner of the houses in dispute.

He said that the defendants obtained the houses in question from the plaintiff, because of their employment with the plaintiff or because they were quasi-employees of the plaintiff such as Government teachers working at the plaintiff's schools.

In the case of Stephen Mpofu, he obtained the house because the plaintiff had previously made available accommodation to him. It is his testimony that there was a shortage of houses in Victoria Falls during the 1980s, 1990s and to date. This is evinced by documents like the minute from the parent Ministry dated 15 September 1997 produced as evidence. There are various Council deliberations and resolutions captured in the minutes filed of record which confirm the shortage. Such deliberations and resolutions centered around the necessity to provide the plaintiff's employees with accommodation.

There is a memorandum which goes further to explain that some employees were living in toilets on account of the shortage of houses. The National Housing Policy Frameworks for Zimbabwe: A Review of the Policies and Strategies, confirms the shortage.

The defendants also confirm the shortage and concede that they had to wait for some years before they were allocated the houses.

He said there must have been a connection between the defendants' employment with the plaintiff and the allocation of the houses.

This is an independent witness who spoke of matters which related to his professional responsibilities. He was expounding to the court what he knew and observed from the official records. He has no personal interest to pursue and no hidden agenda.

This is in stark contrast to the defendants who had an obvious massive financial interest in the outcome of this case, namely, to retain the houses which they had been informed, as early as 1993, were not theirs, but were in fact pool houses of the plaintiff.

This witness confirmed that all these disputed houses were registered in the name of the plaintiff. This is important as such registration is matter of substance and not form.

He explained that there were attempts to assist the plaintiff employees to acquire houses through CABS finance. These initiatives came to naught because they required the plaintiff to pay cash deposits on behalf of its employees. As the plaintiff is a creature of the Urban Councils Act, section 148 of the Act made such initiatives impossible.

The plaintiff could only act as a guarantor to the employees and not pay cash deposits on their behalf. In such an event, the plaintiff would still require ministerial approval. There is no record of such approval.

He also significantly testified that none of the defendants has written agreement evincing that they have become owners of these houses.

According to the plaintiff's record, there is nothing that shows that ownership of the houses was passed to the defendants. The defendants paid security deposits and monthly rentals and allied charges but not purchase prices for the houses.

The records clearly show that these are pool houses for use by those in the plaintiff's employ.

All the defendants were given notice to vacate these pool houses after they were allocated residential Stands of their own and they refused to do so. They have defiantly remained in occupation of the plaintiff's houses even when most of them have left the plaintiff's employ save for the two defendants still in the plaintiff's employ. They have not exhibited any contract of sale to the plaintiff.

In brief, they have not shown the legal basis upon which they claim the plaintiff sold them the houses. There is no record produced by the defendants that they acquired the houses on rent-to-buy contracts.

He also indicated that other plaintiff employees did not claim these pool houses and moved out.

This witness was subjected to lengthy, tactful, and determined cross-examination. At the end of the day I find that he is a credible witness. He made several concessions favourable to the defendants' case. He is a truthful witness.

Thembinkosi Khumalo

He has been employed by the plaintiff for nineteen (19) years. He is the acting Town Treasurer for the plaintiff. He started in the plaintiff's employ as a Senior Accounting Officer in the Treasury Department.

He mainly corroborated what the first witness said in a material way.

As far as the ZimSun houses are concerned, he said, in 1992, ZimSun had built 160 houses for its staff. These houses were built at the time when the plaintiff was facing acute shortage of accommodation for its staff. The plaintiff approached ZimSun who offered them twelve (12) houses including the five (5) subject of these proceedings as stated above. The plaintiff paid for these houses using Stands on which ZimSun built their staff houses plus an additional amount of Z$68,000.

After acquiring these ZimSun houses, they put in the plaintiff staff and quasi-plaintiff staff.

He confirmed that there were initiatives to sell these houses to staff through CABS, but, as stated by the previous witness, all these came to naught on account of the low salaries of staff and statutory limitations as the plaintiff is a local government.

He said some of the defendants stopped paying rentals in 2007 whereas two, who are still plaintiff employees, have continued paying. These two defendants, who are still plaintiff employees, are Smolita Maseko and Sihlobo Sibanda.

He evinced that if council property is being sold, Treasury Department would be served with an Agreement of Sale. The Agreement of Sale must state the tenure of the loan (if it is not a cash sale), the instalment payable by the beneficiary, and the interest on the loan amount.

He categorically stated that none of the defendants had any Agreement of Sale with the plaintiff.

He said that the Z$500 paid by each defendant was Z$250 for rent and Z$250 for security deposit (good tenancy deposit). He also said when the plaintiff's employees wanted to carry out repairs in these houses, such repairs must first be certified as necessary by the Town Engineer. This is a pre-condition of reimbursement of the tenant by the plaintiff.

As far as defendant Steven Mpofu is concerned, he was not employed by the plaintiff. He was employed by ZimSun. He was renting the plaintiff's guest house. They decided to accommodate him in one of the pool houses on a lease basis.

He was adamant that the plaintiff made a decision to allocate these houses to its employees to attract and retain them. The houses were, however, to remain as pool houses.

He further stated that when houses were allocated by the plaintiff to individuals, whether employees or not, the plaintiff ensured that there were documents which showed the various costs centres such as for the sewer, education levy, etc. This is reflected in receipts such as on pages 250, 251 and 356 of the bundle of documents. This was because the houses in question were being rented.

The defendants had rent cards where credits were entered when payments were made and the payments credited to the appropriate costs centres.

He said Treasury had agreements of sale (rent-to-buy) for other properties allocated to the defendants, but did not have that in respect of the twelve (12) houses in issue. What the defendants had, even on their own admissions, were rent cards. He said a rent card is self-evident and cannot be stretched to mean rent-to-buy.

As far as the letter written by a Mr Lucas M M Sibanda, the former Chief Executive Officer of the plaintiff, he said this individual was dismissed by the plaintiff on account of documented acts of misconduct. He said his letter of support of the defendants is untrustworthy and devious.

On the question of damages, he said rentals for the houses in question were US$150 per month at the lowest rate to US$200 per month for the more expensive ones. He said damages in the sum of US$150 per month in respect of each of the defendants would be appropriate.

This witness was extensively cross-examined by the defendants' counsel. I am satisfied that he gave his evidence well. I find that he is a credible witness. He is very familiar with the financial operations of the plaintiff, and, in particular, he is very familiar with the acquisition of the houses in issue and how the defendants ended up in occupation.

Coming to the defendants' case, I also propose to consider the evidence adduced in turn.

Phindile Ncube

He was employed by the plaintiff between 11 May 1987 and February 2009. He had joined the plaintiff as Revenue Clerk responsible for housing. In 1988 he was elevated to the position of Senior Housing Clerk responsible for the supervision of housing clerks and the computation of the home ownership scheme. He gave a detailed account of the Government Housing policy.

Most of the evidence is not relevant for the determination of the legal issues before me. I will only focus on the relevant part of the testimony.

In relation to the house in dispute, between him and the plaintiff, he says he placed his name on the Housing Waiting List as he was staying with his parents at the time at 3133 Chinotimba. He was allocated the disputed Stand number 4242 Chinotimba. After the allocation, he made improvements on the property as evidence that he considered that the plaintiff allocated the property to him on a rent-to-buy basis. Such improvements comprise of installing burglar bars, fencing of the property, and sharing of the walling costs with the neighbour.

He conceded that he has another property, being Stand 4222 Chinotimba allocated to him by the plaintiff. He said that he, like the other defendants, was sold Stand 4242 because he was on the waiting list. He, however, did not have a single document to prove the purported sale.

Despite the fact that he alleged that he was virtually running the Housing Department of the plaintiff at the relevant time, he could not produce any document to prove his claim. All he had is a rent card.

It is quite clear that the rent card is a tenant's card, not a card to prove ownership. Even his erstwhile legal practitioners conceded this fact on pages 94-95 of the bundle of documents.

He could not explain why he and the other defendants did not sue the Minister responsible for National Housing to transfer the houses in dispute to them, but adopted an attitude of supine indifference, when the said Minister transferred the said houses into the plaintiff's name.

He tried to suggest that during the early 1990s there were no rent-to-buy agreements, and that is why he and other defendants had no documents to support their version of events.

Unfortunately for him, the documents from pages 279 to 415 on the bundle of documents proved otherwise.

In pages 279–285 is a rent-to-buy entered into in 1994 in respect of Stand 5053 Chinotimba. On page 299, the sale agreement was entered into in 1997. His own Agreement of Sale, in respect of Stand 4222, supra, was entered into around 1994. He said that the document by Mr Sibindi, on page 76 of the bundle of documents, was the source of all the defendants' problems.

This is patently untrue because the document was authored in 2007 and yet, at least 14 years earlier, the plaintiff had already said that the houses in question were pool houses and belonged to it.

The plaintiff even has the support of the Workers' Committee in this regard.

This witness held himself out as an expert and the spokesperson for all the twelve defendants. He confidently described himself as a “local government practitioner”. He did this to try to speak with an authoritative voice that brooked no contradiction.

Regrettably, he failed dismally in this endeavour. He was an extremely poor witness. He was not credible as alluded to above. Further, he was a witness with an interest, not only in retaining Stand 4242 Chinotimba, but also because he had obviously misled the other defendants and given them the impression that he was the authoritative voice in respect of the twelve houses in question.

There was the difficulty in that as early as 1991, 1992 and 1993 onwards, the plaintiff had made it clear that the twelve in question belonged to the plaintiff and the plaintiff wanted them back. This is clear in the letters from legal practitioners and also minutes of the seven National Housing Fund houses.

He tried to assert that Central Government gave directives to Councils, such as the plaintiff and thus the plaintiff was obliged to obey these directives which had the force of law. In other words, the local authorities were only agents, or implementing arms of the Central Government.

This assertion was clearly flawed.

The witness was unable to point to any such legislation which made suggestions by Central Government law binding upon Council.

It is clear that the National Housing policies were guidelines. In fact, on page 208 of the bundle of documents, it is made clear that these were guidelines. In any event, the Central Government transferred these houses into the plaintiff's name.

The defendants did not challenge the said transfer before the court.

When he was cross-examined, and asked how it was that all twelve defendants had other Stands in breach of the Central Government policy which he appeared to champion so enthusiastically because it was convenient to him, he made a volte face and said that this policy on the prohibition against multiple ownership of houses in the high density suburbs, was relaxed by the plaintiff.

However, he was unable to provide documentary evidence of such relaxation of the policy. He was unable to do so because he was misleading this court.

Further, he was unable to give the agreed purchase price for the house in dispute. The purchase price is an essential element of the agreement of sale.

He tried to get around by stating that he expected to pay rentals for the house over thirty (30) years and after that the house would be his. He then changed and said that he had fully paid for the house in issue because of inflation.

He ran into great difficulty when he referred to the ZimSun houses, where, again, he tried in vain to hold himself out as an authority on these houses.

He said the purchase price of these houses was $35,000. This figure is not supported by any documentation.

He went on to say that these houses were supposed to be paid for over twenty-five (25) years. But, $35,000 divided by 25 years, then by twelve months to arrive at the monthly payments, gives a figure of $116,67 which is nowhere near the $25,977 purchase price referred to on page 9 of the bundle of documents.

To compound his already difficult situation, he then changed and said that initially the ZimSun houses were paid for by way of a deposit of $250, the monthly rentals of $250 for 25 years.

Simple mathematics shows that the purchase price at $250x12 months x 25 years =$75,000. This figure had no relation to what he was talking about.

He then said that the plaintiff decided to reduce the purchase price to $180.

Still $180x12 months x 25 years = $54,000. This is so because he said the deduction from employees' salaries to pay for the house should not exceed 27% of the employee's salary.

This again was not supported by any documentation.

He further explained that of the $180, $20 would be utilized for service charges and $160 towards the purchase price, still the figure would be almost double the purchase price stated above.

There was no explanation forthcoming from him when the policy to reduce the price from $250 to $180 monthly was effected.

All along, it was the defendants' case that in respect of the ZimSun houses, they had paid a deposit of $250 and monthly instalments of $250. They had paid the full purchase price for the houses in question.

This was their case in their pleadings and synopsis of evidence.

There is no mention in the pleadings of the change to $180 per months or $160 plus $20 service charges per month.

It is highly improbable that if the defendants' erstwhile legal practitioners had been given instructions, they would not have mentioned it in both the pleas and synopsis of evidence.

This was something which was crucial to their case, as it relates to the alleged purchase price.

The fact that this was never mentioned in the pleadings shows that this witness made it up.

These contradictions and changes simply demonstrate a desperate witness who could not tell the truth.

In any event, the issue of the alleged change in the monthly instalments was never put in cross-examination to Mr Khumalo. This shows that it is an after-thought by the witness.

The only inference to be drawn is that the witness was untruthful, and so to the other defendants who supported him in making this assertion.

It is also significant that nowhere in the five defendants' pleas and synopsis of evidence is the alleged purchase price mentioned.

All in all, this witness was totally unreliable and his testimony is not worthy of any belief.

Collen Ndebele

He, like the other defendants, gave similar evidence, which was not supported by any documentation, but in fact contradicted by documentation before the court.

He had no documentation to support his assertion that he entered into an agreement to rent-to-buy the house he was claiming. All he relied upon was a rent card which in fact showed that he was a tenant. He said he believed that he had paid for the house in dispute in full, yet, on his own version he paid just over 20 years. His rent card showed nothing of ownership. His testimony suffers the same weakness as that of the previous witness. He was as un-impressive as the last witness. He was equally evasive on the purchase price and the lack of Agreement of Sale.

Sihlobo Sibanda

He was equally not impressive as a witness. The documents showed that he was allocated the disputed house because of his position as a Bursar, but he made a valiant attempt to deny this.

In his case, he was aware of the problem regarding the houses because he took minutes at Council meetings when the issue was discussed as far back as November 1997. He had no purchase price for the house, but said that he was supposed to pay over thirty (30) years. He said that his waiting list card was taken at the time he was allocated the house in issue, but, somehow, he was allocated another Stand.

The waiting list card must have been taken when he was allocated the latter Stand and not the house in issue.

It is significant to note that in the latter application he used a misleading address i.e. 2512. This was misleading to disguise the fact that he already had another house, 4246 Chinotimba.

In his own version he would have been sold two residential Stands in a space of three years contrary to Government policy. It is clear that he was never sold the house in issue. He is, however, still in the plaintiff's employ and continues to pay rentals through deductions. In this regard, his position is different from other defendants.

Shadreck Ndlovu

Like the previous witnesses, he said a lot but had no documentation to support his assertion that the plaintiff sold him the house in issue.

He had no idea of the purchase price of the house, he was not sure if he paid in full for the house: he was just swimming in a sea of uncertainty.

He said that despite the fact that his waiting list card was taken away when he was allocated the house in dispute, he was allocated Stand 4237 simply because he was a war veteran. He was unable to show anything in the housing policy document to illustrate that war veterans were entitled to be allocated more than one Stand in the high density suburbs.

In any event, in respect of Stand 4237, there were proper documents to show that he entered into a rent-to-buy agreement and yet for the house in dispute such documents were conspicuous by their absence.

Stephen Mpofu

Like other defendants he had no documentation to support his story that he owned the house in question. He had no idea of the purchase price and he did not know how long he was supposed to take to pay for the house. He appeared confused and did not know what was happening.

Everson Ndebele

Like other defendants, he had no documentation for the alleged purchase of the Stand in dispute. His testimony is equally incredible. He received documentation for the other Stand, 4817, but not for the disputed Stand.

Osina Nyathi

She testified on behalf of her late mother who was the original defendant. She tried as much as possible to give the impression that she knew how the house in question was allocated to her late mother. She sadly failed to do so.

Alice Ndlovu

Whereas, Phindile Ncube wanted to be the spokesman in respect of all the twelve houses, this witness attempted to be the spokesperson for the defendants relating to the ZimSun houses.

She made a valiant attempt to use the rent card as proof of ownership.

She was generally an untruthful witness.

She tried to give the impression that she had no connection with Stand 5048 and that that Stand was her husband's. The application papers, on page 405 of the bundle of documents, clearly show that both her and her husband applied for Stand 5044 and correspondence was copied to both of them. She could not give a purchase price. She associated herself with the explanation given by Phindile Ncube in this regard. She said a lot but failed to give a credible account of the alleged purchase of the Stand in dispute.

Smolitha Maseko

Like the previous witness, Sihlobo Sibanda, she is still in the plaintiff's employ and rentals are being deducted from her salary, according to the testimony of the plaintiff's witness Thembinkosi Khumalo.

Like other defendants, she failed to establish that the house in dispute was sold to her. Although, unlike the other defendants, she and Sihlobo Sibanda may not be evicted in terms of the cause of action in casu and ordered to pay damages, suffice to say that they are in occupation of their respective properties on account of their continued employment by the plaintiff and not on account of a sale agreement.

Kambarashe Zex Raura

Like other defendants, he had no agreement of sale to establish that he purchased the house in dispute.

His untruthfulness is evinced by the fact, that, in his application for Stand 5049 he stated that he did not own any other Stand as at 1996, when, in his own version, in 1991, he had been allocated Stand 4407.

This is either a deliberate lie or a confirmation that he was aware that Stand 4407 was a pool house.

He further said he was never told the purchase price, but was advised that he was to pay $250 as deposit and $250 per month. He said there was vague talk of paying $250 per month for 25 years but he was never informed of the purchase price and he could not answer questions on the issue of the purchase price.

I am satisfied he is equally an un-impressive witness.

Sivumo Ndlovu

Like other defendants, she had no documentation to prove that she had entered a lease to buy agreement in respect of the property in issue. This is in stark contrast to the documents which clearly set out the rights and obligations of the respective parties of Stand 5053. She also had no purchase price on the house she claimed she had bought.

Ruth Khumalo

Her testimony is characterized by hearsay. But, the bottom line is that she was unable to produce any documentation to show that she purchased the Stand in dispute.

Having made the above findings of facts, I proceed to consider the effect of these findings and the law applicable.

I have to determine whether there were contracts of purchase and sale between the protagonists in these two matters. I have to determine whether the essentials of a purchase and sale contract are present.

In casu, there is no dispute that there is more than one party to the alleged contracts – Barnhoorn v Duvenage 1964 (2) SA 486 (A)…,.

The crucial issue is whether there was true agreement between the parties.

It is trite that agreement by consent is the foundation of contract – Salisbury Municipality Employees Association v Salisbury City Council 1957 (2) SA (SR) 557; Cinema City (Pty) Ltd v Margenstern Family Estates (Pty) Ltd 1980 (1) SA 796 (A)…, and The Law of Contract in South Africa, R H CHRISTIE 3rd Ed…,.

In order to decide whether a contract exists, one looks first for the true agreement of two or more parties, and, because such agreement can only be revealed by external manifestations, one's approach must of necessity be generally objective.

The court can only judge from external facts whether the minds of the parties have come together – Jordaan v Trollip 1960 IPH A25 (T) and Allen v Sixteen Stirling Investments (Pty) Ltd 1974 (4) 164 (D)…,.

Looking at the evidence led by the plaintiff, there was no meeting of minds that these houses were being sold to the defendants.

It is trite that the most helpful way of determining whether there has been agreement, true or based on quasi-mutual assent, is to look for an offer and an acceptance of that offer. A binding contract is, as a rule, constituted by acceptance of an offer: Reid Bros (SA) Ltd v Fisher Bearing Co Ltd 1943 AD 232…,.

But, offer and acceptance must never be sought for their own sake but as aids in deciding whether an agreement has been reached.

A true offer means an express or implied intention to be bound by the offeree's acceptance – the animus contrahendi: Sambou-Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A)…, and Spes Bona Bank Ltd v Portals Water Treatment South Africa (Pty) Ltd 1983 (1) SA 978 (A).

In casu, there was no such offer to the defendants.

The rent cards produced do not constitute an offer made with the requisite animus contrahendi. There were no unequivocal offers of sale made to the defendants. The offer must be unequivocal i.e. positive and unambiguous: Boernie v Harris 1949 (1) SA 793 (A)…, and Wasmuth v Jacobs 1987 (3) SA 629 (SWA)…,.

Accordingly, from the evidence, there was no agreement by consent or true agreement, or a meeting of minds, or a coincidence of wills, or consensus ad idem between the parties and the only credible explanation is that these houses were pool houses for use at the discretion of the plaintiff.

On this point alone the plaintiff's claims must succeed and the defendants' counter-claims fail.

Further, there is no agreement on the price.

As alluded to above, it is not easy to ascertain the alleged purchase price. This points to the relationship of lease and not purchase and sale between the parties.

The defendants, save for one, were all employees of the plaintiff at the time of allocation of the houses in dispute. They obviously know the difference between being pool accommodation and rent-to-buy houses. All the defendants later, but before this dispute arose, entered into proper rent-to-buy agreements with the plaintiff so they are familiar with such agreements. The latter agreements clearly state the terms of agreement and the parties.

They cannot be heard to be saying they mistook the rent cards for agreements of sale.

The defendants are just influenced by greed and are trying to obtain two properties each from the plaintiff by converting their leases of the pool houses into ownership agreements.

There is simply no agreements of sale in respect of the houses in issue and the court cannot contract for the parties: Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 (HL)…,; Globe Electrical Transvaal (Pty) Ltd v Brunhuber 1970 (3) SA 99E…,; Levenstein v Levenstein 1955 (3) SA 615 (SR) and Titaco Projects (Pty) Ltd v AA Alloy Foundry (Pty) Ltd 1966 (3) SA 320 (W)…,.

The plaintiff's claims must succeed against all the defendants save for Sihlobo Sibanda and Smolitha Maseko. These two defendants are still employed by the plaintiff as alluded to above and the plaintiff is still collecting rentals from their respective salaries. If the plaintiff wants to evict them, it cannot be on the basis of this cause of action.

As far as the damages are concerned, the plaintiff does not charge market-related rentals of US$150 per month as claimed in this case. The plaintiff is charging US$20 per month for the houses in dispute. There is no basis for granting the plaintiff damages based on market related rentals.

Accordingly, it is hereby ordered:

(1) That the plaintiff's claim for the eviction of the defendants Smolitha Maseko and Sihlobo Sibanda from houses 4408 and 4246 respectively be dismissed.

(2) That the counter-claims by Smolitha Maseko and Sihlobo Sibanda against the plaintiff be dismissed with each party bearing own costs.

(3) That the plaintiff's claim for the eviction of:-

3.1 Loida Nyathi - House 4251 Chinotimba;
3.2 Everson Ndebele - House 4255 Chinotimba;
3.3 Collen Ndebele - House 4247 Chinotimba;
3.4 Phindile Ncube - House 4242 Chinotimba;
3.5 Shadreck Ndlovu - House 4241 Chinotimba;
3.6 Stephen Mpofu - House 4244 Chinotimba;
3.7 Alice Ndlovu - House 4403 Chinotimba;
3.8 Sivumo Ndlovu - House 4401 Chinotimba;
3.9 Kambashu Zex Raura - House 4407 Chinotimba; and
3.10 Fred Khumalo - House 4400 Chinotimba;
be and is hereby granted.

(4) That each of the above-mentioned defendants, named in paragraph 3 above, be ordered to pay US$20 per month from the month of February 2009 to date of eviction.

(5) That the counter-claims by each of the defendants named in paragraph (3) above are dismissed.

(6) That the defendants named in paragraph 3 above are to bear costs of suit on the ordinary scale.

(7) That the plaintiff be declared owner of all the properties subject matter of this case.

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED
Ruled By: KUDYA J

The plaintiff, a former financial director of the defendant company, filed summons on 8 July 2009 seeking payment of the capital sum of US$72,334 and interest at the rate of 10% per annum from the date when the amount fell due to the date of the issue of summons in the sum of US$12,658, payment of interest on the capital amount at the rate of 10% from the date of the issue of summons to the date of payment in full and costs of suit.

The defendant contested the matter.

The plaintiff's cause of action was disclosed in paragraphs 3, 4 and 5 of its declaration in these terms:

“3. The defendant became indebted to the plaintiff in respect of arrear salaries and other benefits arising from a contract of employment concluded between the parties on or about 21 September 2004 that was terminated by the plaintiff's resignation from employment on 7 March 2007.

4. During the month of April 2007, the defendant partly liquidated the amount claimed by the plaintiff by delivering to the plaintiff a motor vehicle and a laptop computer whose agreed values totalled US$30,000.

5. On or about 18 July 2007, the Group Chief Executive Officer of the defendant, Mr Hamish Rudland acknowledged liability for the sum as at that date of US$70,000 which would attract interest at the rate of 10% per annum.”

The defendant raised a plea in bar based on two grounds before pleading over to the merits. Its plea reads as follows:

“1. As appears from the plaintiff's declaration:-

1.1 The cause of action is predicated on a contract of employment concluded by the parties on 21 September 2004.

1.2 The claim is for payment of alleged arrear salaries and benefits consequent upon resignation.

1.3 The payment of salaries and benefits during and upon termination of a contract of employment is governed by the provisions of the Labour Act [Cap 28:01].

1.4 Accordingly, and in terms of section 89(6) of the Labour Act, this Honourable Court has no jurisdiction to hear and determine this claim.

2. Additionally, but without prejudice to the above, the defendant avers that:

2.1 The contract of employment between the parties provided for payment of salaries and benefits in Zimbabwe dollars, being the lawful legal tender.

2.2 The plaintiff's claim is denominated in foreign currency, namely, the United States dollars.

2.3 At the material time, the payment of salaries and benefits in foreign currency, without exchange control approval, was illegal and unenforceable by virtue of:

2.3 1. The Exchange Control Act [Cap 27:05].

2.3.2. Exchange Control Regulations, 1996, SI 110/1996.

2.3.3. The Labour Act [Cap 28:01].

2.4. In the premises, the plaintiff's claim is bad and unsustainable at law and ought therefore to be dismissed with costs.”

In pleading over to paragraphs 3, 4 and 5 of the plaintiff's declaration, the defendant denied these averments and put the plaintiff to the proof thereof and reiterated that the mode of payment sought was unlawful.

In his replication, the plaintiff averred that his cause of action was premised on an acknowledgment of debt signed by a representative of the defendant and not on the terms of employment.

He also averred that the defendant was obliged to obtain the necessary foreign currency exchange approvals to pay him in foreign currency using its free funds.

At the pre-trial conference that was held on 8 April 2010, the following four issues were referred to trial:

(a) Whether or not this Honourable Court, and in the light of section 89(6) of the Labour Act [Chapter 28:01], has jurisdiction to adjudicate over the dispute between the parties;

(b) Whether the contract of employment between the parties provided for payment to the plaintiff in United States dollars and the amount thereof;

(c) Whether the plaintiff's claim was lawful at the material time; and

(d) What amount, if any, is due to the plaintiff.

The trial in this matter was held on 14 June 2010. The plaintiff called the evidence of two witnesses and produced a 40-paged bundle of documents as exhibit 1.

After the close of the plaintiff's case, the defendant elected to open and close its case without calling any evidence.

My findings of fact are based on those aspects of the evidence called by the plaintiff that survived cross examination.

The plaintiff holds a Bachelor of Law (Honours) degree from the University of Zimbabwe (1983) and is a Chartered Accountant (1988). He was the Group Financial Director of the defendant from 1 June 2004 until his resignation on 7 March 2007. His contract of employment with the defendant is covered in pages 2 to 6 of exhibit 1. The relevant sections fall under the headings Remuneration and Benefits. I set them out below:

“3. REMUNERATION

As remuneration for services rendered, the Contractor shall pay the contracted person, during the subsistence of this agreement, the sum of $21 million per month, payable monthly in arrears. The salary will be subject to taxation in line with the rules and regulations of the Zimbabwe Revenue Authority. As you are on a fixed term contract, the company is not liable to pay any further sums of money which may be required of you by operation of law. This shall be reviewed every quarter.

4. BENEFITS

In addition to the salary stated above, you will be entitled to the following:

4.1 Cimas Medexec Medical Aid for you and your family.

4.2 Use of a company vehicle and 200 liters per month. Such allowance is for monthly usage and shall not accrue.

4.3 School fees for two children, but any change in school requires the authority of the CEO.

4.4 Cafeteria/entertainment allowance to be agreed annually by CEO.

4.5 Any other amounts will be deducted from the cafeteria allowance.”

The plaintiff indicated that his claim was based on the contents of pp7 and 8 of exhibit 1. It is an e-mail dated 13 July 2006 which the plaintiff dispatched to himself and copied to his website. It was signed and dated at the bottom of each page by Hamish Rudland, the acting Chief Executive Officer of the defendant at the time. The purported acknowledgment of debt was sandwiched between a set of seven action plans on the first page and another set of seven action plans on the second page. The acknowledgments read:

“HR acknowledges outstanding balance to KPM of US70K subject to update of figures.

HR acknowledges 10% interest per annum calculated monthly.

HR acknowledges salary US6K per month inclusive of local salary.”

The plaintiff stated that HR referred to Hamish Rudland while KPM referred to the plaintiff.

He stated that the defendant was to promote a company in Mauritius which would be used as the vehicle to pay top management in Zimbabwe in foreign currency and pay his outstanding debt.

It was common cause that the vehicle and laptop were sold to the plaintiff as indicated in the letter by Hamish Rudland (HR) of 10 September 2007 on p18 of exhibit 1. He averred that the two items were valued at US$30,000 and abated the outstanding capital sum and interest.

On pages 19 and 20 are the purported minutes that he wrote on 15 January 2008 of a meeting he held with Hamish Rudland (HR) and the plaintiff's wife in which he recorded, inter alia, his demand for payment of the outstanding debt by Pioneer Corporation Africa (PCA) and the reluctance to pay by Hamish Rudland (HR) until he had received a return on his investment and an undertaking that payment would be made at a later date.

He was the only one who signed those minutes.

He also relied on the minutes he authored on 18 March 2009 between Hamish Rudland (HR), EM Warhurst (EMW) and himself on pp 29-30 of exhibit 1. They were signed by EM Warhurst (EMW) and the plaintiff only.

They indicate that Pioneer Corporation Africa (PCA) owed EM Warhurst (EMW) US$15,000 and the plaintiff just over US$80,000.

While they show that Hamish Rudland (HR) was unwilling to pay the debt, they record that he had signed the plaintiff's contract of employment and acknowledgment of debt in July 2006.

Pages 38-39 show that, from October 2003 to February 2007, the plaintiff was entitled to receive from the defendant US$215,000 in salary. He was paid a total of US$157,251 between October 2003 and March 2007. The capital outstanding in salary arrears was US$57,749. The amount due as interest, from December 2005 to June 2009 was in the sum of US$26,462.

He was cross-examined.

He based his claim on an acknowledgement of debt of 17 July 2006. The acknowledgment arose from the failure to pay salaries during the period extending from October 2003 to February 2007.

He stated that he did not sue the defendant for arrear salaries that were incurred between October 2003 and July 2006 because during that period he was a member of the plaintiff's management team.

He accepted that, at that time, legal tender in Zimbabwe was the local dollar.

He was referred to section 12A of the Labour Act.

He was evasive on whether his claim was founded on a contract of employment or not. He was evasive on whether payment in United States dollars was payment in kind or not. He stated that in 2006 there were no exchange control prohibitions against the payment of salaries in foreign currency but conceded that during the period of his employment with the defendant he was never paid in United States dollars. He further acknowledged that at that time the defendant did not pay any of its employees in foreign currency.

He said the United States dollar was used to index the payment in kind in the form of air tickets that he received for holidays outside Zimbabwe.

He admitted that he could not claim in United States dollars before February 2009.

He accepted that the email of 18 July 2006 was made when Hamish Rudland (HR) had taken over as the Acting Chief Executive Officer of the defendant but denied that it was a mere update of the company's affairs and hand over/take over summary sheet. He said it was not an exchange of information document but a contract between the plaintiff and the defendant.

He accepted that it was not in the usual mode of an acknowledgement of debt that is drawn up by legal practitioners.

He averred, that, at the time, the defendant was obliged to pay him in the Zimbabwe dollar equivalent of US$70,000 at the prevailing parallel market rate of exchange.

He called Edward Mark Warhurst, a practicing legal practitioner, who, at the time, was the Group Company Secretary and Managing Director of Clan Transport (Pvt) Ltd, one of the subsidiaries of the defendant.

Edward Mark Warhurst confirmed the accuracy of the minutes written by the plaintiff at the meeting of 18 March 2009 found in exhibit 1. He said Hamish Rudland (HR) sought to refute indebtedness on the basis that the plaintiff had given poor service to the defendant but he accepted that the defendant owed the plaintiff arrear salaries in foreign currency for which it was unable to pay.

He was cross examined.

He was a workmate of the plaintiff during the period 2003 to 2006 when he worked for the defendant. He was owed arrear salaries in foreign currency for the period September 2005 to August 2006. He was invited by the plaintiff to the meeting of 18 March 2009 because both were creditors to the defendant.

He confirmed that his salary was paid in local currency.

It is on the basis of the evidence led that I proceed to determine the issues referred to trial.

(a) Whether or not this Honourable Court, and in the light of section 89(6) of the Labour Act [Chapter 28:01] has jurisdiction to adjudicate over the dispute between the parties

Counsel for the defendant submitted that this court did not have the jurisdiction to deal with this matter as it is a labour dispute. The plaintiff conceded, in his replication, that, were the present matter a labour dispute, he would have had to file it out of the Labour Court.

It seems to me, notwithstanding that this court is a superior court imbued with inherent jurisdiction, that all labour disputes must be dealt with in terms of the relevant provisions of the Labour Act.

It was common cause that section 89(6) of the Labour Act ousts the inherent jurisdiction of this court to hear labour disputes in the first instance. Put in other words, the High Court cannot be the first port of call to any party in a labour dispute.

The dispute, being one of right and not interest, would perforce be dealt with in terms of section 93 of the Labour Act by a labour officer who could refer it to arbitration from whence it would find its way to the Labour Court.

Counsel for the plaintiff submitted that this court had the jurisdiction to determine this matter because the plaintiff's case was found on an acknowledgment of debt and not on a contract of employment.

It is correct that, in our law, an acknowledgment of debt can found a cause of action: see Chimutanda Motor Spares (Pvt) Ltd v Musare & Anor 1994 (1) ZLR 310 (H)…,; Gondwe v Bangajena 1988 (1) ZLR 1 (H)…,; and Salisbury Municipality v Partington & Anor 1961 (3) SA 218 (SR)…,.

Counsel for the defendant contended that the plaintiff pleaded his cause of action as the contract of employment. He argued that reference to an acknowledgment of liability by the defendant's acting Chief Executive Officer in the declaration did not shift the cause of action to that of an acknowledgment of debt. He further contended that the document purported by the plaintiff to be an acknowledgment of debt was merely an update of the company's affairs and a hand over/take over sheet.

Counsel for the plaintiff contended that the statements sandwiched between other unrelated action plans constitute an acknowledgment of debt.

His contention appears to be borne out by the sentiments expressed by McNALLY J in S v Manyere 1984 (1) ZLR 104 (H)…, to the effect that an “I owe you” left in a cash box would constitute an acknowledgment of debt.

It is correct that the defendant did not call evidence to dispute the facts set out by the plaintiff and his witness or offer an alternative version of events.

It is also correct, that, subsequent to the acknowledgement of debt, two sets of minutes were written by the plaintiff, that the defendant's acting Chief Executive Officer refused to sign, which show that he acknowledged the defendant's indebtedness to the plaintiff in the amount claimed.

Again, the plaintiff's version was supported by Edward Mark Warhurst who was a forthright and credible witness.

It seems to me, notwithstanding the failure by the defendant to lead evidence, that counsel for the defendant's contention that the plaintiff's cause of action was predicated on a contract of employment is correct.

In my view, paragraphs 4 and 5 of the plaintiff's declaration are explanatory averments of how he arrived at the capital sum and interest claimed. The legal foundation of the claim lies in the contract of employment. Paragraph 3 of the declaration is the basis of the plaintiff's claim.

I understand him to be averring that the debt for which he seeks redress arose from unpaid salary arrears.

This is confirmed in the further particulars supplied by the plaintiff as read with the information supplied to the defendant's chairman on pages 31 to 39 of exhibit 1 in which he collated the outstanding salaries from October 2003 to February 2007 and outstanding interest due from December 2005 to June 2009.

The failure by the plaintiff to plead that his claim was based on an acknowledgment of debt executed on 18 July 2006 further confirms that he found his claim on unpaid arrear salaries.

Accordingly, I uphold the exception raised by the defendant and dismiss the plaintiff's claim on the basis that this court lacks the jurisdiction to determine the matter by virtue of the provisions of section 89(6) of the Labour Act [Chapter 28:01].

However, in the event that I am wrong, and the cause of action was properly pleaded in terms of paragraph 5 of the declaration, I proceed to deal with the other issues that were referred to trial.

(b) Whether the contract of employment between the parties provided for payment to the plaintiff in United States dollars and the amount thereof

The plaintiff confirmed, in his testimony, that the contract of employment did not provide for payment in United States dollars or any foreign currency. He alleged that payment in United States dollars was incorporated as a cafeteria benefit. He agreed that the contract did not delineate the United States currency as the currency of account for the cafeteria allowance. He did not produce a document in writing, and signed by both parties, to demonstrate that the contract of employment was varied as contemplated by paragraph 14 of the contract of employment.

The second issue is determined in favour of the defendant.

(c) Whether the plaintiff's claim was lawful at the material time

The time referred to is the period from October 2003 to 7 March 2007.

Counsel for the defendant submitted that it was unlawful, at the time, for a Zimbabwean-registered company to pay its employees in foreign currency for work performed in Zimbabwe without exchange control authority. He relied on the provisions of section 4(1)(a)(ii) of the Exchange Control Regulations S.I.109 of 1996.

Counsel for the plaintiff submitted that the exchange control legislation was not violated by an agreement to pay a salary in foreign currency to the plaintiff in Zimbabwe for work done in Zimbabwe. He relied on a case in which the claim was based on an acknowledgment of debt that the defendant did not sign but was reduced to writing by the plaintiff's legal representative which reflected the terms of the oral agreement reached of Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC)…, where McNALLY JA, dealing with sections 7 and 8 of the Exchange Control Regulations 1977, the precursor to the present sections 10 and 11 of the Exchange Control Regulations 1996, stated:

“The essential point to be noted is that there is a clear difference between sections 7 and 8. The former proscribes only the actual payment. The latter proscribes both payment and the underlying agreement to pay.

In other words, when one is concerned with payments inside Zimbabwe it is perfectly lawful to enter into the agreement to pay. But, without authority from the Reserve Bank, the actual payment may not be made. By contrast, when dealing with payments outside Zimbabwe, it is unlawful even to enter into the agreement to pay, without first obtaining the authority of the Minister, whose powers have been delegated to the Reserve Bank.”

The case dealt with the payment, in local currency in Zimbabwe, of a foreign resident by a Zimbabwean resident.

The facts in Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC) differ with those in the present case in that in the former case payment was made by a local resident for the account of a foreign resident in local currency. In the present case, a local resident was to pay another local resident in foreign currency. The former concerned an outflow of foreign currency while the present matter concerned the inflow of foreign currency.

It seems to me that the payment of an employee's salary in foreign currency, at the time, would have contravened section 4(1)(a)(ii) of the Exchange Control Regulations.

Both CHINENGO J and GOWORA J held, in separate cases of Jumvea Zimbabwe Ltd & Anor v Matsika 2003 (1) ZLR 71 (H)…, and Gambiza v Tavaziva HH109-08…, that payment of foreign currency, whether inside or outside Zimbabwe, would amount to an exchange and thus be in violation of section 4(1)(a)(ii) of the Exchange Control Regulations.

In the present case, the defendant did not make any payment but entered into an agreement to pay.

Counsel for the plaintiff was therefore correct that such an agreement was not prohibited by the Exchange Control Regulations.

This is what McNALLY JA had in mind in Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC)…, when he said…,:

“The contract to pay is lawful. Actual payment in pursuance of the contract is unlawful without permission. There is no reason why the court should not order payment; subject to the condition that authority is obtained. I must make it clear that this judgment in no way inhibits the Reserve Bank in the exercise of its discretion. It is entirely for the Reserve Bank to decide whether or not to authorise the payment. If it decides not to do so the payment may not be made. The contract remains lawful. Payment will then have to await a change either in the law or in the policy of the Reserve Bank.”

I hold that the contract to pay the plaintiff in foreign currency did not contravene any Exchange Control Regulations.

Counsel for the respondent further contended that payment in foreign currency contravened section 12A(1) of the Labour Act [Chapter 28:01]. Counsel for the plaintiff countered by arguing that section 12A(2) of the Labour Act allowed for the payment of employees in foreign currency.

Section 12A(1) and (2) of the Labour Act read:

“12A Remuneration and deductions from remuneration

(1) Remuneration payable in money shall not be paid to an employee by way of promissory notes, vouchers, coupons or in any form other than legal tender.

(2) Remuneration may be payable in kind only in industries or occupations where such payment is customary, and shall be subject to the following conditions —

(a) Any such payment shall be appropriate for the personal use and benefit of the employee and the employee's family;

(b) The value attributed to such payment shall be fair and reasonable;

(c) Equipment or clothing required to protect the health and safety of the employee shall not be computed as part of the remuneration of the employee;

(d) No payment shall be made in the form of liquor or drugs;

(e) Remuneration in kind shall not substitute entirely for remuneration in money.”

Counsel for the defendant argued, that, at the time of employment, legal tender was constituted by local banknotes and coins. He submitted that though foreign currency was money, at the time, it was not legal tender in Zimbabwe.

Counsel for the plaintiff did not controvert this argument.

Rather, he ingeniously contended that the fact that the Exchange Control (Payment of Salaries by Exporters in Foreign Currency for Critical Skills Retention) Order S.I.127 of 2008 introduced for the first time the need for an exporter to seek exchange control authority to pay salaries in foreign currency showed that the payment of salaries in foreign currency was not proscribed before its promulgation. He went on to argue, that, as this subsidiary legislation did not have retrospective effect, it did not affect the plaintiff whose contract of employment ended in March 2007

I, however, agree with counsel for the defendant's rebuttal that the introduction of S.I.127/08 into our law was the first inroad made against the restrictive provisions of section 12A(1) of the Labour Act against the payment of salaries in any currency other than local currency.

Subsections (1) and (2) of section 12A of the Labour Act recognize the payment of remuneration in cash or in kind.

Subsection (1) restricts those employers who remunerate their employees in money to the use of legal tender to the exclusion of other modes of payment such as promissory notes, vouchers, coupons or any form other than legal tender.

I understand the phrase 'any form other than legal tender' to be of wide application.

In my view, it restricts payment to the use of legal tender and excludes payment in kind or money that is not legal tender.

Subsection (2) permits employers who are in occupations or industries that customarily pay remuneration in kind to do so.

Paragraph (e) of subsection (2) of section 12 puts it beyond doubt that remuneration in kind is not the same as remuneration in money. This same paragraph, in my view, is clear proof that in the mind of the legislature legal tender, in section 12A(1) of the Labour Act, was another euphemism for money: see Rhodes Motors (Pvt) Ltd v Pringle-Wood NO 1965 (4) SA 40 (SRA)…, where legal tender is considered and treated as money; S v Zakana 1976 (2) SA 248 (R) where SMITH J, by reference to The Shorter Oxford English Dictionary, defined legal tender to be, inter alia, “the money of a country in actual use.'”; and McNALLY JA in S v Bennett-Cohen 1985 (1) ZLR 46 (SC)…, defined legal tender as currency or money. The same LEARNED JUDGE OF APPEAL, in S v Mafarachisi 1990 (1) ZLR 118 (SC)…, approved the definition by COWEN in The Law of Negotiable Instruments in South Africa, 5ed, Vol I…, that legal tender was “the medium legally authorised by the State for the payment of debts.”

Counsel for the defendant's submission, that foreign currency did not constitute legal tender at the time of the plaintiff's contract of employment with the defendant, is borne out by the views of textbook writers and case law. The definition of legal tender is provided by MANN in The Legal Aspect of Money, 4th ed, at p41, in these words:

“Legal tender is such money, in the legal sense, as the legislator has so defined in the statutes organizing the monetary system. Chattels, which are legal tender have, therefore, necessarily the quality of money, but, logically, the converse is not true…; not all money is necessarily legal tender. The question what money is to be considered legal tender is usually answered by the statutes organizing the monetary system.”

Again, at p186, the learned author states:

“Where these principles lead to foreign money being regarded as money, the conclusion is in no way affected by the established rule that foreign money is not legal tender, for not all money is legal tender, but all legal tender is money. Legal tender is such money as is 'current coin of the realm'. This does not mean more than that foreign money cannot be tendered in discharge of a debt to pay pounds sterling, but it does not touch the question of the manner of discharging, in England, a debt expressed in foreign money.”

WILLIS in Banking in South African Law, Juta 1981, at p200, observes that in terms of the SA Mint and Coinage Act 75 of 1964 the South African Reserve Bank has the power to issue and make bank notes and coins and that these coins and banknotes constitute legal tender in South Africa. At p191 WILLIS confirms that, in South Africa, foreign money is not legal tender. He writes:

“The definition of foreign currency has since been amended to mean 'any currency which is not legal tender in the Republic.'”

CHRISTIE, in The Law of Contract in South Africa, 3rd ed…, is in agreement with the observations made by WILLIS.

MORSE, in Vol 1 of A Treatise on the Law of Banks and Banking, 3rd ed (1888)…, recognizes the sovereign right of every State to define what is legal tender within its jurisdiction in these words:

“The right of the depositor is not, however, necessarily to the gold or silver coin of the country; but only to such money as is, by the law of the land, legal tender at the time.”

In Vol 2…, the learned author defined legal tender in these words:

“At present, in our country, the treasury notes of the United States have been made by Act of Congress a legal tender, and payment, or offer of payment, in them satisfies the duty of the Bank; though it has bound itself by a specific agreement to pay in gold or silver coin.”

And, in para 637…, he wrote:

“Bank bills are not money, in the strict sense of the term; that is to say, they are not legal tender, even to pay debts due to the bank itself.”

The textbook writers have equated legal tender with currency and noted that what constitutes legal tender in any country is governed by the legislation of that country.

In Zimbabwe, the term is used, inter alia, in section 12A of the Labour Act [Chapter 28:01]; section 41(1), 42(1), 44(2) and section 44A of the Reserve Bank of Zimbabwe Act [Chapter 22:15], and in the definition sections of the Balance of Payments Reporting Act [Chapter 22:16] (Act No.4/2004) and the Exchange Control Regulations S.I.109 of 1996.

At the time the acknowledgment of debt was entered into, the legal tender for the payment of salaries in Zimbabwe was local currency and not foreign currency. The defendant could not, under section 12A(1) of the Labour Act, agree to pay the plaintiff in foreign currency.

That the plaintiff was aware that it was unlawful is shown by his failure to invoke the provisions of section 13 of the Labour Act for the payment of the purported arrear salaries when he left employment; and his failure to write into the terms of his contract of employment payment of part of his salary in foreign currency.

Formal acknowledgments of debt that are usually prepared by legal practitioners contain renunciation clauses such as the one highlighted by YOUNG J in Caltex (Africa) Ltd v Trade Fair Motors (Pvt) Ltd & Anor 1963 (1) SA 36 (SR)…, like non numeratae pecuniae, non causa debiti, errore calculi, revision of accounts, de duobus vel pluribus reis debendi.

There were no such renunciation clauses in the acknowledgment of debt in issue.

In Macape (Pty) Ltd v Executrix Estate Forrester 1991 (1) ZLR 315 (SC)…, McNALLY JA held that a court could go behind the making of an acknowledgment of debt to test its legality. He stated that:

“There is no evidence before the court to show that the underlying cause of the acknowledgement of debt was illegal and the acknowledgment itself was not illegal.”

I am satisfied that the underlying cause of the acknowledgment of debt that was relied upon by the plaintiff was illegal. A court cannot enforce an illegal contract: see Dube v Khumalo 1986 (2) ZLR 103 (SC)…,.

There are other features of the case which were revealed by the plaintiff, during cross-examination, which militate against the enforcement of the acknowledgment of debt against the defendant.

(i) The first was that he was never paid in foreign currency during his time of employment but was paid a salary in local currency that was indexed to the United States dollar at the parallel rate of exchange to preserve the purchasing power of the local currency.

The acknowledgment of debt that was executed erroneously referred to the currency of indebtedness as the United States dollar. The acknowledgment of debt therefore told a lie about itself.

(ii) The second disquieting feature was that the plaintiff averred that he was to be paid in foreign currency by an offshore sister company to the defendant called PXL that was to be set up in Mauritius in which the defendant's acting Chief Executive Officer would have an interest.

He did not disclose whether this company was ever set up.

It seems to me that he should have sought payment from that company rather than the defendant.

I determine the third and fourth issues referred to trial in favour of the defendant.

Accordingly, it is ordered that:

1. The exception raised by the defendant be and is hereby upheld.

2. The plaintiff's claim be and is hereby dismissed.

3. The plaintiff shall pay the defendant's costs of suit.

HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS
Ruled By: CHATUKUTA J

The plaintiff issued summons on 23 July 2007 claiming the following relief:“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:1. Chimbuya.2. Magwirokona.3. Mavhengere.4. Bwangundoga.5. Mupandasekwa.6. Gwenhamo.7. Shumbayaonda.(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the ...

The plaintiff issued summons on 23 July 2007 claiming the following relief:

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya 17. Kuvengashe

3. Kufandada 18. Rima

4. Zingoni 19. Mutukwa

5. Chatikobo 20. Gowo

6. Musinazano 21. Chirudumwa

7. Chihava 22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema 24. Wushe

10. Magwirokona 25. Bgwango

11. Tsungirai 27. Vushangwe/Rushangwe

12. Zishiri 26. Tirivahera

13. Mutodzaniso 28. Gwenhamo

14. Hapanyengwi 29. Chivendera

15. Tavareva 30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

The fact that meetings were held is further supported by the letters produced by the parties.

It is recorded, in a letter dated 1 December 1993, from the District Administrator to the Provincial Administrator, that, several meetings were held to choose the next chief. The last meeting where the first defendant's selection was confirmed was attended by members of all the houses of the Mapanzure chieftainship. There were 38 kraal heads, 120 elders of the Mapanzure chieftainship, councillor Mapanzure, Vidco, and Ward chairpersons of the Mapanzure chieftainship and the District Administrator.

The letter was common to both parties' bundle of documents.

In another letter, dated 21 June 2004, from the Provincial Administrator to the plaintiff, produced by the first defendant, the Provincial Administrator stated as follows:

“I wish to advise you that this issue should not just be Chimbuya House v Bvuramai. All houses must be involved like they were involved in the initial selection process. The initial meeting must be held without the involvement of this office. 'Tangai mataurirana vana vanyamunhu.'”…,.

I had difficulties in accepting the plaintiff's evidence that it took him over 10 years to discover that the first defendant had been appointed in 1995.

The plaintiff testified that he visited his communal home frequently. On the other hand, Luckson Jayadhara Chimbuya testified that when the plaintiff did not visit his communal home, he (Jayadhara) would visit the plaintiff at his urban home.

The appointment of a chief is a momentous occasion attended by a lot of people including senior Government officials. This was confirmed by Pesanai Gozho Chatikobo.

If the plaintiff did visit his communal home frequently, and I do not doubt him on that score, he does not appear to have been telling the truth when he said that he only became aware of the first defendant's appointment after ten years.

Luckson Jayadhara Chimbuya also sought to mislead the court when he initially testified that he had also not known of the appointment of the first defendant.

He resided in the rural area and such news could not have passed his ears. At least, he later, in his evidence, had the decency to confirm that he had heard of the meetings where the first defendant was selected and appointed chief but he did not attend any of the meetings.

He testified that although he knew of the appointment of the first defendant, he could not complain because Manyoka, the councillor, had told the villagers not to challenge the appointment as it was according to seniority.

It appears to me that he would not have missed telling the plaintiff of the appointment considering that the Chimbuya family had been vying for the chieftainship since the death of Gwenhamo.

I found the first defendant's witnesses to have been truthful and their evidence reliable.

As already indicated, Pesanai Gozho Chatikobo gave a clear explanation of the succession process and the history of the Mapanzure chieftainship.

I am mindful of the fact that Ignatius Vhushangwe was present in court when both the plaintiff, Luckson Jayadhara Chimbuya and Pesanai Gozho Chatikobo testified. I am therefore alive to the fact that his evidence may therefore have been influenced by that of the other witnesses. However, I found his narration of the history of the Mapanzure people to have been very clear and original. It would not have been contrived in court. He substantially supported Pesanai's evidence. He introduced evidence that had not been brought up by the other witnesses, such as the fact that Chimbuya was invited to return to the Mapanzure community to take up the chieftainship and the reasons why he had left that community.

Both Pesanai Gozho Chatikobo's and Ignatius Vushangwe's evidence was consistent with the 1965 and 1973 genealogies and history of the Mapanzure chieftainship.

The Issue

A chief is appointed by the President in terms of section 3 of the Chiefs and Headmen Act [Chapter 29:01]. In so doing, the President must give due consideration to the customary principles of succession, if any, applicable to the community over which the chief is to preside.

As indicated earlier, following the amendment of summons and declaration by the plaintiff at the commencement of the trial, the only issue for determination is whether or not the appointment of the first defendant was in accordance with customary principles of succession of the Mapanzure people.

The plaintiff alleges that the custom of the Mapanzure people is that they follow the collateral principle of succession, in terms of which the chieftain revolves according to the royal houses identified by Mazorodze and not according to seniority. Therefore, in the event that a royal house is due for chieftainship, the house will select the person to be the next chief from that house irrespective of the age of that person.

The first defendant alleged that succession is based on seniority within each generation. All the houses constitute one entity. When all the people in one generation die, the chieftainship rotates within the next generation. The eldest person within that generation will be appointed the next chief irrespective of which house they come from.

The present dispute, relating to the Mapanzure chieftainship, was anticipated in 1965 when Gwenhamo was still the chief.

In order to avoid such a dispute, the Mapanzure chieftainship was documented in the 1965 report, in the copy of the extract that the plaintiff produced. When the report was prepared, Gwenhamo, who was the chief then, was very old and the report was intended to document the Mapanzure chieftainship so as to avoid any succession disputes. On page 2 of the report, the author of the report lays the basis for the preparation of the report and the genealogy therein as follows:

“They (the Mapanzure people) pride themselves on their confidence that they can settle the succession amicably. Unfortunately, the elder grandsons of Mazorodze (that is the first sons of Mupandasekwa, Chimbuya, Kufandada, Zingoni, etc) were themselves older that Mazorodze's own young sons (that is, Gwenamo, Taziziva, Chivendere etc). Therefore, Gwenamo's own sons (who are now middle-aged) are a generation senior to the grandsons of Mupandasekwa, Chimbuya, Kufandada, etc. Yet, these latter grandsons are older than Gwenamo's sons.

It will be extremely difficult to sort out the generations of the various prospective claimants unless some research is done now.”

The research then disclosed that succession of the Mapanzure chieftainship was “true collateral succession.” (page 1 of exhibit I).

The difficulty that has appeared from the evidence from both the plaintiff and the first defendant's case is that they both do not seem to understand what collateral succession is.

The collateral principle of succession has been described in a number of decided cases in our jurisdiction.

In Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC), MUTAMBANENGWE J referred to a number of authorities on the principle. He observed as follows…,:

“Thus, HAROLD CHILD, The History and Extent of Recognition of Tribal Law in Rhodesia, at p6, says:

“Succession to chieftainship also shows a difference, being in most instances collateral.

Younger brothers succeed to elder brothers until the succession has been held by each in turn, when it reverts to the son of the first chief and then to the sons of the collateral lines. There are tribal variations, and the system is not always complete."

Similarly, JF HOLLEMAN, Shona Customary Law…, says:

"Succession to chieftainship is governed by the common principles of collateral succession prevailing in central Mashonaland. According to these principles, the eldest son, regardless of the position or rank of his mother, succeeds to the personal name and position of his father.

When he dies, his next youngest brother or half-brother succeeds to the father's name, until the generation of sons of the father is exhausted and the eldest grandson succeeds to the name and position of his grandfather, the determining factor again being the order of birth amongst collateral grandsons."

And E B GOLDIN and M GELFAND, African Law and Custom in Rhodesia…, say:

"Whilst among the Ndebele, the chief (induna) is selected by a system of primogeniture, in which, upon his death, the office is passed on to his eldest son, a more complicated one is adopted by the more numerous Shona-speaking people.

Their chiefs are chosen by a collateral system in which the position is passed from the head of one of the 'special families' to that of another. Each of these families is known as an 'imbahuru' or 'royal family' and on the death of a chief (ishe, mambo) his successor is selected from the representatives of two, three or even four 'royal' families in the clan. Thus, when a chief dies, his office passes on to the representative of the next family until each has had its turn, when the cycle is repeated.”

C BULLOCK, The Mashona, says…,:

"With very few exceptions, primogeniture did not govern succession. The chieftaincy theoretically descended from the elder to the younger brothers of a family, until all had held it."

At pp124E-G MUTAMBANENGWE J held:

“At pp21-22 of Holleman's Shona Customary Law it is stated:

'A man cannot, for instance, succeed to his elder brother's own name and position, but he may, after his brother's death, succeed to the name of their common father or forefather.

Especially in the case of an old and established chieftainship its succession may involve the candidacies of numerous clansmen between whom agnatic relations may be very remote.

As it is the relative age on a certain generation level which is, in principle, the determining factor, it is often difficult to know who is the eldest and therefore most eligible amongst the candidates. It is the task of tribal elders, mostly belonging to the ruling clan, and of other important kinsmen, to determine which candidate has the best rights to become chief. In the event of serious rivalry, recourse may be had to a svikiro (spirit medium) of an important ancestor to ascertain the views and wishes of the ancestral spirits.'”…,.

In Chagaresango v Chagaresango 2000 (1) ZLR 99…, MUCHECHETERE J also quoted with approval GOLDIN and GELFAND's African Law and Custom in Rhodesia and referred to Ruzane v Paradzai & Anor 1989 (1) ZLR 118 (HC) and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (S): see also Pharoah B. Muskwe v Douglas Nyajina & ORS HH92-07…

As observed in the cases, the principle varies with each community. However, it appears that the authorities are agreed that chieftainship among most of the Shona-speaking people passes from elder brother to younger brother in one generation until all the brothers have succeeded to the throne. It is therefore based on the seniority of those brothers. It then moves to the next generation.

What appears from JF HOLLEMAN's Shona Customary Law is that sons of the chief constitute one house irrespective of the rank of their mothers. It is the father who is the determining factor. Therefore, a half-brother can succeed another half brother according to their seniority.

A variation of this principle of succession is given in GOLDIN and M GELFAND's African Law and Custom in Rhodesia…,. It is apparent from the above quote that succession can be according to houses where there is more than one royal house. But, even in such a case, succession is according to seniority, with the head of one house succeeding another until each royal house has had its turn.

As indicated earlier, the plaintiff failed to establish that there were seven royal houses. The 1965 report that he produced did not support him.

I was persuaded by the evidence of Pesanai Gozho Chatikobo and Ignatius Vhushangwe that Mazorodze's sons all constituted one house irrespective of their mothers and that succession was according to the seniority of these sons.

The same principle of succession would equally apply in respect of Mazorodze's grandchildren and their own children ad infinitum.

This explains why Chatikobo succeeded Chimbuya as chief despite the fact that the two were from different mothers.

The collateral succession practised by the Mapanzure chieftainship is captured in both the 1965 report and the 1973 minutes. In the 1965 report, it is stated that:

“The previous svikiro was Gwenamo's own half-sister, Mavengedzene (same father, Mazorodze, but different mothers). Gwenamo 'accepted the spirits' because he seemed to have no chance of succeeding to the chieftainship. Obviously, as svikiro, he did not have a say in his own appointment - nor did he officiate at his own installation. In fact, there was simply no selection necessary after Bwango's death.

Gwenamo was the last surviving son of a long line of brothers, and his selection was automatic. As the chief himself put it: 'I was son of my father'.

He meant that he is the last surviving son of Mazorodze for two younger brothers, Chivendera and Taiziziva, pre-deceased him.” (p2 of exhibit I).

“Later, Chimbuya died, and, according to custom, Chatikobo was selected to succeed his brother. Kufandada and Zingoni had pre-deceased Chatikobo.

Chatikobo had a small badge so he said: 'How can I take two badges?'

He therefore gave his own badge to his son, Tasarirawona, whose other name was Mukasi, and retained the big badge for himself. Chatikobo was then chief over the whole area, including that over which he himself had been placed in charge.

When Chatikobo died, his young brother, Shumbayaonda, took over the chieftainship, and so on until the youngest surviving son Gwenhamo. He is our Chief today. He is the rugohwe (last born).” (see p3-4 of exhibit I).

The 1973 minutes (p1 of Exhibit 2) state:

“The District Commissioner asked for enlightment on certain aspects of the family tree as recorded by Mr. Kaschula in May 1965.

It was agreed by all present that MUPANDASEKWA was the first born son of MAZORODZE, but he died before he could succeed to the Chieftainship, which then went to his young brother CHIMBUYA. His young brothers, KUFANDADA and ZINGONI, pre-deceased him and the chieftainship then went to CHATIKOBO. MUSINAZANO and CHIHAVA predeceased CHIHAVA (it appears there was a mistake as the name was repeated. It appears the second Chihava should have been Chatikobo as he was the last chief) and the Chieftainship therefore then went to the next brother SHUMBAYAWUNDA who was pre-deceased by his younger brother, CHIZEMA, and thence to MARGWIROKONA. He reigned a short time and then he was pre-deceased by his young brother TSUNGIRAI and the 'nyembi' went to the next young brother, ZISHIRI. ZISHIRI's young brothers, MUTODZANISO, HAPANYENGWI, TAVARERA, RUTORO, KUVENGASHE, RIMA, MUTUKWA, GOWO, CHIRUNDUMWA, RICHANYU, GANDA and WUSHE all pre-deceased him and the next Chief was BGWANGO. His young brothers, RUSHANGWE and TIRIVANERA, died before him, so the Chieftainship went to GWENHAMO, the Chief who has just died. His younger brother CHIVENDERA and TAIZIZIVA both died as bachelors.”

The above analysis of the chieftainship clearly reflects the fact that chieftainship was according to the line of brothers, and in accordance with their seniority. It was not, and it appears still is not according to the royal houses identified by the plaintiff.

The sons from the said royal houses did not succeeded to the chieftainship by design. It was by misfortune. The brothers before them had died before their turn and during the reign of their elder brothers.

It is also apparent that Vushangwe, the first defendant's father, and Tirivahera, did not succeeded because they pre-deceased Bgwango who was the chief during their lifetime.

The succession of Masimba Shumbayawonda was also not by design. It was because Gwenhamo's brothers, Chivendera and Taiziziva, had pre-deceased Gwenhamo. Upon Gwenhamo's death, the chieftainship was then to move to the next generation, the 6th generation, because Gwenhamo's younger brothers, Chivendera and Taiziziva had pre-deceased him. He was Mazorodze's last surviving son.

Masimba Shumbayawonda was found to be the eldest in that generation hence his appointment as chief. Upon his death, the next chief had to be the next eldest brother within the 6th generation.

The first defendant falls under the 6th generation.

The question as to whether there was any other person older that the first defendant within that generation was put to the plaintiff under cross-examination as follows:

“Q: The current chief is a brother to your father?

A: Yes. The current chief referred to my father as elder brother.

Q: Is there someone in the Chimbuya family now called 'father'?

A: Yes, there is one.

Q: Who is older between the one you refer to as your father and the current chief?

A: The current chief is older but they are almost the same age.

Q: I put it to you that your evidence that that chieftainship goes by fathers is correct and therefore the appointment of the current chief was proper?

A: I think you misquoted me. The father from the Chimbuya house is older.

Q: It is better for you to admit that you have made an error instead of saying that I misquoted you.

A: My apologies. It might have been a slip of the tongue. I wanted to say the father from the Chimbuya house is older.”

Apart from that belated correction, the plaintiff did not advance any evidence to prove that the “father” from the Chimbuya House was older than the first defendant.

Luckson Jayadhara Chimbuya did in fact concede that the first defendant was the oldest. This was also confirmed by Pesanai Gozho Chatikobo and in the letters from the District Administrator that the parties produced.

From the above, it is my view that the first defendant, being the eldest in the 6th generation, was entitled to be appointed as the Chief Mapanzure. This was in accordance with the customary principles of succession of the Mapanzure chieftainship.

In the result, the plaintiff's claim is dismissed costs.

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

Chikwavadombo Mastick Marange [“Chikwavadombo”] died on 8 September 2005. He was the substantive Chief Marange. Two persons acted in his place and stead, each in turn, after his death. These were one Ringisai Noah Marange and one Gilbert Marange.

The first respondent eventually succeeded him as Chief Marange.

The process of selecting Chikwavadombo's successor was long and arduous. It commenced at about the time of Chikwavadombo's funeral. It remained in place for some eleven (11) years running. It ended with the installation of the first respondent as Chief Marange. The installation took place on 27 October 2016.

The installation of the first respondent triggered the present application.

The applicant alleged that the first respondent was irregularly and improperly appointed to the position of Chief Marange. He said the incumbent Chief [“incumbent”] was imposed upon the people of Marange. The incumbent was, according to him, not the people's preferred candidate for the position. He stated that the people had chosen him, and not the incumbent, to be their Chief. He averred that the second respondent hand-picked the first respondent and imposed him on the people against the latter's wishes.

He moved the court to review the work of the second respondent and set the same aside, and, by implication, remove the first respondent from his position of Chief for the people of Marange.

The respondents opposed the application.

They agreed with the first respondent's in limine matter. They submitted that the court lacked jurisdiction to hear and determine the application. They anchored their argument on section 283 of the Constitution of Zimbabwe.

They stated that disputes which related to the appointment, removal, and suspension of a Chief should be resolved by the third respondent on the recommendations of the Provincial Assembly of Chiefs through the second respondent. They insisted that the applicant should have taken that route instead of approaching the court. He should, they said, have referred his grievance to the Provincial Assembly of Chiefs for dealing.

They moved the court to dismiss the application.

The application is, in my view, against the second, more that it is against the third respondent. The third respondent was not involved in the selection process which culminated in the nomination of the first respondent as the substantive Chief Marange. He was, in fact, presented with a fait accompli. The second respondent, who commenced the selection process and drove it through to the nomination stage of the first respondent, presented the third respondent with a recommendation upon which the latter had to, and did actually, act. He had no choice but to endorse his signature upon the recommendation of the second respondent. The third respondent operated upon the premise that the second respondent, to whom he assigned the Traditional Leaders Act, would not mislead him....,.

On the merits, the applicant gave a clear and concise narration of the events which led to the appointment of the first respondent to the position of Chief Marange. His version was easy to follow. He made every effort to show that he was the preferred candidate for the position of Chief Marange.

He attached to his application the supporting affidavits of nine (9) persons.

He also attached to the same a letter which the second respondent allegedly addressed to the Office of the Attorney General on 21 April 2015 and a Cabinet Minute which the second respondent purportedly drew on 4 May 2016....,.

The supporting affidavits of the nine persons were deposed to on 1 November 2016.

Four (4) of the nine (9) persons did, on 10 January 2017, depose to affidavits in which they denied having ever deposed to affidavits in support of the application. They stated that the signatures which appeared on the supporting affidavits of 1 November, 2016 did not belong to them. They denied having ever appeared before any Commissioner of Oaths to sign the affidavits.

Two (2) of the four (4) did, on 26 February 2017, depose to affidavits stating that their depositions to the affidavits of 10 January 2017 were made by them under duress. They said they were taken from their rural home to Harare where they were accused by an unidentified, physically-imposing man, of undermining the authority of the Government by supporting the applicant. They said they were told to make amends and were given drafted affidavits which they were made to sign and they signed those.

Three (3) of the four (4) did, on 14 March 2017, depose to affidavits in which they dissociated themselves from the applicant's case and cause.

It is evident, from the foregoing, that the deponents were used as a means to an end. They were, no doubt, at the mercy of the applicant and the first respondent. They went along with whoever approached and sought their support.

No weight can be attached to affidavits of persons who swang from one party to the other like a pendilum. The affidavits told a lie about themselves. In telling the lie as they did, they revealed the pressure to which the deponents were subjected in the parties' respective effort to ascend to the throne.

The supporting affidavits which the applicant attached to the application do not, therefore, support anything let alone his case.

The letter which the second respondent allegedly addressed to the Office of the Attorney General and the purported Cabinet Minute do carry very little, if any, weight. Neither the letter nor the Cabinet Minute was signed by anyone. Their origin was not clarified.

The applicant did not tell the court what method he used to access the two documents. They were not for his attention or consumption. They are privileged documents which are for the attention of no one else but Cabinet.

The net effect of the above analysed matters is that the applicant's case stood on nothing.

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He did not discharge the onus.

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

I therefore disregard it.

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

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

The Background

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

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

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

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

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

At least this much is not in dispute.

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

These premises are leased.

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

Certain tenants have continued paying rentals to the applicants.

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

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

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

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

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

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

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

The Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Issues

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

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

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

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

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

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

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

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

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

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

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

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

Turning to these arguments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the circumstances, I make the following order:

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

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

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

HH740-15 : COSMAS ZAVAZAVA and VONGAI ZAVAZAVA vs JONAH TENDERE and TENDAI TENDERE and THERMO-DYNAMICS REAL ESTATE and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI J

It would appear that conveyancing laws of this country are not foolproof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers.

The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency.

For how long will these fraudsters, who strut among communities, continue to hold sway, to make a mockery of transfer rules to milk unsuspecting home seekers dry in order to make a dishonest living?

These shameless individuals bring the whole process of private ownership of immovable property and registration of title to disrepute. There is a pressing need for reforms to be introduced in conveyancing rules, in order, not only to modernise the system, but also to render the system foolproof and hopefully protect property owners.

Counsel for the applicant has drawn my attention to the remarks of HOLMES JA, which are apposite, in the case of Oakland Nominees Ltd v Gelria Mining & Investment Co Ltd 1976 (1) SA 441 (A) 452A where the learned judge of appeal made emphasis that our law jealously protects the right of ownership and the correlative right of the owner over his property. He further stated:

“The legal principle enunciated above is solidly noble because since time immemorial, at every stage of human evolution, societies have suffered the inevitable unfortunate phenomenon of having in their midst, an array of thieves, fraudsters, robbers, cut-throats, the throwbacks in evolution etc with no qualms whatsoever in employing force or chicanery to dispossess fellow humans of ownership of their property.

If the law did not jealously guard and protect the right of ownership and the correlative right of the ownership to his/ her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.”

Just how does a fraudster and a thief, coveting another person's property, succeed to advertise the property, attract a buyer, sign a sale agreement, and engage a conveyancer to successfully transfer that property from the true owner to the buyer before gleefully skipping away with the proceeds?

Cosmas Luckyson Zavazava is employed by an international organisation which posts him to various parts of the world and is currently stationed in Geneva, Switzerland. He and his wife, Vongai, identified an under-developed piece of land, Stand 816 Ruwa Township of Stand 659 Ruwa Township (the property) and purchased it on 29 November 1996.

They took transfer on 20 March 1997 and held title by Deed of Transfer number 997/1997.

They did not commence developing the property owing to their sojourn in foreign territories in pursuit of the husband's employment. When they tried to do so, in 2013, they discovered, to their amazement, that, Jonah Tendere and Tendai Idzai Anania Tendere, husband and wife, who are the first and second respondents in this matter, were busy trying to develop the property.

It turns out that, unbeknown to the Zavazava family, who are the applicants in this matter, a stranger, by the name Wilson Madziva, who is now deceased and was running an estate agency known as Thermo-Dynamics Real Estate (what a name), which is the third respondent in this matter, had advertised the property through the agency of another estate agent, Elite Real Estate (Pvt) Ltd, attracting the interest of the first and second respondents.

A sale agreement was entered into between them and the third respondent and signed on 17 July 2009 in terms of which the property was sold for $8,500. It was subsequently transferred from the third respondent to the first and second respondents with the active involvement of the late Wilson Madziva, by Deed of Transfer Number 204/2011.

The third respondent had itself taken transfer of the property by Deed of Transfer Number 1680/2009.

The conveyance of the property, from the applicants to the third respondent, was handled by one Walter Bherebhende, a conveyancer practising at Mavhunga & Sigauke Legal Practitioners of Harare.

The applicants say they never sold their property and never instructed Walter Bherebhende to transfer it to the third respondent. Only Walter Bherendere knows what transpired and he has deposed to an affidavit which has not been challenged stating:

“4. My knowledge of this matter is as follows:

4.1. In March 2009, I was practising under Messrs Mavhunga & Sigauke Legal Practitioners when I was approached by a Mr Wilson Madziva who was a client of our law firm and also the proprietor of an estate agent known as Thermo Dynamics Real Estate which is the third respondent herein.

4.2. Mr Madziva instructed me to process the transfer of Stand 816 Ruwa Township of Stand 659 Ruwa Township which was registered under the applicant's names under Deed of Transfer No.997/1997 into the name of the third respondent.

4.3. I confirm that I was shown an agreement of sale which purported to have been signed by all the parties.

4.4. I then proceeded to prepare the necessary powers of attorney to pass transfer and I requested that all of the parties appear at our offices to attend to the signing of the declarations and powers of attorney. I also requested the parties to bring their original identity documents and the original title deed.

4.5. Wilson Madziva appeared on behalf of the third respondent and persons purporting to be the applicants also appeared on behalf of them with the original title deed and identity documents in the applicants names.

4.6. I confirm that I had no reason to suspect that the persons purporting to be the applicants were in actual fact not the applicants.

4.7. Accordingly, the transaction proceeded as normal, and, after all normal channels and procedures were followed, the property only transferred into the name of the third respondent under Deed of Transfer No.1680/2009.

4.8. I was surprised, when, five years later, I was approached by the police and advised that the persons who had appeared before me were in actual fact not the applicants. Unfortunately, I had not made copies of the identity documents and I tried to access them from ZIMRA; however, ZIMRA insisted that it would only release the same upon a court order compelling them to do the same.

4.9. I can however confirm that the parties who appeared before me are not the applicants in this present matter.

4.10. Mr Wilson Madziva is however now deceased therefore he is also not in a position to clarify the issues.

5. In the circumstances, in light of the fact that initial transfer was done through a misrepresentation, I would aver that the applicants are entitled to the relief they seek in respect of cancellation of the title deeds.”…,.

Therein lies the problem.

The conveyancing instructions given to the conveyancer came from the purported purchaser of the property, Wilson Madziva, representing the third respondent, and not from the purported sellers and owners of the property - the applicants.

This did not stop the conveyancer, purporting to act on behalf of the sellers, from proceeding with such instructions.

He says he only requested that all the parties should appear before him, which is as difficult to believe as it is very unlikely in the circumstances of a busy law practice - assuming his was also busy.

A conveyancer is the agent of the seller and undertakes transfer at the instance of the seller and not the purchaser.

As long as legal practitioners in this jurisdiction do not grasp that basic fact, we will continue to have fraudulent transfers of property as occurred in this matter.

I must add, that, as long as law firms continue to relegate conveyancing practice to clerks and paralegals the rot that is presently manifesting itself will perpetuate.

For one thing, these conveyancing clerks and lodging clerks do not appreciate the legal implications of the procedure provided for transfer, and, as far as they are concerned, as long as the necessary documents have been signed, no matter by who, and the conveyancing fees paid, the job has been done.

Invariably, the conveyancer is merely presented with processed documents and happily appends his signature on the top of the Deed and appropriates the fee before hastily leaving the office to play golf.

No effort is made to verify the documentation and to ensure compliance with the rules.

In short, the rules are adulterated for expediency and the most important element in legal practice, conveyancing, is reduced to a mockery.

Once signed, the deeds are taken to the Deeds Registry by a lodging clerk for lodgement, and, although the contents announce to the world that the conveyancer appeared before the Registrar of Deeds to convey the transfer; in practice, the conveyancer never does that.

It is for that reason that we are now experiencing an influx in cases of fraudulent transfers.

What we have here therefore is an unfortunate situation indeed borne out of laxity and inattention.

The conveyancer was remiss in a big way and only succeeded in transferring property belonging to the applicants unlawfully. A fraudster took that transfer and later sold the same property to the first and second respondents who are also victims of a fraud.

The question which arises therefore is: what was the legal effect of all that activity and where does it leave the parties?

The papers before me clearly demonstrate that the applicants did not sell their property to the third respondent. They did not transfer it either. That was done by someone else - without their knowledge or consent.

The position of the law, in that regard, is aptly stated by the leaned author R.H. CHRISTIE, Business Law in Zimbabwe, 2nd Ed, Juta & Co Ltd…,:

“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring a vindicatory action to recover his property from anyone, including a bona fide buyer, in whose hands he finds it. The general rule that the seller can give no better title than he has operates in favour of the true owner, unless the purchaser proves that the true owner is estopped from denying the seller's authority to sell.”

McNALLY JA developed that point further in Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S)…, when he pronounced:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20 A-C. The innocent purchaser's only defence is estoppel.”

The nemo dat quod non habet and nemo plus iuris ad alium transferre potest quam ipse habit; that is, no one can give what he does not have and noone can transfer any right greater than he himself possesses are firmly rooted in our legal science.

Therefore, where a person who is not the owner, and possesses no mandate to do so, purports to transfer property, such transfer is a nullity; see SILBERBERG and SCHOEMAN, The Law of Property, 2nd ed…,.

The applicants therefore have a vindicatory right against whomsoever is in possession of their property - even an innocent purchaser.

The actio rei vindicatio is available to the owner whose property is in the possession of another without his authority or consent. Its concept is that an owner cannot be deprived of his property against his will. Such owner is entitled to recover the property from any person who is in possession of it without his consent.

All the owner is required to prove is that he is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right of retention; see Jolly v A Shannon & Anor 1998 (2) ZLR 78 (H)…,; Chetty v Naidoo 1974 (3) SA 13 (A)…,; Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H).

It is regrettable that the possessors of the applicants' property are an innocent couple which was trying to find a home for themselves and have lost their money to a trickster who has already met his maker.

There is however a glimmer of hope for them because the third respondent, the vehicle through which Wilson Madziva operated, is said to be still operational presenting them with a chance to recover damages from it.

For our purposes, to the extent that the applicants did not alienate their property, the attempt to do so by someone else was a nullity. Therefore, the purported transfer from the applicants to the third respondent, by Deed of Transfer No.1680/2009 was invalid as a non-owner could not transfer what he or she did not own. It follows, therefore, that, the purported transfer from the third respondent to the current holders was also a monumental nullity.

At all times, the applicants legally retained ownership.

As a necessary consequence, the provisions of section 8(2) of the Deeds Registries Act [Chapter 20:05] apply. It provides:

“Upon the cancellation of any deed pursuant of an order of court -

(a) The deed under which the land or any real right in land was held immediately prior to the registration of the deed which is cancelled shall be revived to the extent of such cancellation unless a court orders otherwise; and

(b) The registrar shall make the appropriate endorsement on the relevant deeds and entries in the registers.”

In the result, it is ordered that:

1. The 4th respondent is hereby directed to cancel Deed of Transfer No.1680/2009 and Deed of Transfer No.204/2011 in favour of the 3rd respondent and the 1st and 2nd respondents respectively in respect of the immovable property described as certain piece of land in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township and to make any appropriate endorsements on the said Deeds of Transfer and entries in the registers to reflect the said cancellations.

2. Deed of Transfer No.997/1997 is hereby declared the valid deed in respect of the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township.

3. The 1st and 2nd respondents and all those occupying through them the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township, shall give vacant possession of the said property to the applicants within fifteen (15) days of this order failing which the Sheriff of the High Court or his lawful deputy is hereby authorised and directed to evict them and give vacant possession to the applicants.

4. The 1st, 2nd and 3rd respondents shall bear the costs of suit jointly and severally the one paying the others to be absolved.

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI
Ruled By: KUDYA J

On 19 September 2008, the plaintiff issued summons out of this court seeking $50 million for adultery damages against the defendant. The defendant denied the allegations in his plea filed of record on 17 December 2008.

At the pre-trial conference held on 19 May 2009, the amount claimed was amended, by consent, to US$5,000.

The matter was referred to trial on the following issues:

1. Was there an adulterous relationship between the defendant and the plaintiff's wife?...,.

The plaintiff testified and called the evidence of two other witnesses. The defendant also gave evidence and called the evidence of one further witness.

A single documentary exhibit, the marriage certificate of the plaintiff and his wife, was produced in evidence.

It was common cause that the plaintiff was married in terms of civil rites on 6 September 1997. No children were born of the marriage. The plaintiff's wife first worked as an intern with the Zimbabwe Broadcasting Corporation in January 2000 before joining the corporation on a full-time basis in October 2003 on completion of her studies at the Harare Polytechnic.

She worked in the same department with the defendant until he left employment in 2005 to join the Postal and Telecommunications Regulations Authority of Zimbabwe.

The plaintiff averred, in his evidence, that, his wife introduced him to the defendant during a football match between Sporting Lions and CAPS United during the 2004-2005 football season.

In his declaration, the plaintiff averred that the adulterous relationship occurred between 2004 and July 2007.

In his summary of evidence, he averred that it commenced in 2000.

In evidence, the plaintiff stated that he left to work in South Africa in 2007 where his wife joined him later that year. When she came to South Africa, she was emaciated and sickly. She was diagnosed with tuberculosis and put on treatment. She did not respond to treatment. She was tested for and found with the HIV virus.

She voluntarily confessed to him that she had contracted the virus from the defendant and detailed the adulterous relationship with him over the course of the eight years - beginning from 2000.

She described his flat where most of the trysts were performed and revealed that they also had sexual trysts at a lodge in Harare and in a car. She described to him some intimate parts of the defendant's anatomy which he revealed in his testimony.

He was tested HIV positive both in Zimbabwe and South Africa. He was devastated by the change in his health status.

He left his employment as a driver in South Africa because he could not mentally come to terms with his new status. He became a danger while behind the wheel as he was troubled by the turn of events. He toyed with the idea of committing suicide.

He was satisfied that his wife told him the truth after he phoned the number that appeared in her diary under a woman's name and it was answered by the defendant who also confirmed it was his.

As a result of the adulterous liaison, he separated from his wife.

His privacy was invaded, his dignity and reputation ruined. He was emotional and cried during his testimony. He felt belittled amongst his kith and kin by the adultery as his wife had been a model wife.

He sought damages for the hurt in the sum of US$2,500. He lost the comfort, society and services of his wife as a result of the adultery and sought damages for the loss of consortium in an equal amount.

He was asked ineffectual questions during cross examination, which left his testimony unscathed.

His wife testified.

She gave detailed evidence of her adulterous relationship with the defendant from January 2000 to December 2006. She had sexual intercourse with him at his flat from January 2000 until his marriage. Thereafter, they continued to do so at a lodge along Herbert Chitepo Avenue in Harare and in Room 40 at their workplace.

She related one incident in which she had sexual intercourse with the defendant, in the presence of his wife, at his flat, where the two women took turns to sexuallly entertain the defendant.

She also referred to another incident when they did so in a car at a bus stop along the Seke road as he was driving her to her matrimonial home.

She stated that she advised him of her marital status from the very beginning when he proposed love to her. He was undeterred by her marital status.

She confirmed that she introduced him to her husband one Sunday afternoon at Rufaro Stadium during the BP Cup final between Motor Action Football Club and CAPS United Football Club.

She, at all times, wore her wedding ring on the appropriate finger on her left hand.

She stated that she was the one who revealed to her husband about the affair in order to expiate the error of her ways. She stated that she gave the defendant's two e-mail addresses and cell number, which was recorded in her diary under a female pseudonym, to the plaintiff.

She was cross-examined by the defendant.

He heaved a huge sigh before he commenced cross examination. She did not recall the various dates and times on which the incidences took place as she had not diarized them. In any event, she never anticipated that she would, at some future date, confess her error to her husband. She maintained her evidence in chief and described the sexual anatomy of the defendant in detail.

She gave her evidence well. It was detailed. It was consistent with what she told her husband. The two discrepancies on the description of the defendant's testes and the name of the team which played CAPS United on the date that she introduced her husband to the defendant were insufficient to dent her credibility.

Her version, as to the existence of a love affair between her and the defendant, was confirmed by Memory James, who was her best friend and room mate at the Harare Polytechnic in 2000.

I was satisfied, from her demeanor and forthrightness, that she knew the defendant back then as a boyfriend of the plaintiff's wife.

Memory James testimony, that the plaintiff's wife wore a wedding ring at the time, was confirmed by Mugove Gada, a witness called by the defendant. I believed her story in full.

The defendant baldly denied any knowledge of the marital status of the plaintiff's wife.

His denials sounded hollow for a man who worked with the plaintiff's wife for seven years. He was adamant that he never saw the wedding ring on her. He was her supervisor and took part in interviewing her for the job she landed after her training.

His denials painted him as an untruthful witness.

In my view, he denied any knowledge of her marital status in a bid to distance himself from the love affair he pursued with her. He falsely denied that he was living positively with the HIV virus in his pleadings and when he cross-examined the plaintiff and his wife.

He was an untruthful witness. I did not believe his version of events where it differed with that of the plaintiff's wife.

I am satisfied, from the evidence that was led, that, the defendant committed adultery over a seven year period with the plaintiff's wife. In the process he infected her with the HIV virus, and she, in turn, infected the plaintiff.

I answer the first issue that was referred to trial in the affirmative.

SC16-21 : GML EXPLOSIVE (PRIVATE) LIMITED vs LACKSON GONO AND 29 OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and MATHONSI JA

On 15 August 2019, the High Court (the court a quo) issued a provisional order for the provisional winding up of the appellant at the instance of the respondents who are its former employees. The court a quo confirmed the provisional liquidation order by judgment delivered on 20 November 2019.This ...

BACKGROUND

The respondents filed a court application for the winding up of the appellant in terms of section 206(f) and (g) of the repealed Companies Act [Chapter 24:03] on the basis that it was unable to pay its debts and that it was just and equitable that the company be wound up.

They alleged that the appellant had admitted owing them a combined sum of US480,330 in wage arrears as at 9 June 2014. In total, they alleged that the appellant owed over US$1,3 million in arrear salaries and wages alone and that its legacy debt in respect of all its creditors was estimated at US3,670,241.

The respondents stated, further, that, the appellant had cited “operational challenges” that the company had closed shop and was “non-operational” as the reasons for its inability to pay debts.

In that regard, the respondents' case was that the appellant was commercially insolvent, being unable to discharge debts it acknowledged as owing.

As I have said, a provisional liquidation order was granted on 15 August 2019.

When no opposition was filed, except for what was called “affidavits of the interested parties” by individuals who stated that they did not support the liquidation, confirmation of the provisional liquidation order was sought on an unopposed basis.

DECISION A QUO

The court a quo noted that the handwritten affidavits by the interested parties merely dissociated the individuals in question, some of whom were also former employees of the appellant, from the application for winding up. It found that none of the interested parties had tendered evidence to challenge the basis upon which the winding up of the appellant was sought.

The court a quo further found that one of the individuals who had submitted an affidavit of interest was Mathias Ndere, the Finance Manager of the appellant, who had made an admission that the appellant had failed to pay its debts.

It concluded that the admitted failure to pay the respondents what was due to them is evidence of inability to pay debts and that it was not up to the appellant to choose how and when it was to pay what was long overdue.

As the confirmation of the provisional liquidation order remained unopposed, the court a quo confirmed it.

THE APPEAL

The appellant was aggrieved by that turn of events and appealed to this Court on five grounds. At the hearing of the appeal, counsel for the appellant sought to amend ground four, which amendment was granted. He then abandoned the remaining grounds of appeal electing to motivate the appeal entirely on the amended ground four. It reads:

“A fortiori, the court a quo grossly misdirected itself in confirming the provisional order on the basis that it was just and equitable to do so.”

Having elected to ground the appeal on the basis that the court a quo confirmed the liquidation because it was just and equitable to do so, it becomes apparent that the appellant does not assail the court a quo's finding that it was unable to pay its debts.

A close reading of the judgment of the court a quo shows that the final order of liquidation was based on the proven inability to pay debts as provided for in section 206(f) of the Companies Act. The court a quo made reference to that provision of the repealed Act.

SUBMISSIONS ON APPEAL

At the commencement of the hearing, counsel for the appellant made an application to adduce further evidence on appeal.

An application had been filed on 22 October 2020 to which was attached the evidence sought to be adduced. The evidence consists mainly of schedules and proof of payments made to some of the appellant's creditors after the judgment of the court a quo.

According to the appellant, the evidence would show, that, subsequent to the liquidation, the appellant's shareholder had mobilised resources and paid off “all the creditors” save for a few whose account details were not available at the time of payment.

Counsel for the respondents did not oppose the application having taken the view that the evidence sought to be adduced on appeal did not advance the appellant's case in any way.

The application to adduce evidence was then granted by consent.

It was counsel for the appellant's submission, that, the court a quo considered the circumstances of the appellant which prevailed at the time the matter was heard but had no regard to its future circumstances. What has since transpired is that the inability to pay debts has morphed into ability to pay. The appellant has paid all the debts since the liquidation order was granted. As a result, there is no longer any cause for liquidation. It has no purpose, so it was argued, and should be set aside.

Per contra, counsel for the respondents premised his case on two fundamental points:

(i) Firstly, he submitted, that, at the time the court a quo determined the matter, the appellant was hopelessly insolvent. Its inability to pay debts was admitted and a request had been made on its behalf for a moratorium of about six months during which time it hoped to pull itself out of that incongruent financial quagmire.

The appellant was not trading and is still in that position up to now. For that reason, so it was argued, the court a quo correctly granted the final order of liquidation.

(ii) Secondly, counsel for the respondents submitted, even the further evidence adduced on appeal clearly demonstrates that the appellant is still in the same state of insolvency. The evidence shows that the appellant has not paid all that it owes to its creditors. Months after the final liquidation order was made, the schedule of payments shows that part payments were made to a number of former employees leaving outstanding balances.

Counsel for the respondents submitted, further, that, the debts were denominated in United States dollars. What the appellant has done is to take advantage of the judgment of this Court in Zambezi Gas Zimbabwe (Private) Limited v N.R. Barber (Private) Limited and Another SC03-20 which determined the rate of exchange following the introduction of the Zimbabwe dollar at the rate of one to one to the United States dollar.

According to counsel for the respondents, the appellant has made part-payments to its creditors, in Zimbabwean currency, several months after liquidation and used that to seek to claw its way out of insolvency. He submitted that there is no legal basis for setting aside the judgment of the court a quo even if regard is had to the evidence adduced on appeal.

ANALYSIS

The winding up of the appellant was sought on the basis that it was unable to pay its debts. This is set out at p10 of the founding affidavit in the following terms:

“This is an application for the winding up of the respondent company, GML Explosives (Private) Limited, based upon the fact that the respondent is unable to pay its debts when due, and, critically, the fact that it has persistently failed to provide proof that:

10.1 It is in a position to pay its debts;

10.1 (sic) It is not preferring one creditor above another.”

It is common cause, that, at the time the application for winding up was made, the appellant had failed to pay its employees and that some of the arrears dated back to 2009.

In a memorandum written by the appellant's Human Resources Officer, on 22 February 2018, it was admitted that “the company is still experiencing operational challenges” and further that “the company is not operational.”

Section 206(f) of the then Companies Act [Chapter 24:03] gave the court a quo a discretion to order the winding up of a company unable to pay its debts. The discretion arose from the use of the word “may” in that section.

The court a quo found that the appellant's failure to pay the respondents what was due to them “is evidence of its inability to pay the debts.”

In my view, that finding cannot be faulted at all.

In granting the relief sought, the court a quo was engaged in the exercise of judicial discretion.

A creditor is ordinarily entitled to a winding up ex debito justitiae where the grounds for it provided for in the Companies Act have been satisfied. The court is however said to have a narrow discretion to withhold the winding up in very exceptional circumstances: see Croc-Ostrich Breeders of Zimbabwe (Private) Limited v Best of Zimbabwe (Private) Limited 1999 (2) ZLR 410 (H)…,.

The onus of proving the existence of exceptional circumstances as would inform the withholding of a winding up where grounds for it exist lies on the party opposing it.

In this case, it rested on the appellant.

The application was not opposed and the affidavits of interested parties did not raise any exceptional circumstances.

There was therefore no basis for withholding the winding up where it had been shown, and indeed admitted, that the appellant was unable to pay its debts - an ailment which continues to afflict the appellant long after the court a quo rendered judgment....,.

More importantly, the appellant did not discharge the onus of setting out exceptional circumstances that would trigger the exercise of discretion in favour of withholding a winding up.

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

The first plaintiff's witnesses, Jack Nhliziyo and Mandleni Nhliziyo, were extremely unhelpful to the court.Their evidence was vague and of little assistance to the plaintiff's case.

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

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

FACTUAL BACKGROUND

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

The appellant opposed the application.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE DECISION OF THE COURT A QUO

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

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

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

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

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

GROUNDS OF APPEAL

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

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

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

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

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

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

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

SUBMISSIONS BEFORE THIS COURT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred by finding that there were no material disputes of fact which warranted the matter to be referred to trial

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

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

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

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

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

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

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

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

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

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

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

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

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

The learned Judge in the court a quo noted that:

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

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

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

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

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

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

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

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

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

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

Whether or not the court a quo erred in granting the declaratur

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DISPOSITION

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

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

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

It is accordingly dismissed with costs.

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

The late Addison Mhlanga was of Malawian extraction who came and naturalized himself in Zimbabwe.

He married one Dinah Ndlovu but did not have children. The two then adopted Esther Ncube (nee Nkala) as their child. Dinah Ndlovu pre-deceased Addison Mhlanga. Addison Mhlanga died intestate on 22 September 2003 at age 85 years.

He owned Stand Number 49257 otherwise known as Block 26/919 Mpopoma Township, Bulawayo.

The adopted child, Esther Ncube (nee Nkala), died on 19 November 2012 leaving three children, viz Sibonile Ncube, Zanele Ncube and Sikhangele Ncube.

At an edict meeting before the Additional Assistant Master, on 19 March 2013, Esther's relatives agreed that the respondent be appointed executor dative to administer the estate of the late Addison Mhlanga.

Apparently, the respondent is related to the late Addison Mhlanga's late wife, Dinah Ndlovu, the latter having been the respondent's maternal aunt.

Ordinarily, the sole asset of Addison Mhlanga's deceased estate, viz the Mpopoma house alluded to supra, was set to devolve upon Esther's estate, which, in turn, was set to be inherited by Esther's three daughters mentioned above.

Following an advertisement in the Chronicle Newspaper and the Government Gazette of Addison Mhlanga's estate by the respondent, the appellant, out of the blue, and having changed the surname on her birth certificate from Nkhulambe to read Mhlanga on 7 May 2013, lodged an application, on 10 May 2013, in the Magistrates Court Bulawayo to have an edict meeting for the appointment of herself as heir to Addison Mhlanga's estate claiming to be the sole surviving daughter to Addison Mhlanga.

The application was dismissed, and, dissatisfied with the outcome, the appellant lodged the current appeal before this court. Two main grounds of appeal were raised and they are these:

“1. The learned magistrate erred at law in dismissing appellant's claim when -

1.1 There was evidence to the effect that the deceased, Addison Mhlanga, disclosed, during his lifetime, that appellant was his daughter.

1.2 The appellant had a birth certificate showing that the deceased Addison Mhlanga's father (sic).

1.3 The deceased, at the time of his death, had allowed the appellant to reside at his house and she continues to do so now.

1.4 The now deceased, Esther Nkala, did not reside at the said house – 26/919 Mpopoma, Bulawayo after the death of Addison Mhlanga.

1.5 Appellant's lobola was paid to the deceased, Addison Mhlanga, during his lifetime.

2. The learned magistrate also erred at law in accepting, that, the late Esther Nkala's children were entitled to inherit from the late Addison Mhlanga's estate because Esther Nkala was his adopted daughter when no document was produced to prove that she was and had been adopted.”

The appellant's prayer is that she be declared the late Addison Mhlanga's daughter and that the late Esther Nkala's children are not entitled to inherit from the late Addison Mhlanga's estate.

I will deal with the grounds of appeal hereunder seriatum.

THAT THERE WAS EVIDENCE TO THE EFFECT THAT ADDISON MHLANGA DISCLOSED THAT APPELLANT WAS HIS DAUGHTER

The means which the parties must produce and on which the court can base its decision is what is called evidence (facta probantia) while what has to be proved in any given issue (facta probanda) is the domain of substantive law.

In casu, what had to be proved (factum probandum) was that Addison Mhlanga, during his lifetime, disclosed that the appellant was his biological daughter.

Was there such evidence as contended for by the appellant?

What is not in dispute here is this:

Simanga Moyo, who is the appellant's mother, was Kenneth Nkhulambe's customary law wife. Nkhulambe, like Addison Mhlanga, was also of Malawian extraction.

As people who find each other in foreign lands are wont to do, the two would address each other as “brothers.”

The appellant was born on 24 January 1978 as Doris Dorcas Nkhulambe. Her birth certificate reflected so.

After Kenneth Nkhulambe “divorced” the appellant's mother, Addison Mhlanga took the appellant and her siblings into his household as he thought that a stepmother (Nkhulambe's new wife) would not take good care of the children.

In 1986-1987 the children were taken to Gwanda where Addison Mhlanga had a rural homestead. Then, the appellant was in Grade 4. In 1992, the appellant returned to Bulawayo and stayed at Block 83 with Kenneth Nkhulambe and her step-mother until she got married in 2000.

What is in dispute is that the appellant is an adulterine progeny of Simanga Moyo and Addison Mhlanga.

The appellant averred, that, this issue of adultery and paternity only came to light in the year 2000 when a meeting was held at which Addison Mhlanga disclosed that the appellant was his biological daughter.

The appellant was not forthcoming on whether she attended this meeting or was merely told later.

She said the meeting was attended by the two men, Esther Ncube, Shilling Phiri, Fatima and Dorcas Phiri.

However, pertinent to note here is that Fatima herself initially said she sat in the meeting (see pages 48 of the record), but, under cross-examination, on page 50 of the record, she said;

“The elders held their meeting and we were then told [of the illicit affair of Simanga and Addison Mhlanga] later after the meeting.”

Since the appellant was not an elder, it is therefore safe to infer that she is incorporated in the “we” referred to by Fatima that they were only told later.

In the event, what the appellant is alleging is purely hearsay, which, as evidence, is inadmissible....,.

The appellant's witness, Addison Phiri, did not ameliorate matters.

He said the meeting alluded to was held in 1997; it having been prompted by the appellant's illness. He said it was a secret between Addison Mhlanga and himself that the appellant was Mhlanga's daughter sired by him and Nkhulambe's wife.

However, under cross examination, the alleged secret evaporated into thin air when this witness said present when Addison Mhlanga told him were “Shilling, Esnat, and myself; those were the only people who were there.”

However, on further probing, he added that Kenneth Nkhulambe and Edna (Mhlanga's wife) were also present.

His year of 1997 contradicts the year 2000 stated by the appellant and Fatima.

Also, the people he named as being present when he was let into the secret exclude the appellant and Fatima - which buttresses the above finding that the appellant's and Fatima's evidence was purely hearsay and inadmissible.

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Corroborative Evidence re: Approach, Affidavit of Interest, Uncorroborated or Single Witness Evidence & Evidence Aliunde

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HB71-13 : ROBSON NDIWENI vs PETER JOHANNES CLOETE Ruled By: CHEDA AJ

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HH314-14 : TERERAI MUGWADI vs MTANDAZO DUBE and ZIMBABWE NEWSPAPERS (1980) LIMITED and EDDIE DHLIWAYO Ruled By: CHIGUMBA J

HH314-14 : TERERAI MUGWADI vs MTANDAZO DUBE and ZIMBABWE NEWSPAPERS (1980) LIMITED and EDDIE DHLIWAYO Ruled By: CHIGUMBA J

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SSC20-15 : BIGKNOWS WAIROSI vs THE STATE Ruled By: ZIYAMBI JA, GOWORA JA and MAVANGIRA AJA

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HB90-16 : L. SACRE KWETE MINGA vs ITAYI MATIVONESE GUNDA Ruled By: TAKUVA J

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Appealed SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

View Appeal HH222-16 : TOTAL ZIMBABWE (PVT) LTD vs RONALD BAKARI Ruled By: DUBE J

SC35-19 : MHLANGA MXOLISI vs MINISTRY OF PRIMARY AND SECONDARY EDUCATION Ruled By: GWAUNZA DCJ, MAKONI JA and MOYO AJA

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

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MAFUSIRE J

HH50-12 : CHEMATRON PRODUCTS ZIMBABWE (PVT) LTD vs TENDA TRANSPORT (PVT) LTD and REGISTRAR OF DEEDS Ruled By: BERE J

HH112-12 : ASTRA STEEL & ENGINEERING SUPPLIES (PVT) LTD vs P M MANUFACTURING (PVT) LTD Ruled By: MUTEMA J

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

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

View Appeal HB179-18 : YUSUF GAIBIE and MAHMOUD GAIBIE vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA Ruled By: MAKONESE J

View Appeal HH321-17 : NORMAN MAFERERA vs SUSAN JANUARY Ruled By: MATANDA-MOYO J

View Appeal HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA Ruled By: MATANDA-MOYO J

View Appeal HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O. Ruled By: KUDYA J

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS Ruled By: NDOU J

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED Ruled By: KUDYA J

HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS Ruled By: CHATUKUTA J

View Appeal HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE Ruled By: MANGOTA J

View Appeal HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: CHITAPI J

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS Ruled By: TSANGA J

HH740-15 : COSMAS ZAVAZAVA and VONGAI ZAVAZAVA vs JONAH TENDERE and TENDAI TENDERE and THERMO-DYNAMICS REAL ESTATE and REGISTRAR OF DEEDS N.O. Ruled By: MATHONSI J

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI Ruled By: KUDYA J

SC16-21 : GML EXPLOSIVE (PRIVATE) LIMITED vs LACKSON GONO AND 29 OTHERS Ruled By: MAVANGIRA JA, MAKONI JA and MATHONSI JA

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO Ruled By: MAKONESE J

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O. Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE Ruled By: MUTEMA J and MOYO J

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HH30-11 : PRIMAC ENTERPRISES (PRIVATE) LIMITED t/a PRIMAC TELECOMMS vs NATIONAL HANDICRAFT CENTRE (PRIVATE) LIMITED and VICE SECURITY COMPANY (PRIVATE) LIMITED
Ruled By: MTSHIYA J

HH43-13 : FORM SCAFF (PRIVATE) LIMITED vs CHARLES LINZI
Ruled By: KUDYA J

HH50-13 : MADOCK CHIVASA vs AARON NYAMAYARO and LAWRENCE MOYO and ZIMBABWE NEWSPAPERS (1980) LTD
Ruled By: KUDYA J

HH73-13 : SIBONGILE KAZIBONI vs CHAMPION CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MATHONSI J

HH364-13 : ENNETY GUNDA vs OLIVER MASOMERA N.O. and TSITSI GUNDA and LANGTON MASHIRI and THE MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MAWADZE J

HB10-11 : JENNIFER NDLOVU [nee NYONI] vs CHRISTINA NDLOVU [nee SITHOLE] and ASSISTANT MASTER OF THE HIGH COURT and ADDITIONAL ASSISTANT MASTER, TREDGOLD
Ruled By: MATHONSI J

HB40-11 : TINASHE CHIKARA vs VENNAH MATIKA
Ruled By: MATHONSI J

HB48-11 : FORT GROUP ENTERPRISES (PVT) LTD vs BRIGHT INVESTMENTS (PVT) LTD
Ruled By: CHEDA J

HB60-11 : REZIMOSI DUBE vs SANDRA FARAI DUBE
Ruled By: KAMOCHA J

HB69-11 : WINNIE PAMACHECHE vs ESTHER PAMACHECHE and ESTATE LATE KENNETH PAMACHECHE and BRUCE LONGHURST N.O. and MASTER OF THE HIGH COURT N.O.
Ruled By: MATHONSI J

HB71-13 : ROBSON NDIWENI vs PETER JOHANNES CLOETE
Ruled By: CHEDA AJ

HB158-13 : KERRIES ENGINEERING (PVT) LTD vs MAKOMO RESOURCES (PVT) LTD
Ruled By: MAKONESE J

HH314-14 : TERERAI MUGWADI vs MTANDAZO DUBE and ZIMBABWE NEWSPAPERS (1980) LIMITED and EDDIE DHLIWAYO
Ruled By: CHIGUMBA J

HH314-14 : TERERAI MUGWADI vs MTANDAZO DUBE and ZIMBABWE NEWSPAPERS (1980) LIMITED and EDDIE DHLIWAYO
Ruled By: CHIGUMBA J

HB99-14 : ELLEN MAJOLA vs BEKEZELA NYONI
Ruled By: MAKONESE J

SSC20-15 : BIGKNOWS WAIROSI vs THE STATE
Ruled By: ZIYAMBI JA, GOWORA JA and MAVANGIRA AJA

HB17-16 : WINNIE MPOFU vs FLOPPA LEAH MLAVU a.k.a LEAH FLOPPHEL MLAVU and ESTER KELLI (N.O.) and THE ASSISTANT MASTER
Ruled By: MATHONSI J

HB90-16 : L. SACRE KWETE MINGA vs ITAYI MATIVONESE GUNDA
Ruled By: TAKUVA J

Appealed
SC34-18 : MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY vs GRANDWELL HOLDINGS PL and MBADA DIAMONDS and ANOR
Ruled By: PATEL JA, GUVAVA JA and UCHENA JA

View Appeal
HH193-16 : GRANDWELL HOLDINGS PL vs MINISTER OF MINES and ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and ZIMBABWE CONSOLIDATED DIAMOND COMPANY and MBADA DIAMONDS PL and ANOR
Ruled By: MAFUSIRE J

HH564-15 : LAMECK KUFANDADA vs DAIRIBOARD ZIMBABWE LIMITED and JANAWAYS (PRIVATE) LIMITED and MICHAEL MUSAMIRAPAMWE
Ruled By: MTSHIYA J

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

HH176-15 : BARBARA MAKAHAMADZE vs DOUGLAS MUTUVIRA
Ruled By: MWAYERA J

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

View Appeal
HH222-16 : TOTAL ZIMBABWE (PVT) LTD vs RONALD BAKARI
Ruled By: DUBE J

SC35-19 : MHLANGA MXOLISI vs MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: GWAUNZA DCJ, MAKONI JA and MOYO AJA

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

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

HH50-12 : CHEMATRON PRODUCTS ZIMBABWE (PVT) LTD vs TENDA TRANSPORT (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: BERE J

HH112-12 : ASTRA STEEL & ENGINEERING SUPPLIES (PVT) LTD vs P M MANUFACTURING (PVT) LTD
Ruled By: MUTEMA J

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

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

View Appeal
HB179-18 : YUSUF GAIBIE and MAHMOUD GAIBIE vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: MAKONESE J

View Appeal
HH321-17 : NORMAN MAFERERA vs SUSAN JANUARY
Ruled By: MATANDA-MOYO J

View Appeal
HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED
Ruled By: KUDYA J

HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS
Ruled By: CHATUKUTA J

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

HH740-15 : COSMAS ZAVAZAVA and VONGAI ZAVAZAVA vs JONAH TENDERE and TENDAI TENDERE and THERMO-DYNAMICS REAL ESTATE and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI J

HH76-09 : TIMOTHY CHINYADZA vs MELTON PHIRI
Ruled By: KUDYA J

SC16-21 : GML EXPLOSIVE (PRIVATE) LIMITED vs LACKSON GONO AND 29 OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and MATHONSI JA

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J