Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

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

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HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

This is an Urgent Chamber Application wherein the applicant seeks the following relief:“1. The 2nd respondent and all persons claiming occupation through it shall remove or cause the removal of themselves and all such persons occupying the mining claim, being Valentine 56 held under registration number GA 2786.2. Failing such ...

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA
Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 7 July 2022 in which it declined to assume jurisdiction in respect of an application filed by the appellant for the review of the recommendations of the second, third and fourth ...

FACTS

Until 17 June 2021, the appellant was a sitting Judge of the High Court. She was removed from that office by the first respondent, the President of the Republic of Zimbabwe, acting in terms of section 187(8) of the Constitution of Zimbabwe 2013 (“the Constitution”).

Whenever the question of the removal of a sitting Judge arises, the Judicial Service Commission informs the first respondent, who, in terms of section 187(3) of the Constitution, is required to appoint a Tribunal to inquire into that question.

The second, third, and fourth respondents are members of the Tribunal appointed by the first respondent to inquire into the question of removing the appellant from the office of Judge of the High Court.

The salient facts are generally not in dispute and may be traced back to 9 October 2020, on which date the Judicial Service Commission advised the first respondent that a question of whether the appellant had to be removed from the office of Judge of the High Court had arisen.

On 5 November 2020, by dint of Proclamation 7 of 2020 published in Statutory Instrument 261B of 2020, the first respondent established a Tribunal constituted by the second, third, and fourth respondents to inquire into the aforementioned question of the removal from office of the appellant.

The Tribunal would conduct its business for a period of five months, from the date of the swearing in of its members.

The members of the Tribunal were duly sworn in on 18 November 2020, thereby triggering their mandate.

On 8 December 2020, the Tribunal served the appellant with a letter informing her of the matters into which it would inquire, chief among which was whether she had been grossly incompetent in performing or omitting to perform the acts mentioned in that letter.

The particulars of the matters into which the Tribunal would inquire are not germane to the resolution of this appeal.

The hearing before the Tribunal commenced on 18 March 2021 and was concluded on 22 April 2021 after several witnesses, and the appellant herself, had presented evidence.

The parties appearing before the Tribunal were thereafter requested to file their closing submissions, with the appellant being requested to submit her final response on 4 May 2021.

On 17 June 2021, having concluded its investigations, the Tribunal presented its recommendations to the first respondent.

The Tribunal found the appellant guilty of gross incompetence.

By letter of the same day, the Chief Secretary to the President and Cabinet advised the Honourable Chief Justice of Zimbabwe, that, the Tribunal had recommended the removal of the appellant from office for gross incompetence and that the first respondent had accordingly removed the appellant from office.

PROCEEDINGS BEFORE THE COURT A QUO

Against this background, the appellant harboured grievances. On 25 August 2021, she filed a court application for review in terms of sections 26 and 27 of the High Court Act [Chapter 7:06] as read with Rule 60 of the High Court Rules 2021. The appellant advanced multiple grounds of review.

Among the grounds was that the Tribunal had no jurisdiction to inquire into the question of her removal after 18 May 2021 since its five-month tenure had lapsed.

She added, that, it was grossly irregular for the Tribunal to disregard her preliminary objections on the basis of what had occurred during an earlier inquiry involving the removal of another Judge and not during her own inquiry.

It was also contended, that, it was a gross irregularity for the Tribunal to find her guilty of gross incompetence when she had not been charged with such a misconduct.

All in all, the appellant advanced no less than eight grounds of review on the basis of which she craved the grant of relief in the following terms:

“1. That the Applicant's application for review of the recommendations of the 2nd, 3rd and 4th Respondents dated 17 June 2021 and the subsequent decision of the 1st Respondent be and is hereby succeeds. (sic)

2. The recommendation of the 2nd, 3rd, and 4th Respondents dated 17 June 2021 and the subsequent decision of the 1st Respondent be and are hereby reviewed and set aside.

3. The decision of the 1st Respondent to remove the Applicant from the office of a Judge of the High Court in terms of section 187(7) and (8) of the Constitution be and is hereby set aside.

4. The Appellant be and is hereby reinstated to her position as a Judge of the High Court of Zimbabwe without loss to salary and benefits from the date of publication of Proclamation 7 of 2020.

5. The Respondents shall pay costs of suit.”…,.

The first respondent opposed the application, averring that the Tribunal had not acted without jurisdiction, and that, in removing the appellant from office, he had acted in accordance with section 187 of the Constitution.

He, therefore, prayed for the dismissal of the application.

Raising a number of preliminary objections, inter alia, that the court a quo lacked jurisdiction because the appellant had already noted an appeal to the Labour Court against the decision she sought to have reviewed; that, in terms of the Commissions of Inquiry Act [Chapter 10:07], they were not liable to any action or suit in respect of any matter or thing done by them while they were members of the Tribunal; and that, there was a fatal non-joinder of the Judicial Service Commission, the second, third and fourth respondents also opposed the application.

On the merits of the application, the second, third, and fourth respondents contended that none of the grounds of review had been established.

The hearing of the application proceeded before a panel comprising three Judges of the court a quo.

At the commencement of the hearing, the court a quo requested counsel for the parties to address it on the question of whether it still had review jurisdiction given that the appellant had already been removed from office by the first respondent in terms of the recommendations made to him.

What exercised the mind of the court a quo was whether it could entertain the application when a decision in accordance with the Constitution had ensued.

In its judgment, the court a quo recorded that invitation thus:

“[6] At the hearing, before going into the preliminary issues raised and the merits of the matter, the court invited submissions from the legal practitioners on the following critical legal issue - given that the first respondent acted on recommendations submitted to him by a tribunal and made a decision in terms of the Constitution to remove the applicant, does the court have jurisdiction to hear the matter?

It is trite that a court can raise mero motu the question of jurisdiction: see Boswinkel v Boswinkel 1995 (2) ZLR 58 (H) as cited with approval in Chikwenengere v Chikwenengere SC75-06.”

I note, in passing, that, during the hearing, counsel for the second, third, and fourth respondents were put to task on the question of whether their clients had any real interest in the application.

Following exchanges with the court a quo, they conceded that their interest in the matter was nominal and indicated that they would abide by the court a quo's decision.

The judgment of the court a quo was solely devoted to resolving the question that it invited the parties to address.

The court a quo considered, correctly in my view, that the issue of the removal of a sitting judge and a subsequent review application made to set aside recommendations of a Tribunal, to be novel in this jurisdiction....,.

The court a quo found that once the first respondent has acted upon a recommendation by a Tribunal on the question of whether a judge should be removed from office, that action becomes a decision in terms of the Constitution, whose validity cannot be reviewed. It stated;

“The question then becomes whether or not the decision made by the first respondent is subject to review by this court. Whatever recommendation is made, the President must act in terms of section 187(8). In my view, once removal or no removal is recommended and acted upon, it becomes a decision made in terms of the Constitution.

It could not have been the intention of the legislature that once such removal is finalised in terms of the Constitution, that this court assumes jurisdiction, even under the guise of 'inherent' jurisdiction, as contended by Mrs Mtetwa.

Conversely, in my view, it would be absurd for the Judicial Service Commission for instance, to seek a reversal of a recommendation not to remove a judge by way of an application for review in this court.”…,.

(iii) Finally, while accepting that the President's exercise of his prerogative power may be subject to review, the court a quo concluded, that, the first respondent did not exercise prerogative power in acting upon the Tribunal's recommendations which could be reviewed.

In its finding, the only executive powers of the President that are subject to review are those in which he has discretion or where he is required to act by a specific piece of legislation.

The court a quo reasoned that in the present matter, the first respondent had no discretion whatsoever once recommendations had been made concerning the question of the removal of a judge. In its view, he was required to act on those recommendations.

It was principally on the basis of the foregoing findings and conclusions of law that the court a quo declined jurisdiction....,.

Thus, the pre-eminent issue commending itself for determination is whether or not the court a quo erred in concluding that it had no jurisdiction over the appellant's review application.

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

This is a chamber application for leave to appeal against the decision of the Labour Court in terms of section 92F of the Labour Act [Chapter 28:01].

After hearing arguments from both parties on the preliminary points raised, I dismissed the application with costs. The applicant has requested written reasons for the decision. These are they.

The brief facts of the matter may be summarized as follows:

The applicant was employed by the respondent as a Sales Representative. The respondent alleged, that, on 20 September 2010, the applicant requested and was given 40 cases of soft drink cans in order to replace a bad batch which had been delivered to Food World, a shop based along Cameron Street.

The respondent further alleged, that, the 40 cases were never delivered to Food World.

Based on these allegations, the applicant was charged with theft under section 1(1) of the respondent's Code of Conduct.

Following a disciplinary hearing, the applicant was found guilty of theft and dismissed from employment.

The main evidence against the applicant was a document which was allegedly signed by an employee from Food World acknowledging receipt of 21 cases instead of 40.

During the disciplinary hearing, the Food World employee who had signed for the 21 cases was made to sign, five times, to check his signature against that on the delivery note in question. The members of the Disciplinary Committee came to the conclusion that the signatures did not match, and, consequently, that the drinks were never delivered.

Based on that conclusion, the applicant was found guilty of theft.

The applicant was aggrieved by the decision and appealed to the Labour Court. On appeal to the Labour Court, the disputed signatures were sent to a handwriting expert.

The expert confirmed the finding before the Disciplinary Committee, that the signatures which had been taken during the hearing did not match the signature of the witness.

The appeal was thus dismissed.

The applicant applied for leave to appeal to the Supreme Court, which leave was denied. The applicant then filed the present application.

The respondent opposed the application, and, in its Notice of Opposition, raised six preliminary points. It was argued on behalf of the respondent:

(i) Firstly, that the application was fatally defective as it did not contain a record of the proceedings before the Labour Court.

(ii) Secondly, the application did not contain a prayer for the relief sought by the applicant.

(iii) Thirdly, the application did not conform with the form for such applications, as there was no document setting out the grounds supporting the granting of leave.

(iv) Fourthly, the application did not contain grounds that can support the relief sought.

(v) Fifthly, the application did not state the date when the Labour Court refused to grant the applicant leave to appeal as required by the Rules.

(vi) Sixthly, the affidavit filed in support of the application was defective; and, lastly

(vii) The applicant had cited a non-existent respondent.

At the hearing, the respondent submitted that the application should be dismissed due to the following points:...,.

3. Failure to attach the record of the court a quo

Counsel for the respondent contended, that, the failure by the applicant to attach the record of the court a quo to the present application was fatal.

Although this is not a requirement in terms of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975 as the matter is an appeal from the Labour Court; in this case, the court, in dealing with the matter in a previous application, had directed that the record of proceedings should form part of the record.

In spite of such direction, the applicant failed to do so.

This was fatal to the application: see Masenga v Guthrie 2002 (2) ZLR 321…,.

HH238-17 : ZIMBABWE UNITED PASSENGER COMPANY vs JAYESH SHAH and GIFT INVESTMENTS (PVT) LTD
Ruled By: TSANGA J

The plaintiff, Zimbabwe United Passenger Company, better known as ZUPCO, issued summons in 2006 for the eviction of the defendants or any persons occupying the premises through them, to vacate premises known as No.9 Hood Rd, Southerton, Harare.

Zimbabwe United Passenger Company (ZUPCO) also sued for costs, jointly and severally, on a higher scale.

The background to the claim was that Zimbabwe United Passenger Company (ZUPCO) initially entered into a one year lease agreement with the defendants in November 2001, which lease commenced in January 2002 to the end of that year.

Subsequently, on 25 November of 2003, a letter had been written by the then Chief Operating Officer, as well as the then Acting Finance Controller, communicating the renewal of the lease agreement for a five year period with effect from 1 January 2004 to December 2009.

This being during the Zimbabwean dollar era, rentals payable were pegged at Z$1,000,000 and were to be reviewed quarterly.

The lease was to be renewable for a further five years on agreed terms and conditions.

Endorsed in handwriting on the letter was also, that, the actual lease agreement would be submitted for signing.

No written agreement, however, was ultimately ever signed.

The first and second defendants are Mr Jayesh Shah and Gift Investments (Pvt) Ltd, respectively. Mr Jayesh Shah was the Managing Director of Gift Investments (Pvt) Ltd at the relevant time.

In seeking the defendants vacation from the premises, Zimbabwe United Passenger Company (ZUPCO), in its declaration, stated that the defendants had become statutory tenants with effect from 31 December 2003, and, that it now required the premises for its own use.

In the alternative, Zimbabwe United Passenger Company (ZUPCO) pleaded that the termination of the first lease, and, upon failure to reduce the new agreement into a written lease, an implied lease agreement was entered into for a period of five years with rentals reviewable quarterly.

Further, they pleaded that the agreement could be terminated on three months notice.

Upon breach for failure to pay rentals, Zimbabwe United Passenger Company (ZUPCO) pleaded that it was entitled to terminate the lease agreement.

Zimbabwe United Passenger Company (ZUPCO) later amended its claim to insert a further alternative claim, being that, on 15 October 2003, the first defendant, Jayesh Shah, had corruptly paid a bribe to the then Chairman of ZUPCO, Professor Nherera, and to its then Chief Executive Officer, Mr Bright Matonga, in order to induce the renewal of the lease from 1 January 2004 to 31 December 2009.

It was also averred, in the amendment, that, ZUPCO's board was not aware of this and only became privy of this through an affidavit deposed to by Jayesh Shah indicating that he had paid US$20,000 at US$10,000 apiece, to each of them, for the purposes of inducing the extension of the lease.

Zimbabwe United Passenger Company (ZUPCO) therefore averred that the extension of the lease was not enforceable.

The defendants refused to vacate.

The essence of their plea was that there was a lease agreement communicated to them, by way of a letter, indicating that the terms were to be reduced to writing. The defendants further emphasised, that, the fact that no standard lease agreement was ultimately signed, did not mean there was no lease agreement.

They denied breaching the lease and put Zimbabwe United Passenger Company (ZUPCO) to the strictest proof thereof.

As regards the purported bribe, the defendants stance was that they paid in circumstances that amounted to extortion and that Zimbabwe United Passenger Company (ZUPCO) was bound by the terms of the agreement as its then Chief Executive Officer and the then Chairperson of ZUPCO, to whom the money had been paid, had been acting in their official capacity.

Whilst summons were issued in 2006, due to delays by the parties themselves, the matter was finally only heard in 2015.

Even then, there was a break in the trial as the parties had unsuccessfully tried to find each other.

HH06-16 : SHANDONG TAISHAN SUNLIGHT INVESTMENTS LTD vs YUNNAN LINKUN INVESTMENTS GROUP COMPANY LTD and OLDSTONE INVESTMENTS (PVT) LTD and CHINA-AFRICA SUNLIGHT ENERGY (PVT) LTD
Ruled By: FOROMA J

This application was filed as an urgent chamber application, and, although I had misgivings about its urgency, I decided to set it down because it concerned a project of national interest. I therefore felt that I could not do justice to such an important matter by declining to hear it ...

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

This is an application for direct access to this Court.If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed ...

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This is a referral from the High Court (“the court a quo”) of a constitutional matter in terms of section 175(4) of the Constitution of Zimbabwe 2013 (“the Constitution”).

The question referred to this Court for determination is:

“Whether or not section 70 of the Police Act, which sets the prescription period of eight (8) months for any person to institute civil proceedings against the Police, is ultra vires section 56(1) and 69(3) of the Constitution and therefore unconstitutional.”

It seems to me that the matter ought to be struck off the roll for two reasons:

(i) The first is that the referral was improperly made. I say this because, the issue of prescription not having arisen in proceedings before the court a quo, that court could not have properly referred the matter to this Court for determination in terms of section 175(4) of the Constitution.

(ii) The second, though ancillary reason, is that the matter set down before the court a quo, at the commencement of which this referral was made, was rendered abortive following the death of the presiding Judge.

The referral of the matter to this Court suffers from these deficiencies and must, as a consequence, be struck off the roll.

The reasons for the foregoing now follow.

FACTUAL BACKGROUND

The applicant is Patricia Dengezi who operates as an informal trader. The first and second respondents are, respectively, Munyaradzi Nyamururu and Xolisan Moyo. The first respondent was employed by the second respondent as a driver of a commuter minibus owned by the second respondent. The third respondent is Champions Insurance Company (Private) Limited, the third-party insurer of the commuter minibus owned by the second respondent. The fourth and fifth respondents, respectively, are the Commissioner General of Police and the Minister of Home Affairs.

The facts of this matter are largely common cause.

The applicant was in the informal business of vending. On 17 April 2017, while selling her wares from a pavement on Chinhoyi Street, close to Robert Mugabe Avenue in Harare, she was involved in a tragic accident. In her company was her son who was aged one year and two months.

In her declaration, she stated that on that fateful day, three officers of the Zimbabwe Republic Police who were carrying out their duties along Robert Mugabe Street threatened to arrest and intimidated certain commuter minibus drivers who were driving their vehicles in the area. Consequently, the commuter minibuses haphazardly sped off, in the process, driving against oncoming traffic moving along Chinhoyi Street, which is a one-way street.

The applicant alleges, that, as a result of the unlawful actions of the Zimbabwe Republic Police, the commuter minibus that was being driven by the first respondent, though travelling in the proper vehicular direction, veered off the road, hit the applicant and “smashed” her son who was killed immediately.

On 9 April 2018, almost a year later, the applicant sued out a summons commencing action out of the High Court at Harare claiming damages arising out of the said road traffic accident.

In her declaration, she made several claims for damages against the respondents.

The applicant's case before the court a quo was that, although the accident was caused by the first respondent, it was members of the Zimbabwe Republic Police who instigated the melee that resulted in the fatal incident. She alleges that the details from the Zimbabwe Republic Police were reckless and negligent and that they ought to have realized that their unlawful actions and intimidatory behaviour would “unleash [a] foreseeable chain of events including the loss of life.”

The third (Champions Insurance Company Limited), as well as the fourth and fifth respondents (Commissioner General of Police and Minister of Home Affairs), entered appearance to defend, and, in their pleas, denied liability.

The third defendant essentially pleaded that it has no knowledge of the facts forming the applicant's cause of action. On their part, the fourth and fifth respondents have pleaded that the actions of the officers of the Zimbabwe Republic Police were not unlawful and that they were not responsible for the death of the applicant's minor child.

That was the essence of their plea.

They said nothing about prescription and whether the claim should be dismissed on that basis. In their separate pleas, they simply prayed that the claim be dismissed with costs.

The applicant replicated to the pleas.

Following that replication, a pre-trial conference was convened before a Judge of the court a quo. For the purpose of that pretrial conference, the fourth and fifth respondents proposed three issues for determination in their pre-trial minute filed a quo. The proposed issues for determination were stated to be:

“1. Whether or not the plaintiff's claim has prescribed in terms of section 70 of the Police Act [Chapter 11;10].

2. Whether or not the police officers negligently caused the accident in question.

3. Whether or not the plaintiff is entitled to damages which are claimed.”

The record of the proceedings of the court a quo reveals that on 16 May 2019, following a pre-trial conference, three issues were referred for trial. These were:

(i) Whether the police officers controlling the traffic along Robert Mugabe Avenue were negligent;
(ii) If so, the quantum of damages payable by the State; and, lastly
(iii) The extent of damages recoverable from the insurance company.

It bears mention at this stage, that, the parties did not regard as an issue for determination the question whether or not the applicant's claim had prescribed in terms of section 70 of the Police Act [Chapter 11:10] (“the Police Act”).

Just before the trial commenced in the court a quo, on 14 February 2022, following what appear to have been informal discussions with the fourth and fifth respondents counsel, the applicant filed an affidavit in support of a request to refer a matter to this Court in terms of section 175(4) of the Constitution.

Therein, the applicant alleged that two issues had arisen, namely:

(i) The constitutionality of section 23(3)(b) and (c) of the Road Traffic Act [Chapter 13:01] (“the Road Traffic Act”); and of
(ii) Section 70 of the Police Act.

The applicant pertinently averred that:

“24. During the course of proceedings today, despite the fact that the Commissioner General and the Minister of Home Affairs had not insisted on prescription, today, they insisted that my matter was prescribed.

25. I could not bring legal proceedings within six months as I was ill, and, in any event, mourning the loss of my child.

26. I however contend, that, section 70 of the Police Act is clearly unconstitutional.

27. Why, for instance, should the police have protection when every other defendant, including the President or large corporations like Delta or Econet, do not have the same six months protection.

28. Clearly, section 70 is unconstitutional and I make reference to the judgment of Justice Tsanga in another related matter.”

Two days later, on 16 February 2022, the parties then filed what they termed a Statement of Agreed Facts “for reference to the Constitutional Court in terms of Rule 108(4) of the High Court Rules, SI 202/2021.”

Therein, the parties outlined the facts that they considered to be “common cause”.

However, contrary to the fourth and fifth respondents plea, to which reference has already been made, the parties purported to agree that “the fourth defendant, [the] Commissioner General of Police, had pleaded prescription based on the fact that the summons was issued way after the 8 months provided for by section 70 of the Police Act.”

The request for the referral of the questions relating to the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act and section 70 of the Police Act was heard by the court a quo, per MAKOMO J, on 14 May 2022, on the basis of the applicant's affidavit filed in support of the said request and the Statement of Agreed Facts.

The reasons for the court a quo's determination on the request were delivered on 10 October 2022.

The court a quo concluded, that, the request to refer the question relating to the constitutionality of section 70 of the Police Act was not frivolous and vexatious and accordingly granted the request. However, the request relating to the question of the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act was found to be frivolous and vexatious and was therefore refused.

Consequently, the court a quo only referred the question relating to the constitutionality of section 70 of the Police Act to this Court for determination and stayed the proceedings before it pending the determination of the question referred to this Court.

Sadly, on 25 December 2022, before this matter could be heard and finalised by this Court, Mr Justice MAKOMO, the presiding Judge a quo, passed on.

APPLICANT'S SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, the Court directed the parties to advance submissions on the question whether or not the referral was properly made.

CC14-23 : JEREMIAH BAMU vs DOUGLAS MWONZORA and MOVEMENT FOR DEMOCRATIC CHANGE–T and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GOWORA JCC

This is an application brought in terms of Rule 10(2) of the Constitutional Court Rules 2016 (“the Rules”). The applicant sought leave to be admitted as amicus curiae in the matter of Douglas Togaraseyi Mwonzora and Another v Zimbabwe Electoral Commission and Others, which application was filed under case number CCZ 20/23 (“the main matter”).

After hearing the parties, I issued a judgment ex tempore and admitted the applicant as amicus curiae in the main matter. I indicated that the reasons for my decision would follow in due course.

What follow hereunder constitute those reasons.

FACTUAL BACKGROUND

It is common cause that during the course of the year 2022, the third respondent (Zimbabwe Electoral Commission) undertook a delimitation exercise of the electoral boundaries into which Zimbabwe is to be divided in fulfilment of the provisions of sections 160 and 161 of the Constitution of Zimbabwe (“the Constitution”).

On 20 February 2023, following the observance of the prescribed constitutional processes, a final delimitation report was gazetted by the fourth respondent (President of the Republic of Zimbabwe). The report was published as Statutory Instrument 14 of 2023.

The first and second respondents (Douglas Mwonzora and Movement for Democratic Change-T) alleged, that, the final delimitation report was invalid as it fell short of the requirements of section 161 of the Constitution.

It was their further view, that, should a finding be made that the delimitation exercise was not done in compliance with the constitutional requirements, then, an election held in terms of the boundaries so delimited would be in violation of the right in section 67(1)(a) of the Constitution, which requires elections to be free and fair.

The first and second respondents then filed an application for leave for direct access in this Court under case number CCZ 9/23.

In that application, they indicated, that, should leave for direct access be granted, they would file an application for an order nullifying the gazetting of the final delimitation report and for orders directing the third respondent to redo the delimitation exercise and interdicting the fourth respondent from proclaiming the dates for the holding of general elections until such time as the third respondent would have prepared a delimitation report in compliance with the order that was sought from this Court.

The application for leave for direct access was heard by a three-member panel of this Court and leave was granted on 6 April 2023.

On 13 April 2023, the first and second respondents duly filed an application in this Court under case number CCZ 20/23 headed “COURT APPLICATION FOR A DECLARATUR AND CONSEQUENTIAL RELIEF.” Therein, the first and second respondents sought the following relief:

“IT BE AND IS HEREBY ORDERED THAT:

1. It is hereby declared that the final delimitation report prepared by the first respondent and gazetted by second respondent in the government gazette on 20 February 2023, as statutory instrument 14 of 2023, Proclamation 1 of 2023 is invalid for not being in compliance with section 161 of the Constitution and accordingly is in contravention of applicants right to free and fair elections in terms of section 67(1)(a) of the Constitution of Zimbabwe.

2. The gazetting of the final delimitation report prepared by the first respondent on 20 February 2023, as statutory instrument 14 of 2023, Proclamation 1 of 2023 is hereby declared invalid for not being in full compliance with sections 161(11) and (12) of the Constitution of Zimbabwe and accordingly is in contravention of applicants rights to free and fair elections in terms of section 67(1)(a) of the Constitution of Zimbabwe.

CONSEQUENTLY,

IT BE AND IS HEREBY ORDERED THAT:

3. First respondent be and is hereby ordered to redo the delimitation exercise and prepare a delimitation report that fully complies with the requirements of section 161 of the Constitution of Zimbabwe, and which takes into account the census final report.

4. Second respondent shall not proclaim the dates of general elections before the first respondent has prepared a delimitation report in compliance with the terms of the order in paragraph 3 above.

5. The respondents shall pay the costs of this application.”

The applicant alleges, that, he got to know from reports in the press that the first and second respondents had been granted direct access and that the main matter was set down for hearing on 8 May 2023.

On 3 May 2023, he filed this application for his admission as amicus curiae.

He had, at the time of filing the application, accessed the application and opposing papers in the main matter and thus had an adequate opportunity to consider the case made by the first and second respondents in response to the application.

The applicant deposed to a founding affidavit in which he gave details of his expertise, the nature of his interest in the main matter, the position he intended to adopt in the main matter, and the submissions he intended to advance.

In the founding affidavit, the applicant explained his understanding of the application in the main matter and the import of the relief sought. He averred, that, he intended to submit that the holding of general elections in Zimbabwe in 2023 and upon the expiration of the five-year term reckoned from the date of the swearing-in of the President on 26 August 2018 is a constitutional imperative which may not be dispensed with.

In other words, he sought to focus on the question of whether the Constitutional Court could be requested to make an order that would effectively amend the Constitution by prolonging the life of local authorities, Parliament, and the Presidency beyond the five-year term envisaged in section 158 of the Constitution.

In his view, an order prohibiting the proclamation of election dates, as had been sought by the first and second respondents, would be constitutionally repugnant.

He added, that, the submissions he sought to make had not been covered by any of the parties in the main matter.

It was common cause, that, at the time this application for admission as amicus curiae was filed, the heads of argument had already been filed in the main matter, and that the matter, as has already been observed, had been set down for hearing by this Court on Monday 8 May 2023.

When the application was placed before me, I issued directions for the parties to urgently appear and address me on their positions regarding the application.

View Appeal
SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

On 23 September 2020, we invited the parties to address the Court on a point in limine that arose after judgment was reserved in this matter.The point in limine is whether the High Court, in the exercise of its powers to issue a declaratur, could properly issue one in a ...

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE
Ruled By: BHUNU J

On 12 June 2007, the applicant was issued with an offer letter under the Land Reform and Resettlement Programme (Model A2 Phase II) authorizing him to lawfully hold, occupy, and use the whole of subdivision 8 of Welston in Harare in the District of Mashonaland East Province approximately 42.07 hectares in extent.

The applicant has since taken occupation of that land on the strength of the offer letter.

The first respondent is the former owner of the land in question.

Aggrieved by the applicant's conduct in taking occupation of the land, he sued and obtained a spoliation order under case number HC612/09 authorizing him to eject the applicant from the land.

Dissatisfied with that judgment, the applicant appealed to the Supreme Court under case number SC43/09.

This court later ruled, that, the initial judgment being an interlocutory judgment could not be appealed against without leave of the court. As a result, no heads of argument were filed with the Supreme Court.

On 16 October 2009, the Supreme Court ruled, in terms of Rule 44 of its Rules, that the appeal had been abandoned.

Despite that ruling, the first respondent did not seek to enforce the spoliation order granted to him by this Court until almost two years later when he issued a writ of execution.

The spoliation order was issued before the Supreme Court had clarified the law in respect of land disputes of this nature.

Since then, the Supreme Court has clarified the law in the landmark decision of Commercial Farmers Union & 9 Ors v The Minister of Lands and Rural Resettlement & 6 Ors SC31-10.

In that case, the learned CHIEF JUSTICE had this to say at pp21 and 23 of the cyclostyled judgment:

“On the other hand, section 3 of the Act criminalizes the continued occupation of acquired land by the owners or occupiers of land acquired in terms of section 16B of the Constitution beyond the prescribed period. The Act is very explicit, that, failure to vacate the acquired land by the previous owner, after the prescribed period, is a criminal offence. It is quite clear from the language of section 3 of the Act that the individual applicants, as former owners or occupiers of the acquired land, have no legal rights of any description in respect of the acquired land once the prescribed period has expired….,.

The holders of the offer letters, permits or land settlement leases have the right of occupation and should be assisted by the courts, the police, and other public officials to assert their rights. The individual applicants, as former owners or occupiers of acquired land, lost all rights to the acquired land by operation of the law. The lost rights have been acquired by the holders of offer letters, permits or land settlement leases. Given this legal position, it is the holders of offer letters, permits and land settlement leases, and not the former owners or occupiers, who should be assisted by public officials in the assertion of their rights.”…,.

The applicant now seeks an order staying execution while he seeks leave to appeal out of time.

It appears to me that there is merit in this application.

On the strength of the law, as now articulated by the Supreme Court, it would appear that the first respondent may have been divested of any right to own, occupy, and use the land in dispute.

His intended occupation of the land now constitutes a criminal offence and the court cannot sanction an illegality.

That being the case, the application can only succeed.

In saying this, I am mindful of the first respondent's argument, that, peri-urban land is not susceptible to compulsory acquisition.

That position, however, needs to be clarified by the Supreme Court before the first respondent can lawfully occupy the disputed land.

It is accordingly ordered:

1. That, the execution of the Provisional Order issued under case number HC612/09 be and is hereby stayed pending an application for leave to appeal out of time to be lodged by the applicant in the Supreme Court in respect of case number HC1020/09.

2. That, such leave to appeal shall be lodged in the Supreme Court within seven days of granting this order.

3. That, in the event that such appeal is not lodged within the time-frame aforesaid, this order shall automatically cease to be of any force or effect. With the result that execution of the Provisional Order issued under case number 612/09 shall proceed without the need for further application by the first respondent.

4. That, this order shall not be construed as authorizing the first respondent to occupy, or use, the disputed land without a Court Order as such occupation might constitute an illegality.

5. There shall be no order as to costs, but, in the event that execution proceeds pursuant to paragraph 3 above, the applicant shall bear the first respondent's costs on a legal practitioner and client scale in respect of these proceedings and the resultant costs, if any, of the subsequent execution aforesaid.

SERVICE OF THE ORDER

That, leave be and is hereby granted to the applicant's legal practitioners, or the Deputy Sheriff /Messenger of Court, to attend to the service of this Order forthwith upon the respondents in accordance with the rules of the High Court of Zimbabwe.

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O.
Ruled By: UCHENA JA

This is an opposed chamber application in terms of Rule 43 of the Supreme Court Rules 2018, for condonation and extension of time within which to note an appeal.BACKGROUND FACTSThe applicant and the first respondent entered into an agreement of sale of land belonging to the first respondent. The land ...

This is an opposed chamber application in terms of Rule 43 of the Supreme Court Rules 2018, for condonation and extension of time within which to note an appeal.

BACKGROUND FACTS

The applicant and the first respondent entered into an agreement of sale of land belonging to the first respondent. The land is held under Deed of Transfer 1989/08. The first respondent proposed a subdivision of the piece of land. The proposed subdivisions were never taken out of the original land identified under Deed of Transfer 1989/08.

The proposed subdivisions were made the subject of a sale agreement between the applicant and the first respondent.

It was a term of the agreement, that, in the event of a dispute, the parties would refer the matter for arbitration.

The merx of the sale were the proposed subdivisions, as depicted on the map.

The said map was later found to be invalid as it identified wrong portions of the land. A new map was produced which identified land which is different from the land identified in the agreement of sale itself.

A dispute arose concerning the number of Stands or sub-divisions bought by the applicant.

The dispute was brought before an arbitrator, who is the second respondent in this matter. The arbitrator's award held, that, there was a binding agreement between the parties.

The first respondent was aggrieved by the arbitrator's award.

It filed an application for the setting aside of the arbitrator's award before the court a quo, on the basis that the arbitral award is contrary to public policy.

At the hearing of the matter, the first respondent raised a point in limine to the effect, that, the arbitrator failed to keep a complete record of proceedings with regards to the matter.

It also averred, that, the applicant's counter application was incompetent as it was lodged through an opposing affidavit.

It averred, that, an application in the High Court is made in the form of a founding affidavit and under Form 29.

On the merits, the first respondent argued, that, the award given by the arbitrator is a brutum fulmen in that the disposition of the award is incapable of enforcement as it did not make an enforceable order.

It argued, that, the arbitrator did not give a formal order directing either party to do anything.

It further argued, that, the arbitrator failed to comply with the provisions of Article 31 and 33 of the Arbitration Act. It further argued, that, the arbitral award is contrary to public policy because the order interfered with the sanctity of the parties agreement and the agreement is contrary to mandatory provisions of the law.

On the contrary, the respondent, who is the applicant in this case, raised a point in limine to the effect, that, the application for the setting aside of the arbitral award could not be heard before its application for dismissal for want of prosecution is heard and completed.

On the merits, it argued that there was no basis for the setting aside of the arbitral award as the findings of the arbitrator were factually and legally correct. It disputed that the first respondent bought individual Stands. It contended, that, it bought the whole subdivision through an addendum to the Main Agreement.

The court a quo ruled, that, in the absence of the arbitrator's record, it would not be possible for it to scrutinize the proceedings in terms of Article 34 and 36. It held, that, at law, any tribunal whose proceedings may be challenged before another tribunal ought to keep and maintain a record of proceedings.

Regarding the applicant's counter-application, the court struck it off on the basis that it was not filed in the prescribed form.

It found, that, the arbitral award was contrary to public policy in that it made additions to the express terms of the parties agreement which was itself made contrary to mandatory provisions of the law.

The court a quo therefore set aside the arbitrator's award.

The applicant wishes to appeal against the decision of the court a quo but it is out of time, hence, the application for condonation and leave to note the appeal out of time.

At the hearing of this application, on 14 November 2023, counsel for the applicant submitted, that, the applicant failed to note an appeal on time because he was not advised of the handing down of the judgement which the applicant seeks to appeal against. He submitted, that, in the circumstances, a delay of a period of not more than 22 days is not inordinate. He further submitted, that, the fact that he was not advised of the handing down of the judgment proves that the applicant was not in willful defiance of the rules of this Court and that the explanation for the delay is reasonable.

Regarding the issue of prospects of success, he submitted that the application has good prospects of success.

Counsel for the first respondent agreed, that, the parties were not notified of the handing down of the judgment which the applicant seeks to appeal against and that it was handed down in the absence of the parties.

He submitted, that, the intended grounds of appeal enjoy no prospects of success as real rights to land can only be sold after a subdivision permit has been issued. He further submitted, that, there was no approved diagram. He submitted, that, the contract entered into by the parties is unenforceable because it does not comply with mandatory provisions of the law.

Counsel further averred, that, without a record of proceedings by the arbitrator, it is impossible for the court to make an informed decision.

After hearing submissions from both parties, I postponed the matter to 20 November 2023 and directed the parties to file supplementary heads on the interpretation of section 39(1) and (2) of the Regional Town & Planning Act [Chapter 29:12] (hereinafter referred to as the RTP Act”) and section 152(1)-(4) of the Urban Councils Act [Chapter 29:15] (hereinafter referred to as the UC Act”).

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Law Portal
Zimbabwe

Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA
Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

HH238-17 : ZIMBABWE UNITED PASSENGER COMPANY vs JAYESH SHAH and GIFT INVESTMENTS (PVT) LTD
Ruled By: TSANGA J

HH06-16 : SHANDONG TAISHAN SUNLIGHT INVESTMENTS LTD vs YUNNAN LINKUN INVESTMENTS GROUP COMPANY LTD and OLDSTONE INVESTMENTS (PVT) LTD and CHINA-AFRICA SUNLIGHT ENERGY (PVT) LTD
Ruled By: FOROMA J

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC14-23 : JEREMIAH BAMU vs DOUGLAS MWONZORA and MOVEMENT FOR DEMOCRATIC CHANGE–T and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GOWORA JCC

View Appeal
SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE
Ruled By: BHUNU J

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O.
Ruled By: UCHENA JA

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Law Portal Zimbabwe

Court Management re: Approach, Case Management, Postponement of Proceedings and Judicial Directives of the Court

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

View Appeal HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O. Ruled By: KABASA J

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED Ruled By: GUVAVA JA

HH238-17 : ZIMBABWE UNITED PASSENGER COMPANY vs JAYESH SHAH and GIFT INVESTMENTS (PVT) LTD Ruled By: TSANGA J

HH06-16 : SHANDONG TAISHAN SUNLIGHT INVESTMENTS LTD vs YUNNAN LINKUN INVESTMENTS GROUP COMPANY LTD and OLDSTONE INVESTMENTS (PVT) LTD and CHINA-AFRICA SUNLIGHT ENERGY (PVT) LTD Ruled By: FOROMA J

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC14-23 : JEREMIAH BAMU vs DOUGLAS MWONZORA and MOVEMENT FOR DEMOCRATIC CHANGE–T and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and MINISTER OF JUSTICE Ruled By: GOWORA JCC

View Appeal SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE Ruled By: BHUNU J

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O. Ruled By: UCHENA JA

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Law Portal
Zimbabwe

SC81-22 : EDMORE MAPONDERA and 55 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHITAKUNYE JA

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

SC13-23 : ERICA NDEWERE vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE and SIMBI MUBAKO and CHARLES WARARA and YVONNE MASVORA
Ruled By: MATHONSI JA, CHATUKUTA JA and MWAYERA JA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

HH238-17 : ZIMBABWE UNITED PASSENGER COMPANY vs JAYESH SHAH and GIFT INVESTMENTS (PVT) LTD
Ruled By: TSANGA J

HH06-16 : SHANDONG TAISHAN SUNLIGHT INVESTMENTS LTD vs YUNNAN LINKUN INVESTMENTS GROUP COMPANY LTD and OLDSTONE INVESTMENTS (PVT) LTD and CHINA-AFRICA SUNLIGHT ENERGY (PVT) LTD
Ruled By: FOROMA J

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC14-23 : JEREMIAH BAMU vs DOUGLAS MWONZORA and MOVEMENT FOR DEMOCRATIC CHANGE–T and ZIMBABWE ELECTORAL COMMISSION and PRESIDENT OF THE REPUBLIC OF ZIMBABWE and MINISTER OF JUSTICE
Ruled By: GOWORA JCC

View Appeal
SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

HH25-12 : TAFIREYI NYIKADZINO vs JOHN ASHER and MINISTER OF LANDS & LAND RESETTLEMENT and DEPUTY SHERIFF HARARE
Ruled By: BHUNU J

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O.
Ruled By: UCHENA JA