Documentary Evidence re: Caveat Subscriptor Rule and Recorded Intent: Unsigned Documents and Active Intent iro Approach

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

The dispute between the parties centred on a property described as Stand 238 Phase 1 Checheche (“the property”). It is one of those council-owned township properties that local authorities sell on a rent-to-buy basis. It is under the Chipinge Rural District Council.

In the court a quo, the respondent (“Chengetai”) sued the appellant (“Mbozvi”) for eviction and holding over damages. The court granted the orders.

Mbozvi appealed. We heard argument on 27 March 2019 and reserved judgment.

This now is the appeal judgment.

In her claim, Chengetai alleged that Mbozvi “…, unilaterally entered…,” her property in January 2017 without her authority. She alleged she had acquired the property in November 2007; that she had partially developed it to window level but that the defendant was staying there illegally and without paying rentals.

The claim was poorly presented. The drafting was sloppy. For example, there was no reason why Mbozvi's name was not cited in full when all his particulars were available.

But, that is besides the point.

In his defence, Mbozvi took an objection in limine. He said Chengetai had no locus standi in judicio to evict him or to seek holding over damages because the property was his.

But, it seems this objection went nowhere. It seemed abandoned or forgotten somewhere along the way. It was not even on the list of issues at the pre-trial conference.

The objection was ill-conceived anyway, especially if regard is had to the nature of the claim and the nature of the defence.

On the merits, Mbozvi denied that he had “…, unilaterally entered…,” the property. He alleged he had lawfully acquired it from one Tafirenyika Maturo (“Tafirenyika”), to whom Chengetai had transferred her right, title, and interest.

In its judgment, the court a quo ruled, that, there had never been a transfer from Chengetai to Tafirenyika but that what had happened had all been a fraudulent scheme to strip Chengetai of her ownership. As such, since no thief or fraudster can in law transfer rights in a thing, Mbozvi's claim to the property was held to be defective. The court also ruled that Chengetai was entitled to holding over damages.

The case went like this.

Chengetai opened and shut her case with only the evidence from herself. She said the property was allocated to her by the Chipinge Rural District Council in 2007. She produced the offer letter from Council dated 29 November 2007. All this was common cause.

But, there was a subtle detail on the letter that was at war with her case.

The letter had two parallel lines drawn in long hand running diagonally across it and between which the words “Stand No.238 PHASE 1” were inscribed, also in long hand. Mbozvi said that was the evidence of the cession of the property from Chengetai, or of the original allocation to her having been cancelled. She denied it. But, she proffered no other explanation for that endorsement.

In a boxing match, that would be a point for Mbozvi.

Chengetai said she had submitted some developmental plans to the Council for the construction of a 3-roomed cottage on the property. As proof, she produced some drawings endorsed with a date stamp from the Chipinge Rural District Council in 2012.

But, again, a subtle detail on the drawings contradicted the flow of her evidence.

Mbozvi said the plans were for a different property, not Stand 238. Indeed, the drawings cited a different property. They were titled “PROPOSED COTTAGE ON STAND No.120 INFILL CHECHECHE GROWTH POINT”. Chengetai said the reference to Stand 120 was a mistake which the Council had promised to rectify but had never done.

But, again, in a boxing match, this would be another point for Mbozvi.

Beyond this evidence and these two documents, Chengetai's evidence proved nothing further. Everything else she said was a bare denial of the cogent and overwhelming evidence by Mbozvi through himself and his very relevant witnesses, namely, Tafirenyika, his wife Leona or Loren Chiona (“Leona”) and Mbozvi's friend, Collen Gapara (“Collen”) who had facilitated the sale deal between Tafirenyika and Mbozvi.

Mbozvi's case was this.

He heard the property was on sale. He went to inspect it. He liked it. Together with a sister and his wife, they went to inspect Council records. These reflected Tafirenyika as the “owner”. Tafirenyika worked and stayed in South Africa. Mbozvi called him. They agreed on a purchase price of fifty thousand Rand (R50,000).

Tafirenyika referred them to his wife, Leona, whom he said had all the authority to represent him.

The sale deal was concluded. The purchase price was paid. They went to Council offices for the usual cession. This was done.

He took occupation in 2015 and started building the partially constructed house. He completed the structure; tiled the floors; installed water and electricity; planted some trees and flowers around the yard; put up a security wall along the perimeter and started staying there from January 2016.

Until he received her summons, in March 2018, he had never heard of Chengetai and her claim to the property.

To all that, Chengetai denied ever selling the property to anyone.

She denied ever dealing with Tafirenyika or his wife, Leona. She was adamant none of them was known to her.

Mbozvi set to demolish her case. He called Collen.

Collen's evidence corroborated Mbozvi's in relation to the sale by Tafirenyika. One important aspect of that corroboration was that it was his advice to Mbozvi to clear the property first with the Council before committing himself to Tafirenyika. He was present at the Council offices when the records were pulled out and inspected. They all reflected Tafirenyika as the “owner”. Another important aspect of the corroboration was that when Mbozvi took occupation there was a partially built structure which Mbozvi completed in 2016.

Even the court a quo accepted Collen gave his evidence very well and that he remained unshaken under cross-examination.

But, the sale and transfer from Tafirenyika to Mbozvi was less contentious. Fireworks were in respect of the sale and transfer from Chengetai to Tafirenyika.

Chengetai swore she knew nothing about it or that Tafirenyika and his wife, Leona, were ever known to her.

So, Mbozvi called Leona.

She stayed at Checheche Growth Point. She said it was Chengetai herself that had come to her house, personally, on 4 February 2015, to inform her that she had sold the property to her husband, Tafirenyika. Tafirenyika had already telephoned her (Leona) about the deal. Before coming to Leona's house, Chengetai had first telephoned her for directions. The purpose of Chengetai's visit was to arrange transfer of cession at the Council offices. They agreed on a date, 6 February, i.e. two days later.

Leona's evidence, on the cession transfer at the Council's office, was quite elaborate. In brief, it was this:

She had her husband's national registration particulars. Chengetai had hers. Together, they were moving from office to office signing documents. Chengetai would sign first. She would sign in place of Tafirenyika.

After completion of the sale and transfer she and Chengetai actually became friends.

Next, Mbozvi called Tafirenyika.

His formal evidence was that he worked and lived in South Africa. He was married to Leona under customary law. They had three children together. He was the one who sold the property to Mbozvi. Everything was done through Leona, his wife, whom he had granted all the authority.

Critical aspects of Tafirenyika's evidence were these:

He met Chengetai for the first time in South Africa. He did not know her before. She had been in the company of two people, one of them Zviedzo Chipfunde (“Zviedzo”), an old school mate of his. Zviedzo was then married to Chengetai. He told him Chengetai was selling a Stand for thirty thousand Rand (R30,000). He reached an agreement with her. He paid her a deposit of twenty thousand Rand (R20,000). The balance of ten thousand Rand (R10,000) would be paid on the transfer of cession.

Tafirenyika's critical evidence continued:

Towards December, Chengetai was demanding the balance of the purchase price. He told her they needed to change ownership first. They agreed that since he was busy he would give her his wife's contact details through whom the transactions would be carried out.

Back in Zimbabwe, Chengetai did contact Leona and went to see her at home. Together, they arranged and facilitated the change of ownership. Chengetai subsequently returned to South Africa and collected the balance of R10,000 after both she and Leona had confirmed the cession at Council offices.

To all that testimony, Chengetai's position was just a bare denial.

She denied she knew Tafirenyika or his wife, Leona. She denied she had sold her property to them. She denied she had been to South Africa during the period mentioned by Tafirenyika. She denied she had received that kind of money from Tafirenyika or anyone else in connection with the property. She denied the cession at the Council offices and alleged that all the documents suggesting a cession of rights by her were forgeries or fraudulent.

Mbozvi's witnesses were forthright, straightforward, and unshaken. Cross-examination was lame.

For example, counsel for Chengetai, put it to Tafirenyika, that, Leona was a mere concubine of his since there was no registered marriage between them. He pestered Tafirenyika why he did not apply to be joined to the proceedings if ever he wanted to defend his sale of the property to Mbozvi and protect him!

This was absolutely ironic.

It was the process issued by counsel for Chengetai himself, on behalf of Chengetai, and his presentation of the case that were patently incompetent.

For example, the summons excluded very relevant parties like Tafirenyika and the Chipinge Rural District Council, the true owner of the property, and the records for which reflected Tafirenyika as the owner. Not only that, but Chengetai's case was closed with no evidence from any of the Council officials testifying on what had really transpired regarding the property and whether there had really been a fraud.

There was an aspect of Mbozvi's evidence and that of his witnesses that left Chengetai rather exposed.

They asked how on earth they could have ever guessed Chengetai's national registration particulars which were inserted on the cession documents. At first, she denied they were hers. But, she subsequently admitted them. She gave no explanation how Mbozvi and his witnesses could have got them.

Mbozvi's documentary evidence should have won him the case. In a boxing match, it would be the technical knock-out punch. It was completely in consonant with his testimony and that of his witnesses.

Firstly, he relied on Chengetai's own original offer letter from Council and highlighted the cancellation endorsed on it. Next, he discredited the drawings or building plans as belonging to a different property altogether.

The critical cession document from Chengetai to Tafirenyika was produced through Leona.

It was one of those standard cession forms used by rural district councils which are printed on council stationery. Blank spaces were completed in long hand. It had four sections: the first for completion and signing by the cedent; the second for completion and signing by the cessionary; the third for official use, and the fourth, and last, for approval by the Minister of Local Government.

Completed, the relevant portions of the cession document read as follows:

“The undersigned…,___CHENGETAI SIDHUNA___, National Reg. No: ___13–174976 A 13___ do hereby cede, assign and transfer to…,___MATORO (sic) TAFIRENYIKA___ Nat Reg No: ___13 – 200661 T 13___ All my rights and title to and interest in lease number ___238___ at ___CHECHECHE___ Business centre in Chipinge Rural District from ___6___ day of ___FEBRUARY 2015___.”

Above the word “CEDENT” was a signature, in very clear print: “C h e n g e t a i” with the letter “e” quite distinct and somewhat stylish. There were also signatures by two witnesses.

The section for the cessionary read as follows:

“I … ___MATORO (sic) TAFIRENYIKA___ Nat Reg No ___13–200661 T 13___ Address ___1107 Phase 2 CHECHECHE___ Do hereby accept transfer of the Agreement of number _____(blank)____ Business Centre in Chipinge Rural District, as from the ___6___ day of ___February 2015___”

As with the cedent, the cessionary's signature was a distinct name in print “LOREEN CHIONA”. There were also signatures by two witnesses.

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.The applicant craves ...

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.

The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.

The applicant craves the grant of his application, with no order as to costs.

Background

The two parties involved in this matter are a formerly married couple in terms of the Marriages Act [Chapter 5:11].

Following an irretrievable breakdown in their relationship, the respondent sought a decree of divorce in the High Court. The order sought in the court a quo also regulated the distribution of their perceived matrimonial property.

During the course of those proceedings, the applicant contested the distribution of an immovable property known as House Number 114 Lomagundi Road, Harare. His chief argument was, that, there was no direct contribution towards the purchase of the property by the respondent and hence she was disentitled from any claim to the property as part of their divorce proceeds.

This proposition was countered by the respondent who insisted that she had been the primary caregiver to their family and had remitted the various monies she had earned to the applicant during the subsistence of their marriage.

The applicant's purported former second wife also testified to the same effect on behalf of the respondent. She submitted, that, the respondent had raised various amounts of income that she submitted to the applicant during their marriage.

In the event, the court a quo found in favour of the respondent and granted her a fifty percent share in the property.

Irked by the High Court's determination, the applicant launched a subsequent appeal to the Supreme Court.

From the submitted grounds of appeal, the sole issue that arose for determination was whether the court a quo had erred in awarding the respondent a fifty percent share in the contested immovable property.

It was submitted, on behalf of the applicant, that, the court a quo had adopted a narrow construction of the principle of equality as the respondent had not contributed towards the purchase of the immovable property. It was contended, that, the judgment by the court a quo upset the established jurisprudence regarding the primary considerations for equitable distribution of matrimonial property.

Per contra, the respondent submitted that the court a quo had exercised its wide discretion under section 7 of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes Act”). It was contended, that, the High Court, in arriving at its determination, was guided by the Constitution as well as established precedent.

The respondent submitted, that, taking into consideration the circumstances of the case, the court a quo's determination could not be faulted.

Once seized with the matter, the Supreme Court proceeded to first correct the order of the court a quo, that had omitted to grant a decree of divorce before distributing the parties matrimonial property.

On the merits, it re-affirmed the respondent's position, that, section 26(c) and (d) the Constitution, as well as international law, mandated a fair and equitable distribution of matrimonial property. The Supreme Court upheld the court a quo's determination on the basis, that, the court a quo had properly exercised its discretion under the Matrimonial Causes Act.

The Supreme Court also noted, that, the applicant's moral turpitude was a critical factor in the decision of the High Court. The applicant's conduct, in trying to frustrate the equitable distribution of matrimonial property, was held to justify the order granted by the High Court.

Thus, the appeal was held to be meritless and dismissed.

Thereafter, the applicant failed to note an application for leave to appeal against the Supreme Court's decision within the allotted timeframe stipulated by the Constitutional Court Rules, 2016.

Based on the foregoing, the applicant filed the instant application before this Court on 22 March 2022.

The judgment of the Supreme Court was handed down on 29 June 2020 and the Rules of this Court provide fifteen days from the date of judgment to apply for leave to note an appeal against the judgment.

The applicant was evidently barred from noting his application for leave to appeal against the Supreme Court's decision and hence he has filed the present application for condonation.

In his founding papers filed of record, the applicant averred that his application for condonation ought to be granted as the intended application for leave to note an appeal enjoyed prospects of success.

It was contended, that, the applicant enjoyed a right to petition the Constitutional Court under section 69(3) of the Constitution, and, in the present instance, such access hinged on the existence of a constitutional matter in the subordinate court. He averred, that, the Supreme Court over-extended the import of the notion of “equality” when interpreting the provisions of the Matrimonial Causes Act.

It is on the basis of the foregoing, that, the applicant submitted that he had a justiciable right to equality, under section 56 of the Constitution, that ought to be protected by this Court.

He averred, that, section 56(3) of the Constitution, in particular, prohibited every person, including judicial officers, from discriminating against litigants based on their culture.

He asserted, that, the High Court's determination was primarily influenced by his cultural practice of taking another spouse during the subsistence of his marriage to the respondent.

The applicant advanced the position, that, the Supreme Court consequently failed to protect his right to equality. This constituted a flagrant violation of his fundamental right which ought to be redressed by this judicial forum.

Regarding the extensive delay in applying for leave to note an appeal, the applicant pleaded that he had limited financial liquidity to afford legal consultation and was oblivious of the prescribed period to access this Court.

He also averred, that, the Covid-19 pandemic militated against the filing of the present application due to onerous lockdown restrictions.

The applicant conceded, that, the extent of the delay in filing the application was inordinate but countered this concession by reasoning that, at any rate, the respondent was not prejudiced by the delay due to the peculiar circumstances of the matter.

The application was strenuously opposed by the respondent.

She averred, that, the Supreme Court was not seized with a constitutional matter and did not determine any constitutional issues in rendering its verdict. The respondent submitted, that, the draft grounds of appeal filed by the applicant related to general points of law.

It was contended, that, the judgement of the Supreme Court did not stray from the established legal precepts governing the distribution of matrimonial property in determining the rights of the parties.

The application was deemed to be an abuse of court process due to the obvious absence of any constitutional issue in the Supreme Court's judgment.

Submissions by Counsel

Counsel for the applicant, conceded that there was an extensive delay in filing the present application and that such delay was inordinate. She countered her concession by arguing, that, the applicant had been pondering his available remedies due to the complexity of the matter. It was submitted, that, the applicant sought legal advice from counsel, a process that extended the delay in filing the present application.

When it was pointed out that the founding affidavit on record contradicted her submissions, counsel admitted that the applicant had not been candid with the Court....,.

The explanation tendered by counsel for the applicant, seeking the Court's indulgence, is starkly at odds with the applicant's averments in his founding affidavit.

Upon reflection of the Court's observation regarding this disparity, she conceded that the applicant was not being candid in the papers filed of record.

In his founding affidavit, he pleads financial impoverishment amongst a variety of other reasons. This position was contradicted by the submissions made by counsel for the applicant, to the effect that the delay was occasioned by the complexity of the legal issues involved and the briefing of external counsel for legal advice.

Counsel for the applicant attempted to absolve the applicant by passing the blame onto her junior who was supposedly tasked with drafting the founding affidavit.

It is trite, that, generally, a litigant cannot be absolved of the alleged ineptitude of his or her chosen legal practitioners: see Beitbridge RDC v Russel Construction 1998 (2) ZLR 190 (S).

The applicant's difficulty is compounded by having appended his signature to the founding affidavit.

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

One of the crucial elements of the new constitutional dispension ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment (No.20) Act 2013 (“the Constitution”) adopted the rule of law and supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy.

For this reason, public office bearers ignore their constitutional obligations at their own peril. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:

“Power tends to corrupt, and absolute power corrupts absolutely!”

John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”

Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.

To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.

However, this case also illustrates the need, on the part of the litigants, to move away from old fashioned Private Law habits when it comes to Constitutional Law litigation. While constitutional litigation may entail the vindication of a private right, it differs from Private Law litigation in that over and above that it seeks to entrench legality and the deepening of the constitutional order for the benefit of the broader public.

This is why it has been said that:

“Where a matter concerns the constitutionality of a law…, the need for certainty may require the court to decide the matter irrespective of whether or not the party advancing the challenge had standing:” MAX du PLESSIS et al 'Constitutional Litigation' Juta, 2013 quoting the South African cases of Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)…, and South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC)…,.

This application seeks to enforce the enactment of the law envisioned in section 210 of the Constitution to provide for “an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

It also seeks a declarator that the respondents have breached the Constitution by failing to enact such a law timeously after the coming into operation of the new Constitution and a mandamus for the respondents to gazette the Bill envisioned in section 210 of the Constitution thereof within forty-five days.

At the time of hearing of the application, a period of two years and four, five months had lapsed from the time of coming into operation of the rest of the Constitution, on 22 August 2013, when the President-elect, under the Constitution, assumed office. That delay, of less than two and a half years, might not have been sufficient to satisfy a finding of violation of the Constitution and the application might have failed on that score, with a period of, say, three being deemed to be the sufficient one.

However, post-hearing, intimations or overtures that the matter might be settled by consent of the parties were made necessitating the holding of three Court-presided meetings of the parties over time on the basis that both sides were agreed that the envisaged legislation had to be enacted; and, indeed, both sides agreed that the application was essentially not opposed, but differed slightly on the appropriate timelines for the enactment of the law.

Herein lies the nub of this matter.

Had the constitutional legality principle been put above all else, the application could have been granted immediately with immense public benefit. However, the Private Law litigation habit of “winner takes all” of wanting the other side to be declared a violator of the Constitution stood in the way as did the attitude on the other side of not wanting to make any move unless so ordered.

Had the Court appreciated, then, how deeply entrenched these arcane positions were, relics of Private Law litigation habits, a different approach could have been adopted of immediately issuing the order, with reasons to follow.

It is regretted that this approach was not followed.

FACTUAL BACKGROUND

The applicants are citizens of Zimbabwe who have taken it upon themselves to see to it that the respondents adhere to the constitutionally-created obligations imposed on them by section 210 of the Constitution.

The applicants submit, that, the respondents have done nothing to fulfil their constitutional obligations clearly outlined in the supreme law.

Section 210 of the Constitution requires the enactment of a law to provide for an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.

The applicants aver, that, it has been over two years since the inception of the Constitution and the Act required, in terms of section 210 of the Constitution, has not been put in place.

It is further the applicant's contention, that, the failure by the respondents to enact the law, in terms of section 210 of the Constitution, is a breach of the Constitution. The right to equal protection of the law, under section 56(1) of the Constitution, is under threat, according to the applicants, due to failure or delay in enacting the law directed by section 210 of the Constitution.

The application is opposed.

The respondents submit, that, the law-making process cannot be carried out overnight. The respondents further submitted, that, they are working on making sure that the Act is in place and filed of record a working document they are allegedly focused on as a roadmap towards the eventual enactment of the law in question.

The timeline within which the Act envisaged by section 210 of the Constitution should be enacted sits at the heart of this application.

The applicants, in their final submission to this Court, are seeking the following relief:

1. The respondents failure, to enact the law provided for in terms of section 210 of the Constitution of Zimbabwe, is in breach of the Constitution of Zimbabwe.

2. The failure by the respondents, to enact the law to bring into effect section 210 of the Constitution of Zimbabwe, is a violation of the applicant's right to equal protection and benefit of the law as defined by section 56(1) of the Constitution.

3. The respondents must gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within 45 days from the date of this order.

4. The respondents, jointly and severally, each paying the other to be absolved pay costs of suit.

ISSUES

The first question this Court is seized with is whether or not the applicants have locus standi to bring this matter before this Court. This question shall be disposed of first before delving into questions arising from the merits of the application.

On the merits of the application, three questions arise and they are the following:

(1) Whether or not the respondent's delay in enacting the law, provided for in terms of section 210 of the Constitution of Zimbabwe, constitutes an unreasonable delay in fulfilling constitutional obligations in terms the Constitution of Zimbabwe.

(2) Whether or not the requirements for a mandamus have been satisfied to order the respondents to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty five days from the date of this order.

The aforementioned questions, on merit, will be disposed of separately hereunder after addressing preliminary and standing issues.

PRELIMINARY ISSUES

Before proceeding to deal with the merits, there are a number of preliminary issues that call for the Court's attention, although not raised by the parties, but being questions of law.

Their determination is paramount in clarifying what really is before this Court as opposed to what is purportedly so.

THE APPLICANTS FOUNDING AFFIDAVIT IS DEFECTIVE

The founding affidavit in this application is replete with anomalies which render it defective. It is deposed to by the first applicant. He is the one who, under oath, swears to and undertakes to depose to the founding statement forming the basis of the suit. Thereafter, the very same affidavit identifies the second applicant, by naming him, and states, that, the second applicant brings the application 'in his own right.'

It is pertinent to note, that, the second applicant does not, at any point, take the oath or undertake to depose to the founding affidavit.

Neither does he sign the affidavit which is signed by the first applicant.

It does not end there.

The founding affidavit of the first applicant then purports to tell the story of both the applicants.

This it does in the most unusual way. The first applicant appears to be the author of the first to fifth paragraphs of the founding affidavit. He refers to himself in the first person where he states thus: “I am the Applicant herein:” and refers to the second applicant in the second person were he states: “The Second Applicant is Rashid Stuart Mahiya.”

It is not clear at what stage the second applicant takes over the reins of authorship to the first applicant's founding affidavit, but, it appears to be possibly at about the sixth paragraph of the founding affidavit. At paragraph 6.2, the first applicant is referred to in the second person where it says:

“In my line of work, I have witnessed the agonies of the violence perpetrated against our citizens in unmitigated proportions, in particular, the first applicant, by the State and its agents.”

It appears from the above remarks, that, it is the second applicant who now puts forth his own story through the first applicant's founding affidavit.

From the above, it is clear, that, apart from being mentioned by the first applicant, there is no affidavit before the court that can be attributed to the second applicant.

Therefore, the founding affidavit before the court is that of the first applicant.

The second applicant, in a strange and unusual manner 'infuses' his own averments in an affidavit sworn to and signed by the first applicant.

Thus, effectively, there is no affidavit placed before this Court by the second applicant.

The founding affidavit also only identifies two respondents, the first and second respondents. The third and fourth respondents are not identified as respondents save for their citation on the face of the application.

Further to that, at paragraph 8.1 of the founding affidavit, the authorship appears to have reverted back to the first applicant were it is stated that:

“The Applicant and I are ordinary citizens of Zimbabwe and Human rights activists.”

Such back and forth approach is unacceptable. It leaves the facts muddled, not being clear which averments are to be attributed to which applicant. Such breadth-taking bundling is unacceptable, embarrassing, and an unworthy handiwork of one who is a senior legal practitioner.

Further to that, and more seriously, the applicant's affidavit also makes serious allegations against persons who are not cited as parties to the application. Neither were they served with the application to enable them to answer to the allegations made therein.

The founding affidavit, at paragraphs 8.4 to 8.12 (inclusive) alleges that certain individuals believed to be members of the security sector terrorised the first applicant and his family. It alleges vicious assaults and intimidation which resulted in the death of some of the first applicant's family members.

It is now well established at law, that, in the face of such serious allegations, the persons whose conduct is impugned ought be cited and afforded a chance to put across their own case.

In view of the fact that this has not been done, the allegations should be struck out, and, paragraphs 8.4 to 8.12 (inclusive) are accordingly struck off the record.

The second applicant then purports to affirm the first applicant's affidavit through a supporting affidavit that merely states, that, the second applicant confirms the first applicant's averments and makes them his own. In addition, the second applicant deposes to an answering affidavit in circumstances where he has not deposed to a proper affidavit.

That cannot be.

This Court ought not to consider it, the answering affidavit of the second applicant, as it stands on nothing.

It is trite that an application stands or falls on the averments made in the founding affidavit: see HERBSTEIN & Van WINSEN, the Civil Practice of the Superior Courts in South Africa, 3rd ed (hereinafter 'Herbstein & Van Winsen or the Authors')…, where the authors stated that:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein; and, that, although sometimes it is permissible to supplement the allegations contained in that affidavit, still, the main foundation of the application is the allegation of facts stated therein, because, these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits, any fortifying paragraphs in his replying affidavits will be struck out.”

From the above remarks, it is clear that the second applicant's replying affidavit ought to be struck out as well.

It is pertinent to note, that, the second applicant's answering affidavit, of five pages, purports to answer to a number of issues, that include locus standi, and, a substantial portion of it relates to section 210 of the Constitution.

Therefore, if struck out, in addition to other anomalies identified, this Court is left with very little on which the application is premised and from which this Court ought to be informed.

However, because the application raises the issue of legality, the court would want to be slow in dismissing such an application offhand, even in the face of these glaringly gross technical glitches, notwithstanding the invidious position which the few remaining valid threadbare averments place the court in.

The application seeks to enforce the constitutional obligations as set out in section 210 of the Constitution, and this Court, as the apex court on constitutional matters, is equally obligated to see to it that constitutional obligations are fulfilled.

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

On 23 July 2018, Mr Forward Kapiya (the respondent) of Stand 254 Headlands Location issued summons at Rusape Magistrate's Court against the appellant, Stella Masunga, where he was seeking eviction of the appellant from a commercial Stand No.193, Headlands known as Kapiya General Dealer.

In the summons, he averred that the appellant was his ex-wife and he had since separated with her, and, since she was then co-habiting with other men, she ought to move out of the property.

The defendant filed her appearance to defend, and, on 3 August 2018 she filed her plea. In her plea she contended that the respondent herein was not the owner of the property. She is the one who bought Stand 193 in 2004 and started constructing it alone before customarily marrying the respondent in 2006.

When she married the respondent, in 2006, the shop was about to be roofed.

In 2010, she admitted changing the name from her name to that of the respondent since the respondent was going to marry her. When the appellant changed the names, she did not know that the respondent wanted to grab her shop.

On 12 September 2018, the matter proceeded to trial and both parties led evidence to prove their cases and called witnesses.

After hearing, the court granted eviction against the appellant and ordered her to vacate the premises by 31 December 2018. The order was granted on 19 November 2018.

On 30 November 2018, the appellant noted an appeal against the whole judgment of the magistrate and outlined the grounds of appeal as follows:

“1. The learned Magistrate erred in ordering the eviction of the appellant by 31 December 2018 on Stand No.193 Headlands, despite the following:

(a) The Stand in question belongs to the appellant.

(b) That responsible authority, which is in Makoni Rural District Council, through its representative, Fungai Misi, having been given subpoena, confirmed that appellant is the one who had purchased the said Stand.

2. The learned Magistrate misdirected herself by failing to appreciate the evidence of the responsible authority to the effect that the Stand is registered in appellant's name.

3. The learned magistrate erred and misdirected herself by failing to consider the evidence of the responsible authority to the effect that indeed there was an attempt to do a cession but that was not done because there were issues which needed to be ironed out first.

4. The court failed to appreciate that indeed appellant has a clear right over the Stand hence could not be evicted.

5. The court failed to appreciate that respondent was lying and sought to rely on his evidence.

6. The court erred and misdirected itself in relying with the evidence of a brick moulder.

7. The judgment imposed by the trial magistrate is shocking and should be set aside.

WHEREFORE appellant prays that an order for eviction imposed by the trial magistrate be set aside with costs that she be allowed to carry out her business as the owner of Stand 193 Headlands.”

I have cited the prayer of the appellant to show that it is defective. However, we condoned that defect in the interests of justice and allowed the appellant to argue its appeal.

For the record, the prayer in an appeal should be framed as follows:

“(a) The appeal is upheld with costs.

(b) The judgment of the court a quo is set aside and substituted by the following:

The claim for eviction of the defendant from Stand 193 Headlands is dismissed with costs.”

The appellant's legal practitioner, on the date of hearing, sought the leave of the court to consolidate grounds of appeal 1, 2 and 3 to be represented by ground 1. Effectively, the appellant chose to abandon ground 2 and 3.

The appellant also abandoned ground of appeal 7, though, in counsel's submission, he smuggled it back whilst seeking an order allowing the court to take into account the proprietary right of the appellant over Stand 193 Headlands.

We allowed the consolidation and refinement of the grounds of appeal for there was no prejudice on the respondent.

The grounds of appeal to be dealt with by this court were then 1, 4, 5 and 6.

WHETHER THE MAGISTRATE ERRED IN ORDERING EVICTION OF THE APPELLANT?

The appellant submitted, that, Stand No.193 Headlands belonged to her because it is still registered in her name on the papers held by Makoni Rural District Council.

In the appellant's own pleadings filed of record, she unreservedly and voluntarily contended, that, although she is the one who bought the Stand (a fact which is disputed by the respondent herein) she changed ownership in 2010 when she was about to wed the respondent.

To consolidate that commitment towards change of ownership, there are copies of affidavits signed by both the appellant and the respondent and submitted at Headlands District office.

Whether those papers were forwarded to Makoni Rural District Council offices for cession remains, in our view, academic.

The evidence of Fungai Misi was of no effect because the appellant, in her own papers, concedes, that, in 2010, she changed ownership of the Stand to that of the respondent.

The affidavits of cession signed by the appellant were not revoked nor set aside, they remain extant up to this date.

SC02-22 : SUNKO MAURITIUS and JUDEX BURNETT vs VERSAPAK HOLDINGS (PRIVATE) LIMITED (In Liquidation) and CECIL MADONDO N.O. (Provisional Liquidator of Versapak Holdings)
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

This is an appeal against the entire judgment of the High Court (the court a quo) which placed the first respondent in final liquidation.BRIEF BACKGROUND OF THE CASEThe first respondent, Versapak Holdings (Private) Limited (the company), is a juristic person incorporated in terms of the laws of Zimbabwe whereas the ...

This is an appeal against the entire judgment of the High Court (the court a quo) which placed the first respondent in final liquidation.

BRIEF BACKGROUND OF THE CASE

The first respondent, Versapak Holdings (Private) Limited (the company), is a juristic person incorporated in terms of the laws of Zimbabwe whereas the second respondent is the company's liquidator.

The company has three shareholders being:

(i) Sunko Mauritius (C15289); an offshore Mauritian company with a shareholding of 1,100 ordinary shares.

(ii) Versapak Employee Trust; with a shareholding of 73 ordinary shares.

(iii) Versapak Management Trust; with a shareholding of 49 ordinary shares.

The appellants have since acquired all the shares of the company with the result that it is now 100 per cent foreign owned.

The company is in the business of manufacturing expanded polythene products which have since been banned by Government through Statutory Instrument 84 of 2012, SI84 of 2012. Owing to the banning of its products, scarcity of foreign currency, and competition from cheap imports, the company fell on hard times. As a result, it became unviable as it was running at a loss.

This prompted the directors of the company to initiate the process of winding down the company.

On 14 December 2016, the company passed a special resolution authorising one Rangarirai Dadirai to commence the winding down process. They appointed the second respondent as the company liquidator.

The Resolution reads as follows:

“------------------------------------------------------------------------------------------
WRITTEN RESOLUTIONS OF THE DIRECTORS OF THE COMPANY
PASSED ON THE 14TH DAY OF DECEMBER 2016
----------------------------------------------------------------------------------------------

WINDING DOWN OF THE COMPANY

----------------------------------------------------------------------------------------------
SPECIAL RESOLUTION/S

IT IS HEREBY RESOLVED THAT:

1. The Company shall commence the winding down of its operations as it is no longer capable of operating profitably. The main factors leading to the crippling of the company, among others, are:

(a) The liquidity crunch and lack of foreign currency to pay for imported products and purchase raw material.

(b) Stiff competition from cheap imports which affected the sales of the Company.

2. The Company will be wound down in terms of section 206 of the Companies Act [Chapter 24:3]; that is, winding down by the Court.

3. Rangarirai Dadirai is appointed to sign all affidavits and documentation for purposes of process issued in the High Court of Zimbabwe in winding down the Company.

4. Rangarirai Dadirai be and is hereby authorised to appoint experts to assist in the attainment of the shareholders? Objective being the procedural winding up of Versapak Holdings (Private) Limited.

5. The liquidator of the Company shall be Mr Cecil Madondo of Tudor House Consultants.”

Pursuant to the special company resolution authorising the winding down of the company, it filed an exparte court application for a provisional order for its winding down. The application was duly supported by the Master's Report dated 7 March 2017.

The Provisional Order sought was granted ex parte, that is to say, in the absence of the other interested parties.

The order was crafted in the following terms:

“IT IS ORDERED THAT:

1. The applicant, Versapak Holdings (Pvt) Ltd, be and is hereby provisionally wound up pending the grant of an order in terms of paragraph 3 or the discharge of this order.

2. Subject to subsection (1) of section 274 of the Companies Act [Chapter 24:03], Cecil Madondo, of Tudor House Consultancy (Pvt) Ltd, is appointed as provisional liquidator of the above mentioned company with the powers set out in section 221(2)(a)–(g) of the Act.

3. Any interested party may appear before the court sitting at Harare on Wednesday the 15th of March 2017, to show cause why a final order should not be made placing the applicant company in liquidation and ordering that the costs of these proceedings shall be costs of liquidation.

4. The order shall be published once in the Government Gazette and once in the Herald newspaper in a Friday edition. Publication shall be in short form annexed to this order.

5. Any person intending to oppose or support the application on the return day of this order shall:

5.1. Give due notice to the applicant, on or before 10th of March 2017, at Nyakutombwa Mugabe Legal Counsel, 49 Old Enterprise Road, Newlands Harare, ref Joseph T Tazunguzwa.

5.2. Serve on the applicant a copy of any notice of opposition which he files with the Registrar of the High Court.”…,.

As can be seen, in respect of the time honoured audi alteram partem rule, the ex parte order provided a return date to afford all interested parties a chance to be heard on the issue before a final binding order could be made.

The return date was set for 15 March 2017.

It was widely published both in the Government Gazette and the Herald newspaper, and, it invited any interested person who had any objection to the final order sought to lodge their objection with the Registrar of the court a quo and also to appear on the return date.

For the avoidance of doubt, it read:

“In the petition of Versapak, Holdings (Private) Limited, applicant.

TAKE NOTICE that on Wednesday the 15th of February 2017, and before Mr Justice Foroma, the High Court at Harare issued an order for the provisional liquidation of Versapak Holdings (Private) Limited, and Cecil Madondo has been appointed provisional liquidator of the company.

Any interested person who wishes to oppose the winding up of the company shall file a notice of opposition with the Registrar of the High Court at Harare on or before the 10th of March 2017, and, shall serve a copy of the notice on the applicant's legal practitioners. He/she should then appear before the High Court at Harare at the hearing of this matter on 15th March 2017 to show cause why the company should not be wound up.

A copy of the application and of the full order granted by the court may be inspected at the office of the Registrar of the High Court at Harare, and the office of the applicant's legal practitioners – Joseph Tuzunguzwa c/o Nyakutombwa/Mugabe Legal Practitioners, 49 Old Enterprise Road, Newlands, Harare.”…,.

The return date was subsequently extended to 26 April 2017 by court order, under case number HC2304/17, on the same terms and conditions as before.

Any person intending to oppose the confirmation of the provisional order was now required to file their notice of opposition and serve a copy on the second respondent on or before 19 April 2017.

The appellants did not file any notice of opposition or serve a copy on the second respondent by the due date, as mandated by the provisional court order advertised in the Government Gazette and the Herald Newspaper.

The appellants, instead, filed a separate application seeking the discharge of the provisional order on the basis that it had been issued by mistake.

No founding affidavit was filed with the application for discharge of the provisional order. Only a supplementary affidavit for the application was belatedly filed on 21 April 2017 praying for an order discharging the provisional order on the return date which had already come and gone. They also sought an order directing the second respondent to return the cash and any documents belonging to the company.

The appellants did not apply for any condonation or reprieve for non-compliance with the court order.

The application was opposed by the second respondent resulting in both applications, in cases HC377 of 2020 and HC773 of 2017, being consolidated and referred to the opposed roll.

ISSUES FOR DETERMINATION BEFORE THE COURT A QUO

Both applications raised the substantive issue of whether the application for the winding up of the company should be confirmed or discharged.

At the commencement of the court hearing, the second respondent, however, raised three points in limine for determination.

In his first point in limine, the second respondent objected to the appellants locus standi, that is to say, their right to stand and be heard in the court a quo.

SUBMISSIONS FOR THE SECOND RESPONDENT BEFORE THE COURT A QUO

Counsel for the second respondent took a two pronged approach to attack the appellants locus standi:

(i) Firstly, he argued, that, the effect of the court order, placing the company on provisional liquidation, was to divest the appellants of their directorships in the company and vesting them in the second respondent in his capacity as provisional liquidator.

For that proposition of law, counsel placed reliance on the case of Volkskas BPK v Darrenwood Electrical (Pvt) Ltd 1973 (2) SA 386.

(ii) He further argued, that, the appellants had no locus standi because of their failure to comply with the mandatory terms of the provisional court order.

SUBMISSIONS FOR THE APPELLANTS BEFORE THE COURT A QUO

The appellants took the view, that, they had the necessary locus standi to appear and be heard in the court a quo.

Counsel for the appellants accepted, that, upon issuance of a provisional liquidation order, directors of a company lose their rights and powers which are vested in the provisional liquidator.

He, however, countered, that, despite having lost their power and rights as directors, they retain the residual power to challenge the liquidation process.

For that proposition of law, he placed reliance on the case of Thaw Trading & Investments 005 CC v Central Lake Trading 214 (Pty) Ltd (666/2012) [2013] ZANWHC 47 (30 May 2013 para 11-13).

Counsel complained, that, although the point was raised in the court a quo, the learned judge a quo did not determine the legal point raised.

As regards the second limb of the second respondent's argument, counsel for the appellants conceded, that, the appellants did not comply with the mandatory time lines set out in the provisional liquidation court order.

He however argued, that, the parties entered into a consent order in which they agreed to purge the appellants breach of the time-lines set out in the provisional court order.

APPLYING THE FACTS TO THE LAW

It is convenient to deal with the procedural issue first as it has the potential of resolving all the other issues between the parties without delving into the substantive issues.

It is common cause that the appellants did not file and serve their notice of opposition by the due date of 19 April 2017 in terms of the mandatory provisions of the provisional liquidation court order.

It is also correct, that, the parties entered into a purported consent order which was not sanctioned by the court.

The purported consent order reads:

“IT IS ORDERED BY CONSENT THAT:

1. In the matter under case No. HC773/2017 (Ref Case No. HC2304/2017). The Provisional Liquidator, Dr Cecil Madondo, hereby agrees and consents to the late filing of the Notice of Opposition and opposing affidavit by Sunko (Mauritius) and Judex Burnett.

2. The late filing of the Notice of Opposition and opposing affidavit, by Sunko (Mauritius) and Judex Burnett, in the matter under case No. HC773/2017 (Ref Case No. HC2304/17), be and is hereby condoned and the Notice of Opposition and Opposing Affidavit, filed on 21 April 2017, in the said matter, be and is hereby deemed to have been properly filed of record.

3. The chamber application for condonation, filed under case No. HC6963/2017, is withdrawn.

4. The parties shall be at liberty to file Supplementary Heads of argument in the matter under case No. HC773/17 (Ref Case No. HC2304/2017) should they deem it necessary and shall proceed to set down the said matter for hearing on the opposed roll.

5. The costs of the application for condonation, filed under cases No. HC5341/2017 and HC6963/2017, shall be costs in the cause of this matter.

Signed Signed

_______________________ ____________________

COSTA & MADZONGA SCANLEN & HOLDERNESS

HARARE (NRM) HARARE (GN)

Not signed ______________________”

JUDGE/REGISTRAR

It is a misnomer to say, that, the above pact constitutes a court order because it was not given or signed by any court.

The effect of the so-called consent order is a futile attempt to alter the provisional liquidation order issued by the court a quo without its involvement and consent.

It is trite, that, once a court has made an order it binds all and sundry concerned.

Everyone bound by the court order has a duty to obey the order as it is until it has been lawfully altered or discharged by a court of competent jurisdiction or statute.

In Hadkinson v Hadkinson 19 522 All ER 567 (CA)…, ROMER LJ recited the duty to obey court orders with remarkable clarity when he said:

“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it, unless and until that order is discharged. The uncompromising nature of the obligation is shown by the fact, that, it even extends to where the person affected believes it to be irregular or even void.”

What this means is that it was not within the parties power to agree to condone the appellant's failure to comply with the extant provisional court order. It was equally not within their power to extend the period of compliance beyond 19 April 2017.

The parties purported consent order was therefore a nullity and of no force or effect as it sought to usurp the function and powers of the court a quo.

The appellants disregard of the timelines set out by the court a quo triggered an automatic bar shutting them out from being heard by operation of law. Consequently, the appellants were effectively divested of their locus standi before the court upon default.

That being the case, the court a quo's finding, that the appellants had no locus standi, is beyond reproach.

That finding of fact effectively put the appellants out of court rendering it unnecessary to consider any submissions they would have made. This is for the simple but good reason, that, they were not entitled to be heard by the court a quo on any issue pertaining to the case.

The appellants disdain of the time lines laid down by a court of law could only be purged by that court, on the merits, in a proper application for condonation and extension of time within which to comply with the terms set out in the provisional order.

The appellants withdrawal of that application sounded the death knell for any lawful reprieve for the appellants considering that the court a quo had already issued a substantive order confirming the provisional order.

DISPOSAL

In the result, the Court finds that there is no substance in this appeal. Costs follow the result. There is no reason why the respondents should be burdened with costs incurred by persons with no locus standi. It is accordingly ordered, that, the appeal be and is hereby dismissed with costs.

SC12-22 : SIMON CHINGANGA vs MUNASHE SHAVA and TAPSON MADZIVIRE and ADAM BEDE MANUFACTURING (PVT) LTD
Ruled By: KUDYA AJA

This is an application for reinstatement of an appeal, which was not deemed to have been dismissed, but was, by consent, struck off at the hearing on 24 November 2020 in SC99-20, for the reason (per paragraph 18 of the applicant's founding affidavit) that the applicant “had failed to file heads of argument as required by the rules of this Honourable Court.”

The applicant deliberately did not identify the Rule under which he lodged the application.

However, in oral argument, counsel for the applicant contended, that, it was filed in terms of paragraph 5 of Practice Direction No.3 of 2013 and not Rule 70(2) of the Supreme Court Rules 2018.

THE BACKGROUND FACTS

The main protagonists in this dispute are the applicant and the first respondent. The dispute turns on the scope and extent of the first respondent's shareholding in Adam Bede Manufacturing (Pvt) Ltd (the third respondent).

The second respondent is the majority shareholder in the third respondent.

The first and second respondents, with the assistance of a promoter of companies (Hove), concluded a Shareholders Agreement in which they became equal shareholders in Extreme Security Group (Pvt) Ltd (the Special Purpose Vehicle or SPV).

They further agreed to purchase the entire equity of Hunting Furniture (Pvt) Ltd t/a Adam Bede (Hunting) through the special purpose vehicle (SPV).

The two prospective shareholders soon realized that the participation of the first respondent would, at that time, be in conflict with his employment contract.

They sought to make Hove the first respondent's nominee shareholder, but, for professional reasons, he declined to undertake that role.

On the recommendation of the second respondent, and, again, with the help of Hove, the applicant became the first respondent's nominal shareholder in the special purpose vehicle (SPV).

The special purpose vehicle (SPV) purchased Hunting Furniture (Pvt) Ltd t/a Adam Bede and re-registered it as Adam Bede Manufacturing (Pvt) Ltd (the third respondent) on 4 May 2017.

The applicant and the second respondent were registered as the sole shareholders and directors in the third respondent. They each held one share apiece. The two directors became the sole joint signatories of the third respondent's bank account.

The conflict of interest situation that had previously bedeviled the first respondent ceased.

He sought to assume his role as the true shareholder and director in the third respondent.

His efforts were vigorously resisted by the applicant, who claimed to be a 50% shareholder in the third respondent in his own right.

The first and second respondents negotiated a settlement of the dispute with the applicant.

They concluded an oral agreement in which they restructured the shareholding of the third respondent by allotting 40 shares to the second respondent, 30 shares to the first respondent, 20 shares to the applicant and reserved 10 shares to a future technical partner.

The parties then reduced the oral agreement to writing but the applicant refused to sign it.

The applicant requisitioned an Extraordinary General Meeting on 3 November 2018 for the dismissal of the first respondent as a director of the third respondent.

He defaulted the meeting.

At the meeting, the first and second respondents removed the applicant as a director and company secretary of the third respondent.

He, however, was restored to both positions, unopposed, by the High Court in HC10298/18.

Thereafter, the applicant insisted that he was a 50% shareholder in the third respondent and sought to resile from the restructured shareholding agreement.

His assertions caused the first respondent to lodge a court application in the High Court for a declaration of his rights as a shareholder and director in the third respondent.

The application was opposed by the applicant....,.

On the merits, the court a quo found, that, the first respondent had established all the essential requirements for the grant of a declaratory order.

He had a direct and substantial interest in the application. He held existing rights that were under threat from the applicant's conduct.

The applicant sought to impugn, without evidence, and appropriate to himself the primary and pivotal role played by the first respondent and the second respondent in purchasing the entire equity in Hunting Furniture (Pvt) Ltd t/a Adam Bede through the special purpose vehicle (SPV).

The court a quo further found, that, the first and second respondents had contributed US$160,000 and US$180,000, respectively, into the special purpose vehicle (SPV) for the purchase price of, and as working capital in Hunting Furniture (Pvt) Ltd t/a Adam Bede while the applicant had not made any monetary or material contributions thereto.

The court a quo, therefore, declared the first respondent to be the holder of 30 ordinary shares, against the 20 shares of the applicant and 40 shares of the second respondent, in the third respondent.

It also declared him to be a duly appointed director of the third respondent; and, as consequential relief, ordered the restoration of his name as a director on the company's letterheads.

The applicant was also interdicted from misrepresenting to “clients and associates of third respondent” the extent of his equity holding, and the status of the first respondent, in the third respondent.

Lastly, he was ordered to pay the costs of suit.

Aggrieved by the decision a quo, the applicant appealed against the whole judgment of the court a quo to this Court in SC99-20....,.

The applicant raised the following four grounds of appeal:

“1. The court a quo erred in finding for the first respondent in para 2, 3 and 4 of the order notwithstanding that such determinations were not supported by any reasons for the decision.

2. A fortiori, the court a quo erred in making an order without considering the adverse factual position presented by the now appellant which contradicted the first respondent's version and not providing reasons for accepting the first respondent's story and rejecting the appellant's rendering its decision arbitrary and capricious.

3. The court erred and grossly misdirected itself in finding that the evidence of a professional who has previously acted for a company can be accepted to support a litigant against a shareholder of the same company without being conflicted.

4. The court a quo erred in making an order declaring first respondent owner and holder of 30 ordinary shares outside legally acceptable principles and norms of property acquisition. In particular, the order of the court does not relate with the cause of action proffered.”

The relief sought by the applicant was for the appeal to be allowed and the judgment a quo set aside and substituted with the dismissal of the application with costs....,.

THE PROPRIETY OF THE PRESENT APPLICATION

In his opposing affidavit, the first respondent raised five preliminary points against the application:

(i) The first was that the applicant had merely headlined the application as a “Chamber Application for the Reinstatement of an Appeal” and deliberately avoided identifying the Rule under which the application was being made;

(ii) Secondly, the application did not address the prospects of success in any meaningful detail;

(iii) Thirdly, the application did not embody the order granted in SC99-20;...,.

Counsel for the applicant argued for the dismissal of all the preliminary points at the hearing....,.

Regarding the third preliminary point, counsel for the applicant contended, that, the application raised prospects of success, notwithstanding that the first respondent may be dissatisfied with the manner in which they were addressed....,.

These were raised in paragraphs 23 to 26 of the founding affidavit.

The thrust of these paragraphs being that the decision of the court a quo is most likely to be overturned on appeal for being contrary to the stipulations enshrined in the Articles and Memorandum of Association of the third respondent regarding the acquisition and allotment of shares in the company after registration.

Further, that the judgment was based on a draft shareholding agreement that had not been executed....,.

He also took the point that the grounds of appeal were not prolix....,.

Counsel for the applicant sought to rely on Afritrade International Ltd v Zimbabwe Revenue Authority SC03-21 for the further submission, that, the question of prolixity could best be raised and dealt with at the reinstated appeal and not in these proceedings.

I turn to deal with the first preliminary point, which, in my view, is dispositive of this application....,.

In striking off the appeal, this Court elected to not determine or dismiss the appeal. This Court did, by consent, strike off the matter from the appeals roll for the obvious reason that the appeal was fatally defective and could neither be determined nor dismissed....,.

That the application was fatally defective is apparent from a closer scrutiny of the grounds of appeal sought to be reinstated.

All the grounds of appeal are fatally defective in two main respects: they are all vague and embarrassing.

In the words of LEACH J in Sonyongo v Minister of Law and Order 1996 (4) SA 384…,.:

“It has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvass every finding of fact and every ruling of the law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value either to the Court or to the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet.”

The above cited words afflict the first ground of appeal.

It is so vague as to be of no value to either this Court or the first respondent. In addition, it is also simply inconceivable, and, in fact, incorrect to raise such a ground against a well-reasoned seven paged judgment.

The second ground of appeal is so widely cast that it leaves the applicant free to attack every finding of fact and ruling of law made a quo.

The manner in which the second ground of appeal is crafted has consistently been deplored in this jurisdiction since 1957 when the case of R v Emerson 1957 R&N 743 (SR)…, was decided. See also S v Ncube 1990 (2) ZLR 303 (S)…,.; Chikura NO & Anor v Al Shams Global BVI Ltd 2017 (1) ZLR 181 (S); Econet Wireless (Pvt) Ltd v Trustco Mobile (Pty) Ltd SC43-13.

This Court has consistently reminded legal practitioners to desist from drafting such vague and unacceptable grounds of appeal.

The ground falls into the same general genre with those that litter our law reports, some of which read as follows:

“The learned magistrate erred in accepting the complainant's evidence” or “the conviction is against the weight of evidence” or “the evidence does not support the conviction” or “the conviction is wrong in law”.

The latest case that lamented this failure to draft cogent grounds of appeal was Afritrade International Ltd v Zimbabwe Revenue Authority SC03-21…,.

In that case, the unacceptable ground of appeal impugned the judgment a quo for “rejecting the evidence given on behalf of the appellant as being unreliable.”

It was struck out on appeal for being too widely cast to such an extent that it failed to identify the specific evidence that was unreliable and to which the respondent and the court could relate.

The third and fourth grounds are also afflicted by the same malady as the first. They, too, are generalized, vague, and embarrassing. They fail to specify clearly and in un-ambiguous terms exactly what case the respondent must be prepared to meet.

The law to which ground number 3 is premised on is not specified nor are the “legally acceptable principles of property acquisition” identified. These are meaningless phrases that do not impugn the specific findings of fact or law that were made by the court a quo.

To suggest, as counsel for the applicant did, that these fatally defective grounds should be foisted upon an Appeal Court for it to deal with them, is simply preposterous.

To do so, would not only constitute an abdication of my responsibility as a gate keeper beholden to permit only deserving appeals to pass through, but would also result in a complete waste of valuable judicial time for the panel that would be seized with the defective appeal.

In any event, the first ground of appeal appears to be contradicted by the second, third, and fourth grounds which, in a misogynistic way, provide the reasons for the impugned orders.

They are that the court a quo accepted the version of the first respondent because it was supported by Hove's affidavit.

In his affidavit, Hove confirmed the existence of the Share Subscription Agreement between the first and second respondents prior to the involvement of the applicant in the affairs of the third respondent.

In addition, the court a quo based its determination on the common cause fact, that, the applicant and the first and second respondents negotiated a new shareholding structure and concluded an agreement in respect of the third respondent, which was critically captured in the draft written agreement and official CR2 and CR14 documents that the applicant failed to successfully impeach.

The court a quo also found that the probabilities supported the existence of the first shareholders document and the second unsigned restructuring and share allotment agreement. These were that:

(i) Firstly, Hove would not have been approached to be the first respondent's nominee shareholder had the Hunting Furniture (Pvt) Ltd t/a Adam Bede deal been consummated by the applicant and the second respondent.

(ii) Secondly, the applicant only came into the picture after Hove had declined the nomination.

(iii) Thirdly, the applicant had failed to impeach the existence of the second agreement. His refusal to sign the agreement was inadequate to dislodge the corroborated version of the first respondent.

The recasting of the onus to the applicant to impeach the agreement was restated by PATEL JA…, in Afritrade International Ltd v Zimbabwe Revenue Authority SC03-21 …,. He stated that:

“In principle, an unsigned agreement cannot ordinarily be relied upon as creating a valid and binding contract. However, the surrounding circumstances, including prior dealings between the parties concerned, may give rise to the prima facie presumption that the terms and conditions embodied in an unsigned agreement represent the true intention of the parties. The burden then shifts to the party disputing the authenticity of the agreement to show that it was not intended to be binding. This position was affirmed by this Court in Associated Printing and Packaging (Pvt) Ltd & Ors v Lavin & Anor 1996 (1) ZLR 82 (S) at 87.”

The point I make by these references is simply, that, all the four grounds of appeal were, on 24 November 2020, fatally defective. That is why the purported appeal was “by consent” struck off the roll.

Such a defective appeal cannot be reinstated: see Bindura Municipality v Mugogo 2015 (2) ZLR 237 (S).

Appealed
SC12-24 : FELIX DZUMBUNU vs BATANDI MPOFU N.O. and CHIKOTI DORO and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 14 July 2022 under judgment number HB188-22.After hearing the parties, the court dismissed the appeal with costs. The reasons therefor appear hereunder.FACTUAL BACKGROUNDStatement of Agreed FactsThe parties filed a statement of agreed facts ...

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 14 July 2022 under judgment number HB188-22.

After hearing the parties, the court dismissed the appeal with costs. The reasons therefor appear hereunder.

FACTUAL BACKGROUND

Statement of Agreed Facts

The parties filed a statement of agreed facts before the court a quo. The statement was reproduced by the court a quo in its judgment and may be summarised, materially, to the following effect:

(a) Sometime in November 2014, the first respondent and the appellant entered into a written agreement of sale over Stand Number 6505 Bulawayo Township of Stand 6541 Bulawayo Township, situate in the district of Bulawayo.

In their papers, the parties refer to it as “the initial agreement”.

The appellant took occupation of the property immediately upon the signing of the agreement in accordance with the terms thereof. The terms of the agreement also provided that the appellant was to pay the purchase price of the property in the sum of USD105,000 as follows:

(i) A deposit in the sum of USD25,000 upon the signing of the agreement.

(ii) The balance of USD80,000 by way of three equal instalments commencing on the 28th of February 2015, and, subsequently on or before 28 April 2015 and finally on or before 31 July 2015.

(b) The said purchase price was as per the then prevailing fair market value of the property.

The appellant paid a deposit of USD37,000 “by 12 March 2015.”

The appellant however breached the agreement of sale by failing to pay the balance of the purchase price of USD68,000 in the manner stipulated in the agreement.

The notice of termination of the initial agreement of sale, authored by the first respondent, was, according to the Sheriff's return of service, served upon the appellant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on 12 August 2015, by handing a copy thereof to the appellant's worker.

In terms of the notice of termination, the initial agreement was cancelled on 4 September 2015.

(c) An action was instituted by the first respondent on 16 February 2017, under case number HC446/17, seeking the following relief:

(i) An order confirming the cancellation of the initial agreement.

(ii) An order evicting the appellant and all those claiming occupation from the property in question.

(iii) An order that the appellant pays “occupational damages” to the first respondent in the sum of USD800 per month or USD26.67 per day from the 4th of September 2015, being the date of the cancellation of the initial agreement to the date of eviction.

(d) A default judgment was granted on 19 May 2017, confirming the cancellation of the initial agreement and granting the relief as prayed for in the summons in HC446/17. In terms of the writ of execution and ejectment issued on 8 February 2018 pursuant to the default judgment, the appellant was evicted from the property in question.

(e) On 22 November 2018, the default judgment under HC446/17 was rescinded and set aside under HC1576/18. On 26 November 2018, the appellant entered an appearance to defend the action under HC446/17. On 18 February 2019, he filed a special plea but had not (as at the time of the filing of the statement of agreed facts) pleaded over to the merits.

(f) During the period when the order (in default) in HC446/17 was extant, the first respondent entered into a written agreement of sale over the same property (second agreement) with the second respondent. In terms of the second agreement, the second respondent was to pay the full purchase price in respect of the property being the sum of USD130,000 as follows:

(i) A deposit in the sum of USD70,000 upon the signing of the agreement.

(ii) The balance of USD60,000 to be paid between 31 April 2018 and 31 July 2018.

(g) The purchase price prescribed in respect of the property in terms of the second agreement was also per the then prevailing fair market value. In accordance with the terms of the second agreement, and by the 18th of July 2018, the second respondent had paid the full purchase price in the sum of USD130,000 to the first respondent.

(h) The third respondent was made aware of the second agreement of sale in terms of a report by the first respondent and he duly recorded such sale in his minutes in respect of a creditors meeting held on 21 June 2018. The minutes of the said meeting are contained in the third respondent's final liquidation file under CRB2/10.

I interpose at this juncture, for the sake of clarity, to explain that the first respondent acts in his official capacity as the liquidator of a company, Tabs Avon Lighting (Pvt) Ltd (in liquidation), the seller of the property in issue, hence the involvement of the third respondent.

(i) On 21 March 2018, the only secured creditor of Tabs Avon Lighting (Pvt) Ltd (in liquidation), being NMB Bank Limited, approved of the second agreement of sale and the third respondent was duly made aware of such approval. The letter by this sole creditor is also filed in the third respondent's final liquidation file under CRB2/10.

(j) In the aftermath of the granting of the order under HC1576/18, and after the conclusion of the second agreement of sale and the payment by the second respondent of the full purchase price in respect of the property, the appellant took steps aimed at remedying his breach of the initial agreement of sale. He did so by depositing USD68,000 into the first respondent's legal practitioners trust account, being the balance of the purchase price.

(k) The steps taken by the appellant, aimed at remedying his breach of the initial agreement, were not accepted by the first respondent. The first respondent's legal practitioners tendered back to the appellant the said amount of USD68,000 that had been paid into its trust account.

(l) By way of an order granted under HC3144/18, the second respondent (being the purchaser in the second agreement) was joined to the main proceedings. He duly entered an appearance to defend the action and filed his plea thereto.

(m) As at the date of the Statement of Agreed Facts, and following the appellant's eviction therefrom in terms of the writ of execution and ejectment issued against him under HC1576/18, neither of the parties were in physical or lawful occupation of the property nor had any party taken transfer thereof.

In the Statement of Agreed Facts, the parties listed the following as the issues for determination by the court a quo:

(i) Whether the initial agreement of sale over Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo, between the plaintiff (appellant) and first defendant (first respondent), was lawfully terminated.

(ii) Whether there existed any legal impediment to the conclusion of the second agreement of sale entered into between the plaintiff (first respondent) and the second defendant (second respondent) at the material time.

(iii) To whom should the property, being Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo be transferred.

SUBMISSIONS BEFORE THE COURT A QUO

On the second issue, the first respondent contended, that, the second agreement was concluded after the cancellation of the first agreement and also at the time the default judgment confirming cancellation was extant. It was also submitted, on his behalf, that, the fact that the default judgement confirming the cancellation was later rescinded was of no moment.

Per contra, the appellant argued that the preamble to the agreement between the first respondent and the second respondent described the property as Stand 6512 Bulawayo Township. It was submitted, that, it therefore followed that the parties in the second agreement had in mind Stand 6512 and not Stand 6505, the subject matter of the initial agreement. Furthermore, that there was thus no privity of contract between the first respondent and second respondent concerning the property the subject of this appeal....,.

The court found, that, the property referred to in the agreed facts was Stand Number 6505 Bulawayo Township, situate in the District of Bulawayo. It found that there was no factual dispute as to the identity of the property in issue, the subject matter of the agreement between the first and second respondents....,.

SUBMISSIONS BEFORE THIS COURT

Appellant's Submissions:

It was contended by counsel for the appellant, that, there was “a serious dispute of fact” in that the initial and the second agreements related to two different properties. Thus, the appellant purchased a different property from that purchased by the second respondent....,.

It was also counsel's submission, that, the reflected or implicit position in the Statement of Agreed Facts, that the property the subject matter of the initial agreement was the same property sold in the second agreement, was agreed to by mistake on the appellant's part because the two agreements related to two different properties.

He submitted, that, the issue of the two agreements relating to two different properties was brought to the attention of the court a quo which ought to have asked for an explanation why it was being asked to award to the second respondent property that had been bought by the appellant. He submitted that the court a quo ought to have advised that the matter should go to trial.

First Respondent's Submissions:

With regard to the alleged dispute of fact, counsel argued, that, the appellant's argument would only carry the day where, as in Leathought Investments (Pvt) Ltd v Chirangano and Others SC60-21, such dispute of fact appears on the face of the Statement of Agreed Facts itself and in the pleadings.

He submitted that in casu, the parties decided to forgo preliminary issues and that the real issue that they placed before the court was the question: “who is entitled to take transfer of the property?”

Furthermore, the appellant should have followed the proper channels to resile from the Statement of Agreed Facts.

Without having done so, the appellant must be held to the facts as reflected in the Statement of Agreed Facts.

The issue of the Stand Number is thus overridden by the Statement of Agreed Facts which the parties signed.

Further to that, after so signing, the appellant had, as agreed, filed a plea in which the issue of the Stand Number did not arise.

The issue only arose during the hearing.

He argued, that, the parties were bound to the facts in the Statement of Agreed Facts and that the court only assists the parties by determining issues of law that arise therefrom. The appellant cannot therefore start alleging disputes of fact at the stage where the parties are addressing the court on issues of law....,.

On the alleged dispute of fact, counsel for the second respondent submitted, that, there was no merit in the allegation as the parties are all in agreement that the Stand in issue is Stand No. 6505....,.

Counsel for the second respondent further highlighted that the appellant had re-occupied the property and was benefitting from it...,.

ISSUES FOR DETERMINATION BY THIS COURT

Considering the grounds of appeal, as well as the submissions made before this Court, the following issues emerge for determination:

1. Whether or not service on the appellant's gardener, of the notice to remedy the breach, was proper service.

2. Whether or not the appellant was entitled to specific performance.

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O.
Ruled By: KUDYA AJA

On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.

It is opposed by the first respondent.

They seek the following relief:

1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.

3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.

4. Each party shall bear its own costs.

THE FACTS

The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.

The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).

The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.

The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.

The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.

The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.

The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.

The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.

The first applicant regards the termination to be a retrenchment process.

The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.

He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.

The two applicants were aggrieved by the entire retrenchment process.

They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.

He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.

Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.

He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.

He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.

Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:

(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.

(ii) The second was that it had a reservation arbitration clause.

Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.

The Labour Court confirmed the ruling on 19 May 2017.

It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.

It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.

Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.

The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.

The application for joinder was set down together with the appeal hearing.

At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.

The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.

A further attempt to file another notice of appeal at the Labour Court was declined by the Registrar of the Labour Court on the ground that such a notice was, in terms of section 92F of the Labour Act [Chapter 28:01] (the Act), due at the Supreme Court.

Thereafter, the applicants concerted effort to the Registrars of the Labour Court and Supreme Court, in March 2018, for directions on the appropriate procedure to assail the draft ruling went unanswered.

On 25 September 2018, some seven months after the consensual withdrawals, this Court passed judgment in Drum City (Private) Limited v Brenda Garudzo SC57-18.

In that case, the labour officer entered a draft ruling in favour of the employee and against the employer. The labour officer then sought confirmation of the draft ruling before the Labour Court, in terms of section 93(1) as read with section 93(5a) and (5b) of the Labour Act.

She cited the losing employer as the only respondent, purportedly in terms of section 93(5a) of the Labour Act, which required “the employer or any other person against whom the ruling is made” to be the respondent in the confirmation proceedings.

This Court held, that, the legislature could not have intended to exclude a party with a direct and substantial interest in the confirmation proceedings, such as the employee in whose favour the draft ruling pertained, from participating in such proceedings as a co-respondent.

It accordingly allowed the appeal, set aside the confirmation proceedings, and remitted the matter to the Labour Court for the joinder of the employee and a re-hearing of the confirmation.

However, at paragraphs [12] and [13] this Court, en passant, remarked that:

“[12]…, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss(5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

[13] Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.”

These remarks were jettisoned by MALABA CJ in the Constitutional Court in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CC06-20…,. He pertinently observed that:

“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a draft ruling has been made against the employer that confirmation proceedings would ensue. The remarks were made as obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”

The remarks in [12] and [13] were clearly obiter dictum because they did not relate to the issue that was before the court, which was whether or not the Labour Court could properly hear and determine an application for confirmation in which the employee was not cited.

The remarks answered the question, which was not before the Supreme Court, whether confirmation proceedings could be lodged in respect of a draft ruling that was made against an employee.

Before the Constitutional Court was a contention that the citation of the employer or other person against whom the draft ruling related, to the exclusion of the employee, infringed the employer's right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution.

The Constitutional Court, inter alia, relied on the ratio decidendi of Drum City (Private) Limited v Brenda Garudzo SC57-18, and held that despite the “statutory ambiguity or vagueness” in the words “employer or other person” in section 93(5a) and (5)(c) of the Labour Act, the employee was a necessary party to the proceedings. Further, that, the architecture of the entire provisions of section 93 of the Labour Act required that a draft ruling be subjected to confirmation proceedings irrespective of whether it was in favour of the employer and against the employee, or in favour of the employee and against the employer.

It was on the basis of the reasoning of the Constitutional Court that the applicants lodged the present application on 13 April 2021.

It was opposed by the first respondent on 20 April 2021.

The applicants filed an answering affidavit on 22 April 2021. Thereafter, the applicants filed their heads on 28 April 2021 while the first respondent did so on 12 May 2021....,.

THE MERITS

The requirements for the application

A court considers the extent of the delay, reasonableness of the explanation for the delay, prospects of success and importance of the case, respondent's interest in the finality of his judgment, convenience of the court, and avoidance of unnecessary delay in the administration of justice.

However, it is trite that the main requirements for an application of this nature are the extent of the delay, the reasonableness of the explanation for the delay, and the prospects of success: see Ester Mzite v Damafalls Investments (Private) Limited SC21-18.

THE EXTENT OF THE DELAY

The Labour Court refused to confirm the proceedings on 19 March 2017. Leave to appeal was granted by that court on 9 July 2017. The appeal should have been filed by 15 August 2017.

The present application was filed on 20 April 2021.

It is common cause that this period, which is in excess of three (3) years and eight months, is inordinate.

THE REASONABLENESS OF THE EXPLANATION FOR THE DELAY

The real reason for the delay was that the applicants were prevailed upon by this Court to withdraw the appeal on 22 February 2018. The applicants withdrew the appeal because they accepted the misconception that confirmation proceedings that they sought to impugn were a nullity by reason of lack of jurisdiction by the Labour Court to confirm a draft ruling made against an employee by a labour officer.

That view was subsequently affirmed by this Court in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 at paragraphs [12] and [13].

It was, however, authoritatively jettisoned by the Constitutional Court in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 at p25.

The applicants have always been desirous to test the correctness of the judgment appealed against but for the mis-interpretation of the relevant provision of the Labour Act by this Court.

This is demonstrated by their desperate attempt, in March 2018, to appeal the confirmation in the Labour Court under the mistaken belief that it had reverted to being the decision of the labour officer.

I would have accepted the explanation on the misconstruction of the jurisdiction of the Labour Court by this Court to have been a reasonable explanation for the delay had the applicants filed the present application soon after the reasons for judgment were availed in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, in June 2020.

The applicants, however, justified their failure to file the application soon after the Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 judgment on the COVID 19 induced lockdowns.

The endemic lockdowns resulted in the closure of court operations between 30 March 2020 and 11 May 2020 and 5 January 2021 to 1 March 2021. During this period, only urgent matters were set down, heard, and determined.

The courts were, however, in full session between 11 May 2020 and 4 January 2021 and between 1 March 2021 and the date on which the applicants filed the present application on 12 April 2021.

There was no legal impediment against the filing of the application immediately the reasons for judgment were delivered in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20.

The applicants did not proffer any reasonable explanation as to why they failed to lodge the present application during these periods.

My overall finding is, therefore, that the explanation given for the delay was unreasonable.

I agree with counsel for the first respondent, that, the applicants failed to provide a reasonable explanation for the inordinate delay.

THE PROSPECTS OF SUCCESS

The three main factors are not individually decisive in granting the indulgence sought by the applicants.

The remarks of SANDURA JA in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) are worth repeating. He stated that:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

In the present case, strong prospects of appeal may be the determinant factor....,.

I proceed to deal with the merits of the matter for the sake of completeness.

In our law, a serious misdirection on the facts amounts to a misdirection in law: see National Foods Limited v Magadza SC105-95.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA explained the basis for this principle in the following words:

“…, a misdirection is nothing more than an error in law made by a judge in his charge to a jury. I must, however, add this rider: there can be misdirection as to the law applicable to the case being tried; and there can be misdirection as to the evidence in the case.

For an appellant to avail himself of a misdirection as to the evidence, the nature and the circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational…,.

The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied, that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

And, irrationality has subsequently been found to exist by this Court in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…,.:

“If the primary court acts upon a wrong principle; if it allows extraneous or irrelevant matters to guide or affect it; it if it mistakes the facts; (or) if it does not take into account some relevant consideration.”

The substance of the first ground of appeal meets the requirement for turning a factual attack into a question of law. It attacks a positive factual finding which is not based on any factual basis.

The contention made by counsel for the applicants being, that, a court properly applying its mind would not have found the consensual agreement to have been established where its very existence was put in issue, and in circumstances where the first respondent failed to produce the agreement.

The second ground of appeal impugns the failure of the court a quo to strictly apply the relevant provisions of the Labour Act that governed the retrenchment of the applicants.

The applicants relied on the strict construction rendered by this Court in Stanbic Bank of Zimbabwe Limited v Charamba 2006 (1) ZLR 96 (S) to the mandatory procedural steps and substantive requirements prescribed in the analogous provisions of the Labour Relations (Retrenchment) Regulations 1990 (Statutory Instrument 404 of 1990, SI404 of 1990), which were a precursor to section 12C(1) to (11) of the Labour Act prior to its amendment by Act No.5 of 2015.

I did not hear counsel for the first respondent dispute the propriety and efficacy of these two grounds of appeal.

She, however, pinned the respondent's case, in opposition, on the principle of waiver, assailed by the applicants in the third ground of appeal to the draft notice of appeal, arising from their acceptance without reservation, and failure to tender back the substantial terminal benefits paid to them.

Her submissions were firmly rooted in Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S).

It was held by the majority decision, that, notwithstanding the failure to abide by the peremptory provisions of the retrenchment process, the voluntary acceptance of the retrenchment package by the retrenchees amounted to a waiver of the legal rights to challenge the propriety of the retrenchment process.

A voluntary acceptance of a terminal package is clearly knowingly made.

It is also inconsistent with the continuation of an employment relationship. It constitutes conduct which reasonably leads the employer to believe that the employment relationship is over.

Thus, whether the first applicant was terminated from employment by agreement, or whether, like the second applicant, he was retrenched, their deliberate acceptance of their respective terminal packages was inconsistent with the continuation of the employment contract.

They are unlikely to succeed in convincing this court, on appeal, that their conduct did not amount to waiver.

Stanbic Bank of Zimbabwe Limited v Charamba 2006 (1) ZLR 96 (S) that they seek to rely on did not address the question of waiver. Nor did it make any reference to Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S), which took into account all the arguments that the appellants will seek to rehash on appeal.

The reliance upon Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S), a quo, cannot, therefore, be impugned on the ground that it applied the wrong law.

In my view, the applicants are unlikely to successfully impugn the position of our law as expressed in Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S).

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the whole judgment of the High Court (court a quo) dated 18 October 2018. The court a quo granted an application for absolution from the instance made jointly by the respondents, granted claims in reconvention, and ordered the appellant to pay costs of the counterclaims on a legal practitioner and client scale.

The court a quo erred in this regard and the appellant was correctly aggrieved by the judgment of the court a quo.

There is no evidence in the record that the first, third, fourth, fifth, sixth, and seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) had filed counterclaims and the court a quo erred in granting counter claims that were not before the court.

Although the second respondent was properly before the court a quo, the requirements for the grant of absolution from the instance were not met.

Accordingly, the judgment must be vacated. I set out hereunder the reasons for this finding.

BACKGROUND FACTS

The appellant is a registered commercial bank operating in Zimbabwe. The first respondent is a private company registered in accordance with the laws of Zimbabwe. The third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) are private individuals who bound themselves as sureties and co-principal debtors in respect of a loan granted to the first respondent. The second respondent is a private limited company duly incorporated in Zimbabwe.

The appellant issued summons against the respondents on 13 March 2017 for the payment of US$368,706=62 being capital and US$20,654=10 being interest on the sum of US$368,706=62 at the rate of 18% per annum, which rate was subject to change from time to time, with effect from 26 November 2016 to date of payment in full and costs of suit on a legal practitioner and client scale.

At the commencement of trial, by consent of the parties, the claim was amended to read as follows:

“(i) By deletion of the capital amount of US$368,706=62 and the substitution thereof with the amount of US$361,034=23.

(ii) By deletion of the interest amount of US$20,654=10 and the substitution thereof with the amount US$28,246=49.”

The total amount claimed by the appellant amounted to US$389,362=72.

In its particulars of claim, the appellant averred that in or around November 2015, the appellant and the first respondent entered into an agreement in terms of which the appellant extended to the first respondent a loan for the sum of US$373,000.

The loan was accessed through the first respondent's operating account and was for the purpose of assisting the first respondent in financing its working capital requirements.

Interest was to accrue on the facility at the rate of 12% per annum subject to change from time to time and 18% per annum in the event of default by the first respondent in making due and punctual payment of any instalment.

The loan advanced was repayable to the appellant as follows:

“(a) US$2,000 on the 30th November 2015;

(b) US$1,500 on the 30th December 2015;

(c) US$2,000 on the 30th January 2016; and thereafter

US$15,200 per month with effect from the 28th of February 2016 until full payment.”

It was a term of the agreement, that, in the event of the first respondent defaulting in making due and punctual payment of any instalment, the total outstanding amount would immediately become due and payable.

The second, third, fourth, fifth, sixth and seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) bound themselves jointly and severally as sureties and co-principal debtors with the first respondent for payment of any and all monies due to the appellant.

The respondents defaulted in making due payment of the loan under the agreement giving rise to the total outstanding amount claimed by the appellant of US$389,362=72.

All the respondents jointly entered an appearance to defend, and, in their plea, denied that the amount claimed by the appellant arose from the agreement dated 2 November 2015.

The first respondent denied owing the appellant any money as it argued that the loan advanced through the loan agreement was repaid in full on the 30th of December 2015. The first respondent further denied owing the appellant any interest under the loan facility and maintained that the appellant actually recovered more interest from it than was lawfully due.

The second to the seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that all the suretyship deeds held by the appellant were void for vagueness as they covered an unlimited liability. They contended, that, a suretyship deed must contain a limit in monetary terms so as to be valid.

The second respondent (Penniwill (Pvt) Ltd) averred that the deed of suretyship between it and the appellant was void as it was not authorised by its Board of Directors.

The first respondent (Formscaff (Pvt) Ltd) further stated, that, the acknowledgment of debt executed by it in favour of the appellant was unenforceable as it was not signed by its representatives.

The second respondent (Penniwill (Pvt) Ltd) also averred, that, it never authorised the registration of a mortgage bond in favour of the appellant over its property known as Subdivision A of Subdivision H of N'Thaba of Glen Lorne situate in the District of Salisbury held under Deed of Transfer number 1998/95 ('the property').

Together with its plea, the second respondent (Penniwill (Pvt) Ltd) filed a claim in reconvention against the appellant and averred, that, the appellant fraudulently procured a suretyship and mortgage bond in its favour over the second respondent's property. The second respondent prayed that the suretyship deed and mortgage bond be cancelled.

The appellant entered a plea against the claim in reconvention and denied all the averments made by the respondents.

On 30 May 2017, the third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) indicated their intention to apply to amend their pleas and file a claim in reconvention at the pre-trial conference.

The amendments sought alleged that all the respondents purported suretyships had expired by effluxion of time, having been signed more than three years before the loan was granted. It was also averred, that, the suretyships were in contravention of section 12 of the Moneylending and Rates of Interest Act [Chapter 14:14] ('the Moneylending Act') and, as such, were invalid and unenforceable.

In the proposed claim in reconvention, the third to seventh respondents sought an order that their respective suretyships be declared null and void.

The second, third and fourth respondents (Penniwill (Pvt) Ltd, Rodney Callaghan and Millicent Callaghan) prayed that the mortgage bonds in their names be cancelled.

There is, however, no evidence in the record that the amendment was ever granted at the pre-trial conference or at the trial.

On 27 July 2017, the parties signed a Joint Pre-Trial Conference Minute and the issues for determination by the court a quo were stated as follows:

“1. Whether 2nd, 3rd, 4th, 5th, 6th, and 7th Defendants Deeds of Suretyship are valid and enforceable.

2. Whether 2nd Defendant's 1st and 2nd Mortgage Bonds (numbers 1557/13 and 1656/13) in favour of Plaintiff are valid and enforceable or whether they should be cancelled.

3.Whether 1st Defendant is indebted to Plaintiff under the Loan Agreement dated 2 November 2015 in the sums of US$368,706=62 as capital and US$20,654=10 as interest, and, was there novation or termination of the loan agreement.

4. Whether 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants, jointly and severally, one paying the others to be absolved, are indebted to Plaintiff as alleged or at all.”

At the trial, the appellant led evidence through two witnesses, namely, Mr. C. Gunundu (Gunundu) the appellant's Account Relationship Manager and Mr. V.S. Nyangulu (Nyangulu) a registered legal practitioner and conveyancer.

Mr. C. Gunundu testified, that, the appellant and the first respondent had a long business history spanning many years. They agreed that the Bank would advance a loan to the first respondent which loan would, in turn, re-finance the existing loan already held by the first respondent.

He further testified, that, the first respondent and its sureties had failed on numerous occasions to fulfil the loan obligations which it owed to the appellant. The new arrangement was meant to assist the respondents.

Gunundu maintained, that, the surety deeds and mortgage bonds made by the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) in the appellant's favour were all valid and properly constituted. He further maintained, that, the sureties were open and unlimited, and, as such, covered all the money obtained through loans by the first respondent from the appellant.

The second witness, Mr. V.S. Nyangulu, testified that the mortgage bonds he registered on behalf of the second respondent (Penniwill (Pvt) Ltd) in favour of the appellant were valid and were registered after due process and Board resolutions had been passed.

At the close of the appellant's case, the first to seventh respondents (Formscaff (Pvt) Ltd, Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) made an application for absolution from the instance.

In making the application, the first and third to seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that the appellant sued the respondents on a cause of action which had already been discharged on 31 December 2015.

They also alleged that their sureties were not valid.

In making its application, the second respondent (Penniwill (Pvt) Ltd) averred that the appellant failed to prove a valid cause of action that the mortgage bonds against its property, registered in favour of the appellant, were valid.

In response to the applications for absolution from the instance, the appellant argued that the applications were frivolous.

It vehemently denied receiving any payment from the first respondent in repayment of the loan. It also maintained that all the documents in respect of the security for the loan were valid and that the obligation of the sureties had not been extinguished by prescription or on any other basis.

The court a quo, in dealing with the matter, found that the appellant's first witness Mr. C. Gunundu (Gunundu) was not a credible witness and that he contradicted himself on material issues.

The court further found, that, the appellant failed to prove a prima facie case against the respondents.

The court went on to find, that, the first respondent repaid the loan of US$350,000 on 31 December 2015 as evidenced by the appellant's own books of account and statements.

The court a quo also found, that, the suretyships made in favour of the appellant by the second to seventh respondents were invalid and unenforceable as they were not in compliance with section 12 of the Moneylending and Rates of Interest Act. Further, that, the sureties did not relate to the 2 November 2015 loan facility, and, as such, could not be relied upon by the appellant in making a cause of action for the repayment of a loan under that facility.

The court a quo further held, that, the mortgage bonds executed in the second respondent's name were invalid as they were not made in compliance with the law and that the sureties and mortgage bonds could not be held to have an unlimited clause to their operation as such a clause was contrary to public policy.

The court concluded, that, as the appellant had failed to prove a prima facie case against the respondents, the respondents claims in reconvention had merit and that there was no need to put the respondents to their defence.

In the result, the court made the following order:

“1. The application for absolution from the instance, made by the defendants, succeeds with costs.

2. The surety ships (sic) in favour of the plaintiff entered into by 2nd, 3rd, 4th, 5th, 6th and 7th defendant and plaintiff be and are hereby cancelled.

3. The mortgage bonds passed by 2nd, 3rd and 4th defendants in favour of plaintiff, namely, Numbers 2416/2011, 4889/2011, 1557/2013 and 1656/2013 be and are hereby cancelled.

4. The plaintiff to pay costs of counterclaim to the defendants on attorney-client scale.”

Dissatisfied with the decision of the court a quo, the appellant noted the present appeal on the following grounds of appeal:

“1. The court a quo erred in holding that any amounts which were due to Appellant under the agreement dated 2 November 2015 were repaid in full and that Plaintiff sued on a cause of action that was discharged in full on the 30th of December 2015, in so doing, the court a quo failed to appreciate that the agreement (dated 2 November 2015) was entered into to enable the 1st respondent to settle previously existing debts.

1.1 The court a quo erred in strictly evaluating and rejecting the appellant's evidence and effectively demanding of it more than a prima facie (sic) as if it had (sic) evidence from defendants.

1.2 The court a quo erred in granting respondents 1, 3 to 7 counter-claims which were not before it.

1.3 The court a quo erred in granting the counterclaims by respondents 1, 3 to 7 when those respondents had not moved it to grant same as at that stage.

1.4 The court a quo erred in itself cancelling the parties agreements when it was not a party thereto and in violation of the sanctity thereof.

2. The court a quo erred in holding that:

(a) The Suretyship agreements executed by 2nd, 3rd, 4th, 5th, 6th and 7th Respondents did not relate to the agreement dated 2 November 2015, and that neither did they cover any amounts due thereunder.

(b) The Suretyship agreements had prescribed. In so holding, the court a quo grossly failed to appreciate that, at law, a Surety's obligations only arise upon demand.

(c) The 2nd, 3rd, 4th, 5th, 6th and 7th Respondents were released from their Suretyship due to material variation of the principal obligation, when this was not pleaded and no evidence proving actual prejudice was placed.

(d) That 2nd, 3rd, 4th, 5th, 6th and 7th Respondents suretyship agreements were void for being contrary to public policy.

3. In agreeing with 2nd, 3rd, 4th, 5th, 6th and 7th Respondents entire submissions on the application for absolution from the instance, the court a quo grossly erred in holding 2nd to 7th Respondents averment that the suretyship agreements are invalid for violation of Section 12 of the Money Lending (sic) and Rates of Interest Act [Chapter 14:14].

4. The court a quo erred in holding that the Mortgage Bond passed by 2nd Respondent, and 3rd and 4th Respondents are invalid and grossly failed to appreciate, that, at law, the Mortgage Bonds are valid as an instrument of both debt and hypothecation.

5. Consequent to the gross misdirection referred to in Paragraph 1, 2, 3 and 4 above, the court a quo erred in granting 1st to 7th Respondents application for absolution from the instance and entering Judgment in favour of Respondents as per their claim in reconvention for cancellation of the suretyship agreements and Mortgage Bonds.

6. The court a quo erred in awarding costs against Appellant in respect of the Respondents claim in reconvention on a higher scale, when there was no legal basis for so doing.”

PROCEEDINGS BEFORE THIS COURT

On the merits, counsel for the appellant argued that it was improper for the court a quo to grant counterclaims that were not filed in terms of Rule 121 of the High Court Rules 1971 ('the High Court Rules').

Counsel further argued, that, the judgment of the court made factual findings without hearing the evidence of the first respondent. The factual findings could only have been made after hearing the defence case.

He also argued, that, the inference drawn by the court in respect of the statement of account was not the only inference in the circumstances of the case, and, in any event did not prove that the debt owed by the respondents had been repaid.

It was also counsel's argument, that, the appellant proved a prima facie case in establishing that the loan facility was disbursed to the first respondent and it was for the respondents to prove that the loan was repaid in full.

He prayed that the appeal be allowed with the matter being remitted to the court a quo for continuation of trial and an order for costs.

Per contra, counsel for the first, third to seventh respondents argued that the court a quo correctly found that the appellant failed to establish a prima facie case as there was no valid cause of action.

Counsel further argued, that, the documentary evidence produced before the court a quo showed that the loan was repaid in full on 31 December 2015, and, as such, the appellant had no basis to sue.

He also argued, that, the appellant's witness, Gunundu, contradicted himself in his evidence, and, as such, a prima facie case could not have had been established by the appellant.

Counsel further argued, that, the purported sureties made in the names of the third to seventh respondents were invalid and void.

Counsel prayed for the dismissal of the appeal.

Counsel for the second respondent also prayed for the dismissal of the appeal and argued, that, the appellant had no cause of action against the second respondent as no loan facility was ever advanced to it.

Counsel submitted, that, the loan was repaid on 31 December 2015 and that the appellant had admitted that this was the position in evidence.

He further submitted, that, there was no valid mortgage bond in the name of the second respondent upon which the appellant could execute. The mortgage bond made by the second respondent, in favour of the appellant, related to a 2011 loan facility and not the 2015 loan facility.

Counsel further maintained, that, the second respondent had only one director in Zimbabwe, and, as such, no valid resolution could have been made in the absence of the second director. As such, counsel argued that the power of attorney and mortgage bond were not properly executed.

It is my view, that, the appellant's grounds of appeal raise a single issue, i.e. whether or not the court a quo erred in granting the application for absolution from the instance.

ANALYSIS

Whether or not the court a quo erred in granting the application for absolution from the instance

The cause of action of the appellant, against the first respondent (Formscaff (Pvt) Ltd), was based on a credit facility dated 2 November 2015. It was alleged that the first respondent had failed to repay the loan advanced to it under that facility.

The cause of action as against the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) was based on the various surety and mortgage bonds filed of record which were made in favour of the appellant by the respondents at different times.

The court a quo, in granting the respondents application for absolution from the instance, found that the loan advanced to the first respondent was repaid on 31 December 2015. The basis of this finding was an accounting entry made by the appellant in its statement of accounts, which showed a credit entry in the sum borrowed as having been paid.

On the basis of this entry, the court reasoned that there was no cause of action upon which the appellant could claim as there was no outstanding debt.

The law to be applied in an application for absolution from the instance is well settled. In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…, the Court held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him:” see also Oesthuizen v Standard General Versekeringsmaa & Kappy BPK 1981 (A) 1035 (H)).”

In Gordon Lloyd Page & Associates and Rireira & Another 2001 (1) SA 88 (SCA)…, it was held that:

“The test for absolution to be applied by a trial court at the end of plaintiff's case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H in these terms:

'…, when absolution from the instance at the close of plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but, whether there is evidence upon which a court applying its mind reasonably to such evidence could or might (not should or ought) find for the plaintiff…,.'

This implies that the plaintiff has to make out a prima facie case in the sense that there is evidence relating to all elements of the claim…,.”

Absolution from the instance is thus granted by the court when an application has been made by a defendant at the close of a plaintiff's case who fails to prove a prima facie case.

A prima facie case was noted in Fillieks and Others v S [2014] ZAWHC 34 as follows:

“Prima facie evidence, in its more usual sense, is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive and the party giving it discharges his onus…,.”

In granting the application for absolution from the instance, the court a quo thus had to be guided by the question of whether or not the appellant made out a prima facie case against the respondents on the basis of which the court could or might have found for the appellant.

The appellant's cause of action was based on the credit facility which it advanced to the first respondent on the 2nd of November 2015 for the sum of US$350,000. The purpose of the facility was to assist the first respondent in financing its working capital requirements.

The facility further provided, under clause 6, that, the security for the amount advanced as the loan was secured by sureties and mortgage bonds registered in the names of the respondents in favour of the appellant.

Under clause 12 of the facility, all previous facility letters advanced to the first respondent, by the appellant, were cancelled.

The accounting statements of the appellant, filed of record, show that on 17 November 2015, under transaction number LD1532460482, and described as “Loan Drawdown” the appellant credited the first respondent's account with the sum of US$350,000. On the 30th of December 2015, under transaction number LD1532460482 and described as “Payment of Principal” the sum of US$350,000 was reversed from the first respondent's account into the appellant's account.

The first respondent remained with a debit balance of US$375,671=35.

The appellant's witness, Gunundu, explained that the first entry meant that the appellant was crediting the first respondent with the proceeds of the loan. The second entry showed that those proceeds were meant to pay off an existing debt that the first respondent already had with the Bank.

It is important to quote the exchange between counsel for the appellant and the witness where he states that:

“Q. If you move further down, you will see that the same $350,000 appears on that page?

A. Yes, the second entry for $350,000 which in this instance now appears as a debit on the borrowers account, was passed on 30th December 2015. The second entry that was passed by the Bank on the 30th of December 2015 for 350,000 entailed that the Bank was now debiting the customer's account to confirm that this was now a new loan agreement with terms as contained in the facility letter offer of 2nd November 2015.”

The first respondent however maintained the argument a quo, and before this Court, that, the loan was repaid on the 30th of December 2015 under the transaction description of “Payment of Principal”.

On the basis of the above exchange, the court a quo found that the witness of the appellant did not establish its claim at all. The court concluded that Gunundu was not a credible witness and found that the appellant had failed to make out a prima facie case upon which the respondents could be placed on their defence.

It is our view, however, that the court a quo fell into error in arriving at this finding.

It should be noted from the onset, that, the appellant and the first respondent have had a long standing relationship of a banking nature.

The record shows, that, from 2011 to 2015, when the credit facility which is the subject of this appeal was entered into, the appellant was advancing the first respondent different loan facilities and overdrafts.

These loan facilities were advanced on the basis of the securities which were made by the second to seventh respondents.

For over five (5) years, the appellant was advancing money to the first respondent on the basis of those securities with no issues arising.

Emails filed of record further show correspondence between the third respondent (Rodney Callaghan), the first respondent's Finance Manager, one Jill Ngwerume Gunundu, on behalf of the appellant, and Nyangulu, which correspondence shows how some of the securities were registered.

Emails between Rodney Callaghan and Darryn Blumears (acting on behalf of the second respondent) are also part of the record which shows the parties acknowledging that certain sums of money were owed and that the respondents would raise money to pay the debts.

Although these emails were written in 2013 to 2014, this confirms the nature of the relationship between the appellant and the respondents, and that, as at 2014, there was a debt owed to the appellant.

Having found that there existed a banking relationship between the appellant and the respondents, the next question relates to the credit facility advanced to the first respondent on 2 November 2015 and whether or not that facility was repaid.

There is no documentary evidence in the record which shows that the first respondent wrote to the appellant seeking a refinancing loan to cover its existing debts.

However, given the history between the parties on how the appellant advanced several loans to the first respondent over the years, it can be taken that the first respondent must have approached the appellant seeking a loan to repay its outstanding debts.

A reading of the appellant's accounting statement shows, that, before the “loan drawdown” was made to the first respondent's account, the account showed a debit balance of US$367,981=74. When the loan sum was deposited, the balance was reduced to US$17,981=74. This means that the loan reduced an existing debt. When the loan was reversed back to the appellant's account on 30 December 2015, the balance returned to US$375,671=35.

This summary shows, that, the loan was advanced by the appellant to refinance an existing debt.

The credit facility, though not clearly labelled as a refinancing loan, appears to have been made in order to give the first respondent time to repay the loan. This explains the creation of a repayment plan on how the first respondent would repay its debt.

In my view, the credit facility, though not specified as a re-financing loan, must have been made for the purpose of extending the period in which the first respondent had to repay its debts.

It is important to borrow the words quoted with approval by GUBBAY CJ in Chikoma v Mukweza 1998 (1) ZLR 541 (SC)…, wherein the Court noted that:

“Not to be overlooked, as well, are the wise words of Lord Wright in Hillas & Co. Ltd v Arcos Ltd [1932] All ER Rep 494 (HL) at 503I; (1932) 147 LT 503 (HL) at 514:

'Businessmen often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is, accordingly, the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary, the court should seek to apply the old maxim of English Law, verba ita sunt intelligenda ut res magis valeat quam pereat.'

See also Burroughs Machines Ltd v Chenille Corp of SA (Pty) Ltd 1964 (1) SA 669 (W) at 670G-H.”

Thus, essentially, what was before the court a quo was a claim for the repayment of a loan.

The appellant had a duty, after all the evidence had been led by both the appellant and the respondents, to prove its case on a balance of probabilities.

The argument in the respondents plea, that the loan was repaid in less than a month, does not carry much weight and is an argument which the respondents had to prove in evidence.

It is important to note, that, there was nothing in the record showing a deposit from the respondents to indicate that the first respondent had paid off the loan.

The court a quo fell into error in making its decision solely on the entry made on 30 December 2015 in the appellant's statement of account.

That entry had to be read in conjunction with all the facts of the matter and the banking history which existed between the parties.

The first respondent never denied owing the appellant, but, rather, denied the sum claimed by the appellant and averred in its plea, that, if at all it owed the Bank, its debit balance was less than US$109,000.

All these are issues which the court a quo could not determine without putting the first respondent to its defence.

The court a quo further erred in making a finding that the appellant's witness was not a credible witness in circumstances when it had not heard evidence from the respondents. This was a clear error as there was nothing upon which the court could measure the appellant's evidence.

In Megalink Investments (Pvt) Ltd v Reserve Bank of Zimbabwe HH04-17…, the court held that:

“I need to point out, too, that, at this stage, the court is not so much concerned with questions of the credibility of the witnesses and the probabilities of the case as there is nothing to measure those aspects against in the absence of the defendant's evidence. The court, at this stage, is presented with only one side of the story which alone must be examined to determine whether the requirements for absolution have been satisfied.”

In the case of Professor Charles Nherera v Jayesh Shah SC51-19, GARWE JA…, quoted the case of Supreme Service Station 1969 (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1, in which BEADLE CJ highlighted some of the considerations that a court, faced with an application for absolution from the instance, ought to bear in mind.

He pointed out, that, the court should always bear in mind that the defendant has not yet given evidence, or been cross-examined. Thus, the court should not dismiss the plaintiff's evidence unless it is glaringly incredible.

The court a quo thus misdirected itself by making a finding on the credibility of the appellant's witnesses in the absence of evidence from the respondents witnesses.

Gunundu explained how the transactions under the credit facilities were made and how they operated. He further explained how the appellant had always worked with the first respondent in trust and on the basis of the securities which had been lodged with the Bank by the first respondent over the years.

It seems to me that his evidence was sufficient to establish a prima facie case for the appellant with regard to whether or not the respondent owed the appellant.

It is common cause that the respondents agreed to be sureties and co-principal debtors in the event that the first respondent failed to repay the appellant. The security documents are part of the record. They have the signatures of the respondents.

In making its claim in reconvention a quo, the second respondent averred that the mortgage bonds in favour of the appellant were fraudulently acquired by the appellant.

Nyangulu testified on how he processed the registration of the mortgage bonds through the Bank. Counsel for the second respondent however put him to task on the effect of the mortgage bonds registered against the second respondent's property in favour of the appellant.

The court a quo reasoned, that, as Nyangulu had admitted, under cross examination, that there may have been shortcomings in the manner in which the mortgage bonds were registered, therefore they were invalid.

However, the record shows, that, as at 29 May 2014, Darryn Blumears, in an email to Rodney Callaghan, was having conversations as to “a figure breakdown for the loan against Pagomo”.

Pagomo was one of the properties upon which a mortgage bond was registered by the second respondent in favour of the appellant.

On the same day, in an e-mail from Rodney Callaghan to Darryn Blumears, he was informed that:

“The total loan is $450,000 to NMB of which $325,000 is against Pagomo and the balance of $125,000 is against Tarlington Road.”

This email is just but one of the correspondence in the record which suggest that there existed debts between the first respondent and the appellant and that those debts were covered by securities in the form of sureties and mortgages.

This evidence, in my view, shows that there was an acceptance by the respondents that the loans were covered by the sureties and mortgage bonds. Thus, any denial of the proposition by the appellant that the mortgage bonds were valid should have been contradicted by the respondents in evidence.

It should also be noted, that, in making their pleas a quo, the respondents jointly made averments with regards to the sureties and mortgage bonds.

Of note, are the material allegations made by the respondents that the surety signed by the second respondent was signed by the daughter of the third and fourth respondents without a valid Board resolution for her to do so. Further, the acknowledgment of debt was not signed by the first respondent and that an official of the appellant fraudulently made the third and fourth respondent's daughter sign as surety on behalf of the second respondent.

It was further averred, that, the appellant thus registered unauthorised mortgage bonds against the second respondent.

All these averments made by the respondents in their pleas raise issues which were disputed by the appellant and therefore needed to be proved by way of viva voce evidence from the respondents.

As such, the court a quo could not grant absolution, as it did, without allowing the respondents to take to the stand to prove their claims....,.

As long as the suretyships remained signed, with a provision that they are of an unlimited nature, and the appellant remains in possession of the title deeds to the properties under the mortgage bonds, the security documents must be held as being valid.

SC56-22 : CENTRAL AFRICAN BUILDING SOCIETY vs FINORMACG CONSULTANCY (PRIVATE) LIMITED and RETIRED JUSTICE L.G. SMITH
Ruled By: GUVAVA JA, CHATUKUTA JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 9 September 2020 in which it ruled that the arbitral award granted against the first respondent be set aside and the matter be referred to a different arbitrator.BACKGROUNDThe appellant and the first respondent ...

View Appeal
HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: DUBE-BANDA J

IntroductionOn 16 February 2017, the plaintiff sued out a summons against the first defendant seeking an order couched in the following terms:“(i) An order confirming the cancellation of an agreement of sale entered into by and between plaintiff and defendant in respect of a property known as a certain piece ...

Introduction

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

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

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

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

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

The defendant referred to in the order sought by the plaintiff is the first defendant in this matter. The second and third defendants were joined to this matter by an order of this Court in Case No. HC3144/18 granted on 8 January 2019.

At a case management meeting held on 19 February 2020, before a judge of this court, the parties agreed to file a written statement of agreed facts and to refer the matter to the Court for determination by way of a special case in terms of Order 29 of the High Court Rules 1971. A statement of agreed facts was drawn, signed and filed on the 1 October 2020.

The matter then proceeded as a special case in terms of the rules of court.

On 11 February 2022, the plaintiff filed a notice to amend the summons, declaration, and pleading filed of record in terms of Rule 41(1) of the High Court Rules 2021. The notice sought to delete the names of Thabani Siziba N.O. to be substituted with the name of Batandi Michael Mpofu N.O.

There was no written objection to the proposed amendment within the ten days of the delivery of the notice, the amendment sought was therefore effected.

The Facts

For the purposes of clarity and completeness, I reproduce in ex extensio the statement of agreed facts signed and filed by the parties in this matter. These are the agreed facts:

(i) That the plaintiff and first defendant, sometime in November 2014, entered into a written agreement of sale over Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo (hereinafter 'the in initial agreement'). A copy of the initial agreement is annexed hereto and marked, “A”.

(ii) That the first defendant took occupation of the property immediately upon the signing of the initial agreement pursuant to the terms thereof.

(iii) That in terms of the initial agreement, the first defendant agreed and undertook to pay the full prescribed purchase price in respect of the property, being the sum of USD105,000 as follows:

(a) A deposit in the sum of USD25,000 upon the signing of the agreement.

(b) The balance of USD80,000 to be paid by way of three (3) equal instalments commencing on 28 February 2015, and subsequently on or before 28 April 2015, and finally on or before 31 July 2015.

(iv) That the purchase price prescribed in respect of the property in terms of the initial agreement was as per the then prevailing fair market value.

(v) That the first defendant initially paid a deposit of USD37,000 by 12 March 2015. A copy of the defendant's proof of payment of the deposit is annexed hereto and marked “B”.

(vi) That the first defendant breached the agreement of sale by failing to pay the balance of the purchase price of USD68,000 in the manner prescribed in the initial agreement.

(vii) That the notice of termination of the initial agreement of sale over the property was, according to the Sheriff's Return of Service, served upon the first defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on 12 August 2015, by handing a copy thereof to the first defendant's worker. A copy of the notice of the termination and the Sheriff's Return of Service hereto marked 'C' and 'D' respectively.

(viii) That in terms of the notice of termination, the initial agreement of sale was cancelled on 4 September 2015.

(ix) That an action was instituted by the plaintiff on 16 February 2017, under cover of case No. HC446/17, seeking:

(a) An order confirming the cancellation of the initial agreement;

(b) An order evicting the first defendant and all those claiming occupation from the property in question (sic);

(c) An order that the first defendant pay occupational damages to the plaintiff in the sum of USD800 per month or USD26=67 per day from 4 September 2015, being the date on the cancellation of the initial agreement to the date of eviction.

(x) The default judgment was granted on 19 May 2017, confirming the cancellation of the initial agreement and granting the rest of the relief as prayed for in the summons in the matter under cover of Case No. 446/17. A copy of the default judgment is annexed hereto marked 'E'.

(xi) That in terms of the writ of execution and ejectment issued out on 8 February 2018, pursuant to the default judgment in the matter under cover of Case No. HC446/17, the first defendant was evicted from the property in question. A copy of the writ of execution and ejectment is attached hereto and marked “F”.

(xii) That the default judgment in the matter under cover of Case No. HC446/17 was rescinded and set aside on 22 November 2018 in terms of the Order issued in the matter under cover of Case No. HC1576/18, a copy of which is annexed hereto marked “G”.

(xiii) That the first defendant entered an appearance to defend the action under cover of Case No. HC446/17 on 26 November 2018, and filed a special plea on 18 February 2019, but has not pleaded over to the merits of the matter.

(xiv) That during the period when the order in Case No. HC446/17 was extant, and on 14 March 2018, the plaintiff entered into a written agreement of sale over the property with the second defendant (hereinafter “the second agreement”). A copy of the second agreement is annexed hereto and marked “H”.

(xv) That in terms of the second agreement, the second defendant agreed and undertook to pay the full prescribed purchase price in respect of the property being the sum of USD130,000 as follows:

(a) A deposit in the sum of USD70,000 upon the signing of the agreement.

(b) The balance of USD60,000 to be paid between 31 April 2018 and 31 July 2018.

(xvi) That the purchase price prescribed in respect of the property in terms of the second agreement was per the then prevailing fair market value.

(xvii) That in accordance with the terms of the second agreement, and by 18 July 2018, the second defendant had paid the sum of USD130,000 to the plaintiff, being the full prescribed price in respect of the property in question. The prescribed purchase price was paid into the bank account of Waterbuck Trust (Pvt) Ltd as evidenced by the attached proof of payment marked “I”.

(xviii) That the third defendant was made aware of the second agreement of the sale in terms of a report by the plaintiff and duly recorded such sale in its minutes in respect of a creditors meeting held on the 21 June 2018. The minutes of such meeting are duly contained in the third defendant's final liquidation file under CRB2/10 and attached hereto marked “J”.

(xix) That on 21 March 2018, the only secured creditor of Tabs Avon Lighting (Pvt) Ltd (the company under liquidation) being, NMB Bank Limited, approved of the second agreement of sale and the third defendant was duly made aware of such approval. The letter by the said sole secured creditor of the company under liquidation is contained in the third defendant's final liquidation file under CRB2/10 and is attached marked “K”.

(xx) That in the aftermath of the granting of the order in the matter under cover of Case No. HC1576/18, and after the conclusion of the second agreement of sale and the payment of the full purchase price in respect of the property by the second defendant, the first defendant took steps aimed at remedying his breach of the initial agreement of sale by depositing into the plaintiff's legal practitioners trust account the balance of the purchase price being USD68,000 in terms of the correspondence attached hereto marked “L”.

(xxi) The steps taken by the first defendant, aimed at remedying his breach of the initial agreement, were not accepted by the plaintiff in terms of correspondence attached marked “M”.

(xxii) The plaintiff's legal practitioners tendered back to the first defendant the amount paid into its trust account in the sum of USD68,000. This amount is currently held in trust by the plaintiff's legal practitioners as per the correspondence attached hereto marked “M”.

(xxiii) That by way of an Order granted in the matter under cover of Case No. HC3144/18, the second defendant was joined to the main proceedings, duly entered an appearance to defend the action and filed his plea thereto.

(xxiv) That as at the date of this statement, and following the first defendant's eviction therefrom in terms of the writ of execution and ejectment issued against him in the matter under cover of Case No. HC1576/18, neither of the parties are in physical or lawful occupation of the property nor has any party taken transfer thereof.

The Issues

The issues for determination by the Court are as follows:

(i) Whether the initial agreement of sale over Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo between the plaintiff and the first defendant was lawfully terminated.

(ii) Whether there existed any legal impediment to the conclusion of the second agreement of sale entered into between the plaintiff and the second defendant at the material time.

(iii) To whom should the property, being Stand 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo be transferred?

Factual Disputes

There is a preliminary issue to be put out of the way before dealing with the substantive issues arising in this matter.

In his submissions, counsel for the first defendant submitted, that, there were disputes of fact in this matter such that it could not be resolved by way of a special case. Counsel contended that the dispute of facts were these:

(i) First, was that the Sheriff's return of service did not relate to the service of the notice of cancellation of the agreement of sale between the plaintiff and the first defendant. It was contended further that the letter of cancellation was written on 4 August 2015, however, the return of service related to a notice of set down served on 6 March 2017. Counsel submitted further that the first defendant does not dispute that the notice of cancellation of the agreement was served on his gardner on 12 August 2015. What was disputed was that the return of service did not relate to the service of the notice of cancellation.

(ii) The second turned on the identity of the property sold to the second defendant.

This contention was anchored on the fact that the agreement of sale between the plaintiff and the second defendant speaks to Stand number 6512 Bulawayo Township of Stand 6541A Bulawayo Township situate in the District of Bulawayo, when the dispute in this matter turns on Stand number 6505.

Counsel submitted, that, because of these disputes the matter was to be referred to trial.

Per contra, counsel for the plaintiff submitted that the alleged factual disputes were not germane to the resolution of the issues before the court.

Counsel contended further, that, the first defendant was bound by the statement of agreed facts, and could not purport to renege from such agreed facts.

Counsel for the second defendant argued, that, it was not in dispute that the notice of cancellation was served; what was in dispute was that the Sheriff's return of service did not relate to the service of the notice of cancellation. Counsel argued further that there was a mix up of Stand numbers in the agreement of sale between the plaintiff and the second defendant, but nothing material turned on that because the parties were agreed on which Stand was in issue.

Counsel argued that there was no basis to refer this matter to trial.

In dealing with agreed facts, the court in Kunonga v The Church of the Province of Central Africa SC25-17 said:

“Once the facts are agreed, the court should proceed to determine the particular question of law that arises and not delve into the correctness or otherwise of the facts. It is bound to take those facts as correctly representing the agreed position and to thereafter determine any issues of law that may arise therefrom. It is not open to the parties to the Stated Case to seek to re-open the agreed factual position or to contradict such position. Nor can either party seek to ignore existing legal principle or findings of fact made in connection with the same matter by another court.

Of course, either party has a remedy at common law, to withdraw any concession made in a stated case owing to justus error, fraud, mistake, or any other valid ground.

It has become necessary to restate what a Stated Case is owing to the fact, that, in some instances, the appellant in this case has made submissions contrary to the stated case brought before the court. The appellant has also ignored, in part, the decision of this court on which the stated case is predicated.

It bears stating that if this happens, a party will be kept strictly to the terms of the agreed facts, as it is on the basis of those facts that the court would have been invited to make a determination on some specific question of law.”…,.

In the Statement of Agreed Facts, in respect of service of the notice of cancellation, it was recorded that:

“That the notice of termination of the initial agreement of sale over the property was, according to the Sheriff's Return of Service, served upon the 1st defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on the 12th August 2015, by handing a copy thereof to the 1st defendant's worker.”

The first defendant agreed that the notice of termination of the initial agreement of sale was served upon the first defendant at No.43 Aberdeen Road, Fortunes Gate, Bulawayo on 12 August 2015, on the first defendant's worker.

The first defendant is bound by the statement of facts.

In his submissions, counsel for the first defendant contended that the first defendant does not dispute that the notice of cancellation of the agreement was served on his gardner on 12 August 2015. What was disputed was that the return of service did not relate to the service of the notice of cancellation.

In the statement of agreed facts, in respect of the identity of the property in issue, it was recorded that:

“That during the period when the order in Case No. HC446/17 was extant, and on the 14th March 2018, the plaintiff entered into a written agreement of sale over the property with the 2nd defendant.”

The property referred to is Stand number 6505 Bulawayo Township of Stand 6541A Bulawayo Township, situate in the District of Bulawayo.

There is no factual dispute about the identity of the property in issue. In the statement of agreed facts, the parties are agreed as to the identity of the property in issue in this matter.

Counsel for the first defendant submitted further, that, when the statement of agreed facts was signed, the first defendant had not had sight of the Sheriff's Return of Service and the agreement of sale between the plaintiff and the second defendant.

This is unattainable.

I say so because the statement of agreed facts was signed by the parties legal practitioners. It is unthinkable that a legal practitioner could append his signature on a document to be used in court proceedings without having had sight of all supporting documents.

In Grain Marketing Board v Arenel (Private) Limited and Ors SC30-21, the court said:

“The appellant is bound by the agreement it entered into with the first respondent in terms of the caveat subscriptor rule. Simply put, parties must exercise extreme caution in entering into and signing contracts. Consequently, a party to a contract who appends his or her signature to a document does so at his or her own peril.”

The first defendant cannot be heard, at this stage, to start attacking the statement of agreed facts on the basis that when it was signed it had not seen the supporting documentation. Worse still when the statement was signed by a legal practitioner.

In any event, no application was made to withdraw from the statement of agreed facts.

Further, in respect of the attack on the return of service, the first defendant accepts that the notice of termination was served on his worker. The issue for determination is not whether service was done, but whether it was valid service in terms of the law.

I hold the first defendant strictly to the agreed facts.

The first defendant signed a statement of agreed facts; and, further, the disputes of fact alleged by counsel for the first defendant are not germane to the resolution of the issues in dispute in this matter.

The first defendant does not dispute that the notice of cancellation was served; he disputes that it was served in accordance with the provisions of the law. Further, the statement of agreed facts shows that the parties were clear as to the identity of the Stand in issue.

In the circumstances, there is no basis to refer this matter to trial.

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Documentary Evidence re: Caveat Subscriptor Rule and Recorded Intent: Unsigned Documents and Active Intent iro Approach

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

SC02-22 : SUNKO MAURITIUS and JUDEX BURNETT vs VERSAPAK HOLDINGS (PRIVATE) LIMITED (In Liquidation) and CECIL MADONDO N.O. (Provisional Liquidator of Versapak Holdings)
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

SC12-22 : SIMON CHINGANGA vs MUNASHE SHAVA and TAPSON MADZIVIRE and ADAM BEDE MANUFACTURING (PVT) LTD
Ruled By: KUDYA AJA

Appealed
SC12-24 : FELIX DZUMBUNU vs BATANDI MPOFU N.O. and CHIKOTI DORO and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and CHITAKUNYE JA

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O.
Ruled By: KUDYA AJA

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC56-22 : CENTRAL AFRICAN BUILDING SOCIETY vs FINORMACG CONSULTANCY (PRIVATE) LIMITED and RETIRED JUSTICE L.G. SMITH
Ruled By: GUVAVA JA, CHATUKUTA JA and MUSAKWA JA

View Appeal
HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: DUBE-BANDA J

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Law Portal Zimbabwe

Documentary Evidence re: Caveat Subscriptor Rule and Recorded Intent: Unsigned Documents and Active Intent iro Approach

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA Ruled By: MAWADZE J and MAFUSIRE J

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: PATEL JCC

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA Ruled By: MWAYERA J and MUZENDA J

SC02-22 : SUNKO MAURITIUS and JUDEX BURNETT vs VERSAPAK HOLDINGS (PRIVATE) LIMITED (In Liquidation) and CECIL MADONDO N.O. (Provisional Liquidator of Versapak Holdings) Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

SC12-22 : SIMON CHINGANGA vs MUNASHE SHAVA and TAPSON MADZIVIRE and ADAM BEDE MANUFACTURING (PVT) LTD Ruled By: KUDYA AJA

Appealed SC12-24 : FELIX DZUMBUNU vs BATANDI MPOFU N.O. and CHIKOTI DORO and MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and CHITAKUNYE JA

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O. Ruled By: KUDYA AJA

Appealed SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC56-22 : CENTRAL AFRICAN BUILDING SOCIETY vs FINORMACG CONSULTANCY (PRIVATE) LIMITED and RETIRED JUSTICE L.G. SMITH Ruled By: GUVAVA JA, CHATUKUTA JA and MUSAKWA JA

View Appeal HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: DUBE-BANDA J

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Law Portal
Zimbabwe

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

SC02-22 : SUNKO MAURITIUS and JUDEX BURNETT vs VERSAPAK HOLDINGS (PRIVATE) LIMITED (In Liquidation) and CECIL MADONDO N.O. (Provisional Liquidator of Versapak Holdings)
Ruled By: MALABA CJ, BHUNU JA and CHIWESHE AJA

SC12-22 : SIMON CHINGANGA vs MUNASHE SHAVA and TAPSON MADZIVIRE and ADAM BEDE MANUFACTURING (PVT) LTD
Ruled By: KUDYA AJA

Appealed
SC12-24 : FELIX DZUMBUNU vs BATANDI MPOFU N.O. and CHIKOTI DORO and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and CHITAKUNYE JA

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O.
Ruled By: KUDYA AJA

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC56-22 : CENTRAL AFRICAN BUILDING SOCIETY vs FINORMACG CONSULTANCY (PRIVATE) LIMITED and RETIRED JUSTICE L.G. SMITH
Ruled By: GUVAVA JA, CHATUKUTA JA and MUSAKWA JA

View Appeal
HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: DUBE-BANDA J