Corroborative Evidence re: Admissions, Unchallenged Evidence and the Right of Cross-Examination or Replication

SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

On 20 December 2006 the High Court granted a decree of divorce and other ancillary relief in a divorce action in which Mr Beckford was the plaintiff and Mrs Beckford the defendant. Aggrieved by part of the Order, Mr Beckford appealed to this Court. The Notice of Appeal, in relevant part, reads as follows:

“The appellant appeals against paragraphs 2, 3, 9, 10, 12 (only insofar as it relates to the respondent), 14, 15 (insofar as the time for payment by the appellant is required), 16, 17, 18, 19 (only insofar as it imposed upon the appellant the obligation to deliver such property to the respondent at his cost), 22 and 23 of the Order given by the High Court of Zimbabwe.”...,.

The parties were married to each other in Blackpool, Lancashire, England, on 26 November 1994. Two children were born of the marriage. These are Elsbeth Bridie Beckford, born on 7 August 1996, and Theodore Hugh Beckford, born on 9 February 1999. Both children were born in the United Kingdom.

At the pre-trial conference, the issues were identified as follows –

“1. Whether it is in the best interests of the minor children that custody be awarded to (the) plaintiff or (the) defendant, or that an award of joint custody be made.

2. Dependent upon the award of custody, the quantum of maintenance payable in respect of the children.

3. What order should be made in respect of the children's schooling?

4. The quantum of maintenance payable by (the) plaintiff to (the) defendant and the period thereof.

5. What assets constitute the matrimonial estate?

6. The apportionment thereof.

7. Costs.”

After a trial which lasted eight days the learned trial Judge prepared a long judgment in which he carefully considered the issues before him. I now wish to consider those paragraphs of the order of the court a quo which are challenged on appeal, and determine whether the learned trial Judge erred in any way.

PARAGRAPH 2

In terms of this paragraph, the learned trial Judge granted the custody of the two minor children of the marriage to Mrs Beckford. In this regard, the learned Judge relied mainly on the evidence of Mrs Beckford and that of Mr Jean-Francois Desvaux de Marigny (“Mr de Marigny”), a clinical psychologist with much experience in the psychological aspects of custody of and access to minor children after divorce.

Although Mr Beckford originally sought sole custody of the two minor children, he finally sought joint custody of them. However, Mrs Beckford, who sought sole custody of the children, maintained that joint custody was a practical impossibility in this case because it would not work.

The learned Judge found that Mrs Beckford gave her evidence well and was an honest and fair witness.

In his evidence, Mr de Marigny said that although joint custody was the “first prize”, if it was a practical possibility, he did not believe that the necessary ingredients for joint custody, such as trust and the ability to communicate with each other in a mature manner, existed in this case. It was his view that Mrs Beckford was the more appropriate custodian of the two parties.

The learned Judge accepted Mr de Marigny's evidence and commented as follows at pp 38-39 of the cyclostyled judgment (judgment no. HH124-06):

“I have dealt at length on Mr Marigny's testimony because, in my view, it was delivered in a professional and impartial manner. His opinion was based on a credible methodology. He conducted in depth interviews with a wide array of collaterals, the plaintiff, the defendant, the children, and Dr Bester…,. He carried out a first class appraisal of the issues and the facts. He was alive to the thirteen criteria for custody considerations set out in McCall v McCall 1994 (3) SA 20 (C) (sic) at 204-205 and the views expressed by DE VOS J, in Krugel v Krugel 2003 (6) SA 220 (W), on joint custody. He was commissioned by the plaintiff. He conducted himself well and with dignity in the witness-box….,. I am satisfied that he told the truth. I believe his evidence in its totality.”

It is pertinent to note that, in the Heads of Argument prepared on behalf of Mr Beckford, no challenge is made to Mr de Marigny's evidence and his reports. That, in my view, supports the learned Judge's view of the manner in which Mr de Marigny gave his evidence and the substance of that evidence.

HH51-12 : TENDAYI MUNDAWARARA vs EMELDA MUNDAWARARA
Ruled By: MAWADZE J

The plaintiff and the defendant are husband and wife respectively and they married each other in Harare on 7 March 1990 in terms of the Marriage Act [Chapter 5:11]. Prior to that, the parties had married traditionally on 21 January 1990 and the same marriage was blessed in church on 28 July 1990.

The parties have been married for 22 years.

The marriage was blessed with two children, Sean, male child, born 29 December 1990 (now 21 years old), and a female child, Nombulelo, born 16 August 1993 (now 18 years old). Despite attaining the majority status, both children are still dependent on their parents. Sean is at a University in South Africa pursuing a degree in Architecture and is in his second year of the five year degree programme. Nombulelo is expected to start or commence her University education in Europe this year.

It is common cause that the plaintiff has the sole responsibility of paying the children's college fees.

The plaintiff issued summons out of this court, on 25 March 2010, seeking a decree of divorce on the basis of irretrievable breakdown of the marriage, an order for custody of the then minor child, maintenance in relation to the then minor child, division of matrimonial assets, and that each party bears its own costs.

As per the joint pre-trial conference minute signed by counsel for both parties on 14 March 2011, the parties could only agree that the marriage has irretrievably broken down. The following issues were referred to trial for determination:

“Issues

1. Who should have custody of the minor child?

1.1 What would constitute a fair access regime for the non-custodial parent?

1.2 What would constitute a fair maintenance contribution to the custodial parent in respect of the minor child?

2. What constitutes the matrimonial estate?

2.1 What would constitute a fair and equitable division of the matrimonial estate?”...,.

It has not been disputed in any serious manner, by the plaintiff, that the Chegutu property was acquired by the defendant in the manner she alleged in her evidence.

The defendant's uncontroverted evidence is that her father, who apparently has a large family, decided to apportion part of his estate amongst all his children, both males and females, during his lifetime as a way of possibly averting the acrimony which may arise after his demise in relation to his estate. This was confirmed by Rosa Shorai Tunduwani, the defendant's young sister whose evidence was not challenged in any manner by the plaintiff.

All the children were given immovable property, either residential property or business property, which was transferred into each child's respective name. The defendant was clear that her father advised all those of his children who were married to advise their spouses. She said she, in turn, advised the plaintiff.

This is not disputed by the plaintiff.

It is therefore clear to my mind that the defendant acquired the Chegutu property in the manner she explained...,.

HH00-08 : AGRICULTURE BANK OF ZIMBABWE LTD T/A AGRIBANK vs DATANET TECHNOLOGY ZIMBABWE
Ruled By: MTSHIYA J

The cause of action in this case arises out of an alleged breach of contract by the defendant for the supply of 20 IBM A50 desktop computers (computers) to the plaintiff.

The plaintiff is suing the defendant for specific performance or payment of damages in lieu thereof.

At the commencement of the trial, the plaintiff applied to amend the damages figure or the summons to read $9,792,245,000 000 instead of $7,800,000,000. The amendment was meant to address the effect of inflation on the original figure. Counsel for the defendant did not oppose the application for amendment. I granted the application for amendment, and, consequently, the plaintiff's claim herein is for:

“(a) An order that the defendant supply and deliver to the plaintiff a total of twenty (20) IBM A50 desktop computers forthwith alternatively an order that defendant pays to plaintiff a total of $9,792,245,000,000 representing the current value of the said computers.

(b) Interest on the amount representing the value of the computers from the date of summons to the date of payment; and

(c) Costs of suit.”

It is common cause, that, on 23 February 2005 the plaintiff ordered from the defendant a total of thirty (30) computers. Each computer was quoted at a price of $9,860,400, bringing the total cost, including V.A.T. payment, to $340,183,800. This amount was then paid in full on 28 February 2005. The defendant, however, only managed to deliver ten (10) computers on 2 March 2005. This left a balance of twenty (20) computers.

It is the non-delivery of these twenty (20) computers that has led to this court action.

The defendant explains non-delivery by citing the failure to obtain the requisite foreign currency allocation from the Reserve Bank of Zimbabwe through the auction system which was then in operation. It is the defendant's position that both parties were fully aware that the amount paid by the plaintiff would be utilised for the purchase of foreign currency in order to meet the requirements of the defendant's foreign supplier, namely, a company called 'TriContinental Limited' (Tri-Continental).

However, the plaintiff's position is that delivery was to be effected soon after payment and the total amount paid represented the full payment for the thirty (30) computers ordered.

In view of the different positions taken by the parties, it was agreed that the issues for determination in this trial would be:-

“(1) What were the terms of the Agreement between the parties?

(2) Whether it was agreed, as between the parties, that the defendant would supply the computers upon receiving foreign currency allocation by the Reserve Bank of Zimbabwe.

(3) Whether the plaintiff is entitled to the order sought.

(4) Whether the defendant is liable to the plaintiff in damages.”

The plaintiff called two witnesses to support its case, and, through the witnesses, it submitted a total of nine (9) exhibits.

The first witness called by the plaintiff was Mr Patrick Gwara (“Mr Gwara”) who said he is currently employed by the plaintiff as a Stores Supervisor with the main responsibility of taking care of the plaintiff's stocks.

Mr Gwara testified that upon an evaluation of quotations the defendant was awarded the contract/tender to supply the plaintiff with thirty (30) computers. He said upon being paid the sum of $340,180,800 to cover the total cost of the computers, the defendant delivered ten (10) computers. The ten (10) computers were received by the plaintiff on 2 March 2005. That left a balance of twenty (20) computers already paid for.

It was Mr Gwara's evidence that at the time of placing the order with it, the defendant had indicated that it had twenty-five (25) computers in stock and 'it would get the other five (5)'.

He said, apart from paying the requisite purchase price for the computers, the plaintiff was not aware of the financial arrangements between the defendant and its suppliers.

He went further to say if the plaintiff had known that the defendant would face supply problems, it (plaintiff) would not have placed the order with the defendant. This was so because the computers were needed urgently for its Harare and Bulawayo offices.

Under cross-examination, Mr Gwara said he was not aware that his seniors had moved the delivery date to 1 July 2005 as indicted in the replication. He however maintained, that, as far as he was concerned, delivery was to be made soon after payment. He said that although the plaintiff had in the past accepted long delivery periods with respect to other contracts, this was not the case with respect to the thirty (30) computers because they were needed urgently.

The contract/tender had been awarded to the defendant on the basis that it had the computers in stock.

Mr Gwara denied knowledge of the offer by the defendant to refund the plaintiff. He said as far as he was concerned the plaintiff wanted delivery of the twenty (20) computers.

The second witness called by the plaintiff was Mr Mischeck Chigatse (“Mr Chigatse”). He said he is employed by the plaintiff as a Procurement Officer.

Mr Chigatse was, in that capacity, responsible for the procurement of goods and services for the plaintiff. He was, however, not aware of the issue of the thirty (30) computers since the contract had been entered into before he was employed by the plaintiff.

The witness, however, gave evidence on current prices of computers such as those forming the subject of the dispute herein. He said the prices ranged from $300 billion to $700 billion. His evidence was based on three (3) quotations obtained by the plaintiff. He said based on the quotations, the current price of a similar computer to the one that had been ordered by the plaintiff would be $489 billion.

The defendant called only one witness to support its case.

It called Mrs Doreen Nyamusara (“Mrs Nyamusara”). She said she joined the employ of the defendant in April 2005 as a Finance Manager but was, as from January 2008, promoted to the position of General Manager. She told the court that she was unaware of the details of the contract in issue since she joined the employ of the defendant when the contract had already been concluded. She was, however, involved in negotiations with the defendant's suppliers for the delivery of the remaining twenty (20) computers.

Mrs Nyamusara testified, that, at one stage the defendant had asked the plaintiff to participate in the auctions(s) for foreign currency. The plaintiff had refused to do so. She said after all efforts to obtain foreign currency had failed to produce results, the defendant had offered to refund the plaintiff. The plaintiff had, however, declined the offer, insisting that it wanted delivery of the computers.

Mrs Nyamusara also stated that the parties failed to resolve the matter amicably largely due to differences in the calculation(s) of interest. As a result of the differences, the matter was never resolved amicably. This was notwithstanding the fact that the defendant made a payment of $1,392,000 through the plaintiff's legal practitioners – which payment was still being held by the plaintiff's legal practitioners.

Under cross-examination, she agreed that the sum of $1,392,000 was too little to pay for the twenty (20) computers.

Also admitting that the type of computers originally ordered by the plaintiff had been phased out, Mrs Myamusara said a similar computer (ie A55 Lenovo) would, as per exhibit 24, cost $143,750,000,000.

Counsel for the plaintiff submitted that there was no doubt that delivery was to be effected immediately upon payment of the full purchase price. He said the issue of foreign exchange was only brought up in an effort to justify a clear breach of contract by the defendant. He said, that, in concluding the contract the issue of foreign exchange was never raised. He said the quotations which resulted in the award of the contract were in local currency – with the foreign exchange element having been taken into account. It was his view that if indeed the issue of foreign exchange had been a factor, the parties would have said so upon executing the contract.

He urged the court to dismiss the defendant's defence based on the shortage of foreign currency because it came as an afterthought.

Relying on RH CHRISTIE's The Law of Contract in South Africa 3ed, counsel for the plaintiff submitted that 'an impossibility to perform must be absolute'.

He argued that, in casu, that defence was not available, and, as such, the defendant was clearly in breach and was liable for the prejudice suffered by the plaintiff. To that end, counsel for the plaintiff prayed either for the delivery of the twenty (20) computers or payment of damages representing the current market value of the computers.

Counsel for the plaintiff submitted, that, if payment of damages were to be ordered, the sum of $9,792,245,000,000 would be reasonable because it would enable the plaintiff to procure the computers on its own. That value, he argued, had not been challenged.

The primary aim in asking for damages was to put the plaintiff to where it should have been were it not for the breach of contract by the defendant.

Counsel for the plaintiff further submitted that the issue of money paid to the plaintiff's legal practitioners should not be allowed to cloud the issues before the court. That money could still be recovered.

Counsel for the defendant submitted that the dispute was mainly on the issue of the delivery dates.

She said that the parties were not agreed on what was the delivery date. She, however, agreed that the defendant's only witness could not testify to the terms of the contract since it was concluded before she joined the defendant's employ.

Counsel for the defendant submitted, that, as per the plaintiff's replication, the delivery date in terms of the contract should have been 1 July 2005. That, according to her, meant there was no question of immediate delivery in line with the parties' conduct on previous supply contracts. She went further to suggest that the failure by Mr Gwara to explain the averment in the replication referring to 1 July 2005 supported the defendant's case in the sense that a delay of some four months after payment meant that the computers would be delivered only after the defendant had paid its supplier, namely, Tri-Continental. Payment involved foreign currency.

It was therefore counsel for the defendant's submission that the plaintiff, despite denial, was aware from inception that delivery of the computers would only be effected after the procurement of foreign exchange by the defendant. Accordingly, when that became impossible, it meant the defendant could no longer deliver as had been agreed.

The failure to obtain foreign currency was, in her view, a supervening impossibility which served to extinguish the defendant's obligations under the contract.

She said according to JOUBERT's General Principles of the Law of Contract, the defence of a supervening impossibility was available to the defendant. To that end, she quoted JOUBERT's General Principles of the Law of Contract …,where he states:-

“Performance may become either absolutely or relatively impossible after the conclusion of the contract. In the case of absolute or objective impossibility of performance the rule is undoubtedly that the duty of the debtor to perform is extinguished….,.”

On the basis of the above, counsel for the defendant submitted that it was improper for the plaintiff to insist on specific performance. In so doing, she argued, the plaintiff had contributed to its own loss.

She said the loss would have been mitigated if the plaintiff had accepted the refund offered in May 2005.

The defendant had, all the same, gone ahead to refund the plaintiff with a sum of $1,362,980=32. That money was still being held in trust by the plaintiff's legal practitioners. The amount, it was argued, had been calculated properly, and, therefore, the defendant's view was that the plaintiff had been refunded in full. There was therefore no basis for this action.

On the possibility of the court finding in favour of the plaintiff and ordering payment of damages, counsel for the defendant submitted that the figures quoted by the plaintiff were excessive and did not accurately reflect the current prices for the originally ordered computers.

She said although there was no case for damages, the defendant's own quotation of $143,750,000, would represent a reasonable figure.

The fact that the plaintiff's loss would have been mitigated if it had participated in foreign currency auctions or had accepted the refund as offered in May 2005 could not be ignored. Accordingly damages payable, if any, should be reduced, she argued.

Counsel for the defendant also urged the court to be cautious when evaluating Mr Gwara's evidence. She said this was so because Mr Gwara had denied knowledge of the refund issue yet there was evidence that correspondence on the issue was copied to him.

I shall, taking into account evidence from both parties' witnesses and submissions by their legal practitioners, now deal with the agreed issues for determination….,.

In dealing with this matter, I believe that a finding of whether or not delivery of the computers was subject to the availability of foreign currency to meet the defendant's suppliers' financial requirements will greatly narrow issues for consideration.

In order for that argument to succeed, the court has to be convinced, that, in paying the sum of $340,183,800 the plaintiff was fully aware that this was merely part payment which would go towards the purchase of foreign currency.

There must be evidence that the defendant made it clear to the plaintiff that delivery would be dictated by the availability of foreign currency to meet the requirement of Tri-Continental, its supplier. This is clearly so, because, apart from quotations and payment confirmations, the contract terms were not reduced to writing.

In casu, the evidence from papers and that led in court leads me to the conclusion that the defendant cannot avail itself to the defence of a supervening impossibility.

This is so because it is clear to me that the plaintiff gave the contract/tender to the defendant on the understanding that the computers were in stock and readily available. All what the plaintiff was required to do was to effect full payment and then delivery would follow immediately.

The defendant had indeed indicated to the plaintiff that it had the computers in stock - at least twenty-five (25) of them.

The plaintiff effected full payment on 28 February 2005. Payment was in accordance with the defendant's quotation for the delivery of thirty (30) computers.

Contrary to the defendant's legal practitioner's perception of Patrick Gwara, I found him to be a credible witness who knew exactly what took place when the contract was entered into between the two parties. His failure to know subsequent details of discussions between the plaintiff's senior management and the defendant's representatives, on the issue of delivery times and the refund, should not be allowed to carve a dent into his evidence.

The witness, Patrick Gwara, was adamant that the issue of foreign currency was never raised when the contract was granted to the defendant. He pointed out that if at all the plaintiff knew there would be problems of foreign currency the contract would not have been granted to the defendant. The plaintiff needed the computers urgently and the defendant had indicated that it had twenty-five (25) in stock and would look for the other five (5).

That evidence was never satisfactorily challenged in court.

All the defendant could say was that the computers were in stock at Tri-Continental.

Clearly, if that detail was necessary, the defendant could have revealed it to the plaintiff at the time of concluding the contract.

That was not done, and, as submitted by the plaintiff's legal practitioner, I hold the view that the price quoted in Zimbabwean dollars included the foreign exchange component.

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

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

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

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

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

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

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

Basically, it boils down to this:

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

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

(i) Evicting the defendants.

(ii) Damages.

(iii) Costs of suit.

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

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

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

All these properties are at Chinotimba, Victoria Falls.

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

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

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

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

This is denied by the plaintiff.

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

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

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

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

Phillip Ndlovu

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thembinkosi Khumalo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Phindile Ncube

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This assertion was clearly flawed.

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

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

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

HH123-12 : DAVID SEBASTAIN GWANDE vs TAPIWA MATONHODZE AND MINISTER OF HOME AFFAIRS
Ruled By: MATHONSI J

That the plaintiff suffered loss in the amount claimed has been established by evidence...,that the first respondent acted unlawfully, wrongfully and indeed negligently..., has not been disputed. It is trite that what is not disputed is admitted.

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

On 1 January 2003, the applicant and the first respondent executed an agreement for the “supply of primary beverage transport services.”

In terms of clause 8 of the agreement, the first respondent, Delta, appointed the services of the applicant, Pioneer, to distribute and deliver products on its behalf to various destinations.

In order to perform its obligations under the agreement, Pioneer undertook to supply vehicles to Delta for use in the distribution aforesaid. To that end, Pioneer had to make available to Delta twelve mechanical horses which would be used to draw thirty-four trailers, these being supplied by Delta.

The agreement also provided for the supply of additional horses, by Pioneer, on an ad hoc basis as the exigencies of the situation would have demanded.

As sometimes happens, the parties had a falling out.

The agreement, in terms of clause 18 thereof, provided for the settlement of disputes through an arbitration process.

In due course, the second respondent was appointed as arbitrator to the dispute and the matter referred to him. The parties were called before him, and, on 16 January 2010, he issued an award.

The applicant has, through these proceedings, brought an application to have the award set aside by this court in terms of Chapter VII, Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15]. The applicant also seeks costs against the first respondent.

The founding affidavit has been deposed to by a John Groves. He states that he is employed as a Managing Director by the applicant and that he is authorised to depose to the affidavit.

He states therein that the application was being brought to court in accordance with the provisions of section 2 of Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15].

The dispute is centred around the effect to be given to clause 9(f) of the agreement, in terms of which, upon termination of the agreement, Pioneer was supposed to return the trailers to Delta, and such return to be in “good working condition” and order fair wear and tear excepted.

The deponent states that, on 26 September, Delta commenced arbitration proceedings in terms of a Statement of Claim filed of record. Pioneer opposed the claim and the matter was set down for hearing before the arbitrator. Both parties adduced viva voce evidence.

According to the deponent to the affidavit the crystal issue before the arbitrator was the duration of the agreement.

The arbitrator found that the claim by Delta had not prescribed at the time that it submitted the dispute to arbitration. The deponent contends, therefore, that the arbitrator acted outside the enabling provisions of the agreement.

He contends, further, that the finding by the arbitrator that the agreement between the parties terminated on 30 November 2005 was not rationally linked to either the evidence adduced by the parties or submissions made by the same on the papers or during the hearing. He contends, further, that, in finding as he did, that the agreement terminated on 30 November instead of 31 December, as provided for in clause 2 of their agreement, the arbitrator had created a new contract for them....,.

The applicant contends that, before the arbitrator, it put up the case that the agreement commenced on 1 January 2003 and terminated on 31 December 2004 and that the respondent, had, contrary to that assertion, contended that the agreement had not terminated up to the time that it instituted proceedings.

The applicant contends that the arbitrator disagreed with the versions that both parties placed before the arbitrator, and that, in approaching the matter as he did, he created a new contract between the parties based on what he termed practical considerations.

The applicant contends, in this regard, that the arbitrator unilaterally extended the duration of the contract where he held the date of termination as 30 November 2005.

The applicant contends, therefore, that the award is liable to be set aside on the grounds that it is in conflict with the public policy of Zimbabwe....,.

As to the alleged date of termination of the agreement, the first respondent denies that the agreement terminated on 31 December 2004 and contends that the finding by the second respondent cannot be faulted.

The first respondent contends that the allegations by the applicant, in regard to this aspect, amount to an appeal.

It also contends that the evidence adduced before the arbitrator confirmed that the agreement continued beyond 31 December as the applicant did not return any of the trailers by that date.

The first respondent makes reference to evidence given by one Dawson, of the applicant, who stated that the parties carried on dealing with each other until mid 2007. This witness is alleged to have confirmed, under cross examination, that no trailers were handed back to the first respondent on 31 December 2004.

Despite an allegation in the opposing papers over this issue, the applicant did not find it necessary to adduce evidence by way of affidavit to contradict the averment.

One Kevin Motsi, of the applicant, is also alleged to have given evidence that he had been employed by the applicant in 2005 and that, at the time, the applicant was towing the first respondent's trailers. The relationship, according to him, had continued until 2007.

HH78-02 : CONSTANCE PANGETI vs THE GRAIN MARKETING BOARD
Ruled By: MAKARAU J

This is an application for review brought in terms of Order 33 of the High Court Rules. The facts of the matter are not in dispute. They are as follows:The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in ...

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

Procedural Issues

In response to counsel for the applicants submissions on the merits, counsel for the respondents raised several procedural issues which he should have raised as preliminary issues....,.

In his second procedural issue, counsel for the respondents raised the issue of the applicants not having filed an answering affidavit.

He submitted that, that means the applicants have accepted the respondents averments in the opposing affidavit.

Counsel for the applicants response was that most of the issues had already been put in contention by the applicants founding affidavit deposed to by Tendai Biti.

That may be so in respect of the delay and aspects related to it. It is however not correct in respect of the reason for the delay averred to in CHIWESHE J's opposing affidavit.

CHIWESHE J said the delay is due to the Zimbabwe Electoral Commission (ZEC) having received complaints about miscounting and is considering the evidence for it to decide whether or not to order a recount of the Presidential votes before announcing the results.

The failure to file an answering affidavit disputing that fact means the fact that complaints have been received is not in dispute. However, the legality of the re-count can still be challenged as it is a matter of law.

HH29-09 : FIDELIS CHIRAMBA and OTHERS vs MINISTER OF HOME AFFAIRS N.O. and COMMISSIONER GENERAL OF POLICE and OFFICER COMMANDING CID HOMICIDE, Chief Supt MAKEDENGE and DETECTIVE CONSTABLE MUUYA
Ruled By: HUNGWE J

In this application, the applicants seek an order -

(a) Declaring their arrest and continued detention unlawful;

(b) Requiring the respondents and all those calling through them or acting on their behalf to permit the applicants access to medical treatment at medical centres of their choice;

(c) Directing the respondents or anyone calling through them or acting on their behalf to produce the applicants before a High Court Judge in Chambers within two hours of the order being made, or, alternatively, take the applicants for a remand at the Magistrates Court at/or before 12h00 on 11th November 2008 failing which the respondents and all those calling through them or on their behalf shall forthwith release all the applicants from custody and that thereafter no Magistrates Court should entertain the matter for remand purposes save for trial purposes, applicants having been duly summoned.

They also seek an order for costs on a higher scale.

The application was placed before me through the Chamber Book as an urgent application on 6 November 2008. After perusing the papers, I directed that the applicant serves the application on the respondents as well as on the office of the Attorney-General.

I considered that the matter merited speedy consideration and that the Rules of Court relating to notice be dispensed with in the interests of the rights of the applicants. The matter was to be set down for hearing the next day at 10h00.

The application is premised on an affidavit deposed to by the applicants' counsel, Mr Andrew Mukoni. He makes the following averments:

The applicants are Fidelis Chiramba, Pieta Kaseke, Terry Musona, Fanuel Tembo, Mrs Mutemagau, Mr Manyemwe, Lloyd Tarumbwa and others. The third and fourth respondents are police officers responsible for the arrest and detention of the applicants. The police officers operate under the direction and control of the first and second respondents.

On 3rd November 2008, Mr Makoni was instructed to represent all the applicants. From the information he gathered, the applicants were being dealt with by either CID Homicide Section or CID Law and Order Section at Harare Central Police Station although they had been arrested in places around Banket and Chinhoyi.

Upon visiting CID Law and Order section, the Officer-in-Charge of that section professed ignorance of the matter. When he then visited Homicide section, he learnt that the third respondent was handling the matter. Upon requesting audience with him, the latter was said to be too busy to see the applicants' counsel. He also gathered information concerning the detention of the applicants at various police stations around Harare.

A visit to these stations, however, indicated that the applicants had been released into the custody of the fourth respondent.

He concluded that the police were detaining the applicants illegally for the reason that the 48 hour period permitted at law had long expired. He also believed that the police were holding the applicants in communicado. He feared that the applicants were being subjected to torture, ill-treatment or other inhuman and degrading treatment as access to legal practitioners was being denied. He believed that police had no legal basis for detaining the applicants hence they had failed to take the applicants to court within 48 hours as required of them by law. He believed that the applicants were being subjected to such ill treatment for the purposes of unlawfully extracting from them confessions without legal representation.

He therefore prayed that the applicants be produced at court or be released.

At the hearing, counsel for the respondents indicated that the police did not have the applicants in their custody, and, therefore, were unable to release the applicants. He pointed out that the police deny arresting the applicants as no evidence of such an arrest had been produced by the applicants.

In view of the attitude of the respondents, the matter was postponed to 11 November 2008 to allow the applicants to file further affidavits to address the following questions:

(a) Where are the applicants detained?

(b) What are their detention book numbers, if any?

(c) Under what circumstances were they detained?

(d) On whose authority are they detained?

(e) What are the applicants full and further particulars?

(f) What other persons were arrested and detained under similar circumstances as the present applicants?

(g) What is the registration number or numbers of the vehicles which conveyed the applicants if any?; and

(h) Whether any criminal charges were preferred against any of the detainees.

The respondents, particularly the third and fourth respondents, for their part, were directed to file affidavits answering the allegations raised in the founding as well as the supplementary affidavit.

On 10 November 2008, Mr Makoni filed his supplementary affidavit as directed by the Court. The respondents did not file any affidavit despite being directed to do so by the Court.

In his supplementary affidavit, he makes the following averments at paragraphs 5 and 6.

"5. After the postponement of the matter, I drove to Mabelreign police station in the company of the defence team comprising of myself, Alec Muchadehama and Charles Kwaramba. We gathered the following facts.

Pieta Kaseke, the 7th applicant, was detained at the police station under Detention Book Number I55/0S on the 2nd November 2008. She was booked in by Detective Assistant Inspector Chibaya for Chief Superintendent Makedenge of CID Homicide. She resides at 167 Munashe Street, Kuwadzana Township, Banket. She was released by Detective Sergeant Muuya of CID Homicide on behalf of Chief Superintendent Makedenge. We then visited Avondale police station and discovered that Pieta Kaseke had been detained at the station prior to her detention at Mabelreign police station, She was detained under DB1122/08. She was detained by Detective Assistant Inspector Phiri for Makedenge on 1st November 2008 and booked out on 2nd November 2008. Her whereabouts are still unknown. We believe she is still in the hands of the police with her minor child.

6. At Avondale police station we also gathered that the 1st applicant was also at some stage detained there. He was detained at the station on the 3rd of November 2008 under detention number DB1126/08 and released by Detective Chief Inspector Paradza and Detective Inspector Chibata for C/S Makedenge on the 4th November 2008. His whereabouts are still unknown. We have reason to believe he is still in police custody.

Prior to this detention, he was detained at Rhodesville police station. His detention number at Rhodesville was DB1886/08. He was in these cells on the 31st October 2008 from 09h00 to 15h00 when he was booked out by D/C Muuya of CID Homicide allegedly for CID Law and Order. 1st applicant was again detained at Highlands police station and Borrowdale police station before he was taken to Avondale police station. We failed to get the detention numbers at these two police stations as the police were less co-operative. 1st applicant resides at Number 825 Kuwadzana Township, Banket. His ID number is [number]."

He recites that he ascertained that the third applicant was once detained at Rhodesville and gives his particulars. The third applicant was detained under DB1892/08 at Rhodesville and released by Detective Sergeant Mavunga of CID Homicide on 4th November 2008.

In respect of the rest of the applicants, Mr Makoni says he was unable to obtain any information regarding where they were detained after when they were attested or where they currently were detained. This was in spite of his visiting various police stations around the city like Avondale, Borrowdale, Braeside, Highlands, Mabelreign, Matapi, Mb?r?, Marlborough and Rhodesville. Despite diligent inquiry he was unable to ascertain full particulars of certain of the detainees e.g. the fifth applicant's. He was, however, able to confirm that the applicants were being accused of contravening section 24 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] i.e. training insurgents, bandits, saboteurs and terrorists. He averred that after his discussion on 4th November 2008 with Detective Chief Inspector Paradza, he was under no illusion that all the detainees were held by the police and that Chief Superintendent Makedenge was handling the case.

Chief Inspector Paradza referred all questions to Chief Superintendent Makedenge who refused to entertain counsel.

A further supplementary affidavit was obtained from the first applicant's son, one Ponsiano Chiramba. According to him, police came into their neighbourhood on 30 October 2008 and arrested Larry Gaka, the eighth applicant. No-one had the presence of mind to record the police vehicle registration number.

This occurred at night.

The following day, 31st October 2008, around 03h00, police struck again and arrested his father together with the 2nd and 3rd applicants. His father is the losing senatorial candidate for Zvimba in the March 2008 harmonised elections. He believes the arrests were politically motivated as all those arrested are MDC activists. Police took away his father's fully licensed 303 rifle. His father, the first applicant, is a 71 year old retired police officer.

Ponsiano Chiramba brought food for this father at Rhodesville, and, later, Highlands police stations; but, when he attempted to do the same at Borrowdale he was met with resistance. Police refused to disclose his father's whereabouts saying only that they were under instructions not to divulge such information.

The ninth, tenth, and eleventh applicants were arrested whilst driving from MDC Headquarters in Harare. They are resident in Banket, Their motor vehicle, and themselves, have not been seen since their arrest.

Ponsiano Chiramba was surprised to hear that the police deny any knowledge of the whereabouts of the applicants.

Faced with this evidence, counsel for the respondents reconsidered his position and advised the court, at the resumed hearing on 11th November 2008, that, he was no longer opposed to the granting of the final order sought by the applicants were seeking.

The change in his attitude is not only legally correct but commendable....,.

Despite the fact that I directed that the third and fourth respondents file affidavits in answer to the allegations personally against them - none were forthcoming. I assume they have nothing to say for themselves in view of their blatant breach of the clear provisions of the law.

I will therefore make findings without having their side of the story since they have declined the opportunity to respond.

SC11-12 : JESTINA MUKOKO vs THE ATTORNEY-GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

This case is about a permanent stay of a criminal prosecution because of torture and inhuman and degrading treatment to which the applicant was subjected by State security agents prior to being brought to Court on a criminal charge.

Jestina Mukoko (hereinafter referred to as (“the applicant”) appeared before a magistrate at Rotten Row Magistrates Court in Harare on 14 January 2009 in the case of Manuel Chinanzvavana & Eight Ors No.8801-5/08. She was charged with the offence of contravening section 24(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (hereinafter referred to as “the Act”). It was alleged that in the months of June and July 2008, the applicant and the co-accused persons “recruited or attempted to recruit or assisted in the recruitment of Ricardo Hwasheni to undergo military training in Botswana in order to commit any act of insurgency, banditry, sabotage or terrorism in Zimbabwe.”

The applicant alleged, in the Magistrates Court, that she had been abducted from home and subjected to torture and inhuman and degrading treatment by State security agents. She requested the magistrate to refer the question of contravention of her fundamental rights to the Supreme Court (“the Court”).

Two grounds were used to justify the request:

(i) The first was that the institution of the criminal prosecution was rendered invalid by the pre-charge ill-treatment to which the applicant was subjected. It was argued that the manner in which she was apprehended by State security agents and treated in detention, prior to being brought to court on the charge, constituted a violation of the fundamental rights not to be arbitrarily deprived of personal liberty guaranteed under section 13(1) and not to be subjected to torture or to inhuman or degrading treatment protected by section 15(1) of the Constitution.

The argument was that the uncontested behaviour by State security agents, in kidnapping the applicant from her residence and subjecting her to torture, inhuman and degrading treatment whilst she was in their custody, rendered the institution of the criminal prosecution an abuse of legal process. It was also argued that the conduct of the State security agents offended the sense of what the judiciary expects as decent behaviour from law enforcement agents in the treatment of persons in their custody.

The contention was that the Court was obliged to refuse to countenance the bringing of the criminal prosecution in the circumstances.

(ii) The second ground was that the decisions made by the public prosecutor, to charge the applicant with the criminal offence and to bring the prosecution proceedings, were based solely on information or evidence of the crime obtained from her by infliction of torture, inhuman and degrading treatment.

It was argued that the institution of the criminal prosecution was rendered invalid by the use of inadmissible information or evidence.

The assumption was that section 15(1) of the Constitution contains a rule that prohibits the admission or use, in legal proceedings, by public officials responsible for the initiation and conduct of criminal prosecution, and judicial officers, of information or evidence of the crime obtained from an accused person, or any third party, by infliction of torture, or inhuman or degrading treatment.

The contention was that reliance on information or evidence of the crime obtained from the applicant, or a third party, by torture, inhuman and degrading treatment was a breach of the exclusionary rule and unlawful.

It also engaged the responsibility of the State in the violation of section 13(1) of the Constitution.

The effect of the argument was that the decision to charge the applicant with the criminal offence, and the institution of the prosecution of it, was not based on a reasonable suspicion of her having committed the criminal offence. The criminal prosecution was therefore not authorized by section 13(2)(e) of the Constitution.

The magistrate was of the view that the raising of the question as to the contravention of the applicant's fundamental rights was not frivolous or vexatious. He referred the question to the Court for determination.

The relief sought by the applicant was an order of permanent stay of the criminal prosecution....,.

The facts on which the determination of the question as to the contravention of the fundamental rights referred to in the order was based, were conveyed by oral testimony given by the applicant in the Magistrates Court. They were also conveyed through the affidavit deposed to by her on 12 January 2009 as well as by the arguments addressed to the Court by counsel on behalf of the applicant.

The truthfulness of the evidence conveyed by the means and methods referred to was not contested by the respondent.

HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU
Ruled By: GUVAVA J

It is already conceded that the defendant should have custody of the youngest child. The defendant has shown that she has been the caregiver in this relationship. Her evidence to the effect that she is the one who makes sure that the children are fed and clothed was not challenged ...

HB34-09 : NOKUKHANYA MOYO vs ROBERT MOYO
Ruled By: BERE J

The plaintiff's evidence about the formation of Ronoe Enterprises (Private) Limited went unchallenged in the record of proceedings. It was only when the defendant was giving his own testimony in court that he attempted to offer some feeble challenge to the plaintiff's evidence in chief. That did not portray the ...

The plaintiff's evidence about the formation of Ronoe Enterprises (Private) Limited went unchallenged in the record of proceedings.

It was only when the defendant was giving his own testimony in court that he attempted to offer some feeble challenge to the plaintiff's evidence in chief. That did not portray the defendant in good light.

It is through cross-examination of a witness that one's evidence is put to the test. The defendant failed to do so and the plaintiff's version must therefore be regarded as eminently probable.

The court was left in no doubt that Ronoe Enterprises (Private) Limited bore its origins to the industry of the plaintiff. She indeed was the brains behind it.

Despite this, however, the plaintiff did not portray herself as a selfish character. She acknowledged that when the defendant joined her in cross-border trading he brought in additional capital which she could not vividly remember in detail but said was probably half of what she had injected into the business herself at the time of its inception. The plaintiff could have easily denied the contributions made by the defendant but she did not. Such was her credibility.

After failing to challenge the plaintiff's testimony through cross examination, the defendant went on a ruthless attack of the plaintiff when he gave his evidence-in-chief. The defendant portrayed the plaintiff as having started as a vegetable vendor before he eventually roped her as a co-director in Ronoe Enterprises (Private) Limited.

How ironic!

The court had difficulties accepting the version as told by the defendant. His tongue was filled with hate language and was determined to portray the plaintiff as someone who had contributed virtually nothing, or insignificantly, into the formation of Ronoe Enterprises (Pvt) Ltd. The defendant attributed the formation of this company to himself.

The difficulty with the defendant's evidence was that he had allowed the plaintiff to leave the witness box without challenging her version hence the plaintiff's explanation remained intact.

HH49-10 : HENRY NYOKA vs JENNIFER MUREZA
Ruled By: MAVANGIRA J

The plaintiff issued summons for the ejectment of the defendant from House No.14 Msasa Park Drive, Msasa Park, Harare. The basis of the plaintiff's claim is that he is the sole owner of the immovable property.

He avers that upon the termination of an unregistered union between him and the defendant, the defendant, who had resided at the said premises during the subsistence of and on the basis of the unregistered customary union, refused to vacate the plaintiff's house and remains in unlawful occupation thereof.

The defendant counterclaimed for a fair division and distribution of all the assets which the parties acquired during the subsistence of their unregistered customary union.

The basis, as amended, of the defendant's counter-claim is that the nature of their customary union was such that it formed a tacit universal partnership and should thus be governed by General Law as opposed to Customary Law. The defendant further avers that in the event that customary law governs the proprietary interests of the parties the plaintiff would be unjustly enriched should he retain as his sole property the assets acquired through the joint and complementary efforts of the parties during the subsistence of their union. It would also cause an injustice to the defendant who contributed both directly and indirectly to the acquisition of the movable and immovable property.

The defendant's claim regarding the immovable property known as Stand No.700 Chadcombe Township, Salisbury Township, commonly known as House No.14 Msasa Drive, Msasa Park, Harare, is that it be shared equally between the two parties with each party getting a fifty percent (50%) share. She also has an itemized proposed distribution of the movable property.

An amended joint pre-trial conference minute dated 9 September 2009 and signed by both parties' legal practitioners records the following as the issues referred for trial:

“1. Whether or not the following movable property should be shared between the parties -

(a) 5 door frames.

(b) 1 window frame.

2. What percentage of the value of House No.14 Msasa Park Drive, Msasa Park, Harare should be paid to the defendant before she vacates the property?”

It also records the following admissions:

“(a) Both parties admit that a tacit universal partnership existed during the subsistence of their union.

(b) Both parties accept and admit that an order for the distribution of their movable property be made in accordance with the settlement contained in the 'minutes of settlement' dated 18 August 2009 and filed of record.”

A document headed 'Minutes of Settlement Conference' dated 9 September 2009 and signed by both parties' legal practitioners records and itemizes the movable assets that the parties agreed ought to be awarded to each party and this will be reflected in the court's order.

It also records that the parties failed to agree on how to share five door frames and one window frame.

It records that both parties agreed that House No.14 Msasa Park Drive, Msasa Park, Harare should be distributed and shared between the two of them. It records that the parties agreed that the immovable property was valued at USD45,000. It also records that the parties agreed that the defendant should vacate the property upon being paid her share therein. It records that the plaintiff's stance was that the defendant's share in the immovable property does not exceed eight percent (8%) of its aforesaid agreed value while the defendant's stance was that her share is 40% of the agreed value. It also records that this issue remained unresolved by the parties.

It is clear, from a perusal of the amended joint pre-trial conference minute, that the parties came to an agreement that a tacit universal partnership existed during the subsistence of their unregistered customary law union. It appears that it is on that basis that they proceeded to negotiate and agree on the distribution of the movable assets as listed in their 'Minutes of Settlement Conference'.

It is noted that this is so despite the stance taken by the plaintiff, in his pleadings, particularly in response to the defendant's counterclaim wherein he disputed that there was a tacit universal partnership between them and further contended that the defendant had no claim to the property which he claimed was all acquired through his single-handed efforts and without any contribution from the defendant. It is also noted that it is on the same date when this agreement was reached that the defendant's amendment to her counterclaim was filed so as to plead tacit universal partnership or unjust enrichment in the alternative.

In view of the agreement between the parties, I shall proceed to determine the defendant's counterclaim on the basis of the principles applicable to tacit universal partnerships.

The Outstanding Movable Property...,.

The defendant also said that a headboard and dressing table in the spare bedroom had been omitted when the parties agreed on the sharing of movable assets should be awarded to her.

In her counter claim, the defendant gave a detailed list of household goods and effects as well as a proposal as to how these ought to be shared. The list includes a bedroom suite which she had proposed should be awarded to herself but which the parties eventually agreed, during their “settlement conference”, should be awarded to the plaintiff. It also includes a bed regarding which she had made no proposal as to who it should be given to but which eventually the parties also agreed should be awarded to the plaintiff. The list also includes the said “headboard and dressing table in the spare bedroom”. She had proposed that these be awarded to the plaintiff. It is noted, however, that these items were not dealt with when the parties reached agreement as recorded in the “minutes of settlement conference”.

They were omitted.

It appears, therefore, that the plaintiff's complaint that the defendant's claim should fail as she had not amended her pleadings to indicate that she was claiming these items for herself is misconceived and ought to be disregarded....,.

The defendant's contention that she listed these items in her counterclaim but that they had not been distributed is not challenged or disputed.

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a)...,.

(b)...,.

(c) Whether the Frankfurt judgment is contrary to natural justice because of the failure to serve court process properly or at all....,.

Service of Court Process

A foreign judgment will not be recognised or enforced where it is shown, on a balance of probabilities, that it was obtained contrary to the rules of natural justice: see VAN WINSEN, CILLIERS & LOOTS: The Civil Practice of the Supreme Court of South Africa (4th ed. 1997)…,.; Corona v Zimbabwe Iron & Steel Co. Ltd 1985 (2) SA 423 (TkA)…,.

In particular, although a mere procedural irregularity will not debar recognition, there must have been reasonable notice of the proceedings to the persons affected and adherence to the audi alteram partem principle: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2 …,.

The defendant herein avers that it was not properly served with legal process instituting KFW's claim in the Frankfurt court.

However, this averment is clearly belied by the certified translation of the Frankfurt court's ruling (at p.5), wherein it is explicitly stated that the defendant was served with the Complaint on 10 April 2005, and, having been required to answer the Complaint within seven (7) weeks, did not give any indication of its willingness to defend within that time limit.

There is nothing in the papers to counter this position.

It follows that the defendant has failed to establish, on a balance of probabilities, any fundamental violation of the rules of natural justice such as to warrant the non-recognition of the Frankfurt judgment.

HH173-10 : TAMBUDZAI MAFUSIRE vs LEWIS GREYLING and ELGREY INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

DamagesThe next issue for determination revolves on the measure of damages, if any, that are due to each party.The plaintiff abandoned her claim for the following damages:(a) Hospital, x-rays, and other related expenses;(b) Orthopaedic surgeon's costs;(c) Charges for towing the damaged motor vehicle;(d) Costs of replacing spectacles; and(e) Value of ...

Damages

The next issue for determination revolves on the measure of damages, if any, that are due to each party.

The plaintiff abandoned her claim for the following damages:

(a) Hospital, x-rays, and other related expenses;

(b) Orthopaedic surgeon's costs;

(c) Charges for towing the damaged motor vehicle;

(d) Costs of replacing spectacles; and

(e) Value of the groceries lost in the accident.

She however persisted with her claim of:

(a) US$10,000 in respect of damages for pain, shock, suffering and loss of amenities;

(b) US$5,000 in respect of future medical expenses; and

(c) US$9,000 being the pre-accident value of the motor vehicle.

The defendant abandoned his counter-claim for special damages.

He persisted with the following counterclaim:

(a) USD40,000 for pain and suffering and loss of amenities;

(b) USD1,000 for future medical expenses; and

(c) USD4,000, being the pre-accident value of the second defendant's vehicle....,.

Plaintiff's claim

It is not in issue that the plaintiff sustained serious injury to the knee and ankle requiring surgery. She was hospitalized at Westend Hospital for four days and received treatment during that period. She was attended to by Dr Owen Senzai Makoni, an orthopaedic surgeon. She sustained an open dislocation of the left patellar with abrasions on the patellar femoral cartilage. The right knee was bruised together with the left side of the neck and chest. The surgeon attended to these injuries in theatre.

On 19 August 2007, the surgeon compiled a report which he produced in court.

He concluded that the plaintiff had a nasty permanent scar on the left knee and would develop secondary to post traumatic osteo-arthritis of the left knee and ankle joints and would require a total knee replacement in the future. He assessed her permanent disability at 7 and a half percent for the knee joint, 7 and a half percent for the ankle joint, and 5 percent for permanent scars, giving a total disability of 20 percent. He concluded that the plaintiff would have endured severe pain soon after the accident but the pain would subside with time.

The plaintiff testified that she still experienced pain on the left knee when climbing stairs or walking for considerable distances. She can no longer do some of the household chores she used to do and can no longer kneel or jog. At the time of the accident she had abandoned formal employment as an accountant and was into horticulture. Although she had workers who did the work, she used to move around her plot supervising their work. She can no longer move around with ease and this has forced her to return to formal employment as an accountant.

The defendants accepted the plaintiff's degree of permanent disability of 15 percent for the knee and ankle joints. They however disputed the 5 percent awarded for a scar on the knee.

I am persuaded by the submissions by the defendants to discount the 5 percent disability.

Dr Makoni was unable to justify how he arrived at that degree of disability. He conceded that whilst the other degrees of disability, totalling 15 percent, were arrived at based on the Workmen's Compensation Schedule, the 5 percent was not. In his opinion, the assessment was justified because it disfigured the plaintiff in that she could no longer wear short skirts.

The plaintiff did not state, in her evidence, that the scar precluded her from wearing short skirts. It is therefore not clear on what basis the doctor arrived at his conclusion.

Further, I had the benefit of the evidence of Dr Vera, the first defendant's orthopaedic surgeon.

He confirmed Dr Makoni's evidence that scarification was not classified as a disability under the Workmen Compensation Scheme. He testified that a percentage would be awarded for scarification in very special circumstances where the scarification can constitute a set back in the achievement of one's profession. He gave the example of a model. The other special circumstance was where the scarification results in interference with motion of a joint in which event the Workman's Compensation Schedule gives a percentage of what the scar does to movement of the joint as opposed to appearance. In such a case, the doctor would be considering how the disfigurement contributes to disability or might give rise to pain and restricts or affects motion.

The explanation by Dr Vera was very enlightening.

The plaintiff testified that she suffered severe pain soon after the accident and required medication to control the pain. She now occasionally suffers from weather pain but has not seen the need to consult her doctor as the pain usually goes away on its own without medication. Presently, her pain and suffering cannot therefore be said to be severe. The last time that she visited her doctor for medical attention in connection with the injuries was in November 2007. Her latest visit to the doctor, just before the trial commenced, was merely in the furtherance of the prosecution of her claim and not for medical attention.

It appears to me, in view of the cases that the plaintiff referred me to, the claim for pain and suffering and loss of amenities in the sum of US10,000 is excessive.

As observed earlier, in Reyneke v Mutual & Federal Insurance Co. Ltd 1991 (3) SA 332 (W), the plaintiff in that case was awarded damages for pain and suffering and loss of amenities in the total sum of ZAR56,000 for 100 percent disability. The plaintiff's disability is nowhere near the pain and suffering and loss of amenities suffered by that plaintiff. If one were to use the average exchange rate of the US dollar and rand of about 1:7 (as cited in the November 2007 Reserve Bank Daily Interbank Exchange Rate produced by the plaintiff or the estimate of 1:8 used by the defendants in their closing submissions), the award in Reyneke v Mutual & Federal Insurance Co. Ltd 1991 (3) SA 332 (W) would come to about US$7,467 for a person reduced to a vegetative state.

The plaintiff is still pursuing her professional career as an accountant despite her 15 percent disability, which is about a sixth of the disability in Reyneke v Mutual & Federal Insurance Co. Ltd 1991 (3) SA 332 (W).

I am cognisant of the fact that each case is determined on its own merit and an award cannot be arrived at with mathematical precision. I am inclined to award the plaintiff the sum of US$1,000 for pain and suffering and loss of amenities.

Defendant's counter-claim

The first defendant sustained a neck injury, fractured ribs, fracture of the right talus, fracture of the right 5th metacarpal base, blunt abdominal trauma.

He testified that he has developed a permanent limp and a permanent flattened talus. He is a tobacco farmer and is thus required to inspect his crops on foot and can no longer do so as he now finds it difficult to walk because his tendons no longer supported his right foot neither could he ride a motor bike. He was a sportsman but can no longer run or swim because of the leg injury.

He testified that, like the plaintiff, the time he last visited his doctor in connection with his injuries was in November 2007 (six (6) months after the accident). At the time of the hearing he was still in pain.

Dr George Vera, an orthopaedic surgeon, testified that he attended to the first defendant after the accident. On 12 March 2008 he examined an x-ray taken of the defendant's ankle and concluded that he required further surgical attention. In the medium term, the first defendant would require mild pain killers. However, in the long term, he would require stronger ones. The first defendant would develop degenerative osteo-arthritis requiring surgical relief. The doctor testified that the ankle is a weight-bearing joint and subject to high stresses. The injury to the ankle was therefore serious. He assessed the defendant's permanent disability to be 25 percent.

The first defendant submitted that his own damages would be proportional to those awarded to the plaintiff. He submitted that the award of US$10,000 for the plaintiff was excessive given that the plaintiff had suffered 15 percent disability and he had suggested that the plaintiff be awarded US$500.

The plaintiff did not challenge Dr Vera's assessment of the first defendant's degree of disability or that the first defendant has endured pain and suffering and loss of amenities....,.

The defendants did not dispute that the plaintiff had suffered 15 percent permanent disability....,.

Future Medical Expenses

Plaintiff's claim

Dr Makoni testified that the knee replacement can be done locally and would cost almost US$10,000 consisting of:-

(a) Surgeon fees US$1,500;

(b) Anaesthetist US$800;

(c) Prosthesis US$2,000;

(d) Assistant's fee US$150;

(e) Hospital fees about US$5,000....,.

Dr Makoni maintained, in his evidence, that the plaintiff would require a knee replacement in the future as her condition would not improve as cartilage does not naturally generate itself. The plaintiff testified of the challenges that she now faces because of the injury to her knee.

All this was not seriously challenged by the defendants.

Dr Makoni had estimated that the medical expenses would be in the region of $10,000. The plaintiff claimed US$5,000. I am of the view that the claim by the plaintiff is reasonable given Dr Makoni's estimate.

Defendant's counter-claim

Dr Vera explained that the amount of US$1,000 claimed by the first defendant would only cover expenses such as consultation fees, x-rays, and pain relief medication in the short term. The surgeon confirmed the need for future medical expenses but was not certain of the exact nature of the future surgical relief.

The plaintiff did not make any closing submissions regarding the first defendant's claim for future expenses. I therefore take it that the first defendant's entitlement to these damages and the quantum thereof are not challenged

I am therefore satisfied that the first defendant has established his counterclaim for future expenses in the sum of US$1,000.

HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS
Ruled By: CHATUKUTA J

The plaintiff issued summons on 23 July 2007 claiming the following relief:“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:1. Chimbuya.2. Magwirokona.3. Mavhengere.4. Bwangundoga.5. Mupandasekwa.6. Gwenhamo.7. Shumbayaonda.(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the ...

The plaintiff issued summons on 23 July 2007 claiming the following relief:

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya 17. Kuvengashe

3. Kufandada 18. Rima

4. Zingoni 19. Mutukwa

5. Chatikobo 20. Gowo

6. Musinazano 21. Chirudumwa

7. Chihava 22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema 24. Wushe

10. Magwirokona 25. Bgwango

11. Tsungirai 27. Vushangwe/Rushangwe

12. Zishiri 26. Tirivahera

13. Mutodzaniso 28. Gwenhamo

14. Hapanyengwi 29. Chivendera

15. Tavareva 30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

View Appeal
HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MTSHIYA J

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-

“(a) Payment of the sum of US$750,000.

(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.

(c) Costs of suit.”

The background to the relief sought can briefly be narrated as follows:-

The plaintiff is a manufacturer and supplier of exclusive range of cables for the transmission and distribution of energy and communications involving entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel-One.

The plaintiff's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In October 2004, the plaintiff approached the defendant for assistance. The defendant was then operating a foreign currency auction system. Through that system, the defendant made available, each week, from 25% of export proceeds, an amount of foreign currency for which commercial banks would submit bids for their customers. On the basis of those bids, allocations would then be made to the highest bidder(s).

In line with the auction system, on 24 October 2004, the defendant, through its Governor, informed the plaintiff, that, if it (plaintiff) submitted bids to the auction, the defendant would ensure that it (plaintiff) succeeded to the extent of US$150,000 per week to enable it to pay for essential inputs in its operations.

That process was indeed put into place on a weekly basis as from 14 January 2005 up to June 2005.

This was a special arrangement where the plaintiff would, instead of placing a bid, it would merely be advised, through a telephone call, each week, from the defendant's officials, that, the said allocation of US$150,000 was ready. All the plaintiff was required to do, in turn, was to pay the Zimbabwe dollar equivalent within 24 hours. The plaintiff would then, in turn, transfer, through a Commercial Bank, the requisite Zimbabwean dollar amount and details of the foreign suppliers to be paid in foreign currency (i.e from the US$150,000 allocated to the plaintiff).

The allocation of US$150,000, was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the plaintiff until the end of July 2005.

The allocation system was continued in August 2005 resulting in the plaintiff making three transfers of undisputed payments in Zimbabwe dollars for the equivalent of the amount of US$750,000 - now being claimed by the plaintiff.

The payments were, in each case, accompanied by details of external creditors to be paid by the defendant.

Notwithstanding the payment of the equivalent amount in Zimbabwe dollars by the plaintiff, the defendant has, to date, not forwarded the foreign currency to the plaintiff's external creditors or refunded the plaintiff with the said amount of US$750,000. In fact, the plaintiff has already, through other sources, paid its suppliers.

The above, in brief, explains why the plaintiff has resorted to this court action claiming the said amount of US$750,000.

With both the plaintiff and the defendant having amended their pleadings at the pretrial conference, it was agreed that the issues for trial were:-

“(a) Whether defendant is contractually obliged to pay plaintiff the sum of US$750,000;

(b) Whether defendant is estopped from denying its obligation to pay plaintiff the sum of US$750,000;

(c) Whether defendant's tender to repay the sums of Zimbabwean currency paid to it by plaintiff is a proper tender which plaintiff is obliged to accept.”

At the commencement of the trial, I indicated to both parties that, given the fact that both parties were generally agreed on what transpired, my view was that the matter could be determined through merely hearing arguments from both sides.

The plaintiff was, however, opposed to that approach and preferred to lead evidence. The defendant then also adopted the same stance.

I therefore had no option but to allow the parties to lead viva voce evidence.

The plaintiff's only witness, Mr E.W. Turina (Turina) said he was the Chief Executive Officer of the plaintiff at the time of the purchase of US$750,000 from the defendant. He had, however, left the employ of the plaintiff in June 2006.

Mr Turina's evidence was, in the main, a confirmation of what was already contained in the pleadings.

He said due to the scarcity of foreign currency, the plaintiff had reached an agreement with the defendant whereby bids from the plaintiff would be given preferential treatment.

He confirmed, that, the information on the allocations was done telephonically and that once an allocation (ie the initial US$150,000 rising to $250,000) was made, the plaintiff was required to pay the equivalent in Zimbabwe dollars within twenty-four hours (24) hours.

The arrangement had worked well from January 2005 until August 2005 when the defendant failed/neglected to disburse US$750,000 to the plaintiff's customers/suppliers despite the fact that the plaintiff had paid the defendant the equivalent in Zimbabwe dollar as per the standing arrangement.

The Zimbabwe dollars had been paid in three transfers on 1, 11, and 19 August 2005. This was to cater for the increased weekly allocation of US$250,000.

He said when the first allocation was not released, after payment of the equivalent Zimbabwe dollars, the plaintiff had asked for an explanation but was promised that the money would be released.

The same had happened with respect to the two subsequent payments.

After failure by the defendant to forward payment to its suppliers, the plaintiff had then borrowed money from other sources so as to meet supplier requirements. This had led to the withdrawal of invoices from the defendant, which invoices were produced as exhibits 1, 2 and 3.

Mr. Turina confirmed, that, before he left the employ of the plaintiff, in 2006, negotiations for settlement were in progress and that the defendant had indicated that it would secure the US dollars at a later stage for the plaintiff or reimburse the plaintiff in Zimbabwe dollars.

He said some of the discussions were not directly conducted with him.

He had, however, later learnt, that, the defendant was not going to pay the US$750,000.

It was his view, that, once the plaintiff effected payment of the equivalent Zimbabwe dollar amount of the allocated foreign currency “the contract was completed.”

He said the company had opted to wait because the Zimbabwe dollar had become worthless.

Mr Turina stuck to his story under cross-examination.

The defendant also called only one witness, a Mr B. Musoso (Musoso).

The witness said he was employed by the defendant as its Head of Treasury Operations. He said the Treasury Division was responsible for settlement and payment of allocations. The auction system, he said, was run by a separate unit which was responsible for the allocations. The role of his department was to communicate with companies and advise them on foreign exchange rates.

He was aware of a list of special allotees who received payment on a weekly basis. These were companies considered key to the national economy. These included the plaintiff.

He said there were thirty-six (36) companies on the special list and the allocations were made by the auction unit. Some of these were Boc Gases, Quest Motors, Unilever, Olivine Industries, Dunlop, National Oil Company of Zimbabwe (NOCZIM) and the fertilizer companies.

Mr. Musoso said there were no formal contracts with the companies on the special list.

The role of his department was to effect payment when funds were made available.

The witness said his department dispatched foreign exchange quotations to various interested companies. The quotations were meant to enable companies to mobilize the necessary funds before allocations were made. He said payment to allotees depended on instructions from what he called “the front office” and the availability of foreign currency.

He said the non-availability of foreign currency explained why the three payments made by the plaintiff, in August, were not honoured.

Mr. Musoso said when the auction system ceased, in August 2005, there were many unpaid beneficiaries from the special list and the defendant decided to reimburse them in Zimbabwe dollars.

He said he had heard that the plaintiff wanted reimbursement in US dollars instead of the Zimbabwe dollar. It was his evidence, that, in reimbursing beneficiaries, the defendant did not take into account the devalued value of the Zimbabwe dollar because there was no financial obligation: “We were just returning whatever had been paid,” he said.

Under cross examination, Mr. Musoso maintained, that, the successful execution of the arrangement relied solely on the availability of foreign currency.

In addition to Mr. Musoso's evidence, the defendant also relied on responses by Dr G. Gono (Governor of the Reserve Bank of Zimbabwe) and Patience Aisam (Manager Compliance–Treasury Division) to the plaintiff's interrogatories filed on 29 September 2009.

Both responses to interrogatories were filed on 17 November 2009.

In his response, Dr Gono stated that he had, upon the specific request and representations from the plaintiff, advised that he would endeavour to source foreign currency for the plaintiff in the amounts mentioned (i.e initially US$150,000 rising to US$250,000).

He said this was in recognition of the strategic role played by the plaintiff in the national economy.

There was, however, no formal binding agreement.

He said he had indeed been advised that “the plaintiff had made payments totaling Z$13,535,110 being the quoted equivalent at the auction rate of US$750,000”, now being claimed by the plaintiff.

However, he said “due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency not only to the plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

It was his evidence that his officers had informed him, that, during August 2005, no disbursements were made to any applicant for foreign currency under the auction system.

In response to the plaintiff's interrogatories, Miss Patience Aisam confirmed, that, from “14 January 2005 to August 2005, she would, on a weekly basis, telephone or instruct that plaintiff be telephoned advising it that its application for foreign currency allocation had been approved.”

She also confirmed, that, the approved amounts were US$150,000 per week from 14 January 2005 to mid-June 2005. Thereafter, the amount was increased to US$250,000 per week….,.

Counsel for the plaintiff submitted that the plaintiff's case was clear and did not warrant argument.

He submitted, that, the undisputed evidence of Mr. Turina had confirmed, that, upon approaching the Governor of the Reserve Bank, Dr Gono, for assistance in obtaining foreign currency, the plaintiff had been granted the status of a permanently successful bidder at the weekly foreign currency auctions.

The plaintiff, with that status, did not need to place bids at the auction, but, was merely telephonically advised of the agreed weekly allocations.

The practice, it was submitted, had been successfully operational from January 2005 to July 2005.

Payment(s) requirements were availed to the plaintiff who complied at all times by effecting the payment(s) of the equivalent amount of the foreign currency in Zimbabwe dollars.

The only condition was that “foreign currency will only be released after receipt of Zimbabwean dollars.”

Counsel for the plaintiff submitted, that, after the foreign currency amounts were not paid, in August 2005, the Deputy Governor, Mr Ncube, of the defendant, offered the plaintiff the choice of having the money paid by the plaintiff refunded in local currency or waiting for the foreign currency to be made available. That evidence was not contradicted....,.

The promise made by the Deputy Governor of the defendant was not disputed in evidence.

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

It is common cause that the second respondent prima facie is a duly registered company in terms of the Companies Act [Chapter 24:03]. I say prima facie because the applicant did not contest this point although the certificate of incorporation attached as Annexture 'A' to the second respondent's opposing affidavit ...

HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF
Ruled By: NDOU J

The first defendant testified that he bought the property from the second defendant sometime in 1999 for the sum of $450,000=. He paid a deposit of $50,000= and the balance was settled after the completion of the cession process. He said that he was indeed informed that the property was registered in the names ...

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.

The first application, Case No. HC5186/05, concerns an order for specific performance while the second one, Case No.5264/05 seeks an order for the provisional liquidation of Zambezi Paddle Steamer (Pvt) Ltd (hereinafter called ZPS).

On 7 June 2006, at the request of the parties, I postponed the hearing to 13 July 2006.

When the hearing resumed, Mrs Wood, for Turner and Sons (Pvt) Ltd, applied for the forced recusal of Mr de Bourbon, for Dobrock (Pvt) Ltd, on the basis that he had been an arbitrator between these parties in 1994.

She referred to Pertisilis v Calaterra & Anor 1999 (1) ZLR 70 (H) as authority for the proposition that the legal practitioner who acted for a former client is precluded from representing a different client in circumstances where a conflict of interest is likely to arise between the former and present client. SMITH J set out the basis of the rule…, as being that:

“A legal practitioner who represents the adversary of his own client in litigation would clearly be violating his or her duty of loyalty and the common law rules against conflict of interest.”

He proceeded to survey American, English, South Africa, and Zimbabwean decided cases on the point at pages 74C–77F.

While he held that neither a partner nor his employee could represent an opponent of a former client in order to fulfill the adage that justice must not only be done but that it must manifestly and undoubtedly be seen to be done, he nevertheless permitted a partner to represent the opponent on the basis that there was no allegation that the other partner had acquired information from the papers in the possession of his firm which could be used to the former client's disadvantage.

Mrs Wood contended, that, justice will not be seen to be done if Mr de Bourbon was allowed to represent Dobrock (Pvt) Ltd, especially on the liquidation case, where Turner and Sons allege a deadlock has manifested itself between the joint shareholders, a fact found by Mr de Bourbon, as arbitrator, to exist in his 25 June 1994 ruling.

She further foresaw a need to call Mr de Bourbon on the deadlock issue in the liquidation case.

Mr de Bourbon countered by contending that he did not represent either Dobrock (Pvt) Ltd or Turner and Sons (Pvt) Ltd but acted in a quasi-judicial capacity.

He knew of no law which debarred him from representing either party as long as he had not possessed confidential information which could be used to the detriment of his client's adversary. He referred to Benmac Manufacturing (Pvt) Ltd v Angelique Enterprises (Pvt) Ltd 1988 (2) ZLR 52 (H).

In that case, Mr de Bourbon accepted a general retainer from Angelique Enterprises in a matter in which that company was involved in a dispute with Albco. He was, at that time, already seized with a retainer for Benmac Manufacturing in its contest with Angelique Enterprises, supra. He had accepted the retainer in the matter against Albco after assurance from his instructing attorney that there would be no conflict of interest.

It was accepted, in that case, by that attorney, that, he had not come into contact with any confidential information which would prejudice Angelique Enterprises in its contest with Benmac. The Law Society, and two other counsel, had absolved him of any impropriety, but, the Managing Director of Angelique Enterprise, Mr Holland, was not satisfied with their findings and advice.

REYNOLDS J held, that, Angelique Enterprises had not shown that Mr de Bourbon had in fact become acquainted with information that could be used to its detriment which would result in real mischief and real prejudice if he continued to act for Benmac Manufacturing. He did express his reservation on a legal practitioner acting for and against his client in the same or different matters.

Mr de Bourbon submitted that he had not acquired any information that he could possibly utilize to the prejudice of Turner and Sons (Pvt) Ltd and that his impartiality in 1994 had not been impugned by any of the parties.

I went through the arbitral award.

It concerned and dealt with the share of each joint shareholder in the extra costs, which were above the original cost of construction of the large commercial houseboat which Zambezi Paddle Steamer (Pvt) Ltd (ZPS) was to own.

Turner and Sons (Pvt) Ltd was not able to show what information Mr de Bourbon accessed which could prejudice its present defence and claim. If anything, I was satisfied that the arbitral award stands on its own and there would be no need to call the arbitrator to testify on it.

I accordingly dismissed the application for the forced withdrawal of Dobrock (Pvt) Ltd's counsel.

I also postponed the hearing sine die and granted, by consent, authority to Turner and Sons (Pvt) Ltd to file a further affidavit in response to Dobrock (Pvt) Ltd's supplementary affidavit.

I further reserved the question of costs in the provisional liquidation claim to which these additional affidavits pertained.

I eventually set down the matter for hearing on 1 November 2006. I directed that the parties argue the specific performance case first and thereafter proceed to argue the liquidation case.

On 12 October 2005, Dobrock (Pvt) Ltd filed the court application for specific performance against Turner and Sons (Pvt) Ltd and two others. It sought the following order:

“1. That, the respondents, jointly as well as severally, the one paying the other to be absolved shall forthwith undertake all that is necessary and required, including making all payments and completion and signing all documents required in order to procure transfer, without delay, by first respondent to applicant of first respondent's entire shareholding in Zambezi Paddle Steamer (Pvt) Ltd.

2. That, immediately upon registration of transfer in the share register of Zambezi Paddle Steamer (Pvt) Ltd (ZPS) applicant shall pay to first respondent the balance of the purchase price for the said shares; such balance being the sum of $138 million.

3. That, the respondents, jointly as well as severally, the one paying the other to be absolved, shall pay the costs of this application on the scale of legal practitioner and own client.”

The application was served on the three respondents on 13 October 2005 (see Peter Dobson's opposing affidavit of 9 November 2005 for which this averment was accepted by Antony Turner on 2 December 2005).

The three respondents filed their opposition papers on 27 October 2005 and prayed for the dismissal of the applicant's case with costs on the higher scale and made reference to the liquidation claim, case number HC5264/2005.

Case number 5264/05 is a court application brought on 17 October 2005 by Turner and Sons (Pvt) Ltd against Zambezi Paddle Steamer (Pvt) Ltd and Dobrock (Pvt) Ltd. It prayed for the winding up of Zambezi Paddle Steamer (Pvt) Ltd and that a liquidator be appointed in the following terms:

“1. That, first respondent, Zimbabwe Paddle Steamers (Pvt) Ltd be provisionally wound up pending the granting of an order in terms of paragraph 3 hereof or the discharge of this order.

2. That, Mrs Theresa Grimmel, of KPMG Chartered Accountants, Mutual Gardens, 100 The Chase, Emerald Hill, Harare be appointed as provisional liquidator of first respondent company with the powers set out in section 221 of the Act.

3. Any interested party appear before this court sitting at Harare on (a date sixty days from the date of the order) to show cause why an order should not be made placing first respondent's company in liquidation and order that the costs of these proceedings all be costs of the liquidation.

4. That, this order shall be published once in the Government Gazette and once in the Herald Newspaper. Publication shall be in the 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 at Messrs Byron Venturas & Partners, 2nd Floor Tanganyika House, Corner 3rd Street/Kwame Nkrumah Avenue, Harare.

5.2. Serve on the applicant, at the address given above, a copy of any affidavit which he files with the Registrar of the High Court.”

The application for provisional liquidation was served on the respondents on 17 October 2005, who entered opposition on 31 October 2005 and filed, on that day, their opposing affidavit by fascimile. The actual opposing affidavit was filed on 9 November 2005.

These two applications were consolidated on the bases that the principal parties were the same and that the fundamental issue in each matter related to the ownership and management control of Zambezi Paddle Steamer (Pvt) Ltd (ZPS).

The pleadings in these consolidated matters are voluminous.

The founding, opposing, answering and supplementary affidavits are reinforced by an assortment of attachments which consists of the Memorandum of Association of Zambezi Paddle Steamer (Pvt) Ltd, electronic mail between the parties, and other documents raised by various people who worked for the parties in various capacities.

I have read all these documents.

It is apparent from these documents that there are areas in which the parties agree and others where they are at variance.

It is appropriate that I first deal with the facts as I have determined them to be from the wealth of information that is set out in the pleadings in both these cases.

The preliminary details on the formation of Zambezi Paddle Steamer (Pvt) Ltd (ZPS), on 3 April 1989, are set out in detail by Anthony Turner (Antony) in his founding affidavit in the liquidation matter, case HC5264/05 (Case No.2). Those details were admitted to by Peter Jameson Dobson (Peter) in his opposing affidavit in that case.

Turner and Sons (Pvt) Ltd agreed with Dobrock (Pvt) Ltd, in 1988, on a joint venture to construct and thereafter operate a 'Mississippi River Boat' for commercial use on Lake Kariba.

The concept of the “Southern Belle” was created by Turner and Sons (Pvt) Ltd who approached Dobrock (Pvt) Ltd.

Dobrock (Pvt) Ltd agreed to become its joint partner in the venture and to provide working capital and investment in the project.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated as the special purpose vehicle through which the large commercial houseboat, MV Southern Belle, would be owned and operated.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated in terms of the Companies Act [Chapter 24:03] with an issued share capital of $30,000 divided into 30,000 shares of $1 each fully paid up. Each of the two joint partners subscribed to 15,000 shares of $1 each in Zambezi Paddle Steamer (Pvt) Ltd.

The joint shareholders agreed that Turner and Sons (Pvt) Ltd would first build a model of the craft, and, thereafter, carryout the necessary construction work and interior design of the vessel at a contracted price. Dobrock (Pvt) Ltd would source both local and foreign raw materials for this construction. The total costs of both these operations would be the total cost of the vessel and would be met equally by the joint shareholders.

The agreement was reduced to writing and signed on 31 May 1991.

The arbitral award, of 15 June 1994, indicated that the vessel was completed in 1994. The original construction price was set at $5,950,000.

The issue before the arbitrator centred on the amount by which the original contract price increased, which issue he resolved.

Zambezi Paddle Steamer (Pvt) Ltd was run for 18 months, from the completion of the vessel in 1994, by Turner and Sons (Pvt) Ltd. Dobrock (Pvt) Ltd thereafter took over the management control of Zambezi Paddle Steamer (Pvt) Ltd and appointed a Managing Director, Adamson, to run it.

It was common cause, that, from 2000, the tourism industry went into decline and this affected the bottom line of the MV Southern Belle operations of Zambezi Paddle Steamer (Pvt) Ltd.

There is evidence, in the form of electronic mail exchanged between Peter Jameson Dobson and Anthony Turner, the principal shareholders in Dobrock (Pvt) Ltd and Turner and Sons (Pvt) Ltd, respectively, between 19 January 2003 and 7 April 2004, that, the joint shareholders were prepared to sell their respective shareholdings in Zambezi Paddle Steamer (Pvt) Ltd to the right suitor - if one came along.

On 4 May 2004, Zambezi Paddle Steamer (Pvt) Ltd Managing Director presented a report which highlighted the difficult circumstances the commercial houseboat operations were in. It required urgent maintenance and refurbishment to attain its former glittering glory.

On 6 June 2004, Anthony Turner indicated his decision to sell his shares in the commercial houseboat to Peter Jameson Dobson. This was a clear pointer to his unwillingness to inject funds for maintenance and refurbishment of the houseboat.

On 18 June 2004, Peter Jameson Dobson indicated his willingness to inject $250 million, for this purpose, provided his shareholding in Zambezi Paddle Steamer (Pvt) Ltd increased by 10% while that of Anthony Turner was reduced by the same percentage. He suggested that the houseboat was valued at approximately $3.5 billion. He followed up this by another e-mail of 25 June 2004.

He received a response on that same day (contained in an email wrongly dated as 6 June 2004) from Anthony Turner in which he offered him his shareholding in Zambezi Paddle Steamer (Pvt) Ltd for the sum of $250 million.

Peter Jameson Dobson duly accepted the offer.

He came to Harare, and, during the period 28 June to 14 July 2004, discussed with Anthony Turner on the terms of payment of Antony's entire shareholding.

He agreed to procure payment where and when Anthony Turner wanted.

The purchase price was agreed at $250 million. It was to be paid by Peter Jameson Dobson into the account of Antony's daughter, Jenny, in the United Kingdom, the bank account details of which he received.

The following day, after the terms of payment had been agreed, Anthony Turner requested part payment of the purchase price in local currency.

Peter Jameson Dobson alleged that he made out cheque payments to Chitekeshe of $115 million and to Vretto of $25 million, as part payment, a total of $140 million which Anthony Turner used to buy a pick-up truck.

This averment was not disputed by Anthony Turner, yet, he maintained, in his other affidavits, that, he was paid $138 million and $112 million remained outstanding.

Peter Jameson Dobson, in his prayer, and in Mr de Bourbon's submissions on behalf of Peter's company, accepted that the outstanding purchase price was $112 million.

No cheques or proof of payment in the sum of $140 million was produced.

I am therefore prepared to hold, that, Peter Jameson Dobson paid $138 million and had an outstanding balance of $112 million.

Anthony Turner averred, in his opposing affidavit, that, he required £12,000 to import a new engine for the craft that he was building, known as the “Zambezi Trader”. This craft would not be in competition with the houseboat at all and he was building it for his own account with the moral support and blessing of Peter Jameson Dobson.

Peter Jameson Dobson agreed to pay this amount into his daughter's bank account in the United Kingdom.

He repeated this allegation in paragraphs 31 and 32 of his founding affidavit in Case No. HC5264/05.

This was to be in lieu of the balance of the purchase price of $112 million.

In Case No. 5264/05, in paragraphs 26 and 27 of his opposing affidavit, Peter Jameson Dobson did not respond to these averments in so far as they refer to the alleged mode of payment in foreign currency.

That payment was to be in foreign currency is clear from Peter Jameson Dobson's own founding affidavit.

In paragraph 18, he averred, that, even when he met Anthony Turner, per chance, at the Borrowdale Race Course, in November 2004, he reassured him, that, notwithstanding the fall in the value of the Zimbabwean dollar against the Pound Sterling, the amount outstanding as the purchase price remained £12,000 being the amount in pounds in July 2004.

The two gentlemen agreed, that, the accountant and company secretary of Zambezi Paddle Steamer (Pvt) Ltd, Paul Turner (Paul), a partner in Ernst and Young Chartered Accountants, would effect the share transfer and receive Anthony Turner's letter of resignation as a director therein.

There was a delay in the transfer of the shares which was occasioned by Paul Turner's attempts to structure a tax avoidance scheme for the benefit and at the insistence of Antony Turner.

I make this finding based on Antony Turner's deliberate failure to respond to Paul Turner's affidavit, which was filed in support of Peter Jameson Dobson's founding affidavit.

Appealed
SC14-19 : JUDITH ISHEMUNYORO (NEE MANDIDEWA) vs ANTHONY ISHEMUNYORO and TYNSERVE DISTRIBUTORS (PVT) LTD and THE REGISTRAR OF DEEDS and THE SHERIFF FOR ZIMBABWE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and ZIYAMBI AJA

It has already been noted that the first respondent did not put up any challenge to the appellant's case a quo. The consequence of this is that what the appellant averred in relation to how the immovable property in question was acquired, and who contributed what to its acquisition, remained undisputed. The same applies to ...

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of ...

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.

In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of House Number 360 Makusha Township, Shurugwi.

The plaintiff was the purchaser and D. Katerere was the seller.

In pursuance of that agreement, D. Katerere and himself attended at the offices of the second defendant and caused all rights, title and interest D. Katerere had in the property in dispute to be formally transferred and registered in the plaintiff's name. Thereafter, the plaintiff took occupation of the house as the new holder of such rights and interests in the house.

In 1986 he vacated the house to take occupation of a plot he had just bought in the same town. He left some people in occupation of the house. The proprietor of Popular Bakery, Mr Gokwe, who was his brother in-law, requested him to let some of his employees occupy the house. He acquiesced to this request.

Amongst the Popular Bakery employees who took occupation was Raphias Jokonoko, the first defendant's elder brother. They took occupation in 1986 when the plaintiff left. When, later on, the first defendant was employed by Popular Bakery, he also took occupation in the house together with his elder brother.

It was only in about January to June 2000 that the plaintiff said he discovered that the second defendant had formally transferred and registered his rights and interest in the property in the name of the first defendant.

Upon this discovery, he demanded that such transfer be reversed and that the house be transferred back into his names as the lawful holder of rights, title and interest in the house.

Both the first and second defendants did not accede to this demand hence this suit filed on 15 May 2002.

In this suit, the plaintiff's claim is for an order:

(a) Declaring him to be the lawful holder of all the rights, title, and interest in House Number 360 Makusha Township;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interests in House Number 360 Makusha Township, Shurugwi in the name of the plaintiff; and

(c) Costs of suit jointly and severally against the first and second defendant with one paying the other to be absolved.

The first and second defendants filed a joint plea in which they disputed the plaintiff's claim and entitlement to have the house transferred and registered in his name.

In their plea, the defendants denied that:

1. Dickson Katerere's rights, title, and interest in the property were ceded or transferred to and registered in the plaintiff's name.

2. The property in dispute was ceded by the second defendant to the first defendant.

3. The house in question is or ever was on home ownership scheme contending that Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

4. That the plaintiff acquired any title to the house in question.

The issues for determination were identified as:

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute;

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred or ceded to and registered in the plaintiff's name; and

3. Whether or not the plaintiff is entitled, at law, to the relief that he seeks.

The plaintiff gave evidence and called two witnesses, namely, Gertrude Nhendereko and Thomas Mandiamba. He also tendered into evidence a bundle of documents he relied on in his evidence.

The first defendant, thereafter, gave evidence. He also tendered a bundle of documents in support of his case.

From the evidence adduced in court, it was apparent that the house in question was, at one time, registered in the name of Dickson Katerere. It was also apparent that the nature of the lease that the plaintiff alleged D. Katerere had was not an outright purchase.

The plaintiff's evidence was to the effect that D. Katerere had a lease to buy agreement and it is this agreement that he took over.

On taking over, he filled in cession forms and lease to buy agreement forms at the second defendant's office. This was in 1981. The lease to buy forms he filled in were similar to the lease to buy agreement that the first defendant had as part of his bundle of documents titled “purchase/sale agreement conversion of rental accommodation into homeownership.” This form has three parties to it, being Shurugwi Town Council, as owner of the house, the Government, as the owner of the land onto which the house is built, and the purchaser.

In Hundah v Murauro 1993 (2) ZLR 403 (S)…, the court alluded to the fact that:

“Land in the high density suburbs belonged to the local authorities, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the 4th category of lodgers or dependants). They are:

1. Simple tenants under a lease agreement with the local authority or central government;

2. Tenants to buy under an agreement which permitted them to take title once the property was surveyed and the full price paid; and

3. Owners who graduated from category two in the fullness of time.”

In casu the plaintiff claimed that the house in question was under Category Two whilst the first defendant contended that it was under Category One.

It is pertinent to point out, at this stage, that, at the time the two defendants filed their joint plea up to the close of pleadings, they were represented by the same law firm.

On 6 October 2008, that law firm renounced agency in respect of both defendants. On 20 April 2009, a new law firm assumed agency on behalf of the first defendant.

This was after the defendants had both been served with the notice of set down for a pre-trial conference, and, in fact, this pretrial conference had been held on 31 March 2009. Only the first defendant was present at the pre-trial conference. The second defendant defaulted, or, at least, was not present. Equally, at trial, the second defendant was not represented.

Counsel for the plaintiff indicated, that, the second defendant indeed defaulted at the pre-trial conference and has not appeared to contest the plaintiff's claim since then.

The record before me is however silent on what happened when the second defendant defaulted at the pre-trial conference despite having been served with the notice of set down.

I now turn to the issues at hand.

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute

The plaintiff's evidence on the issue was to the effect, that, on 20 August 1981 he entered into an agreement of sale with Dickson Katerere in respect of House Number 360 Makusha Township, Shurugwi. The house was in D. Katerere's name and it was in a homeownership scheme. In that regard he referred to p2 of the bundle of documents, as the agreement of sale. The document is an uncertified photocopy. It reflects the parties to the agreement as CG Musoni and Dickson Katerere. It is dated 29 August 1981.

The main body of the document states that:

“C Musoni Matambo has paid Mr D. Katerere the sum of four hundred and forty eight dollars for house number 360 in Makusha, up easy Stereo Radiogram, two speakers $360. Total paid for the lot $808.”

The plaintiff confirmed that it was only him who appended his signature to the document.

As proof that the house in question was on the second defendant's homeownership scheme, the plaintiff referred to p1 of his bundle of document exh 5. This is a document containing a list of houses he contended were on the second defendant's home-ownership scheme. The house in question is number 6 on that list.

Apart from the house number, other details pertaining to this house included;

(i) Type - Up easy;

(ii) Purchaser - Dickson Katerere;

(iii) Date - 1 April 1980;

(iv) Purchase price - $980=25;

(v) Period of purchase - 5 years;

(vi) Monthly rent - $18=68;

(vii) Land value - $125=00; and

(viii) Monthly rent, service electricity - $33=06.

The heading/title of the list is hardly legible.

It was the plaintiff's evidence, that, after paying D. Katerere a total of $448 the two of them approached the second defendant with the intention of effecting cession. They indicated to the second defendant's officials that he had bought D. Katerere's rights and interests in the house so can the house now be registered in the plaintiff's name.

The second defendant's officials did not deny that the house was in D. Katerere's name. Their only query was that they should have approached the second defendant before entering into the purchase agreement so that D. Katerere's lease is cancelled first and the plaintiff would then enter into a fresh lease to buy agreement with the second defendant. The plaintiff said the second defendant's official he dealt with was one named Mr Nhubu. At no time was it ever said that D. Katerere was a mere tenant with no rights or interest to sell in the house.

Gertrude Nhendereko gave evidence next on this issue.

She indicated, that, as a resident of Shurugwi, she knew that the house in dispute was amongst houses that were for home ownership. She confirmed that exhibit 1(a) is indeed from the second defendant and it does confirm that the house in question was on the home-ownership scheme. She knew this as a resident of Shurugwi, and, later, as a councillor.

It was her evidence that she had known the plaintiff for a long time as a fellow resident of Shurugwi. At one time they lived in the same neighbourhood before the plaintiff moved into the house in question in 1981.

Apart from the above, most of this witness's evidence was based on reports she received from the plaintiff which is of no probative value.

The first time she came to know that there was now a problem with the house in question was in 2000 when the plaintiff came to the second defendant complaining about the manner in which the house in question had been registered in the first defendant's name when he had infact bought it from D. Katerere and had had it ceded to him at the second defendant's offices in 1981.

Gertrude Nhendereko said she got to know this as she was now a councillor with the second defendant and she was in the committee that was tasked with looking into such complaints and cases of double allocations.

As far as the nature of lease D. Katerere had, Gertrude Nhendereko could not be of much use as she had not seen the lease agreement between D. Katerere and the second defendant. The most she could do was to confirm, that, to her knowledge, the houses in question were for homeownership from inception. She also confirmed that most of the documents tendered by the first defendant were in the file pertaining to the house in question when this dispute came to light.

Further support of the nature of lease D. Katerere had, is gannered from the first defendant's documents.

For instance, on p15 of the first defendant's bundle of documents is a letter dated 7 June 1982. The letter is addressed to Dickson Katerere and was authored by JMN Nhubu. This JMN Nhubu was the second respondent's Township Superintendent. The letter reads in part:

“RE: HOUSE NUMBER 360 MAKUSHA BREACH OF CONTRACT

It came to the notice of council, late 1981, that you are no longer staying at the above house and that you have allocated the house to someone without council authority. Any efforts to get in touch with you have failed as we gather you had gone to Malawi.

I now say that you have breached the contract you entered into on 8 April 1980 to purchase the above house for homeownership purposes for over a period of five years. In pursuing my explanations, therefore, I quote para nine of the home ownership forms:

'Until title to the property has been granted to the lessee by government, the lesser shall not, without written consent of the council, let property or any portion thereof to any person nor without such consent shall any person other than the lease or his dependants occupy the same or any portion thereof.'”

Mr Nhubu made it clear the contract D. Katerera had entered with the second defendant, on 8 April 1980, was for the purchase of the property in question over a period of five years. The scheme was for home ownership and not mere tenancy.

Further correspondence between the second defendant and the Ministry of Local Government over this house and others further confirm that this was a lease to buy agreement on what is termed home-ownership scheme.

I am satisfied, beyond reasonable doubt, that, Dickson Katerere occupied this house on a lease to buy agreement. Such agreements, by their very nature, do not confer title or ownership to the lessee till the lessee has complied with all the terms of the contract or in the fullness of time.

In casu, there is no denying that D. Katerere had not met all the requirements.

The rentals towards the purchase price had not been paid in full.

The plaintiff confirmed, that, as at the time he bought the property, D. Katerere had not paid in full. The plaintiff was to take over payment of the rentals.

Title had therefore not passed to D. Katerere.

By virtue of entering into the lease to buy agreement D. Katerere had acquired certain personal rights and interests in the property but not title or ownership.

The concept of ownership entails that one has full title to the property. This was not so with D. Katerere.

It may also be noted, that, the evidence adduced, and the documents tendered into evidence, show that D. Katerere was not a mere tenant. As already alluded to, he had entered into a lease to buy agreement with the second defendant. That agreement gave him certain rights and interests that he purported to sell to the plaintiff.

He had no title to pass to the plaintiff.

One would say the sale was conditional on the second defendant granting its consent and accepting the plaintiff to step into the shoes of D. Katerere.

This brings me to the second issue, namely:

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred to and registered in the plaintiff's name

The plaintiff's evidence was to the effect, that, pursuant to the agreement of sale, D. Katerere and himself attended at the second defendant's offices with the intention of having D. Katerere's rights and interests ceded to him.

On their first visit, they met resistance from Mr Nhubu who indicated that they should have come to the second defendant before entering into the agreement. The second defendant would then have cancelled D. Katerere's lease before entering into a new lease with the plaintiff.

They left without filling in the necessary forms for cession.

He sought ministerial guidance as he believed Mr Nhubu's point of view was incorrect. Later, D. Katerere and himself were called back to the second defendant's offices. On this occasion, he was made to fill in and sign cession forms together with lease to buy agreement forms. He was given a copy of the cession forms. On the lease, he was told, that, those forms would be sent to the Ministry of Local Government for execution by ministry officials on behalf of the Government.

He was further advised that the process would take three to four years for the forms to be executed and returned.

He thus waited to no avail.

He nevertheless took occupation and continued paying the lease to buy rentals as per the agreement.

When asked to produce a copy of the cession forms, the plaintiff said he could not produce this copy as it was being kept by his late wife. Efforts to locate the forms since his wife's death have yielded nothing.

As regards payments towards the lease to buy agreement, the plaintiff produced some receipts showing some payments he made to the second defendant in respect of this house. He could not produce a lot of such receipts due to lapse of time and the fact “that the receipts were being kept by his late wife.” As with the cession form, he could not locate more of the receipts. Those that he produced do show that he indeed made some payment.

It was his further evidence that he continued making the payments till the five years period was up. He also remained in occupation of the house till 1986 when he moved to a plot he had bought within the same town. At the time he moved out he had made the full payment for the house.

Though the plaintiff could not produce most of the receipts and the cession forms due to the reasons he advanced, his evidence that he signed the cession form and the second defendant thus consented to him taking over from D. Katerere was largely unchallenged.

The second defendant, as the other party to the cession and lease to buy agreement, could easily have rebutted that evidence had it not been true. Equally, if the plaintiff had not paid the sums of money he claimed, the second defendant was better placed to rebut that.

The second defendant's default meant that the plaintiff's evidence in that regard went unchallenged.

The first defendant could not sustainably challenge the plaintiff's evidence or assertion as he was not privy to the agreement and was not even in the picture during the period in question.

The first defendant's contention, that the plaintiff's failure to assert his rights over the property for a long time while the first defendant occupied it casts doubts to the credibility of the plaintiff's version, is without merit.

If the first defendant seriously believed the plaintiff's version was not the truth, he could easily have called witnesses from the second defendant who were alleged to have dealt with the plaintiff during the period in question. These would have been better placed to rebut the plaintiff's evidence.

The first defendant also attempted to rebut the plaintiff's evidence by referring to events that occurred after the date of the agreement of sale and cession. In this regard, he referred to the second defendant's purported cancellation of D. Katerera's lease in 1982.

As already alluded to, that letter, of 7 June 1982, contradicts the defendants plea in which they contended that D. Katerere was a mere tenant and the house in question was never on a home ownership scheme. That letter confirms to the contrary.

In any case, by 7 June 1982, the plaintiff said he had already signed cession forms and the agreement of lease to buy at the second defendant's offices.

So, for all intents and purposes, at the time that letter was written, the house had been ceded to the plaintiff and no longer in D. Katerere's name. The second defendant did not avail itself to rebut the plaintiff's evidence in that regard.

I am of the view that the probabilities are that D. Katerera's rights and interest were transferred to and registered in the plaintiff's name.

The third issue is:

3. Whether or not the plaintiff is entitled to the relief that he seeks?

The plaintiff's claim was for an order:

(a) Declaring him to be the lawful holder of all rights, title, and interest in House Number 360 Makusha Township, Shurugwi;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interest in House Number 360 Makusha Township, Shurugwi; and

(c) Costs of suit.

The plaintiff's evidence was to the effect, that, he discovered that the property had been unlawfully registered in the first defendant's name in the year 2000 when he went to the second defendant's offices to inquire about the price for the land as he had long paid up for the house.

From his own words, therefore, he had not paid for the land, or, at least, he was not certain that he had paid for the land hence the inquiry.

The standard lease to buy agreement, which he said is similar to the one he signed, states the parties to the agreements as three: Shurugwi Town Council, as the first part and owner of the dwelling; the Government of Zimbabwe, as the second part and owner of the land on which the dwelling is built. The dwelling and the State land together are referred to as the “property”: the third part is the purchaser.

The first defendant contended that the non-joinder of the State, through the Minister responsible for Local Government and National Housing, in this suit is fatal to the plaintiff's relief.

The plaintiff only cited two parties with a contractual interest in the property but left out the owner of the property who has real rights. The relief seeking a transfer of the rights, title and interests to the property is not competent if it does not compel the owner of the property. In support of this posture, the first defendant's counsel cited the case of Rose v Arnold & Ors 1995 (2) ZLR 17 (H).

The plaintiff, on the other hand, argued, that, failure to cite the Minister responsible for Local Government and National Housing was not fatal to the plaintiff's claim.

The plaintiff's counsel argued that the second defendant is a form of decentralized government which was established under the Rural Districts Councils Act [Chapter 29:13] with powers to sue and be sued in its own name: see section 12 of the Rural Districts Councils Act.

Section 71(2) of the Rural Districts Councils Act provides for the derogation of administrative functions.

In this regard, counsel cited the case of Reddy v Town Council for the Borough of Kloof 1964 (3) SA 280 wherein the court held, that, once authority has been delegated, it is a misjoinder to cite the superior controlling body as the delegated officer is responsible for the exercise of the delegated authority on its own.

The plaintiff's counsel argued that, in casu, the second defendant was endowed with delegated authority by the Minister of Local Government and National Housing to handle the allocations, leases, sales and transfers of the houses and stands within its area.

Further, the second defendant is the authority that is actually responsible for the transfer and registration of rights, title, and interest in the houses within its area.

The relief being sought is therefore capable of being granted and effectively enforced as against the second defendant alone.

Whilst the plaintiff's argument was forceful, counsel could not cite any authority or piece of legislation where the Minister granted the second defendant authority to pass title on the land.

A reading of the Standard lease to buy agreement that was tendered by the first defendant shows that the second defendant owned the dwelling whereas Government owned the land on which the dwelling was built.

In its administration of its area, the second defendant took upon itself certain responsibilities when entering into the lease to buy agreement. The second defendant can be ordered to fulfil those responsibilities.

Whilst the lease agreement cites three (3) parties, the second defendant and Government are, in fact, joint sellers in as far as the second defendant owns the house whilst Government owns the land.

The second defendant was given overall responsibility in the leasing out and selling of the house and the land on which the house is built. The house is leased/sold on the second defendant's own behalf whilst the land is sold on Government's behalf. It is the second defendant that must account to Government for the State land. The Government's side seems to be a mere formality of granting title when Council has fulfilled its part and made such a request in favour of its lessee or purchaser.

This is apparent from the fact that the consent required for one to obtain.cession or to deal with the property in any other way is that of the second defendant. No where does the standard agreement refer to the need for consent by Government.

For instance, clauses 11 and 20 make it clear that the consent is that of the second defendant.

Clause 11 states that:-

“Until title to the property has been granted to the purchaser by the government the purchaser shall not, without the prior written consent of the council, let the property or any portion thereof to any person nor without such consent shall any person other than the purchaser or his dependants occupy the same or any portion thereof.”

Clause 20 states that:-

“The purchaser shall not part with the possession of the property or any part thereof nor cede nor assign nor hypothecate this Agreement or any rights hereunder to any person without the previous consent in writing of the council.”

In terms of the agreement, the term property is used to mean the dwelling owned by Council and stand (land) owned by Government.

It is apparent, therefore, that, in granting consent over the property, Council will be granting consent over State land as well. That is as Council was empowered by Government.

The Government's role, as reflected in clause 18, is that it 'agreed to grant title in accordance with the provisions of clauses 16 and 17.'

These two clauses deal with the purchaser paying agreed sums to Council or satisfying Council that payment has been guaranteed.

Clause 16 states that:-

“The purchaser may, on payment of any principal outstanding and any other charges payable in terms of this agreement to the Council, including the charges referred to in clause 18 hereof, which charges may be paid in instalments in such amounts as maybe agreed to be Council, and, on payment by the Council to the government of the sum of…, due to it for the land and the sums due in terms of clause 18 hereof receive title to the land.”

Clause 17 states that:-

“Notwithstanding the provisions of Clause 16 hereof title to the property may be granted to the purchaser in terms of this clause provided the purchaser satisfies Council that:-

(i) He has been granted a loan to be secured by mortgage bond over the property; and

(ii) The principal and interest outstanding, and any other charges payable in terms of this agreement, have been paid or guaranteed to the satisfaction of the Council against issue of the title.”

Clearly, though two parties are cited as sellers, it is Council that is saddled or clothed with all the administrative functions. Council virtually exercises all the functions of the seller after which Government grants title as a formality. It is Council that passes the purchaser as deserving of title and Government merely caps the purchaser.

The first defendant also contended, that, the plaintiff did not obtain prior written consent of the second defendant before entering into a sale agreement with D. Katerere and so such agreement is void ab initio.

The issue of absence of written consent at the time parties enter agreement of sale has been a subject of a number of court decisions. The point is now settled.

In Mukarati v Mkumbu 1996 (1) ZLR 212 (S), when faced with such a scenario, the court held that:-

“…, the agreement between the parties was not exactly void. The seller could validly contract to sell but could not pass title without the Council's approval. This made the contract a conditional one with an implied term that the sale was subject to the consent of the Council.

This cast an enforceable duty on the seller to seek the Council's approval. If the approval were given, transfer could take place. If it were refused, the contract would be unenforceable until such time as the seller was in a position to pass title. The buyer would then have to elect either to seek restitution or to wait until the property was no longer encumbered and transfer could be effected without the Council's consent.”

In David Tobaiwa v Clemence Kaseke and 2 Ors HH74-06 MAKARAU JP…, after quoting EBRAHIM JA in Mukarati v Mkumbu 1996 (1) ZLR 212 (S)…, went on to say that:

“I would venture to suggest, at this stage, and following the remarks of EBRAHIM JA, that, it appears to me legally possible for a person in the position of the first respondent to enter into a contract of sale not only of the property itself as suggested by EBRAHIM JA, but, of the rights, title and interest that he has under the suspensive agreement of sale and which rights will, in due course, mature into real rights in respect of the property. Thus, it is my view that those personal rights that are conferred by the suspensive agreement of sale are capable of being sold and bought without the prior consent of the local authority concerned.“

In casu, D. Katerere could validly sell his rights and interests in the property to the plaintiff conditional on obtaining Council's consent.

The plaintiff's evidence was to the effect, that, such consent was later obtained as Council approved of the cession of the property and had it registered in his name and he was made to sign the lease to buy agreement forms that he was made to believe would be sent to the Ministry of Local Government.

This occurrence was not challenged by the second defendant.

If that took place, albeit after initial resistance by Mr Nhubu, it means the property was ceded to the plaintiff and the plaintiff acquired all the rights and interests that D. Katerere had in the property in 1981.

The first defendant's challenge of this evidence was without foundation.

The plaintiff's claim, and basis thereof, were brought to the attention of the second defendant as the other party to the cession documents. Despite filing a joint plea with the first defendant, the second defendant defaulted and has not sought to further challenge the plaintiff's claim.

The plaintiff's evidence was thus unchallenged.

The first defendant sought to rely very much on the absence of documents in the file pertaining to this house on the agreement between D. Katerere and Council and also the absence of documents showing that the second defendant approved cession to the plaintiff.

Unfortunately for the first defendant, the keeper of those documents who would have testified to the existence or non-existence of such documents at any time in the past, decided not to come to testify against the plaintiff.

The plaintiff clearly indicated that he completed and signed all the necessary documents at the second defendant's offices.

Gertrude Nhendereko also alluded to the absence of such documents in the file but proceeded to say that there were a lot of double allocations of houses, and, in some instances, documents were missing from the files. She attributed the double allocation and the missing documents to corruption within the second defendant.

It may also be noted, that, from the first defendant's own evidence, there was something amiss on this house. It was the first defendant's evidence that his elder brother and himself moved into this house in about March 1987. They found the house vacant. It is also evident, from a letter dated 7 June 1982…, that, as of June 1982, Mr D. Katerere was no longer in that house. D. Katerere, had, instead, put someone else whom Council wanted moved out.

There is an unexplained vacuum in the occupation and registration of this house in the period from when D. Katerere moved out to 1987 when the first defendant said he took occupation with his brother.

The vacuum is in the file pertaining to this house and kept by Council. No explanation was offered by the first and the second defendants for the vacuum.

The plaintiff, on the other hand, testified that there was never a vacuum as he took occupation from D. Katerere in 1981 soon after obtaining cession. He remained in occupation of the house till 1986. In 1986 he moved to a plot he had bought in the same town. On moving out, he left some people who included the first defendant's elder brother Raphius Jokonoko. Raphius Jokonoko was, at the time, employed by Popular Bakery.

The proprietor of Popular Bakery, Mr Gogwe, who was the plaintiff's brother in law, had requested the plaintiff to allow his employees to occupy the house.

Being related to Mr Gogwe, and since he had paid in full, the plaintiff said he did not demand rent from Mr Gogwe or his employees but that they pay service charges.

It was whilst Raphius Jokonoko, and another employee of Popular Bakery, were in occupation of the house that the first defendant joined them when he started working for Popular Bakery.

As far as the plaintiff was concerned, the house was occupied by employees of Popular Bakery at the request of Mr Gogwe.

Mr Thomas Mandiamba gave evidence on this aspect.

He was, at the time, employed by Popular Bakery. He confirmed the plaintiff's version on how Raphius Jokonoko and other employees of Popular Bakery came to occupy the house in question. Mr Mandiamba indicated that he was the one sent by Mr Gogwe to the plaintiff with a request for accommodation for Popular Bakery employees.

As a result of the discussion between Mr Gogwe and the plaintiff, two bakery employees, who included Raphius Jokonoko, were given occupation of the house with Popular Bakery paying service charges.

That version was, as with the plaintiff's evidence, virtually unchallenged.

If, therefore, the plaintiff acquired rights and interests in the property from D. Katerere and thereafter had the house ceded to him, it is clear the plaintiff has a claim against the second defendant.

Council, as owner of the dwelling, can be ordered and directed to register the dwelling in the name of the plaintiff as the lawful holder of rights and interests in the dwelling.

Council, as administrator of State land, can be ordered and directed to do/take such steps as are provided for in the lease to buy agreement to ensure that Government is appraised of the plaintiff's status as the holder of rights and interests in the dwelling built on Stand 360 Makusha Township and thus entitled to be granted title per Government's undertaking in terms of clause 18 of the lease to buy agreement. It will then be up to Government to grant title.

In a bid to stave off the plaintiff's claim, the first defendant contended that he has better title to the property and so the plaintiff should not succeed.

In that regard, he referred to a lease to buy agreement that he entered into on 17 December 2002. He also referred to several payments he made in furtherance of that agreement.

That agreement is titled “PURCHASE/SALE AGREEMENT CONVERSION OF RENTED ACCOMMODATION INTO HOME OWNERSHIP: MEMORANDUM OF AGREEMENT.”

It is common cause, that, as at the time the plaintiff's summons were issued, the first defendant claimed he occupied the house as a mere tenant.

In paragraphs 1-3 and 1-4 of their plea, the defendants denied that the house was ever on home-ownership scheme and challenged the plaintiff's to prove that:

“1.3 That the house in question is or ever was on home ownership scheme. Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

1.4 That the plaintiff acquired any title to the house in question from Dickson Katerere who was a mere tenant.”

After having pleaded in that manner, the first defendant said he was offered the property for home ownership in November 2002 and the lease to buy agreement was entered into on 17 December 2002.

The first defendant's attempt to raise a new defence of better title acquired after summons has its own hurdles to overcome.

Order 20 Rule 135(3) of the High Court rules states that:

“Where any ground of defence arises after the defendant has delivered a plea, the defendant may, within twelve days after such ground of defence has arisen, or at any subsequent time, by leave of the court, file a further plea setting forth the same.”

When the further ground of defence arose, the first defendant should have amended his plea to encompass the new ground.

In Chiviya v Chiviya 1995 (1) ZLR 201 (H)…, ROBINSON J had this to say about such failure to amend:-

“Accordingly, before setting down his application for a decree of divorce, the applicant should have attended to amend his declaration in this respect since it is not competent to lead evidence on a material matter which has not been pleaded.”…,.

The plaintiff's counsel properly submitted, that, with the closure of pleadings and joinder of issues, on 17 June 2002, the matter became litis contestatio.

Litis contestatio occurs when pleadings in a matter are closed: see Government of South Africa v Ngubane 1972 (2) SA 601 (A)…, and Jankowiak & Anor v Parity Insurance Co. Ltd 1963 (2) SA 286 (W)…,.

When litis contestatio is reached, the property in dispute becomes res litigiosa, and cannot be alienated: see Exparte Deputy Sheriff, Salisbury; Inre Doyle v Salgo 1957 R & N 530 (SR Scholtens (1958) 75 SALJ…,.

In casu, it is clear, that, although the second defendant, had, in their joint pleas, said that the first defendant was a mere tenant in respect of the property in dispute, the second defendant went on to execute a Purchase/Sale Agreement with the first defendant on 17 December 2002 in respect of the same property.

When the defendants entered into the agreement they were fully aware these proceedings had reached litis contestatio and the property had become res litigiosa.

Accordingly, the defence of better title based on non-pleaded defence and events after the closure of pleadings cannot avail the first defendant.

The first defendant's contention that the matter was not litis contestatio because the lease to buy was entered with the State is no saviour.

It is the second defendant, that, according to the first defendant, invited him to enter into the agreement. Clearly, in my view, both defendants intended to defeat the plaintiff's case.

They cannot be allowed to succeed in this regard.

The issue as to who had better title must be decided as at the time summons were issued and pleadings were closed.

After a careful analyses of the evidence, and the nature of the relief sought, it is my view, that, the second defendant cannot pass title. The standard lease to buy agreement clearly shows it is Government that grants title upon the second defendant confirming it is satisfied with payment or arrangements for payment by lessee.

In the same vein, the second defendant can be ordered to do that which is in its power to enable title to be granted. This includes registering the property in the plaintiff's name pending the issuance of title by Government and confirming with Government that the plaintiff has met the conditions of the lease to buy agreement.

Accordingly, judgment is hereby entered for the plaintiff's as follows:

1. The plaintiff is hereby declared to be the lawful holder of all rights and interests in House No.360 Makusha Township, Shurungwi.

2. The second defendant is hereby ordered and directed to formally register all rights and interests in House No.360 Makusha Township, Shurungwi in the name of the plaintiff.

3. The second defendant is hereby ordered and directed to do all such things and sign all such documents as are necessary to cause rights, title, and interest in Stand 360 Makusha Township, Shurungwi to be transferred to the plaintiff.

4. The first and second defendants to pay the plaintiff costs of suit jointly and severally with one paying the other to be absolved.

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS
Ruled By: MANGOTA J

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:(a) The President;(b) ...

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.

The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:

(a) The President;

(b) The Vice-President;

(c) The Secretary-General; and

(d) Three other committee members.

In or about 24 February 2014, the deponent to the applicant's affidavit, one Simbarashe Nyemba, and members of his National Executive Committee, were removed from their positions and replaced by the fourth respondent and his team of committee members.

Mr Nyemba, and members of his committee, made an urgent chamber application to the court. The application was filed under case number HC1603/14. The court granted a provisional order to the applicant. It, in effect, directed that paragraphs 3, 4, 5 and 6 of the letter which the second respondent addressed to the seventh respondent on 24 February 2014 should not be executed until proceedings which pertained to case number HC1603/14 had been completed.

The court mentions, in passing, that the proceedings in question are still pending determination.

The present urgent chamber application was premised on the allegations that, on 14 February 2015, the first and second respondents visited Chiredzi in the company of persons who, it was claimed, were from the office of the fifth respondent. The visitors, the applicant averred, appointed the third and fourth respondents as members of the applicant's Executive Committee. The fourth respondent, it said, was appointed president of the applicant's governing body.

It, accordingly, made every effort to move the court to prohibit the fourth respondent and the latter's committee members from representing the applicant until case number HC1603/14 has been conclusively dealt with.

The applicant attached to its application Annexure D. The annexure is a letter which the fifth respondent (the Minister of Public Service) addressed to the applicant's secretary-general. The letter is erroneously dated 16 January 2014. It should have read 16 January 2015 which the applicant said was the correct date.

In the letter, the fifth respondent prohibited the applicant from deducting union dues from the seventh respondent (Tongaat Hullet Zimbabwe).

The fifth respondent stated that, from reports which had been submitted, she had reasonable cause to believe that the funds of members of the applicant were being abused and mis-appropriated. She said she would appoint an investigator who would look into the affairs of the applicant. She prohibited the applicant's national executive committee from using the funds for any purpose other than what the investigator or she herself would have directed.

The fifth respondent copied her letter to, among other authorities, the seventh respondent.

The applicant appealed to the Labour Court against the decision of the fifth respondent. It did so on 22 January 2015 under case number LC/MS/03/15.

The appeal is pending before the Labour Court.

The first, second, third and fourth respondents opposed the application and so did the seventh respondent. The fifth and sixth respondents did nothing about the application. They remained uncommitted to the matter notwithstanding the fact that they were served with the application.

The Sheriff's returns of service showed that both respondents were served on 19 February 2015. Their attitude to the application, therefore, remained unknown. It was, in the premise, assumed that they would abide by the decision of the court as they did not appear in person or through legal representation.

The first four respondents raised some preliminary issues after which they proceeded to deal with the substance of the application.

The seventh respondent adopted a pattern which, to all intents and purposes, was similar to that of the first, second, third and fourth respondents....,.

The applicant stated that the fourth respondent and his team of office bearers were appointed and not elected.

The fourth respondent stated to the contrary.

He stated that his office bearers and him were elected into the applicant's National Executive Committee on 14 February 2015. He attached to his opposing papers Annexure B. The annexure was a copy of the minutes of the meeting to which members of the applicant were invited to, among other matters, pass a no-confidence vote on Mr Nyemba and members of his National Executive Committee and replace them with the fourth respondent and his team of office bearers. He also attached to his papers annexure D which was a register of the workers who attended the meeting of 14 February 2015.

The meeting which ushered into office the fourth respondent's National Executive Committee was convened in terms of section 9.2 of the applicant's Constitution. The section reads, in part, as follows:

“A Special Annual General Meeting may be called whenever desired by a member of the Executive Committees….,.

The business of the special meeting shall be confined to the matter that necessitated its calling.” …,.

It was in the spirit of the section that the third respondent, who was a member of the outgoing committee, called the meeting of 14 February 2015. The attendees of the meeting were registered in the attendance register, Annexure D.

The applicant did not make any reference to the annexure let alone challenge its contents.

The court, therefore, accepted that persons who were mentioned in the annexure attended the meeting, passed a no-confidence vote on Mr Nyemba and his team and replaced the latter with the fourth respondent and his office bearers.

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.

Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated in the district of Salisbury. The piece of land is called Stand Number 295, Northwood Township 2 of Sumbeni. It was held under Deed of Transfer number 5022/2008. It is commonly known as Number 116 Twickenham Road, Mount Pleasant, Harare [“the Mount Pleasant property”].

On 9 December 2013 one Rajendrakumah Jogi [Jogi] purchased the property. He took title in the property on 22 November 2017 following its sale to him. It is now registered under Deed of Transfer number 4766/17 which Deed records the name of the purchaser as the new owner of the same.

The second applicant was, and still is, the owner of a certain piece of land which is situated in the district of Salisbury. It is called Lot 12 of Lot 15 Block C of Avondale. It is held under Deed of Transfer number 1657/89. It is commonly known as Bath Mansions Flats. It is at Number 32, Bath Road, Avondale, Harare [“The Avondale property”].

The abovementioned two properties lie at the centre of the main application, HC12074/16 and the urgent chamber application, HC2012/18.

The applicants filed the main application on 28 November 2016. They successfully moved the court to interdict the first and second respondents from dealing in any way with the two properties and/or from coming within 100 metres of the same. The interim order which the applicants obtained in the mentioned regard is dated 2 December 2016.

On 22 February 2018 l heard the matter which related to the confirmation or discharge of the provisional order of 2 December 2016. Having heard submissions from both parties, I reserved judgment.

Before the ink which related to my hearing of the main application had dried up, the applicants filed the urgent chamber application, HC2012/18. They did so on 5 March 2018. They moved the court to restore to them possession of the Mount Pleasant property and to interdict:

(a) The first (Bulchimex GMBH Import Export Chemikalien und Produkte (Pvt) Ltd), second (Sarah Hwingwiri) and third (Rajendrakumar Jogi) respondents from selling, or, in any way, alienating or encumbering the Mount Pleasant property.

(b) The fourth respondent (Registrar of Deeds) from facilitating or making further transfer of the Mount Pleasant property which is held under Deed of Transfer number 4766/17 in favour of Rajendrakumah Jogi to anyone.

(c) All the respondents from facilitating or transferring title in the Avondale property which is registered under Deed of Transfer number 1637/89 to anyone.

(d) The fifth respondent (the Sheriff of Zimbabwe) from evicting occupants of the Avondale property.

Because title in the Mount Pleasant property had already changed hands from the first applicant to Mr Jogi when the application was filed, I disallowed paragraphs 1, 2 and 3 of the applicants draft order.

I allowed paragraphs 6 and 9 of the draft order with some amendments. I directed that the word Lease which appeared in paragraph 6 should be deleted. I further directed that the phrase or 116 Twickenham Drive, Mount Pleasant, Harare which appeared in paragraph 9 should also be deleted.

I, accordingly, allowed paragraphs 4, 5 and 6 as amended, 7, 8, 9 as amended and paragraph 11 to remain as the interim relief for the applicants.

The interim order was issued with the consent of all the parties.

My reading of the record satisfied me that HC2012/18 was urgent.

The applicants stated that they were not aware that their Mount Pleasant property had been sold and transferred to someone. They said they became aware of that fact on 1 March 2018 when the deponent to their founding affidavit received a call from one Kudzai Kupambana, the caretaker of the property. He submitted that Mr Kupambana informed him that the Messenger of Court was carrying out eviction at the premises. He said he immediately notified the applicants' legal practitioners of the development. These and him, he said, visited the Mount Pleasant property. He averred that the legal practitioners and him later established that it was not the Messenger of Court but the Deputy Sheriff who had carried out the eviction.

The supporting affidavit of Mr Kubambana was on all fours with that of the deponent of the founding affidavit especially on the portion which related to the latter's eviction.

The applicants filed the urgent chamber application a day after their discovery of what had occurred. They most certainly treated the matter with the urgency which it deserved.

The first, second and third respondents opposed the urgent chamber application. They, however, and to their credit, consented to the interim relief which I granted to the applicants in its amended form. They did so in the interests of progress. They agreed with me that the situation had to be arrested. All the parties shared the view which the court had. The view was that the situation of the parties' case did not have to get out of hand whilst judgment in the main application, HC12074/16, was being awaited.

Two characters stand out clearly in both applications. These are;

(1) One Borislav Boynov (“Borislav”); and

(2) One Sarah Hwingwiri (“Sarah”).

Borislav Boynov is the deponent to the founding and the answering affidavits of the applicants. He is so for the main application as well as the urgent chamber application.

Sarah Hwingwiri is the second respondent in both applications. She is the deponent to the affidavits of the first and the second respondents in both applications.

Sarah Hwingwiri and one Ivan Pantchev (“Ivan”), a Bulgarian who is domiciled in Bulgaria, registered the first respondent in terms of the laws of Zimbabwe. They are both its Directors.

Borislav Boynov's averments, in the main application, were that the applicants own the Mount Pleasant and the Avondale properties. He said they also used to own a certain piece of land which is situated in the district of Salisbury called Lot 9 of Lot 9 of Glen Lorne measuring 4,047 square metres [“the Glen Lorne property”]. This, he alleged, was sold by Sarah Hwingwiri and Ivan Pantchev for $150,000 and transferred into the name of the purchaser.

The sale, he stated, was with the authority of the applicants.

He submitted that Sarah Hwingwiri and Ivan Pantchev did not transmit the proceeds of the sale to the applicants. He successfully moved the court to grant to the applicants the provisional order which prohibited the first and the second respondents from dealing, in any way, with the remaining two properties as well as from coming within 100 metres of the same. He, in the final order, prayed that:

(i) The first applicant be declared the owner of the Mount Pleasant property;

(ii) The second applicant be declared the owner of the Avondale property; and

(iii) The first and second respondents be declared to have no ownership rights or interests in either property....,.

They submitted that the first applicant and the first respondent were two separate legal entities.

They stated that the annexures which the respondents used to support their case were forged documents. They insisted that the annexures which were purportedly deposed to outside Zimbabwe violated section 3 of the High Court [Authentication of Documents] Rules, 1971. They contended that the documents/annexures were not notarised.

They moved the court not to allow the respondents to use them as evidence which supports the latter's case....,.

My first observation relates to the resolution which the respondents passed.

The resolution confers authority on Sarah Hwingwiri to depose to their opposing affidavits. It raises more questions than it provides answers to them. It appears at page 114 of the record. The respondents called it Annexure A.

A reading of the annexure with what Sarah Hwingwiri stated in the first paragraph of the opposing affidavit shows the effort and the extent to which the respondents went to mislead the court. She stated:

“I, the undersigned, SARAH HWINGWIRI, do hereby make oath and state as follows:

1. I am the second Respondent in this matter and I have been authorised to depose to this affidavit on behalf of the 1st Respondent by virtue of a company resolution attached hereto as Annexure A….,.”…,.

The annexure, it is evident, is not that of the first respondent who allegedly authorised Sarah Hwingwiri to depose to the opposing affidavit. It is that of the first applicant.

The question which arises is; who, between the first applicant and the first respondent, authorised Sarah Hwingwiri to depose to the opposing affidavit?

The respondents left that critical issue not only unanswered but also unresolved.

I mention, in passing, that the first applicant could not have authorised Sarah Hwingwiri to depose to the opposing affidavit. It could not do so when it sued the first respondent and her. It could not, in other words, approbate and reprobate, and, at the same time, remain relevant to this application.

The first applicant and the first respondent have similar names. There is, however, a marked difference between the two legal entities. The difference lies in that the first respondent's name ends with the phrase (Private) Limited.

The second question which arises is whether it was by design or by accident for the respondents to have cited the name of the first applicant in their resolution.

The probabilities are that it was more by design than it was by accident. The citation was deliberate. It aimed at confusing issues especially in the mind of unsuspecting readers of the resolution.

It is my considered view that Sarah Hwingwiri must have realised the folly of the resolution of 29 November 2016 (i.e. Annexure A). It was for the mentioned reason, if for no other, that she refrained from repeating the same in all subsequent affidavits which she filed in opposition to any application which related to the two properties.

She, for instance, stated, in the opposing affidavit which she filed on 3 January 2017, as follows:

“I, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:

1. I am the second respondent and a director of the first respondent. I am therefore authorised to depose to this affidavit on my behalf and on behalf of the 1st Respondent.”

She stated, in her opposing affidavit to the urgent chamber application, as follows:

“I, the undersigned, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:

1. I am the second respondent in this matter. I also have authority to depose this affidavit on behalf of the 1st Respondent by virtue of being its director.”…,.

Sarah Hwingwiri did not mention the person who authorized her to depose to the first of the above mentioned two affidavits. She produced no resolution which conferred authority upon her to act for the first respondent. All she said was that she was authorised to depose to the affidavit on behalf of the first respondent.

Sarah Hwingwiri stated, in so far as HC2012/18 was concerned, that she had the authority to depose to the affidavit on behalf of the first respondent by virtue of being its Director.

The correct position of the matter is that she could not confer any authority upon herself. She could not even do so in her capacity of Director of the first respondent.

It is a trite position of Company Law that a Director cannot confer authority upon himself or herself to act for, and on behalf of, the company on the basis that he/she is a Director of the same. If that was the case, then each Director would, at his/her whim, drag his/her company to court as he/she pleases. Such an undesirable development would run against the concept of good corporate governance which lies at the centre of any business enterprise as well as Company Law.

The respondents did not mince their words in their criticism of the applicants' case.

They indicated that the application was fatally defective for want of a resolution which authorised Borislav Boynov to depose to the founding affidavit. They drew the court's attention to the importance of the resolution which they said was/is a sine qua non aspect of motion proceedings.

They spoke eloquently on the matter. They referred me to a number of case authorities which stressed the importance of the resolution in an application.

Among the cases which they cited in their heads, and in support of the necessity for a resolution, was that of Madzivire & Ors v Zvaridza & Ors 2005 (2) 514 (S)…, which stated as follows:

“…,. A company, being a separate legal persona from its Directors cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle which the courts cannot ignore….,.

The fact that the first appellant is the Managing Director of the fourth appellant does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorising him to do so.

In Burstein v Yale 1958 (1) SA 768, it was held that the general rule is that Directors of a company can only act validly when assembled at a Board meeting.”…,.

The respondents also referred me to the case of Dendeuka v Paper Place (Pvt) Ltd HH195-11 in which BHUNU J …, made some incisive remarks on the need for a company resolution. The learned judge said:

“The position in our law is…, that a company, being a fictitious legal persona, cannot act on its own. There is therefore need for a company resolution to legalize and validate any company acts…,.”

The last case which the respondents were pleased to draw my attention to on the matter was that of Tapson Madzivire and 3 Ors v Misheck Brian Zvarivadza and 2 Ors HH 2005 wherein MAKARAU J…., stated:

“The fictional legal persona (i.e. a company) still enjoys full recognition by the courts. Thus, for any acts done in the name of a company, a resolution duly passed by the Board of Directors of a company has to be produced to show that the fictional persona has authorised the act.”…,.

The applicants complied with the principles which were enunciated in each of the above cited three cases. They produced two resolutions which conferred authority on Borislav Boynov to depose to their affidavits.

The respondents, on the other hand, produced no resolution.

They, for a start, produced what purported to be the first respondent's resolution. This was, however, not such. They produced no resolution at all for the subsequent affidavits which they filed in opposition to the main and the urgent chamber applications.

It is accepted that Sarah Hwingwiri is a Director of the first respondent. She could not, however, confer authority upon herself to speak for, and on behalf of, the first respondent. She required a resolution for the purpose. She required the input of Ivan Pantchev for any resolution which she would have produced to remain valid. Ivan Pantchev's views were left out of the equation on the issue of the respondents' resolution.

The third question which arises from the above analysed matter is whether or not the respondents are properly before the court.

They passed no resolution authorizing Sarah Hwingwiri to speak for them. The first respondent is, by virtue of the stated fact, out of court.

I am pleased to refer the respondents to Macfoy v United Africa Co Ltd (1961) 5 ALL ER 1169 (PC) 1172 in the mentioned regard. The remarks of LORD DENNING, which he made in the case, are relevant to their situation. The learned LORD JUSTICE said:

“If an act is void, then it is a nullity. It is not only bad but incurably bad….,. It is automatically null and void without more ado….,. You cannot put something on nothing and expect it to stay there. It will collapse.”

Apart from the invalidity of the respondents' resolution, no evidence was produced to show that the first respondent's two Directors – Ivan Pantchev and Sarah Hwingwiri – sat down in some room to pass any resolution. Ivan Pantchev is a Bulgarian who is domiciled in Bulgaria. Sarah Hwingwiri, as a Zimbabwean, stays in this country.

The applicants' unchallenged statement was that Ivan Pantchev came to Zimbabwe at their instance. They said he left for Bulgaria and returned to Zimbabwe at the end of November 2013 to sell the Glen Lorne property. He, according to them, returned to Bulgaria after the sale. They submitted that he has not returned to Zimbabwe again.

The respondents did not challenge the above-mentioned averments of the applicants. They remained mute on the same.

By not challenging the applicants' assertions, the respondents admitted that Ivan Pantchev did not come to Zimbabwe. He, in other words, did not return to Zimbabwe after he had sold the Glen Lorne property. He, in short, did not sit down with Sarah Hwingwiri to pass a resolution authorising her to depose to the opposing affidavits.

The long and short of the above described matters is that the first respondent is not before the court. It is out of court. The opposing papers are, therefore, those of Sarah Hwingwiri alone.

The matter remains between the applicants and Sarah Hwingwiri. It excludes the first respondent in toto.

Annexure C, which the applicants attached to the application, shows that the first applicant was, until 22 November 2017, the owner of the Mount Pleasant property. It purchased it in 2008. It had it registered in its name.

Annexure D shows that the second applicant was, and still is, the owner of the Avondale property. It purchased it in 1989. It retained title in the same from the mentioned period of time to date.

Annexure E shows that the first applicant was the owner of the Glen Lorne property. It purchased it in 2008. Sarah Hwingwiri and Ivan Pantchev sold it to someone at the instance of the applicants. They sold it for $150,000.

Sarah Hwingwiri's averments were that the first respondent was the owner of the Mount Pleasant property. She attached Annexure A to her opposing papers. The annexure, she said, constitutes proof of the fact that the applicants conferred upon her the authority to run the affairs of the two properties on their behalf.

The applicants denied having ever conferred any authority on Sarah Hwingwiri to manage their two properties. They submitted that Borislav Boynov was, and remained, their point-man in Zimbabwe. They said he had their authority to look after their two properties.

Sarah Hwingwiri's claims were that the applicants authorized her to manage the affairs of their two properties which are in Zimbabwe. She produced four documents which she said conferred the requisite authority upon her. The documents comprise:

(a) Annexure A which is a letter which Ivan Pantchev and one Ivo Kamenov Georgiev signed. The capacity in which they signed it was not stated. It is dated 6 September 2016. Its heading reads:

RE: CONFIRMATION AS MANAGER OF THE BULCHIMEX GMBH IMPORT CHAMUKALIEN UND PRODUKTE'S PROPERTIES IN ZIMBABWE…,.

(b) Annexure A1 is a resolution of three legal entities.

These are the first applicant, the first respondent, and the second applicant. It is dated 12 December 2016. It was passed by Ivo Kamenov Georgiev and Ivan Kostadinov Pantchev. Its paragraph 3 stated that the first applicant and the first respondent were one and the same entity. It authorised Sarah Hwingwiri to give effect to any of the companies' resolutions pertaining to the properties as the only Director representing the interests of the organisation in Zimbabwe.

(c) Annexure A2 is a resolution which Ivan Pantchev signed. It is dated 12 December 2016. It was passed by the first applicant and the first respondent. It authorised Sarah Hwingwiri to “represent the company in the court cases including hiring legal practitioners in cases pertaining to the company's properties in Zimbabwe.”

(d) Annexure A3 is an affidavit which Ivo Kamenov Georgiev deposed to on 12 December 2016. He did so as Director of the first applicant. He confirmed Sarah Hwingwiri as their “lawful representative including management of all our properties in Zimbabwe.”

The applicants dis-associated themselves from the above-mentioned four annexures. They said the annexures were a result of Sarah Hwingwiri's resourcefulness. They described them as a fraud and a forgery by her. They submitted that she crafted them with a view to stealing from them their properties through the first respondent in which she is a Director.

The applicants' Annexure M3 is a declaration by one Maria Ilieva Vladimirova who said she was the first applicant's manager and legal representative.

She stated that she was appointed to her position on 28 August 2015. She averred that she had exercised her full rights to represent the first applicant before any third parties, to manage its day-to-day business affairs and to supervise its documentation as well as documentation and record keeping. She stated, in an emphatic manner, that the first applicant's Board of Directors had not adopted any resolution and had not taken any action for incorporation and registration of any daughter company into the first applicant or related parties to it in Zimbabwe. She denied that the first applicant gave any power of attorney or any letter of authorization to Sarah Hwingwiri or to Ivan Pantchev. She stated that the first respondent had no relationship at all with the first applicant. The first respondent, she said, was not even a subsidiary of the first applicant.

She denied that the first applicant ever gave any authority to Ivan Pantchev or Sarah Hwingwiri to manage or sell any of its two properties.

Annexure O, which the applicants attached to the application, is a declaration by one Ivo Kamenov Georgiev. He said he was, until 27 August 2015, manager and legal representative of the first applicant. He stated that he was in that position from 2006 – 27 August 2015. He declared that Sarah Hwingwiri's Annexures A, A1, A2 and A3 were untrue and un-authentic. He said the signature which appeared as his in any of the annexures was not his own. He said:

“1.1 I am referred to as the authoriser who has allegedly confirmed the powers of Sarah Hwingwiri as a manager of the company's property in Zimbabwe. As indicated therein, the letter was produced on 6 September 2016. It is inconsistent with the fact (obviously due to the ignorance and a lack of information of its author) that on 28 August 2015 I was released as a manager and a legal representative of the company…,.

1.2 The second document is a translation of minutes (a Board resolution) into English language dated 12 December 2016 bearing the letterhead of Timeset Ltd a Bulgarian translation agency, which purportedly made that translation into English language.

The original minutes, subject to the translation, again, is missing and not appended thereto…,.

Furthermore, a joint meeting of three legal entities of different nationalities resolving together on matters concerning their private business affairs and properties, in one and the same document, is an absolute distortion of their actual corporate rules as well as legally unacceptable from the stand point of the corporate laws governing the Germany company said above, the Bulgarian Company, Technoimpex JSC (wrongly stated to be incorporated in Germany, and a Zimbabwean Company Bulchimex GMBH Import-Export Chemikalien and Produkte (Pvt) Ltd.

It is important to be noted that the name of the said Zimbabwean company closely resembles the name of the German Company, but, as a matter in fact, it has nothing to do with the German Company (as well as the Bulgarian Company) it has no place in such a joint meeting with them because it is neither a subsidiary of nor a related party to the German Company (or the Bulgarian Company Technoimpex).

It is also important to be mentioned that in this translation of the minutes I am referred to as a Director of the said three companies, but, in fact, I have never been a Director/Manager of the Bulgarian and the Zimbabwean companies. Ivan Kostadinov Pantchev has never been a Director /Manager of the German company. In addition, as indicated therein, the minutes were produced on 12 December 2016. It is inconsistent with the fact that on 28 August 2015, I was released as a manager and a legal representative of the company…,.

In conclusion, the document is false.”…,.

Mr Georgiev discounted annexures A2 and A3 which Sarah Hwingwiri purported to rely upon with clear and uncontroverted evidence.

The applicants' Annexure S was a declaration by one Dimitar Ivannov Tourlakov. He is the owner, manager, and legal representative of TIMSET Ltd.

He denied having ever received, let alone translated, Sarah Hwingwiri's annexures from any language into the English language. He said the four annexures did not exist in his company's records. He stated that he did not sign or issue those. His conclusion was that the four annexures were untrue and unauthentic. He pointed out seven inconsistencies which he said they contained.

I cited in extensor the declaration of Ivo Kamenov Georgiev. I did so as he was alleged to have authorised Sarah Hwingwiri to handle the affairs of the applicants' two properties. He and Ivan Pantchev had their names repeatedly mentioned in the annexures.

His conclusion, with which the court agrees, was that the annexures upon which Sarah Hwingwiri relied were not authentic at all.

Sarah Hwingwiri did not challenge, or even comment upon the declarations of Maria Ilieva Vladimirova, Ivo Kamenov Georgiev and/or Dimitar Ivannov Tourlakov.

The declarations contained information which seriously damaged her case. They called for a response which Sarah Hwingwiri did not ever make.

The law is very clear on such a matter as has been stated in the foregoing paragraph. It states, as trite, that what has not been denied in affidavits is taken as having been admitted. See Fawcett Security Operations v Director of Customs & Excise 1993 (2) ZLR 121 (SC); DD Transport v Abbot 1988 (2) ZLR 92; Remo Investment Brokers (Pvt) Ltd v Securities Commission of Zimbabwe SC85-14.

Mr Georgiev stated that he was no longer working for the applicants when the annexures of Sarah Hwingwiri came into existence. He denied that he authored Annexures A, A1 and/or A3. He stated, and I agree, that the annexures were a forgery. He could not have produced any of the annexures when he had ceased to work for the applicants.

That the annexures were a forgery is evident from their contents.

Annexure 1, for instance, does not mention the name of the place where it was passed - if it was. It does not mention the names of the Directors who attended the meeting on behalf of the first applicant, the first respondent and/or the second applicant.

A meeting of such serious magnitude, with such far reaching consequences, requires real, as opposed to fictitious, evidence that it was held and that the participants took a clear and unequivocal decision to merge the first applicant with the first respondent. It could not be plucked from thin air as Sarah Hwingwiri would have the court believe.

Sarah Hwingwiri did not explain the position of Mr Georgiev in the alleged meeting where the resolution was purportedly passed. He was not a Director of the first or the second applicant. He was a manager and legal representative of one of the applicants. He had ceased to be such when the resolution was allegedly passed. How he was able to communicate to her the contents of the resolution, in December 2016, when he had vacated his office on 27 August 2015, stretches the mind of anyone - that of the court included.

Sarah Hwingwiri stated, in her opposing papers, that she was in constant communication with Ivan Pantchev. She said she communicates with him through emails. She did not explain why she did not call upon him to substantiate the contents of her Annexure 2.

Sarah Hwingwiri's Annexure 2 describes Ivan Pantchev as a Director of the first applicant. It reads, in part, as follows:

“Today, 12 December 2016, the undersigned, Ivan Kostadinov Pantchev…, in his capacity as Director of BULCHIMEX GMBH IMPORT CHEMIKALIEN UND PRODUKTE, a company duly established…,.”…,.

Paragraph 2 of Sarah Hwingwiri's Annexure 3 changes the position of Ivan Pantchev from that of a Director to that of a manager. The annexure which was allegedly deposed to by Mr Georgiev reads, in the relevant part, as follows:

“2. I confirm that through our manager Ivan Kostadinov Pantchev…, Sarah Hwingwiri…, to be our lawful representative including management of all our properties in Zimbabwe.”…,.

It requires little, if any, effort to realise that the papers which Sarah Hwingwiri purports to rely upon are not authentic. They are, if anything, a product of her own fertile mind. She authored them herself. Her aim and object were, as the applicants stated, to reach out to their properties in an unlawful manner, take charge of the same, and deal with them as she pleased.

The documents which she referred to as annexures appeared to have been prepared in a hurried manner. They, in the process, failed to capture some salient features of, for instance, the correct name of the first applicant. Its name, in its correct form, reads: BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALEN und PRODUKTE. The same name as Sarah Hwingwiri wrote in her annexures reads as follows:

(i) Annexure A1: BULCHIMEX GMBH IMPORT CHEMIKALIEN UND PRODUCKTE. The following variations are noted;

(a) GmbH is written as GMBH.

(b) Import-Export is written as Import only. The word Export is left out.

(c) und is written as UND; and

(d) Chemikalen is written as Chemikalien.

(i) In Annexure A1 – Sarah Hwingwiri repeated the same errors.

(ii) In Annexure A2 – Sarah Hwingwiri repeated the same errors.

(iii) In Annexure A3 she repeated the same errors.

A reading of the above shows that her intention was to show that her Zimbabwean company, along which she fashioned the name of the first applicant, was the same as the latter. She failed dismally to achieve her intended end-in-view in the mentioned regard. The two entities, it has already been observed, are separate and distinct from each other. They are not, and can never be, the same.

The word Chemikalien which appears in the abovementioned annexures of Sarah Hwingwiri also appears in the memorandum of agreement of sale which is at p156 of the urgent chamber application.

HH352-18 : N.R BARBER (PRIVATE) LIMITED vs ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED
Ruled By: MUZENDA J

The plaintiff, N.R Barber (Private) Limited (hereinafter referred to as “plaintiff”) is a company duly registered in terms of the laws of Zimbabwe, whose registered office is 114 Seke Road, Graniteside, Harare. The plaintiff specialises in mining operations, underground, open cast, mining plans, transport logistics for ferrying the ore from one place to the supplier and related business.

The first letters of the plaintiff stand for Nolan Robert whose surname is Barber. Incidentally, he is the Managing Director and alter ego of the plaintiff.

The defendant, Zambezi Gas Zimbabwe (Private) Limited (hereinafter referred to as the “defendant”) is equally a duly registered company in terms of the law of Zimbabwe whose offices are situated at Number 28 Transtobac Complex, Hillside Road Extension, Msasa, Harare.

Mr Francis Chirimuuta, the Managing Partner of Chirimuuta and Associates, is the Board Chairman of the defendant; Mr E. Raradza is the Managing Director; Mr Thomas Nherera is the Executive Director for Finance and Administration; Mr M. Raradza is the Executive Director for Operations and Marketing; Mrs R.M Kajese being the fifth Director.

The defendant is a proprietor and hence holder of a coal mine situated in Hwange under a special Grant Number 4084 in respect of coal reserves which comprise of approximately 20,000,000 (twenty million) tonnes mineable and extractable in situ tons of coal. The defendant then formed a Special Purpose Vehicle under the name of Entuba Coal Fields of Zimbabwe (Private) Limited whose registered office address is given as 28 Hillside Road Extension Transtobac Complex, Msasa, Harare whose directors are Dr C. Msipa, Mr Hlongwani, Mr E. Raradza, Mr T. Nherera and Mr M. Raradza.

Dr C. Msipa and Mr Hlongwani are directors of another entity called Coal Brick which company is known to the plaintiff. Hence, Mr E. Raradza and Mr T. Nherera are both directors of the defendant and Entuba Coal Fields of Zimbabwe (Private) Limited.

On 28 August 2017, the plaintiff issued summons against the defendant for the following relief;

(a) Payment of the amount of USD3,885,000, being payment of money due and owed to the plaintiff by the defendant in terms of an acknowledgment of debt which was executed by the defendant in favour of the plaintiff on the 15th of February 2017;

(b) Interest on the amount at the prescribed rate of 5% per annum calculated from the date of summons to the date of payment in full; and

(c) Costs of suit on attorney client scale.

In paragraph 3 of the plaintiff's declaration it summarises the plaintiff's cause of action as follows:

“3. On the 15th of February 2017 the defendant executed an acknowledgement of debt in favour of the plaintiff wherein it admitted that the amount of $3,885,000 (three million eight hundred and eighty five thousand United States dollars) was due and owed to the plaintiff as a debt arising from the work done by the plaintiff at Entuba Mine at the instance and request of the defendant.”

In paragraph 5 of its declaration the plaintiff adds:

“The defendant failed to pay the monthly instalments as per the acknowledgement of debt and the amount of US$3,885,000 is now due and owed to the plaintiff.”

The defendant entered appearance and filed its plea and the gravamen of its plea is contained in paragraph 3 which states the following:

“3: Ad Paragraph 3 Defendant denies;

(a) The existence of any privity of contract between plaintiff and itself and denies that any work was allegedly performed on its behalf.

(b) That plaintiff performed work on its behalf or for whomsoever at its special instance and request. It puts plaintiff to the proof thereof.

Defendant, consequently, denies that there was any legal cause for the alleged acknowledgement of debt.”

On the strength of this plea, the defendant prays that the plaintiff's claim be dismissed with costs.

On 29 January 2018 the parties signed a joint pre-trial conference minute which streamlined issues for trial as follows:

“1. Whether there was legal cause for the acknowledgement of debt.

2. Whether the debt acknowledged by the defendant arises from work done by the plaintiff at the instance and request of the defendant.

3. What amount is due by the defendant to the plaintiff?”

On 13 June 2018 the matter proceeded to trial.

Mr N R Barber, the plaintiff's Managing Director, gave evidence. He stated that between 2013 and 2014 he was tasked to do work at Hwange by Entuba Mine, a company owned by the defendant company. The total amount due from Entuba was $3,012,493=46, and, on 12 May 2016, the defendant's Chief Executive Officer, Mr Thomas Nherera, wrote to the plaintiff acknowledging its indebtedness to the plaintiff for that amount.

The first acknowledgement of debt, authored and signed by the defendant's Directors, was produced by the plaintiff in court and accepted as exhibit number 1.

In the contents of exhibit 1, the witness pointed out that the defendant thought it acknowledged its indebtedness to the plaintiff in the sum of $3,012,493=46, a reconciliation of the total capital owed was going to be carried out and factor in any amount towards fuel expense issued to the plaintiff during the operations, thereafter, interest was going to be added to the capital.

On 15 February 2017, Mr N.R. Barber told the court that indeed a second acknowledgement of debt showing a deduction in capital and a figure of interest was signed by the defendant. The second acknowledgement of debt, exhibit 2, was produced in court.

Mr NR Barber further clarified and confirmed that although all the invoices were reflecting Entuba Coal Mine, those were subsequently accepted by the defendant and the defendant acknowledged its indebtedness to the plaintiff and what was more crucial to the plaintiff were the acknowledgements of debt specifically created, authored, and signed, by the defendants which formed the plaintiff's cause of action.

He clearly testified that Entuba Mine was a special purpose vehicle formed by the defendant and he was not surprised when the defendants delivered to him exhibit(s) 1 and 2. He believed the defendant when it told him that it was going to take over the debt.

In any case, according to the witness, the defendant was the beneficiary of the product the plaintiff produced.

He added that at all material times Mr T Nherera was aware of all the invoices issued to Entuba and Mr T. Nherera used the same invoices to prepare and reconcile figures which he ultimately used to compile the acknowledgement of debts.

Mr N.R. Barber was extensively cross examined by the defendant's counsel but he maintained his stance, and, further, added that although the defendant was joined by Linos Masimura, well after the signing of the acknowledgement of debt, the defendant did not challenge the authenticity of the acknowledgment.

Mr NR Barber was actually surprised when Mr E Raradza and Mr T Nherera refused to honour the defendant's indebtedness. The amount of $3,885,000 was calculated and reconciled by the defendant and it ought to be honoured he contended.

The plaintiff's second witness was Mr Antiock Kuraone who was appointed as agent by the plaintiff to recover the outstanding debt.

When the witness was appointed he engaged the Directors of the defendant, the Managing Director, Mr E Raradza, and Mr T. Nherera. The defendants unreservedly acknowledged owing the plaintiff an amount of $3,885,000 and they produced exhibit no. 2 where the defendant indicated the proposed date of payment with a cut-off date for last payment being February 2020.

The witness reiterated the fact that in as far as the legal cause of the acknowledgement of debt was concerned, the acknowledgements themselves, prepared by the defendant, succinctly disclosed the cause, that is, for payment of money for the work done for the defendants at Entuba Mine in Marange.

Exhibit 2 was signed by the Managing Director, Mr E Raradza, and Director Finance and Administration, Mr T Nherera.

The two were not forced and co-operated throughout the engagement, he said.

He also clarified that at no time did the defendant raise the issue of liability; the sticking issue that arose when he came into the matter was basically reconciliation, more particularly, of factoring in the fuel aspect. Otherwise, the parties were in agreement as to the amount.

During cross examination by the defendant's counsel, the witness remained adamant that the issue of legal causa did not arise during the engagement.

Mr T. Nherera was fully aware of all the verifications and he (Mr T Nherera) is the one who did the reconciliation.

Mr Kuraone rejected the amount of $896,884 as the correct amount and denied that Mr Masimura engaged him for a revisit on the alleged reconciliation of the figures contained on the acknowledgements.

After the acknowledgement, what Mr Kuraone and the plaintiff were waiting for was payment. When the defendant did not honour the payment he advised the plaintiff to take legal action, which the plaintiff did.

Mr Antiock Kuraone impressed the court as an honest witness, he did not exaggerate but remained forthright. He actually confirmed Mr N.R. Barber's testimony and both witnesses were credible. Their evidence tallies with the exhibits produced in court....,.

Defendant's Evidence

The defendant called Mr Edward Raradza, its Managing Director; to give evidence. I will deal with portions of his evidence relevant to the matter before me.

He told the court that sometime in September 2013 the defendant and Coal Producers and Processors Trust Zimbabwe entered into a joint venture agreement where the two parties formed a Special Purpose Vehicle, Entuba Coalfields (Private) Limited. The defendant was to avail its mining concession to the joint venture and Coal Producers Trust was to provide resources to mine the coal.

The plaintiff was brought on site to Entuba Coalfields to provide mining contractor services.

According to the witness, it was Coal Producers Trust which brought the plaintiff to Entuba and payment of work done by the plaintiff, per Entuba, was Coal Producers Trust's responsibility. He repeated what is contained in the defendant's plea, that there was no contractual arrangement between the plaintiff and the defendant.

In July 2015, the Special Purpose Vehicle, Entuba Coal Mine Company, became dysfunctional and the defendant repossessed its mining concession. The defendant was aware of the plaintiff's debt, and, according to Mr E Raradza, the defendant, without any legal obligation thereto, executed an acknowledgement of debt in favour of the plaintiff in the amount that the plaintiff had indicated was wrong subject to a reconciliation being conducted.

He added that the defendant could not pay because the income flows from the mining operations did not permit fulfilment of such undertakings that the defendant had made.

During cross-examinations by the plaintiff's legal practitioner, Mr Raradza unequivocally admitted that the Directors and the defendant company confirm that the plaintiff is owed but the only contentious issue was the amount. He accepted the authenticity of both exhibit 1 and 2, and, per exhibit 2, he accepted that he co-signed it but he was not familiar with issues relating to costing mining invoices. He admitted that efforts were made to reconcile the figures acknowledged but was not clear as to when such efforts were made before the drafting of exhibit 2 or after it was already signed.

Most of his evidence actually substantiated the plaintiff's case.

The defendant's second witness was Mr Thomas Nherera. In principle, the witness dwelt more on corporate divisibility, that, as long as there are two existing companies, the liability of one does not cross the demarcating line to the other side. Each company is accountable to its own liabilities. Hence, the defendant did not enter into any contractual relationship with the plaintiff, and, as such, there was no pretext for the writing of the acknowledgement of debt.

He however brought a very crucial revelation which greatly assisted this court. He admitted, under cross examination, that the Managing Director of the defendant and himself were both directors of Entuba. He was its Chief Executive Officer and he is the one who received all the invoices from the plaintiff. Using those invoices, he prepared exhibit 1 and 2. However, when exhibit 1 and 2 were prepared and signed, the real motive was to retain business relationship and rapport with Mr NR Barber but thus far.

He also admitted that Entuba had no assets at all and was fictitious in principle.

Mr T Nherera was evasive during cross-examination and had difficulties in answering simple questions. He contradicted Mr E Raradza especially on the aspect of liability of the defendant to the plaintiff.

Mr Linos Masimura was the defendant's third witness.

He holds a Masters in Business Leadership and is involved in mining operations in Zimbabwe and South Africa. He is the Deputy Managing Director of the defendant from June 2017. When he joined the defendant he was briefed about the defendant's status, its employees and liabilities. He was shown exhibit 1 and 2 and undertook to do a verification exercise. He visited the mine at Hwange with Mr E Raradza, the Mining Manager, and Mr Kurauone. He worked out a reconciliation thereafter and came out with a figure of $896,884 as being the “real” amount per the work done by the plaintiff. He also worked out the total sum of payments made to the plaintiff by Entuba or payments made to the plaintiff for work done.

He strengthened the defendant's plea that there was no legal causa between the plaintiff and the defendant.

During “conciliation” of figures, he worked with Mr Kurauone who was representing the plaintiff but when the witness engaged Mr Kurauone with the figure of $896,884 Mr Kurauone could not accept it.

The witness is not an accountant, he did not produce a comprehensive audit report based upon the acknowledgement figures and show the deductions of double invoicing. The document shown by the witness is but scanty. It does not show the reconciliation process for one to come up with the amount of $896,884.

The witness was cross-examined by the plaintiff's counsel and was at pains to explain how he arrived at that figure of $896,884.

He did not agree with the Managing Director's evidence that the defendant owes the plaintiff money.

After the testimony of Mr L Masimura, the defendant closed its case....,.

Analysis of plaintiff's Exhibits

Exhibit 1

Exhibit 1 is the first acknowledgment of debt dated 12 May 2016. The exhibit reads as follows:

“AGREEMENT OF INDEBTEDNESS

We acknowledge our indebtedness to your company, N R Barber (Pvt) Ltd, in regards to the contract mining work your company carried out for us at Zambezi Gas's Entuba Coal Concession in Hwange, Zimbabwe.

We acknowledge the capital amount of USD3,012,493=46 (USD Three million and twelve thousand four hundred and ninety three dollars and forty six cent) subject to the reconciliation of the total amount of fuel issued out to NR Barber (Pvt) Ltd mining team during the period between 16 May 2014 to 4 June 2014. This amount excluding interest. This interest will be added after reconciliation of total capital amount owing as per the contract.

We are also agreeable to your proposal that as soon as inflows of income from our mining operations start to come in the proceeds will be shared amongst us at the agreed percentages that shall be agreed between Zambezi Gas and NR Barber (Pvt) Ltd at that time. We are also agreeable to giving you full access to our books of accounts so as to have full transparency between us.

This agreement is without prejudice to prior contracts made between our two parties….,.”

The letter was written by the defendant company and signed by Mr Thomas Nherera, its Chief Executive Officer, the defendant's second witness in this trial. It originates from the defendant company written on the defendant's letter head. The defendant's witnesses acknowledge same.

Exhibit 2

This letter was written and signed by Mr E Raradza (the Managing Director of the defendant) and Mr Thomas Nherera (Executive Director Finance and Administration) dated 15 February 2017 on behalf of the defendant.

It is equally central to this matter and it needs extensive quotation and analysis. It is necessary to quote it as is:

“Zambezi Gas Zimbabwe Private Limited

15 February 2017, Mr J.M Kurauone, Harare, Attn: Mr Kurauone

Dear Sir

REPAYMENT PROPOSAL FOR THE PAYMENT OF N.R BARBER (PVT) LTD

We, as Zambezi Gas Zimbabwe (Pvt) Ltd, are committed to the repayment of the principle debt of USD2,715, 000 (two million seven hundred and fifteen thousand dollars) and an interest amounting USD1,170,000 (one million one hundred seventy thousand dollars) to the work done at Entuba Coal Mine in Hwange between 2014 and 2015. We are proposing the following repayments starting from February 2017 onwards to February 2020.

MONTH AMOUNT (USD)
February 2017 10,000
March 2017 10,000
April 2017 15,000
May 2017 15,000
June 2017 20,000
July 2017 20,000
August 2017 30,000
September 2017 30,000
October 2017 40,000
November 2017 40,000
December 2017 40,000
Total 265,000

January 2018 50,000
February 2018 50,000
March 2018 70,000
April 2018 70,000
May 2018 90,000
June 2018 90,000
July 2018 100,000
August 2018 100,000
September 2018 100,000
October 2018 100,000
November 2018 100,000
December 2018 100,000
Total 1,020,000

January 2019 150,000
February 2019 150,000
March 2019 200,000
April 2019 200,000
May 2019 200,000
June 2019 200,000
July 2019 200,000
August 2019 200,000
September 2019 200,000
October 2019 200,000
November 2019 200,000
December 2019 200,000
Total 2,300,000

January 2020 150,000
February 2020 150,000
Total 300,000

Total all arrears $ 3,885,000

We are hopeful that you will find this a fair way of settling this outstanding debt.

Yours faithfully

E RARADZA (ER)
T NHERERA (TN)
MANAGING DIRECTOR, EXECUTIVE DIRECTOR FINANCE & ADMINISTRATION”

Exhibit 1 and 2 gave rise to the action taken by the plaintiff. The following aspects seem not to be controverted by the parties;

(a)...,.

(b)...,.

(c)...,.

(d)...,.

(e)...,.

(f) Exhibit 2, written by the defendant acknowledging indebtedness to the plaintiff, is not denied by the defendant in its pleadings, hence, it is deemed authentic and accepted by the defendant....,.

The opening of the letter/acknowledgment of debt dated 15 February 2015 reads as follows:

“We, as Zambezi Gas Zimbabwe (Pvt) Ltd, are committed to the repayment of the principle (sic) debt of…,.”

This, in this court's view, is not disputed by the defendant.

Appealed
SC04-20 : NICKOLAS VAN HOOGSTRATEN vs TAPIWA NELOMWE
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 18 July 2018 in which it ordered the appellant to deliver to the respondent 167,275 Old Mutual Public Limited Company shares within 10 days of the date of the order. Alternatively, it ordered the appellant to pay damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last day that Old Mutual PLC traded in Zimbabwe.

The appellant was also ordered to pay costs of suit.

THE FACTS

The respondent instituted an action against the appellant for the return of the 167,275 Old Mutual PLC shares (the shares) which shares he had transferred to the appellant or its nominee in pursuance of an Asset Swap Agreement. In the alternative, the respondent sought payment of damages equivalent to the market value of the shares.

His case was that sometime in 2008 he had entered into a verbal Asset Swap Agreement with the appellant, the terms of which were that the respondent would transfer the shares and a further 110,000 PPC shares to the appellant. Upon the transfer of the shares, the appellant would transfer to the respondent an immovable property known as No.4 Wroxham Road, The Grange, Harare (the property). Thereafter, the respondent would also transfer the 110,000 PPC shares to the appellant.

It was the respondent's case that about 22 October 2008, he duly transferred the shares to the appellant's nominee, Zimcor Limited, under Share Certificate No. 606776.

In breach of the agreement, the appellant failed to transfer the property to the respondent as a result of which the respondent cancelled the agreement in January 2011.

Accordingly, the respondent became entitled to the return of the shares he had transferred to the appellant. As the appellant failed to return the shares, the respondent sued for their return. In the alternative, he claimed their value as damages.

Before the court a quo, the appellant denied ever entering into an agreement with the respondent maintaining that he had only received the shares from the respondent in his capacity as an agent of Zimcor Limited, a company in which he was neither a Director nor a shareholder.

The appellant asserted that the shares in issue were not transferred to him, and, as such, he was not liable to the respondent in respect of the shares.

The respondent insisted that he dealt with the appellant in his personal capacity and not as an agent and that the shares were transferred to Zimcor Limited on the instructions of the appellant; the respondent himself not having had any relationship with Zimcor Limited....,.

The appellant did not meaningfully refute that there was an underlying agreement in terms of which he was selling to the respondent a house he was in the process of purchasing from a Sheriff's sale.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.

The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties' disputed properties.

Although the parties were also quarrelling about the respondent's right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant's favour. That issue consequently falls away.

The respondent has, in turn, abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.

CHOICE OF LAW

Although the parties were married under Customary Law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of General Law; section 3(b) of the Customary Law and Local Courts Act [Chapter 7: 05].

It is convenient that their dispute be regulated and determined in terms of General Law because of their sophisticated way of life and ownership of immovable private property.

As the concept of private ownership of immovable property is unknown at Customary Law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than General Law. Thus, the appropriate applicable law in this case is the General Law. See Mandava v Chasekwa 2008 (1) ZLR 300…,.

BRIEF SUMMARY OF THE CASE

The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest, Tendai Dominique Chiwenga, is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years, and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.

During happier times, the parties resided at their matrimonial home situate at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage, the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects, and other paraphernalia.

It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as 'gupuro'.

In her papers before this Court, and in paragraph 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant's wife. The divorce issue therefore appears not to have been resolved.

The appellant has nevertheless now issued summons against her in the court a quo under case number HC9837/19 claiming custody of the three minor children in terms of section 4 of the Guardianship of Minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage.

The current proceedings and the parties' relationship are severely strained, acrimonious, and discordant. This is mainly because of the respondent's arrest on multiple charges of attempted murder of the appellant, fraud, money laundering, and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning three (3) weeks, from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession, and administration of her personal property and effects.

At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent's arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects, and other paraphernalia.

His conduct in this respect was perfectly lawful and undisputed at the material time.

On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison, on bail, she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home.

The same scenario played out when she sought access to Orchid Gardens which was also guarded by State security guards. They also denied her access to the premises.

She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.

THE RESPONDENT'S CLAIM A QUO

Under the circumstances, the respondent submits that she had no option but to approach the appropriate court, on an urgent basis, for relief. To that end, she lodged an urgent application in the court a quo for a 'provisional spoliation order' directing the appellant to grant her the following interim relief on a prima facie basis pending the return date for a final order:

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the three (3) minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff, with the assistance of the police, to execute the court a quo's order forthwith.

In the final order, the respondent sought the following relief:

9. That the appellant be interdicted and restrained from interfering with the respondent's use and enjoyment of the matrimonial home and her business premises at Orchid Gardens pending the conclusion of the matrimonial proceedings under case number HC9837/19.

10. That the appellant be restrained from removing the three (3) minor children of the marriage from the applicant's custody.

11. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent's complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children, and property.

THE APPELLANT'S DEFENCE A QUO

The appellant objected to the respondent's claim that the matter was urgent.

He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children's Court which is specifically conferred with the jurisdiction in terms of section 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart.

He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison.

The appellant denied having given the guards at the matrimonial home, and Orchid Gardens, any orders to deny the respondent access to the premises.

His submission, to the effect that he had no control over the guards, was not rebutted.

HH116-12 : EDGAR MAFEMERA vs ZAC CHIDAVAENZI AND THE MINISTER OF HOME AFFAIRS N.O
Ruled By: BERE J

In casu, by absenting themselves from court on the day of the hearing, the defendants must have fully realized the futility of the nature of their defence to the plaintiff's clear case.

HH30-09 : GERALD MUJAJI vs FRANSCISCA MUSHORIWA and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

This is an application in terms of section 52(9)(i) of the Administration of Estates Act [Chapter 6:01]....,.The facts giving rise to this matter which are not in dispute are as follows;The late Victor Doit Mujaji died on 10 June 1998 (the deceased). He is survived by the first defendant, whom ...

HH755-15 : CHIKUDZA MANGWENDE vs LIBERTY MACHODO
Ruled By: UCHENA J and MWAYERA J

At the conclusion of the trial of this matter, the court a quo dismissed the claim for payment of the outstanding lobola.

The court found that there was material breach of the very tenants of lobola.

The court concluded that the appellant was not entitled to payment of the balance of lobola because his daughter, who was married to the respondent, committed adultery with multiple partners ranging from the respondent's brothers, nephews, and the herd boy. The court also found that customarily a husband is allowed to divorce an adulterous wife, and then, if he has paid lobola in full, he is entitled to a refund of the lobola from the inlaws.

The appellant approached this court seeking to have the dismissal of his claim for payment of lobola set aside. The grounds of appeal, as outlined by the appellant, are as follows:

1(a) That the appellant's daughter was acting on the respondent's, that is, her husband's instructions and was safeguarding her husband's cultural values.

(b) That it was not the duty of the appellant's daughter to research on the truth of her husband's cultural values but only to do so as per husband's instructions and demands as a respectful wife.

(c) That the appellant's daughter was forced to confess under duress from the respondent and his relatives.

(d) That the child of the appellant's daughter did not breast feed after confession but only after they had both visited a prophet.

(e) That the appellant's daughter was not in wilful wrong-doing; this is evidenced by her not being in any other affair with outsiders.

2. That the learned magistrate erred in dismissing the appellant's claim when it was clear that the parties had engaged into a lobola agreement which was not completely paid off.

3. That the trial court misdirected itself in dismissing this claim when the averments by the appellant that his daughter and the respondent's brothers had never been to any court for adultery claims.

The facts of the matter, as discerned from the record of proceedings and submissions by the parties, can be summarised as follows:

The appellant's daughter was customarily married to the respondent. The respondent and his wife, the appellant's daughter, had a misunderstanding after the birth of their child. Central to the dispute is the fact that the newly born was not breast feeding. Evidence adduced from the respondent, and the respondent's wife, is to the effect that the child started to breast feed after a confession by the respondent's wife. The confession, which was uncontroverted evidence in the court a quo, was to the effect that the respondent's wife had, during the subsistence of the marriage to the respondent, been intimate with the respondent's elder, younger brothers, nephew, and herd boy.

It was after evidence of intimate relations between the respondent's wife and multiple partners that the respondent took his wife back to her parents.

Irked by this move, the appellant then approached the court a quo claiming for the balance of outstanding lobola.

The Magistrate's Court, basing on the evidence before it, concluded that the confession by the appellant's daughter was voluntarily given. Further, the appellant and his daughter did not dispute that the daughter had intimate relations with multiple partners. The appellant sought to argue, unsuccessfully, that his daughter was wayward in line with the respondent's family custom. The herd boy and nephew were not the respondent's brothers. In any event, other than the appellant's mere say so there was no evidence to confirm the promiscuous conduct by the respondent was in accordance with custom. No one else in the respondent's family had been subjected to such custom according to the appellant's daughter.

It was with this background that the trial magistrate concluded that the appellant's daughter engaged in adulterous relationship with multiple partners and that she, by so doing, breached the marriage relationship. This conduct was ruled as not entitling the appellant to payment of the outstanding lobola.

The court a quo properly spelt out that under customary law a man who would have paid lobola is entitled to a refund if the wife engages in adultery. Further, the court a quo stated that parents whose child would have committed adultery are not entitled to payment of the balances of lobola.

The very purpose of lobola is what was flouted by the appellant's daughter thereby severing the marriage relationship. The respondent did not choose to condone the adultery but to divorce his wife for the gross misconduct.

In coming up with the disposition of the matter whereby the court a quo dismissed the claim for the balance of lobola, the trial magistrate properly exercised his discretion and we find no fault in his findings.

Accordingly, the appeal lacks merit and must fail.

It is ordered that the appeal be and is hereby dismissed with costs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The defendant was taken to task on whether he had told the plaintiff, during inspection, that there was a dispute, and his answer was, he did not....,.

The conduct of the defendant of sitting back and not doing anything until later on after receiving these summons tends to corroborate the plaintiff's story.

The plaintiff paid $55,000 for the property and the defendant is still occupying the house. He has not benefited from the house from the date of transfer. He has lost out in terms of revenue. The current rentals claimed are not disputed.

The plaintiff gave his evidence well and such evidence was not controverted during cross-examination.

Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

It came out in the minutes of 15 October 2003 that the Kawoko House supplied the “doo”. This was confirmed by Chikari. In those minutes, the averments by the Kawoko House that it designated Bere's burial spot and distributed his property were not challenged.

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

The plaintiff is a male adult resident at House Number 2365 St Marys Chitungwiza. The defendant is the Minister of Defence cited in his official capacity.

On 14 November 2003, the plaintiff filed a suit against the defendant for damages in the sum of Z$500,000. The plaintiff alleged, that, on 19 March 2003 he was asleep at his mother's house, House Number 2365 St Marys Chitungwiza when he was awakened by a knock on his door. When he went outside in response to the knock, he was assaulted by members of the Zimbabwe National Army during the course and scope of their employment with the defendant. He therefore claimed damages in the sum of Z$500,000 as a result of the injuries he sustained from the assault.

At trial, the plaintiff amended his claim. He now claimed a total of US$685 made up as follows:

1. US$311 being damages for shock, pain and suffering.

2. US$187 being damages for loss of amenities of life.

3. US$187 being damages for contumelia.

The defendant denied that any member of the Zimbabwe National Army assaulted the plaintiff on the date in question. The defendant contended, that, the Zimbabwe National Army (herein referred to as “ZNA”) members were only deployed in the plaintiff's area of residence on 20 March 2003 up to 26 March 2003.

The issues for determination were essentially two, namely:

1. Whether the plaintiff was assaulted by members of the Zimbabwe National Army (ZNA); and

2. Whether the plaintiff is entitled to the quantum of damages as per summons as amended.

The plaintiff gave evidence after which he called his wife, Rossy Domingo, as his only witness. The defendant's case was testified to by Emmanuel Matatu. At the time of the incident in question he was the Brigadier General Operations based at the ZNA Headquarters.

The plaintiff's evidence was to the effect, that, on 19 March 2003 he was asleep in the house when he was awakened by a knock on the door. Those knocking were also calling out his name. He got up and went outside. As he stood by the door he saw some soldiers. The soldiers were wearing an attire he described as their usual camouflage uniform. In further describing the attire, he said it was green; grey; cream in colour with red barets. He was able to see this because of lighting from electricity lights at the residence. He realized that these people were carrying guns he described as big guns – rifles.

When he went out of the house, the soldiers asked him whether he was Chair and he confirmed so. The same question was asked to another man who was not in uniform. He later identified that man as his friend Danmore. After confirming that he was Chair, one of the soldiers grabbed him and started assaulting him with a stick. They were also interrogating him in the process. When he got hold of the stick that was being used to assault him other soldiers joined in assaulting him. They were now assaulting him with clenched fists. At some stage, he felt as if a sjambock was also used and an iron bar. After a while, the soldiers took him and Danmore, who apparently was also in their captive, to some houses in the neighbourhood. The soldiers pointed a gun at him and ordered him to go and point out neighbours he attended meetings with.

When they got to Brenda's father's house they were ordered to lie down and were assaulted further at this house. Brenda's father was not there but his wife. From that house they went to another house. From this other house the soldiers were pointing rifles at Danmore and himself. They went to Florence's house. At this house, Danmore and himself were ordered to lie down facing down. The soldiers plucked tree branches from an avocado tree and started assaulting them with the branches. The assaults were concentrated at the back. They then went to Daniel's house which is near his mother's house where he had been sleeping. Daniel was called and assaulted. At Daniel's house, all the people that were found there were assaulted.

After that, the plaintiff, Danmore, and Florence were severely assaulted further. Towards dawn, they were ordered to stand up. It was then that he saw some motor vehicles by the gate. These were army motor vehicles as they were painted in the same colour as the uniforms of the soldiers. The motor vehicles were four in number and they looked like Pumas. He also realized that the number of soldiers had increased.

It was also his evidence that they were later ordered to board the ZNA trucks he described as similar to Pumas. In the truck, he observed benches on the sides and they sat in between the benches in the centre of the loading tray.

They were then driven and ordered off at some place along the Mbare-Chitungwiza road.

Upon disembarking, they ran away in different directions. When he returned to his residence, his wife applied hot compression on him. Later, but on that same day, 20 March 2003, he left for Shurungwi to reside with his brother.

After about three weeks he returned to St Marys. He thereafter proceeded to Harvest House in Harare where MDC top officials gave him a letter to take with him to a doctor. He confirmed that he received medication and Dr Coric examined him and compiled a medical affidavit.

The plaintiff's wife, Rossy Dimingo, gave evidence in support of the plaintiff's case. Her evidence, on the identity of the assailants, was to the effect that they were ZNA members. According to her evidence, after knocking on the door, the soldiers entered their bedroom and she saw that they were soldiers as they were clad in ZNA camouflage uniform. When they entered, she saw that they were armed with sjamboeks which they wanted to assault the plaintiff with.

She indicated that the soldiers then went out and started assaulting the plaintiff. The soldiers were clad in camouflage green; grey and brownish in colour uniform. They also were putting on red berets and black boots. After assaulting the plaintiff, the plaintiff and Danmore were taken away by the soldiers. At that time there were six soldiers.

It is pertinent to point out that the plaintiff's case had its own problems:

Whilst in his evidence in court the plaintiff and his wife referred to the guns the assailants had as rifles without any hesitation; in his summary of evidence, the plaintiff referred to the guns as service pistols.

In paragraph 3 of the summary of evidence, the plaintiff had this to say:

“Some uniformed members of the ZNA wielding service pistols forced entry into the plaintiff's bedroom.”

Nowhere, in either the declaration or the summary of evidence, did the plaintiff refer to rifles as having been used or even sighted on the night in question.

According to his declaration and summary of evidence, the assaults were perpetrated using baton sticks, fern belt, and boots; yet, in their evidence in court, both the plaintiff and his wife opted to include other weapons like sjamboek and rifles. The plaintiff went on to include avocado tree branches and an iron bar.

In paragraph 5 of the summary of evidence, the plaintiff indicated, that, after being assaulted with baton sticks, fenn belt, and boots all over the body, he was then dragged to Chitungiwza cemetery and was dumped there.

The evidence adduced did not support such an assertion at all.

The aspect of dragging was within the premises of the house he was found at, and it was as he was being assaulted. He was not dragged to the cemetery at all. He was taken to the Mbare-Chitungwiza road in a motor vehicle.

In paragraph 6 of the same summary of evidence, the plaintiff stated that:

“As a result of the assault, the plaintiff suffered excrutiating pain. He also sustained multiple bruises, cuts, and a broken right arm. He had to be detained in hospital for some time.”

Surprisingly, in his evidence in court, the plaintiff and his witness never alluded to being detained in hospital at all.

The sequence of events the two seemed agreed on was that on 20 March 2003 the plaintiff left for Shurugwi. In Shurungwi he never attended any medical institution or sought medical attention from anyone. According to the plaintiff, he spent about three weeks in Shurugwi. He then returned to St Marys. He later went to his party's Head Office at Harvest House in Harare where he saw some top officials. The top officials gave him a letter which he took to a doctor. It was then that he received some medical attention. He was thereafter referred to Dr Milos Coric an Orthopaedic Surgeon. As a result of that visit, Dr Coric compiled a medical affidavit. According to that affidavit, the examination was conducted on 14 April 2003 - a period of at least twenty five days from the date of the assault.

The plaintiff's wife seemed to confirm that the plaintiff did not seek immediate medical attention. The medical affidavit did not show the multiple bruises and cuts referred to in the summary of evidence. The affidavit simply confirms a fracture of the right ulna (forearm). The assertion that the plaintiff was detained in hospital is not supported by any evidence adduced in court.

As already alluded to, the medical affidavit, by Dr Coric, pertained to the examination done on 14 April 2003. It did not show that the plaintiff was ever detained in hospital.

Another point of concern on the medical affidavit is on the history.

In the copy of the medical affidavit dated 7 March 2007, which the plaintiff seemed to prefer, exhibit 1, under history it is stated that ”Zimbabwe National Army officers attacked this man on 19 March 2003.”

In the second copy of the same affidavit, dated 10 August 2004, exhibit 2, the same doctor endorsed the history as being that “this man was attacked by political opponents on 19 March 2003.”

The change in the identity of attackers from political opponents, as in the affidavit of 19 August 2004, to Zimbabwe National Army (ZNA) officers, as on the affidavit dated 7 March 2007, needed the deponent thereto to clarify.

Unfortunately, this was not done.

This is an irregularity that put into question the credibility of the affidavit in question. The plaintiff himself could not adequately explain that anomaly.

Whilst the plaintiff's counsel sought to downplay the anomaly, I am of the view, that, in as far as the history of a patient is concerned, it is expected to be from the patient or someone with such knowledge; such an anomaly casts a shadow of doubt on the plaintiff's credibility as well.

If, on 14 April 2003, he indicated his assailants as political opponents, why have that changed to Zimbabwe National Army (ZNA) officers in March 2007?

In any case, no reason was advanced for seeking a second medical affidavit.

If the assailants were Zimbabwe National Army (ZNA) officers, and the plaintiff knew that as of fact, that should have been reflected from the onset.

In as far as the only difference between the first medical affidavit and the second medical affidavit is on the history and date, one is tempted to believe that the second medical affidavit was obtained to tie up the medical affidavit to the plaintiff's claim.

It must be remembered that as was held in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…, where there are mutually destructive stories the court must be satisfied that the version given by the party on whom the onus rests is true and the other false. Unless this can be found, the plaintiff cannot be said to have discharged the onus on him.

For a party's version to be found to be true, there should be some consistency in his version. Discrepancies may be overlooked where such discrepancies do not seriously affect the party's credibility in version of events.

Where, as in this case, the plaintiff's version, as contained in papers filed of record, is inconsistent with the plaintiff's evidence in court on material aspects relevant to the issue at hand it is difficult to find that the plaintiff has discharged the onus.

In Matiza v Pswarayi 1999 (1) ZLR 140 (S), the court was faced with a similar situation whereby the plaintiff on whom rested the onus of proof, gave three versions. The first version in the declaration, another version in a letter tendered, and a third version in his evidence in court. The trial court made a finding that he had not discharged the onus on him.

On appeal, the Supreme Court…, also concluded that:

“It cannot be said that the appellant's version is true and that the respondent's version is false. The appellant did not, therefore, prove his claim on a balance of probabilities.”

See also S v Nicolle 1991 (1) ZLR 211…,.

In casu, the factors that the plaintiff alluded to in identifying the assailants were quite common. He indeed referred to the attire as “the usual uniform”. Clearly, this would not have been his first time to see such a uniform with such colors. This camouflage uniform for the Zimbabwe National Army (ZNA) is common. Being able to describe the camouflage uniform that is commonly worn by ZNA members cannot, on its own, be an indication that he indeed saw the soldiers on the night in question. This has to be taken together with other factors. Even his wife's description was a common description of the usual uniform.

The two did refer to the soldiers putting on red barets as well.

As Emmanuel Matatu indicated, these are worn by members of the military police. He also indicated that members of the military police are not deployed on such operational duties.

It was thus pertinent to rebut that.

HHH142-10 : ALBERT MATAPO and OTHERS vs THE STATE
Ruled By: MUSAKWA J

The applicants are seeking the dismissal of the charge for which they were committed for trial on 4 June 2008 on the basis that they were not brought to trial within six months of such committal.

The facts, as set out in counsel for the applicant's founding affidavit, are that the applicants were arrested on charges of contravening section 20 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They have been in custody since 30 May 2007. On 4 June 2008 they were served with indictment papers for trial before the High Court on 7 July 2008.

Subsequent to the committal for trial, the defence wrote to the prosecution on 5 June, 12 June, and 2 July 2008.

In the first two letters, they sought to be furnished with documentation and witnesses' statements. In the last letter, they were reminding the prosecution of the delay in being furnished with witnesses' statements and the difficulties defence counsel experienced in accessing the applicants in order to prepare their Defence Outline.

There were no replies to those letters.

On the date of trial, the matter could not be heard as the defence persisted with its complaints. The Defence Outline was later filed on 11 July 2008. On the other hand, the State was notified of the defence's intention to raise a constitutional challenge against the charge that was preferred against the applicants.

On 5 August 2008, the constitutional issue was argued before HLATSHWAYO J who reserved judgment. Judgment was handed down on 18 November 2008 whereupon the matter was referred to the Supreme Court. The Supreme Court handed down its decision, in which it dismissed the application, on 7 December 2009.

Following the Supreme Court decision, the applicants' counsel personally attended at the offices of the Attorney-General where he requested that the matter be set down during the First Term of 2010. He was advised that it was not possible to set the matter down during that term.

In March 2010, the defence was notified of the setting down of the matter for 21 June 2010.

During the course of the applicants' incarceration, several applications for bail have been made. There was also an attempt to re-indict the applicants at the Magistrates Court a week before 21 June 2010. This was successfully resisted by the defence.

In his heads of argument, counsel for the applicants submitted, that, in terms of section 66 of the Criminal Procedure and Evidence Act [Chapter 9:07] the Attorney General is dominus litis in respect of cases he decides to prosecute. In this respect, a matter may be set down for trial even a year in advance.

He further submitted, that, in terms of section 160(2) of the Criminal Procedure and Evidence Act, an accused who has been committed for trial but not tried within six months is entitled to have his case dismissed. He also submitted that the provision in question is meant to protect an accused person from lengthy incarceration before he is brought to trial. The period in question should be six calendar months calculated in terms of the Interpretation Act [Chapter 1:01].

Counsel for the applicants further submitted that the reckoning of time is between the time the accused persons were indicted and the trial date. That period should exclude the time the Constitutional application was awaiting determination by the Supreme Court. That is the only time the applicants were not available for trial as the trial could not be set down whilst the Constitutional application was still pending.

The State did not file an opposing affidavit.

I must also point out that despite the State having been directed to file a response to the application by 28 June 2010 what were only filed were the State's submissions on the day of hearing.

The court was made to understand that the officer who previously attended to this matter was ill-disposed. However, that does not absolve the State from its obligations.

At the end of the day, one cannot say the matter was opposed in the manner expected of a contested application because effectively all the averments that were made against the State in the applicants' founding affidavit went unanswered save for issues of law that were addressed in the submissions.

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

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

The defendant contested the matter.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“3. REMUNERATION

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

4. BENEFITS

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

4.1 Cimas Medexec Medical Aid for you and your family.

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

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

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

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

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

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

HR acknowledges 10% interest per annum calculated monthly.

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

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

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

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

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

He was the only one who signed those minutes.

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

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

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

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

He was cross-examined.

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

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

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

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

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

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

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

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

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

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

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

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

He was cross examined.

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

He confirmed that his salary was paid in local currency.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The second issue is determined in favour of the defendant.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“12A Remuneration and deductions from remuneration

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

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

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

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

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

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

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

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

Counsel for the plaintiff did not controvert this argument.

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

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

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

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

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

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

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

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

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

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

Again, at p186, the learned author states:

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

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

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

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

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

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

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

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

And, in para 637…, he wrote:

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

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

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

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

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

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

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

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

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

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

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

(i) The first was that he was never paid in foreign currency during his time of employment but was paid a salary in local currency that was indexed to the United States dollar at the parallel rate of exchange to preserve the purchasing power of the local currency.

The acknowledgment of debt that was executed erroneously referred to the currency of indebtedness as the United States dollar. The acknowledgment of debt therefore told a lie about itself.

(ii) The second disquieting feature was that the plaintiff averred that he was to be paid in foreign currency by an offshore sister company to the defendant called PXL that was to be set up in Mauritius in which the defendant's acting Chief Executive Officer would have an interest.

He did not disclose whether this company was ever set up.

It seems to me that he should have sought payment from that company rather than the defendant.

I determine the third and fourth issues referred to trial in favour of the defendant.

Accordingly, it is ordered that:

1. The exception raised by the defendant be and is hereby upheld.

2. The plaintiff's claim be and is hereby dismissed.

3. The plaintiff shall pay the defendant's costs of suit.

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O.
Ruled By: CHITAKUNYE J

In this application, the applicant seeks an order, inter alia, that:-

1. The applicant be and is hereby declared the sole beneficiary for House No.4040 Glen Norah A, Harare, registered in the name of the late Fred Garikayi Muchenje, and, consequently the 1st Respondent be and is hereby directed to reflect that position in the distribution account for Estate Late Fred Garikayi Muchenje, DR565/12.

2. The third respondent be and is hereby ordered to effect cession of ownership of House No.4040 Glen Norah A, Harare from the name of the late Fred Garikayi Muchenje into the name of the applicant upon receipt of a distribution account prepared by the first respondent and approved by the second respondent....,.

The applicant was married to the late Fred Garikayi Muchenje in 1965 in terms of the Marriages Act (now Chapter 5:11). In 1972, the late Fred Garikayi Muchenje (hereinafter referred to as the late Fred) was offered tenancy of Stand 4040 Glen Norah A, Harare. In order to qualify for that tenancy he had tendered his marriage certificate as was required then. That house was eventually offered for purchase to the late Fred Garikayi Muchenje as a sitting tenant in 1981.

On 22 March 2012 the late Fred Garikayi Muchenje passed on.

At the time of his death, the late Fred Garikayi Muchenje and the applicant were no longer staying together as husband and wife. The applicant was not clear as to when they separated. She only stated, that, during his lifetime, her husband consummated an adulterous affair with another woman and he subsequently chased the applicant out of the matrimonial home.

Nowhere in her affidavits did she disclose when she was chased away.

It was, however, agreed, that, at the time of his death, the late Fred Garikayi Muchenje was staying with this other woman, Stembile Muchenje, at the property in question.

It was only in the opposing affidavit that the first respondent revealed that the two had lived apart for 37 years prior to the late Fred Garikayi Muchenje's death.

The applicant did not dispute that. It is thus taken as accepted.

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

Evidence can only be controverted by other evidence, not through heads of argument or oral submissions - the sole purpose of which is to endeavour to punch holes into a case which is already prima facie established.

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

The applicant is a former employee of the respondent. He was employed in the position of Asset Protection Officer.

On 11 November 2014, the applicant was served with a notice to terminate his employment with the respondent. The notice period which the applicant was given was three (3) months effective from 11 November 2014, to be served from home i.e. the applicant was not to report for work but would nonetheless be paid his salary.

In the aforesaid notice to terminate the applicant's employment contract the respondent stated:

“…, the corporate hereby undertakes to pay the notice period and all outstanding payments due to you on a monthly basis spreading over a period of four months through the corporate's payroll until all such is extinguished in full. These payments shall be made subject to such statutory deductions as are applicable. A statement of account denoting how much you are entitled to shall be availed to you by the 30th November 2014. Kindly approach the human resources department for your termination clearances and statement of account, and affix your signature to the tear off below to signal your receipt of this letter…,.”

The letter of notice was delivered upon the applicant who refused to sign the tear off slip.

Nothing turns upon the applicant's refusal to sign the tear off slip because the validity of the termination being a unilateral act by the respondent (employer) would not require acceptance by the applicant (employee) through signing the letter. It is sufficient for its validity that the letter was conveyed upon the applicant.

By letter dated 29 November 2014, the respondent wrote to the applicant setting out the amounts which it acknowledged to be owing by it to the applicant. The letter referred to is attached as annexure 'C' to the applicant's founding affidavit and reads in material part as follows:

Re: Statement of account for Aswell Nyanzara EC No. BD1013

“We refer to the above matter.

Please be advised that Mbada Diamonds acknowledges owing you a total amount of USD$9,695=02 which was calculated starting from 1 February 2010 being the date of engagement. The detailed breakdown is as follows:

Item Value
1. Gratuity payable $1,331-95
2. 90 days of CILL payable $3,073-85
3. 0.00 months historic overtime $-
4. April & May 2014 overtime @ 1.5 $-
5. April & May 2014 overtime @ 2.0 $ 102-46
6. Back pay for June & July 2014 $ 576-00
7. Salary for September, October & November $2,305-38
8. 3 months using current work arrangement $2,305-38
Grand Total $9,695-02

Please note that all the above amounts are gross figures, and, as such, are subject to applicable statutory deductions. Mbada Diamonds will deduct any loans or amounts advanced to you from the net amount…,.

A Zindi (Mr)
The Human Resources Manager
For and on behalf of Mbada Diamonds”

As with the letter of termination of employment on notice, which the applicant refused to sign, he also did not sign the letter setting out the statement of account.

The applicant indicates, in his answering affidavit, that, he did not sign his own copy of Annexure C but signed the one which the respondent retained. He attributes his failure to sign the letter to the fact that he is a layman and thought it unnecessary to sign the copy which he retained and has attached to his application.

Although the respondent appears to take issue with the failure by the applicant to sign the statement of account in acknowledgment, it is, in my view, a matter or omission of no great moment because the authenticity of annexure 'C' is common cause between the parties.

I shall advert to analysing its contents later when I consider the jurisdictional issues raised by the respondent.

On 5 May 2015, the applicant filed the present court application whose heading reads 'COURT APPLICATION FOR PAYMENT OF MONEY'. The application is supported by the applicant's brief affidavit consisting of seven (7) paragraphs, the material ones which read as follows:

“4. On 11 November 2014, the respondent terminated my contract of employment on notice. A copy of letter of termination of contract of employment is attached hereto marked “B”.

5. On 29 November 2014, the respondent marked out my terminal benefits which amounted to $9,695=02. A copy of the statement of account from the Human Resources Manager is attached hereto marked 'C'.

6.1. Apart from the $9,695=02, the respondent owed me the following amounts;

(a) Night Allowances - $1,941=10 Annexure 'D'.

(b) Unrefunded portion of the pension fund - $799=20 Annexure “E”.

6.2. Therefore, the total amount of money which I am claiming from the respondent is $12,435=32 arrived at as follows;

7. I have not been paid a single cent from these moneys that are due to me despite demand on several occasions. The respondent has simply neglected, failed and/or refused to pay. I am applying for an order granting me the aforesaid sum for purposes of enforcement …,.

WHEREFORE, I pay for an order in terms of the Draft.

Thus sworn to at Harare this 5th day of May, 2015

Signed: Aswell Nyanzara”

Annexures 'D' and 'E' referred to in paragraph 6.1(a) and 6.1.(b) of the applicant's founding affidavit are, respectively, a letter whose date is not clear but is headed TERMINAL BENEFITS FOR ASWELL NYANZARA…,. NIGHT ALLOWANCE.

Annexure D is addressed to the respondent and is purportedly written by one E Munongerwa representing NUMQUI SWZ. There is a date stamp embossed National Union of Mines Quarrying Iron and Steel Workers of Zimbabwe. It appears that NUMQUISWZ is the abbreviation for the union. The letter purports to calculate the applicant's night allowance at $1,941 as the amount due to the applicant by the respondent.

Annexure E is a letter whose origins are not clear nor stated except that it is dated 4 March 2015, is addressed to the respondent's Principal Officer, a Mr Kennedy Bingwa, and is signed by or on behalf of Alackias Gavure – Administration Manager.

The letter is headed Mbada Diamonds Pension Fund: Retirement – Nyanzara Aswell (BD1013).

The author of Annexure E states in the letter, that, the sum of $1,834=58 was transferred into the “members” NMB Bank account number 290073502 on 2 March 2015. The payment represents the full commutation due to the member (comprising member and employer contributions together with interest thereon). The writer further states, in the letter, that, the 'balance retirement capital could not secure the statutory minimum monthly pension currently pegged at $30. The last paragraph of the letter reads as follows:

“The member has been refunded the 'funded portion' of his contributions made up to 30 November 2013. The unfunded portion, amounting $799-20, has not been refunded pending receipt of the outstanding contributions relating to the period 1 December 2013 to 31 May 2014.”

In the draft order, the applicant prays for an order as follows:

“IT IS ORDERED THAT:

1. Respondent shall pay applicant $12,435-32 together with interest thereon at the rate of 5% calculated from the date of service of the Court Application on Respondent to the date of payment together with costs of suit on attorney–client scale.”

The respondent, in opposing the application, and as shown upon a reading of its opposing affidavit, has raised two issues:

(i)...,.

(ii) The second issue raised by the respondent is in two parts, namely;

(a) That the applicant cannot rely on a document which he has refused to sign in acknowledgment of its contents and which document was written on a without prejudice basis and marked so....,.

The applicant..., stated that there was no prejudice to be suffered by the respondent if Annexure C was admitted because albeit it being marked “without prejudice”, he accepted the respondent's computations and signed the copy which he left at the respondent's office but omitted to sign the one which he retained.

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

This matter was initiated as a court application by the present plaintiff. Upon hearing argument, the court ordered that the papers filed in the court application stand as pleadings and the matter proceed to discovery in the normal way.

The papers show that, at the pre-trial conference stage, four issues were identified for trial. These are:

(a) Whether or not the respondent obtained possession of the Toyota Hi-lux motor vehicle registration number 424-562E from the applicant without authority or permission;

(b) Whether or not the respondent promised to return this motor vehicle to the applicant by delivering it to the offices of the Zimbabwe Mining Development Corporation as alleged on behalf of the applicant;

(c) Whether or not there was a sale of the Toyota Hilux motor vehicle, and, if so, whether the sale was to the respondent or to a company called Hoeramar Enterprises;

(d) Whether the aforesaid Toyota Hilux motor vehicle is no longer in the possession of the defendant;

(e) The value of the aforesaid Toyota Hilux motor vehicle at the time the defendant obtained possession of it.

At the commencement of trial, the respondent took four points in limine;

(i) The first point was whether the Chairperson of the Zimbabwe Mining Development Corporation (“ZMDC”) Board of Directors has the authority or jurisdiction to act on her own initiative without a board resolution to set up a commission of inquiry to look at the affairs of a separate and different entity altogether.

(ii) The second point was a challenge to the authority by virtue of which the present action was launched, since, according to the respondent, the applicant had not authorised the launching of the inquiry and therefore there was no authority for the launching of these proceedings.

(iii) Thirdly, the respondent queried the powers of a commission of inquiry to operate outside its terms of reference. Since the terms of reference did not empower the commission of inquiry to delve into the disposal of motor vehicles, then, if it considered that as within its terms of reference, that commission of inquiry acted ultra vires its terms of reference.

(iv) Finally, the respondent took the point, that, where correspondence had been ruled “without prejudice” it cannot be relied upon in subsequent proceedings.

After hearing the respondent as well as counsel for the plaintiff on the preliminary points, I directed that the matter proceeded to trial and my ruling on these points will be made apparent in the judgment.

I wish now to set out the reasons for the order which I gave then....,.

Trial proceeded on the basis that the supporting and answering affidavit filed in the court application stood as pleadings. Dominic Mubaiwa, who deposed to same, adopted these as his evidence-in-chief before he was cross-examined.

In these, he points out that he is the Group Chief Executive Officer of ZMDC. The plaintiff company is a subsidiary of ZMDC.

As the Group Chief Executive Officer of the ZMDC, he is a non-executive director and member of the Board at the plaintiff company.

The executive director at the plaintiff is appointed by the ZMDC board as the holding company. In that capacity he is authorised to depose to the affidavits in connection with the present matter.

The records of the applicant show that the defendant (respondent) obtained possession of a Toyota Hilux motor vehicle, registration number 424-562E, from the plaintiff (applicant) when he was the non-executive Chairman of the applicant without permission or authority.

Sometime in December 2004, the respondent had promised, orally and in writing, to return this motor vehicle by delivering it to the offices of ZMDC in Harare.

By the time the court application was launched, he had not done so, pleading that the motor vehicle was now a non-runner and needed tyres and that he had no resources to tow it to Harare.

The respondent has no excuse for not handing over the motor vehicle.

The applicant therefore seeks an order compelling him to restore the motor vehicle into its possession.

Dominic Mubaiwa particularly relied on correspondence addressed to the respondent by the applicant's legal practitioners dated 24 December 2004 in which the following appears;

“We confirm having discussed the entire matter with you and indicated to you that in our view the application is without merit, but, more importantly, that, any public debate of the contents of the application and the response of our clients to it, particularly at the High Court, would be most damaging to your reputation and is to be avoided. With this in mind we have discussed with yourself the settlement of this matter on the following basis:

“1. That you will withdraw your Court Application, and, if such a withdrawal occurs before our clients file any opposing papers, we will advise our clients not to seek any costs from yourself;

2. That you will undertake to pay repairs for the T35 truck, which, as you have accepted, was utilised by yourself at least on one occasion without the permission of Mhangura Copper Mines Limited. In this connection, you have queried the estimated cost of repairs, but, of course, the quantum will only be known once the repairs are completed. If you are unhappy with the amount then a court will have to settle any dispute arising therefrom.

3. That you will return the Toyota Hilux motor vehicle in the view of our client was acquired by yourself, as opposed to a company in which you have an interest, irregularly and without the observance of any appropriate tender system. In this connection, you have stated that you are prepared to return the motor vehicle in question but have carried out certain repairs to it and had vehicle parts affixed which you would like to remove. As indicated to you, Mhangura Copper Mines remains the owner of this motor vehicle and it must be returned to it either in the condition in which it was when you removed it (which we believe will be almost impossible) or its current condition and then be examined by an independent repairer to determine the extent to which its value has been enhanced by any repair work undertaken by you or on your behalf.”

Subsequent to this correspondence, the applicant's legal practitioner penned yet another communication to the respondent on 7 January 2005 in the following terms:

“We refer to the above matter and to our letter to you of 24th December 2004 and also to our telephone discussion this morning.

We confirm that you have now agreed to deliver to the offices of the Zimbabwe Mining Development Corporation in Harare the Toyota Hilux motor vehicle, registration number 424-562E, in its current condition. Delivery will be effected no later than Wednesday the 12th January 2005. Our client will then have it examined by an independent third party in order to determine the issues previously discussed with you.”

The respondent replied to these two letters by way of a letter dated 12th January 2005.

In it, he raises the point that discussions held with Mr Mahlangu of the applicant were on a “without prejudice” basis and cannot therefore be used in legal proceedings....,.

As for the “without prejudice” correspondence, it is pertinent to note that the applicant discovered these in its notice of discovery. In any event, the correspondence did not amount to negotiation but a record of settlement to which the parties had orally agreed. The respondent's letter of 12 January 2005 was not captioned “without prejudice” and was, in any event, not relied upon by the applicant.

I am satisfied that the reliance on the two letters was appropriate and relevant to the determination of the issues at stake. No prejudice was suffered by the respondent since these were discovered.

He did not deem it fit to protest their use.

HH740-15 : COSMAS ZAVAZAVA and VONGAI ZAVAZAVA vs JONAH TENDERE and TENDAI TENDERE and THERMO-DYNAMICS REAL ESTATE and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI J

It would appear that conveyancing laws of this country are not foolproof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers.

The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency.

For how long will these fraudsters, who strut among communities, continue to hold sway, to make a mockery of transfer rules to milk unsuspecting home seekers dry in order to make a dishonest living?

These shameless individuals bring the whole process of private ownership of immovable property and registration of title to disrepute. There is a pressing need for reforms to be introduced in conveyancing rules, in order, not only to modernise the system, but also to render the system foolproof and hopefully protect property owners.

Counsel for the applicant has drawn my attention to the remarks of HOLMES JA, which are apposite, in the case of Oakland Nominees Ltd v Gelria Mining & Investment Co Ltd 1976 (1) SA 441 (A) 452A where the learned judge of appeal made emphasis that our law jealously protects the right of ownership and the correlative right of the owner over his property. He further stated:

“The legal principle enunciated above is solidly noble because since time immemorial, at every stage of human evolution, societies have suffered the inevitable unfortunate phenomenon of having in their midst, an array of thieves, fraudsters, robbers, cut-throats, the throwbacks in evolution etc with no qualms whatsoever in employing force or chicanery to dispossess fellow humans of ownership of their property.

If the law did not jealously guard and protect the right of ownership and the correlative right of the ownership to his/ her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.”

Just how does a fraudster and a thief, coveting another person's property, succeed to advertise the property, attract a buyer, sign a sale agreement, and engage a conveyancer to successfully transfer that property from the true owner to the buyer before gleefully skipping away with the proceeds?

Cosmas Luckyson Zavazava is employed by an international organisation which posts him to various parts of the world and is currently stationed in Geneva, Switzerland. He and his wife, Vongai, identified an under-developed piece of land, Stand 816 Ruwa Township of Stand 659 Ruwa Township (the property) and purchased it on 29 November 1996.

They took transfer on 20 March 1997 and held title by Deed of Transfer number 997/1997.

They did not commence developing the property owing to their sojourn in foreign territories in pursuit of the husband's employment. When they tried to do so, in 2013, they discovered, to their amazement, that, Jonah Tendere and Tendai Idzai Anania Tendere, husband and wife, who are the first and second respondents in this matter, were busy trying to develop the property.

It turns out that, unbeknown to the Zavazava family, who are the applicants in this matter, a stranger, by the name Wilson Madziva, who is now deceased and was running an estate agency known as Thermo-Dynamics Real Estate (what a name), which is the third respondent in this matter, had advertised the property through the agency of another estate agent, Elite Real Estate (Pvt) Ltd, attracting the interest of the first and second respondents.

A sale agreement was entered into between them and the third respondent and signed on 17 July 2009 in terms of which the property was sold for $8,500. It was subsequently transferred from the third respondent to the first and second respondents with the active involvement of the late Wilson Madziva, by Deed of Transfer Number 204/2011.

The third respondent had itself taken transfer of the property by Deed of Transfer Number 1680/2009.

The conveyance of the property, from the applicants to the third respondent, was handled by one Walter Bherebhende, a conveyancer practising at Mavhunga & Sigauke Legal Practitioners of Harare.

The applicants say they never sold their property and never instructed Walter Bherebhende to transfer it to the third respondent. Only Walter Bherendere knows what transpired and he has deposed to an affidavit which has not been challenged stating:

“4. My knowledge of this matter is as follows:

4.1. In March 2009, I was practising under Messrs Mavhunga & Sigauke Legal Practitioners when I was approached by a Mr Wilson Madziva who was a client of our law firm and also the proprietor of an estate agent known as Thermo Dynamics Real Estate which is the third respondent herein.

4.2. Mr Madziva instructed me to process the transfer of Stand 816 Ruwa Township of Stand 659 Ruwa Township which was registered under the applicant's names under Deed of Transfer No.997/1997 into the name of the third respondent.

4.3. I confirm that I was shown an agreement of sale which purported to have been signed by all the parties.

4.4. I then proceeded to prepare the necessary powers of attorney to pass transfer and I requested that all of the parties appear at our offices to attend to the signing of the declarations and powers of attorney. I also requested the parties to bring their original identity documents and the original title deed.

4.5. Wilson Madziva appeared on behalf of the third respondent and persons purporting to be the applicants also appeared on behalf of them with the original title deed and identity documents in the applicants names.

4.6. I confirm that I had no reason to suspect that the persons purporting to be the applicants were in actual fact not the applicants.

4.7. Accordingly, the transaction proceeded as normal, and, after all normal channels and procedures were followed, the property only transferred into the name of the third respondent under Deed of Transfer No.1680/2009.

4.8. I was surprised, when, five years later, I was approached by the police and advised that the persons who had appeared before me were in actual fact not the applicants. Unfortunately, I had not made copies of the identity documents and I tried to access them from ZIMRA; however, ZIMRA insisted that it would only release the same upon a court order compelling them to do the same.

4.9. I can however confirm that the parties who appeared before me are not the applicants in this present matter.

4.10. Mr Wilson Madziva is however now deceased therefore he is also not in a position to clarify the issues.

5. In the circumstances, in light of the fact that initial transfer was done through a misrepresentation, I would aver that the applicants are entitled to the relief they seek in respect of cancellation of the title deeds.”…,.

Therein lies the problem.

The conveyancing instructions given to the conveyancer came from the purported purchaser of the property, Wilson Madziva, representing the third respondent, and not from the purported sellers and owners of the property - the applicants.

This did not stop the conveyancer, purporting to act on behalf of the sellers, from proceeding with such instructions.

He says he only requested that all the parties should appear before him, which is as difficult to believe as it is very unlikely in the circumstances of a busy law practice - assuming his was also busy.

A conveyancer is the agent of the seller and undertakes transfer at the instance of the seller and not the purchaser.

As long as legal practitioners in this jurisdiction do not grasp that basic fact, we will continue to have fraudulent transfers of property as occurred in this matter.

I must add, that, as long as law firms continue to relegate conveyancing practice to clerks and paralegals the rot that is presently manifesting itself will perpetuate.

For one thing, these conveyancing clerks and lodging clerks do not appreciate the legal implications of the procedure provided for transfer, and, as far as they are concerned, as long as the necessary documents have been signed, no matter by who, and the conveyancing fees paid, the job has been done.

Invariably, the conveyancer is merely presented with processed documents and happily appends his signature on the top of the Deed and appropriates the fee before hastily leaving the office to play golf.

No effort is made to verify the documentation and to ensure compliance with the rules.

In short, the rules are adulterated for expediency and the most important element in legal practice, conveyancing, is reduced to a mockery.

Once signed, the deeds are taken to the Deeds Registry by a lodging clerk for lodgement, and, although the contents announce to the world that the conveyancer appeared before the Registrar of Deeds to convey the transfer; in practice, the conveyancer never does that.

It is for that reason that we are now experiencing an influx in cases of fraudulent transfers.

What we have here therefore is an unfortunate situation indeed borne out of laxity and inattention.

The conveyancer was remiss in a big way and only succeeded in transferring property belonging to the applicants unlawfully. A fraudster took that transfer and later sold the same property to the first and second respondents who are also victims of a fraud.

The question which arises therefore is: what was the legal effect of all that activity and where does it leave the parties?

The papers before me clearly demonstrate that the applicants did not sell their property to the third respondent. They did not transfer it either. That was done by someone else - without their knowledge or consent.

The position of the law, in that regard, is aptly stated by the leaned author R.H. CHRISTIE, Business Law in Zimbabwe, 2nd Ed, Juta & Co Ltd…,:

“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring a vindicatory action to recover his property from anyone, including a bona fide buyer, in whose hands he finds it. The general rule that the seller can give no better title than he has operates in favour of the true owner, unless the purchaser proves that the true owner is estopped from denying the seller's authority to sell.”

McNALLY JA developed that point further in Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S)…, when he pronounced:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20 A-C. The innocent purchaser's only defence is estoppel.”

The nemo dat quod non habet and nemo plus iuris ad alium transferre potest quam ipse habit; that is, no one can give what he does not have and noone can transfer any right greater than he himself possesses are firmly rooted in our legal science.

Therefore, where a person who is not the owner, and possesses no mandate to do so, purports to transfer property, such transfer is a nullity; see SILBERBERG and SCHOEMAN, The Law of Property, 2nd ed…,.

The applicants therefore have a vindicatory right against whomsoever is in possession of their property - even an innocent purchaser.

The actio rei vindicatio is available to the owner whose property is in the possession of another without his authority or consent. Its concept is that an owner cannot be deprived of his property against his will. Such owner is entitled to recover the property from any person who is in possession of it without his consent.

All the owner is required to prove is that he is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right of retention; see Jolly v A Shannon & Anor 1998 (2) ZLR 78 (H)…,; Chetty v Naidoo 1974 (3) SA 13 (A)…,; Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H).

It is regrettable that the possessors of the applicants' property are an innocent couple which was trying to find a home for themselves and have lost their money to a trickster who has already met his maker.

There is however a glimmer of hope for them because the third respondent, the vehicle through which Wilson Madziva operated, is said to be still operational presenting them with a chance to recover damages from it.

For our purposes, to the extent that the applicants did not alienate their property, the attempt to do so by someone else was a nullity. Therefore, the purported transfer from the applicants to the third respondent, by Deed of Transfer No.1680/2009 was invalid as a non-owner could not transfer what he or she did not own. It follows, therefore, that, the purported transfer from the third respondent to the current holders was also a monumental nullity.

At all times, the applicants legally retained ownership.

As a necessary consequence, the provisions of section 8(2) of the Deeds Registries Act [Chapter 20:05] apply. It provides:

“Upon the cancellation of any deed pursuant of an order of court -

(a) The deed under which the land or any real right in land was held immediately prior to the registration of the deed which is cancelled shall be revived to the extent of such cancellation unless a court orders otherwise; and

(b) The registrar shall make the appropriate endorsement on the relevant deeds and entries in the registers.”

In the result, it is ordered that:

1. The 4th respondent is hereby directed to cancel Deed of Transfer No.1680/2009 and Deed of Transfer No.204/2011 in favour of the 3rd respondent and the 1st and 2nd respondents respectively in respect of the immovable property described as certain piece of land in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township and to make any appropriate endorsements on the said Deeds of Transfer and entries in the registers to reflect the said cancellations.

2. Deed of Transfer No.997/1997 is hereby declared the valid deed in respect of the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township.

3. The 1st and 2nd respondents and all those occupying through them the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township, shall give vacant possession of the said property to the applicants within fifteen (15) days of this order failing which the Sheriff of the High Court or his lawful deputy is hereby authorised and directed to evict them and give vacant possession to the applicants.

4. The 1st, 2nd and 3rd respondents shall bear the costs of suit jointly and severally the one paying the others to be absolved.

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course.

The following are the reasons for the order.

The facts arising in this matter are that, in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:

“Upon successful completion of the probation period, the employment contract shall run for a further period of 24 (twenty-four) months after which the authority may, at its sole discretion, offer you permanent employment on such terms and conditions as determined by it at the time.”

The literal meaning of that clause is that the respondent's contract was subject, first, to the successful completion of the probation period and then would terminate at the end of the 36 month.

In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment.

He was arraigned before a Disciplinary Committee and was found guilty of both charges. He was, as a consequence, dismissed from employment.

He appealed to the Appeals Committee without success.

The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court a quo ordered the appellant to reinstate the respondent without loss of salary or benefits, and, in the event that reinstatement was no longer tenable, to pay damages in lieu of reinstatement.

This decision was not appealed against.

Instead, the parties decided to negotiate the quantum of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification.

He claimed, that, when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee.

The appellant opposed the quantification on the basis that the respondent was employed on a fixed-term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract.

The Labour Court ruled in favour of the respondent and ordered the appellant to pay:

(a) US$19,740=16 as back-pay and benefits.

(b) Twelve (12) months' salary that the respondent would have earned in August 2011 minus US$150 earned by the respondent per month for a period of twelve months.

The appellant was aggrieved by the decision, and, with the leave of this court has appealed the order of the court a quo.

It is criticized for the following reasons:

(i) Failing to put due weight to the fact that the respondent was employed as a Revenue Trainee on a fixed term contract of 36 (thirty six) months.

(ii) Failing to give proper weight to the fact, that, when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.

(iii) Failing to give proper weight to Clause 1.3 of the Zimbabwe Revenue Authority offer of employment which provides that permanent employment could only be offered at the sole discretion of the appellant....,.

On the merits, the issues which are pertinent in the determination of the appeal are the following:

(a)...,.

(b) Whether or not the respondent had a legitimate expectation of being offered employment on a permanent basis;...,.

In terms of clause 3.1 of the contract, the appellant had the sole discretion in deciding whether or not to offer the respondent a permanent position.

When the respondent was dismissed, the appellant had not exercised that discretion.

As a consequence, the court a quo ought to have given effect to that clause....,.

The respondent had not completed his training period at the time that he was dismissed and he had failed two core courses which he resat for examinations in 2005 - and failed. He would only be competent to be employed on a permanent basis after successfully completing the training.

Paragraph 9 of the Zimbabwe Revenue Authority Staff Training and Development Policy provides:

“A Revenue Trainee who fails to successfully complete level 2, and has a negative mentor's report, will have his/her contract of employment terminated at the end of the prescribed traineeship period. However, in exceptional cases, or on recommendation by a mentor/supervisor, he/she may be given one chance to re-sit the failed subject.”

He did not deny that he had re-written the required examinations and that he had failed a second time.

His explanation, upon being shown the examination scripts, was that he had forgotten having written the said examinations.

Against these clear admissions, it was therefore a serious misdirection on the part of the court to accept a contention from the respondent that he had only seen the 2005 examination scripts for the first time in court when the appellant produced them.

From what is stipulated in the policy, it is clear that the respondent's employment would have been terminated at the end of the 36 months because he had failed the examinations.

SSC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.FACTSThe details of this case can be summarised as follows:The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment ...

This is an appeal against the judgment of the High Court dismissing the appellant's application for variation of bail conditions.

FACTS

The details of this case can be summarised as follows:

The appellant was, in 2018, injured during a bomb blast in Bulawayo. She sustained injuries on her arms. She sought medical treatment in South Africa. Until her arrest, on 4 December 2019, she was receiving treatment from a South African specialist doctor.

On her arrest, she was charged with:

1. Six (6) Counts of contravening section 5(1)(a) of the Exchange Control Act [Chapter 22.05] 'exporting foreign currency.'

2. Six (6) Counts of contravening section 8(2) of the Money Laundering and Proceeds of Crime Act [Chapter 9.24] 'concealing, disguising the true nature, source, location, disposition, movement or ownership of or right's with respect to property, knowing or suspecting that such property is proceeds of crime.'

3. One (1) Count of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9.23] (fraud).

She was subsequently charged with the attempted murder of her husband and assault for assaulting their maid.

According to documents attached to Form 242s in the applicant's application for variation, the appellant's charges of 6 (six) counts of contravening section 5(1)(a) of the Exchange Control Act are based on the following facts:

Count One: That she sent her driver Carrington Kazingizi and Terrence Mutandwa to China with US$114,000 without any declaration being made to the authorities.

Count Two: That she instructed Memory Chakuinga to issue a proforma invoice for the supply of event tents and chairs which were sent to CBZ Bank and the appellant. The appellant then applied to CBZ Bank for the transfer of US$201,846-=81 by telegraphic transfer into Falcon Projects Suppliers (Private) Limited's South African FNB bank account no 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the money from the purchase of event tents and chairs to Range Rover Centre Menyln towards the purchase of her personal vehicle, a Range Rover Autobiography, which she registered in South Africa, in her name, bearing registration number HW40JNGP.

Count Three: That she instructed Memory Chakuinga to raise a proforma invoice for the supply of household electric meters which she sent to CBZ Bank and the appellant. The appellant used that proforma invoice to cause CBZ Bank to transfer US$307,545=05 into Falcon Projects Suppliers (Private) Limited's South African FNB Bank account number 62576755105.

Thereafter, the appellant instructed Memory Chakuinga to divert the funds towards purchasing House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa. The house was registered in the name of LaChelle Travel and Tours (Pty) Ltd South Africa of which the appellant is the sole shareholder.

Count Four: That the appellant requested Judith Gamuchirai Goredema to source for three million rands for the purchase of the appellant's two cars, a Range Rover and a Ranger.

Thereafter, the appellant gave Judith Gamuchirai Goredema US$230,769=23. The Range Rover was registered in South Africa in the appellant's names bearing registration number HX61PSGP. The registration details for the Ranger had not been established at the time the charges were preferred.

Count Five: That the appellant externalised US$36,923=08 for the purchase of furniture for her South African House Number 1309 Kingstone Heath Close, Waterkloof Golf Estate, Pretoria, South Africa.

Count Six: That the appellant instructed Memory Chakuinga to prepare an invoice for the supply of prepaid meters. Thereafter, the appellant used it to cause CBZ Bank to transfer US$142,859=30 into Bonnette Electrical (Pty) Ltd's South African Standard Bank account number 371164540.

Instead of the money being used to purchase prepaid meters, the appellant instructed Memory Chakuinga to divert it towards the purchase of her second house being, Number 149 Valderana Close, Pretoria, South Africa.

The allegations involve the unlawful externalisation of US$1,033,943=10.

The other 6 (six) counts are for money laundering.

The charge of fraud is for misrepresenting to the Judge President and the Acting Chief Magistrate that her husband had consented to the solemnisation of their marriage when he had not, resulting in marriage arrangements and documents being prepared and the Acting Chief Magistrate going to No. 614 Nick Price Drive, Borrowdale Brooke to solemnise the marriage which did not take place.

The attempted murder charge is based on what she is alleged to have done in South Africa when her husband, who was critically ill, had been airlifted to South Africa for treatment.

It is alleged, that, she, instead of taking him to hospital, kept him in a hotel room for more than 24 hours until her husband's security personnel intervened and took him to hospital. Thereafter, the appellant visited her husband who was in a private ward and on life saving Intra Venous Giving Set as well as Central Venous Catheter in order to sustain his life. She requested for privacy with her husband. Her husband's security personnel left the ward after which the appellant removed the life-saving equipment from the complainant who started bleeding profusely. She is alleged to have pushed him off the bed and left the ward. Thereafter, her husband's security personnel, on seeing what had been done to the complainant raised alarm and hospital staff came and reconnected the life saving equipment.

The assault charge is based on allegations that she assaulted their maid who she had met at their children's school.

Her bail applications in the Magistrate's Court were dismissed. She appealed to the High Court which granted her bail for the initial charges, on the following conditions:

1. That she deposits RTGS$50,000 with the Clerk of Court at Harare Magistrate's Court.

2. That she reside at 614 Nick Price Drive, Borrowdale Brooke, Harare.

3. That the Clerk of Court shall accept as surety the property known as Lot 1 of Lot 343A Highlands Estate measuring 3,642 square metres held by KM Auctions (Private) Limited, under Deed of Transfer 2244/2006 accompanied by the necessary resolution of the directors and shareholders of KM Auctions (Private) Limited, Keni Mubaiwa and Helga Junior Mubaiwa.

4. That applicant shall surrender her diplomatic passport to the Clerk of Court at Harare Magistrate's Court.

5. That the applicant shall report at Borrowdale Police Station once a fortnight on Friday between 6am and 6pm.

6. The applicant shall not interfere with State witnesses.

In respect of the attempted murder charge, the none-monetary conditions imposed in respect of the initial charges were ordered to cover this charge in addition to her being ordered to pay additional bail in the sum of RTGS$10,000. The condition that she resides at No.614 Nick Price Drive, Borrowdale Brooke was varied to No.64 Follyjon Crescent Glen Lorne, Harare.

In respect of the assault charge, the following bail conditions were ordered by the High Court:

1. That she deposits $1,500 with the Clerk of Court, Harare Magistrates Court.

2. She resides at Number 64 Follyjon Crescent, Glen Lorne, Harare until the matter is finalised.

3. She reports at Borrowdale Police Station every fortnight on Friday between 6am and 6pm.

4. She does not interfere with State witnesses, including Delight Munyoro and Batsirai Furukiya. She does not attend at Hellenic Primary School except in connection with consultations with school authorities.

Thereafter, the appellant's initial bail conditions were altered to include the surrendering of her ordinary passport number CN701555 which had not been previously disclosed when bail was granted by the High Court, to the Clerk of Court at Harare Magistrates Court.

Subsequently, the appellant applied to the court a quo for the variation of her bail conditions.

She sought the release to her of her ordinary passport so that she could travel to South Africa for medical treatment by Dr Van Hedeen, a specialist on lymphoedema. She also sought the temporal suspension of the condition that she reports to Borrowdale police every fortnight on Fridays. This was to enable her to travel to South Africa where she was to receive treatment for a period which would result in her not being able to meet the reporting condition.

In her application for variation, the appellant concentrated on the condition of her health. She did not explain how the interests of justice should be balanced with her need for medical treatment if her application was to be granted.

She merely said she would not abscond as she could not risk the forfeiture of her parents' property which was offered as surety when she was granted bail by the High Court.

On the other hand, the first respondent opposed the application alleging that the appellant has strong ties with South Africa and that most of the charges preferred against her involve the externalization of foreign currency to South Africa.

The attempted murder is alleged to have occurred in South Africa.

The first respondent also opposed the application for variation on the basis that the evidence led by the appellant left grey areas on the issue of whether or not there are specialists in Zimbabwe who can treat the appellant's condition.

The court a quo accepted that the appellant needed medical treatment by specialists. It accepted that prior to her arrest she was being attended to by Dr J Van Hedeen, a South African specialist. The court a quo however did not accept the evidence of Dr J Van Hedeen who authoritatively spoke about the appellant's current condition without disclosing how he got that information as the appellant has not travelled out of Zimbabwe since her arrest on 4 December 2019. It also did not accept the evidence of specialist neurologist, Mr Makarawo, on his statement that there are no specialists on lymphoedema in Zimbabwe.

It held that the appellant's application was based on inadequate evidence.

The court a quo gave its reasons for dismissing the appellant's application on pp33 to 34 of the record as follows;

“What I have before me by way of applicant's medical condition is one-sided. It is true that first respondent concedes that she is unwell. It is true also that she needs treatment. But that cannot be the end of the matter.

Indeed, papers from her own doctors contain some grey areas. Mr Makarawo first attended to her on 6 November 2020. He diagnosed her with lymphoedema and recommended that she be treated in South Africa because he believes that there are specialists there. I have already rejected his assertion that there are no lymphoedema specialists in Zimbabwe. I have explained why I have done so.

Dr J Van Heeden may have been treating applicant before the later's arrest on 4 December 2019. But, no evidence was presented before me to prove that he or she has attended to her since then. Applicant concedes that she has not travelled out of the country since her arrest. But, in October and November 2020, Dr J Van Heeden is giving a fairly detailed narration of applicant's medical condition and the specialist care required.

Applicant says she sought medical treatment in Zimbabwe post 4 December 2019. She says those efforts have not alleviated her condition. Instead, her health has deteriorated. She has produced neither medical reports nor other medical records to substantiate her assertion that she has failed to obtain the care that she needs in this country. I only have Mr Makarawo's letter, written on 6 November 2020. So there is that gap in the evidence.

Applicant has placed inadequate information before the court to warrant alteration of her bail conditions.

ORDER

In the result, the application is dismissed.”

It is for these reasons that the court a quo dismissed the appellant's application without considering the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions, and, if so, on what conditions.

Aggrieved by the court a quo's decision, the appellant appealed to this Court on grounds of appeal which raise the following issues:

1. Whether the court a quo misdirected its self when it held that the applicant's evidence left gaps which justified the dismissal of her application for variation.

2. Whether, on the evidence on record, it was established that the alteration of bail conditions sought by the appellant is in the interest of justice.

SUBMISSIONS BY THE PARTIES

In view of the lockdown due to Covid-19, I did not call the parties to appear before me to make oral submissions. I however invited their counsels to file Heads of Arguments as provided by Part III paragraph (4) of the Chief Justice's Practice Direction No.2 of 2021.

Counsel for the appellant submitted that the court a quo erred when it dismissed the appellant's application on the basis that the applicant had given the court inadequate information on whether or not there are lymphoedema specialists in Zimbabwe who could treat her locally.

She submitted that the court a quo erred when it relied on the armchair evidence of Dr Magure while disregarding that of neurologist, Mr Makarawo, who had examined the appellant and formed the opinion that her condition required the attention of specialists on lymphoedema in South Africa as there are no specialists on lymphoedema in Zimbabwe.

Counsel for the appellant further submitted that the court a quo also erred by dismissing the application without deciding the issue of whether or not it was in the interest of justice to vary the appellant's bail conditions.

She also argued that the first respondent had alleged that the appellant will abscond if variation is granted as she has roots in South Africa without leading evidence on that aspect.

She, in conclusion, urged this Court to allow the appeal and grant the appellant's application for variation.

Counsel for the first respondent, in response, submitted, that, the court a quo had correctly held that the evidence led by the appellant left the court with inadequate information on whether or not her condition could not be treated locally. She submitted that the evidence led from neurologist, Mr Makarawo, and Dr J Van Heeden, had gaps which left the court with inadequate information.

On the issue of whether or not the State had led evidence on the likelihood of the appellant absconding because she has ties with South Africa, she submitted that it is not a rule of thumb that evidence has to be led in bail applications in rebuttal of what is placed in issue. The written documents and affidavits sufficed.

She further argued that she had, through her written response and in oral argument, urged the court a quo to strike a delicate balance between the two conflicting interests.

She further submitted that the court a quo considered the totality of the evidence and properly dismissed the application....,.

Whether the court a quo, misdirected itself when it held that the applicant's evidence left gaps which justified the dismissal of her application for variation

In her heads of argument, the appellant's counsel submitted that the court a quo misdirected itself when it disbelieved Mr Makarawo's evidence that there are no specialists on lymphoedema in Zimbabwe.

A reading of the record establishes that the court a quo did not disbelieve Mr Makarawo's evidence on the condition of the appellant and her need for a specialist to treat her condition.

It is a well-known fact that doctors refer their clients to specialists if they cannot treat them themselves. It is a notarious fact courts can take judicial notice of.

The court a quo could therefore only disbelieve Mr Makarawo's evidence on the basis of evidence to the contrary being led that there are indeed specialists on lymphoedema in Zimbabwe.

The court a quo said it relied on the evidence of Dr Tsitsi Mildred Magure.

A reading of her evidence establishes that she did not say there are specialists on lymphoedema in Zimbabwe. She, in her statement, said:

“I cannot therefore commit myself to whether we have expertise locally to manage the condition or not without knowing the underlying cause of the lymphoedema. Determination of which expertise is best placed to manage the case depends on the cause and grade of the lymphoedema. Assessment by a multi-disciplinary team might conclude which expert to lead the management.”…,.

The questions which the Prosecutor General's office had asked were not answered directly.

The Prosecutor General's office had asked the Ministry of Health, which forwarded the question to Dr Magure:

1. Whether medication and the necessary facilities for its cure are readily available in Zimbabwe; and

2. Whether there are any lymphoedema specialists in Zimbabwe.

Dr Magure's response did not address the question whether medication, and the necessary facilities for its cure, are readily available in Zimbabwe. She also refused to commit herself as to whether or not there are specialists on lymphoedema in Zimbabwe.

Her suggestion, that, a “multi-disciplinary team might conclude which expert to lead the management” suggests that an experiment has to be undertaken to establish which expert can lead the management.

This does not prove that there is readily available medication and the necessary facilities for the cure of lymphoedema in Zimbabwe.

The question whether there are specialists on lymphoedema in Zimbabwe could have been answered by simply saying yes and stating the names of the specialists.

I am therefore satisfied that the court a quo misdirected itself when it preferred the evidence of Dr Magure to that of specialist neurologist Mr Makarawo.

The finding by the court a quo, that Dr Van Hedeen's evidence left a grey area as to when he examined the appellant, cannot be faulted.

It is the duty of an applicant to lead evidence which can satisfy the court and enable it to make a finding in its favour.

The court a quo correctly observed that the appellant had not left Zimbabwe since her arrest on 4 December 2019. The court a quo therefore correctly questioned how Dr Van Hedeen, who lives in South Africa, could have examined the appellant to enable him to give a detail narration of the appellant's current condition.

The court a quo also correctly held that the appellant had not substantiated her claim that she had sought treatment locally in Zimbabwe without success. It observed that no supporting documents were placed before the court in support of that claim, from doctors who were attending to her.

A reading of the record proves that the appellant did not produce such documents.

I am however of the view that the omission was cured by Mr Makarawo's report to the effect that there was gross swelling of the appellant's arms and legs and the first respondent's concession that the appellant is unwell.

That, on its own, is proof that whatever treatment she might have received after her arrest had failed to cure the lymphoedema.

While the court a quo's observation is correct, it is an irrelevant and unnecessary quest for further evidence in circumstances where the first respondent had made a concession.

It is trite that what is not disputed need not be proved.

I therefore agree with counsel for the appellant, that, the appellant had, through the evidence of Mr Makarawo, proved that her condition required a specialist's attention in South Africa where she was receiving treatment before her arrest.

Appealed
HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)
Ruled By: CHINAMORA J

The law is clear on the consequences of failure to deny a specific allegation of fact.For the avoidance of doubt, an unrefuted allegation is taken as having been admitted: see Fawcett Security Operations v Director of Customs Excise 1993 (2) ZLR 121 (SC).

HH309-15 : IRENE ZINDI vs ZIMBABWE FARMERS DEVELOPMENT COMPANY LIMITED
Ruled By: MWAYERA J

The respondent obtained default judgment against the applicant on 21 July 2011. The default judgment was pursuant to a claim for $77,546=56 from a contract of purchase and sale concluded by the parties.The applicant approached the court for rescission of judgment in terms of Rule 449 of the High Court ...

The respondent obtained default judgment against the applicant on 21 July 2011. The default judgment was pursuant to a claim for $77,546=56 from a contract of purchase and sale concluded by the parties.

The applicant approached the court for rescission of judgment in terms of Rule 449 of the High Court Rules:

“Rule 449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu, or upon the application of any party affected, correct, rescind, or vary any judgment or order.

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or patent error or omission, but only to the extent of such ambiguity, error, or omission; or

(c) That was granted as a result of a mistake common to the parties.”...,.

The applicant's contention was that she only became aware that there was a judgment against her on 6 March 2014 when she retrieved a letter from the pigeon hole at Parliament. The letter was to the effect that the respondent had obtained a judgment against her and was about to execute her property.

The applicant contended that she was not aware of proceedings instituted against her and that the summons and declaration were not served on her.

She was only shown the record by the legal practitioners whom she consulted on 6 March 2014 upon receiving a letter that there was a judgment against her.

The basis of the applicant's argument was that she was not aware of all the process culminating in the default judgment and that the judge who granted the order was not aware of the applicant's lack of knowledge of the process leading to the default judgement.

The respondent, in turn, opposed the application for rescission of judgement in terms of Rule 449.

The basis of the opposition being, that, the applicant was served with the summons and declaration through the Farm Manager, Cliff Mukowamombe, at Burma Valley Farm, Mutare South.

The respondent argued, that, the application has no merit as the applicant has no “good and sufficient” cause; in other words, the respondent contended that the applicant has no explanation for the default and also that the application has no bona fides as it lacked genuiness.

In the present case, what falls for scrutiny is whether or not, in the circumstances of this case, the applicant has made a good cause for rescission as provided for in Rule 449.

I propose to deal with the application for rescission of judgment as outlined in Rule 63 of the High Court Rules first:

“A court may set aside judgment given in default

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

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

'Good and sufficient cause' has been shown, in many cases, as amounting to the party having an explanation for default and having bona fides in defence.

It appears rescission of judgment under Rule 63 requires the court to assess whether or not the default which occasioned the default judgment was wilful. The court has, of necessity, to make a conscious assessment of whether or not the applicant, with full knowledge of the matter and appreciative of the consequences attendant thereto, makes a decision to refrain from appearing.

Wilful default was ably defined by McNALLY JA in the case Zimbabwe Banking Corp Ltd v Masendeke 1995 (2) ZLR 400 and I seek guidance therefrom.

The court, in dealing with an application for rescission of judgement in terms of Rule 63, goes further to consider not only the aspect of wilfulness of default but the bona fides of the defence.

Once these two, wilful default and genuiness, are considered and viewed as amounting to 'good and sufficient cause' as outlined in Rule 63(2) will have been established warranting rescission of default judgement.

Application for rescission of judgment in terms of Rule 449 of the High Court Rules, as discerned from the mere wording of the Rule, has different requirements for consideration.

The court has to look at whether or not the judgment which is sought to be rescinded was erroneously sought or erroneously granted in the absence of any party affected.

It gives further requirements on whether or not there was an ambiguity and whether or not the judgment was granted as a result of a mistake.

The Rule does not seek to draw the attention of the court to 'good and sufficient cause' as outlined in Rule 63.

It is my considered view, that, the distinction in an application for rescission of judgment in terms of Rule 63 and Rule 449 cannot be under played.

It is quite central for the determination of the present case.

It is apparent the requirements which come into consideration are different.

In Rule 449(1), the court has to consider whether or not a relevant fact, which ought to have been placed before the court, has not been placed before it. The court need not go into whether or not there is good and sufficient cause. Once it is established that a certain fact was not brought to the attention of the judge at the time of grant of the order or judgment, then, that is sufficient and the end of the matter in an application to correct, rescind, or vary any judgment or order in terms of Rule 449.

The case of Grantually (Pvt) Ltd and Another v UDC Ltd 2000 (1) ZLR 361 is relevant.

In the case of Banda v Pitluk 1993 ZLR 60, ROBINSON J.., captured the issue of the difference on considerations for rescission under Rule 63 and Rule 449 as follows:

“Let me reiterate immediately that rescission of a judgment under Rule 449(1)(a) is entirely different and must therefore be distinguished from an application for rescission of a default judgment under Rule 63 which require the court, before it sets aside a judgment under that Rule, to be satisfied that there is good and sufficient cause to do so.

Nor is the court concerned with the issue of whether the defendant has a 'good prima facie defence to the action;' the test to be applied by the court under Rule 66(1)(b) when considering application for summary judgment.”

See also Tiriboyi v Joni and Another HH117-04 and National Blankets Limited v Zimbabwe Textiles Workers Union HB16-11.

Recourse to Rule 449 is to enable the courts to correct an otherwise injustice which would be occasioned by an order erroneously sought or granted.

In casu, the respondent did not seek to oppose the application for being premised in terms of Rule 449 but sought to argue, that, for the application to succeed sufficient and good cause has to be shown.

The above discussion has clearly shown the distinction between the requirements for the rescission of judgement under Rule 63 and Rule 449.

The applicant, in the present case, has to show facts before rescission of the judgment which were not placed before the court which granted the judgment which forms the subject of the matter. Once a relevant fact which was not placed before the court at time of judgment is established then the judgment ought to be corrected, rescinded, or varied in conformity with Rule 449.

The respondent's argument, that the applicant has to show sufficient 'good cause' for rescission to be granted is not a requirement under Rule 449.

In the case of Grantully (Pvt) Ltd and Anor v UDC Ltd 2000 (1) ZLR 361 (S), the honourable GUBBAY CJ…, ably and lucidly outlined the purpose of Rule 449 when he ruled, that, once it is established that a relevant fact which ought to have been placed before the court was not placed before it, there is no need for further inquiry for there is no requirement for an applicant seeking relief under Rule 449 to establish 'good cause'.

In my view, Rule 449 is availed to cater for situations where a judgment erroneously sought or issued in era, if allowed to stand, would occasion an injustice.

In Grantually (Pvt) Ltd and Another v UDC Ltd 2000 (1) ZLR 361, GUBBAY CJ held as follows:

“Nonetheless, the existence of such lack of diligence, and the deliberate decision taken not to file a plea, while effectively barring the success of an application brought in terms of Rule 63 for rescission of default judgment, was of no relevance to the application made; for there is no requirement that an applicant seeking relief under Rule 449 must establish 'good cause'. If the court holds that a judgment or order was erroneously granted, in the absence of a party affected, it may be corrected, rescinded, or varied without further enquiry.”

I subscribe to the reasoning in Grantually (Pvt) Ltd and Another v UDC Ltd 2000 (1) ZLR 361; moreso given relief under Rule 449 is clearly a procedural step meant to restore the parties to a position they were in prior to an order being erroneously sought or granted.

In the circumstances of this case, where the applicant argues information about her relocation and lack of knowledge of process can only be redressed under Rule 449.

The applicant, from submissions filed of record, argued that she was not served with summons in question and that the process was not brought to her attention as she left or relocated from the farm way back in the year 2009.

This assertion was not challenged or rebutted and thus supporting that the applicant was not aware.

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

This is an appeal against a judgment of the Labour Court wherein the decision to dismiss the appellant from employment that had been made by the appellant's Managing Director was set aside whilst an earlier decision by the disciplinary committee, that the respondent be issued with a second written warning, was confirmed.

The facts of the matter may be summarized as follows;

The respondent was employed as a Creditor's Clerk by the appellant. He was charged with a number of acts of misconduct. He denied all the charges. A hearing was conducted by the disciplinary committee. On 30 January 2014, the Human Resources Manager communicated the disciplinary committee's decision to the respondent in the following terms:

“RE: DETERMINATION ON HEARING

Reference is hereby made to the internal disciplinary hearing finalized on 29 January 2014 in respect (of) cases in terms of SI67 of 2012 Annexure 2 Action Code:

(i) Offence number 2; 2.2 – Gross incompetence or inefficiency in performance of work.

(ii) Offence number 2; 2.3.1 - Gross negligence.

(iii) Offence number 3; 3.7 – Insubordination.

(iv) Offence number 3; 3.14 - Wilful disobedience of a lawful order given by the employer.

After deliberations, the hearing committee passed the following verdict:

(a) Presentation of case was not properly done.

(b) You need to change your attitude towards your job and to put more effort in your job.

(c) You shall report for duty to your normal duties with effective (sic) 1 February 2014.

In light of the above, the hearing committee then agreed that you be given a second written warning which will last for the period of 3 months.

If you are aggrieved with this decision, you have the right to appeal in terms of S.I.67 of 2012 appeal procedure.”

The complainant in the disciplinary hearing appealed to the Managing Director against the Disciplinary Committee's decision. There was no appeal by the respondent.

On 10 February 2014, the Managing Director wrote to the complainant in the following terms:

“Attention: COMPLAINANT
PIONEER TRANSPORT

Re: APPEAL AGAINST DECISION IN DOUGLAS MAFIKENI HEARING

I refer to your letter addressed to me dated 3 February appealing against the decision of the Disciplinary Committee in the hearing of Douglas Mafikeni passed on 29 January 2014.

I have read through the minutes of the hearing and looked at the deliberations made, and have come to the conclusion, that, the disciplinary committee made an error in coming up with the determination.

It is very clear that Douglas Mafikeni (sic) failed to meet set deadlines and submitted creditor's listing (sic) that was grossly incorrect showing a very high level of incompetence. Despite him having been given a written warning three months earlier he still failed to improve performance in executing his duties.

Matters of discipline are determined on a balance of probability, and, as such, all these factors of failure to meet deadlines, production of incorrect creditors listing even after having been given an extension. (sic)

THEREFORE, in light of the above, I hereby overturn the determination by the Disciplinary Committee, and the respondent is found guilty of the charges and the penalty is dismissal. The respondent (sic) should be dismissed effective 12 February.”…,.

On 12 February 2014, a letter was written by the Human Resources Manager to the respondent. It reads:

“This letter serves to inform you, that, following a disciplinary committee hearing that was concluded on 29 January 2014, where the disciplinary committee made a decision to give you a second warning, an appeal was made by the complainant against that decision in terms of Part E section E1.1 of the SI67 of 2012. (sic)

A decision was made by the office, made from the office (sic) of the Managing Director, as defined in Part A4 (definitions) of the Sixth Schedule, overturning the decision of the disciplinary committee.

The decision to overturn the disciplinary committee ruling was based on the fact that you failed to meet set deadlines, you also presented a creditors listing that was grossly incorrect showing a very high level of incompetence.

It is against this background that you were found guilty in terms of SI67 of 2012 Annexure 2 sections 2.2, for gross incompetence, section 2.3.1, section 3.7 and section 3.14.

You are therefore being dismissed from Pioneer Transport with effect from 12 February 2014 and you are further advised that you have the right to appeal to the Labour Court against this decision in terms of Part E section E.3 of the Sixth Schedule within 21 working days.”

Aggrieved by the decision to dismiss him, the respondent appealed to the court a quo, arguing, inter alia, that the Managing Director had erred in considering an earlier written warning which had, in any event, expired. The appellant's contention, on the other hand, was that the earlier written warning was relevant and was therefore properly taken into consideration.

The court a quo approached the matter as one in which it needed to examine whether the appellant, as the employer, had exercised its discretion judiciously in light of section 12B(4) of the Labour Act, on the basis that it could only interfere with such discretion if it was not so exercised.

The court a quo found, that, the earlier written warning had expired, and that, therefore, the Managing Director had misdirected himself in giving any consideration to it. On that basis, the court then interfered with the appellant's decision and set aside the dismissal imposed by the appellant's Managing Director but confirmed the disciplinary committee's decision that a written warning be issued.

It may be noted at this juncture, that, the respondent averred that the first written warning is non-existent as the appellant failed to produce a copy of it in the disciplinary hearing and to the court a quo.

The appellant has not shed any light on this issue.

The appellant has now appealed to this court against the court a quo's decision on the following grounds:

(i) The court a quo grossly erred at law in interfering with the penalty of dismissal for a misconduct that goes to the root of the contract;

(ii) The court a quo erred at law in making a finding, that, an expired warning cannot be treated as a record of employment service when imposing penalty contrary to the provisions of section 12B(4) of the Labour Act [28:01] which makes it mandatory to consider such;

(iii) The court a quo misdirected itself, factually, which misdirection amounts to a point of law, in that it made a finding that the decision of the Appeals Officer to impose a penalty of dismissal was solely hinged on the issue of a previous warning which was not the case as the Appeals Officer also considered other factors like the gravity of the offence, inter alia.

The appellant's prayer (as amended) is for an order that the appeal is allowed and that the decision of the court a quo be set aside and substituted with the following:

“That the appeal be and is hereby dismissed with costs.”

The last paragraph of the letter dated 30 January 2014, to the respondent, informing him of the decision of the disciplinary committee, pointed him to S.I.67 of 2012 with regard to his right to appeal should he be aggrieved.

He did not appeal.

As already pointed out earlier, an appeal was noted by the appellant's representative who was the complainant in the Disciplinary Committee hearing.

SI67 of 2012 is the “Collective Bargaining Agreement: Transport Operating Industry.”

It incorporates, in the Sixth Schedule thereof, the Code of Conduct applicable to the entire transport operating industry. Part E, in terms of which the complainant appealed to the Managing Director, provides as follows:

“E. APPEALS AND REVIEW OF MATTERS

A party which may be aggrieved by the decision of the Disciplinary Committee, as per D.1 above, may, within 5 days –

E.1 Appeal to the Chief Executive.

E.1.1 Appeals to the Chief Executive where the issue involves dismissal or any form of termination of employment shall be in writing, and shall state the grounds of appeal.”

By stating that “a party which may be aggrieved…, may appeal” the section gives the right to appeal against the decision of the disciplinary committee to any party - including an employer who may be aggrieved by the committee's decision.

Thus, whilst it is generally undesirable for an employer to appeal against decisions that are usually viewed as decisions of its own internal disciplinary bodies; in casu, the applicable law, that is to say, the Statutory Instrument, allows, in clear terms, for an appeal against the decision of the disciplinary committee by a “party which may be aggrieved.”

Accordingly, the employer, being an aggrieved party, acted within its statutory rights in appealing against the decision of the disciplinary committee.

The respondent's averments that he was not served with a copy of the said appeal and that he was not invited to make any submissions in relation thereto were not challenged.

View Appeal
HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST
Ruled By: ZHOU J

The plaintiff, a commercial Bank, claims against the three defendants payment of a sum of money amounting to US$1,105,748=90 together with interest thereon at the rate of 15% per annum calculated from the 9th September 2015 to the date of payment in full; such interest to be calculated monthly and in advance and capitalized.

The plaintiff also claims collection commission and costs of suit on the legal practitioner and client scale, as well as an order declaring a certain immovable property, described in the summons as a certain piece of land situate in the District of Salisbury called the Remainder of Lot 6 of Reitfontein, measuring 1,2129 hectares, to be specially executable.

The claim is for money advanced to the first defendant pursuant to loan and overdraft facilities and in respect of which the second and third defendants are said to have executed deeds of suretyship and guarantorship.

The claim is contested by all the defendants....,.

On the main claim, the plea which was filed on behalf of the defendants is very brief. In that plea, the defendants deny that the person who entered into the agreements pursuant to which the plaintiff advanced money to the first defendant had the authority to represent the first defendant.

The other aspect, which is denied, is that the second defendant executed the power of attorney which was used to register a mortgage bond over his immovable property in favour of the plaintiff.

Going by the pleadings, the other material allegations made in the plaintiff's declaration are not disputed and must therefore be taken as admitted. These include:

(i) The existence of the facilities (save for the alleged lack of authority of the person who represented the first defendant).

(ii) The terms of the loan facility as set out in paragraph 6 of the plaintiff's declaration.

(iii) The facts alleged in paragraph 7 of the plaintiff's declaration that the second and third defendants executed deeds of suretyship and guarantees by which they bound themselves as sureties and co-principal debtors for performance of the first defendant's contractual obligations to the plaintiff under the facilities.

(iv) There is also no denial of the failure by the first defendant to pay the amount due to the plaintiff in terms of the agreements.

(v) The amount claimed in the summons and declaration is also not disputed in the plea.

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

The late Addison Mhlanga was of Malawian extraction who came and naturalized himself in Zimbabwe.

He married one Dinah Ndlovu but did not have children. The two then adopted Esther Ncube (nee Nkala) as their child. Dinah Ndlovu pre-deceased Addison Mhlanga. Addison Mhlanga died intestate on 22 September 2003 at age 85 years.

He owned Stand Number 49257 otherwise known as Block 26/919 Mpopoma Township, Bulawayo.

The adopted child, Esther Ncube (nee Nkala), died on 19 November 2012 leaving three children, viz Sibonile Ncube, Zanele Ncube and Sikhangele Ncube.

At an edict meeting before the Additional Assistant Master, on 19 March 2013, Esther's relatives agreed that the respondent be appointed executor dative to administer the estate of the late Addison Mhlanga.

Apparently, the respondent is related to the late Addison Mhlanga's late wife, Dinah Ndlovu, the latter having been the respondent's maternal aunt.

Ordinarily, the sole asset of Addison Mhlanga's deceased estate, viz the Mpopoma house alluded to supra, was set to devolve upon Esther's estate, which, in turn, was set to be inherited by Esther's three daughters mentioned above.

Following an advertisement in the Chronicle Newspaper and the Government Gazette of Addison Mhlanga's estate by the respondent, the appellant, out of the blue, and having changed the surname on her birth certificate from Nkhulambe to read Mhlanga on 7 May 2013, lodged an application, on 10 May 2013, in the Magistrates Court Bulawayo to have an edict meeting for the appointment of herself as heir to Addison Mhlanga's estate claiming to be the sole surviving daughter to Addison Mhlanga.

The application was dismissed, and, dissatisfied with the outcome, the appellant lodged the current appeal before this court. Two main grounds of appeal were raised and they are these:

“1. The learned magistrate erred at law in dismissing appellant's claim when -

1.1 There was evidence to the effect that the deceased, Addison Mhlanga, disclosed, during his lifetime, that appellant was his daughter.

1.2 The appellant had a birth certificate showing that the deceased Addison Mhlanga's father (sic).

1.3 The deceased, at the time of his death, had allowed the appellant to reside at his house and she continues to do so now.

1.4 The now deceased, Esther Nkala, did not reside at the said house – 26/919 Mpopoma, Bulawayo after the death of Addison Mhlanga.

1.5 Appellant's lobola was paid to the deceased, Addison Mhlanga, during his lifetime.

2. The learned magistrate also erred at law in accepting, that, the late Esther Nkala's children were entitled to inherit from the late Addison Mhlanga's estate because Esther Nkala was his adopted daughter when no document was produced to prove that she was and had been adopted.”

The appellant's prayer is that she be declared the late Addison Mhlanga's daughter and that the late Esther Nkala's children are not entitled to inherit from the late Addison Mhlanga's estate.

I will deal with the grounds of appeal hereunder seriatum....,.

THAT THE LATE ESTHER NKALA WAS NOT ADDISON MHLANGA'S ADOPTED DAUGHTER FOR WANT OF DOCUMENTARY PROOF TO THAT EFFECT HENCE HER CHILDREN ARE NOT ENTITLED TO INHERIT FROM MHLANGA'S DECEASED ESTATE

Now, this we consider to be a red herring and should be dismissed as mere attempt at sophistry.

Pages 58 and 59 of the record record admissions by the appellant on 5 September 2013, pertaining to this ground of appeal, in the following words:

“To both parties by the court:

Q. Do you both acknowledge that Esther was an adopted child of the late Addison Mhlanga?

A. Applicant -Yes.

Respondent – Yes.

Q. Esther has children?

A. Yes.

Q. How many children does she have?

A. 3 children – names, Sibonisiwe, Zanele, Sikhange Ncube.

Q. Do you both acknowledge that she is the sole heir, or, as yet to be established, one of the heirs to the estate of the late?

A. Applicant – Yes.

Respondent – Yes.

Q. Now that Esther is not there, who should get her share?

A. Applicant - her children.

Respondent - her children.

Q. It would appear that the dispute is whether or not the applicant should have a share as well?

A. Applicant – Yes.

Respondent – Yes.”

With the above admissions having been made, the turn around by the appellant can only be explained away on the basis of greed.

In any event, having found, as we have done above, that the appellant is not Addison Mhlanga's daughter, she cannot benefit from his estate and she has no locus standi to raise the issue encapsulated in the last ground of appeal.

Even if she has, she is estopped from raising it.

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD
Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

Alleging trademark infringement, the appellant brought an application to the High Court (the court a quo), in terms of section 9A(2) of the Trade Marks Act [Chapter 26:04] against the respondent. What was sought was an interdict against the use of the offending mark and ancillary relief.

On 23 October 2019, the court a quo handed down judgment dismissing the application with costs.

This appeal is against that whole judgement of the court a quo.

FACTUAL BACKGROUND

The appellant and the respondent are companies registered in Zimbabwe and involved in the business of producing and marketing food products. In particular, they are both in an endeavour of packaging and retailing fruit jam. On 10 October 1995, the appellant successfully registered the word “SUN” with device of various fruits under it as its trade mark for fruit jam.

The certificate of registration issued by the Registrar of Trademarks reads in part;

“The Trade Mark shown above has been registered in Part A of the Register in the name of CAIRNS FOODS LIMITED, a Zimbabwean company, of Upton Road, Ardbennie, Harare, in Class 29 under No. 1479/95 as of the 10th October 1995 in respect of jams.

Registration of this trade mark shall give no right to the exclusive use of the device of various fruits except in the precise relation and association on the representation hereon.”…,.

From then, the appellant has continued to use the mark on its package of “sun jam.”

On 9 March 2011, the respondent also successfully registered its own trademark which consists merely of the words “ROYAL SUN.” It has no fruits and sun devise accompanying it.

The respondent's own certificate of registration reads in relevant part thus;

“The Trade Mark shown above has been registered in Part A of the Register in the name of Netrade Marketing (Private) Limited, a company incorporation according to the laws of Zimbabwe whose legal address is No.23 Kenilworth Road, Newlands, Harare, Zimbabwe in Class 29 under no. 288/2011 as of the 9th March 2011 in respect of meat, fish, poultry and game, meat extracts, preserved, dried and cooked fruits and vegetables, jellies, jams, compotes, eggs, milk and milk products, edible oils and fats.

Registration of this mark shall give no right to the exclusive use of the word 'ROYAL' separately from the mark.”…,.

In its business venture, the respondent also packages and markets fruit jam.

For purposes of putting that product on the market, the respondent came up with a logo or appellation containing its trademark 'Royal Sun' with a variety of fruits under it and the words 'Mixed Fruit Jam' at the bottom of it all.

I mention, in passing, that, the said logo is not registered as part of the respondent's trade mark apart from the words “Royal Sun.” It is, however, common cause, that, its mixed fruit jam is marketed under that logo.

It is the use of the logo, together with the respondent's registered trademark 'ROYAL SUN' which irked the appellant.

PROCEEDINGS IN THE COURT A QUO

The appellant filed an application in the court a quo on 7 August 2017. The application was made in terms of section 9A(2) of the Trademarks Act [Chapter 26:04] for an interdict against what it regarded as an infringement of its trade mark by the respondent. It also sought to interdict the respondent from passing off its products as those of the appellant by the use of a trademark or words nearly resembling the appellant's trade mark registration number 1479/95.

The appellant's case was that it has been marketing its fruit jam under the word 'Sun' and the device mark for over fifty (50) years. As a result, it has secured and acquired reputation and goodwill for its sun jam. According to the appellant, the respondent started promoting and selling its fruit jam under the name 'ROYAL SUN' thereby causing confusion.

As proof of such confusion, the appellant cited a case in which one wholesaler which distributes the appellant's sun jam product mistakenly placed the respondent's royal sun jam in its catalogue promoting the appellant's sun jam. To the appellant, this was enough proof that the packaging of the two products is strikingly similar.

It is on that basis that the appellant alleged a trademark infringement.

Regarding the delict of passing-off, the appellant's case was that its 'SUN' mark is distinctive, has been in use for over fifty (50) years, and, as such, it is well known to members of the public. Having gained a lot of goodwill, which the respondent is riding on, a case of passing off was made. In the appellant's view, the use of 'ROYAL SUN' is calculated to deceive the transacting public, cause confusion and injury to the goodwill.

In opposing the application, the respondent's case was that having registered its trademark in Class 29 under number 288/2011 in respect of jams and other goods, such registration was of full force and effect. It entitled the respondent to use the registered trade mark, and, as such, it could not be interdicted from doing that which is permitted by law.

Further, the respondent insisted, that, it has been marketing a broad range of products under its 'ROYAL SUN' get up. Its goods are well recognised throughout the country. Jam was only added into the mix later as there was no desire to set up a new mark for only jam.

In any event, so the respondent argued, its mark is distinct from and cannot possibly be confused with that of the appellant as the visual get up of its mark is very distinct from and cannot possibly be confused with that of the appellant. Consumers cannot be deceived or confused.

The respondent insisted, that, there was no likelihood of confusion created in the mind of customers, because, unlike the appellant, it uses its logo on a wide range of products. The customers are very familiar with its products and know very well they do not originate from the appellant.

FINDINGS OF THE COURT A QUO

The court a quo undertook a comparison of the two marks. It found that the respondent's mark is the words 'ROYAL SUN' which extends to jams while that of the appellant is “a representation or a design.” For that reason, the court a quo reasoned;

“…, it is apparent that the parties respective trademarks are far from identical neither does the respondent's mark so nearly resemble applicant's registered trade mark as to be likely to deceive. Clearly, the applicant's mark is a design while the respondents mark are the words 'ROYAL SUN.'”

It was the court a quo's finding, that, the appellant had incorrectly pleaded “its causa” because there is no trade mark in respect of the word 'Sun' independently of the representation. In the court a quo's view, the appellant's trademark was not the word 'Sun'. What was registered as a trade mark was the representation or device and not the word 'Sun'.

The court a quo concluded, that, the appellant had failed to establish any infringement of its trademark.

Regarding passing off, the court a quo agreed with the respondent, that, the evidence of the wholesaler who mistook the respondent's royal sun jam for the appellant's sun jam could not be introduced in the answering affidavit.

It accordingly found, that, the appellant had failed to demonstrate any actionable passing off. That way, the application was dismissed with costs.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo and launched the present appeal on five (5) grounds, namely:

1....,.

2....,.

3....,.

4. The court a quo erred and grossly misdirected itself in its finding that the appellant had failed to prove that its mark had acquired goodwill and reputation when in fact the particulars of the reputation and goodwill were canvased in the appellant's founding affidavit and were not disputed by the respondent in its opposition....,.

Regarding the reputation of the appellant's product, it was not disputed that it has been on the market for a lengthy period, it was well known by consumers, and has acquired reputation.

HB39-15 : JEMITIOUS GUMBO vs VARAIDZO GUMBO
Ruled By: KAMOCHA J

The plaintiff and defendant got married on 18 September 2007. The plaintiff was a widower and the defendant was a divorcee at the time of the marriage. Each had two children from the previous marriage but they had no children together. They had started cohabiting two years before they got ...

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE
Ruled By: MUTEMA J

Kenneth Sithole died at Bulawayo on 6 February 2013. During his lifetime, he purchased, from Rebecca Howes, a piece of land, being Stand 15 Rangemore Township 3 of Lot G of Upper Rangemore, also known as Plot 15 Gramps Way, Rangemore (hereinafter referred to as the Plot).

Kenneth Sithole's widow, one Monica Sithole, with whom he contracted a civil marriage, is the only surviving spouse with whom he had one issue, Nozipho Sithole, now aged six years.

Kenneth Sithole also left other children, of whom the respondents herein are some of them, from his previous marriage.

All those children were majors at the time of his death.

Prior to his death, Kenneth Sithole, his widow, and the minor child lived on the Plot and none of the respondents lived there.

Following his death, the respondents and their families forced their way onto the Plot and despoiled the widow and the minor child of it.

This was before the applicant was appointed executor of the estate.

After the applicant was appointed executor, on 15 October 2013, the Assistant Master of this Court and himself advised the respondents to move out of the Plot so as to facilitate the smooth administration of the estate.

That advice fell on deaf ears.

The respondents remained put disrupting the administration of the estate. The surviving spouse has not been allowed back and the tenants on the Plot have been forced to run away therefrom.

Due to respondents unlawful conduct alluded to supra, which conduct the applicant deems interferes with the fulfillment of his functions of administering and winding up the estate, the applicant filed this application seeking eviction of the respondents and all those claiming occupation of the Plot through them, an interdict that the respondents be ordered not to set foot on the Plot, and costs of suit.

The application is opposed by both respondents who are brother and sister respectively.

In their imagined understanding of the applicable law to the dispute, I am constrained to quote in extenso the respondents supposed opposing affidavit which goes as follows:

“NOTICE OF OPPOSITION OF THE DRAFT ORDER (undated)

We Respondents above, do hereby oppose the Draft Order Application as follows:

1. That the Draft Order by the Executor is baseless and without the Court Order to support it.

2. That according to the local custom, it would be illegal to evict the rightful heirs to the estate of their late father and mother.

3. That we have the most valid title to the land after the death of our parents since we also contributed financially to pay for it before Applicant came to stay with the late or after our mother died.

4. We pray that the Master of the High Court could look into the Administration of this estate.

5. The executor to this estate was biased and took sides with the original applicant. Instead, he disregarded his duty to settle this estate the right way within the law of intestate succession.

6. At the time of marriage, the late was critically ill raising suspicion of marriage of convenience.

7. We therefore pray to the Master of the High Court to appoint another executor who will be able to settle this issue with justice.

8. We also pray that the Honourable Court throw out Applicant's Application and then consider the Administration of this Estate in accordance with the laws and custom of the land and also grant us ownership of this estate.”

The document is signed by both respondents and a Commissioner of Oaths, one P. Ndlovu.

It is crystal clear from a reading of the purported opposing affidavit that the respondents, in their layperson's understanding of the general law of intestate succession, have no clue as to how it operates.

Such an estate is supposed to be administered in terms of the relevant provisions of the Deceased Estates Succession Act [Chapter 6:02] as read with the Administration of Estates Act [Chapter 6:01] and not according to custom.

They did not advert to the real issues raised by the applicant in their opposing papers.

They did not deny that Monica Sithole is the sole surviving spouse of the late Kenneth Sithole.

They did not deny that the widow and the minor child lived at the Plot with the deceased at the time of his death.

They also did not deny that themselves and all those claiming occupation of the Plot through them were not living at the Plot at the time Kenneth Sithole passed on.

Further, they both did not deny forcing the widow from the Plot and that they are obstructing the executor from fulfilling his duties of winding up the estate by forcibly and arbitrarily occupying the Plot.

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Corroborative Evidence re: Admissions, Unchallenged Evidence and the Right of Cross-Examination or Replication

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HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE Ruled By: MUTEMA J and MOYO J

SC106-21 : CAIRNS FOODS LIMITED vs NETRADE MARKETING (PVT) LTD Ruled By: MATHONSI JA, CHIWESHE JA and CHITAKUNYE JA

HB39-15 : JEMITIOUS GUMBO vs VARAIDZO GUMBO Ruled By: KAMOCHA J

HB40-15 : BONGANI NDLOVU (as Executor Dative, Estate Late Kenneth Sithole) vs HOWARD SITHOLE and MELODY SITHOLE Ruled By: MUTEMA J

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