Subpoena Ad Testificandum or Witness Summons re: Competent or Compellable Witness, Claim of Privilege & Rule of Relevance

HH79-12 : MARIANE SABETA vs COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY
Ruled By: MATHONSI J

This is an application for an order compelling the respondent to assess capital gains tax payable in respect of the sale of Stand 965 Mabelreign Township, Harare and to receive such tax from the Deputy Sheriff for Harare on the pain of costs of the application.

The said property is currently registered in the name of a company known as Ellseck Investments (Private) Ltd.

The genesis of the matter is that the applicant concluded a sale agreement with Ellseck Investments (Pvt) Ltd for the purchase of Stand 965 Mabelreign Township for US$48,000 on 14 January 2010. She says she paid the full purchase price to the seller through mortgage finance from ZB Building Society.

Conveyancers, Danziger & Partners, were instructed to attend to the transfer of the property into the applicant's name.

The applicant states, that, before purchasing the property aforesaid, she had diligently conducted a Deeds Office search and satisfied herself that indeed the property was registered in the name of the seller and was not encumbered in any way.

It turns out that the seller did not co-operate in the process of transfer of the property to the applicant resulting in the applicant approaching this court, in case No. HC6737/10, for an order compelling the seller to perform its obligations in terms of the agreement of the parties and the law.

On 8 December 2010, this court, per MAVANGIRA J, issued an order against Ellseck Investments (Pvt) Ltd in favour of the applicant which reads as follows:

“IT IS HEREBY ORDERED THAT:

1. The Respondent shall, within ten (10) days of service of this court order upon it, provide Messrs Danziger & Partners Legal Practitioners with all the information and documents necessary for the registration of transfer of Stand 965 Mabelreign Township, Harare into the name of the applicant.

2. The Respondent shall, also within ten (10) days of service of this court order upon it, appoint a representative and execute all the necessary legal documents authorizing such representative to do everything necessary for the purpose of effecting transfer of Stand 965 Mabelreign Township, Harare into the name of the applicant including complying with all the administrative requirements of the registration of the transfer.

3. In the event of the Respondent failing to comply with paragraphs 1 and 2 above, the Deputy Sheriff for Harare shall be authorized to carry out all the acts required of the respondent to enable transfer of Stand 965 Mabelreign Township, Harare to be registered into the name of the applicant.

4. The Respondent shall bear the costs of this application on the legal practitioner and client scale.”

One of the acts required to enable transfer of the property to the applicant is payment of capital gains tax, assessed by the respondent in this case in terms of the Capital Gains Tax Act [Chapter 23:01].

It would appear that Ellseck Investments (Pvt) Ltd did not comply with the court order issued by MAVANGIRA J. forcing the applicant to fall back on the alternative term of the order, that of the Deputy Sheriff performing the acts necessary to give transfer to the applicant.

When the Deputy Sheriff approached the respondent's office for assessment and payment of Capital Gains Tax, he did not get any joy. The respondent refused to perform his statutory duties according to the Deputy Sheriff's return of 20 April 2011;

“Attempted to obtain assessment of capital gains tax in the presents (sic) of instructing attorney; Mrs Dzangare, advised that they could not comply with the requirements since there were outstanding payments.”

In a letter written to the conveyancer, on 21 March 2011, on behalf of the respondent, his position on the matter was set out thus:

“We wish to draw your attention to the fact that the initial transfer of the above mentioned Stand, from Clyde Chitsinde to Ellseck Investments Private Limited, was done fraudulently as no capital gains tax was paid as is required by the law.

The Zimbabwe Revenue Authority is therefore not in a position to accept payment of capital gains tax from Ellseck Investments Private Limited or to issue a capital gains clearance certificate in respect of the transfer from Chivhu Property Limited to your client as the initial transfer was tainted with illegability.

Thus, the original seller of the property, that is, Clyde Chitsinde, should first come and pay capital gains tax in respect of the sale of the property to Ellseck Investments Private Limited before capital gains tax in respect of the sale in question.”

It was not explained why the sins of the previous seller should be visited upon the doorsteps of the current seller, or, indeed, the applicant, who, for all intents and purposes, is the only interested party to the whole exercise.

Neither was it explained what prejudice would be suffered by the collector of taxes if capital gains tax was assessed and paid by or on behalf of Ellseck (Pvt) Ltd, which tax is now due, the property having been sold to the applicant.

In his opposing affidavit, the respondent also made reference to the fact, that, his investigations have revealed that the applicant purchased the same property from Clyde Chitsinde and he wondered why she had to buy the same property again from Ellseck (Pvt) Ltd.

In support of that claim, he attached handwritten office notes of interviews whose author is not disclosed.

He did not explain why an affidavit could not be obtained from the author to buttress his case, especially as those notes have no evidentiary value whatsoever.

I therefore reject those notes.

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

The late Job Bruno Kadengu died testate on 25 March 1990. His Will contained the following clauses:

“2. The expression 'Executors' or 'Executor' wherever used in this Will mean either Executors or Administrators or Trustees or any two or all of these offices as may be appropriate in the circumstances and in the context thereof and the term 'Executors' includes the singular and the term 'Executor' includes the plural.

5. My Executor shall take possession of all my property, whether movable or immovable, of whatsoever nature and sort, and wheresoever situate, and whether the same be in possession, reversion, remainder or expectancy, and, after paying thereout all my just debts and taxes payable by reason of my death, and the expenses of the administration of my Estate, then he shall pay and apply the same as hereinafter directed.

6. I hereby direct that my Executor shall purchase a house in the northern suburbs of Harare and I desire that such house be large enough and commodious enough, in the discretion of my Executor, to comfortably accommodate my wife, OLGA, and any dependent children born of me and my said wife who may survive me. I hereby give and bequeath to my said wife the said house as a special legacy. I further give and bequeath to my said wife, as a special legacy (or special legacies), all the household furniture and effects of which I may die possessed and effects of which may, at the time of my death, be situate in the residential property where my said wife and I may be living as at the date of my death. The legacies referred to in this paragraph shall be conditional upon my said wife, OLGA, surviving me for a period in excess of thirty (30) days.

7. I record that I own a certain farming property situate near Rusape. Provided that my mother shall survive me for a period in excess of (30) thirty days and provided that I still own the said farming property as at the date of my death, I hereby give as special legacies to my mother all the farming implements, livestock and other movables which may belong to me at my death and which may be situate on the said farm as at the date of my death. I further hereby give and bequeath to my said mother a life usufruct in respect of the said immovable farming property but subject to the provisions contained in the immediately subsequent paragraph hereof pertaining to my sister, ROSA CHIMAMBO. I direct that the dominium in the said farming property shall be assumed and taken by my Trustee appointed hereunder who shall deal with the same as directed hereunder.

9. After discharging my debts and taxes, and paying the legacies and providing for the aforesaid usufruct, and, generally dealing with my directives detailed hereinabove, my Executor shall sell and liquidate and turn into cash the entire balance of my Estate and my Executor shall hold the resultant monies in his own name as Trustee of a Trust Fund and he shall apply the income and capital thereof as hereinafter directed. The successor in office as Trustee of my Trust Fund shall be the Senior Partner for the time being of the said Messrs Gollop & Blank.

10. My Executor, as Trustee, in such manner as he shall, in his absolute discretion, from time to time think fit, pay and apply the income of my Trust fund to or for or towards, the benefit, maintenance, education, and advancement of my said wife, OLGA, my said mother and any and every child born of my union with my previous wife and any and every child born of my union with my said wife, OLGA, and, without derogating from the generality of the aforegoing, the following persons; viz.”

The appellants were among the persons listed under paragraph 10.

It is common cause that Gregory Slater who was appointed executor of the Will failed to complete the administration thereof before he fled the country on allegations of misappropriation of funds and that Messrs Gollop and Blank renounced their appointment as executors and trustees of the estate on 5 September 1997.

The assets of the estate were given as 4,000 shares in Paradise Park Motel (Pvt) Ltd and a certain piece of land in the district of Makoni called Alloa Farm.

The Master, in an attempt to speed up the administration of the estate, on 2 July 1999, appointed the second respondent as executor dative of the estate.

It seems that the second respondent was unable to remedy the problems left unresolved by Gregory Slater, and, on 28 September 2000, the first and the second appellants wrote to the Master complaining of the second respondent's inaction and his failure to wind up the estate in accordance with the wishes of the testator.

The letter did not achieve the desired result, and, on 24 March 2003, the appellants made an application to the High Court seeking the following order:

“IT IS ORDERED THAT:

1. The Trust which was to be set up in terms of Clause 9 of the Will be and is hereby abandoned.

2. The deceased's 4,000 shares in Paradise Park Motel (Pvt) Ltd shall be sold to the best advantage of the beneficiaries.

3. A large enough and commodious enough house shall be purchased for the first Respondent and her minor children from the proceeds of the sale of Paradise Park Motel (Pvt) Ltd. The Master of the High Court (the third respondent) shall determine whether the house which the estate shall be purchasing for the first respondent and her children is 'large enough and commodious enough'.

4. After purchasing the house described above for the first respondent and her children, the residue shall be equally distributed among the surviving beneficiaries. The shares of the beneficiaries who are outside the country or who are not part (sic) to these proceedings shall be…,. (illegible).

5. The immovable property, situate in Makoni District, namely, Alloa Farm, held under Deed of Transfer 7689/81 shall not be sold. It shall be retained as the family home to be registered in all beneficiaries names or to be registered in the name of the nominated beneficiary in trust for the rest of the beneficiaries.”

It was their contention that the intention of the testator, as expressed in clause 9 of the Will, could no longer be implemented because of the abdication of Gregory Slater and the renunciation by Gollop & Blank. They alleged that they could not agree on a suitable substitute, and, in any event, some of the beneficiaries could not be located while others were resident outside Zimbabwe.

On 23 July 2003 the appellants obtained a default judgment in the terms set out above. This order was, however, rescinded, by consent, and the matter was argued before the court a quo.

The second respondent, the executor dative, alleged that the estate was illiquid making it impossible for him to discharge his mandate. It was his view that the ownership of the 4,000 shares should be determined before the estate could be wound up.

The three issues argued by the parties before the court a quo were as follows:

1. Whether or not the estate can no longer be wound up in terms of the Will because some clauses have become irrelevant;

2. Whether or not the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased's estate; and

3. Whether or not Alloa Farm can still be dealt with in terms of the Will....,.

The court went on to decide the issues before it and found against the appellants on all three issues....,.

I turn to the final issue, which is whether the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased estate. The learned Judge dealt with the matter thus:

“The applicants referred to affidavits by the first respondent in which she stated that the shares belonged to the estate. They also attached the First Interim Liquidation and Distribution Account laid for inspection on 4 December 1992 and the subsequent First and Final Liquidation and Distribution Account of 1 November 1996 in which the shares are reflected as being assets belonging to the estate as proof that they are estate property.

In paragraph 13 of the Founding Affidavit, the applicants aver that the shares belong to the Estate.

In response, in her opposing affidavit, the first respondent averred that those shares in Paradise Park Motel (Pvt) Ltd had not been paid for at the time the testator died and that he never owned them. She then goes on to state that they never became part of the estate.

Apparently, the sellers of the shares invited interested beneficiaries to participate in Paradise Park Motel (Pvt) Ltd. None was interested save the first respondent who negotiated transfer to herself and who took transfer.

In their answering affidavit, the applicants insisted that the shares form part of the estate - no doubt on the basis of the earlier statements on oath to this effect by the first respondent.

The applicants did not dispute the averment that the letter of 23 April 2002, by Messrs Gill, Godlonton & Gerrans, was written in response to the one by their then erstwhile legal practitioners, Messrs Musunga & Associates, over the transfer of an immovable property associated with Paradise Park Motel (Pvt) Ltd. This letter, on page 74 of the record, indicated that the agreement referred to was entered into between Auto Export/Import (Pvt) Ltd and Auto Import/Export (Pvt) Ltd as purchaser and that transfer could only be effected to Paradise Park Motel (Pvt) Ltd and not the estate.

The applicants did not lay facts before this court on the status of Paradise Park Motel (Pvt) Ltd other than averments of the first respondent's sworn affidavit to the effect that that she would become co-director with the testamentary executor in this company which was part of her late husband's estate.

The letter from Gill, Godlonton & Gerrans seems to suggest that post-payments on the purchase price were paid by the first respondent.

There would be need to lead evidence on the true circumstances surrounding the shares in question.

It may very well be that the shares belong to the estate notwithstanding that in terms of section 104(1) of the Companies Act [Cap 24:03] the holder of a certificate duly signed and with the seal of the company is presumed to be the owner of the shares on a prima facie basis.

This, however, is an area where further evidence will be needed.

If so advised, it seems to me that this is an issue to be pursued by the second respondent with the Motel and the first respondent.

When the applicants brought the application, it must have been in their contemplation from the contents of the letter from Gill, Godlonton & Gerrans that a dispute of fact would arise on the question of shares. They did not cite the company. These factors are fatal to the present application. I would thus dismiss the request to hold that the 4,000 shares belong to the estate in the absence of further evidence.”

It appears to me that the dispute as to the ownership of the shares is bona fide and not merely illusory. In such a case, the onus is on the appellants to satisfy the court that the matter could be resolved on the affidavits without the risk of injustice to the other party: see Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…,.

This they failed to do.

I cannot fault the learned Judge for finding himself unable to resolve the dispute on the papers without hearing evidence. In choosing to proceed by way of court application the appellants, aware of the dispute of fact, took the risk of failing to discharge the onus on them to convince the court that the matter could be determined without calling evidence.

In the premises, I would uphold the decision of the learned Judge on this issue as well.

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

This is an urgent application in which the applicant seeks a provisional order in the following terms:-“(A) TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. That the execution of the Arbitral Award in case ...

This is an urgent application in which the applicant seeks a provisional order in the following terms:-

“(A) TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That the execution of the Arbitral Award in case number HC6251/11 by the respondents be and is hereby permanently stayed.

2. That there shall be no order as to costs of this application.

(B) INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order the applicant is granted the following relief:

(a) That the execution of the Arbitral Award registered in case number HC6251/11 be and is hereby stayed.

(b) In the event of this application being heard after execution has been carried out, that the applicant be restored to possession of its movable property.”

On 24 May 2011, labour arbitrator, L.M. Gabilo, handed down an arbitral award in an arbitration involving the parties in terms of which he directed the applicant to pay the respondents a total sum of US$24,103 as unpaid salaries and cash in lieu of notice.

It does not appear, from the papers, as if the applicant did anything about the award until recently.

The arbitral award was registered with this Court following an application made by the respondents in terms of section 98(14) of the Labour Act [Chapter 28:01] in case number HC6251/11 but not before that application was served upon the applicant on 4 July 2011.

According to the Deputy Sheriff's return of service, the application was served on an employee of the applicant, Mrs Mudyawabikwa, who is a responsible person.

The applicant did not see the wisdom of opposing the application and now claims that the employee did not bring it to the attention of management.

I find it incredible that Mrs Mudyawabikwa could have appropriated the application for herself - especially as no affidavit has been elicited from her explaining how this came about. In fact, I reject the argument that the applicant only got to know of the arbitral award at the time of attachment.

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

At the management meeting held on 21 May 2005, four preliminary issues were referred to trial. These were;

(i) Whether or not the petition was served on time;

(ii) Whether there was proper service on the second respondent;

(iii) Whether security for costs was provided; and

(iv) Whether or not the second respondent was properly joined to the petition.

At the hearing, on noticing that the petition had been lodged with the Registrar of this Court on 15 April 2008, I raised the further issue of whether it was presented within the time limits set out in section 168(2) of the Electoral Act [Chapter 2:13], hereinafter called the Act.

The brief facts were these:

Tsitsi Veronica Muzenda, the petitioner, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) party, stood as a Senatorial candidate for the Gweru-Chirumanzu senatorial constituency during the harmonized elections held in Zimbabwe on 29 March 2008. She competed for office with Patrick Kombayi, the first respondent, of the Movement for Democratic Change-Tsvangirai party MDC-T. The election was run and conducted by the Zimbabwe Electoral Commission, the second respondent.

The petitioner became aware that the first respondent had won the seat on 5 April 2008 and filed the petition on 15 April 2008.

It was served on 6 May 2008, by the Deputy Sheriff, at Harvest House, the headquarters of the first respondent's political party. The return of service indicates that a court application was served on one Muzuva, a security officer, who accepted service on behalf of the first respondent.

Another copy was served on the second respondent at its place of business on the same day.

The petition did not show that security for costs had been furnished. The first respondent was not served with any recognizance.

Counsel for the petitioner was to advise the Court, from the bar, in argument, that the security for costs was paid in the sum set by the Registrar, and, out of an abundance of caution, recognizance entered at the same time on 23 April 2008.

The first respondent received the petition on 19 May 2008.

The petitioner provided minimal facts of the events that triggered the application. She did not provide the date on which the first respondent was declared the winner by the Constituency Election Officer in terms of section 66(1) of the Electoral Act. She referred to a recount of votes but did not provide any details on the date it was held and its outcome. Some of the facts that appear in her heads of argument were not pleaded in her founding affidavit.

The duty to present an election petition is cast on the losing candidate by section 167 of Electoral Act [Chapter 2:13].

Its format and period of presentation are set out in section 168 of the Electoral Act.

It has to be presented within 14 days after the date on which the declaration of the result in the last constituency for Senatorial elections is made.

The duty is placed by the Electoral Act on the petitioner to establish this fact. It is this fact alone which triggers this legal right for her. Failure by her to establish it would be fatal to her case for the reason that she would have failed to bring her self into the protective ambit of the Electoral Act.

The facts alleged in the affidavit deal with corrupt practices which occurred before and during the election but not after the elections.

It is only illegal practice, as defined, that occurred after the announcement by the Constituency Elections Officer in the last constituency that triggers the 30-day notice period from the date of the alleged illegal practice that is provided in the proviso to section 168(2) of the Electoral Act. The petitioner could only bring her petition within the 14 day period.

I, however, requested that the information that is required to initiate the petition be provided by the second respondent.

At the hearing counsel for the second respondent produced a document from the second respondent which showed that the declaration of the last result in a House of Assembly constituency had been made on 4 April 2008 for the Kariba constituency.

Counsel for the first respondent, correctly in my view, abandoned argument on whether or not the petition had been filed on time.

I accept his reasoning, that, if the result for the House of Assembly seat was announced in Kariba on 4 April 2008, it was unlikely that the result for the Senatorial constituency, which incorporated the Kariba constituency, would have been declared earlier given its size.

The effect of 4 April was that in terms of section 33(4) of the Interpretation Act [Chapter 1:01] the petitioner had at least until 21 April 2008 to present her petition as the 14-day period would have ended on 18 April, a public holiday, which was followed by a Saturday and Sunday: see Nyamapfeni v The Constituency Registrar for Mberengwa East & Others HH27-08 and the cases cited therein.

In casu, the petition, having been filed on 15 April 2008, was presented on time. The issue that I raised, therefore, falls away....,.

3. Whether the second respondent was properly joined as a party

Counsel for the second respondent objected to the citation of the second respondent in the petition. He relied on the definition of respondent found in Part XXIII in section 166 of the Electoral Act [Chapter 2:13]. The section reads as follows:

“166 Interpretation in Part XXIII

In this Part —

“'respondent' means the President, a Member of Parliament or Councillor whose election or qualification for holding the office is complained of in an election petition.
[Definition substituted by section 78 of Act 17 of 2007].”

He invoked the maxim expressio unius est exclusio alterius in aid of his objection.

According to FRANCIS BENNION in his book Statutory Interpretation, Butterworths, 1988…, the expression means “to express one thing is to exclude another.”

Counsel for the second respondent submitted that the legislature deliberately defined respondent in the Electoral Act so as to exclude the second respondent in circumstances where it would automatically have been included by virtue of its overarching role in running and conducting elections. He advanced six reasons upon which he based his submission that the exclusion was deliberate.

Counsel for the petitioner, on the other hand submitted that the second respondent was properly cited because it is an interested party which is charged with the responsibility of giving effect to the order of court. He based his submission on the common law principle of joinder and relied on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05.

He contended that the second respondent would have no obligation to give effect to the determination of Court arising from proceedings in which it did not participate.

He further argued that grave injustice would visit the petitioner if the second respondent's officials, who are implicated in electoral malpractice, are not called to testify.

He seemed to believe that they could only testify if the second respondent was cited as a respondent....,.

In section 158 of the Electoral Act [Chapter 2:13] as read with section 171(4)(b), any person alleged to have committed an electoral malpractice may be called to vindicate his or her name before such a finding is made against him or her.

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

HH111-09 : ELLEN SIMON vs FUNDA SAIMON
Ruled By: KUDYA J

Exhibit 1A is a pro forma of an affidavit that is sold at Kingstons Booksellers and Stationers. It was common cause that the name of the deponent and her national identity number and address were handwritten by Eneresi Simon. Eneresi stated that she was the one who wrote out the plaintiff's name, national identity card, address and ...

The plaintiff purportedly swore that she had sold a subdivision of Stand 1125 Makomo to the defendant who had paid the full amount of $16,000=. She further indicated that she was granting him change of ownership. The affidavit was purportedly executed on 23 September 1999 before R. Gode, a Commissioner of Oaths.

The defendant did not disclose where exhibit 1A was drawn. He stated that it was signed before the Commissioner of Oaths by Eneresi Simon in the presence of the plaintiff because the plaintiff could not read or write.

The defendant's witness, Tedius Kagande, disclosed that the affidavit was purchased at Kingstons when the parties were on their way to his town offices. Kagande further indicated that the contents of the affidavit were written by his young brother at his town offices and signed by Eneresi Simon before the parties proceeded to a commissioner of oaths. The commissioner of oaths simply confirmed with the plaintiff the contents of the affidavit.

The version of the plaintiff and her daughter differed from that adduced by the defendant. The plaintiff stated that Tedius Kagande brought the affidavit, in the absence of her daughter, and requested her to fill in her personal details and signature ostensibly as a record of the building materials he would purchase for her. The daughter confirmed that when she visited her mother, as she was wont to do at the end of each month, she wrote out her mother's details and signed the affidavit for her. Both mother and daughter were adamant that Eneresi Simon signed a blank document and denied the present contents in the affidavit.

The versions of the defendant and Tedius Kagande were contradictory on whether Eneresi Simon signed the document before a commissioner of oaths or prior to the visit....,.

The defendant did not disclose why and how Tedius Kagande's young brother became involved in the matter....,.

Neither Tedius Kagande's young brother nor the Commissioner of Oaths was called to confirm the versions of the defendant and Tedius Kagande.

HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of October 2009.

The warrant of arrest was then cancelled on the 9th of October, on the very day that this application was filed, and is no longer of any concern.

Nevertheless, the applicant still seeks an interim order barring the first respondent, who was the presiding magistrate in a criminal matter before the Chinhoyi Magistrates Court, from compelling him to testify in that matter. He also seeks a final order setting aside the subpoena issued on the 2nd of October 2009 for him to attend and testify in the criminal matter.

The latter involves the prosecution of the fourth respondent under the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and has been set down to resume on the 4th of November 2009.

Objections in Limine

Counsel for the fourth respondent has raised several objections in limine:

(i) Firstly, that the applicant's plea on the merits is one of State privilege, and, as such, it must be raised by way of a sworn affidavit from the head of the Ministry concerned, viz. the Ministry responsible for land resettlement, and not by the applicant himself;

(ii) Secondly, that the applicant's founding affidavit, and his lawyer's supporting affidavit, must both be disregarded as the former contains no substantive averments and the latter cannot be used in support of an affidavit that avers nothing of substance.

As regards the first objection, counsel relies on FELTOE: A Guide to Administrative and Local Government Law in Zimbabwe (2006)…,.

While I have no doubt that the learned author is correct in his general statement of the procedure to be applied, I am not persuaded that his proposition necessarily and invariably applies to every claim of privilege by a witness in terms of section 295 of the Criminal Procedure and Evidence Act [Chapter 9:07], viz. on the grounds of public policy and/or public interest.

In my view, the form in which the privilege is claimed would depend upon the nature of the evidence in question and the context in which the evidence is called for.

In the instant case, it seems to me that the privilege has been appropriately raised through the supporting affidavit of the applicant's lawyer. Accordingly, the fourth respondent's objection in this regard cannot be sustained.

Turning to the second objection, it appears that the deponent to the supporting affidavit, Itayi Ndudzo, personally attended the Magistrates Court on the 6th of October 2009 and had personal knowledge of the relevant proceedings and the record thereof.

As is correctly conceded by the fourth respondent's counsel, a legal practitioner can depose to issues of procedure and issues of fact that only he and not the client can depose to.

The applicant himself had no knowledge of what transpired at the Magistrates Court, except by way of hearsay, and properly associates himself with the averments contained in Itayi Ndudzo's affidavit on the basis that the latter was fully seized with the matter and in attendance at the court at the relevant time.

It follows that the preliminary objection on this point must also fail.

Basis of Application

The present application is by way of criminal review in terms of section 29 of the High Court Act [Chapter 7:06].

It was raised, in the course of argument, by counsel, that, the application is formally defective in that it has not been brought as a court application pursuant to Rule 256 of the High Court Rules, 1971 and that the review jurisdiction of this Court must be exercised with the concurrence of another judge.

As regards the first point, I take the view that Rule 256 is confined to civil matters and proceedings and does not apply to criminal reviews. In any event, it seems unnecessary for me to decide the point for present purposes, as I am inclined to entertain this matter on the robust approach adopted in State v Strowitzki 1995 (2) SA 525…, to wit:

“It is not the form of the procedure used which matters so much as the nature and substance of the application itself.”

As for the second point, the final order sought by the applicant requires the setting aside of the subpoena issued by the Magistrates Court.

This clearly falls within the purview of subparagraph (ii) of section 29(2)(b) of the High Court Act and would require the concurrence of another judge by virtue of the peremptory proviso to section 29(5)(b): see Attorney-General v Makamba 2004 (2) ZLR 63 (S)…,.

On the other hand, the interim relief sought herein is to bar the first respondent from compelling the applicant to testify pending the granting of the final order.

This relief, in my view, lies within the ambit of the general powers conferred by subparagraph (vi) of section 29(2)(b) and can be granted by a single judge in terms of section 29(5)(b) of the High Court Act.

Propriety of Application

Section 229 of the Criminal Procedure and Evidence Act [Chapter 9:07] regulates the process for securing the attendance of witnesses as follows:

“(1) In this section —

'prescribed officer' means the registrar, assistant registrar or clerk of the court or any officer prescribed by rules of court.

(2) Either party desiring to compel the attendance of any person to give evidence or to produce any books, papers or documents in any criminal case may take out of the office prescribed by rules of court the process of the court for that purpose.

(3) When the accused desires to have any witnesses subpoenaed and satisfies the prescribed officer of the court that —

(a) He is unable to pay the necessary costs and fees; and

(b) Such witnesses are necessary and material for his defence; the prescribed officer of the court shall subpoena such witnesses.

(4) In any case, where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the application to the judge or magistrate who may grant or refuse such application or may defer giving his decision until he has heard the other evidence in the case or any part thereof.”

It is averred, on behalf of the applicant, that, the subpoena that is impugned in casu was issued as an order of court and not merely through the office of the clerk of court. Accordingly, the first respondent was functus officio vis-à-vis the subpoena and his decision in that regard is properly reviewable by this Court.

In his affidavit, filed at the direction of the Court, the first respondent affirms that the subpoena was originally issued by the Clerk of Court at the request of the fourth respondent. Subsequently, following the reluctance of the police to serve the subpoena, the first respondent directed that the subpoena be “reissued to the police to serve the witnesses for the defence today.”

The first respondent's position is that, in essence, he merely ordered the police to serve the subpoena originally issued by the Clerk of Court.

Assuming that this evidence accurately reflects what transpired in the issuance and re-issuance of the subpoena, the subpoena was issued, not by the first respondent but by the Clerk of Court acting in terms of subsections (2) and (3) of section 229 of the of the Criminal Procedure and Evidence Act.

It follows that the validity of the subpoena, on its merits, was never canvassed before the first respondent and, therefore, he cannot be said to be functus officio in that regard.

Ordinarily, the applicant's claims of privilege and the validity or otherwise of the subpoena should, in the first instance, be ventilated before the Magistrates Court. Nevertheless, on the basis that the subpoena was originally issued by an officer of the court and subsequently reissued by order of the court, it may properly be regarded as an order of the court itself.

Moreover, whether the subpoena is regarded as an administrative order issued by the clerk or as an order of the court, this Court is endowed with the requisite jurisdiction in either case, by virtue of its inherent jurisdiction at common law as well as its statutory jurisdiction under section 26 of the High Court Act, “to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

I therefore deem it perfectly appropriate to deal with the merits of this application in order to avoid further delays in the administration of justice.

Merits of Application

According to the fourth respondent, the evidence of the applicant is necessary for the purposes of his defence in his prosecution before the Magistrates Court under section 3 of the Gazetted Lands Act.

His defence, in essence, is that he was given an “offer letter” by the applicant which constitutes the requisite “lawful authority” entitling him to remain in occupation of the farm without contravening section 3 of the Gazetted Lands Act. His evidence is that this offer letter was returned to the applicant in order to correct a spelling error in his name and that the letter was then never handed back to him. He now wants the applicant to testify on his behalf by confirming that the offer letter was in fact originally issued to him.

The applicant challenges the propriety of his testimony on several grounds:

In particular, he relies on the grounds of inadmissibility of evidence and non-compellability of witnesses as set out in sections 252, 295 and 297 of the Criminal Procedure and Evidence Act [Chapter 9:07]. These sections provide as follows:

“252. No evidence as to any fact, matter, or thing shall be admissible which is irrelevant or immaterial and cannot conduce to prove or disprove any point or fact at issue in the case which is being tried.”

“295. No witness shall, except as in this Act is provided, be compellable or permitted to give evidence in any criminal proceedings as to any fact, matter or thing, or as to any communication made to or by such witness, as to which, if the case were depending in the Supreme Court of Judicature in England, such witness would not be compellable or permitted to give evidence by reason that such fact, matter or thing or communication, on grounds of public policy and from regard to public interest, ought not to be disclosed and is privileged from disclosure: Provided that…,.”

“297. No witness in any criminal proceedings shall, except as provided by this Act or any other enactment, be compelled to answer any question which, if he were under examination in any similar case depending in the Supreme Court of Judicature in England, he would not be compelled to answer by reason that his answer might have a tendency to expose him to any pains, penalty, punishment or forfeiture or to a criminal charge or to degrade his character: Provided that…,.”

The applicant's reasons for not testifying in the fourth respondent's criminal trial are threefold:

(i) Firstly, that the evidence sought does not constitute a valid defence to the charge and is therefore irrelevant and inadmissible;

(ii) Secondly, that he cannot be compelled to divulge matters involving land allocation as these are privileged by dint of public policy and public interest; and

(iii) Thirdly, that he is only being called as a witness in order to degrade his character and he cannot be compelled to do so.

By virtue of section 3(1) of the Gazetted Lands Act, “no person may hold, use or occupy Gazetted land without lawful authority.”

The term “lawful authority” is defined in section 2(1) of the Gazetted Lands Act to mean;

“(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease” and “offer letter” means “a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter.”

As recent case authority demonstrates, mere verbal authority to occupy Gazetted Land or a general policy statement to that effect does not satisfy the requirement of lawful authority for the purposes of section 3 of the Gazetted Lands Act: see Chirikure & Others v Kenmast Farming (Pvt) Ltd & Others HH106-05; Chimuka & Others v Minister of Lands & Others HC4837/07.

The accused occupier must provide proof of a valid offer letter, permit, or land settlement lease.

Generally speaking, the mere production of an offer letter would, unless the origin or authenticity of the letter is questioned, avail as a complete defence to a charge of contravening section 3 of the Gazetted Lands Act.

However, where the offer letter in question is lost or destroyed, the evidence of the issuing authority or other public official may be necessary in order to establish that the letter was in fact issued to the occupier concerned at the relevant time. Such evidence would undoubtedly constitute the requisite lawful authority and a valid defence against a charge of contravening section 3 of the Gazetted Lands Act.

Having regard to the foregoing, I am satisfied that the testimony required from the applicant, as to whether he did or did not issue an offer letter to the fourth respondent in relation to the land in question, is highly relevant and clearly admissible for the purposes of the fourth respondent's acquittal or conviction under section 3 of the Gazetted Lands Act.

Moreover, given that such evidence is to be elicited from the applicant in relation to what he himself did or did not do vis-à-vis the fourth respondent as the authority responsible for issuing offer letters, there can be no question of him having to divulge any official secret or other confidential information inimical to public policy or the public interest.

I am therefore quite unable to perceive any logical basis for the privilege claimed by the applicant on the facts of this case.

As for the possible degradation of his character, there is nothing meaningful in the founding papers to substantiate the apprehended attack on his character. Ultimately, any such apprehension must be weighed against the constitutional right of every accused person to be afforded a fair criminal trial as enjoined and guaranteed by section 18(3) of the Constitution, and, in particular, the right “to obtain the attendance and carry out the examination of witnesses to testify on his behalf.”

It follows that the applicant has failed to establish any basis for justifying the interim relief that he seeks. Accordingly, this Court cannot interfere with the subpoena issued by the Chinhoyi Magistrates Court by barring the first respondent, or any other magistrate, from compelling the applicant to testify at the fourth respondent's criminal trial.

As regards costs, the applicant's counsel conceded, at the hearing of this matter, that the first respondent should not have been cited in his personal capacity and that he was entitled to his wasted costs, including the costs of appearance by counsel.

It is accordingly ordered that the applicant shall pay the first respondent's costs on a legal practitioner and client scale.

As for the other respondents, although the applicant has failed on the merits of his application, I am not persuaded that his approach to this Court was so unjustified or unnecessary as to warrant a punitive award of costs.

The second, third, and fourth respondents are therefore only entitled to their costs on the ordinary scale.

In the result, this application is dismissed with costs as aforesaid.

Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The plaintiff in this matter seeks:-

“1. An order to declare that the sale agreement executed between him and first defendant on the 30th of September 2001 on Stand 378, Gorebridge Road, Killarney, Bulawayo is still binding and effectual as between the parties;

2. An order to compel the first defendant to transfer all her rights, title and interests in Stand Number 378 Gorebridge Road, Killarney, Bulawayo to plaintiff.

3. An order authorizing the Deputy Sheriff of Bulawayo to sign all the transfer documents for and on behalf of the first defendant in order to effect transfer of Stand 378 Gorebridge Road, Killarney, Bulawayo to plaintiff.

Alternative to 1, 2 and 3 above -

Plaintiff seeks an order:

4(a) To be refunded by first defendant $1,500,000 plus interest a tempore morae at the prescribed rate, effective from the 31st of October 2001; and

(b) To be compensated by first defendant in the sum of $2,500,000.

5. That the first defendant pays all costs of this action on an attorney and client scale.”

When the parties appeared before a judge for a pre-trial conference it was agreed that the issues to be determined by the trial court be as follows:-

“(1) Did plaintiff advise first defendant that plaintiff was no longer prepared to be held to the contract of sale, and, as a result thereof, did plaintiff cancel the contract of sale?

(2) Was the contract of sale perfected?

(3) Is the plaintiff entitled to tender $3,800,000 plus interest, and, in that event, at what rate is the interest to be calculated?

(3) In the alternative, is plaintiff entitled to:-

(a) A refund of $1,500,000 plus interest calculated from the 31st October 2001; and

(b) Compensation for improvements effects (sic) by plaintiff.”

Each party had the onus to prove two of the above issues. The plaintiff had to prove issues 3 and 4 while the defendant had to prove issues 1 and 2.

The plaintiff gave evidence himself and called two witnesses to support him.

The plaintiff's story was that he was a businessman in Bulawayo. Mr Thokozani Khumalo was his business partner who needed a house. Thokozani Khumalo (“Khumalo”) had been initially leasing House Number 378 Gorebridge Road, Killarney, Bulawayo. The house belonged to Ronnah Mafurirano, the first defendant.

The husband of the first defendant, Mr Davis Sunganayi Mafurirano, was the plaintiff's business associate. They knew each other from the time Davis Sunganayi Mafurirano used to work for CBZ Bank.

After Thokozani Khumalo had expressed his wish to purchase the house he was renting, the plaintiff conveyed the message to Davis Sunganayi Mafurirano who asked the plaintiff to make an offer to him.

When the plaintiff made an offer of $2.5 million, Davis Sunganayi Mafurirano said he needed time to go and discuss with his wife, the owner, and would come back to them.

Davis Sunganayi Mafurirano came back with a figure of $5.3 million which the parties agreed on.

Although the house was being purchased for Thokozani Khumalo, the negotiations were being done by the plaintiff, Naran, while Davis Sunganayi Mafurirano represented his wife, the first defendant....,.

Mrs Mafurirano, the first defendant, gave evidence and called her husband as a defence witness.

She herself did not have much to say as most of what took place in relation to the agreement of sale was done by her husband. He did all the negotiations relating to the sale.

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

Mero motu, I directed that the objection be served upon the Law Society with an invitation that the Law Society appear at the hearing of the matter....,. The Law Society..., filed a document in which it laid out its position in the matter.

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

The defendant produced, as exhibit 15, a list of property which he stated belonged to Mildred Shata, his sister, Viola Edith Musonza, and Yolanda Madondo.The defendant's explanation that he and the plaintiff had used the bed left by his second wife, Mildred Shata, did not ring true. He separated from ...

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.

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

Agreement having been reached on all the other movable assets acquired by the parties, the only outstanding items on which this court is asked to make a determination would appear to be the five door frames and one window frame.

The plaintiff's position was that these items cannot be distributed by this court as they do not belong to either of them.

He said that the property was brought to their residence by his workmate and subordinate, one Simbarashe Matibenga, for safekeeping. He said that Simbarashe is constructing a house in Damofalls and comes to collect the items as and when they are needed. He said that Simbarashe had in fact initially brought five door frames and seven window frames but that, as at the time of trial, there were five door frames and one window frame left. He also said that Simbarashe's mother had recently died and Simbarashe had been granted seven days' compassionate leave to attend to his mother's burial in Zhombe.

As a result, he could not call him to give evidence as he was consequently unavailable.

HH50-10 : TAZVITYA ARTHAR MUTANDWA vs SILVER ZHUWAKE and BRENDA CAROL LEEPER and THE DEPUTY SHERIFF and THE REGISTRAR OF DEEDS and ISRAEL GUMUNYU
Ruled By: BUNHU J

During the course of the trial the plaintiff sought to call the second defendant as a witness. Both counsel for the first and fifth defendants have vigorously objected to the calling of this witness on the grounds that she is already barred, and, as such, cannot be heard in terms of Rule 83. Counsel for the ...

HH115-10 : NASSAH MUKOMBERANWA vs VIVIAN MOKOMBERANWA
Ruled By: MUSAKWA J

Although the defendant claimed that the Norton stand belongs to her brother, the probabilities that she used her brother as a front are very high. In the first place, the brother unaccountably failed to attend court to testify as the defendant's witness on the issue....,.

HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

Firstly, the status of Mr. Muzondiwa from Total Zimbabwe in this whole transaction was put in issue by the plaintiff who specifically told the court that he did not know Mr. Muzondiwa, and that he was a total stranger to the contractual agreement between the plaintiff and the defendant. The plaintiff was categoric that Mr. ...

HH145-10 : TENDAI MUCHENJE vs G. AND M. PANEL BEATERS t/a SUPREME PANEL BEATERS & SPRAY PAINTERS
Ruled By: CHITAKUNYE J

Apart from producing the Automobile Association of Zimbabwe report the defendant could have called witnesses from the Automobile Association of Zimbabwe, or even the one who took the motor vehicle to the Automobile Association of Zimbabwe - but this was not done.

HH202-10 : OBRIDGE ENTERPRISES (PVT) LTD vs PULWICK ENTERPRISES (PVT) LTD
Ruled By: KUDYA J

Neither did the defendant call the evidence of Tafadzwa to confirm the alleged central part played by him in regards to the 645 bags despite having been allowed the indulgence of a postponement, firstly to 30 July, and secondly to 6 September 2010, for the purpose.

HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

Counsel for the plaintiff also said Mr Neil James Bruce had not explained his failure to call his Finance Director who was involved in settling accounts. Mr Neil James Bruce was not involved...,.

HH227-10 : MIKE MAKOPE vs GEOFFREY DZUMBUNU and REGISTRAR OF DEEDS N.O. and MINISTER OF LOCAL GOVERNMENT
Ruled By: MAVANGIRA J

Felix Dzumbunu also said that he had not called Denrose Real Estate to testify because “to a certain extent the agent was surprisingly hostile” to him and he felt that they were conniving with the plaintiff.

HH277-10 : BENCHILL INVESTMENTS (PVT) LTD vs BATTERY WORLD (PVT) LTD
Ruled By: KUDYA J

Collin Chakupa was not called to dispute Godwin Dingwiza's testimony that both Godwin Dingwiza and Collin Chakupa regarded the piece of paper as a quotation.

HB10-10 : NORAH NCUBE vs ALBERT GUMBO and REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

No affidavit from her employers was filed to support her story.

HH249-10 : PRINT AFRICA (PRIVATE) LIMITED and MOSES MPOFU vs OLD MUTUAL PROPERTY INVESTMENTS
Ruled By: GOWORA J

Without an affidavit from the receptionist on what she did with the Notice there is in fact no explanation. I can only therefore find that the default was wilful.

View Appeal
HH267-10 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and TOGAREPI CHIMBARANGA and ARTMORE DEMBEZEKE and OTHERS
Ruled By: UCHENA J

Mr Choto also told the court that Mr Muzondo told him that he had been a trustee for three years when he was appointed a trustee. That evidence was not contradicted by the defendants. Mr Muzondo was not called to testify for the plaintiff.

HH06-11 : RITA SEKESAI CHIWANDAMIRA vs JOSEPHINE MUPANDAWANA
Ruled By: CHATUKUTA J

In any event, the clerk was not called as a witness and his evidence was placed before the court by counsel for the plaintiff from the bar.

HH09-13 : RUSITU AGENCIES (PRIVATE) LIMITED vs PETER FUNGAYI KANGARA
Ruled By: MAVANGIRA J

The defendant said that Kaunda later left employment and he was not sure of his current whereabouts….,. It would have made sense for the defendant to call his wife to corroborate his denial of ever having been rescued by Elijah Michael Chiwara and Vincent Bushu after having had a vehicle breakdown in Mhondoro and of his ...

HH52-11 : AMAPLAT MAURITIUS LTD and AMARI NICKEL HOLDINGS ZIMBABWE LTD vs ZIMBABWE MINING DEVELOPMENT CORPORATION and THE CHIEF MINING COMMISSIONER and OTHERS
Ruled By: MUTEMA J

Even the perceived need to act, viz the alleged fear of the first respondent being in the process of transferring the applicants' interest in the third and fourth respondents to an unnamed 3rd party is mere speculation or conjecture. The applicants allege that their representatives “in Zimbabwe have been informed that first respondent is ...

HH79-11 : RUDO ELIZABETH SIMANGO (nee MAKONI) vs PAUL SIMANGO
Ruled By: CHITAKUNYE J

As stated by Dr. Nhiwatiwa in his report after examining Nathan Simango at my request - “Nathan is ill, he barely says a word at times, he smiles, and at times he laughs out loud. There also appears to be squabbles between Nathan's family and his wife. This is most unfortunate as it adds more pressure ...

HH112-11 : VALERIE MAKONI vs WILFORD MAKONI
Ruled By: CHITAKUNYE J

The defendant's evidence on the cattle was rather contradictory. In his plea, he demanded that all the cattle be awarded to him without stating any reason for such. It was only in the supplementary summary of evidence that it emerged that he was claiming that the cattle were paid to him as lobola by his sister's ...

HH280-14 : JAMERA PATSWAWAIRI TILTON vs GOODLUCKY SIMOKO and RM INSURANCE
Ruled By: MTSHIYA J

I also find it difficult to understand why the defendant failed to bring his mechanic, Mashati, to testify. Surely, that witness would have corroborated his evidence of seeing a Camry being driven dangerously as they left Harare; seeing a Camry overtaking them at the scene of the accident; and seeing the plaintiff, as the driver, ...

HB100-14 : LEMMAN MUNENEKWA vs ELIAS MUZAMBA and FANISILE NKOMO and PHILANI WEZA and NKOSILATHI NGWENYA and MINISTER OF LANDS & RURAL RESETTLEMENT
Ruled By: KAMOCHA J

Counsel for the plaintiff requested the court to call Mr Misheck Marandu. The court acceded to the request and called him as its witness so that counsel for both parties could have the opportunity to cross-examine him.

SC13-17 : ZIMBABWE UNITED PASSENGER COMPANY LIMITED vs PACKHORSE SERVICES (PRIVATE) LIMITED
Ruled By: GARWE JA, GOWORA JA and MAVANGIRA AJA

There is no explanation given as to why the respondent did not call Mr Henrikson, the Executive Board member of Scania South Africa (Pty) Limited, to clarify the context of his interactions with the appellant and with the Governor of the Reserve Bank of Zimbabwe. Without such an explanation, the respondent cannot disprove the ...

HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

The defendants also stated their mother's relatives had told them that the property in Mabvuku belonged to their parents. However, it is worthy to note that none of the relatives were called to testify to this effect.

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

Relating to the second appellant, the court held that he was a competent and compellable witness and could testify on the pertinent issues found in the subpoenaed documents….,. When the appeal hearing resumed, on 10 July 2017, at the commencement of the hearing, the court intimated to the parties that the second appellant was allegedly discharged from ...

Relating to the second appellant, the court held that he was a competent and compellable witness and could testify on the pertinent issues found in the subpoenaed documents….,.

When the appeal hearing resumed, on 10 July 2017, at the commencement of the hearing, the court intimated to the parties that the second appellant was allegedly discharged from the first appellant's employ and inquired from counsel for the first respondent whether that had a bearing on the present matter.

Counsel for the first appellant submitted that the second appellant had been merely suspended and that, as a consequence, one could not predict the outcome of those proceedings. She also submitted that while the second appellant is not cited in his official capacity, the substance of the subpoena is that the Managing Director of the first appellant should testify.

Counsel for the first appellant submitted that the second appellant's employment was, in fact, terminated and made an undertaking to bring before the court the record of proceedings pending before the High Court relating to the termination. This was also confirmed by counsel for the second respondent. The court proposed to take an adjournment and give counsel for the second appellant time to take instructions concerning the new development and all parties were amenable to the proposal. After a brief adjournment, counsel for the second appellant confirmed that she had taken instructions and stated that her client insisted that the matter proceed because it would be prejudiced if crucial findings of the court a quo were set aside on that basis.

The court allowed the matter to proceed and indicated that the point would be dealt with in this judgment.

After the hearing, this Court was furnished with the record of proceedings in the matter between the second appellant and the first appellant under case number HC11003/16. The record contains a letter of termination of the second appellant's employment on notice dated 12 October 2016 and the proceedings seek to challenge the letter of termination.

In Mhungu v Mtindi 1986 (2) ZLR 171 (SC)..., McNALLY JA said -

“It seems clear from the judgment in which the learned judge a quo granted summary judgment that he made reference to the papers in case number HC3406/84. In so doing, he was undoubtedly right. In general, the court is always entitled to make reference to its own records and proceedings and to take note of their contents – HALSBURY, 4ed, Vol 17 paragraph 102; Boyce NO v Bloem & Ors 1960 (3) SA 855 (T); Shell Zimbabwe (Pvt) Ltd v Webb 1981 ZLR 498 (HS) at 503-4 (this case was upset on appeal but not on this point). The position is a fortiori when the defence involves a reference to the previous proceedings, as this one does.”

In the event, this court is entitled to take note of the record of proceedings in HC11003/16.

The record confirms, indeed, that the second appellant had been discharged from the first appellant's employ. The subpoena sought his attendance at the disputed proceedings between the first respondent and his erstwhile employer in his capacity as its Managing Director. In view of the discharge, it can no longer be possible for him to attend in such capacity. He would no longer have the right to access any documents belonging to the first appellant.

Thus, it is no longer possible for him to fulfil the terms of the impugned subpoena.

HH485-13 : LOVENESS KUDZANGA vs GODFREY KUDZANGA and THE REGISTRAR OF DEEDS and DEPUTY SHERIFF HARARE
Ruled By: MAWADZE J

The people to whom the handwritten notes are addressed did not testify.

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Tying up to this, is the misdirection by the court a quo, once again as pointed to by the appellant, where the court made a finding that the appellant should have called the evidence of its Business Manager. Such evidence was totally unnecessary in view of the established and undisputed facts. It was common cause that the original lessee ...

HH150-15 : SHINGIRAI PHILIP KATSANDE vs ANGELINE KATSANDE (nee NYAHWEMA)
Ruled By: CHITAKUNYE J

As with evidence on other properties, the plaintiff had intimated that Zivanai Emmanuel Katsande would be called to testify on the purchase of Stand 373, Midlands Township 3 of Uplands sub-division of A of Waterfalls property - but he was never called. So it remained the plaintiff's story against the defendant and the seller's story.

HH161-15 : MCR VENGESAYI and AGNES VENGESAYI T/A VENGESAYI ARHITECTS vs BELVEDERE NURSING HOME (PRIVATE) LIMITED
Ruled By: DUBE J

The Board members who sat in these meetings were deliberately not called to give their side of the story….,. Dr Makonese, who appears to have taken over from Dr Zvandasara, seemed to also have continued with the project without protest. He was not called as a witness.

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

The first defendant, Alexious Mashingaidze Dera, although he was cited as the first defendant, he did not enter appearance to defend the matter. He only came as a witness at the instance of the plaintiffs after being subpoenaed to attend.

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

The appellant testified that he did not owe the respondent because he stood as surety for a company known as Limpopo Investments and not for SM Tyres (Pvt) Ltd. He testified that he did not know SM Tyres. He signed a surety agreement at the request of a friend, one Mr Wycliffe Chiunda (Chiunda), who, ...

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

The defendant submitted that he signed the surety agreement after he had been requested by Whitecliff Chiunda, a Total Marketing Executive, to do so. He was told by Mr Chiunda that he wanted to use the surety document to negotiate with his employers so that he could operate Nyamapanda Service Station. He signed the Deed of ...

HH66-12 : OTILIAH ZULU vs EZRA ZULU
Ruled By: MAWADZE J

It is not good enough for the applicant to shift the blame to Bruce Mujeyi's law firm and for Mr Mujeyi to run away from the blame by shifting blame to an unnamed secretary in the law firm…,. It is also important to note that there is no supporting affidavit from the receptionist in Bruce Mujeyi's legal firm who ...

HB122-18 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

The plaintiff has applied for leave to re-open the case to adduce further evidence after the close of the defendant's case. This kind of application is rare in practice. This interlocutory application should, however, be understood in the context of the peculiar facts of this case. The gravamen of this application is the following: When the plaintiff was presenting his ...

The plaintiff has applied for leave to re-open the case to adduce further evidence after the close of the defendant's case.

This kind of application is rare in practice.

This interlocutory application should, however, be understood in the context of the peculiar facts of this case. The gravamen of this application is the following:

When the plaintiff was presenting his case, he indicated that he wanted to call a witness in the employ of the Human Resources Department of the defendant, one Ndlovu. Mr Ndlovu is the Personnel Manager at the defendant. Counsel for the plaintiff stated; “My Lord the plaintiff has proposed and had subpoenaed the Personnel Manager of the National Railways of Zimbabwe, Mr Ndlovu, but we were advised yesterday that he would not be available until about the 23^rd of January….,.”

In response, counsel for the defendant had this to say; “My Lord, in relation to the witness, that was the first time matter that was said. I had not been made to be aware that my learned friend (was) seeking the presence of that witness…,. In my respectful observation, my Lord, it's not the proper thing to do. We also advised my learned friend that the very witness that he intends to call is our witness, witness from the NRZ to come and deal with those issues that was (sic) raised during cross-examination. I submit my Lord that it is not proper for my learned friend to seek to call a witness who we wanted to call and, who will certainly be conflicted in terms of his testimony.”…,.

In response, counsel for the plaintiff; “…, I did look at the synopsis of evidence, there was, I must point out, no indication that the witness we proposed to call would actually be called by the defendant. And so I am not aware of a rule that gives one party monopoly of witnesses over the other. If he is a dispassionate witness of the truth, as he should, then he must be available to be called even by the plaintiff. The reason why this witness is sought, part of the plaintiff's claim relates to prospective damages, what he has lost or what he stands to lose. So it requires someone with information as to what the plaintiff's…, what his colleagues are actually being paid so that they can observe as to what he would have been paid had his employment continued and so he becomes a necessary, a material witness in this regard.”…,.

The matter was postponed before this issue was resolved. On resumption, counsel for the plaintiff addressed the court in the following terms:

“My Lord, last year the plaintiff indicated that he was desirous of calling Mr G. Ndlovu, the Human Resources Manager of the defendant, and counsel for the defendant indicated that they would be calling the same witness and the parties have exchanged correspondence on the issue of that particular witness and the defendant has confirmed that Mr Ndlovu remains their witness and is not available to be called as a witness for the plaintiff. On the understanding that the defendant will be calling Mr Ndlovu, the plaintiff has no other witness to call and will be closing his case. If, on the other hand, there has been a change and the defendant no longer wises to call Mr Ndlovu then the plaintiff wishes to call Mr Ndlovu, so, perhaps, at this juncture, before formally closing, counsel for the defendant would shed light on how they propose to deal on whether they will be calling Mr Ndlovu or not.”

In response, counsel for the defendant had this to say:

“It is correct, my Lord, that the parties exchanged correspondences in relation to Mr G. Ndlovu, or any other person in his department, as a potential witness. What, however, we made clear to my learned friend was that Mr G. Ndlovu was a witness for the defendant and he was going to be called as a witness by the defendant to rebut whatever evidence the plaintiff will be led against the defendant. So what was clearly made known to the plaintiff was that we were only going to call Mr Ndlovu to rebut the evidence that he would have been led against defendant. We also made it clear to the plaintiff that it was entirely up to him to prove his case against the defendant, to bring to court whatever evidence he feels to prove his case, not to depend on the defendant to prove his case against it's (case). So, my Lord, what I am saying here is the defendant was going to call Mr Ndlovu only if the plaintiff has led evidence against the defendant. What they indicated is that they were totally against the calling of Mr G. Ndlovu by plaintiff in order to be used to prove the case against defendant.

But, my Lord, what must be clear from the record is that the plaintiff has actually closed his case. So whether or not the defendant is going to call G. Ndlovu or not is now of no consequence because the plaintiff has clearly indicated that he is now closing his case. That should be the end of the matter. So, again, even if the defendant has called G. Ndlovu or not, for now, it is of no consequence because the plaintiff has closed his case.”

Counsel for the plaintiff then said:-

“Yes, it is degenerating, I think, into a game of wits which a trial should not be. The plaintiff closes his case with a rider that the defendant should know that if the defendant (does) not call Mr G. Ndlovu they can be certain an application is going to be led to re-open the plaintiff's case to lead Mr Ndlovu's evidence. That evidence had not been led on the understanding that Mr Ndlovu is a witness for the defendant but should the defendant then not call him and close his case, then plaintiff reserved the right to re-open its case and still call Mr Ndlovu.”

The defendant closed its case without calling Mr G. Ndlovu to testify.

In the circumstances, the plaintiff has applied to re-open his case and call him. The defendant strongly opposes the application to reopen the plaintiff's case for the aforesaid purpose.

In terms of Order 19 Rule 437(5) of the High Court Rules, 1971 either party may, with the leave of the court, adduce further evidence at any time before judgment, but such leave shall not be granted if it appears to the court that such evidence was intentionally withheld out of its proper order.

It is trite law that the discretion to permit the adduction of further evidence must be exercised judicially upon consideration of all relevant factors, and, in essence, it is a matter of fairness to both sides. Key factors for consideration are:

(1) Explanation for the failure to lead the available evidence timeously;

(2) The danger of prejudice to the other party; and

(3) Sufficient materiality of the evidence.

Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A)…,; Coetzee v Jansen 1954 (3) SA 173; and Blose v Ethekwini Municipality (20053/14) [2015] ZASCA 87.

In the current matter, the explanation for the non-timeous calling of the witness is justifiable as evinced by the submissions made by counsel for the plaintiff above before the plaintiff closed his case. As alluded to above, the plaintiff put a rider that should the defendant decide not to call Mr Ndlovu, he will apply to re-open his case for the purposes of adducing evidence from him. As shown above, the defendant strenuously opposed the calling of Mr Ndlovu by the plaintiff saying the said was its witness. In the circumstances, the plaintiff did not intentionally withhold the evidence of the said witness. The plaintiff tried, in vain, to adduce the testimony of Mr Ndlovu timeously but fails because of the opposition by the defendant.

On the question of prejudice, I do not think the defendant will suffer any prejudice. This witness was its witness whom it deliberately abandoned. In any event, the defendant will be afforded the opportunity to cross-examine the witness if it so wishes.

Finally, there is sufficient materiality of the evidence of the witness. It is on account of such materiality that the defendant initially jealously protected him as its witness. If the evidence of the witness is not material the defendant would not have vehemently opposed attempts by the plaintiff to call him.

In the circumstances, I grant leave to the plaintiff to re-open his case and adduce the evidence of Mr G. Ndlovu.

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

The first factual dispute that I have to deal with is the identity of the person in Dubai who gave the money to the defendant. In the same breath, it is important to determine what the payment was for. In determining this issue, I take note of the fact that in his evidence in chief, John ...

In determining this issue, I take note of the fact that in his evidence in chief, John Chidyiwa did not refer to the identity of the person or persons from whom the money had to be collected. His affidavits filed in case no HC4464/01 are equally silent on this issue. Indeed, he does not indicate the name of the client he was supposed to have accompanied to Dubai to collect the money were it not for his nose-bleeding problem. Under cross-examination, he testified and maintained that one Ibrahim of the Hayat Al Gad Agricultural Institute made the payment to the defendant for a debt arising out of the sale and export of katambura grass.

To support his contention in this regard, John Chidyiwa made reference to two documents. The first one is an alleged fax from the defendant dated 29 August 2000 and addressed to Khalfan Malfalhil, and marked for the attention of one Mr. Ibrahim. The fax is not signed by the defendant but by someone purporting to sign on his behalf. In the fax, the defendant is informing the recipient that 10,000 kilograms of katambura grass has been sourced and is giving directions as to how the proceeds from the export of the grass should be handled.

The plaintiff has also produced a copy of a fax from one Khalfan M Alfalahi of the Hayat Al Gad Agricultural Institute, dated 10 February 2001 and addressed to the defendant. It purports to be in response to the first document allegedly sent by the defendant in August 2000. In the fax, the sender is advising the defendant as to how certain payments were made for and on behalf of the defendant.

At this stage, I wish to comment briefly that a total of six bundles of documents were prepared by the plaintiff and produced with the consent of the defendant. Amongst the pages making up the bundles were copies of some of the documents. The two documents that I have referred to above were copies and not the originals of the documents.

The defendant took no issue with the production of these copies.

I accordingly admitted the copies of the documents into evidence in accordance with the provisions of section 11(a) of the Civil Evidence Act [Chapter 8.01]….,.

While copies of the documents were admitted into evidence, with the consent of the defendant, they were not proven.

It is the law relating to the proof of documents that are not public documents that their authenticity must be proven. The authors HOFFMAN & ZEFFERTH 1971 (3) SA 941 TPD observe that evidence is normally required to satisfy the court as to the authenticity of any tendered document.

In H & Dwitkoppen Agencies & Fourways Est v De Sousa 1971 (3) SA 941 TPD it was held…, that:

“The law in relation to the proof of private documents is that they must be identified by a witness who is either;

(i) The writer or signatory thereof; or

(ii) The attesting witness, or

(iii) The person who found it in possession of the opposite party; or

(Iv) A handwriting expert, unless the document is one which proves itself,….”

In the matter before me there was no admission as to the authenticity of the documents tendered by the plaintiff. The only consent was to the admissibility of copies in the place of originals.

The defendant did not sign the first document. The person who allegedly signed the document on his behalf was not called to authenticate the document. On this basis, although the document was admitted into evidence, I find that it has not been proved and is therefore not evidence before me.

The same faults can be found with the second document. It has not been proved. No evidence has been led to show that it is authentic. The author of the document was not called to testify. The person who would have custody of the document was not identified and called to testify. John Chidyiwa merely produced the document as part of the bundles I referred to earlier on. No legal basis was laid for me to accept the document as evidence. I therefore reject is as not being authentic.

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....,.

The applicants were, therefore, not far off the mark when they stated that the documents/annexures were a fraud which emanated from Sarah Hwingwiri's forgery. The annexures are nothing but that....,.

Given Sarah Hwingwiri's scheming mind, it is doubtful if Ivan Pantchev is a Director of the first respondent. The probabilities are that he is not. If he was, he would simply have deposed to an affidavit confirming his status in the same. His deafening silence in the midst of this hot battle for some other persons' properties remains a cause for very serious concern.

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 court a quo found in favour of the respondent and granted an order aforesaid. The appellant was aggrieved. He noted an appeal to this Court on the following grounds:

1. The court a quo erred in fact and in law by finding that there was an agreement for the sale of an immovable property in exchange for shares in the absence of any evidence, disregarding the physical evidence which negatived the existence of the alleged agreement.

2. The court a quo erred in fact and at law in finding that the appellant was not a credible witness as a result of discrepancies in his evidence without taking into account the fact that the trial was taking place about a decade since the occurrence of the events under scrutiny which time would naturally have an effect on the memory of the appellant.

3. The court a quo erred in fact and in law by finding that the plaintiff (sic) had proved his case on a balance of probabilities and yet the appellant (sic) had in fact not proved the issues for trial.

4. The court a quo erred in fact and in law in ordering the appellant to return shares which, from the evidence before the court, were never in the appellant's possession.

5. The court a quo erred in fact and at law in finding that the shares should be compensated by a party who had not been proved to have benefited from same, in the absence of any proof that Zimcor Limited itself had not solely benefited from the shares transferred in its name.

I must state that at the hearing of the appeal counsel for the appellant quickly abandoned grounds of appeal numbers 1 and 3 which were afflicted by invalidity. This left only grounds of appeal numbers 2, 4 and 5 to be motivated.

THE COURT A QUO'S FINDINGS

The court a quo accepted the evidence of the respondent which it found to have been simple and in support of his averments in the pleadings. It found that although the shares in question had been transferred to Zimcor Limited and not to the appellant, Zimcor Limited was in fact the appellant's nominee to whom the respondent owed no obligation for which he could transfer the shares.

The court a quo found the existence of a link between an immovable property which the appellant had purchased at a Sheriff's auction and the transfer of the shares.

The court a quo concluded that the respondent was not only a credible witness, but that his evidence also accorded with probabilities. The evidence of the appellant, in opposition to the claim, did not impress the court a quo at all. In fact, the court a quo was quite critical of the appellant's presentation describing him “as an evasive and in some instances deliberately mendacious witness” who made inconsistent statements.

The court a quo concluded that nothing turned on the transfer of the shares to Zimcor Limited because the appellant had inadvertently admitted being in the habit of not registering his assets in his own name. This explained why he directed the respondent to transfer the shares into the name of Zimcor Limited.

ISSUES FOR DETERMINATION

This appeal, in essence, turns on two issues, namely;

1. Whether the court a quo erred in finding that there was a valid agreement between the parties; and

2. Whether the court a quo erred in ordering the delivery to the respondent of the shares or their equivalent value.

1. WHETHER THE COURT A QUO ERRED IN FINDING THAT THERE WAS A VALID AGREEMENT BETWEEN THE PARTIES

It was submitted, on behalf of the appellant, that he acted as an agent of a disclosed principal, namely, Zimcor Limited. For that reason he could not assume personal liability being merely a conduit that fell away the moment the agreement was concluded between his principal and the respondent.

In advancing that argument, counsel for the appellant relied on the proof of transfer of the shares dated 22 October 2008 showing that the respondent indeed transferred the shares to Zimcor Limited. The document in question was signed by the appellant on the same date and he endorsed that he had received it “on behalf of Zimcor.”

Once it was accepted that the appellant acted on behalf of a principal, so the argument goes, the court a quo was precluded from ordering the appellant to return the shares which he did not receive in his personal capacity.

Counsel for the respondent submitted that the existence of an agency relationship between the appellant and Zimcor Limited was not established.

Riding on the court a quo's finding that there existed no relationship between the respondent and Zimcor Limited as would motivate the transfer of the shares to the latter, counsel for the respondent submitted that the court a quo's findings on that aspect cannot possibly be said to have been irrational as to invite the Appellate Court to intervene.

I agree.

This is a matter which was decided entirely on the credibility of witnesses. The appellant was pitted against the respondent and the court a quo made factual findings based upon their presentation of evidence.

I have already said that the court a quo was critical of the evidence of the appellant. The court a quo assessed the quality of the appellant's evidence and concluded…,:

“The defendant's (appellant) demeanor punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts presented him as a witness who was seeking to mislead the court.”

Indeed, there is a reason why the court a quo came to that conclusion.

The appellant's evidence was not only incoherent, it was punctuated by the use of intemperate language. Expressions like: “this is nonsense;” “no, it is rubbish, absolute rubbish; it is ridiculous…,” are all over the record of his testimony which is also replete with situations where the appellant refused to answer questions.

The trial court was required to resolve the factual disputes of whether there was a Swap Agreement and whether the appellant was acting in his personal capacity, among others.

The quality of the appellant's evidence was so poor that the trial court cannot be faulted for rejecting it and embracing that of the respondent. The appellant has himself to thank for that outcome having done nothing to endear himself in the eyes of the court.

In rejecting the appellant's evidence, the trial court made factual findings, including the finding that the appellant had acted for himself and not as an agent of Zimcor Limited which was merely his nominee for receiving the shares.

It has long been regarded as settled in this jurisdiction that this Court will not interfere with factual findings, including findings on the credibility of witnesses, made by a trial court unless the decision is irrational.

This Court has, in a number of cases, followed the general rule on whether to interfere or not which was expressed in Hama v National Railway of Zimbabwe 1996 (1) ZLR 664 (S)…, where the court pronounced:

“The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcoin v Rosenburg 1936 AD 380 at 395-7; Secretary of State for Education & Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671 E-H; CCSU v Min for the Civil Service supra at 951 A-B; PF-ZAPU v Minister of Justice (2) 1985 (1) ZLR 305 (S) at 326 E-G.”

When following this principle, almost two decades later, ZIYAMBI JA restated it more emphatically in ZNWA v Mwoyounotsva 2015 (1) ZLR 935 (S)…,:

“It is settled that the Appellate Court will not interfere with factual findings made by a lower court unless these findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusions; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it; or that the decision was clearly wrong.”

The appellant's case was never that there was no agreement involving the transfer of the shares but that such agreement was between the respondent and Zimcor Limited.

He maintained that he was only an agent of Zimcor Limited.

The respondent asserted that the verbal Swap Agreement was with the appellant and that he knew nothing about Zimcor Limited. He only transferred the shares to the latter as directed by the appellant. The respondent produced proof of the transfer of shares which was in fact signed by the appellant in acknowledgment of receipt. He also produced further documents signifying his pursuit of the transfer of the immovable property at the centre of the dispute, or, alternatively, the return of the shares.

It is the view of this Court that the requirements of a valid contract were satisfied by the evidence. The probabilities favoured the respondent as correctly found by the trial court. This is particularly so given that the appellant was not a credible witness.

The court a quo's finding on credibility, as I have said, is one which this Court cannot lightly interfere with. The assessment of the credibility of a witness is for the trial court to make and not this Court. That is the view expressed in S v Mlambo 1994 (2) ZLR 410 (S) …,:

“The assessment of the credibility of a witness is par excellence the province of the trial court and ought not to be disregarded by an Appellate Court unless satisfied that it defies reason and common sense.

A careful reading of Ndlovu's evidence, to which no accompanying adverse demeanor finding was made, does not persuade me that the magistrate's assessment was erroneous.”

See also Nzira v The State SC23-06.

There was no adverse finding on demeanor in respect of the respondent.

It was not suggested, on behalf of the appellant, that the findings of the trial court on credibility could be faulted in any way except the suggestion that the appellant's frailties as a witness should have been excused because of the lengthy passage of time.

I disagree because the respondent, who was credible and gave clear testimony, also related to the same events and was also afflicted by the same lengthy delay.

There was no misdirection on the trial court's finding that a valid agreement was concluded by the parties.

2. WHETHER THE COURT A QUO ERRED IN ORDERING THE DELIVERY TO THE RESPONDENT OF THE SHARES OR THEIR EQUIVALENT VALUE

Counsel for the appellant strongly submitted that it was incompetent for the trial court to order the appellant to return the shares which were never transferred to him, they having been transferred to Zimcor Limited and not the appellant.

In a way, the conclusion already made, that the parties entered into a valid agreement involving the transfer of the shares, resolves this issue as well....,.

I have already adverted to the trial court's factual findings which were adverse to the existence of an agency relationship between the appellant and Zimcor Limited. I have said that there is no legal foundation for interfering with that finding. If there was no agency, as the trial court correctly established, the consequences of an aborted Swap Agreement, namely, the return of the shares or their value, cannot be shared with any other party. They are for the appellant alone.

When giving evidence, the appellant was unable to show that he was an agent of Zimcor Limited. Quite to the contrary, he stated clearly, under cross examination, at p148 of the record, that he did not get any authority from Zimcor Limited. Pressed further, he dithered stating:

“I cannot remember.”

There can be no doubt that the obligation to make good the shares fell on the appellant.

In fact, that he was an agent of Zimcor Limited was a claim made by the appellant himself. He was therefore under an obligation to lead evidence to establish that claim. His failure to lead evidence from Zimcor Limited, which, presumably, was available, further warranted the drawing of an adverse inference that no such evidence existed or that the evidence would not support his case.

View Appeal
HH444-18 : TAPIWA NALOMWE vs NICHOLAS VAN HOOGSTRATEN
Ruled By: ZHOU J

The plaintiff instituted the summons in casu claiming the following relief against the defendant:

“1. An order compelling the defendant to transfer 167,275 Old Mutual Public Limited Company shares to the plaintiff within ten (10) days of the date of the order; being shares which the plaintiff transferred to the defendant in pursuance an asset swap agreement which agreement was cancelled due to the defendant's breach.

2. Alternatively, and in the event that the defendant no longer has possession of the 167, 275 Old Mutual Public Limited Company shares, an order for payment of damages equivalent to the market value of 167,275 Old Mutual Public Limited Company shares at the date of judgment.

3. Costs of suit.”

The claim is contested by the defendant.

The plaintiff's case, as pleaded, is as follows;

In 2008, he entered into a verbal agreement in terms of which the defendant agreed to deliver to him an immovable property at 4 Wroxham Road, The Grange, Harare. In consideration of that the plaintiff would transfer to the defendant 167,275 Old Mutual Public Limited Company shares and 110,000 shares in a company known as PPC. Transfer of title in the property would be registered in favour of the plaintiff upon delivery of the Old Mutual shares. The PPC shares would be transferred to the defendant after the transfer of the property to the plaintiff.

Pursuant to the agreement, the plaintiff delivered the 167,275 shares to the defendant.

The defendant, however, breached the agreement by failing to transfer the immovable property into the name of the plaintiff. Consequently, the plaintiff cancelled the agreement and demanded the return of his Old Mutual shares which demand the defendant failed to comply with hence the instant proceedings.

The defendant denies the alleged agreement and states that he only received the 167,275 shares from the plaintiff in his capacity as agent for a company known as Zimcor Limited in which he was neither Director nor shareholder. The share certificates were in the name of Zimcor Limited.

Four issues were referred to trial. These are;

(1) Whether or not the defendant entered into an Asset Swap Agreement with the plaintiff;

(2) Whether or not the defendant was acting in his personal capacity;

(3) Whether or not, as a result of the said agreement, the defendant had 167,275 Old Mutual shares transferred to him by the plaintiff; and

(4) If so, whether or not the defendant is liable to transfer the aforementioned shares to the plaintiff, or, upon failure to do so, the value of the shares.

The plaintiff gave evidence in support of his claim. In addition to stating the facts as stated in his declaration, the plaintiff stated that he was introduced to the defendant by one Brian Machengo, an estate agent who was acting as the defendant's agent. The agreement, the terms of which are detailed in the plaintiff's declaration, was then concluded. The defendant advised the plaintiff that he had purchased the immovable property which he would deliver to the plaintiff from the Sheriff of the High Court at an auction. The defendant instructed the plaintiff to transfer the shares into the name of Zimcor Limited, a company which the plaintiff was made to understand belonged to the defendant.

Having transferred the shares into the defendant's nominee through his brokers, New Africa Securities, the plaintiff presented proof of such transfer to the defendant who duly signed to acknowledge receipt while Brian Machengo signed as a witness.

Thereafter, attempts were made by the plaintiff, acting through Brian Machengo, to obtain vacant possession of the immovable property which the defendant had agreed to deliver to the plaintiff. Those efforts yielded nothing.

The defendant gave evidence himself. He stated that he did not know the plaintiff but then said that he had met him two or three times before in 2008. He categorically denied entering into an agreement in terms of which he agreed to swap the immovable property referred to above for shares as alleged by the plaintiff.

His evidence was that at some point an estate agent advised him that a potential client wanted to buy the immovable property in question but the property could not be sold as it was the subject of a dispute and was not available for disposal.

He denied ever receiving the Old Mutual shares from the plaintiff or directing the plaintiff to transfer the shares to Zimcor Limited. His evidence was that he only received the documents pertaining to the shares on behalf of the “owners” of Zimcor Limited who had moved to South Africa at that time.

The standard of proof required in this case, being a civil matter, entails a comparative rather than a quantitative test.

The onus, in this case, is on the plaintiff to prove his case on a balance of probabilities.

The degree of proof is expressed in the following statement of lord denning in the case of Miller v Minister of Pension [1947] 2 All ER 372…,:

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not.”

This test has stood the test of time, and has been consistently applied; see Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at 157D; Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (S) at 503E-504D.

This is a case in which the versions of the plaintiff and the defendant are mutually destructive.

The approach of the court in the face of such a scenario is as stated by sandura JA in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…,:

“Commenting on mutually destructive stories, wessels JA (as he then was) had this to say in National Employers Mutual General Insurance Asociation v Gany 1931 AD 187 at 199:

'Where there are two stories mutually destructive; before the onus is discharged, the court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests is true and the other false. It is not enough to say that the story told by Clark is not satisfactory in every respect. It must be clear to the court of first instance that the version of the litigant upon which the onus rests is the true version, and that, in this case, absolute reliance can be placed upon the story as told by A Gany…,.'

I entirely agree with the learned JUDGE OF APPEAL.”

The plaintiff's evidence is simple and supports the averments in his declaration. He tendered proof of transfer of the Old Mutual shares. He also explained why the shares were transferred into the name of Zimcor Limited rather than in the defendant's name. The company was the defendant's nominee for the purpose of receiving the payment. The plaintiff owed no obligation to that company which would have underpinned transfer of shares into its name.

The link between the transfer of shares and the existence of an immovable property which the defendant had purchased from the Sheriff's auction is established by evidence.

There is no way that the plaintiff would have known that the defendant had purchased that property from an auction.

The plaintiff also testified on the efforts which were made to recover the immovable property from the judgment debtor who was the owner of the property.

The documents on record show the involvement of a firm of attorneys, Ziumbe & Mtambanengwe, in the efforts to get the property from the judgment debtor. From the documentary evidence adduced by the plaintiff, the defendant gave written authority to Brian Machengo to recover possession of the property from the owner of it.

The plaintiff was not only a credible witness; his evidence accords with the probabilities.

The defendant presented himself as an evasive, and, in some instances, deliberately mendacious witness. When he was asked if he knew the plaintiff his initial response was: “I don't know him.” A moment later he said that he had met the plaintiff two or three times way back in 2008.

When he was asked if he had entered into the agreement in terms of which the plaintiff would transfer shares to him in return for the immovable property his response was: “Absolutely no.” When his attention was drawn to his affidavit in Case Number HC14089/12 in which he stated that in 2008 he extended an offer to the plaintiff to purchase the property, the defendant sought to disown the contents of the affidavit.

In his evidence in this court he denied ever attempting to sell the property to the plaintiff. He denied that he was at some point represented by a Mr Ndoro of Ziumbe & Mtambanengwe - even in the face of an affidavit in Case No. HC2560/09 in which he was represented by that attorney, and he states so in the affidavit.

The defendant's statement that he received the proof of share transfers as agent of Zimcor Limited cannot be accepted.

He conveniently endorsed on one of the documents that he was receiving on behalf of Zimcor Limited so that he would point to that endorsement as a ground to wriggle out of his contractual obligations.

The defendant did not call any witness from that company to support his story.

He inadvertently admitted that he is in the habit of not registering assets in his own name which would explain why he directed the plaintiff to transfer the shares into the name of Zimcor Limited.

The defendant made inconsistent statements about whether he had appointed Brian Machengo to be his agent.

In one instance, he disputed that fact before he admitted it with some qualification. This was so notwithstanding the availability of a handwritten document which he authored and signed appointing Brian Machengo to be his agent and the fact that when the plaintiff gave evidence on the appointment of Brian Machengo to be the defendant's agent he was never challenged.

The defendant's demeanour, punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts, presented him as a witness who was seeking to mislead the court.

This court is convinced that the plaintiff has established, on a balance of probabilities, that he entered into an agreement with the defendant and that pursuant to that agreement he transferred his Old Mutual shares to the defendant. The defendant failed to perform in terms of the agreement. The plaintiff, as he was entitled to do, cancelled the agreement.

He is entitled to the return of his shares or payment of the value of the shares.

It was submitted, on behalf of the defendant, that Old Mutual PLC is no longer listed on the Zimbabwe Stock Exchange.

That fact is not a bar to an order that the value of the shares be calculated as at the last day that that company traded in Zimbabwe.

In the result, IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively;

(b) Payment of 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 date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.

View Appeal
HH253-16 : ENGEN PETROLEUM ZIMBABWE [PVT] LTD vs WEDZERA PETROLEUM [PVT] LTD and INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: MAFUSIRE J

This was a civil trial. The first defendant [“Wedzera”] was in default. On application by the plaintiff [“Engen”] in respect to which the second defendant [“the Bank” or “IDBZ”] had nothing to say, I entered a default judgment against Wedzera, in favour of the plaintiff, in the sum of $847,847=65, ...

View Appeal
HH339-18 : KUDAKWASHE MURAPE and MABLE MURAPE vs MUCHANETA CHATAMBUDZA
Ruled By: CHIKOWERO J

The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity.

Her plea, filed on 26 June 2006, simply reads:

“1. At the material time, the defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.

Wherefore, the defendant prays for the dismissal of the plaintiffs' claim with costs.”

Under “INSANE PERSONS” R H CHRISTIE, in Business Law in Zimbabwe, Juta and Co. Ltd 1998…, states the law applicable in matters such as the present as follows:

“The normal objective enquiry into whether agreement was reached must give way to a more subjective enquiry when it is alleged that one party to a contract was suffering from a mental illness or incapacity at the time of contracting. It would not be fair to hold such a person to the external manifestations of agreement he may have given.

The contract will be void if it can be established that, irrespective of the general state of mental health, one party's mind was, at the time of contracting, incapable of understanding and appreciating the transaction, or that his consent was motivated or influenced by an insane delusion caused by mental disease.”

The position is settled that there is a presumption that every party to a contract has full contractual capacity. The onus is thus on the party alleging insanity to prove the same. R H CHRISTIE, Business Law in Zimbabwe, Juta and Co, Ltd 1998…,.

This is echoed by NIGEL EASTMAN et al in their work Handbook of Forensic Psychiatric Practice In Capital Cases where the authors state…,:

“There is a general presumption of sanity, so that the defence has to be raised (by either side or the judge) in most jurisdictions.”

The question of whether a person had the requisite mental capacity at the time of signing an Agreement of Sale is a question of fact to be decided by the court: Executive Hotel (Pvt) Ltd v Bennet N.O. 2007 (1) ZLR 343 (S); Susan Taurai Mapfunde Dube N.O. v Robert Matoka and 2 Ors HH212-14.

I find, as a fact, that the defendant failed to establish that she lacked the requisite mental capacity to contract when she signed the Agreement of Sale on 26 January 2006.

The reasons now follow.

This property was advertised for sale in a national newspaper, The Herald. The defendant did not call that estate agent to testify on the circumstances relating to the latter's receipt of the instructions to sell the property.

It was therefore neither shown nor was the defendant's case that she was not the person who approached the estate agent with instructions to advertise the property for sale.

It also was neither established nor was it her case that it was not herself who either instructed or approved one billion nine hundred and fifty million dollars as the purchase price of the property....,.

There was no evidence from persons staying with or neighbouring the defendant from the time that the instructions were given to Fingold Real Estate to advertise and sell the property for one billion nine hundred and fifty million dollars to the time that she signed the Agreement of Sale.

Because the defendant is alleging insanity, such evidence, if indeed she was insane on 26 January 2006, would have helped her establish such defence.

The estate agent who read and explained the terms of the Agreement of Sale to the defendant and Abel Murape, prior to those two and the witnesses signing the same, did not testify.

The two witnesses who signed the Agreement of Sale did not testify.

In these circumstances, there is no evidence that the defendant exhibited signs of mental illness on 26 January 2006.

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

The plaintiff sued his wife, the defendant, seeking a decree of divorce and other ancillary orders.

The parties were married on 5 October 1991 in Bulawayo. Their marriage was blessed with a son who has since attained the age of majority and obtained his first degree. He is staying with the defendant.

The defendant did not oppose the plaintiff's claim for a decree of divorce.

She, however, sought the distribution of assets, including their matrimonial home, and maintenance.

The parties found each other on the distribution of the movables and the matrimonial home. They sold the matrimonial home and used most of the proceeds to purchase a house which was registered in the name of the defendant and their son.

The only outstanding issue is whether or not the defendant is entitled to post divorce maintenance and the quantum of such maintenance.

She initially wanted to be paid maintenance in the sum of US$8,000 per month. After their settlement on the issue of the matrimonial home she reduced her claim to US$3,000 per month till she dies, remarries, or cohabits with another man.

The plaintiff is not willing to pay her maintenance for life. He offered to pay maintenance in the sum of US$1,000 per month for a year after the granting of a decree of divorce.

The plaintiff is a medical doctor. His income, between January and December 2015, gave him an average income of US$12,913=81 per month. His recent income, between January 2016 and March 2016, averaged US$10,868 per month. He is currently maintaining the defendant in the sum of US$3,000 per month and has previously maintained her at higher amounts as he would give her money whenever she made demands.

It is common cause that US$3,000 per month is a reasonable expenditure for both the plaintiff and the defendant. The plaintiff initially gave the impression that he lives inexpensively, but, when details of his expenditure where sought he said he lives on US$3,000 per month over and above his mortgage bond repayments of US$2,111 per month.

He admitted that US$3,000 per month is a reasonable monthly expense.

He lives in an apartment while the defendant lives in the house bought from the proceeds of the sale of the matrimonial home. She currently lives with their son while he lives alone.

It is now accepted that marriage is not a ticket for one to be maintained for life. A former spouse who is able to work must do so and maintain himself/herself.

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

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

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

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

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

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

It is common cause that she had, since 2003, stopped running her business because of ill health. It is therefore insincere for the plaintiff to now stand in the witness stand and say she can, on divorce, resume that business and support herself.

The plaintiff further alleged that the defendant has an income from rentals paid to her late father's estate.

The estate has not been wound up. It is therefore premature for the plaintiff to rely on such income.

No evidence was led from the Executor as to how much is being paid to the defendant.

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

This is an application for reinstatement of an appeal in terms of Rule 34(5) of the Supreme Court Rules, 1964.

The brief facts giving rise to the application are that the applicant employed the respondent as its clerical officer.

Sometime in October 2011, the respondent received and receipted a total amount of US$34,247 in the course of duty. The money went missing and the respondent was charged with failure to remit the receipted money for banking. The prime suspect for the missing money was the respondent's supervisor who also went missing soon after the money disappeared.

Consequently, the Disciplinary Committee charged and dismissed the respondent from employment in connection with the missing money. The Committee found that the respondent was at fault in that there was no evidence that he handed over the missing money to his supervisor, Mr Manyere, because the supervisor had not signed acknowledging receipt of the money.

As the respondent was dissatisfied with his dismissal from employment, the matter was subsequently referred to the arbitrator. The arbitrator ruled in favour of the appellant and confirmed the dismissal.

Aggrieved by the arbitrator's award, the respondent successfully appealed to the Labour Court. In an order dated 25 October 2013 it determined that the respondent's dismissal was unlawful and proceeded to make the following order:

“1. The appeal be and is hereby upheld.

2. The respondent is ordered to reinstate the appellant without any loss of salary or benefits from the date of unlawful dismissal.

If re-instatement is no longer an option, the parties may agree on the quantum of damages in lieu of reinstatement. In the event that parties fail to agree on the amount of damages, either party can approach this Court for quantification of damages.

There is no order as to costs.”

Dissatisfied by the above order, the applicant sought, and was granted, leave to appeal to this Court on 9 July 2014.

By the time the applicant obtained leave to appeal the time within which it was obliged to file its appeal had already expired, thereby necessitating an application for condonation of late noting of appeal. The application for condonation was granted by this Court on 18 June 2015. The order reads:

“IT IS ORDERED THAT:

1. The condonation of late noting of appeal and extension of time within which to appeal be and is hereby granted.

2. The notice of appeal dated 12 December 2014 shall be deemed to have been filed on the date of this order.

3. There shall be no order as to costs.”

Following the granting of the above order, on 10 August 2017, the Registrar of the Labour Court issued a notice for the applicant to pay US$120 within five (5) days of receipt of the notification letter in terms of Rule 34(1); being costs for the preparation of the record of proceedings. The notice was served on the applicant on 16 August 2017.

The applicant defaulted in making the required payment within the prescribed five (5) days' period; whereupon, the Registrar wrote to the applicant's legal practitioners, on 23 November, advising that the appeal was deemed to have lapsed. The letter reads:

“RE: CITY OF HARARE V CHIKANDA

Reference is made to the notice of appeal you filed on 27 March 2017.

It is noted that you did not make any arrangements for the preparation of the record within the time specified in sub rule (1) of Rule 34 of the Supreme Court Rules, 1964.

In terms of sub-rule (5) of Rule 34 of the aforementioned rule, the appeal is deemed to have lapsed.”

In terms of Rule 34(5), the applicant can only be granted relief by a judge of this Court upon proof of good cause for non-compliance.

The sole issue for determination on the merits is whether or not the applicant has shown good cause for the admitted disdain of the Rules....,.

Turning to the merits of the application, the applicant has, in effect, proffered one reason for its non-compliance with Rule 34(5). Its reason for failure to pay for the preparation of the record of proceedings is that, being a large organisation, it is overwhelmed with cases of litigation such that omissions and errors of this kind are bound to happen.

In his founding affidavit, Hosia Chisango, the applicant's Acting Town Clerk, deposed, at paragraph 18, that the notification for payment was received on time and forwarded to the Finance department. Payment was however not done, in error, owing to overwhelming litigation workload. At paragraph 19 this is what he had to say:

“19. I have discovered, after enquiring from the relevant official, that because of the numerous similar payments that were being made around the same time this payment was mistakenly omitted. It was only after the notice dismissing the appeal was served that verifications with the records were done and it became apparent that this payment, and a few others, had been omitted.

20. I must hasten to state that, because of the size of the applicant organisation, it is currently struggling to cope with litigation costs. The applicant, by virtue of its size, is naturally involved in a lot of litigation. This means that, on a daily basis, either we are paying costs for the serving of notices of set down or we are paying costs to issue court process, or we are paying costs of preparation of records or we are paying Sheriff's costs of serving process. In the end, some payments are omitted.

21. Quite, unfortunately, the time frames that are required for us to be paying these litigation costs are too short and very often we are struggling to meet them.”…,.

The long and short of it all is that the applicant is saying, owing to its huge size and enormous amount of litigation it is unable to comply with the Rules of Court. Paragraphs 19 to 21 of its founding affidavit however tell a totally different story. They disclose a woeful lack of diligence and disgraceful dereliction of duty on the part of the respondent, its officials, and legal practitioners.

It is clear, from the founding affidavit, that after lodging the claim for payment with the finance department no one made a follow up to check whether payment had been effected within the prescribed period. No follow up was made despite knowledge that the payment could be omitted in error. Blaming the volume of work is just a red herring meant to cast wool over the judge's eyes.

Both the applicant's officials, and its lawyers, were reckless in their handling of the appeal. They cannot be allowed to hide behind the volume of work as if they are the only big organisation involved in enormous amounts of litigation.

What immediately comes to mind is the Attorney General's office that has to handle litigation for the entire Government and other City Councils that operate more or less in the same manner as the applicant.

The averment made by the Acting Town Clerk, to the effect that the appellant was hampered in its endeavour to effect payment timeously by an overwhelming amount of litigation, is uncorroborated hearsay not supported by the officers and the legal practitioner concerned.

No weight can therefore be given to the Acting Town Clerk's averments in this respect in the absence of any supporting affidavits from the officers concerned.

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

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA Ruled By: BHUNU JA

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