Locus Standi re: Legal Status of Litigants, Voluntary or Un-incorporated Associations & the Principle of Legal Persona

HH81-09 : SAFARI OPERATORS ASSOCIATION OF ZIMBABWE vs ZIMBABWE TOURISM AUTHORITY and MINISTER OF ENVIRONMENT AND TOURISM and COMMISSIONER GENERAL OF POLICE
Ruled By: PATEL J

The applicant herein is an association that comprises licensed tour and safari operators and represents their interests. The first respondent is the Zimbabwe Tourism Authority (the Authority) which is established under the Tourism Act [Chapter 14:20] and is primarily responsible for administering that Act.Towards the end of 2007, the Zimbabwe ...

SC16-12 : CT BOLTS (PVT) LTD vs WORKERS COMMITTEE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

This is an appeal against the decision of the Labour Court remitting the matter to an arbitrator for the determination of the salary increment to be awarded to employees of the applicant. At the hearing of this matter, it appeared to this Court that the respondent, simply cited as “Workers Committee”, was not a legal persona ...

This is an appeal against the decision of the Labour Court remitting the matter to an arbitrator for the determination of the salary increment to be awarded to employees of the applicant.

At the hearing of this matter, it appeared to this Court that the respondent, simply cited as “Workers Committee”, was not a legal persona capable of being sued. Accordingly, both counsel were asked to address the Court on the matter. Both counsel accepted that the respondent, which is a workers committee appointed by workers of the appellant company, is not a legal persona and cannot therefore be sued….,.

The issue of the legal status of the respondent assumes greater significance in a case such as this one where there could be issues of costs involved.

Under the common law, an unincorporated association, not being a legal persona, cannot, as a general rule, sue or be sued in its name apart from the individual members, whose names have to be cited in the summons. A universitas, on the other hand, has the capacity, apart from the rights of the individuals forming it, to acquire rights and incur obligations. The position is also established that a body that has no Constitution is not a universitas; for it is the Constitution that determines whether an association is or is not a universitas.

On a proper interpretation of section 24 of the Labour Act [Chapter 28:01], it is clear that a workers committee exists to safeguard and champion the interests and welfare of the workers at the workplace. It has no other function. There is no provision in the Labour Act [Chapter 28:01] requiring a workers committee to adopt a Constitution. There is also no requirement for a workers committee to acquire rights apart from the rights of the individuals forming it and the employees they represent. There is also no provision for a workers committee to acquire assets in its own name.

In contrast, section 29 of the Labour Act [Chapter 28:01] has provided that upon registration, every trade union, employers' organisation or federation shall become a body corporate, and, in its corporate name, shall be capable of suing and being sued. Such bodies are required, by section 28 of the Labour Act [Chapter 28:01], to adopt a written Constitution.

Had the intention of Parliament been to clothe a workers committee with some legal status, the Labour Act [Chapter 28:01] would no doubt have said so. The fact that it did not do so suggests that the intention was not to give the committee any other additional rights.

I am aware that in cases such as Thomas Meikles Centre (Pvt) Ltd v (1) TM National Workers Committee (2) D Mvududu N.O. (3) The Minister of Public Service, Labour and Social Welfare SC77-02 and Olivine Industries (Pvt) Ltd v Olivine Workers Committee 2000 (2) ZLR 200 (S), this Court proceeded on the basis that the workers committee cited in the appeal proceedings was properly before it. The issue of the legal status of the workers committee had not, however, been raised, and, consequently, a determination of the legal status of the workers committee never became necessary.

However, in Cold Storage Company National Workers Committee v Cold Storage Company Limited HB08-02, the legal capacity of the workers committee to institute the proceedings in that matter was raised. In dismissing the application, the court remarked…,:

“The legislature did not give the workers' committee the right to sue and to be sued like it did to the employment council. In s60 of the Act, employment councils were made bodies corporate, capable of suing and being sued. It seems to me that if the intention of the legislature was to make workers committee legal personae it would have said so.

The applicant, however, argued that it derived its authority from the provisions of the Act quoted supra. It seems to me that the argument ignores the fact that in the event of the case going in favour of the other party with costs, such party would have no one to recover its costs from, as the applicant is not capable of suing and being sued. There would also be no one to execute the order against.”

I would agree with the above remarks.

The respondent, not being a legal persona, is not properly before this Court. The proceedings before the Labour Court, and, prior to that, the arbitrator, were similarly void….,.

The proceedings are accordingly struck off the roll with no order as to costs.

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

Both accused persons are charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 09:23]. They are alleged to have, on various occasions, during the period extending from 29 March 2009 to 14 August 2009, defrauded the Government of Zimbabwe of two billion United States Dollars.

The charge sheet is framed as follows:

“Accused are guilty of FRAUD as defined in s136 of the Criminal Law (Codification and Reform) Act [Cap 09:23].

In that on various separate occasions, but during a period beginning 29 March 2009 to 14 August 2009, and at the ministry of Mines and Mining Development and at Zimbabwe Mining Development Corporation's Offices in Harare, both accused persons, and in common purpose, unlawfully and fraudulently made misrepresentations with intent to defraud the Government of Zimbabwe; that is to say, Lovemore Kurotwi misrepresented to the Ministry of Mines and Mining Development and Zimbabwe Mining Development Corporation that Core-mining and Mineral Resources (Pty) Limited (a shelf company in South Africa) was a special purpose vehicle of a company known as Benny Steinmeitz Group Resources (BSGR) (which was supposed to be the Guarantor in a Joint Venture Agreement between Core-Mining and ZMDC) in common purpose with Dominic Mubaiwa who later joined in the criminal enterprise and unlawfully prepared and entered into an unapproved and uncirculated memorandum of Agreement between Marange Resources (Pty) Ltd signed on 24 July 2009 and later acquired a cabinet authority to proceed to South Africa to conduct a due diligence exercise on Co-Mining (a mere shelf company) which both accused persons purported to be a Special Purpose Vehicle of Benny Steimeitz Group (BSGR) thereby ending up concluding a Shareholder Agreement between Zimbabwe Mining Development Corporation and Core-Mining and Mineral Resources (Pty) Limited instead of Benny Steinmeitz Group (BSGR) which all along had been held out by both accused persons as the Guarantor of Core-Mining thereby causing an actual prejudice of two billion United States Dollars to the Government of Zimbabwe.”

Both accused persons pleaded not guilty, and, thereafter, proceeded to except to the charge.

Their main complaint is that although the charge makes allegations of misrepresentation to the Ministry of Mines and the Zimbabwe Mining Development Corporation, none of the papers indicate to which natural person the misrepresentation was made. It was argued that both entities, being artificial persons, could only act though natural persons. It was therefore necessary to specify the natural person to whom the misrepresentation was made otherwise the accused will be prejudiced in their defence if they were left in the dark or to speculate as to which natural person they are alleged to have made the misrepresentation.

The accused's second complaint is that although the State alleges actual prejudice of two billion United States Dollars, it does not inform them as to how the prejudice came about.

In light of such objections, the accused requested the Court to order the delivery of the relevant particulars in terms of section 177 of the Criminal Procedure and Evidence Act [Chapter 09:07] to enable them to prepare their defence. That section reads:

“177 Court may order delivery of particulars

(1) The court may either before or at the trial, in any case if it thinks fit, direct that particulars be delivered to the accused of any matter alleged in the indictment, summons or charge, and may, if necessary, adjourn the trial for the purpose of the delivery of such particulars.

(2) Such particulars shall be delivered to the accused, or to his legal representative, without charge, and shall be entered in the record, and the trial shall proceed in all respects as if the indictment, summons or charge had been amended in conformity with such particulars.

(3)…,.”

Section 146 of the Criminal Procedure and Evidence Act prescribes the essentials of a valid and competent charge. It states that:

“146 Essentials of indictment, summons, or charge

(1) Subject to this Act, and except as otherwise provided in any other enactment, each count of the indictment, summons, or charge shall set forth the offence with which the accused is charged in such manner, and with such particulars as to the alleged time and place of committing the offence and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.”

Thus, the State is under an obligation to frame a charge among other things so as to inform the accused person of the offence he is facing together with the particulars or essential elements of that offence. The section also requires the State to inform the accused of the person against whom the offence was committed and the nature of the property involved, if any.

Failure to give such particulars would render the charge defective and exceptiable.

It is therefore necessary to examine and see if the charge complies with the essentials laid down in section 146 of the Criminal Procedure and Evidence Act.

It is common cause that the accused were informed that the offence they were facing is fraud committed against the Government of Zimbabwe in the sum of two billion United States Dollars. In short, they are being accused of defrauding the Government of Zimbabwe of two billion United States Dollars.

It is trite that the Government of Zimbabwe is a legal entity with full legal persona capable of suing and being sued in its own name. It has a separate legal existence from its officials and servants. The Government of Zimbabwe, duly constituted by the Constitution of Zimbabwe, is, therefore, undoubtedly a juristic person.

HALO's South African Company Law through the cases, 6th ed 1999 defines a juristic person as:

“A body corporate or association, other than a natural person, that is endowed by law with the capacity to have rights and duties apart from its members.”

The State, being a juristic person, ought to be treated like any other juristic person. TETT and CHADWICK, Zimbabwe Company Law, 2nd ed…, states that:

“The effect of a company having separate legal personality is that it can engage in any activity and is entitled to the same rights and remedies as any other juristic person.”

The law, therefore, makes no distinction between the framing of charges involving natural persons and artificial persons. Thus, the Government of Zimbabwe, like any other juristic person, has the full locus standi in judicio to appear and be heard as the complainant in any Court without being carried on the back of any natural person. Thus, it is sufficient for the State to allege that the misrepresentation was made to a juristic or artificial person without naming any natural person.

It is instructive to note that section 146 of the Criminal Procedure and Evidence Act does not make it a requirement that where the complainant is a juristic person the charge must specify the natural person to whom the misrepresentation was made.

HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J

The applicant is a Trust duly registered in terms of the laws of this country...,.

HH69-09 : CHRISTIAN FAITH TABERNACLE vs SPARROWS NEST MINISTRIES
Ruled By: PATEL J

The defendant sought absolution from the instance on the.ground that the plaintiff lacked the requisite locus standi to sue in this matter. The defendant contends that the plaintiff has no valid constitution and is therefore not a common law universitas. Additionally, it is contended that even if a valid constitution does exist, it does not ...

HH69-09 : CHRISTIAN FAITH TABERNACLE vs SPARROWS NEST MINISTRIES
Ruled By: PATEL J

Turning to the Constitution of the plaintiff, Articles I, V and VII, as read together, show that the membership of the plaintiff is open to all persons who meet the prescribed spiritual qualifications and that the composition of its executive body, the Board of Directors, is subject to change under specified circumstances. This clearly demonstrates ...

HH21-09 : MASHONALAND TURF CLUB vs MICHELLE NYAMANGUNDA
Ruled By: MTSHIYA J

This is an action for the eviction of the defendant and all those claiming occupation through her from the plaintiff's premises situate at the Borrowdale Park Race Course, Harare.

It is common cause that on 23 April 2007 the plaintiff entered into a lease agreement with a company called Lunar Graphics Products (Pvt) Ltd (Lunar Graphics). The plaintiff was represented therein by Mr Howard Mukundu (Mr Mukundu) who gave evidence in casu. Clause 6 of the lease agreement allowed the lessee to sublet part of the premises to a licensed book maker such as the defendant.

On 31 January 2007, the plaintiff, represented by a Mr Shingirai Tanyanyiwa, entered into an Agreement of Lease which, in clause 1, provided as follows:-

“The lessor hereby lets, and the subtenant hereby hires, a portion of the Lessor's property commonly known as the Zimbabwe Betting and Sport at the Borrowdale Park Race Course.”

The defendant signed the agreement as “The Sub-Tenant.”

The 12 months agreement, which commenced on 1 January 2007, was, in terms of clause 3 thereof, renewable.

It is not clear whether, in entering this agreement directly with the defendant, the plaintiff was doing so on behalf of Lunar Graphics in terms of clause 6 of the agreement signed between the plaintiff and Lunar Graphics on 23 April 2007. The agreement between the plaintiff and the defendant is silent on that aspect. However, in paragraphs 4.1 and 4.2 of its declaration the plaintiff states as follows:

“4.1 Accordingly, on the strength of clause 6.1 of the lease agreement, Lunar Graphics Products (Private) Limited sublet the premises to the defendant.

4.2. Further to the above referred sublease agreement between Lunar Graphics Products (Private) Limited and Defendant, Plaintiff formally acknowledged the subtenant through a memorandum signed to that effect. A copy of the memorandum is hereto attached for case of reference marked as 'B'.”

On 27 August 2007, the plaintiff gave Lunar Graphics notice of termination of the agreement of 23 April 2007. Lunar Graphics duly vacated the plaintiff's premises on 31 December 2007.

On 29 August 2007, two days after signing the notice to Lunar Graphics, the plaintiff also gave notice to the defendant in the following terms:-

“Att: Michelle Nyamangunda

Borrowdale Park Race Course
Box 376
Harare

Dear Madam

Re: Termination of Sub-Lease

Please be advised that three months notice to terminate the principal lease agreement between Mashonaland Turf Club and Lunar Graphics has been given. The notice period shall run from the 1st September 2007 and shall terminate on the 30th November 2007. You are accordingly expected to vacate the property on or before 30th November 2007 following the termination of the principal lease. The three calendar months notice period is in line with clause 14 of the sub-lease agreement.

Should you have any queries concerning the contents of this letter, please kindly contact the undersigned within the next few days so that any issues arising may be discussed.

Yours faithfully

S. TANYANYIWA
Mashonaland Turf Club”

The defendant did not comply with the above notice, and, on 28 September 2007, she wrote to the plaintiff in the following terms:-

“Mashonaland Turf Club
Borrowdale Race Course
Borrowdale
HARARE

ATTENTION: MR S TANYANYIWA

Dear Sir

REF: RENEWAL OF SUBLEASE AGREEMENT

In terms of Clause 3.1. of our Lease Agreement, I hereby notify you of our intention to renew our Sub Lease Agreement for another year to run from 1st of January 2008 to December 2008.

Yours faithfully
M Nyamangunda
Bookmaker”

The above letter was followed by another one from the defendant's legal practitioners, dated 27 November 2007. The letter was for the attention of Mr Mukundu and it read as follows:-

“Dear Sir

Re: MICHELLE NYAMANGUNDA: TERMINATION OF SUB-LEASE

We refer to the above matter. We thank you for furnishing us with the various documents which we had requested to enable us to respond to your letter to our client dated 29th August 2007. This is our response:

1. Contrary to what is stated in your letter aforesaid, our client's occupation of the premises, namely, the premises commonly known as the Zimbabwe Betting and Sport at Borrowdale Park Race Course is not in terms of any sub lease with Lunar Graphics. It is actually in terms of an agreement of lease between yourselves and our client. We attach hereto a copy of the said agreement of lease for your information.

2. It is clear in the premises that our client's rights in the lease agreement do not flow from any sublease with Lunar Graphics but from the lease with yourselves. In the premises, whether or not the lease agreement between yourselves and Lunar Graphics has been terminated, or is being terminated, is not a factor in determining our client's right to occupation of the premises.

3. The lease agreement that you have with our client is for a specific period of twelve months terminating on the 31st December 2007. At the expiry of the lease agreement, our client has an option to renew for a further year commencing on the 1st January 2008 to 31st December 2009. Our client has already given your notice of her intention to exercise her firth to renew the lease agreement. A copy of her letter to yourselves dated 28th September 2007 is attached hereto for ease of reference.

4. As far as our client is concerned, clause 14, which provides for the termination of the lease agreement on three calendar month's notice, contradicts the provisions of clauses 2 and 3 of the same lease. Clause 14 is therefore clearly not enforceable in the premises.

In the premises, our client does not recognise your notice as valid. Our client will therefore not be vacating the premises, as demanded by yourselves, on the 30th November 2007. Any action which you may want to take to eject our client from the premises will be strongly resisted. To that end, we write to advise that we have the authority to receive service of summons on our client's behalf should you think of suing her for eviction.

Yours faithfully
Mawere & Sibanda
T. Mawere”

The defendant's position, reflected in the above letter, is what led to the issuance of a summons by the plaintiff on 21 January 2008 claiming:-

“(a) That defendant and all those claiming right of occupation through her be evicted from plaintiff's premises within seven (7) days from the date of this order being served upon her.

(b) That plaintiff shall be entitled to holding over damages from 1 January 2008 to the date of vacation (sic).

(c) Interest in the sum calculated in (b) above at the prescribed rate from 1 January 2008 to the date of payment.

(d) Costs of suit at the attorney and client scale.”

Before and during the trial, the defendant raised a preliminary issue. The issue, which is incorporated in the joint pre-trial conference minute, is:

“Whether or not the plaintiff is properly before the court.”

In support of the point in limine, counsel for the defendant submitted that the defendant had raised the preliminary issue before the commencement of the trial and during the trial. He said whereas the plaintiff had the capacity to sue, the issue in casu was whether or not the plaintiff was properly before the court and/or was the plaintiff indeed being represented by the persons empowered to institute or defend legal proceedings on its behalf.

He said the plaintiff had failed to comply with the provisions of clause 6 of its own Rules and Bye-Laws (the Rules).

There was no resolution from the plaintiff confirming that those instituting legal proceedings had its authority as required by Clause 6 of the plaintiff's Rules.

Furthermore, the plaintiff's representative, Mr Mukundu, had confirmed, under oath, that he was neither a trustee nor steward.

Counsel for the defendant pointed out that in Mashonaland Turf Club v Dunvale Investments (Private) Limited HC1013/08 the court had not at all dealt with the issue of whether or not the plaintiff was properly before the court. The issue was not before the court then. He urged the court not to rely on that case for its ruling.

The plaintiff, he argued, had failed to demonstrate, through evidence, that it was properly before the court. This was so despite the fact that the plaintiff had ample time to do so. He therefore urged the court to dismiss the plaintiff's claim on the ground that it was not properly before the court.

In response to the defendant's submissions on the preliminary issue, counsel for the plaintiff argued that the plaintiff, a voluntary association, had legal capacity to institute and defend proceedings in court. He said the plaintiff had recently done so in the recent case (i.e. Mashonaland Turf Club v Dunvale Investments (Private) Limited HC1013-2008 where MAKARAU JP had disregarded that argument. He therefore urged the court to be guided accordingly.

I shall start by confirming that a reading of MAKARAU JP's judgment in Mashonaland Turf Club v Dunvale Investments (Private) Limited HC1013-2008 does not reveal that the same issue before me was raised. I can only assume that the decision to proceed in that case was based on the fact that the plaintiff has capacity to institute legal proceedings.

In the absence of a challenge, such as the one before me, I have no reason to question whether or not clause 6 in that case was complied with.

Clause 6 of the plaintiff's Rules spells out how that capacity can actually come by. The said clause 6 provides as follows:-

“Legal Proceedings

The club may sue and be sued in any court of law in its name. It shall be represented in any legal proceedings by the Trustees for the time being, who shall have power to institute and defend any legal proceedings on behalf of the club when authorised to do so by the stewards.”

My reading of clause 6 of the plaintiff's Rules, as read together with clauses 22-24 therein, leaves me with no doubt that the plaintiff did not comply with its own Rules in order to be able to acquire capacity to institute these proceedings.

The power of Stewards is spelt out in clauses 22-24. Clauses 22-24 provides as follows (i.e. relevant portions of the sections);

“22. The Stewards shall, in addition to the powers and authorities by these Rules specially conferred upon them, have the entire management and control of all the affairs of the Club, but, subject to any Resolution passed at a General Meeting of members enjoying voting rights; PROVIDED that no Resolution of the members enjoying voting rights in General Meeting shall invalidate any prior act of the Stewards which would have been valid if such Resolution had not been passed.

23. Without prejudice to the general powers conferred by the last preceding clause, and the powers conferred by these presents, it is hereby expressly declared that the Stewards shall have the following powers, that is to say:

(a)…,.

(b)…,.

(c)…,.

(d)…,.

(e)…,.

(f) To institute, conduct, defend, compound or abandon any legal proceedings by and against the Club or its officers or otherwise concerning the affairs of the Club.

(g) To authorise the execution of all Deeds, Powers of Attorney, and other documents for and in the name of the Club which they may from time to time think necessary; PROVIDED, however, that every instrument executed on behalf of the Club shall be signed by the Chairman or the Deputy Chairman, or another Steward, duly authorised thereto by a meeting of the Stewards, and by the Secretary of the Club or such other Executive officer appointed in terms of Rule 26 hereof, who has been duly authorised thereto by a meeting of the Stewards or by some duly authorised person acting in the capacity of either Secretary or of such Executive officer.

(h)…,.

(i)…,.

24. The Stewards shall have the power, from time to time, to make, amend, or repeal any by-laws for giving better effect to any of the Rules of racing, and for regulating their own proceedings as they may deem expedient; PROVIDED that such bye-laws shall not be inconsistent with these Rules or with the Rules and Regulations of the Jockey Club under whose authority and in accordance with whose rules and race meetings and other functions referred to in Rule 52 are held (in these Rules referred to as 'The Jockey Club').”

There is no argument that, in terms of clauses 6 of its Rules, the plaintiff can sue and be sued in its own right provided it has the necessary authority granted under that clause.

It is unfortunate that submissions by the plaintiff's counsel, on the point in limine, were primarily based on whether or not the plaintiff could institute legal proceedings in its own name.

That was not the issue before me.

The issue before me was whether or not, in instituting the proceedings before me, the plaintiff followed its own Rules.

The answer is no.

All Mr Mukundu could tell the court was that he believed that his Chief Executive, who had authorised him to represent the plaintiff, had authority from the Trustees. Under cross-examination, he testified that although he had not seen the authority from the Stewards he believed it was in existence. He said he had confidence in the systems followed by the plaintiff.

It should be noted that notwithstanding the fact that this issue was raised before the trial commenced, Mr Mukundu maintained that the authority for him to proceed with the legal action 'was at the office'.

In the circumstances, I am satisfied that no such authority ever existed.

Mr Mukundu and his Chief Executive were not Trustees. They were acting on their own, and, therefore, outside the requirements of clause 6 of the plaintiff's own Rules. This finding invalidates the proceedings before me. The finding also disables me from proceeding to consider the merits of the case.

The plaintiff has a clear procedure that it set for itself regarding instituting legal process.

The plaintiff has, in casu, violated its own procedures. Setting out clear procedures regarding the process of instituting legal proceedings is a highly commendable action by the plaintiff, but, violating these same procedures is legally deplorable. The purpose of setting them is lost.

I find SANDURA JA's finding in Mugwebie v Seed Co Ltd & Anor 2000 (1) ZLR 93 (S) applicable to this case.

This was a finding made in a labour dispute where the employer, in suspending an employee, had failed to follow its own Code of Conduct. For the sake of clarity, I quote here below extensively from SANDURA JA's judgment;

“In the first place, the appellant was suspended by the company's Marketing Manager who was not the company's Designated Officer. This was in breach of para 4.2. of the Code, which provides that it is the Designated Officer who suspends an employee whom he suspects to have committed an offence. It should be noted that in terms of para 4.2 of the Code the power to suspend an employee only arises when the penalty for the alleged offence is dismissal.

In terms of Part IV of the Code the penalty for fraud is dismissal.

Secondly, Mr Mupotaringa was appointed the company's Designated Officer and instructed to proceed against the appellant on 5 March 1999, about four months after the appellant had been suspended by the company's Marketing Manager. He should have been appointed before the appellant was suspended.

In fact, in terms of para 4 of the Code, no disciplinary proceedings can be instituted against any employee unless it appears to a Designated Officer that the employee in question has committed an offence. Even then, it is the Designated Officer, and no-one else, who is empowered by the Code to notify the employee, in writing, of the nature of the alleged offence and the impending investigations. And it is he, and he alone, who is empowered to suspend the employee and determine whether such suspension is with or without pay, where the penalty for the alleged offence is dismissal.

The question which now arises is whether the appellant's suspension was valid.

There is no doubt in my mind whatsoever that it was null and void. It was a complete nullity. I can do no better than quote what LORD BENNING said in MacFoy v United Africa Co Ltd (1961) 3 All ER 1169 (PC) at 11721:

'If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.'

In my view, these comments apply to the facts of the present case with equal force. The suspension of the appellant was a nullity and all the subsequent proceedings were of no force or effect. It is, therefore, unnecessary to consider the effect of the failure to give a decision within fourteen days.

As the appellant's suspension was a nullity, there was really no need for a court order to set it aside, though it was convenient to have the court declare it null and void so that the parties knew their respective positions.”

In my view, the above case emphasizes the importance of adhering to existing and established procedures in any operating system. Failure to do so negates the whole purpose of ever putting the procedures in place.

Applying the above principles of law to the case before me, it is clear that failure to comply with Clause 6 of its Rules, as read together with the relevant parts of clauses 22, 23 and 24, means that, in law, the plaintiff never instituted any legal proceedings at all against the defendant.

The procedural irregularity in casu was therefore fatal, and, accordingly, the plaintiff is not properly before the court.

Even if one were to invoke the principle of substantial compliance, the plaintiff's omission cannot be saved. The proceedings are a nullity. As already stated, I cannot, under the circumstances, proceed to deal with the merits of the case.

The plaintiff's claim is dismissed with costs.

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU
Ruled By: HUNGWE J

The applicant is a registered political formation in terms of the laws of Zimbabwe.

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

The fourth preliminary point of law that was raised pertaining to both matters was that of the locus standi of the applicants. Locus Standi The applicants locus standi is challenged on the basis that they left the Church of the Province of Central Africa, formed a Province of their own called the Province of Zimbabwe, and were ...

HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION
Ruled By: NDOU J

Before I deal with the merits of the application, I have to determine the points in limine raised by the first respondent in turn. Locus Standi of the Applicants As far as the first applicant is concerned, it is alleged that it is not a legal entity and cannot, therefore, sue. Further, it is alleged that ...

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

The applicant also raised, as a point in limine, the issue of the notice of opposition filed by Mr.A.Windimani-who is not a legal practitioner. It was submitted the said Mr.A.Windimani, being not a legal practitioner, could not purport to represent any of the respondents. I agreed with that submission. When Mr.A.Windimani attempted to address me in this court, he ...

HH91-10 : REVEREND R. J. SIBANDA and APOSTOLIC FAITH CHURCH vs MAGISTRATE RODNEY MZYECE N. O. and NCN MATIZA and K. BOSHA and O. GUMBO and THREE OTHERS
Ruled By: KARWI J

Onius Gumbo added that Todd Phiri was not acting in terms of a special resolution of the Board of the second respondent - and none was attached to his papers. He was certain of this as he is the interim Chairman of the second respondent's Board. I observed that throughout the applicant's papers, the second ...

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

The first of the next three preliminary points raised..., was that the deponent to the applicant's founding affidavit had no locus standi to depose to the affidavit as the deponent was not appointed to the position of Diocesan Registrar by the Bishop of the Diocese of Harare. Furthermore, that even if he was the Diocesan Registrar, as such, he would still not have the locus standi to bring an issue that concerns the Diocese as it is only the Trustees who have the power to institute legal action for and on behalf of the Diocese. Furthermore, and in any event, even if the deponent was acting properly acting in the capacity of Registrar the proceedings should be in the name of the Diocesan Trustees. The issues raised in the application relate to the Diocese and the Registrar has no competence to depose to an affidavit or purport to act on behalf of a party on such issues because in terms of Act 8.6 of the respondent's governing Act only the Registrar's advice is sought. He is not conferred with the competence to do what he has purported to do in casu. It was thus submitted that the urgent chamber application was thus not properly before the court.

In response to the issue of locus standi, it was submitted that if any issue as to locus standi should arise it should be in relation to the parties and not to witnesses. The deponent to the applicant's founding affidavit, being merely a witness, the point raised is untenable. The proceedings were instituted in the name of and by the Church of the Province of Central Africa and not by the Diocesan Trustees for the Diocese of Harare. In any event, in terms of Rule 227(4)(a) of the Rules of this Court, a person who has knowledge of the facts can depose to an affidavit. Furthermore, as the proceedings are brought in the name of the Church of the Province of Central Africa reference to the Diocesan Act is of no application.

Whilst generally a legal point can be raised at any point in legal proceedings, I find it striking that the respondent decided to raise the issue of locus standi at this stage in their saga. These same parties have been litigating for quite some time now and have litigated up to the Supreme Court - often under the very same citations by which they now appear before this court. The application pending before the Supreme Court involves the very same parties and the application also arises from litigation between these same parties in the High Court.

HH108-10 : INYANGA DOWNS ORCHARDS vs EDWARD BUWU
Ruled By: MUSAKWA J

At the hearing of this application, counsel for the respondent raised some points in limine. The first point raised by counsel for the respondent is that there is no application before the court. The submission was that for a party to litigate it must have some legal status, either as a natural person or as a ...

At the hearing of this application, counsel for the respondent raised some points in limine.

The first point raised by counsel for the respondent is that there is no application before the court. The submission was that for a party to litigate it must have some legal status, either as a natural person or as a legal persona. As such, the status of the applicant is not known; if the applicant is a legal persona that should have been apparent in its description.

Counsel for the applicant submitted that as regards the applicant's status this is adequately disclosed in the founding affidavit. In this respect, he referred to paragraph 3 thereof. Alternatively, he submitted that in terms of Order 2 Rule 8 of the High Court Rules the applicant can institute proceedings or be sued in its trade name.

Regarding the identity of the applicant, counsel for the applicant submitted that a party may sue or be sued by its trade name. Counsel for the applicant cited Order 2A Rule 8. However, this provision relates to associates being able to sue or be sued in the name of the association. He must have in mind Order 2A Rule 8C of the High Court Rules which provides that –

“Subject to this Order, a person carrying on business in a name or style other than his own name may sue or be sued in that name or style as if it were the name of an association and Rules 8A and 8B shall apply mutates mutandis to any such proceedings.”

As submitted by counsel for the respondent in the papers before the applicant is not described as an association.

Reverting to Rule 8C, counsel for the applicant sought to argue that the applicant is sufficiently described in paragraph 3 of the founding affidavit where it is stated that -

“The applicant, as a person at law, was first incorporated in terms of the law as far back as 1968.”

Now the effect of incorporation is that a company assumes the name by which it is registered. In this respect, see section 22(2) of the Companies Act [Chapter 24:03].

Although counsel for the applicant drew the court's attention to paragraph 3 of the founding affidavit, it is clear that the applicant is not sufficiently described by its trade name. Therefore, counsel for the respondent was quite correct that the respondent does not know who Inyanga Orchards is. The applicant should have instituted proceedings in the name by which it was incorporated.

HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: MAVANGIRA J

In his written submissions, the defendant's legal practitioner made reference to HC4977/09. I have had sight of the file. It is an urgent chamber application which was filed on 16 October 2009 by Elena Gloria Koumides, and in which she sought to be joined as second applicant in the instant divorce action. A notice of ...

SC59-13 : GWERU WATER WORKER'S COMMITTEE vs CITY OF GWERU
Ruled By: ZIYAMBI JA

In chambers in terms of Rule 5 of the Supreme Court Rules. The applicant seeks an order granting it leave to appeal against a judgment of the Labour Court as well as condonation of its failure to note an appeal on time, and an extension of time within which to note the appeal. The ...

In chambers in terms of Rule 5 of the Supreme Court Rules.

The applicant seeks an order granting it leave to appeal against a judgment of the Labour Court as well as condonation of its failure to note an appeal on time, and an extension of time within which to note the appeal.

The crux of the matter is that the Labour court dismissed the applicant's appeal on the preliminary point raised, namely, that the applicant as a Workers Committee, has no locus standi to represent its members in a court of law.

In arriving at this conclusion, the Labour Court followed the judgment in CT Bolts (Pvt) Ltd v Workers Committee SC16-12 where it was decided that a workers committee, established in terms of section 23 of the Labour Act [Chapter 28:01] (“the Act”), is not empowered by the Act to act as a legal persona.

Counsel for the applicant, however, submitted that the applicant is not a workers committee established in terms of the Labour Act [Chapter 28:01] but a creature of its own constitution; a copy of which was attached to the papers and which contains the following relevant clauses:

“2. Perpetual Succession

The organisation shall have perpetual succession and shall be entitled to sue or be sued in its own name.

3. Objects

The objects of the organisation are;

(a) To promote the interests of its members in so far as their employment with the City of Gweru is concerned.

(b) To represent its members in any matters and/or disputes concerning their employment with the City of Gweru.

(c) To undertake any activities that may be lawfully undertaken by any organisation such as this as per the provisions of the Labour Act (Cap 28:01) and the Regulations made thereunder, and in terms of any other laws relevant to employment in Zimbabwe.”

The question to be determined is; what are the prospects of success on appeal in view of the CT Bolts (Pvt) Ltd v Workers Committee SC16-12 judgment?

In that judgment, it was said:

“Under the common law, an un-incorporated association, not being a legal persona, cannot, as a general rule, sue or be sued in its name apart from the individual members, whose names have to be cited in the summons. A universitas, on the other hand, has the capacity, apart from the rights of the individuals forming it, to acquire rights and incur obligations. The position is also established that a body that has no constitution is not a universitas for it is the constitution that determines whether an association is or is not a universitas.”

The applicant claims that by virtue of its constitution it is a universitas endowed with the attendant powers at law.

While it was my initial view that the application should fail because of the decision in CT Bolts (Pvt) Ltd v Workers Committee SC16-12; upon further reflection, I am now of the view that it is quite possible that the Court may take the view proffered by the applicant, namely, that by virtue of its constitution it is a universitas with the locus standi to represent its members.

For this reason, I am unable to hold that there are no reasonable prospects of success on appeal.

Accordingly, the application is granted in terms of the draft order filed, as amended.

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

Validity of the resolution to evict and plaintiff's locus standi. As already stated, the Deed of Trust provides for five year terms of office for its trustees. If a trustee exceeds his term of office he cannot make valid decisions for the Trust. It is common cause, that Mr Chikwanha, who was a trustee and Chairman for ...

Validity of the resolution to evict and plaintiff's locus standi.

As already stated, the Deed of Trust provides for five year terms of office for its trustees. If a trustee exceeds his term of office he cannot make valid decisions for the Trust.

It is common cause, that Mr Chikwanha, who was a trustee and Chairman for many years, had exceeded his mandate in two respects for the periods he was the Trust's Chairman. Section 7(a) of the Deed of Trust provides as follows -

“(a) The Board of Trustees shall, at their first meeting, elect a Chairperson who shall hold office for one calendar year. At the end of that first calendar year from the date of creation of the Trust and at the end of each calendar year thereafter, the Board of Trustees shall, at the first meeting in that year, similarly elect a Chairperson for that year.”

In terms of section 7(c) of the Deed of Trust, the decision of the trustees shall be by simple majority, and where there is an equal number of Trustees, the Chairman of the Board of Trustees shall have a casting vote.

This means, Mr Chikwanha could, where there was a simple majority, have cast one invalid vote but where there was equality of numbers, he cast two invalid votes. This has to be considered throughout the period the eviction of the defendants was discussed and resolved.

The first decision requiring the defendants to leave the Home was made at the meeting of 30 November 1999 where it was recorded that -

“The Trustees were unanimously agreed that it was essential that the Home be closed to enable it to make a fresh beginning.”

This was preceded by a general discussion where it was “stressed that there were residents at Masterson who should move on as they had obviously been adequately rehabilitated. It was agreed that it was necessary to have each resident assessed medically and a planned rehabilitation program installed.”

The Trustees who attended this meeting were Messers Chikwanha (Chairman), G Mills, C. Gomwe, A Hungwe. and C. Dengedza. As they unanimously agreed on the closure of the Home, there was no need for Mr Chikwanha to use his then invalid casting vote. I say his vote and casting vote was invalid because according to Exhibit 3, Minutes of the Trustees Meeting held on 10 March 1983, Mr Chikwanha was already a Trustee. Assuming his term started at that meeting it must have expired by 10 March 1988. He could therefore without being re-elected, not have been a validly appointed trustee or chairman by 10 March 1999. Mr Chikwanha conceded the invalidity of his holding office after his five year term.

Mr G Mills' tenure was not properly ventilated. Under cross examination, Mr Chikwanha said he does not know when it was suggested he had been a trustee since1980. The onus to prove the validity of his participation in 1999 was on the plaintiff. I therefore hold that he too cannot be said to have validly participated in the decision made on 10 March 1999.

Mr C Gomwe, according to the minutes of 12 March 1998, became a Trustee from 12 March 1998. Subject to the validity of his appointment he was therefore within his term when the decision to close the Home was made on 10 March 1999.

Mr A Hungwe, in his evidence, told the court that he became a trustee in 1998, and that his five year term expired in 2002. His evidence on this aspect was not challenged. He was therefore a validly appointed trustee when the decision to close the Home was made on 10 March 1999.

Mr Chikwanha told the court that Mr Dengedza had not overstayed when the meeting of 10 March 1999 was held. The defendants did not lead any evidence to contradict Mr Chikwanha's evidence. I am therefore satisfied he was entitled to act as a trustee at that meeting.

The fact that there were three Trustees still within their five year terms at this meeting means the decision arrived at by that meeting is valid. In terms of clause 5(a) of the Deed of Trust, the Trust shall consist of not less than two and not more than six trustees. The fact that more than two validly appointed trustees decided on some of the defendant's moving on at that meeting settles the issue of the validity of that decision.

Thereafter, other trustees were appointed from time to time leading to Messers C Gomwe, B Chikwanha, G Mills, C Muzondo, A Hungwe and W Choto attending the meeting of 26/7/ 2004 which authorised the eviction of the defendants and the institution of this litigation.

It is common cause that Messers Gomwe, Chikwanha, Mills and Hungwe had over stayed as trustees.

Mr Choto testified and told the court that he was appointed as a trustee in 2004. The minutes of the meeting of 26 July 2004 indicates that he was appointed a trustee at that meeting. He was therefore appointed by Messers C Gomwe B Chikwanha, G Mills and A Hungwe, whose terms of office had expired.

On the issue of locus standi, according to HONORE & CAMEROON - Honores' South African Law of Trusts 1992, the general principle is that “a person who is de facto administering a Trust as trustee has locus standi in any matter relating to the Trust; so has a person who claims to be the rightful trustee and seeks confirmation of his status.”….,.

This tends to show that the plaintiff might have had locus standi to institute these proceedings. However, at p291 the learned authors say -

“A trustee bringing an action or application should aver his capacity, and that he was properly appointed by a given instrument or order of court.”

In view of most of the plaintiff's trustees having conceded that they had exceeded their terms of office, and others having been appointed by those who had, by lapse of time, lost their mandate to appoint new trustees for the Trust, it is inconceivable how these (trustees), can aver their capacity, and that they were properly appointed in terms of the Deed of Trust. The law requires the trustee to bring the action in his capacity as a trustee and not in his private capacity. It seems to me that once one loses his capacity as a trustee he may also lose his locus standi.

The general rule, referred to above, may, if the facts, reveal lack of capacity, yield to the need for a trustee to aver his capacity and the propriety of his appointment. As this point has not been argued by the parties I will not make a definitive finding on it.

HH21-11 : CHRIST EMBASSY ZIMBABWE vs CHIDZIVA INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

Further, it is common cause that an application for rescission of judgment had been filed earlier, on 2 November 2009, in case no. HC5351/09, purportedly on behalf of the applicant, by Stowell Mupanguri. The respondent opposed the application. However, it is worthy to note that there is no mention of that application in the pleadings filed by ...

HH37-13 : CHAMPION CONSTRUCTORS (PVT) LTD vs MILTON GARDENS ASSOCIATION and THE CITY OF HARARE and THE DIRECTOR OF URBAN PLANNING SERVICES and DIRECTOR OF WATER SERVICES and ANOTHER
Ruled By: MATHONSI J

Counsel for the applicant objected to the opposing affidavit of Syril Mupanguri, the current Chairman of the first respondent, on the basis that it is not apparent from the papers that he has authority to represent the first respondent in terms of its Constitution.

HH140-11 : 59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME vs HARARE MUNICIPAL WORKERS UNION and CITY OF HARARE and OTHERS
Ruled By: MTSHIYA J

In the notice filed by the second to fifth respondents, the following points in limine were raised: “POINTS IN LIMINE 1. The 59 beneficiaries of Valley Lane Housing Scheme are not a legal entity. There is nothing to show that there is a legal entity by this name. This makes the application fatally defective. 2. There ...

HH351-13 : SOVEREIGN EMPOWERMENT CENTRE and HACHIM KITCHENS PL and KINGDOM EMBASSY ZIM and STUARTSON INVESTMENTS PL vs OLD MUTUAL INVESTMENT GROUP PROPERTY INVESTMENT ZIM PL and THE SHERIFF (N.O.)
Ruled By: MANGOTA J

The first respondent…, raised the issue of alleged lack of locus standi against the third applicant. The court observed that the deponent to the third applicant's application produced a resolution which the Church prepared clothing him with the authority to depose to the affidavit for, and on behalf of, the Church. The deponent is a ...

The first respondent…, raised the issue of alleged lack of locus standi against the third applicant.

The court observed that the deponent to the third applicant's application produced a resolution which the Church prepared clothing him with the authority to depose to the affidavit for, and on behalf of, the Church. The deponent is a Pastor in the Church. The resolution is dated 26 September 2013. It was signed by the Church's Administrator, one Bwititi.

In his argument on the point at hand, the legal practitioner for the first respondent stated that the deponent has not established the applicant's locus standi. He stated that the mere allegation that an entity is a church does not grant it locus standi in court. He made serious efforts to convince the court to subscribe to the view that a Church which intends to institute legal proceedings must make averments which establish its locus standi. He, in short, insisted on the point that the exact nature of the applicant must be established as a pre-requisite for the applicant's having locus standi.

I must confess that the legal practitioner's argument left me wondering as to what exactly he meant to convey. Because of the confused state in which his argument on the matter was couched, I took the trouble to read around the Latin phrase locus standi in an effort to appreciate what he was driving home to.

Wikipedia, the free encyclopaedia, refers to the phrase locus standi to mean:

“…., the right to bring an action, to be heard in court or to address the court on a matter before it…, locus standi is the ability of a party to demonstrate to the court sufficient connection to, or harm from, the law or action.”

Free Dictionary.com states that:

“…,. Locus standi is the right of a party to appear and be heard before a court…,.”

Wisegeek.com discusses the phrase and stresses that:

“…, locus standi refers to the fact of whether or not someone has the right to be heard in court…,. As a general rule, a person has locus standi in a given situation if it is possible to demonstrate that the issue at hand is causing harm and that an action taken by the court could redress that harm…,.”

The above analysed matters place the case of the third applicant wholly and adequately within the purview of a party which has locus standi in court.

The third applicant is an universitas which perceived imminent harm coming to it from the respondents. It remained of the view that the court can redress that harm. It has every right not only to appear before, but also to be heard by, the court. It has the right to bring its application to court and its affidavit is, accordingly, properly before the court.

HB10-13 : WESTGATE RESIDENTS ASSOCIATION vs NATIONAL RAILWAYS OF ZIMBABWE and L. H. JIYANE
Ruled By: NDOU J

The respondents have raised a preliminary point on the legal standing of the applicant. It raised an issue that the applicant is not a body capable of suing and being sued. The applicant purported to correct this defect by belatedly filing what it terms a Constitution in its answering affidavit. The said Constitution is skimpy and ...

HH338-14 : MAFIRAMBUDZI FAMILY TRUST vs LIBERTY MADZINGIRA and PANNAH NHIWATIWA and THE REGISTRAR OF DEEDS N.O. and THE SHERIFF
Ruled By: TAKUVA J

Both parties…, filed heads of argument. For the first time, the respondents raised, in their heads of argument, the issue of Brian Mafirambudzi's locus standi. The issue was raised in the following fashion; “There is nothing in the whole application to show that the deponent to the purported applicant's founding affidavit is clothed with authority to represent ...

Both parties…, filed heads of argument.

For the first time, the respondents raised, in their heads of argument, the issue of Brian Mafirambudzi's locus standi. The issue was raised in the following fashion;

“There is nothing in the whole application to show that the deponent to the purported applicant's founding affidavit is clothed with authority to represent the applicant. He does not state either in his founding or answering affidavit the source of that authority nor does he attach a copy of resolution reached by applicant's trustees clothing him with the necessary authority to represent the applicant. See the case of Madzivire and Ors v Zvarivadza and Ors 2006 (1) ZLR 514. Consequently, what is before the court is a nullity which must be dismissed with costs at attorney–client scale.” …,.

Reliance was then placed on LORD DENNING's remarks in MacFoy v United Africa Co. Ltd (1961) 5 ALLER 1169 (PC)…, namely, that;

“If an act is void, then it is a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”…,.

As regards the question of locus standi, counsel for the applicant submitted that both respondents failed to raise the issue in their notice of opposition. If they had raised that issue, the applicant would have replied. In any case, so the argument went, the deponent has the requisite authority by virtue of the Trust Deed which is registered. The deponent is a trustee who is authorised to depose to the affidavit.

In my view, the sole issue for determination is whether a trustee of a registered trust has authority to act on behalf of such Trust.

Counsel for the respondents' contention was that such a trustee requires the authority of other trustees to so act. He relied on the Madzivire and Ors v Zvarivadza and Ors 2006 (1) ZLR 514 case in support of this proposition. In Madzivire and Ors v Zvarivadza and Ors 2006 (1) ZLR 514 it was held, per CHEDA JA, …, that;

“A company, being a separate legal person 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. It does not depend on the pleadings by either party. The fact that a person is the Managing Director of the company 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. The general rule is that Directors of a company can only act validly when assembled at a Board meeting. An exception to this rule is where a company has only one Director who can perform all judicial acts without holding a full meeting.”…,.

The court also referred to section 9 of the Companies Act [Chapter 24:03] which reads as follows;

“A company shall have the capacity and powers of a natural person of full capacity insofar as a body corporate is capable of excising such powers.”

In my view, this case is distinguishable in that it deals with companies, which are separate legal persona, while, in casu, we are dealing with a Trust. According to the law of persons, a Trust is not a separate legal persona. See Crundall Bros (Pvt) Ltd v Lazarus NO & Anor 1990 (1) ZLR 290 (HC). For this reason, it follows, naturally, that principles applicable to corporate bodies do not necessarily apply to Trusts. See Gold Mining Minerals Development Trust v Zimbabwe Miners Federation 2006 (1) ZLR 174 (H) where MAKARAU J…, held that;

“A Trust, in the wide sense, is any legal arrangement by which one person is to administer property, whether as an office-holder or not, for another or for some impersonal object. In the narrow sense, a “trust” exists when the creator of the trust hands over or is bound to hand over the control of an asset which is to be administered by another for the benefit of some person other than the trustee or for some impersonal object. It is a legal relationship, not a separate legal entity such as a corporation or universitas, even though the trustees may, together, form a Board akin to a Board of a company or of a voluntary association. Our law of Trusts has not sufficiently grown to recognise a limited separate personality of a Trust, even though some trusts operate more or less on the same lines as a voluntary organisation or incorporated company. In such cases, the trust has evolved a personality of sorts that appears separate from the personality of the trustees. A trust is not a legal person and therefore cannot be defamed, although the trustees themselves retain the capacity to sue for damages for their injured fama collectively or individually.”…,.

A.M. HONORE in The South African Law of Trusts, 3^rded…, while dealing with “locus standi” in matters relating to Trusts states that:

“The general principle is that a person who is de facto administering a trust as trustee has locus standi in any matter relating to the trust so has a person who claims to be the rightful trustee and seeks confirmation of his status…,. An action relating to trust affairs, for example, for damage to trust property, must be brought by the trustee in his capacity as such and not in his private capacity…,. A trustee bringing an action or application should aver his capacity and that he was properly appointed by a given instrument or order of court. The source of the authority of a trustee must be averred (e.g. will, deed inter vivos, appointment to an insolvent estate)…,.”…,.

In casu, the trustee's source of authority is the duly registered Trust Deed MA718/2010. In his founding affidavit he averred as follows;

“1. I am a trustee of the applicant and am duly authorised to depose to this affidavit on applicant's behalf in that capacity.

2. The applicant is Mafirambudzi Family Trust, a trust duly registered MA718/2010 whose address for service is care of its legal practitioners of record…,.

6. I represented the applicant in an agreement of sale entered into between applicant and 1^st and 2^nd respondents on the 30^th of December 2012.”…,.

Also, in terms of Order 2A Rule 8 of the High Court Rules, 1971, a trustee is entitled to issue out process in the name of the Trust. The Rule states:

“In this order -

“Associate” in relation to -

(a) A trust means a trustee;

(b) An association, other than a trust, means a member of the association;

“Association” includes -

(a) A trust; and

(b) A partnership, a syndicate, a club or any other association of persons which is not a body corporate.

8. Proceedings by or against associations

Subject to this Order, associates may sue, and be sued, in the name of their association.”

There is no provision that a trustee must be authorised by a “Board Resolution” before he so acts. Indeed, the “other” trustees may join in if they are in existence and willing to do so but misjoinder or non-joinder of such trustees does not defeat the cause of action or matter. See Rule 87 and Rule 91 of this court's Rules.

Appealed
SC24-15 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and SEVEN OTHERS
Ruled By: MALABA DCJ, GARWE JA and MAVANGIRA AJA

Counsel for the respondents sought to impugn the validity of the proceedings in the court a quo on the ground that each Trustee was not named as plaintiff in the document commencing proceedings. On the issue of the failure to cite as plaintiff, each Trustee by name in the document commencing the proceedings, Counsel ...

Counsel for the respondents sought to impugn the validity of the proceedings in the court a quo on the ground that each Trustee was not named as plaintiff in the document commencing proceedings.

On the issue of the failure to cite as plaintiff, each Trustee by name in the document commencing the proceedings, Counsel for the appellant made reference to the High Court Rules, 1971.

The effect of Rule 8A of Order 2A is that it is not necessary to list Trustees by name when they sue on behalf of a Trust. It is clear that the proceedings were instituted by the Trust. The Deed of Trust grants the Trust the power to sue and be sued.

The respondents had challenged the locus standi of the Trustees to sue on behalf of the Trust.

The relevant rules provide as follows:

“ORDER 2A

PROCEEDINGS BY OR AGAINST ASSOCIATIONS, ETC

7. Interpretation in Order 2A

In this Order -

“Associate”, in relation to -

(a) A trust, means a trustee;

(b) An association other than a trust, means a member of the association;

“Association” includes -

(a) A trust; and

(b) A partnership, a syndicate, a club or any other association of persons which is not a body corporate.

8. Proceedings by or against associations

Subject to this Order, associates may sue and be sued in the name of their association.

8A. Naming of associates

(1) In any proceedings to which an association is a party, any other party may, by written notice to the association, require a statement of the names and places of residence of the persons who were the association's associates at the time the cause of action accrued.

(2) A person who receives a notice in terms of subrule (1) shall, within five days after receiving it -

(a) Furnish the party concerned with a written statement containing the required information; and

(b) File a copy of the written statement with the registrar; and the proceedings shall continue in the same manner, and the same consequences shall follow, as if the associates had been named in the summons or notice commencing the proceedings:

Provided that the proceedings shall continue in the name of the association except where a writ of civil imprisonment is sought against an associate, in which event the associate shall be specifically named in the civil imprisonment proceedings.”

A proper reading of the provisions of Rule 8A of the High Court Rules establishes that it is not a requirement for the names of Trustees to be listed when they bring an action on behalf of the Trust. The only place where the issue of the listing of the names of Trustees, when an action has been instituted on behalf of the Trust, is where a defendant to a suit by the Trustees on behalf of the Trust, has requested from the Trust names and addresses of the individual Trustees. This would be in line with Rule 8A(1) of the High Court Rules, 1971.

SC25-15 : GWERU WATER WORKERS' COMMITTEE vs CITY OF GWERU
Ruled By: MALABA DCJ, GARWE JA and HLATSHWAYO JA

A Workers Committee is defined, in section 2 of the Labour Act, to mean a Workers Committee appointed or elected in terms of Part VI. The formation of a workers committee in terms of the Labour Act is provided for under section 23. Its functions are provided for under section 24. Section 23 of ...

“PART VI

WORKERS COMMITTEES: FORMATION AND FUNCTIONS

23 Formation of workers committees

(1) Subject to this Act and any regulations, employees employed by any one employer may appoint or elect a workers committee to represent their interests:

Provided that no managerial employee shall be appointed or elected to a workers committee, nor shall a workers committee represent the interests of managerial employees, unless such workers committee is composed solely of managerial employees appointed or elected to represent their interests.

(1a) Subject to subsection (1b), the composition and procedure of a workers committee shall be as determined by the employees at the workplace concerned.

[Subsection inserted by section 14 of Act 17 of 2002]

(1b) Notwithstanding subsection (1a), if a trade union is registered to represent the interests of not less than fifty per centum of the employees at the workplace where a workers committee is to be established, every member of the workers committee shall be a member of the trade union concerned.

(2) For the purposes of appointing or electing a workers committee, employees shall be entitled to -

(a) Be assisted by a labour officer or a representative of the appropriate trade union; and

(b) Reasonable facilities to communicate with each other and meet together during working hours at their place of work; and

(c) Be provided by their employer with the names and relevant particulars of all employees employed by him; so however, that the ordinary conduct of the employer's business is not unduly interfered with.

(3) In the event of any dispute arising in relation to the exercise of any right referred to in subsection (2) either party to the dispute may refer it to the labour officer mentioned in paragraph (a) of that subsection, or, in the absence of such labour officer, any other labour officer, and the determination of the labour officer on the dispute shall be final unless the parties agree to refer it to voluntary arbitration.”

Section 24 provides of the Labour Act;

“24 Functions of workers committees

(1) A workers committee shall -

(a) Subject to this Act, represent the employees concerned in any matter affecting their rights and interests; and

(b) Subject to subsection (3), be entitled to negotiate with the employer concerned a collective bargaining agreement relating to the terms and conditions of employment of the employees concerned; and

(c) Subject to Part XIII, be entitled to recommend collective job action to the employees concerned; and

(d) Where a works council is or is to be constituted at any workplace, elect some of its members to represent employees on the works council.

(2) Subject to subsection (3), where a workers committee has been appointed or elected to represent employees, no person other than such workers committee and the appropriate trade union, if any, may -

(a) Act, or purport to act, for the employees in negotiating any collective bargaining agreement; or

(b) Direct or recommend collective job action to the employees.

(3) Where an appropriate trade union exists for any employees, a workers committee of those employees may negotiate a collective bargaining agreement with an employer -

(a) In the case where the trade union has no collective bargaining agreement with the employer concerned, only to the extent that such negotiation is authorized in writing by the trade union concerned; or

(b) In the case where there is a collective bargaining agreement, only to the extent permitted by such collective bargaining agreement; or

(c) Where the Minister certifies in writing that -

(i) The issue in question was omitted from or included in the principal collective bargaining agreement when it should not have been so omitted or included; and

(ii) The parties to the principal collective bargaining agreement have failed or are not in a position to reach an agreement on such an issue.”

A workers committee is a committee formed on the authority given under section 23(1) of the Labour Act composed of employees appointed or elected at a workplace by other employees employed by one employer to represent the category of employees who appointed or elected its members on matters affecting their rights and interests. It does not share these features with any other body of people. In that regard, a workers committee is a sui generis institution, the formation, rights and obligations of which are matters exclusively governed by specific provisions of a statute concerned with labour matters. It enjoys no rights and bears no obligations of bodies constituted in terms of the law of voluntary associations.

Counsel for the appellant argued that the appellant was a common law universitas personarum.

What is clear from section 16 of the Labour Act is that the rights provided for accrue to the employees themselves. The section relates to the terms and conditions of the contract of employment. In that regard, anyone wishing to assist employees to vindicate their rights in a court of law can only do so in a representative capacity.

The definition of a Workers Committee, in section 2 of the Labour Act, is very clear.

A workers committee can only be formed in terms of section 23(1) of the Labour Act for it to perform the functions set out under section 24. There is no other provision by which authority is granted for the formation of a committee known as a workers committee with the powers listed under section 24 of the statute. There can be no workers committee outside the confines of the Labour Act. The fact that workers committees are specific statutory creations is further established by the provisions of section 26 of the Labour Act which give the Minister of Public Service, Labour and Social Welfare or any other Minister to whom the President may, from time to time assign the administration of the Act, powers to make Regulations governing the procedures to be followed by employees at workplaces when forming workers committees, the tenure of office of members and the operation, management and conduct of their affairs. A workplace is a place at which an employee must attend at specific times of the day to provide services to the employer in accordance with the terms and conditions of a contract of employment between the parties.

Unlike a common law universitas personarum, the functions of which are defined by its written Constitution, the procedures for the formation of workers committees, the nature and scope of their functions, are provided for by statute.

Section 26 of the Labour Act provides:

“26 Minister may make regulations relating to workers committees

(1) The Minister may, after consultation with the appropriate advisory council, if any, appointed in terms of section nineteen, make such regulations as he considers necessary for the control of workers committees and works councils, and, without derogation from the generality of his power in this regard, such regulations may provide for -

(a) The methods or procedures to be followed for the formation of workers committees;

(b) The tenure of office of members of workers committees;

(c) The operation, management and conduct of the affairs of workers committees and works councils;

(2) Regulations made in terms of subsection (1) may provide penalties for any contravention thereof:

Provided that no such penalty shall exceed the penalties referred to in section one hundred and twenty-eight.”

A workers committee cannot sue for any rights in a court of law because if it did, it would be acting without any authority. Any organisation performing the functions listed in section 24 of the Labour Act cannot act outside the scope of those functions and contrary to what the Regulations made by the Minister under section 26 have prescribed….,.

The appellant sought to enforce the rights of the employees provided for and protected under section 16 of the Labour Act. Enforcement of these rights would fall within the contents of the functions of a workers committee as defined by the Labourt Act. Except where expressly provided, the functions of a workers committee are inextricably linked to a workers committee and only that body would be entitled to exercise them in the manner prescribed by the employees at the workplace who appoint or elect its members or under the regulations made by the Minister in terms of section 26(1) of the Labour Act. In other words, it is the employees who decide whether a workers committee should be established at a particular workplace and it is they who, in the absence of Regulations made by the Minister, determine the composition and procedure of the workers committee. The functions can only be exercised on behalf of employees who appointed or elected the workers committee at a specific workplace.

A common law universitas personarum cannot arrogate to itself functions specifically reserved for a workers committee by a statute.

Unlike workers committees, trade unions, employers' organisations and employment councils are required to be set up in terms of written Constitutions. Trade unions so set up become bodies corporate when registered. The relevant sections provide as follows:

“28 Requirements for formation of trade unions and employers organizations

(1) Every trade union, employers organization or federation shall -

(a) Subject to subsection (2), before it raises funds from any source; and

(b) Within six months of its formation; adopt a written constitution which shall provide for –

….,

29 Registration of trade unions and employers organizations and privileges thereof

(1) Subject to this Act, any trade union, employers organization or federation may, if it so desires, apply for registration.

(2) Every trade union, employers' organization or federation shall, upon registration, become a body corporate and shall, in its corporate name, be capable of suing and being sued, of purchasing or otherwise acquiring, holding or alienating property, movable or immovable, and of doing any other act or thing which its constitution requires or permits it to do, or which a body corporate may, by law, do.”

Section 60 of the Labour Act provides that every employment council shall, upon registration, in terms of the Act, become a body corporate and in its corporate name be capable of suing and being sued. It is also capable of doing any other act which its' Constitution requires or permits it to do, or which a body corporate may, by law, do.

A Workers Committee which has to be formed in terms of section 23 of the Labour Act, for the purposes of performing the functions specified under section 24, is not required to adopt a written Constitution because it is not intended to become a legal entity with its own existence and rights independent of the members appointed or elected by the employees at the workplace.

The legislature was conscious of the fact that employees at workplaces may need to be represented in matters affecting their rights and interests. The legislature provided for the creation of workers committees to fulfil this function. The workers committee so created, has the right to represent the employees concerned in any matter affecting their rights and interests at the workplace level. It has no right to sue and be sued because it is not a corporate body distinct from the members who constitute it. A body which claims a right to institute proceedings in a court of law claiming rights of employees under section 16 of the Labour Act cannot be a “workers committee.”

A universitas is an aggregate of natural persons or individuals forming a legal persona or entity, with separate existence from them and having the capacity of acquiring rights and incurring obligations. It also enjoys the right of perpetual succession. See VOET 1.8.28; 3.4.1, 3.4.2, Webb and Co v Northern Rifles 1908 TS 464. The Law of Partnership and Voluntary Association in South Africa by BAMFORD, 3^rded…,. JTR GIBSON (ed) WILLE's Principles of South African Law, 7^th ed….,.

A workers committee set up in terms of section 23 of the Labour Act cannot set up a written Constitution in order to imbue itself with the capacity to sue which it does not have under the statute in terms of which it is formed. In CT Bolts v Workers Committee SC16-12 GARWE JA said:

“Under the common law, an unincorporated association, not being a legal persona, cannot, as a general rule, sue or be sued in its name apart from the individual members, whose names have to be cited in the summons. A universitas, on the other hand, has the capacity, apart from the rights of the individuals forming it, to acquire rights and incur obligations. The position is also established that a body that has no Constitution is not a universitas for it is the Constitution that determines whether an association is or is not a universitas. On a proper interpretation of s 24 of the Act, it is clear that a workers committee exists to safeguard and champion the interests and welfare of the workers at the workplace. It has no other function. There is no provision in the Act requiring a workers committee to adopt a Constitution. There is also no requirement for a workers committee to acquire rights apart from the rights of the individuals forming it and the employees they represent. There is also no provision for a workers committee to acquire assets in its own name.”…,.

If a workers committee was endowed with the power of a voluntary association established in terms of a written Constitution, with the capacity to sue and be sued in a court of law, there would be no need of making provision for separate workers committees for non-managerial employees and for managerial employees. Provision for separate workers committees underscores the fact that the interests of non-managerial employees at workplaces are different from those of managerial employees. Each category of employees needs its own workers committee to effectively articulate and protect its interests at the workplace.

Counsel for the appellant argued that the title 'Gweru Water Workers Committee' should not mislead the court into thinking that the entity is a workers committee. He argued that the entity is a universitas personarum, created in terms of its Constitution. It has the capacity to sue and be sued.

There is no doubt that the appellant can be sued and sue in its name for rights of its members not specifically provided for in their capacity as employees under the Labour Act. The question is whether the entity can specifically act on behalf of the employees and perform the functions specifically reserved for a workers committee under the Labour Act.

A workers committee has the power to represent the employees at a particular workplace in any matter affecting their rights and interests. Only a trade union can represent its members before a determining authority or in the Labour Court. It cannot arrogate to itself, as was done by the “Gweru Water Workers Committee”, the cause of action of the employees and sue on their behalf. It is clear that the rights provided for under section 16 of the Labour Act accrued to the employees concerned in their individual capacities.

The appellant claimed on behalf of the employees.

A Workers Committee can only represent the interests of the employees who appointed or elected it at the workplace. It cannot substitute itself for the employees and claim their rights in litigation. The right to sue accrues to the employees, and the employees, in their individual capacities, can enforce the rights. The employees would be claiming rights under contracts of employment with their employer. A universitas personarum would not have a right to sue for those rights when it is not privy to any of the contracts of employment.

Representation, in the context of section 24(1) of the Labour Act does not mean that a person or body would have the right to substitute itself in place of the employees as a party to proceedings.

Counsel for the appellant sought to meet the challenge by saying that the claimants in the dispute with the City of Gweru have always been the former Zimbabwe National Water Authority employees now employed by the City of Gweru. He argued that the respondent would not suffer any prejudice should the employees be substituted for the universitas personarum.

The argument concedes the fact that the rights sought to be enforced by the universitas personarum belong to the employees in terms of their contracts of employment with the respondent. The employees had the right to sue for their rights in a court of law.

The objects of the appellant are provided as follows:

1. To promote the interests of its members in so far as their employment with the City of Gweru is concerned;

2. To represent members in any matters and/or disputes concerning their employment with the City of Gweru.

3. To undertake any activities that may be lawfully taken by any organisation such as this as per the provisions of the Labour Act [Chapter 28:01] and the Regulations made thereunder in terms of any other laws relevant to employment in Zimbabwe.

The objects of the appellant are the same as those a workers committee would be seeking to achieve by the performance of the functions listed under section 24 of the Labour Act. The legislature did not intend that a body, acting in terms of section 24 should have capacity to sue and be sued.

The objects of the appellant are the same as those a Workers Committee would be seeking to achieve by the performance of the functions listed under section 24 of the Labour Act. The legislature did not intend that a body, acting in terms of section 24, should have capacity to sue and be sued.

SC51-16 : ZESA TECHNICAL EMPLOYEES ASSOCIATION vs ZESA HOLDINGS (PRIVATE) LIMITED
Ruled By: MALABA DCJ

The inquiry, in this case, goes to the issue of what happens to the proceedings instituted by a non-existing entity. It is trite that where a non-existing entity institutes proceedings, the proceedings are a nullity because there would be no applicant or plaintiff as the case may be. In the case of Stewart Scott Kennedy ...

HMA31-17 : CHAMU MINING SYNDICATE vs SIBONGILE MPINDIWA N.O. and CHAMWANDOITA SYNDICATE
Ruled By: MAFUSIRE J

The applicant described itself as a body corporate/universitas. But no incorporation document was produced. The mere coming together of a group of people, or gang, for some commercial purpose such as mining, does not automatically transform it into a body corporate.

HH402-15 : NYASHA ZHOU and PATRICIA ZHOU and GIFT SHOKO and NYATRISH PROPERTY INVESTMENTS PL and SINCIA INVESTMENTS PL vs THE TRUSTEE OF TOMORROW TODAY YESTERDAY TRUST and SHERIFF FOR ZIMBABWE
Ruled By: MATHONSI J

In any event, it is trite that a Trust is not a juristic person. See HONORE's South African Law of Trusts, ed 5…,. Clearly, therefore, it being composed of natural persons and not having corporate personality, it cannot appear as a party to an action. I associate myself fully with the sentiments of SMITH J in WLSA Ors ...

HH458-15 : THE EVANGELICAL CHURCH OF ZIMBABWE vs REVEREND DOCTOR ISAAC SODA
Ruled By: MATHONSI J

The starting point is to state that the relationship between the parties, who are members of an association like a church or a social club, is contractual. They are governed and bound by the rules and regulations of the association: Constantinides v Jockey Club of South Africa 1954 (3) SA 35 (C) 44C. The interests and rights of persons who are members of any type of unincorporated association are governed exclusively by contracts, that is, rights between themselves; Civil Service Employees Association & Anor v Public Service Association & Ors HH111-14; Re: Bucks, Constabulary Widows and Orphans Fund Friendly Society (NO) [1979] WLR 936…,.

In Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S)…, MALABA JA…, made the point that:

“It is important to bear in mind what the learned judge appears not to have appreciated. It is the fact that the legal basis of an un-incorporated voluntary association of persons such as a social club is the contract between and amongst the associates. The law recognises their freedom to determine the acts by which they intend to be bound, who should perform them and when. The duty of a court of law is to determine whether what is claimed to have been done is in fact what was prescribed by the members of the club in strict compliance with the procedure they laid down for validity to attach to those acts.”

Members of the church prescribed for themselves the rules that govern them in the form of the Constitution. They had the freedom to do so. Those rules provide that their head is the Bishop and where the Bishop is unable to act for any reason, it is the Deputy Bishop who acts in his place and discharges the functions of that office which include convening meetings. The rules prescribe that the Administrative Committee, chaired by Reverend Dewah, should represent the church in legal matters. It is not open to any aggrieved member or faction of members to litigate using the name of the church - no matter how many they are.

If they do, what they do in violation of the Constitution is a nullity and of no legal consequence….,.

David Chiveso and his group may well have an interest in the election of a Bishop but such interest is only in their capacities as members of the church or congregants. They should have litigated in their own names and not in the name of the church.

Appealed
SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC.
Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

Whether the respondent had the requisite locus standi to sue? The appellants contend that the respondent did not have the requisite locus standi to bring the application before the court a quo. The appellants point to Article VII of the respondent's Constitution as the basis of the argument against the respondent's locus standi in the court a ...

Whether the respondent had the requisite locus standi to sue?

The appellants contend that the respondent did not have the requisite locus standi to bring the application before the court a quo. The appellants point to Article VII of the respondent's Constitution as the basis of the argument against the respondent's locus standi in the court a quo.

Article VII of the respondent's Constitution reads as follows:

“The Government of the religious organisation shall be vested in the Board of Directors consisting of not less than three (3) or more than seven (7) members…,.”

The appellants' interpretation of Article VII of the respondent's Constitution is that it is only the Board of Directors that has locus standi to institute legal proceedings. The appellants further note that there is no provision in the respondent's Constitution that gives the local chapter/local church any direct right to institute legal proceedings. To buttress this argument, the appellants take the point that the degree of control exercised by the mother church over the local church shows that the proper applicant in the court a quo ought to have been the parent church.

It is common cause that the respondent is an organisation clothed with legal personality. As a legal persona, the respondent has rights, duties and capacities independent of its own members. The respondent therefore has a right to sue and be sued in its own name. This right, however, cannot be exercised in instances where the respondent has no substantial interest in the matter. In other words, the respondent, as a legal person, needs to have locus standi in order to be afforded audience in a court of law.

It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point that to establish locus standi, a party must show a direct and substantial interest in the matter. See United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C)..., and Matambanadzo v Goven SC23-04.

In casu, it is common cause that the respondent is a branch of the parent church. However, the respondent is endowed with powers to sue and be sued in its own name. It is further common cause that the respondent is under the leadership appointed by the parent church. The Constitution of the respondent is approved by the mother church. The first appellant has been in control of the respondent's assets on the basis of being an Overseer appointed by the mother church. The main allegation a quo was that the appellants were no longer members of the respondent and hence should cease to control the assets of the respondent.

The respondent, as a branch of the mother church, had an unfettered direct interest in the matter in that the first appellant purported to act on the respondent's behalf when he was on suspension. The first appellant had been divested of the power to act on behalf of the respondent. It is common cause that the first appellant was on suspension when he caused the letter of 3 February 2012 to be drafted. He purported to communicate to the mother church an incorrect position that the respondent was also the author of the letter in question. The respondent, who had not authored the letter in question, surely has a direct interest in a matter where its previous leader purports to act on its behalf without its authority.

Therefore, the respondent's locus standi in the court a quo cannot be gainsaid.

In too many church or voluntary association-related disputes, the parties attempt to abuse the issue of locus standi in order to outwit each other and avoid the merits of the matter being adjudicated upon or even to completely frustrate any legal resolution of the matter. It is high time that the court, as it has done in casu, takes a robust approach and leans in favour of finding that locus standi exists and proceeds to judicially determine the issues.

A party who is suspended from an organisation must, in the first place, legally confront such suspension instead of resorting to the devious ruse of challenging the locus standi of such organisation or any person appointed in their stead, in order to escape judicial scrutiny of their conduct.

View Appeal
HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE
Ruled By: DUBE J

The applicant has a separate legal existence with capacity to sue and be sued. It can bring these proceedings.

HB169-16 : THE SHERIFF OF THE HIGH COURT OF ZIMBABWE vs DEVELOPMENT TRUST OF INSIZA and ZIMBABWE ASSOCIATION OF DAIRY FARMERS
Ruled By: TAKUVA J

Our law is clear on the fact that a trust has no juristic persona – see John Conrad Trust v The Federation of Kushanda Pre-school Trust Ors HH503-15 wherein the court said; Even if am wrong in that finding, the plaintiff's claim will still suffer the consequences of suing as a trust. The plaintiff ...

HH503-15 : JOHN CONRAD TRUST vs THE FEDERATION OF KUSHANDA PRE-SCHOOLS TRUST and MUNICIPALITY OF MARONDERA and UNITED METHODIST CHURCH MARONDERA and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

Even if I am wrong..., the plaintiff's claim will still suffer the consequences of suing as a trust. The plaintiff, being a trust, is not a corporate body and therefore cannot appear as a party. In WLSA Ors v Mandaza Ors 2003 (1) ZLR 500 (H)..., SMITH J quoted with approval the pronouncement of ...

HH356-14 : CLEMENT RUZENGWE N.O. (as Trustee and Chairman of the Vitalis Zvinavashe Trust) and SHINGAI MUTUMBWA N.O. (as Trustee) and MARGARET MUTAMBA ZVINAVASHE N.O. (as Trustee) vs RICHARD ZVINAVASHE
Ruled By: CHITAKUNYE J

In 'The South African Law of Trusts' by T. HONORE, 2nd edition 1976' the learned author…, states that:- “The general principle is that a person who is de facto administering a Trust as trustee has locus standi in any matter relating to the trust; so has a person who claims to be the rightful trustee and seeks confirmation ...

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

The fifth respondent…, proceeded to register the same estate of the deceased in the Magistrates Court under DRH1009/14….,. What is apparent is that the matter ended up before a Magistrate, B. Pabwe, on 1 October 2014. The parties in that matter are stated as “Estate Late” being the applicant and “Lovemore Chipunza Sekeramayi” as the respondent. It is difficult ...

HH168-15 : ARAFAS MTAUSI GWARADZIMBA vs AKA JULIE PANAGIOTA MERCURI N.O. and THE MASTER OF THE HIGH COURT N.O.
Ruled By: MWAYERA J

The respondent argued that the applicant has no locus standi to bring the application before the court….,. It is not in dispute that without a plaintiff there can be no claim. In other words, a claim of a non-existing person is null and void as far as institution of the claim is concerned. The same reasoning ...

CC01-19 : ZIMBABWE LAW OFFICERS ASSOCIATION and DERECK CHARAMBA vs NATIONAL PROSECUTING AUTHORITY and PROSECUTOR GENERAL N.O. and MINISTER OF JUSTICE N.O. and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and MAVANGIRA AJCC

The first applicant is Zimbabwe Law Officers Association, an unincorporated voluntary organization, governed by its constitution (hereinafter referred to as the Association). The Association represents the interests of public prosecutors in Zimbabwe. The Association is represented, in the application, by its Secretary General, Derek Charamba, who is a Public Prosecutor. He is also the second applicant.

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: ZHOU J

The applicant objected to the locus standi of the ninth respondent (Movement for Democratic Change Alliance) on the ground that it is not a juristic persona. Counsel for the applicant submitted that the ninth respondent is a coalition of political parties each with a distinct personality. He pointed to the fact that the eleventh respondent (the People's Democratic Party) which ...

SC17-12 : PHARAOH B MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G T and MINISTER OF LOCAL GOVERNMENT NATIONAL HOUSING AND URBAN DEVELOPMENT
Ruled By: ZIYAMBI JA, GARWE JA, and OMERJEE AJA

The hearing of this matter was postponed in order to determine a point in limine belatedly taken by counsel for the respondent at the onset of the hearing. It was that in the proceedings before the court a quo the appellant purported to act as plaintiff not in his personal capacity but as the representative of a ...

The hearing of this matter was postponed in order to determine a point in limine belatedly taken by counsel for the respondent at the onset of the hearing.

It was that in the proceedings before the court a quo the appellant purported to act as plaintiff not in his personal capacity but as the representative of a clan which is not a universitas and which cannot sue or be sued in its own name. Accordingly, so it was submitted, since there was no plaintiff before the court a quo the proceedings were void. See CT Bolts (Pvt) Ltd v Workers Committee SC16-12. Consequently, there being no appellant before this Court, the appeal ought to be struck off the roll.

Counsel for the appellant contended that this case is to be distinguished from CT Bolts (Pvt) Ltd v Workers Committee SC16-12 in that the appellant before us is a persona.

We agree with counsel for the appellant. The appellant appears before this Court as Pharaoh Muskwe in his capacity as representative of the Mukonde Clan. Our interpretation of his status is that he, in his individual capacity, as a member of the clan, is representing the clan in this matter. He is a persona and we are satisfied that he is properly before this court. The facts of this case are clearly distinguishable from those in CT Bolts (Pvt) Ltd v Workers Committee SC16-12 where the organisation purporting to be the respondent was not a legal persona and thus there was no respondent before the Court.

In any event, this point was not taken in the court a quo and notice was given to counsel for the appellant shortly before the hearing. Had the point been raised in the court a quo the appellant would have had the opportunity to decide whether to move for an amendment to the summons either to cite the plaintiff in his personal capacity or substitute members of the clan as individual plaintiffs as it seemed fit.

Undoubtedly, a point of law can be raised at any time even though not pleaded. However, this is subject to certain considerations one of which is that the court has to consider whether raising a point of law at this juncture would cause prejudice to the party against whom it is raised.

In our view, there is great prejudice to the appellant, who, if the matter is decided against him, stands to lose the appeal without argument.

Accordingly, the point in limine is dismissed.

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

The first applicant is a trade union of primary and secondary school teachers in rural Zimbabwe. It is duly registered. It has corporate personality, capable of suing and being sued in its own name.

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

The applicant is a not for profit human rights organisation duly established in terms of its Constitution and capable of suing and being sued. Its core object is the fostering of a culture of human rights in Zimbabwe through the observance of the rule of law. Its members are legal practitioners and law students.

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

The second to the thirteenth respondents are a syndicate which is known as Tabatana Mining Syndicate, the first respondent in casu.

HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC
Ruled By: KUDYA J

This matter raises issues that have been canvassed in such cases as Benson Samudzimu v Dairibord Holdings (Pvt) Ltd HH204-10; Sibangilizwe Dhlodhlo v Deputy Sheriff of Marondera & Ors HH76-11; Ericson Mvududu v Agricultural and Development Authority HH286-11; and Gaylord Baudi v Kenmark Builders (Pvt) Ltd HH04-12.

In the present matter, the Works Council, consisting of management and workers committee members of the respondent met on 6 June 2011. Present as observers were also two representatives of the National Education Union of Zimbabwe. The Collective Bargaining Agreement reached was, inter alia, to pay a proportion of the money set aside for housing and car purchasing loans as housing allowance. This aspect of the agreement was not implemented.

The matter was referred to conciliation and arbitration in terms of section 93 the Labour Act [Chapter 28:01].

On 15 November 2011, an arbitrator appointed in terms of the Labour Act made an arbitral award directing the Works Council to convene, within 10 days of the order, and agree on appropriation of a proportion of US$420,000 Housing Loan Fund as housing allowance failing which they were to reset the matter before him for quantification.

In the arbitration proceedings, the present applicant was the claimant and the present respondent was the respondent.

The parties did not meet.

The respondent appealed the order while the applicant applied for quantification. The applicant set out a Statement of Claim amounting to US$397,381=80 duly divided amongst the applicant by grade. On 12 January 2012, after considering the written submissions of the parties, the arbitrator granted the applicants relief in terms of its Statement of Claim.

On 20 February 2012, the applicant applied to this court, in terms of section 92B(3) as read with 98(14) of the Labour Act, for the registration of the quantification of 12 January 2012 and costs of suit.

The application was opposed on 29 February 2012.

The respondent raised a number of preliminary issues.

(i) The first was that the applicant was not a legal persona and could not register a judgment in that name.

(ii) It also averred that the Workers Committee that authorised the deponent to its founding affidavit was not a legal persona and thus lacked legal standing to authorize registration of the award.

(iii) It further averred that the award in the record was not the original or a certified copy of the original order as contemplated by Article 35(2) of the Arbitration Act [Chapter 7:15].

(iv) Lastly, it averred that the award was appealed against both before quantification and after quantification in LC/H/28/12.

On the merits, the respondent contended that it was against public policy of Zimbabwe to award an amount calculated by non-managerial employees, which was no longer available, and would cause a huge financial loss.

The answering affidavit dealt with the preliminary points on locus standi and disputed inability to pay averring that the Works Council agreed on the utilization of the Housing Loan Fund that was available.

The arbitrator noted their availability on the date of the Collective Bargaining Agreement and refused to reward the respondent for attempting to deliberately place them beyond the reach of the Works Council after the Collective Bargaining Agreement had been reached.

It seems to me that the present application flounders on the rock of the first preliminary issue raised.

The question of legal persona of a workers committee was conclusively dealt with by the Supreme Court in CT Bolts (Pvt) Ltd v Workers Committee SC16-12.

In that case, GARWE JA, with the concurrence of ORMEJEE and GOWORA AAJA, surveyed the provisions section 23 and 24 of the Labour Act that provide for the institution and functions of a workers committee. He noted that the Labour Act did not make provision for the workers committee to operate as a legal persona. It had not provided for the adoption of a Constitution or acquisition of assets by the workers committee in contrast to section 28 and 29 of the Labour Act that instituted every trade union, employer's organisation or federation into a corporate body on registration.

The learned Judge of Appeal confirmed the correctness of the sentiments expressed by KAMOCHA J in CSC Co. National Workers Committee v CSC Co. Ltd 2002 (1) ZLR 133 (H)…, that “the legislature did not give the workers committee the right to sue or to be sued like it did to the employment council.”

He stated at page 2 of the judgment that:

“The issue of the legal status of the respondent assumes greater significance in a case as this one where there could be issues of costs involved. Under the common law, an unincorporated association, not being a legal persona, cannot, as a general rule, sue or be sued in its name apart from the individual members, whose names have to be cited in the summons.

A universitas, on the other hand, has the capacity, apart from the rights of the individuals forming it, to acquire rights and incur obligations. The position is also established that a body corporate that has no Constitution is not a universitas for it is the Constitution that determines whether an association is or is not a universitas.”

See also Privatisation Agency of Zimbabwe & Anor v Ukubambana Kubatana Investments (Pvt) Ltd & Anor 2003 (1) ZLR 433 (S)…, on the four constituent elements of a universitas.

At page 3, GARWE JA held that:

“The respondent, not being a legal persona, is not properly before this Court. The proceedings before the Labour Court, and, prior to that, the arbitrator, were similarly void.”

It is conceded, in the answering affidavit, by the deponent to the founding affidavit, that the citation of the applicant as ZIMSEC EMPLOYEES was wrong. The deponent averred, and counsel for the applicant contended, that the citation was a technicality that had been dismissed by the arbitrator on the basis of the 147 names and signatures on page 45 to 48 of the record of proceedings who constituted a portion of 245 employees who comprise the applicant.

The basis for the citation of the applicant before the arbitrator, and in the present application, in this format was based on convenience.

The citation of a Workers Committee as a party in proceedings is replete in our jurisdiction. It is found in such cases as Thomas Meikles Centre (Pvt) Ltd v TM National Workers Committee & Ors SC77-02; Olivine Industries (Pvt) Ltd v Olivine Workers Committee 2002 (2) ZLR 200 (S); and Sagittarian (Pvt) Ltd v Workers Committee, Sagittarian (Pvt) Ltd 2006 (1) ZLR 115 (S).

At page 3 of CT Bolts (Pvt) Ltd v Workers Committee SC16-12, GARWE JA was aware that the Supreme Court had in those cases “proceeded on the basis that the workers committee cited in the appeal proceedings was properly before it and that the issue of the legal status of the workers committee had not, however, been raised, and, consequently a determination of the legal status of the workers committee never became necessary.”

It is apparent from the concessions made by the deponent to the applicant's affidavit, and from its counsel, that ZIMSEC EMPLOYEES is not a universitas. It was a convenient appellation of 245 employees in Grade 2 to 8 of the first respondent. The list of names and signatures fall short of an affidavit of collegiality as defined and applied by BERE J in Mabvadya v Chegutu Rural District Council & Ors HH34-05…, and SMITH J in Olive Mazvita Gudza v University of Zimbabwe HH85-95.

The applicant is not a juristic person. It thus lacked capacity to represent the 245 employees before the arbitrator and this Court. It is not properly before this court. Its proceedings in that name before the arbitrator, and before this Court, are void.

On the basis of the above finding, it is not necessary to determine the other preliminary issues raised and the merits of the application. As the applicant is not a juristic person, an order that there be no order of costs would meet the justice of this case.

Accordingly, the proceedings are struck off the roll with no order as to costs.

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

I dealt with this application on 19 February 2018. I delivered an ex tempore judgment in which I dismissed it with costs.

On 8 May 2018 the applicant addressed a letter to the High Court Registrar. It did so through its current legal practitioners. It requested for reasons for my decision. These are they…,.:

The applicant and the respondent appeared before the arbitrator, one C Mesikano, on 21 February 2013. He issued an arbitral award in favour of the applicant. He ordered the respondent to pay to the applicant the sum of $256,317.

The arbitral award gave birth to the current application. The applicant moved the court to register the same for purposes of enforcement. It advanced four reasons for the motion which it placed before the Court. These were that:

(a) The award was sounding in money;

(b) The amount awarded was within the monetary jurisdiction of the court;

(c) The award was certified in terms of Form LR9; and

(d) The applicants were a party to the arbitration award.

The respondent opposed the application. It raised two preliminary matters after which it dealt with the substance of the application. Its two in limine matters were that:

(i) HC3359/13, which the applicant filed on 3 May 2013, was pending at court; and

(ii) The cases of Ngonidzaishe Moliba and Julius Demo, who were managerial workers, were dealt with separately from that of Nelson Maurede and 16 others.

It stated, on the merits, that the parties did not agree on the quantum which the applicant sought to register. It submitted that the applicant misled the arbitrator on the mentioned issue. It said it registered its objection to the same and it urged the arbitrator to exercise his powers and correct the quantum so that it remained in sync with what it said was the correct position of the matter.

It submitted that it successfully applied for stay of execution of the arbitral award.

It stated, in its heads, that only Nelson Maurede withdrew his application for registration of the arbitral award under HC3359/13. It insisted that the other applicants did not. It said only fourteen (14) applicants were before the court.

It averred that Kelvin Makuva and Jonis Nyadzuwa, who passed on, were not before the court. It stated that there was no substitution of the dead persons. It said the court has not been told the amount which related to the two deceased persons.

It insisted that the arbitral award which did not identify the sixteen (16) others was invalid. It said there was no legal persona which answered to the name “Nelson Maurede and sixteen (16) others.” It submitted that the only person to whom the award related was Nelson Maurede. It averred that the award which was made against a non-existent entity was a nullity.

It moved the court to dismiss the application with costs....,.

The respondent states, and, in my view, correctly so, that there is no legal persona which answers to the name “Nelson Maurede and 16 Others”.

It insists, and I agree, that when proceedings are instituted by a non-existent entity, the court cannot relate to the same. The case of CT Bolts (Pvt) Ltd v Workers Committee 2012 (1) ZLR 363 (S), which it cited in its Heads, aptly describes the circumstances of the applicant.

I, in the mentioned regard, associate myself with the remarks which Garwe JA was pleased to make in the same when he said:

“The respondent, not being a legal persona, is not properly before the court. The proceedings before the Labour Court, and, prior to that, the arbitrator, were similarly void.”

That the proceedings which brought about the award which is the subject of this application are a nullity requires little, if any, debate. It stands to good logic and reason that a nullity cannot form the basis of any registration.

The current application cites Treger Products (Pvt) Ltd as the respondent. The award which the learned arbitrator granted cites Treger Ltd as the applicant's employer.

There is a world of difference between the two cited names.

This application relates to a private company. The applicant's employer, on the other hand, is a public company. It remains unclear if registration is sought against Treger Products (Pvt) Ltd or against Treger Ltd. The applicant did not explain the anomaly. Nor did it explain how that anomaly came about.

The onus rests on it to state the correct position of the matter. The court cannot.

What the court can tell, however, is that it is impossible for the applicant to enforce an award against a non-existent entity. As the respondent correctly states, Treger Products (Pvt) Ltd was not a party to the proceedings which the learned arbitrator conducted. The award cannot, therefore, be registered against it.

The above described matter was succinctly clarified in Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) which stated:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

The first appellant is the Movement for Democratic Change, a political party which has capacity to sue and be sued in its own name (“the Party”).

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against the judgment of the High Court dismissing an application by the appellants for a declaratory order and consequential relief pertaining to various fundamental rights, in particular, the right of children to shelter.The application was dismissed with no order as to costs.The first appellant is an ...

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

The first appellant, Firinne Trust, is a trust incorporated as such by Deed of Trust under the laws of Zimbabwe and registered with the Registrar of Deeds. It trades as Veritas, which is the second appellant herein.

The first respondent, is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution. Although it is established under the Constitution it carries out its mandate in terms of the Electoral Act [Chapter 2:13] the (“Act”).

The second respondent, the (“Minister”) is the Government official assigned the administration of the Electoral Act [Chapter 2:13]. The third respondent (“the Attorney-General”), is the legal adviser to the Government.

On 19 December 2017, under Case No. HC11749/17, Veritas filed an application with the High Court in which it sought a declaratur and ancillary relief pertaining to sections of the Electoral Act. The premise of the application was that the specified sections of the Electoral Act imposed restrictions on conducting voter education by persons other than the Zimbabwe Electoral Commission (ZEC) and political parties.

In this application, Veritas, on its own behalf and on behalf of the public in general sought an order declaring sections 40C(1)(g), 40C(1)(h), 40C(2) and 40F of the Electoral Act [Chapter 2:13] as being ultra vires sections 56, 61 and 67 of the Constitution; the allegation being that the impugned sections infringe the right of the public in general, and that of Veritas in particular, to equality and non-discrimination, freedom of expression, and their political rights, including the right to a free and fair election and to make political choices freely.

The Zimbabwe Electoral Commission (ZEC) opposed the application raising several points in limine relating to the citation of the applicant in the matter and the form of the application which it contended was not in accordance with the requirements of the rules of court.

In response, and under Case No. HC4391/18, Firinne Trust filed an application for leave to amend the citation of Veritas as applicant. It sought that the record be amended to reflect the applicant as “Firinne Trust also known as Veritas.”

This application was also opposed by the Zimbabwe Electoral Commission (ZEC).

The Minister and the Attorney-General filed their opposing papers out of time. Their failure to adhere to the rules was condoned at the hearing of the applications and they were given leave to participate in the proceedings.

The matters were subsequently consolidated, by consent, and set down for hearing before the same judge.

The learned judge in the court a quo was persuaded to find that the application was fatally defective in that it had been filed by a non-existent party. As a consequence, he refused the request for leave to amend the citation of the applicant (Veritas) for the reason that there was no applicant before him.

He also found that the form used by Veritas in the court application rendered the application itself fatally defective.

Consequent thereto, he upheld the points in limine and dismissed both applications with costs.

This appeal is against the dismissal of the applications.

THE APPEAL

Although the learned judge did not delve into the merits of the dispute the Notice of Appeal filed sought to touch on the merits of the dispute. The court is grateful to counsel for accepting that the merits of the dispute are not in contention in this appeal. The appeal before us is, as a result, confined to the determination by the court of the points in limine.

The grounds of appeal, upon which the judgment is attacked, are the following:

1. The court a quo erred in law in failing to hold that Rule 8C of the High Court Rules, 1971 permits a Trust to sue and be sued in its trade name as if it were its proper name.

2. The court a quo erred in law in failing to hold that the use of a name or trade name of a Trust in litigation in place of the names of the Trustees is for convenience and does not deprive the appellant of locus standi under sections 45(3) and 85 of the Constitution.

3. The court a quo erred in law and misdirected itself by refusing the amendment of the citation of the appellant in circumstances where a trade name had been properly used and the amendment was merely cosmetic.

4. The court a quo erred in law and misdirected itself by failing to hold that the use of Form 29B, with such alterations as circumstances require, is permitted under Rule 229C as read with Rule 4(2)C of the High Court Rules, and, in any event, any departure from the Rules should have been condoned under Rule 4C.

5. The court a quo erred in law in upholding preliminary points lacking substance raised by a party abiding in circumstances where the appellant, second respondent, and third respondent wanted the merits determined.

6. The court a quo erred in law and misdirected itself in awarding costs on a legal practitioner and client scale against the appellant in a Constitutional matter of huge public interest and importance without making any finding in law warranting the exercise of the learned judge's discretion in this regard.

DETERMINATION OF THE POINTS IN LIMINE BY THE COURT A QUO

In deciding on the points in limine the court a quo made remarks to the following effect:

“In casu, the applicant is cited herein in case HC11749/17 as Veritas. It is thereafter described in the founding affidavit deposed to on its behalf by Valerie Anne Ingham-Thorpe (paragraph 1 thereof) as a Trust incorporated in Zimbabwe by a Deed of Trust and registered with the Deeds Registry as Firinne Trust but trading as Veritas.

In my view, the applicant having realized the folly of using the name Veritas alone (a Trust) as the applicant in case HC11749/17 and having been jolted by points in limine raised by the first respondent, must have realized that its application was potentially fatally defective and to avoid the application being declared as such at the hearing of the matter sought to bring the second application in case HC4391/18 seeking leave to amend the citation of the applicant in the matter HC11749/17 by inserting the words 'FIRINNE TRUST also known as' in front of the current citation of the applicant in the main matter such that the full citation of the applicant shall read as follows: 'FIRINNE TRUST also known as Veritas' to ensure that both the registered name as well as the operating name of the Trust, in whose name the application has been brought, appears on all pleadings.

…,.

Procedurally, I agree with the counsel for the first respondent's observation because having noted that its application was potentially fatally defective the applicant need not have resorted to filing a new application dealing with points in limine raised in another application. I say so because in paragraph 10 the applicant said in her founding affidavit in case HC4391/18 that -

'However, in its Opposing Affidavit, the First respondent raised a number of points in limine including one that the application could not be brought in the name of the Trust. The First Respondent subsequently altered this point in its heads of argument to say that the application should have been brought in the name of the registered Trust rather than the Trust's operating name.'”

ISSUES ON APPEAL

The above remarks were made in relation to the application to amend the citation of Veritas, to replace the named applicant in the court a quo with a totally different party to the one appearing on the pleadings.

It seems to me that the application was not one for amendment of the citation of the applicant but its substitution.

I believe that the substance of the appeal addresses this particular finding of the court a quo and the first three grounds of appeal are pertinent in this regard.

Can it be said that the court a quo erred in refusing the application to amend the citation of the appellant?

The issues to decide are;

(i) Firstly, whether or not Veritas is a person.

If it is not a person, can the citation be amended as prayed for by the appellants or does its status as a non-legal person render the proceedings instituted under Case No. HC11749/17 in its name a nullity....,.

ARGUMENTS ON APPEAL

Counsel for the appellant made reference to Rule 8 of the Rules of the High Court 1971, and submitted that in terms of that Rule a person carrying on business may sue or be sued in that name. He argued that an association includes a Trust, and that, as a consequence, a Trust, being an association, is capable of mounting suit in its trade name. Having said this, he accepted that a Trust was not a person in that it was not separate from its trustees. He conceded that the Trust had no separate existence and that it was set up in terms of a Constitution whether as a corporate entity or incorporated one. He suggested, however, that our Rules permit the amendment sought in the lower court....,.

As regards the citation of the applicant in the lower court, counsel for the Zimbabwe Electoral Commission (ZEC) disagreed with counsel for the appellants that Rule 8C was applicable in this instance. He contended that a Trust was not a person as envisaged in the Rule, and, therefore, the appellants could not have recourse to the Rule and have the Trust sue in the name of VERITAS. He suggested that there was, of necessity, a separation between Rule 8 and Rule 8C. He argued that Rule 8 incorporated the ability of the trustees to sue in the name of the Trust. In this case, the name of the Trust is Firinne Trust. He contended that a Trust cannot rely on Rule 8C to sue in a trade name....,.

THE NATURE OF A TRUST

A very pertinent passage on Trusts is found in the book HERBSTEIN & Van WINSEN, Civil Practice of the High Courts of South Africa by the learned authors Cilliers, Loots & Nel to the following effect:

“A Trust is not a legal persona but a legal institution sui generis. Therefore, it must be sued in the name of the trustee or trustees. However, when the Trust itself has been cited, the courts have allowed the correction of the citation. Unless one of the trustees is authorized to act by the remaining trustee or trustees, all the trustees must be joined in suing, and all must be joined when an action is instituted against a Trust. The trustee should be cited in their representative capacities.”

Within this jurisdiction, the issue of whether or not a Trust is a person has received attention and there is a plethora of authority on the subject. In Crundall Bros (Pvt) Ltd v Lazarus NO & Anor 1990 (1) ZLR (H)…, the court stated:

“I can see no reason why a Trust should be regarded as a 'person' for the purposes of the Regulations, when it is not regarded as a 'person' for other purposes.”

This principle was confirmed by SMITH J, in WILSA & Ors v Mandaza & Ors 2003 (1) ZLR (H)…, wherein is stated the following:

“Mr Nherere took the point, in limine, that WLSA, being a Trust, is not a corporate body, and, therefore, cannot appear as a party. That contention is legally sound. In Commissioner for Inland Revenue v MacNeillie's Estate 1961 (3) SA 833 (A) at 840F-H, STEYN CJ said:

'Like a deceased estate, a Trust, if it is to be clothed with juristic personality, would be a persona or legal entity consisting of an aggregate of assets and liabilities. Neither our authorities nor our courts have recognized it as such a persona or entity. The Estate Duty Act, like the Income Tax Act 31 of 1941, does not define 'person'. The Statutory definition in sec. 2(x) of the Interpretation Act 33 of 1957, does not mention a Trust or any category of persons which would include a Trust.

It is trite law that the assets and liabilities in a Trust vest in the trustee.

The introduction of another persona consisting of those assets and liabilities, for the purposes of imposition and collection of a tax, when there is a trustee ready to hand, would be an extraordinary measure which would call for some adjustment, the nature of which is by no means obvious, and of which there is no trace in the Act between the legal position of such a persona and of the trustee.'”

That statement of the law was confirmed in Crundall Bros (Pvt) Ltd v Lazarus NO & Anor 1991 (2) ZLR 125 (S) where…, it was said:

“A trust is not a person. The trustee is the person to be considered for the purposes of the Regulations.”

HERBSTEIN & Van WINSEN, Civil Practice of the High Courts of South Africa also states:

“The fact that one trustee has been authorized by the remaining trustees to institute action on behalf of the trust does not necessarily confer locus standi on that trustee. The trustees must act nomine officii and cannot act in their private capacities. Beneficiaries cannot act independently of trustees against someone other than the trustee in legal proceedings relating to trust property.”

The passage quoted above is in sync with our law.

In Chiite & 7 Others v Trustees, Leonard Cheshire Homes Zimbabwe Central Trust CC10-17, MALABA CJ made the following observation regarding the citation of trustees:

“A proper reading of the provisions of Rule 8A of the High Court Rules establishes that it is not a requirement for the names of the trustees to be listed when they bring an action on behalf of the Trust. The only place where the issue of the listing of the names of the trustees when an action has been instituted on behalf of the Trust is where a defendant to a suit by the Trustees has requested from the Trust the names and addresses of the individual trustees. This would be in line with Rule 8A of the High Court Rules, 1971.”

The contention by the appellants is that it is the Trust that has brought this suit.

That is incorrect.

The suit has been brought by Veritas. The person who deposed to the founding affidavit is not a Trustee, she is an administrator in the employ of the trading arm of the Trust. Thus, the party before the court is not the Trust, it is an entity associated with the Trust. I am not convinced that the Rule that the appellants place reliance on is of any assistance to them.

DOES RULE 8C APPLY IN THE INSTANT PERMITTING THE AMENDMENT SOUGHT

In order to bolster their argument that an amendment of the applicant in this instance would be in order, the appellants have referred the court to Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd 2001 (4) SA 211. At p219, para 15-16, TIP AJ states:

“There is also a category of cases in which substitution was refused because the initial plaintiff was not a legal persona.

In Van Heerden v Du Plessis 1969 (3) SA 298 (O) an action for patrimonial damages had been instituted in the name of a person who was already deceased. An application to substitute the executor of the estate was held to be impermissible on the basis that the original summons was a nullity (at 304A-G).

In reaching that conclusion, SMUTS J placed some reliance on the approach taken in Van Heerden v Braun & Summers, to which I have referred above. Van Heerden v Du Plessis was applied in Friends of the Sick Association v Commercial Properties (Pty) Ltd and Another 1996 (4) SA 154 (D), where the plaintiff had been described in the summons as a voluntary association although it had ceased to be such upon its incorporation as a company not for gain several decades earlier. Refusing substitution, the Court held, at 158A-B, that the summons was a nullity and there was no need to even consider whether or not an amendment might cause prejudice.”

It seems to me that the above statement is not only apposite in this instance but it applies with equal force.

The principle that the citation of a non-existent party results in a nullity was confirmed in Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H). At 253C-254B, MALABA J…, said:

“In this case, the person against whom the plaintiff thought it was proceeding as a defendant was non-existent at the time summons was issued. The proceedings and judgment that followed the summons were null and void. To try an action in which there is only one party is an exercise in futility. There were no two parties to give rise to the existence of a cause of action between them. There was nothing to be substituted by the respondent as a new judgment debtor. There was no old judgment debtor.

This proposition is not without authority.

In Van Heerden v Du Plessis 1969 (3) SA 298 (O) a summons was issued against a person who had already died. Application was made for an order of substitution of the executor testamentary for the deceased. The application, which was opposed, was refused on the ground that the summons was wholly invalid.

In Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) supra, the learned judge mentioned that cases in which the summons has been issued against a non-existent person are exceptions to the application of the general rule on the approach courts should adopt in deciding applications for orders of substitution. The learned judge, at 369J- 370A, had this to say:

'The correction of a mis-description of an applicant differs also from the cases where the courts have regarded a summons or notice of motion as ab initio invalid because the plaintiff or applicant was a non-existent person.'

In Fosa v Commercial Properties (Pty) Ltd & Anor [1996] 2 All SA 611 (D) the summons was issued in the name of a non-existent plaintiff. An application for substitution was refused by NILE-DUNER AJ on the ground that, the fact that the persona described in the summons did not exist at the date of issue of the summons, called into question the validity of the proceedings before him. The learned acting judge concluded, at p614, by saying:

'There is, in my opinion, no difference, in principle, between the situation in Van Heerden v Du Plessis supra and the present case. I accordingly take the view that the summons is a nullity and that I cannot, by the process of substitution, revive it to the date of its issue.'

See also Dawson (Bradford) Ltd & Ors v Dove & Anor [1971]1 All ER 554 (QB) where it was held that substituting the defendant for the deceased, against whom summons had been issued after his death, was not an act of substitution but of creation.”

The suit, in this appeal, has not been brought by the Trust.

If it had been brought by the Trust, the remarks by the court in the case of Chiite & 7 Others v Trustees, Leonard Cheshire Homes Zimbabwe Central Trust CC10-17 would have been apposite. The arguments made by counsel for the appellant might have been persuasive. In this instance, his arguments are not apposite.

In casu, the appellants have not argued that Veritas is a Trust. The applicant, as cited, is a trade name. It is not a legal persona. It is not suggested that Veritas is an entity, like an association or a partnership. Veritas is a trade name which the Trust makes use of when trading.

Counsel for the appellant concedes that Veritas is not a persona. It is also not the Trust. Despite these very fundamental legal obstacles it is still contended that the court a quo should have exercised its discretion in favour of the appellants and invoked Rule 8C and allowed the application to amend the citation. Rule 8C reads:

“8C. Proceedings by or against persons under their trade name

Subject to this Order, a person carrying on business in a name or style other than his own name may sue or be sued in that name or style as if it were the name of an association, and Rules 8A and 8B shall apply, mutatis mutandis, to any such proceedings.”

Rule 8C, which counsel for the appellant seeks reliance on makes reference to a person. Veritas is not a person. The Trust, Firinne Trust, is also not a person.

In moving the appeal, counsel for the appellant sought reliance on the remarks by MATHONSI J…, in Nuvert Trading (Pvt) Ltd t/a Triple Tee Footwear v Hwange Colliery Company HH791-15 to the following effect:

“Those cases are clearly distinguishable from the present case and reliance on them is completely misplaced.

In both cases, there was no defendant at all and the court correctly found that no amendment could be made to a non-existent summons given that a summons is only valid if it has a defendant to answer to. In the present case, it cannot be said, by any stretch of the imagination, that the defendant does not exist because there is an entity answering to that name. The only omission is the word “Limited” which is an expression speaking to its limited liability status than anything. The amendment sought relates to completeness of the name as opposed to introducing a new persona to a summons originally without a defendant.”

A reading of that statement makes it clear that there must be a party to proceedings, viz, there must be a persona in one form or another.

In my view, the authority does not assist the position taken by the appellants. What it does is to reinforce the argument adopted by the Zimbabwe Electoral Commission (ZEC), to the effect that if the applicant is not a persona, one cannot apply to have that applicant substituted.

The citation of a non-existent entity renders the proceedings a nullity.

I am fortified in these remarks by the dicta in J D M Agro-consult (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H)…, to the following effect:

“What is now before me is a point in limine dealing with the question of the citation of the parties. It is a legal issue in that the defendants aver that the summons is bad at law, in that no defendant has been brought before the court. They allege that the proceedings are a nullity as a result and no application launched by the plaintiff to amend the summons or substitute the defendants can cure the defect as the summons is a nullity.

It is pertinent to state, from the outset, that the application to amend the summons, by altering the name of the second defendant, which was granted at the pre-trial conference, was without effect. The party named as the second defendant did not exist at the time that the summons was issued and served.

The correct appellation for the publisher and owner of the newspaper is Zimbabwe Newspapers (1980) Limited. That is a registered company, duly incorporated under the laws of this country. Its coming into being is due to the process by which it was incorporated as such. It is then, after its incorporation, that it becomes a juristic person, capable of suing and being sued in its own right. Without that process it is non-existent.

The entity sued by the plaintiff, as the second defendant, is The Herald Newspaper. It is not a registered company and does not exist in any other form. Consequently, the plaintiff issued summons against a non-existent being. The amendment to the second defendant's name, therefore, was of no force and effect as the summons itself was a nullity.

In Gariya Safaris (Pvt) Ltd v Van Wyk, this court stated:

'A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names in the summons as being those of the defendant, the summons is null and void ab initio.'”

The appellants concede that Veritas is not a person.

The Rule that they seek to rely on in having the citation amended speaks of “any person”. Once it is conceded that Veritas is not a legal persona no reliance can be sought in the Rule.

The appellants are out of court. There is, as a consequence, no applicant in the main application.

The Zimbabwe Electoral Commission (ZEC) has argued that the application is a nullity, and that, as a result, there is nothing to amend.

I am constrained to accept that contention.

It is trite that proceedings which are a nullity cannot be amended. This was confirmed in Jensen v Acavalos 1993 (1) ZLR 216 (S), where KORSAH JA, stated…,:

“With this view I most respectfully agree: for if the notice of appeal is incurably bad, then, to borrow the words of LORD DENNING in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 11721, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.'”

Those remarks apply with equal force in this appeal.

There was no applicant before the court a quo. The citation of a non-existent party cannot be amended. The proceedings themselves are a nullity. The application for amendment must, as a result, fail. The court a quo was correct in this regard....,.

DISPOSITION

Once the lack of status of Veritas was raised, the appellants should have exercised caution, and, as found by the learned judge, in the court a quo, withdrawn the application.

Instead, there was a dogged insistence on proceeding with the papers in the form that they were in. Wiser counsel should have prevailed....,.

As argued by counsel for the first respondent, the jurisdiction of the court must be invoked properly and lawfully. It cannot be lawfully invoked at the instance of a non-existent party.

The court a quo was correct in exercising its discretion in favour of the respondents and upholding the points in limine....,.

1....,.

2....,.

3. For the avoidance of doubt the appeal against the points in limine is dismissed.

CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

The two applicants are Members of Parliament. They brought two separate applications in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read with Rule 27 of the Constitutional Court Rules.

They alleged failure by Parliament to fulfil the constitutional obligation to act in accordance with the procedure for amending the Constitution prescribed by section 328 of the Constitution.

The allegations in the applications are the same. So are the issues. The two applications were consolidated and heard as one.

The applicants challenged the validity of the proceedings that culminated in the passing of Constitutional Amendment Bill (No.1) 2017.

The relief sought is by way of a declaratory order in the terms that:-

1. Parliament failed to fulfil the constitutional obligation provided for in section 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No.1) of 2017 on 25 July 2017 and 1 August 2017 in the National Assembly and the Senate respectively.

2. Accordingly, the proceedings in Parliament, pertaining to Constitutional Amendment Bill (No.1) of 2017, on 25 July 2017 and 1 August 2017, be and is hereby set aside.

3. The first respondent pays costs of suit.

The Constitutional Bill was intended to amend section 180 of the Constitution insofar as it related to the procedure for the appointment of the Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court. The proposed amendment would also add to section 180 of the Constitution a provision relating to the appointment of the Senior Judges of the Labour Court and the Administrative Court by the Chief Justice.

The application was filed on 6 September 2017. Before it could be heard, the President signed Constitutional Bill (No.1) 2017 into law.

The applicants filed another application under CCZ58/17. They sought an order setting aside the Constitutional Amendment Act on the basis that Parliament had failed to fulfil a constitutional obligation in the passing of the Constitutional Bill.

There are two distinct challenges to the passing of the Constitutional Bill.

The validity of the passing of the Constitutional Bill is challenged by impugning the proceedings in the National Assembly and the Senate.

In respect of the proceedings in each House, the contention is that the passage of the Constitutional Bill was in contravention of the amending procedure prescribed by section 328(5) of the Constitution. The grounds for the claimed violation of section 328(5) of the Constitution are different.

In respect of the proceedings in the National Assembly, the grounds raise factual questions, whilst the grounds in relation to the proceedings in the Senate raise a question of law.

The Court holds that the applicants have failed to show, on a balance of probabilities, that there was no voting conducted in the National Assembly. They also failed to show that the “Aye” votes did not reach the required minimum threshold of 180 votes.

The Court is of the view that the applicants have not been able to prove failure on the part of the National Assembly to act in accordance with the procedure for the amendment of the Constitution prescribed by section 328(5) of the Constitution.

The constitutional obligation imposed on Parliament, by section 328 of the Constitution, when exercising the power to amend the Constitution is to ensure that the procedures prescribed are complied with.

The Court entertains no doubt that, to amend the Constitution by the method prescribed by section 328, every requirement prescribed by the provision must be observed. The omission to comply with any one of the requirements is fatal to the validity of the proposed amendment.

The applicants established that the Constitutional Bill was not passed with the requisite two-thirds majority in the Senate. There was no compliance with the requirements of the procedure prescribed by section 328(5) of the Constitution.

The reasons for the decision now follow.

The Court notes the fact of the conflicting versions of facts and the interpretation of the applicable constitutional provisions. The granting of the relief sought by the applicants depends on one reality. It is discoverable by the finding of the facts on the matters in dispute, the declaration of the true meaning of the applicable constitutional provisions, and the application of the law to the facts.

The proposed amendment to section 180(1) of the Constitution was the cause of the events which culminated in the cause of action pleaded by the applicants for the relief sought. Nothing turned on the substantive value of the proposed amendment of the Constitution.

Before the proposed amendment, section 180 of the Constitution read as follows:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must -

(a) Advertise the position;

(b) Invite the President and the public to make nominations;

(c) Conduct public interviews of prospective candidates;

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.

(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned….,.”

Section 180 of the Constitution would read as follows after the proposed amendment:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.

(3) If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable: Provided that, for the avoidance of doubt, it is declared that the decision of the President, as to such appointment, shall be final.

(4) Whenever it is necessary to appoint a judge, other than the Chief Justice, Deputy Chief Justice or Judge President of the High Court, the Judicial Service Commission must -

(a) Advertise the position; and

(b) Invite the President and the public to make nominations; and

(c) Conduct public interviews of prospective candidates; and

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (5), the President must appoint one of the nominees to the office concerned.

(5) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.

(6) The President must cause notice of every appointment under this section to be published in the Gazette.

(7) The offices of senior judge of the Labour Court and senior judge of the Administrative Court must be filled by another judge or an additional or acting judge, as the case may be, of the court concerned, and are appointed by the Chief Justice after consultation with the Judicial Service Commission.”...,.

The main contention by the applicants was that there was no proper vote in Parliament....,.

In opposing the application, the first (Parliament of Zimbabwe), the second (the Speaker of the National Assembly), and the third (the President of the Senate) respondents took the preliminary point to the effect that Parliament is not a legal persona. The contention was that Parliament cannot sue or be sued....,.

WHETHER PARLIAMENT CAN SUE OR BE SUED IN ITS OWN NAME

The purpose of the exercise of jurisdiction conferred on the Constitutional Court is to ensure that the other organs of the State, such as the Legislature, act in accordance with the rules prescribing the procedures for the exercise of the powers conferred on them by the Constitution.

Counsel for the first, second, and third respondents persisted with the point in limine that Parliament has no legal personality, and, for that reason, cannot sue or be sued in its own name.

He argued that section 118 of the Constitution, which provides that Parliament consists of the Senate and the National Assembly, does not create a legal persona. He reasoned that Parliament is created by way of constitutive membership. The contention was that the Speaker is the representative and spokesperson of Parliament in its collective capacity. He pressed the point further by arguing that the Speaker and the President of the Senate are cited nominally only. He contended that relief was being sought against a body with no legal personality.

Counsel for the applicants took a contrary view.

He argued that Parliament can sue and be sued. For this proposition, he relied on sections 116 and 118 of the Constitution. Section 116 of the Constitution provides that the Legislature consists of Parliament and the President. He argued that the words “body corporate” are not found in the Constitution. The contention was that the fact that Parliament is not described as a body corporate capable of suing and being sued does not rid it of its status as a constitutional body with justiciable obligations.

Counsel for the applicants further relied on section 167(2)(d) of the Constitution for the proposition that, in applications for relief in enforcing obligations imposed on it, Parliament itself has to be before the Court.

Section 167(2)(d) of the Constitution provides that the Constitutional Court makes the final decision whether the conduct of Parliament is constitutional.

The Court was of the view that the point in limine had no merit.

Parliament exists as a body established by the Constitution out of the joint functions of the two Houses of the National Assembly and the Senate. Whilst the two Houses exist separately for themselves, they exist together for Parliament. Out of the two Houses is constituted Parliament, which is an important body for the purposes of the constitutional order. Together with the President, Parliament is conferred with legislative power. It includes the power to amend the Constitution in accordance with the procedure provided for the purpose under section 328 of the Constitution.

There are provisions of the Constitution which impose obligations on Parliament.

The constitutional provisions impose the obligations on Parliament as directly enforceable law.

Section 119 of the Constitution imposes an obligation on Parliament to protect the Constitution and promote democratic governance in Zimbabwe. The obligation imposed on Parliament, by section 328(5) of the Constitution is that it must not pass a Constitutional Bill at the last reading in the National Assembly and the Senate except by affirmative votes of two-thirds of the membership of each House.

Section 45(1) of the Constitution provides that the provisions guaranteeing the protection and promotion of fundamental human rights and freedoms, enshrined in Chapter 4, are binding on the State and all executive, legislative, and judicial institutions.

Fundamental human rights are binding on Parliament as directly enforceable law.

Section 85(1) of the Constitution secures the fundamental rights and freedoms by making courts of law accessible to any person whose rights are violated by State authority.

That is the case where jurisdiction over the subject matter in dispute is not specified.

The Court would not be in a position to exercise its jurisdiction to determine whether the conduct of Parliament is constitutional, or whether Parliament has failed to fulfil a constitutional obligation, if Parliament, as a constitutional body, cannot be held accountable.

The provisions of section 167(2)(d) of the Constitution show that there is an acceptance that Parliament can be held accountable for failure to discharge its constitutional obligations. The effect of the provision is that the question of fulfilment of a constitutional obligation by Parliament is a matter for the exclusive jurisdiction of the Constitutional Court.

When the Court deals with an application for relief in terms of section 167(2)(d) of the Constitution, it essentially looks at Parliament in the conduct of its functions. The constitutional obligation Parliament would be accused of failing to fulfil would have been imposed on it, in its capacity as a body established by the Constitution, to exercise the legislative power conferred on it by the legislative authority derived from the people.

Counsel for the first, second, and third respondents relied on WOOLMAN and BISHOP, Constitutional Law of South Africa, 2edn Vol 1…,, and Gauteng Provincial Legislature v Killian 2001 (2) SA 68 (SCA) 2001 (3) BCLR 253 (SCA)…,.

The contention that the case of Gauteng Provincial Legislature v Killian 2001 (2) SA 68 (SCA) 2001 (3) BCLR 253 (SCA) is authority for the proposition that Parliament cannot be sued in its own name, because the Speaker is the representative and spokesperson of the Assembly in its collective capacity, must be taken in context.

The case raised for determination the question whether the Speaker of the Gauteng Provincial Legislature had the power to give an undertaking with regard to costs relating to the resolution of a dispute on the constitutionality of a Bill by the Constitutional Court in terms of section 98(2)(d) of the Constitution of the Republic of South Africa Act 200 of 1993.

The case did not speak to the question whether Parliament could sue or be sued in its own name.

The Supreme Court of Appeal interpreted section 98(9) of the Interim Constitution. The section provided that:

“(9) The Constitutional Court shall exercise jurisdiction in any dispute referred to in subsection (2)(d) only at the request of the Speaker of the National Assembly, the President of the Senate, or the Speaker of a provincial legislature, who shall make such a request to the Court upon receipt of a petition by at least one-third of all the members of the National Assembly, the Senate, or such provincial legislature, as the case may be, requiring him or her to do so.”…,.

It is clear that the provision explicitly gave the Speaker of the National Assembly the power to refer a dispute to the Constitutional Court.

As such, the case relied upon by the first, the second, and the third respondents does not take their case any further.

Paragraph 17.2 in WOOLMAN and BISHOP, Constitutional Law of South Africa, 2edn Vol 1…, relied upon by the first, the second and the third respondents as authority for the proposition that Parliament cannot sue or be sued in its name, is unhelpful. It reads as follows:

“The NA [National Assembly] is chaired by the Speaker. The Speaker is the representative and spokesperson of the Assembly in its collective capacity. The Speaker may therefore give binding undertakings on behalf of the NA. Such undertakings may even embrace the expenditure of moneys in relation to the legislative process. Though the Speaker may be removed by a resolution of the NA, the Speaker must not bow to political pressure and is 'required by the duties of his office to exercise, and display, the impartiality of a judge'.”

It is important to note that, in stating the above, the learned authors made extensive reference to the case of Gauteng Provincial Legislature v Killian 2001 (2) SA 68 (SCA) 2001 (3) BCLR 253 (SCA).

It was the finding of the Supreme Court of Appeal that the Speaker of the Gauteng Provincial Legislature had the power to give an undertaking to minority political parties that the Legislature would cover the legal costs incurred in referring a pending bill to the Constitutional Court.

As such, the case is not authority for the proposition that Parliament cannot sue or be sued in its own name.

Regard must be had to Commission for the Implementation of the Constitution v Parliament of Kenya and Others [2013] eKLR Petition No.454 of 2012 where the High Court of Kenya…, said:

“40. I have been cautioned that the doctrine of separation of powers forbids this court from straying into what is seen as the sphere of Parliament. I have also been warned that 'Parliament of Kenya', as a State organ, cannot be sued by its own name.

I think the latter issue is effectively answered by the question of jurisdiction I have discussed above.

In any case, and on this I agree with Mr. Regeru, counsel representing CIC, that a reading of Article 261(5) and (6) contemplates Parliament as the Party to any Petition that may be filed therein. The provision reads that;

'If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.'

41. I therefore reject the respondent's contention that Parliament, as a State organ, cannot be sued by its own name at least for purposes of this suit.

I think the common law notions regarding capacity to be sued must yield to the Constitution which recognises Parliament as a State organ and imposes on it specific responsibilities. The doctrines of legal personality must be read against the beam of the rich provisions of our Constitution.”

A reading of section 167(2)(d), as read with section 119 of the Constitution, shows that Parliament may be sued in its name. It is a separate organ of the State which must be independently accountable for failure to act in accordance with the constitutional obligations imposed on it directly.

It is the obligations imposed by sections 119(1) and 328(5) of the Constitution, among others, that Parliament must fulfil.

It is in respect of those obligations that the Constitutional Court exercises jurisdiction in terms of section 167(2)(d) of the Constitution.

The Constitutional Court is the highest institutional expression of the rule of law.

Its duty is to enforce respect for and the maintenance of the constitutional order. The constitutional order is characterised by a fundamental system of values in terms of which validity of all legislation and other official acts or conduct must be assessed.

Thus, any branch or level of Government, including Parliament, that violates the Constitution or refuses to carry out a constitutional duty can be called to account in a proper proceeding before the Constitutional Court.

It would be in the interests of Parliament to have claims of violation of constitutional provisions imposing obligations on it directly determined by the Constitutional Court.

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

For the sake of completeness, the following observation is noted:

Despite being served with all the relevant papers, the second respondent did not file any papers in response to this application. It was therefore barred. It also did not attend the hearing in chambers.

Two men, who claimed to be former employees of the first respondent and also to be represented by the second respondent, appeared in chambers and indicated that their attendance was solely for the purpose of listening to the proceedings.

Counsel for the applicants and the first respondent indicated that they had no objection to the presence of the two.

This is a chamber application in which the applicants seek an order in the following terms:

“1. The application for substitution of Respondent in case number SC570/14 be and is hereby granted.

2. That the Applicants substitute the 2nd respondent and be listed in their individual capacity and names as 2nd-35th Respondents and the 2nd Respondent be listed as the 1st Respondent in the appeal under case number SC570/14 in place of 2nd Respondent.

3. That all pleadings, documents and papers under SC570/14 filed with the honourable court, from the date of this order, shall reflect this substitution.

4. That there be no order as to costs.”

BACKGROUND

Part of the background to this matter may conveniently be extracted from the judgement of the Labour Court LC/H/272/2012 which prompted the appeal in SC570/14.

The parties before the Labour Court were Freda Rebecca Mine Holdings Limited as the appellant and Amalgamated Mine Workers Union as the respondent.

What was before the Labour Court, in LC/H/272/2012, was an appeal against an arbitral award, the operative part of which read:-

“The Award

Having carefully considered the evidence, and both oral and written submissions from parties, I hereby declare, that, Respondent indeed made unilateral variation in the new contract of employment.

1. I therefore declare the new contract of employment null and void.

2. As a remedy, I hereby order parties to seriously engage themselves in fresh negotiations before a new contract of employment is introduced at Freda Rebecca Mine.”

The following is stated at pp1-2 of the cyclostyled judgment of the Labour Court:

“The material background facts to the matter are as follows:

The appellant operates a mine known as Freda Rebecca Gold Mine situated in Bindura. The respondent is a Trade Union representing mine workers in Zimbabwe. Sometime in 2009, the appellant introduced a revised contract of employment which was, according to the Appellant, signed by a majority of its employees. There were some employees who refused to sign the revised contracts of employment who were consequently dismissed from employment. These workers challenged the lawfulness of their dismissal through the Labour Official. When the conciliation failed, the matter was referred to an arbitrator and is still pending.

The present matter, however, concerns an unspecified number of employees on whose behalf the Respondent lodged a complaint to the Labour Officer. The matter was referred to the Arbitrator with the term of reference being “whether the Respondent could unilaterally vary the terms of contracts of employment with its employees.” The Arbitrator handed down an award in the terms as referred to supra. Dissatisfied with the award, the Appellant then lodged the present appeal.”…,.

The Labour Court struck the appeal off the roll on a technicality.

It opined, that, Freda Rebecca had “thrown itself out of court” by failing to comply with the arbitral award, or, alternatively, failing to apply for the suspension of the operation of the award before instituting the appeal.

Freda Rebecca appealed to the Supreme Court against this decision - Appeal No. SC570/14.

On the date set for its hearing, the said appeal was postponed sine die by the Supreme Court. The postponement was apparently due to issues that arose regarding the citation and/or representation of the parties, which issues were to be sorted out during the period of the postponement. The issues apparently arose due to misunderstandings that developed between the applicants and the second respondent.

The applicants thus instituted the instant application with the anticipation that their success in this application will enable their participation, in their individual capacities, in the appeal in SC570/14, which appeal is expected to be re-set down for hearing after the determination of this application.

SUBMISSIONS IN CHAMBERS BY THE APPLICANTS

Counsel for the applicants moved for the granting of the order sought on a number of bases:

He submitted, that, the applicants are the individuals whose contracts were summarily varied and that it is these same contracts that have been the subject matter of the dispute since 2012. He submitted, that, contrary to what the first respondent contended in its opposing papers, this is not an application for joinder but one for substitution of the second respondent by the applicants. He further submitted, that, whilst the workers' committee has no legal persona and therefore cannot represent workers, a trade union can do so as it has statutory ability to represent workers. He also submitted, that, in any event, as the appeal by the first respondent in SC570/14 deals with a procedural and not a substantive issue, there could be no prejudice to the respondents.

Counsel for the applicants went on to submit, that, in any event, if the applicants are successful in SC570/14, the matter will be remitted to the Labour Court where the first respondent can make another complaint about or raise the issue of the representation of the parties, if they so wish.

Furthermore, that the cause of action or justification for this application was the fact, that, the relationship between the applicants and the second respondent had become discordant.

He submitted, that, the applicants' position is that if there are other employees (former employees) who want to continue to be represented by the second respondent they may continue to be so represented, but they (the 34) now want to ventilate their cause without the second respondent.

It was also counsel for the applicant's submission, that, the second respondent has always acted in a representative capacity and did not at any time supplicate for its own rights. There has thus never been any confusion as to who the parties were.

He submitted that section 29(4)(d) of the Labour Act put to rest the question whether or not the applicants (and others) in their collective complaint, could be represented by the second respondent.

Counsel for the applicants also submitted, that, the application is not one for joinder as it does not seek the joining of a party who was not a party before. It is rather the “unpacking” of the real respondents in that matter that is sought.

There has not been any dispute, he submitted, that these 34 applicants had their contracts unilaterally varied or that they are former employees of the first respondent. They cannot, therefore, be said not to have sufficient interest in the matter.

The applicants want the opportunity to respond to the first respondent's appeal in which it is appealing against the striking off of their appeal in the Labour Court.

In the applicants' view, the first respondent has adopted the wrong procedure by appealing against the striking off of their appeal by the Labour Court.

It was also his further submission, that, the applicants want to be substituted because they were already part of the proceedings but they now want to extricate themselves from the one who was representing them.

The substitution, he submitted, is in terms of the common law, and, section 85 of the High Court Rules, referred to by the respondent, does not and cannot apply. He cited Zimbank Ltd & Anor v Consolidated Piping & Fitting 2000 (1) ZLR 672…, as the guideline in the determination of this application.

RESPONDENT'S SUBMISSIONS

In response, counsel for the first respondent made submissions to the following effect:

From an examination of the draft order sought, it is clear, that, what is being sought is not substitution but joinder. The High Court Rules relating to substitution must therefore come into play as the Supreme Court Rules do not provide for such an application.

Rules 85 and 85A of the High Court Rules ought to apply to the instant application.

An examination of the stated Rules will show, that, the application is defective as the order sought does not provide for the removal of a party and the replacement thereof with another, but, instead, seeks joinder of the applicants to the parties already cited in SC570/14.

The application is vague and embarrassing and bad at law and ought to be dismissed. The case of Trop v SA Bank 1992 (3) SA 208…, was cited in support of the submission.

It was also submitted, that, in terms of sections 29 and 30 of the Labour Act, a trade union has the ability and capacity to represent its members in legal proceedings.

However, that must be distinguished from being a party to the proceedings. The sections do not provide that a trade union becomes party in proceedings in which they represent their members.

In addition, the parties who appeared before the Labour Officer for conciliation are the same parties cited in SC570/14 and the applicants were not cited as parties thereto.

It was also submitted, that, as the applicants were not parties in pertinent proceedings before the Labour Officer, the arbitrator, the Labour Court, and, finally, the Supreme Court where an appeal is pending, it does not make sense for them to now, at this stage, seek to be made parties to the litigation.

Counsel for the first respondent further highlighted, that, when the first respondent raised the issue of the second respondent's locus standi before the arbitrator no action was taken to have the applicants joined at that stage, yet, the applicants now want to be parties to an appeal whose origin was birthed in those proceedings.

Neither the arbitrator's award nor the Labour Court judgement cite or speak of the applicants.

He submitted, that, the law does not countenance this as this would be tantamount to allowing them to enter the proceedings through the back door.

Counsel for the first respondent quoted remarks, though obiter, made in TelOne (Pvt) Ltd Communications & Allied Services Workers Union 2006 (2) ZLR 136…, where CHIDYAUSIKU CJ stated:

“…,. Mr Hwacha's contention is that a party that was not privy to the original proceedings cannot apply for the review of such proceedings. I recognise the cogency of this submission. The proposition that only parties to the proceedings can challenge, on review or appeal, the outcome of such proceedings admits of little doubt.”

He submitted, that, applied in reverse, quoted remarks buttress his argument.

He described the applicants' quest as an “ambush” of the point of law that had been raised by the first respondent in the earlier proceedings. He prayed for the dismissal of the application.

WHAT IS THE NATURE OF THIS APPLICATION?

The applicants have labelled it an application for substitution. The respondents, on the other hand, argue, that, it is in effect an application for joinder.

The Concise Oxford English Dictionary of Current English 7ed, 1982 provides the following, amongst others, definition for the word 'substitute':

“(person or thing) acting in place of another; make (person or thing) fill a place or discharge a function for or for another; put in exchange (for).”

For 'joinder' it provides:

“joining, union.”

The import of paragraph 2 of the order sought is, that, while the second respondent remains, as is the case already, a respondent in SC570/14, the applicants are also made additional respondents.

The effect of the order, if granted, would be to alter the numbering order, with the previously lone respondent becoming the first respondent while the applicants become the second to the 35th respondents.

Thus, the applicants do not seek to substitute the second respondent. Rather, they wish to be added as co-respondents. There is no removal of one party and replacement with another, as should happen in a substitution.

On the face of it, this is a clear case in which joinder, and not substitution, is being sought.

On the other hand, counsel for the applicants repeated and categorical submission, in which he maintained that the relief sought by the applicants in not joinder but substitution, is contradictory of the terms of the order that is being sought before me.

For that reason, the applicants' papers do not seek to meet the requirements of an application for joinder and they do not do so. In the same breath, the effect of the terms of the order sought is in effect a joinder and not substitution.

In these circumstances, the aptness of counsel for the first respondent's citation of the case of Trope & Ors v The South African Reserve Bank 1992 (3) SA 208…, becomes self-evident. Importantly, the Appeal Court quoted with approval the lower court's statement that:

“And, if the pleadings lack sufficient clarity to enable the defendant to determine those facts and hence the case he has to meet, the pleadings are vague and embarrassing.”

Counsel for the first respondent's submission, that, at the arbitration proceedings, the first respondent raised the issue of the second respondent's locus standi but no action was taken then to have the applicants joined at that stage, was not disputed by counsel for the applicants.

Counsel for the applicants submission, in response, was merely, that, the applicants were only praying for an order to be granted in their favour only in relation to the appeal in SC540/14 and not to any other case.

This stance, in my view, tends to lend credence to counsel for the first respondent's argument, that, the applicants seem to want to want to circumvent a legal point earlier raised by seeking to now individually enter the fray at this stage.

This court, not being a court of first instance, is not the proper forum for such an application.

In any event, for reasons discussed above, the applicants seek to participate in the appeal in SC570/14 by way of an application that defies a specific description recognised at law.

The nature of the application before me is unascertainable by reason of the pleadings filed being vague and embarrassing.

THE LAW

The aptness of the case of Tel One (Pvt) Ltd v Communications & Allied Services Workers' Union 2006 (2) ZLR 136 (S)…, also cited by counsel for the first respondent, comes to the fore.

As a party who was not privy to the original proceedings cannot appeal against or challenge, on review, those earlier proceedings, it is only logical that a party who was not privy to the original proceedings cannot become a party to the appeal emanating from those proceedings in the manner sought by the applicants.

In casu, the second respondent substituted itself for the applicants and other employees entirely. It did not cite itself in a representative capacity. There was no reference at all to the applicants and the other employees. This is so despite the fact, that, the rights that may accrue when the fairness or otherwise of their dismissals is finally determined would affect them individually.

The effect of the non-citation or the lack of reference to the applicants is that the award by the arbitrator ordered that there be negotiations between the employer and the Trade Union in circumstances where the contracts to be entered into would be between the employer and the individual employees.

This is an untenable result. I daresay it is an incompetent order.

It is trite, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgement of the court, such party should be cited: see Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors SC40-15…,.

It is also trite, that, a judgment may not be made affecting a person or entity that was not a party to the proceedings: see Mashingaidze v Chipunza & Ors HH688-15; Women & Law in Southern Africa Research & Education Trust v Shongwe & Others HH202-03.

The application in casu is bad at law. It is vague and embarrassing.

In addition, on the facts of this matter, whether it be an application for substitution or for joinder, this court is not the proper forum before which to make it. It cannot therefore succeed.

It is accordingly ordered as follows:-

“The application is dismissed with costs.”

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

The first respondent (Railmed) was established in 1970 by the National Industrial Council for the Railway Industry which has now been named the Railway Employment Council. Its legal status is that of a body corporate which is capable of suing and being sued in its own name.

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Locus Standi re: Legal Status of Litigants, Voluntary or Un-incorporated Associations & the Principle of Legal Persona

HH81-09 : SAFARI OPERATORS ASSOCIATION OF ZIMBABWE vs ZIMBABWE TOURISM AUTHORITY and MINISTER OF ENVIRONMENT AND TOURISM and COMMISSIONER GENERAL OF POLICE Ruled By: PATEL J

SC16-12 : CT BOLTS (PVT) LTD vs WORKERS COMMITTEE Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA Ruled By: BHUNU J

HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL Ruled By: BHUNU J

HH69-09 : CHRISTIAN FAITH TABERNACLE vs SPARROWS NEST MINISTRIES Ruled By: PATEL J

HH69-09 : CHRISTIAN FAITH TABERNACLE vs SPARROWS NEST MINISTRIES Ruled By: PATEL J

HH21-09 : MASHONALAND TURF CLUB vs MICHELLE NYAMANGUNDA Ruled By: MTSHIYA J

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU Ruled By: HUNGWE J

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA Ruled By: HLATSHWAYO J

HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION Ruled By: NDOU J

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS Ruled By: MTSHIYA J

HH91-10 : REVEREND R. J. SIBANDA and APOSTOLIC FAITH CHURCH vs MAGISTRATE RODNEY MZYECE N. O. and NCN MATIZA and K. BOSHA and O. GUMBO and THREE OTHERS Ruled By: KARWI J

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE Ruled By: MAVANGIRA J

HH108-10 : INYANGA DOWNS ORCHARDS vs EDWARD BUWU Ruled By: MUSAKWA J

HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES Ruled By: MAVANGIRA J

SC59-13 : GWERU WATER WORKER'S COMMITTEE vs CITY OF GWERU Ruled By: ZIYAMBI JA

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

HH21-11 : CHRIST EMBASSY ZIMBABWE vs CHIDZIVA INVESTMENTS (PVT) LTD Ruled By: CHATUKUTA J

HH37-13 : CHAMPION CONSTRUCTORS (PVT) LTD vs MILTON GARDENS ASSOCIATION and THE CITY OF HARARE and THE DIRECTOR OF URBAN PLANNING SERVICES and DIRECTOR OF WATER SERVICES and ANOTHER Ruled By: MATHONSI J

HH140-11 : 59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME vs HARARE MUNICIPAL WORKERS UNION and CITY OF HARARE and OTHERS Ruled By: MTSHIYA J

HH351-13 : SOVEREIGN EMPOWERMENT CENTRE and HACHIM KITCHENS PL and KINGDOM EMBASSY ZIM and STUARTSON INVESTMENTS PL vs OLD MUTUAL INVESTMENT GROUP PROPERTY INVESTMENT ZIM PL and THE SHERIFF (N.O.) Ruled By: MANGOTA J

HB10-13 : WESTGATE RESIDENTS ASSOCIATION vs NATIONAL RAILWAYS OF ZIMBABWE and L. H. JIYANE Ruled By: NDOU J

HH338-14 : MAFIRAMBUDZI FAMILY TRUST vs LIBERTY MADZINGIRA and PANNAH NHIWATIWA and THE REGISTRAR OF DEEDS N.O. and THE SHERIFF Ruled By: TAKUVA J

Appealed SC24-15 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and SEVEN OTHERS Ruled By: MALABA DCJ, GARWE JA and MAVANGIRA AJA

SC25-15 : GWERU WATER WORKERS' COMMITTEE vs CITY OF GWERU Ruled By: MALABA DCJ, GARWE JA and HLATSHWAYO JA

SC51-16 : ZESA TECHNICAL EMPLOYEES ASSOCIATION vs ZESA HOLDINGS (PRIVATE) LIMITED Ruled By: MALABA DCJ

HMA31-17 : CHAMU MINING SYNDICATE vs SIBONGILE MPINDIWA N.O. and CHAMWANDOITA SYNDICATE Ruled By: MAFUSIRE J

HH402-15 : NYASHA ZHOU and PATRICIA ZHOU and GIFT SHOKO and NYATRISH PROPERTY INVESTMENTS PL and SINCIA INVESTMENTS PL vs THE TRUSTEE OF TOMORROW TODAY YESTERDAY TRUST and SHERIFF FOR ZIMBABWE Ruled By: MATHONSI J

HH458-15 : THE EVANGELICAL CHURCH OF ZIMBABWE vs REVEREND DOCTOR ISAAC SODA Ruled By: MATHONSI J

Appealed SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC. Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

View Appeal HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE Ruled By: DUBE J

HB169-16 : THE SHERIFF OF THE HIGH COURT OF ZIMBABWE vs DEVELOPMENT TRUST OF INSIZA and ZIMBABWE ASSOCIATION OF DAIRY FARMERS Ruled By: TAKUVA J

HH503-15 : JOHN CONRAD TRUST vs THE FEDERATION OF KUSHANDA PRE-SCHOOLS TRUST and MUNICIPALITY OF MARONDERA and UNITED METHODIST CHURCH MARONDERA and REGISTRAR OF DEEDS Ruled By: MATHONSI J

HH356-14 : CLEMENT RUZENGWE N.O. (as Trustee and Chairman of the Vitalis Zvinavashe Trust) and SHINGAI MUTUMBWA N.O. (as Trustee) and MARGARET MUTAMBA ZVINAVASHE N.O. (as Trustee) vs RICHARD ZVINAVASHE Ruled By: CHITAKUNYE J

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi) Ruled By: ZHOU J

HH168-15 : ARAFAS MTAUSI GWARADZIMBA vs AKA JULIE PANAGIOTA MERCURI N.O. and THE MASTER OF THE HIGH COURT N.O. Ruled By: MWAYERA J

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS Ruled By: ZHOU J

SC17-12 : PHARAOH B MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G T and MINISTER OF LOCAL GOVERNMENT NATIONAL HOUSING AND URBAN DEVELOPMENT Ruled By: ZIYAMBI JA, GARWE JA, and OMERJEE AJA

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MAFUSIRE J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O. Ruled By: MAFUSIRE J

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS Ruled By: MANGOTA J

HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC Ruled By: KUDYA J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD Ruled By: MANGOTA J

Appealed SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE Ruled By: MAVANGIRA JA

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL Ruled By: GOWORA J

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HH81-09 : SAFARI OPERATORS ASSOCIATION OF ZIMBABWE vs ZIMBABWE TOURISM AUTHORITY and MINISTER OF ENVIRONMENT AND TOURISM and COMMISSIONER GENERAL OF POLICE
Ruled By: PATEL J

SC16-12 : CT BOLTS (PVT) LTD vs WORKERS COMMITTEE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

HH39-09 : WARREN PARK TRUST vs ANTHONY PAHWARINGIRA and NTOMBIZODWA PAHWARINGIRA and DAVY MUTINGWENDE and CHIPO MUTINGWENDE and SALTANA ENTERPRISES PL
Ruled By: BHUNU J

HH69-09 : CHRISTIAN FAITH TABERNACLE vs SPARROWS NEST MINISTRIES
Ruled By: PATEL J

HH69-09 : CHRISTIAN FAITH TABERNACLE vs SPARROWS NEST MINISTRIES
Ruled By: PATEL J

HH21-09 : MASHONALAND TURF CLUB vs MICHELLE NYAMANGUNDA
Ruled By: MTSHIYA J

HH26-08 : MOVEMENT FOR DEMOCRATIC CHANGE vs TIMOTHY MUBHAWU
Ruled By: HUNGWE J

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

HB27-09 : ZIMBABWE NATIONAL STUDENTS UNION and NUST STUDENTS' REPRESENTATIVE COUNCIL vs NATIONAL UNIVERSITY OF SCIENCE AND TECHNOLOGY and MINISTER OF HIGHER EDUCATION
Ruled By: NDOU J

HH59-10 : INTERCONTINENTAL HOLDINGS (PVT) LTD vs VERONICA NECHITIMA AND TEN MWANZA AND FOUR OTHERS
Ruled By: MTSHIYA J

HH91-10 : REVEREND R. J. SIBANDA and APOSTOLIC FAITH CHURCH vs MAGISTRATE RODNEY MZYECE N. O. and NCN MATIZA and K. BOSHA and O. GUMBO and THREE OTHERS
Ruled By: KARWI J

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

HH108-10 : INYANGA DOWNS ORCHARDS vs EDWARD BUWU
Ruled By: MUSAKWA J

HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: MAVANGIRA J

SC59-13 : GWERU WATER WORKER'S COMMITTEE vs CITY OF GWERU
Ruled By: ZIYAMBI JA

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

HH21-11 : CHRIST EMBASSY ZIMBABWE vs CHIDZIVA INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

HH37-13 : CHAMPION CONSTRUCTORS (PVT) LTD vs MILTON GARDENS ASSOCIATION and THE CITY OF HARARE and THE DIRECTOR OF URBAN PLANNING SERVICES and DIRECTOR OF WATER SERVICES and ANOTHER
Ruled By: MATHONSI J

HH140-11 : 59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME vs HARARE MUNICIPAL WORKERS UNION and CITY OF HARARE and OTHERS
Ruled By: MTSHIYA J

HH351-13 : SOVEREIGN EMPOWERMENT CENTRE and HACHIM KITCHENS PL and KINGDOM EMBASSY ZIM and STUARTSON INVESTMENTS PL vs OLD MUTUAL INVESTMENT GROUP PROPERTY INVESTMENT ZIM PL and THE SHERIFF (N.O.)
Ruled By: MANGOTA J

HB10-13 : WESTGATE RESIDENTS ASSOCIATION vs NATIONAL RAILWAYS OF ZIMBABWE and L. H. JIYANE
Ruled By: NDOU J

HH338-14 : MAFIRAMBUDZI FAMILY TRUST vs LIBERTY MADZINGIRA and PANNAH NHIWATIWA and THE REGISTRAR OF DEEDS N.O. and THE SHERIFF
Ruled By: TAKUVA J

Appealed
SC24-15 : THE TRUSTEES OF THE LEONARD CHESHIRE HOMES ZIMBABWE CENTRAL TRUST vs ROBERT CHIITE and SEVEN OTHERS
Ruled By: MALABA DCJ, GARWE JA and MAVANGIRA AJA

SC25-15 : GWERU WATER WORKERS' COMMITTEE vs CITY OF GWERU
Ruled By: MALABA DCJ, GARWE JA and HLATSHWAYO JA

SC51-16 : ZESA TECHNICAL EMPLOYEES ASSOCIATION vs ZESA HOLDINGS (PRIVATE) LIMITED
Ruled By: MALABA DCJ

HMA31-17 : CHAMU MINING SYNDICATE vs SIBONGILE MPINDIWA N.O. and CHAMWANDOITA SYNDICATE
Ruled By: MAFUSIRE J

HH402-15 : NYASHA ZHOU and PATRICIA ZHOU and GIFT SHOKO and NYATRISH PROPERTY INVESTMENTS PL and SINCIA INVESTMENTS PL vs THE TRUSTEE OF TOMORROW TODAY YESTERDAY TRUST and SHERIFF FOR ZIMBABWE
Ruled By: MATHONSI J

HH458-15 : THE EVANGELICAL CHURCH OF ZIMBABWE vs REVEREND DOCTOR ISAAC SODA
Ruled By: MATHONSI J

Appealed
SC49-18 : RICHARD SIBANDA and JONAH MUDONDO and L. D. MATEZA vs THE APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) INC.
Ruled By: GOWORA JA, HLATSHWAYO JA and UCHENA AJA

View Appeal
HH463-15 : APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HQ) vs REV. RICHARD SIBANDA and JONAH MUNONDO and REV. L.D MATEZA and JULIUS T MATOPE
Ruled By: DUBE J

HB169-16 : THE SHERIFF OF THE HIGH COURT OF ZIMBABWE vs DEVELOPMENT TRUST OF INSIZA and ZIMBABWE ASSOCIATION OF DAIRY FARMERS
Ruled By: TAKUVA J

HH503-15 : JOHN CONRAD TRUST vs THE FEDERATION OF KUSHANDA PRE-SCHOOLS TRUST and MUNICIPALITY OF MARONDERA and UNITED METHODIST CHURCH MARONDERA and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

HH356-14 : CLEMENT RUZENGWE N.O. (as Trustee and Chairman of the Vitalis Zvinavashe Trust) and SHINGAI MUTUMBWA N.O. (as Trustee) and MARGARET MUTAMBA ZVINAVASHE N.O. (as Trustee) vs RICHARD ZVINAVASHE
Ruled By: CHITAKUNYE J

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

HH168-15 : ARAFAS MTAUSI GWARADZIMBA vs AKA JULIE PANAGIOTA MERCURI N.O. and THE MASTER OF THE HIGH COURT N.O.
Ruled By: MWAYERA J

HH475-18 : ETHEL TSITSI MPEZENI vs ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: ZHOU J

SC17-12 : PHARAOH B MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G T and MINISTER OF LOCAL GOVERNMENT NATIONAL HOUSING AND URBAN DEVELOPMENT
Ruled By: ZIYAMBI JA, GARWE JA, and OMERJEE AJA

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

HH430-12 : ZIMSEC EMPLOYEES vs ZIMSEC
Ruled By: KUDYA J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J