Application
for leave for Execute Pending Appeal
CHITAPI
J:
In
the judgment HH91/19 in the case Blessing
Mureyani
v Maggie
Gentie and Minister of Local Government and National Housing,
I bemoaned the increased workload which judges of this court have to
deal with and the immense pressure which is exerted on judges to cope
with litigants and public expectations to have disputes before the
court speedily determined. I did give an insight to the public on how
internally, the Honourable Judge President has to juggle around by
spreading opposed applications and other civil cases amongst all
judges irrespective of the division to which judges are formally
assigned. It therefore does not matter that a judge is in the family,
appeal, criminal or civil division. All judges will get allocated
civil matters which they must manage and infuse into their rolls
using opportunities which may arise. It is not unusual for a judge to
therefore deal with civil applications before or after a criminal
trial on the same date.
I
have repeated my earlier observations because the manner in which the
respondent's counsel resolved not to complement the efforts of the
court to dispose of this application left me thinking that, much as
judges may try to determine cases at available opportunities, without
counsels co-operation, the backlog will remain untamed. Party driven
litigation processes result in delays because the parties dictate the
pace.
My
disquiet arises from the following circumstances.
This
application and 5 others was referred to me on 24 April, 2019 for set
down of hearing. The court was on Easter vacation which commenced on
6 April, 2019 to 12 May, 2019.
Court
vacations need to be understood in context.
They
do not connote that judges go on leave to rest. If a judge is to be
on leave, the judge must formally apply for leave. Court vacations
simply give a break to the normal running of courts. Litigants
continue to file their cases. Judges use the vacation to try and
clear reserved judgment. More often than not judges with partly heard
cases which could not be completed during the times allocated for
those cases avail themselves to deal with those cases. Vacations are
not therefore joyous breaks for judges. If anyone enjoys the court
vacations it must be the litigants and their legal practitioners
because there is a break in normal set down of cases. Rule 221(4) of
the High Court Civil Rules provides that:
“4.
No contested matter shall be set down for hearing during vacation
unless a legal practitioner certifies in writing that it is urgent;
giving reason for its urgency, and the prior approval of a judge to
the hearing of the matter has been obtained.”
There
is therefore a vacation in set down of cases for litigants and legal
practitioners as implied in the quoted Rule. They can only have their
matters set down for special reasons justifying urgency.
For
judges it will be work as usual with the Judge President not
relenting on allocating cases to judges for further management.
No
judge wants to accumulate cases and will make every effort to dispose
of incoming work by looking for slots and setting down the cases as
they are brought to the judge's chambers. The set down of this
matter was handled with the mind to slot it as with others on the
next available slot. My schedule on opening of the second term was
that I was assigned to Bail Court. I resolved to spread my allocated
opposed applications to be set down at the two per day after Bail
Court and in Bail Court. This is how this application got to be set
down for 17 May, 2019.
In
relation to the filing of heads of argument, the applicants' heads
of argument had been filed on 15 April, 2019 and served on the
respondents legal practitioners on the same date. Ordinarily the
respondent would have been required to file its head of argument
within 10 days of service of the applicants' heads of argument.
When one discounts public holidays and weekends, the heads of
argument would have been due for filing at the latest on 2 May, 2019.
Rule 238(2a)(ii) however provides in proviso (i) that the period on
which the court is on vacation shall not be counted as part of the 10
day period in which the respondent is required in terms of Rule
238(2a) to file heads of argument from the date that the applicant's
heads would have been delivered on the respondents legal
practitioner. Proviso (ii) provides that the respondents heads of
argument should be filed at least 5 days before the hearing. In terms
of this latter proviso,
where a date of set down has been fixed, the respondent
notwithstanding the periods allowed to such respondent to file heads
of argument, should file the same at least 5 days prior to the
hearing.
In
casu,
the respondents' counsel decided to take advantage of proviso
(i)
and reckoned the time for filing the respondent's heads of argument
in terms of that Rule. Since vacation was ending with the new term
commencing on 13 May, 2019, the respondent's counsel reckoned the
period for failing heads of argument from the date. The last date for
filing heads of argument would accordingly have been 24 May, 2019
being 10 working days reckoned from 13 May, 2019.
By
letter addressed to the Registrar dated 13 May, 2019, the
respondents' counsel protested the set down date of 17 May, 2019.
He submitted that the notice of set down had been served on 13 May,
2019 and that as the notice of set down had been issued on 10 May,
2019, it only allowed the respondent 4 days to 17 May, 2019 since
there was a weekend in between. He protested that the issued notice
“…falls foul of the provisions of the Rules” because Rule
233(2a) sic
provided that “applications which are opposed shall be set down for
hearing on a business day not less than six business days from the
date of notice”.
The
corrected Rules citation is of course Rule 223(3) not 233(2a).
Rule
223(3) provides that no opposed application shall set down for
hearing less than eight (not six) business days after the notice of
opposition and opposing affidavit has been filed unless the
respondent consents.
Respondent'
counsel was of course wrong in the Rule citation and its application.
The
notice of opposition and opposing affidavit were filed on 5 April,
2019. The eight days referred to in Rule 223(3) matured on 25 April,
2019. The notice of set down did not fall foul of the Rules on the
basis complained of by the respondents' counsel.
I
would point out that there is no Rule 233(2a) in the High Court Civil
Rules, 1971.
Counsel
further protested that the date of issue of the notice and service of
the same disabled the respondent filing heads of argument within the
time contemplated in Rule 238(2a)(ii). The respondent's counsel
ended his letter by stating-:
“The
situation can be served by your withdrawing the notice and allowing
the respondent the required time to file its heads by issuing a
notice that complies with Rule 223(2)(a). We kindly request you to
do so.”
Counsel's
suggestion to the Registrar to withdraw the notice of set down falls
outside the purview of the powers of the Registrar.
The
court manages its roll and once a matter has been set down, the court
or judge will hear and determine any representations by counsel in
regard to the management of the set down matter.
It
was on the basis that I did not agree with the lawfulness of the
suggested procedure to withdraw the notice of set down that I
directed the Registrar to advise counsel that the application would
remain listed on the roll to be dealt with on its turn. I however
directed that counsel could attend in chambers to map the way forward
prior to the hearing and counsel did so.
Mr
Manjengwa
in
chambers submitted that the respondent's heads had not been filed
and were due by 24 May, 2019. He also pointed out to the provisions
of Rule 238(2a)(ii) and indicated that the 5 days postulated in the
Rule would be due on 20 May, 2019 reckoned from 13 May, 2019 when the
notice of set down was served. In his submission; the 20th
May, 2019 would have been the last day to file heads of arguments in
order to comply with the proviso
(ii) to Rule 238(2a) which provides that the respondents' heads
shall be filed not less than 5 days from the date of hearing.
It
is necessary to observe that the proviso (i) to Rule 238(2a) is
directory.
The
Rule is enacted for the convenience of the court and not for counsel
to take advantage of and advance it as a reason for a case not to be
heard. In other words if it is not possible for respondent's
counsel to file heads of argument at least 5 days prior to the set
down date because the notice of set down has not given sufficient
times between its issue and the date of the set down, this does not
invalidate the notice of set down. The proviso must be read in
conjunction with the principal Rule 238(2b) which carries the
sanction of a bar against the respondent if the respondent fails to
file heads of argument within 10 days after service of the
applicants' heads of argument.
A
failure to comply with the 5 days for filing heads of argument prior
to the date of hearing does not attract an automatic bar.
It
will be up to the court to consider whether it has had sufficient
time to consider the matter and hear it where heads have been filed
within 10 days of service of the applicant's heads but less than 5
days to the hearing date. If the court is comfortable to hear the
matter where the respondents heads of argument have been filed even a
day before or on the date of hearing it will hear the matter. The
court will, where it is not inconvenient to deal with the matter
allocate another date and postpone the hearing accordingly.
Counsel
must acquaint themselves with Mafusire
J's judgment in David
Whitehead Textiles Limited
v Jyotsanagen
Kala and 2 Ors
HH442/14 where the learned judge eloquently interrogated the import
and purport of Rule 238(2a), (2b) and the proviso (ii) thereto which
requires that the respondents' heads of argument are filed at least
5 days before the hearing. The learned judge observed that the five
days period is for the court's convenience and not for the
convenience of the respondent.
Mr
Manjengwa
was expected to have made effort to prepare and file heads of
argument prior to the set down date or even to file them on the date
of hearing than to procrastinate and seek to rely on the proviso (ii)
on the 5 days rule which is not intended to be used as an excuse by
the respondent. Mr Manjengwa
in this respect clearly adopted an attitude that was intended to
frustrate and torpedo the hearing of the application much to the
inconvenience of the court which had tried to manage the disposal of
this application by allocating and others them a slot at the end of
hearing of bail applications for 17 May, 2019.
Going
forward, Mr Manjegwa
was
not about to be understanding of the court's desire to speedily
dispose of matter. When I suggested that counsel could file the heads
of argument by 20 May, 2019 with the hearing being slotted for after
Bail Court on 24 May, 2019. Mr Manjengwa
insisted that he would file the heads by 24 May, 2019 because that
date was the last date by which the respondent was required to have
filed heads of argument.
Whilst
it was true that the 10 day period for the respondent to file its
heads of argument would expire on that date, I found Mr Manjengwa's
attitude to be unreasonable in that he was concerned with his own
convenience only and not the court's convenience. The Rules of
Court should not be used to frustrate the due administration of
justice but to aid and accelerate orderly case disposal. Counsel as
court officers should aid in the process by supporting court and
judges efforts to expeditiously dispose of pending cases.
In
this case, given Mr Manjengwa's
unyielding attitude, I could in the interests of justice have
directed a departure from the Rules and ordered counsel to file heads
of argument earlier than 24 May, 2019 as I am entitled to in terms of
Rule 4C of the court's rules. I however decided against resorting
to Rule 4C because of the importance of the application to the
parties and that the application deals with a matter of public
interest which is topical.
I
resolved not to exert pressure on counsel and accepted the
inconvenience which the court had to endure. I ordered that Mr
Manyengwa
could file the respondents' heads of argument by 24 May, 2019 as he
desired.
I
and postponed the hearing to 28 May, 2019.
I
was however surprised to hear Mr Manjengwa
state
that the 24th
May, 2019 was most convenient to him besides it being also the date
that he intended to file heads of argument for the respondent as
appellant in the Supreme Court. I am not sure whether the submission
was intended as a reminder that there was a pending Supreme Court
appeal or not but it suffices that the heads of argument which were
to be filed in this application were not for the Supreme Court and
vice-versa.
Before
I revert to the merits of this application, I wish to raise the issue
of Rules being used for purposes of frustrating the disposal of cases
as opposed to aiding the disposal.
From
a jurisprudential perspective, Rules of Court relate to the practice
of the court. Courts are created to dispense justice. Rules of court
should yield to the demands of justice in any given case hence the
existence of Rule 4C of the rules of this court. Rules of court must
be seen as serving the purpose primarily of ensuring that the
business of the court is carried out in an orderly manner.
It
is trite and specifically provided for in section 176 of the
Constitution that this court as well as the superior courts to it,
being the Constitutional Court and Supreme Court “have inherent
power to protect and regulate their own process and to develop the
common law, taking into account the interests of justice and the
provisions of this Constitution.”
It
follows from the above that Rules of Court are made to regulate the
court process. The court is therefore not made for the Rules because
it makes them.
That
being common cause, it is difficult to appreciate the rationale
behind the proviso
(i) to Rule 238(2a).
For
clarity, the proviso states that the vacation period should not be
counted when computing days for filing heads of argument. The Rule
does not apply to the filing of other pleadings like an appearance to
defend in a summons matter and indeed the filing of all other
pleadings be it a plea, opposing affidavits and so on.
What
is it about the respondents' heads of argument that merit their
being protected by implicitly extending the period for filing heads
of argument in not factoring in vacation periods?
The
registry will be open for receiving new cases and filing of pleadings
including the respondents' heads of argument. The Rule does not say
that the respondents heads should not be filed during vacation. Its
effect is to give the respondent a moratorium, holiday or break from
moving the case forward by favouring the respondent with vacation
time to use to put the matter aside and only start panicking to
timeously file heads after vacation. It does appear to me that the
proviso does not serve the interests of justice to the extent that it
delays the filing of necessary papers which lead to the next step,
that of the hearing of the matter.
In
this sense, proviso (i) in my view does not aid the dispensation of
justice speedily.
I
raise this point of course because inasmuch as I have commented by
giving a rather lengthy exposition on the duty of counsel to aid than
torpedo the speedy resolution of justice, some Rules like the proviso
(i) aforesaid are taken advantage of to frustrate the resolution of
cases with reasonable promptitude. If the set down of a contested
matter during vacation is subject to Rule 221(4) as discussed, there
is no apparent reason to favour the respondent as discussed. The
proviso is redundant.
I
revert to deal with the application on the merits.
In
case no. HC8159/18 in which the parties herein were the same, the
applicant filed on application against the respondent sued for
specific performance on a contract for the engineering, procurement
and construction of a 100 megawatt solar power station at Gwanda. The
applicant had in that case claimed in the alternative damages of
USD$25 million for breach of contract. The claim for damages was
however abandoned and the court did not determine or make any award
of damages in the sum of the UDS$25 million or in any sum. The
applicant's claim was limited to specific performance and it was
strenuously opposed by the respondent.
Consequent
on the hearing, the court prepared a written judgment HH818/18
delivered on 13 December, 2018. The operative part of the judgment
was as follows:
“IT
IS THEREFORE ORDERED AS FOLLOWS:
1.
It be and is hereby declared that procurement contract No.
ZPC304/2015 dated 23 October, 2015 between the applicant and
respondent is valid and binding between the parties.
2.
Consequent on the declaration of the validity of the said contract, a
decree of specific performance in terms thereof taking into account
the addendum to the said contract dated 21 September, 2017 is hereby
issued.
3.
The parties shall meet to review progress in regard to the discharge
of their obligations in terms thereof as provided for in clause 5 of
the contract within 60 days of this order failing which the party in
default shall be deemed to have repudiated the contract and liable in
damages to and at the instance of the innocent party.
4.
The respondent shall bear the costs of this application.”
The
detailed reasons for the order is set out in the written judgment
aforesaid. A copy of the judgment is an appendage to the applicants'
affidavit in this application as “Annexure B”.
Following
on the judgment aforesaid the respondent noted an appeal against the
whole of the judgment HH818/18 to the Supreme Court on 7 January,
2019. The notice of appeal listed 9 grounds of appeal. In the prayer,
the respondent prayed for the setting aside of the High Court order
and for it to be substituted with an order that the application be
dismissed with costs on the scale of legal practitioner and client.
The respondent also prayed for costs of the appeal to be granted in
its favour on the same punitive scale of legal practitioner and
client.
The
applicant having been served with the notice of appeal then filed on
22 March, 2019, this application for leave to execute the judgment
appealed against pending the determination of the appeal.
It
is convenient to reflect on the law and principles which guide the
court in determining an application to execute the court's
judgement which has been appealed against before the Appeal Court has
determined the appeal. There does not appear to be disagreement
between counsel on the general principles which guide the court. It
is not necessary under the circumstances to devote undue time
expounding the legal principles.
The
respondent's counsel in his heads of argument devoted 3 pages split
into 13 paragraphs quoting various case authorities in this
jurisdiction and South Africa to stress the point the at common law,
the execution of a judgment is suspended by the noting of appeal. So
far as the noting of an appeal will be against the judgment of a
superior court, I endorse, the general propositions as correct.
The
court has dealt with countless applications of this nature and the
law applicable to such applications is settled.
In
the case of Hosea
Ozia Ncube
v Simbarashe
Mupinga
HH212/18 Charewa
J stated that a litigants' right to appeal was an absolute right. I
would however add that the right can be limited as for instance where
parties to a dispute agree that a determination made is final and not
subject to appeal or a statute provides otherwise. The learned judge
however correctly stated that the consequences of noting an appeal
which ordinarily is to stay execution of the judgment appealed
against was subject to the court whose judgment has been appealed
against granting leave to the respondent in the appeal to execute the
judgment pending appeal.
The
learned judge set out four fundamental principles which the court
considers without assigning more importance to anyone of them as
follows:
(a)
the prospects of success on appeal, with special emphasis on whether
or not the appeal is frivolous or vexatious or has been noted with no
bona
fide
intention to reverse the judgment but only to buy time or harass the
successful party.
(b)
the potentiality of irreparable harm or prejudice to the appellant if
leave to execute is granted.
(c)
the potentiality of irreparable harm to the respondent of leave to
execute if refused.
(d)
the balance of convenience or hardship as the case may be.
The
learned judge cited the following judgments of the Supreme Court and
I equally relate to them:
Whata
v Whata
1994 (2) ZLR 277 (S) at 281 B; Net
One Cellular (Pvt) Ltd & Note One
Employees
2005 (1) ZLR 275 (S) at 281 B-D; Chidyausiku
v Nyakabambo
1987 (2) ZLR 119 (SC).
See
also Stanley
Machote
v Zimbabwe
Manpower Development Fund
HH13/16 where MAKONI
J
(as she was then) quoted further cases of Arches
(Pvt) Ltd
v Guthrie
Holdings (Pvt)
Ltd
1989 ZLR 152 (H); Dabengwa
v Minister
of Home Affairs and Ors
1982 (1) ZLR 223; Zimbabwe
Distance (Correspondence) Education College (Pvt) Ltd
v Commercial
Careers
College
(Pvt) Ltd
v Commercial
Careers College
(1980)
(Pvt) Ltd
1991 (2) ZLR 61.
See
further the judgment of MATANDA-MOYO
J in
Ladrax
Investments (Pvt) Ltd v
Ignatius
Chirenje & Anor HH
776/15.
There
is therefore no contentious issue regarding the principles which
guide the court.
It
is necessary to consider the grounds of appeal which the applicant
seeks to argue before the supreme. They are listed as follows
seriatim
and
I comment on them in that order:
1.
The court a quo erred by holding that there were no material disputes
of fact between the parties and that accordingly the matter could
appropriately proceed under the count application procedure
This
ground of appeal is too generalized as to be meaningless because the
decision whether or not the court considers that it can determine a
matter on affidavits in terms of application procedure is one in the
discretion of the court. In an appeal the appellant should not
generalize a ground of appeal. The appeal should attack the courts
findings and whether the court misdirected itself in fact or law or
both. This ground of appeal is in my view not one which enjoys any
prospects of success on appeal as it amounts to saying the court
should have exercised its discretion against hearing the matter on
application. Surely the court was entitled to hear the matter on
application in its discretion. The appeal court cannot possibly fault
the court for choosing to determine the matter on application. It is
what the court determined which the Supreme Court may be called to
find fault with. In any event the court on pp 5–7 of the
cyclostyled judgment particularly on p5 clearly took into account the
alleged disputes of fact and adopted a robust approach. It gave its
reasons for doing so.
2.
The court a quo erred by failing to deal with the issue that the
respondent did not disclose the entirety of the parties contract
thereby preventing the court from adjudicating over the same
Again
this ground of appeal is rather generalized. The applicant does not
point to the contractual parts of the contract which were allegedly
not disclosed nor what their impact would have been. On p7 of the
cyclostyled judgment, the court in its analysis of the contract
between the parties was of the expressed view that it was not a
complicated contract in content. The contract comprised the principal
contract with 7 pages and some schedules. The court considered the
schedules to the contract. The court further considered the addendum
to the contract which dealt with pre-commencement works and
determined that the addendum was not a separate stand-alone contract
because para 2 of the addendum expressly spoke to the main contract
and provided that it was to be read as an amendment to the main
contract which remained in full force and effect.
This
was the crux of the matter and largely informed the decision of the
court. It is well to quote what the court determined in this regard.
It stated in a lengthy paragraph on p 12 of the judgment;
“A
reading of the respondent's opposing affidavit in para 16 shows
that the respondent speaks to the addendum as a separate contract for
pre-commencement works which it says is the only one which creates
enforceable obligations.
The
argument is legally and factually untenable because para 2 of the
addendum clearly states that the addendum was an amendment to the
main contract which remained in full force and effect. It is for this
reason then that by amending the original contract to allow for
pre-commencement of works covered in the main contract prior to the
satisfaction of the suspensive conditions, there was a tacit waiver
of the commencement date the contract not being subject to the
satisfaction of all suspensive conditions.
The
commencement date of the contract for it to make commercial sense was
clearly compromised by the parties engaging in the works with
outstanding obligations still to be met.
It
is pertinent to note that clause 6 of the main contract is clear that
the agreement may only be amended by a written document duly executed
by both parties in relation to the addendum. It was executed by both
parties. The extension of 6 months envisaged in clause 5 would amount
to an amendment of the contract and albeit the discretion to extend
being that of the respondent, such discretion could only be exercised
subject to other conditions having been satisfied. The conditions
would have included the convening of a meeting of the parties to
review progress.
Again
this makes sound commercial practice.
The
grant of a discretionary extension for the performance of an
obligation must be informed by objective facts. The concerned parties
would of necessity discuss the impediments to performance, review
progress and assess value or justification for the extension before
giving it. The requirement that parties convene a meeting first to
review progress accords with good business practice.”
The
court went on to note that the respondent had in para 28 of the
opposing affidavit admitted that the extension as confirmed by a
letter was given after the expiry date of the conditions precedent
satisfaction period. The respondent unbelievably then submitted that
the applicant did not protest the extension.
What
justification would have been there for a protestation by a party who
is still in the contract and has not been elbowed out of it?
The
court dealt with the flawed argument of the respondent on p13 of its
judgment.
The
ground of appeal does not therefore enjoy prospects of success
because the factual findings made by the court were consequent upon
the contractual documents which the court detailed. Without reference
in the ground of appeal to what are other documents as formed the
entirety of the contract were omitted or escaped the analysis of the
court as led it to a misdirected factual conclusion, the ground of
appeal is deemed to predictable failure on appeal.
3.
The court a quo erred in its construction of clause 5 of the parties
contract relating to fictional fulfilment (or otherwise) of the
conditions precedent
With
respect, this ground of appeal is too generalized as to be vague and
embarrassing. It does not speak to what the court held in its
construction nor to what construction the court should have placed on
clause 5.
Grounds
of appeal should be clear and concise.
In
Douglas
Tanyanyiwa &
Anor
v Gwarada
SC79/14 ZIYAMBI
JA
stated on p3 of the cyclostyled judgment that;
“…
the
purpose of the grounds of appeal is to clarify issues raised on
appeal so that the respondent and the court are not inconvenienced by
having to read irrelevant matter.”
In
Zvokusekwa
v Bikita
Rural District Council
SC44/15 GARWE
JA
noted that what is important in preparing grounds of appeal is that
the grounds must disclose the basis upon which the decision of the
lower court is impugned in a clear and concise manner.
Whilst
it is not within my jurisdiction to strike out any proposed ground of
appeal as it is the province of the Appeal Court it is still within
the power of the lower court whose decision has been taken on appeal
to express an opinion on the soundness of the proposed ground.
The
ground is vague and embarrassing as I have noted to the extent that I
am not even able to comment on it. The ground simply states that the
court made an error in construction of a clause. Surely, by any
stretch of imagination how is the court expected to appreciate the
nature of its error which the Appeal Court is called upon to review
and correct.
4.
The court a quo erred in holding that the appellant tacitly waived
express terms of the contract relating to the fulfilment of the
conditions precedent
As
submitted by Mr Uriri
the
ground raises a factual issue which the Appeal Court will not readily
disturb as a finding in the absence of a proven misdirection.
The
point really is whether the error alleged is one of act or law or
both.
This
ground of appeal must be read together with ground 5 which I daresay,
I must agree with Mr Uriri
that
it is meaningless.
Ground
5 reads that;
“The
court a
quo
erred in holding that the respondent was entitled to fictional
fulfilment of the conditions precedent.”
This
ground is embarrassing in the extreme.
How
does an appellant expect the Appeal Court to act on a bare allegation
that the lower court erred in determining that the respondent was
entitled to fictional fulfilment of conditions precedent, full stop.
It
is important that as I should consider the grounds of appeal,
continue to remind myself to exercise restraint in my analysis of the
soundness of the grounds of appeal because it is the Supreme Court
function to ultimately determine their validity.
I
however note that the judgment made factual findings of the
circumstances from which the court determined that there was
fictional fulfilment of the suspensive terms of the contract by the
respondent. It is not alleged in the two grounds of appeal that there
was a failure to appreciate a fact or at all or that a finding
contrary to the evidence was made. Without the grounds of appeal so
mentioning, it is difficult for one to hold that there are prospects
of success which arise from them.
The
lack of prospects of success having been noted, it must be recorded
that the court devoted pp8–10 of its judgment to setting out what
clause 5 of the contract provided for and the interpretation to be
given thereto.
On
p21 of the judgment the court again by reference to clause 5
determined that since the employer was the cause of the
non-performance, it could not hold the contractor at fault for none
or delayed performance. These findings appear not to be impugned in
the proposed appeal. The court took into account all the circumstance
of the case and reached its conclusions based on that. It is not
contended in the grounds of appeal that the conclusion reached was so
unreasonable that no sensible person properly applying his mind would
have come to the same conclusion.
5.
Ground 6: The court a quo erred in its construction of the
contractual obligations relating to the respondents advance payment
guarantee
Again
the nature of the error is not stated.
Mr
Uriri
was
correct in his submission that the court made a determination based
on factual findings. The court noted on the evidence that the
respondent had acknowledged liability for payment of subcontractors
in the full and acknowledged position that the advance payment
guarantee was still to be availed.
It
is an undisputable fact that at all times in the evolvement of the
parties relationship in terms of the contract between them, the issue
of the advance payment guarantee remained topical. Payments were
made in the full knowledge that issue of the guarantee was being
pursued. In the premises, there no fraud committed as there was no
misrepresentation made by either party nor alleged to have been
committed.
A
striking feature of this contract is that efforts at obtaining the
advance payment guarantee were not hidden. The State Procurement
Board agreed to the restructuring of the agreement when the
respondent as contractor offered to review the contract price
downwards to ensure financial closure. Government through the
Minister of Finance suggested that funds be sourced through CBZ Bank
because the Government was not able to clear its arrears with China
Exim Bank as demanded by that bank before it could provide the
funding and the guarantee. It was also part of the contractual terms
in the documents executed by the parties that funding arrangement had
to include the Government of the employer. The judgment in pp16-18
adequately dealt with the funding a guarantee issues. There is no
reasonable prospect of this ground succeeding on appeal.
6.
Ground 7- The court erred in its construction of the contractual
obligations relating to the respondents advance payment in guarantee
This
ground again is open ended and thus embarrassing.
The
short comment to it is that the court considered various factual
developments that occurred which in its view frustrated the
respondent from performing the contract. The matters which stalled
performance resulted from the conduct of the applicant. The applicant
for example was found to have caused the arrest of the respondent and
its Managing Director thereby frustrating the performance of the
contract. As regards the applicants' denial that it did not cause
the arrest of the respondent, the court considered its records and
the allegations which were made against the respondent and its
Managing Director before the court on remand.
The
applicant's Board is the complainant.
An
Appeal Court cannot by any stretch of imagination find otherwise. It
is not the respondent's fault that the Managing Director who
deposed to the opposing affidavit denying causing the arrest and the
Board did not know what the other was doing. Ultimately, the
undisputed fact was that the respondent and its Managing Director
were arrested in connection with the contract at the instance of the
applicants Board. Bail conditions were imposed which impacted on the
freedom to execute obligations under the contract. There are no
prospects of success that the ground of appeal will succeed.
7.
Ground 8 and 9
Ground
8 and 9 may
conveniently be considered together. They are couched as follows;-
8.
The court's order requiring the parties to meet as provided for in
clause 5 of the contract contradicted its findings in relation to the
fulfilment whether by wavier, fictional fulfilment or otherwise or
the conditions precedent.
9.
The court a
quo
erred in ordering specific performance of the contract when the
respondent had not performed/had breached its obligations in terms of
the pre-commencement works contract.
The
above grounds sets one to wonder whether the appellant's counsel
who drafted the grounds of appeal appraised himself with the record
of evidence and the judgment.
The
court's judgment was that there was no stand-alone contract for
pre-commencement works divorced from the rest of the contract No. ZPC
304/2015. The one speaks to the other. Even the scope of works to be
carried out as pre-commencement works were a step or stage in the
performance of the contractors obligations under the contract. It
will be difficult for the respondent to convince the Appeal Court
that there was error in ordering specific performance.
At
the hearing I asked Mr Munjengwa
for the respondent to clarify which part of the judgment it is which
ordered the specific performance which the respondent sought to
impugn and the form or manner of such specific performance.
Mr
Munjengwa
submitted that the respondent considered that the court erred in
giving a time line for the parties to engage and in further placing a
sanction of deeming a defaulting party to be in breach of contract.
It
is important to express in simple terms the import and purport of the
court's order.
The
court ruled that the contract between the parties in whole was still
extant until properly terminated in terms of its provisions. This
meant that a properly termination is one done in terms of its
provisions. Any purported termination other than in terms thereof
would constitute a breach or repudiation of the contract. Going
forward the court determined that the contract provided for a dispute
resolution mechanism and steps that parties take to resolve disputes
arising from the contract. The 60 days was considered overally as a
reasonable period for the parties to refer to and relate to the
dispute resolution mechanisms provided for in the contract.
In
the grounds of appeal there is no suggestion that the court could not
properly give a time line for compliance with its order. In any event
the 60 days was for engagement and the court did not suggest that the
parties need to agree on their disputes within that period.
These
two grounds of appeal clearly have no prospects of success. This is
moreso given that specific performance is a discretionary remedy
which the court may grant. In the absence of misdirections of law,
fact or both the Appeal Court would be unlikely to find fault
overally with this court judgment.
Having
found against the respondent that the appeal has no prospects of
success, I must consider other factors which impact on whether or not
this application should be granted or dismissed.
The
applicant argued that the order made by the court was in the form of
a declaratory order and that a declaratur is not appealable. The
applicant's counsel relying on Mushishi
v Lifeline
Syndicate & Anor
1990 (1) ZLR 284 (H) argued that the purport of the court's order
was to declare what the parties rights have always been and does not
give them anything which they did not have.
Indeed,
a declaratur declares what is or should be.
The
court declared the contract to be still extant - and for parties to
abide its terms or face consequences.
The
applicant also relied upon the case of Econet
(Pvt) Ltd v
Telecel
Zimbabwe (Pvt) Ltd
1998 (1) ZLR 149 to emphasize that a declaratory relief is not
affected by the noting of an appeal and that goes for relief
consequential upon the declaration.
In
response to the applicant's submission on the appealability of a
declaratory order, Mr Munjengwa
submitted that the order of the court was both declaratory and
constitutive in that the court ordered the parties to conduct
themselves in a certain manner and meet within 60 days. It is this
order of specific performance which counsel
pointed
out to as falling outside the realms of a declaratory order.
I
did not hear counsel to argue that a declaratory order can be subject
of appeal nor to criticize the pronouncement made by the court in the
cited cases quoted by the applicant's counsel.
In
my view the arguments proffered by both counsel raise a matter best
answered by the Supreme Court.
It
being a matter of law, the applicant will be free to ventilate it on
appeal. I express no contrary opinion on the point save to endorse
the dicta
of this court as set out in the judgments cited by applicant's
counsel on the nature and effects of a declaratur as regards it on
appeal is concerned. My findings of no prospects of success on appeal
which I made following a consideration of the respondent's grounds
of appeal and the judgment are not based upon or informed on the
issue of whether or not a declaratory order can be appealed against.
In
regard to the potentiality of irreparable harm to the respondent if
leave is granted, I have carefully considered the opposing affidavit.
I did not find anywhere where the respondent lists the harm that it
will suffer if it engages in discussion with the applicant to resolve
whatever disputes have arisen between them in terms of the provisions
of the contract. At best the respondent has averred that the
applicant will not suffer prejudice if leave to execute pending
appeal is refused.
From
a common sense point of view, the respondent is the one that has
taken the judgment on appeal. One assumes that in taking the decision
to appeal, the motivation is not to test the waters but to have an
injustice corrected. It would be expected then that the respondent
should plead the negative effects upon it or its operations of the
judgment appealed against if left to stand.
In
this regard, there is no question but that the contract involves a
project of national importance and strategy. The project was granted
a special national project status. The electricity envisaged to be
produced upon successful completion of the project is not for the
consumption of the applicant and respondent but it benefits the whole
nation since the power produced is fed into the national grid. If
there is any prejudice to be suffered by the respondent at all were
it to comply with the order of the court, such prejudice is in the
nature of self esteem. The prejudice which results from delays in
resolving the disputes between the parties by dialogue in terms of
the provisions of the contract is to the public and the country's
development.
I
therefore hold that there is no prejudice to be suffered by the
respondent if leave to execute pending appeal is granted because the
court order essentially declared that the relationship between the
parties is still in existence and the parties must, using the
provisions for dialogue and dispute resolution provided for in the
contract engage and relate. They will be free to agree or disagree.
It boggles the mind to appreciate what the difficulty in engaging in
regard to the parties contractual relationship is.
I
must also consider the potentiality of irreparable harm to the
applicant if I refuse leave to execute pending appeal.
The
starting point is to appreciate that there has been and continues to
be potential injury to the applicant's business interests. The
applicant stands accused of failing to perform on its obligations. It
in turn points out that it is the conduct of the respondent which
made performance impossible and further that the respondent's
continued conduct of refusing to engage and discus its disagreements
of dispute with the applicant has stalled the performance of the
applicants' obligations on the contract.
The
applicants in the founding affidavit expresses its bona
fides
in having the contract executed for the benefit of the public cause.
In paragraph 30 of the founding affidavit, the deponent states:
“30.
On the other hand, allowing the appeal to sabotage progress will
benefit no one at the end. By the time the ill failed appeal is
dismissed, a lot of valuable time would have been filtered away in
pursuit of an unedifying cause.”
In
response, the respondent in paragraph 25 of the opposing affidavit
denied that the applicant stood to suffer irreparable harm actual or
potential.
What
is telling and perhaps explains the respondents' attitude and bears
on its bona
fides
is the following statement:
“..
I however wish to state that the execution of the order will saddle
the respondent with a contract, in which the funding provisions, as
envisaged by the parties have not been satisfied. The burden of
funding the project to the tune of USD$172,848,597-60 would fall on
the respondent in the absence of a financier. This is contrary to
what the parties envisaged, that is, only upon the successful
signature of all the project financing agreements and the first draw
down of funds, as provided in the first (sic)
of the conditions precedent would the contract commence. It is
specifically because the respondent could not self-fund this project
that condition precedents relating to outside funding were put in the
contract. This is the biggest hardship the respondent will suffer if
the order is carried into execution pending the determination of the
appeal.”
From
the respondent's deposition as quoted, it emerges that the
respondent is not motivated by the desire that a wrong judgment is
corrected on appeal. The appeal is motivated by the fear or
apprehension that engagements with the applicant and recognition of
the declaratory order holding the contract extant has the potential
to expose the respondent to paying money which it does not have.
Whether
by bad judgment or wrong advice, the respondent has let the cat out
of the bag.
It
is trying to clutch at straw to avoid potential liability for
payment. The respondent's spirited stance is not all about the
contract being validly ended but there are other extraneous
considerations.
I
must say that if the contract envisaged that funding will be sourced
from offshore, I do not immediately appreciate the respondent's
problem. The picture which now emerges is that, with offshore funding
having stalled on account of the Government's inability to clear
its arrears with China Exim bank to unlock new funding and Government
suggesting that the respondent tries to secure the money locally
through banks like CBZ, the respondent became fearful that it may
have to self-fund if it is held to the contract.
The
respondent with due respect as evidenced by its depositions is
appealing the judgment for selfish, self-serving and ulterior
reasons. It is no wonder that the proposed grounds of appeal have no
prospects of success. The motive for appealing is improper. It is
disgraceful that national projects are stalled by contracting parties
having merry dances in the courts instead of dancing in boardrooms
and at the projects sites and seeing to the projects coming to
fruition. It will remain a mystery that a party to written a contract
properly advised spurns a window for engagement with the other
contracting party especially so where the court in ordering
engagement with the other contracting party has taken into account
that the contract it declared valid not only provides for engagement
but the order itself leaves it open to the parties to discuss their
disputes in relation to the contract.
Dealing
with the balance convenience, it is clear that the balance of
convenience is in favour of granting leave to execute pending appeal.
What
is to be executed is the contract by engagement of the parties. It
has already been observed that the subject matter of the contract is
of immense national importance. It is of public interests. The public
wants electricity for use at home and in industries. The public is
not interested in bickerings for self-interest and egos on the part
of State actors and their contractors.
In
the court case where the judgment is under appeal, serious
allegations were made against the applicant that it was paid in
excess of US$5 million for no value received by the respondent. The
applicant disputed this. The court did not make a determination on
that and instead referred the parties disputes back to them to
resolve in terms of the contract on dispute resolution. For clearly
unmeritorious considerations the respondent refuses to engage and has
filed an appeal for purposes of delay instead of adopting an attitude
that advances the performance of the contract or its lawful
termination. The national interests being held at ransom by the
attitude of the respondent as outlined.
In
such circumstances, the balance of convenience favours that leave to
execute pending appeal be granted. The parties' engagement as
ordered by the court does not close the doors of the courts to them.
They can always come to court with unresolved disputes but within the
parameters of dispute resolution stipulated in the contract.
In
relation to costs, each party has prayed for costs on the scale of
legal practitioner and client scale. There is no sound justification
advanced for an award of costs on the punitive scale by either party.
Neither of the parties has improperly conducted itself or through
counsel in the prosecution and defence of their positions. Costs on
the ordinary scale will be ordered and they will follow the result.
Before
I endorse my order, I wish to place on record that both counsel
assisted the court immensely in their well-researched heads of
arguments. Although my judgment does not cite all of the cases cited
in the heads of argument their number showed that great effort was
put in preparing the heads. Such efficiency as demonstrated is
unfortunately becoming exceedingly rare from what the court continues
to experience in the standard of work presented by legal
practitioners. The quality of judgments can only improve where well
researched heads of argument are prepared by counsel for the court's
assistance. Unfortunately in court determinations there has to be a
winner and a loser. There is no draw.
In
the result I dispose of the application as follows;
1.
Leave to execute the judgment of this court HH818/18 is granted and
the said judgment shall be given full effect notwithstanding the
appeal noted by the respondent to the Supreme Court under case No.
SC2/19 on 7 January 2019.
2.
The respondent shall pay the costs of this application.
Manase
& Manase,
applicant's legal practitioners
Wintertons,
respondent's legal practitioners
