Jurisdiction re: International Jurisdiction, Territorial Sovereignty and the Theories of Lex Causae and Lex Fori

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

Counsel for the applicant relied on the decision of the South African Appellate Division in S v Ebrahim 1991 (2) SA 553 (A)....,.

The appellant, a South African citizen by birth, fled to Swaziland whilst under a restriction order which confined him to Pinetown in Natal. In December 1986 he was forcibly abducted from his home in Mbabane by persons acting as agents of the South African State. He was taken to South Africa and handed over to the police. The police detained him in terms of security legislation. He was subsequently charged with treason, convicted, and sentenced to twenty years imprisonment with labour.

Prior to pleading to the charge, the appellant launched an application seeking an order that the court lacked jurisdiction to try him. The contention was that his abduction was in breach of international law and thus unlawful. The application was dismissed.

An appeal against the ruling succeeded.

STEYN JA carried out a review of Roman and Roman-Dutch authorities on the question whether the court lacked jurisdiction.

The learned Judge of Appeal came to the conclusion that, under both systems, the removal of a person from an area of jurisdiction in which he had been illegally arrested to another area was considered to be tantamount to abduction. The court held that there was a rule at common law which limited a court's jurisdiction in criminal cases. That rule was to the effect that even if an offence was committed within the area of jurisdiction of the court it does not have jurisdiction to try the offender if he was abducted from another area of jurisdiction by agents of the State.

The head note to the judgment shows that the court continued, at p582C-E, as follows:

“Several fundamental legal principles are implicit in these rules (of the Roman-Dutch Law) namely, the preservation and promotion of human rights, good international relations, and sound administration of justice.

The individual must be protected against unlawful detention and against abduction, the boundaries of jurisdiction must not be violated, State sovereignty must be respected, the legal process must be fair towards those who are affected by it, and the misuse of the legal process must be avoided in order to protect and promote the dignity and integrity of the administration of justice.

The State is also bound thereby.

When the State itself is a party to a case, as for example in criminal cases, it must, as it were, come to court with 'clean hands'. When the State is itself involved in an abduction over territorial boundaries, as in the present case, its hands are not clean.

Rules such as those mentioned are evidence of sound legal development of high quality.”

The court, in S v Ebrahim 1991 (2) SA 553 (A), approved of the decision of the Federal Court of Appeal for the Second Circuit in United States v Toscanino 500F 2d 267 (1974).

The appellant, an Italian national, protested that agents of the United States government had abducted him from Uruguay and taken him to Brazil where he was held in custody and tortured. From there, he was conveyed, by aeroplane, to the United States. He was arrested and brought to trial on a charge of conspiring to import narcotics into the country.

The trial court had followed the prevailing judicial authorities on the interpretation of the principle of due process and its application to such cases. Judicial policy, at the time, was represented by the decisions of the United States Supreme Court in Ker v Illinois (1886) 119 US 436 and Frisbie v Collins (1952) 342 US 519. These decisions held that where an accused person was brought to court, on a proper charge, he or she was in the lawful custody of the court, and, as such, the court had no right to inquire into the means or method used to secure his or her presence before the court.

In holding that the concept of due process, under the Fourth Amendment of the United States Constitution, had been broadly interpreted, and, as such, justified an inquiry by a court into the circumstances in which an accused person had been brought before the court, the Federal Court of Appeal departed from the line of binding decisions of the Supreme Court of the United States.

In United States v Alvaren–Machain (1992) 119 Led. 2nd 441 that court re-affirmed its previous decisions by a majority thereby effectively over-ruling the decision in United States v Toscanino 500F 2d 267 (1974).

The reasoning in S v Ebrahim 1991 (2) SA 553 (A) was endorsed by the Court in S v Beahan 1991 (2) ZLR 98 (S) as having “the quality of being in accord with justice, fairness, and good sense.”

The principles have been applied in subsequent similar type situations in South Africa; in Mohammed v President of the Republic of South Africa & Ors 2001 (3) SA 893 (CC).

The same principles have been adopted and applied by the United Kingdom courts in similar cases of accused persons who had been forcibly abducted from territories of sovereign States by security agents of the receiving State, in some cases with the connivance of the prosecution agency: in R v Horseferry Road Magistrates (1994) 1AC 42; R v Mullen [2000] QB 520; and R v Loosely [2001] UKHL 53....,.

What is clear from the cases is that the principles in question provided a basis for an answer to a defence to the charge placed on the accused person to the effect that the court lacked jurisdiction to try him. The reason given in each of the cases was that the appearance of the accused person before the court was brought about by his forcible removal by agents of the receiving State from the territory of another sovereign State in breach of international law and the sovereignty of that State. The accused person would, at the time of the abduction, have been under the protection of the laws of the State in which he lived. He would have been outside the boundaries of the territorial jurisdiction of the court.

The cases merely recognised a long standing principle of international law, that abduction by one State of persons located within the territory of another violates the territorial sovereignty of the second State. The breach of international law, in the circumstances, is usually redressed by the return of the person abducted.

The principles enunciated in S v Ebrahim 1991 (2) SA 553 (A), and those that followed it, were applied in the determination of the question of lack of jurisdiction because the courts accepted that the principles formed part of the meaning of the applicable international norms....,.

The cocktail of the principles of the relevant international law would have to have been violated by the receiving State before a criminal prosecution which followed could be said to be an abuse of legal process and a breach of the principles of protection and promotion of the dignity and integrity of the administration of justice. The cocktail comprises the principles of the preservation and promotion of the human right to personal liberty; the protection of individuals from unlawful detention and abduction; the protection of boundaries of territorial jurisdiction; and the protection of foreign State sovereignty....,.

The forcible abduction of an accused person from foreign territory, by agents of the receiving State, has the effect of barring jurisdiction by the courts because it involves breach of an affront to the sovereignty of the refuge State. The act of arresting a person is an act of sovereignty. In such a case, that power would have been exercised by one State in the territory of another State.

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

The two applicants herein were parties, together with 77 others, in a matter that was adjudicated by the Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007.The Tribunal gave its judgment in ...

The two applicants herein were parties, together with 77 others, in a matter that was adjudicated by the Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007.

The Tribunal gave its judgment in favour of the applicants on the 28th of November 2008. They now seek an order for the registration of the decision of the Tribunal for the purposes of its enforcement in Zimbabwe....,.

Notwithstanding the plethora of affidavit evidence and written legal argument filed of record, counsel for all of the parties herein concur that there are essentially two issues for determination in casu:

(i) The first is whether the SADC Tribunal was endowed with the requisite jurisdictional competence in the case before it....,.

Jurisdictional Competence

It is trite that any jurisdictional fact which negates the existence of any obligation imposed by a foreign judgment constitutes an effective bar to the actionability of that judgment. One such obvious negativing fact would be that the party impeaching the judgment owes no duty to obey the command of the court or tribunal purporting to impose the obligation.

The respondents' position on the status of the Tribunal is as follows:

The Agreement amending the SADC Treaty (the Amendment Agreement), which was signed on the 14th of August 2001, never entered into force because it was not ratified by Zimbabwe or by the prescribed number of SADC Member States. Therefore, in terms of Article 22 of the Treaty, as unamended, the Protocol of the Tribunal still requires the ratification of a Member State in order for that State to be bound by it. Since Zimbabwe has not ratified the Protocol, it is not bound by it and is not subject to the jurisdiction of the Tribunal. Consequently, the Tribunal lacked the requisite competence to adjudicate Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007, and, therefore, its judgment in that case cannot be registered and enforced in Zimbabwe or anywhere else.

The Vienna Convention on the Law of Treaties (1969) is generally recognised as an authoritative restatement of established or emergent rules of international customary law on the subject of treaties: See BROWNLIE: Principles of Public International Law (4th ed.)…,.

Article 39 of the Vienna Convention on the Law of Treaties (1969) states the general rule regarding the amendment of treaties, as follows:

“A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide.”

Part II of the Vienna Convention on the Law of Treaties (1969) regulates the conclusion and entry into force of treaties, and, by dint of Article 39, it also governs the conclusion and entry into force of treaty amendments. Article 11 prescribes the means of expressing consent to be bound by a treaty and provides that:

“The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.”

Article 24 of the Vienna Convention on the Law of Treaties (1969) governs the entry into force of treaties and, in its relevant portions, stipulates that:

“1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.

2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.”

Taken together, these provisions of the Vienna Convention on the Law of Treaties (1969) illustrate the flexibility inherent in the conclusion and entry into force of treaties as well as amendments thereto.

In particular, Article 11 makes it clear that the consent of States to be bound by a treaty may be expressed by signature, exchange of instruments, ratification or accession, or by any other means if so agreed.

Thus, the States concerned are at liberty to agree on the conclusion of a treaty by means other than the traditionally accepted procedure of signature followed by ratification or accession.

It is therefore perfectly possible for a treaty, or an amendment of the treaty, to be adopted and enter into force for all the adopting States instantly, without further ratification or any other formality, if that is the means of adhesion agreed to by those States: see AUST: Modern Treaty Law and Practice (2000)…,.

Turning to the SADC Treaty itself, Articles 39, 40 and 42 of the Treaty deal, respectively, with signature and ratification of and accession to the Treaty.

Article 41 governs the entry into force of the Treaty as follows:

“This Treaty shall enter into force thirty (30) days after the deposit of the instruments of ratification by two-thirds of the States listed in the Preamble.”

Article 39 makes it abundantly clear that ratification by two-thirds of the signatory States was a pre-requisite for the entry into force of the Treaty itself.

However, amendments to the Treaty are governed by an entirely different procedure, prescribed in Article 36.1, as follows:

“An amendment of this Treaty shall be adopted by a decision of three-quarters of all the Members of the Summit.”

The term “Summit” is defined, in Article 1 of the Treaty, as:

“…, the Summit of the Heads of State or Government of SADC established by Article 9 of this Treaty.”

Article 10 of the Treaty (in its un-amended form) is instructive as to the composition of the Summit and its decision-making process. It provides as follows in its relevant portions:

“1. The Summit shall consist of the Heads of State or Government of all Member States, and shall be the supreme policy-making institution of SADC.

3. The Summit shall adopt legal instruments for the implementation of the provisions of this Treaty…,.

8. Unless otherwise provided in this Treaty, the decisions of the Summit shall be by consensus and shall be binding.”

The combined effect of these provisions is that an amendment to the Treaty is not concluded by way of ratification by Member States but is adopted by a decision of not less than three-quarters of the Summit, comprising the Heads of State or Government of all Member States. Furthermore, the decision of the Summit, to adopt the amendment, is binding on all Member States. The amendment becomes operative immediately thereafter and there is no need for any further ratification by Member States in order to bring the amendment into force and effect.

Turning to the Amendment Agreement itself, the Preamble thereto, in its relevant portions, declares that:

“We, the Heads of State or Government of [all the Member States]…, HAVE AGREED, pursuant to Article 36 of the Treaty, to amend the Treaty as follows:…,.”

Article 32 of the Agreement provides for its entry into force, in conformity with Article 36.1 of the Treaty, as follows:

“This Agreement shall enter into force on the date of its adoption by three-quarters of all Members of the Summit.”

Article 22 of the SADC Treaty, both in its original and amended form, requires the signature and ratification of any Protocol approved by the SADC Summit.

Article 9.1(f) as read with Article 16 provides for the establishment of the SADC Tribunal. Article 16.2 as amended provides that:

“The composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol which shall, notwithstanding the provisions of Article 22 of this Treaty, form an integral part of this Treaty, adopted by the Summit.” [amendment underlined]

The meaning and effect of the amending words are clear, to wit, the Protocol of the Tribunal forms an integral part of the Treaty without the need for its ratification by the Member States.

To clarify this position and dispel any doubt on the matter, all the Member States, including Zimbabwe, concluded and signed the Agreement Amending the Protocol on Tribunal on the 3rd of October 2002.

By virtue of Articles 16 and 19 of this Agreement, Articles 35 and 38 of the Protocol of the Tribunal, which required ratification of the Protocol by two-thirds of the Member States, were repealed in toto, thereby obviating the need to ratify the Protocol.

To conclude this aspect of the case, my assessment of and determination on the jurisdictional capacity of the Tribunal is as follows:

On the 14th of August 2001, the Amendment Agreement was signed by 13 out of the 14 Heads of State or Government of the Member States, including Zimbabwe, thereby concluding the process of its adoption and entry into force.

In my view, there can be no doubt whatsoever that the Agreement was duly adopted in terms of Article 36.1 of the Treaty and that it became binding upon all the Member States on the date of its adoption.

It follows that, as from that date, by virtue of Article 16.2 of the Treaty, as amended, the Protocol of the Tribunal constituted an integral part of the Treaty and became binding on all Member States without the need for its further ratification by them. It also follows that the Republic of Zimbabwe thereupon became subject to the jurisdiction of the Tribunal and that the jurisdictional competence of the Tribunal in Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007, which was heard and determined in 2008, cannot now be disputed.

The respondents' position, in this regard, premised on the ex post facto official pronouncements repudiating the Tribunal's jurisdiction, is essentially erroneous and misconceived.

Their position is rendered even more untenable by the conduct of SADC governments, including the Government of Zimbabwe, subsequent to the adoption of the Amendment Agreement, which conduct has been entirely consistent with the provisions of the Treaty as amended by the Agreement. I refer, in particular, to the establishment of the Troika system and the Organ on Politics, Defence and Security Co-operation, in terms of Articles 9 and 9A of the Treaty (as amended by Articles 9 and 10 of the Agreement), and note that Zimbabwe has fully participated, together with all the other Member States, in the Troika system and the business of the newly constituted Organ.

It seems to me legally unsustainable to espouse a major facet of the amended SADC regime and to simultaneously eschew those features of the same regime that are deemed to be politically inexpedient and unpalatable.

Before concluding, I think it necessary to mention one jurisdictional issue that was not canvassed by the parties, either in their affidavits or in argument, relative to the scope of the Tribunal's jurisdiction in terms of the SADC Treaty and its governing Protocol.

In the case before it, the Tribunal relied upon the provisions contained in Articles 4(c) and 16 of the Treaty, as read with Articles 14 and 15 of the Protocol, to conclude that it was duly empowered to adjudicate any dispute concerning human rights, democracy, and the rule of law.

The jurisdiction of the Tribunal encompasses all disputes between States and between natural and legal persons and States relating to the interpretation and application of the Treaty.

Despite this broad formulation, I am not entirely persuaded that the general stricture enunciated in Article 4(c) of the Treaty, which requires SADC and the Member States to act in accordance with the principles, inter alia, of “human rights, democracy, and the rule of law,” suffices to invest the Tribunal with the requisite capacity to entertain and adjudicate alleged violations of human rights which might be committed by Member States against their own nationals.

Be that as it may, this is not an issue that was specifically raised in these proceedings and it would, therefore, be inappropriate for me to deal with this jurisdictional point mero motu at this juncture.

HH16-09 : RICHARD ETHEREDGE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LANDS, LAND REFORM AND RESETTLEMENT and SENATOR EDNA MADZONGWE
Ruled By: GOWORA J

A further submission raised by counsel for the respondent; that this court lacks the jurisdiction to hear the matter because of the process in the SADC TRIBUNAL and a judgment that was passed by the Tribunal against the Government of this country. An interim judgment has indeed been handed to me but it is not ...

An interim judgment has indeed been handed to me but it is not a judgment I can consider without reference to the protocol that brought the Tribunal into force as well as the SADC Treaty. I note that in the heads of argument, the submission of lack of jurisdiction is not premised on the same basis as it appears in the opposing affidavit. It is not clear therefore what argument the court should follow.

I will therefore deal with both issues as one and the same.

The SADC Treaty makes provision for the establishment of a Tribunal. The Protocol is the document that then sets up the Tribunal and provides for the powers of the Tribunal. I have examined the Protocol very carefully and I have not observed therein any reference to the courts of any of the countries within SADC. If, indeed, the intention was to create a Tribunal which would be superior to the courts in the subscribing countries that intent is not manifest in the document presented to me.

The supreme law in this jurisdiction is our Constitution and it has not made provision for these courts to be subject to the Tribunal. This court is a court of superior jurisdiction and has an inherent jurisdiction over all people and all matters in the country, and its jurisdiction can only be ousted by a statutory provision to that effect. I do not have placed before me any statute to that effect and the Protocol certainly does not do that.

From a perusal of the interim judgment, it is clear that the nature of relief being sought in the Tribunal is different to what is sought before me and there is therefore no justification for the view that the applicant is seeking the same relief in different fora.

I hold that this court has jurisdiction and that it has the capacity to determine the dispute between the parties.

In view of my earlier findings on the points in limine, there is no need to enquire into the merits of this application. The applicant is non-suited and the application is hereby dismissed with costs.

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

I do not think that the courts are at large, in reliance upon principles derived from international custom or instruments, to strike down the clear and unambiguous language of an Act of Parliament.

View Appeal
SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

Jurisdiction is everything. Without it, a court has no power to take one more step. Where a court acts without jurisdiction, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given. It is for the court to satisfy itself that it has the authority to decide the matter litigated before it….,. According to the Advisory ...

HH192-15 : JAMILA MOKBEL vs HASSAN MOKBEL
Ruled By: UCHENA J

The applicant and the respondent married each other in 1997. They married in Lebanon, according to Islamic Religious Law of the Jaafari Confession. They divorced in terms of a release contract dated 16 August 2012. They are both Lebanese but both stayed in Zimbabwe before divorce and the respondent still does. The applicant and the children born ...

The applicant and the respondent married each other in 1997. They married in Lebanon, according to Islamic Religious Law of the Jaafari Confession.

They divorced in terms of a release contract dated 16 August 2012. They are both Lebanese but both stayed in Zimbabwe before divorce and the respondent still does. The applicant and the children born to the marriage now stay in Lebanon. The applicant is however not staying with her children as they stay with their step mother, the respondent's new wife. The applicant was aggrieved by the respondent's placing of the children under his new wife's custody and her being denied access to them.

The applicant, relying on a document purporting to annul the original release agreement on terms which had not yet been implemented as at 31/3/2014, applied to this court for an order granting her custody of their minor children, namely, N Mokbel born 5 October 1998; O Mokbel born 30 March 2001; P Mokbel born 20 November 2004; and Q Mokbel born 7 September 2007.

Counsel for the respondent submitted that this court has no jurisdiction and cannot hear this application because the document being relied on by the applicant was fraudulently obtained and was appealed against.

Counsel for the applicant submitted that the appeal noted by the respondent is not valid because of the way it was worded.

Counsel for the respondent's response, which was prompted by the court asking the parties to address it on the effect of section 25 of the Civil Evidence Act [Chapter 8.01] on this case, was that this court cannot take judicial notice of foreign law, and cannot therefore, without hearing evidence to prove that foreign law, determine whether or not the appeal referred to is valid or not.

Section 25 of the Civil Evidence Act [Chapter 8:01] provides as follows;

“(1) A court shall not take judicial notice of the law of any foreign country or territory, nor shall it presume that the law of any such country or territory is the same as the law of Zimbabwe.

(2) Any person who, in the opinion of the court, is suitably qualified to do so on account of his knowledge or experience shall be competent to give expert evidence as to the law of any foreign country or territory, whether or not he has acted or is entitled to act as a legal practitioner in that country or territory.

(3) In considering any issue as to the law of any foreign country or territory, a court may have regard to —

(a) Any finding or decision purportedly made or given in any court of record in that country or territory, where the finding or decision is reported or recorded in citable form; and

(b) Any written law of that country or territory; and

(4) The law of any foreign country or territory shall be taken to be in accordance with a finding or decision mentioned in paragraph (a) of subsection (3), unless the finding or decision conflicts with another such finding or decision on the same question.

(5) For the purposes of paragraph (a) of subsection (3), a finding or decision shall be taken to be reported or recorded in citable form only if it is reported or recorded in writing in a report, transcript or other document which, if the report, transcript or document had been prepared in connection with legal proceedings in Zimbabwe, could be cited as an authority in legal proceedings in Zimbabwe.”

Section 25(1) of the Civil Evidence clearly bars this court from taking judicial notice of foreign law or presuming that the law of another country is the same as the law of Zimbabwe.

Counsel for the respondent is therefore correct when he says we cannot presume that Lebanese notices of appeal should be done in the way they are done in Zimbabwe. It cannot therefore be said, without proving Lebanese Law, that the notice of appeal is invalid.

Section 25(3) of the Civil Evidence Act prescribes the procedure a party should follow in proving foreign law. In spite of that clear procedure, counsel for the applicant did not take her allegations any further besides insisting on the applicant's application being heard and granted as custody issues are the same irrespective of the foreign law aspects raised by counsel for the respondent.

The need to prove Lebanese law was very important in this case because of the type of marriage the parties entered into and the law applicable to both divorce and custody in Lebanon which is faith-based and has specific provisions on who between the spouses should have custody.

This court cannot hear and determine a case based on foreign law before that foreign law which it must use to determine the case has been proven. We are in this case dealing with existing Lebanese court orders based on Islamic Law which this court can only deal with after the applicant leads evidence on it. Proceeding without such evidence, as suggested by counsel for the applicant is unlawful and leads to the danger of contradicting existing orders of foreign courts granted by judicial officers who are fully aware of the import of their country's laws.

The pitfalls are demonstrated by the following;

1. The marriage is in terms of Islamic Religious Law in Lebanon-Jaafari Confession which the applicant did not prove to this court.

2. The invalidity of the respondent's appeal has not been proven before this court. It is insufficient to rely on the respondent's wording to attack the validity of process based on foreign law.

3. Even if the appeal had been proved to be invalid, the issue of custody had to be proved to not have been implemented at the time the annulment of the release agreement is alleged to have taken place. The fact that the respondent is already exercising custody through his new wife seems to indicate that custody is not an outstanding issue.

4. Part of the contract, on page 15 of the record, states that “this contract, with all what relates or derives therefrom, as issues in Lebanon or the State of Zimbabwe, shall be subject to the Lebanese Law, and more particularly the Islamic legal rules-the Jaafari Confession, regarding divorce and its effects,” which this court cannot take judicial notice of.

5. The Release agreement, on page 12 of the record, provides for the “divorce execution, according to the texts of the Islamic Law in Lebanon-Jaafari Confession only, while excluding any other rules and laws, including the State of Zimbabwe.”

This means the application of Zimbabwean laws is specifically excluded by the Release Agreement.

The applicant's counsel should therefore have seriously considered our own section 25 of the Civil Evidence Act referred to above and this clause before recklessly bringing this application and pursuing it to a hearing before this court without complying with section 25 of the Civil Evidence Act.

6. On the issue of custody, the Release Agreement specifically states, on page 12 that; “the first party (respondent) is the compulsory tutor of the children,” and Annexure B, on page 37, describes the respondent as the children's 'mandatory custodian', suggesting that custody under Islamic Law is prescribed by the law. This means evidence had to be led on the applicable foreign law.

7. The alleged annulment agreement, document on page 18, specifically states that “each of the two parties has the right to resort to the competent court in Lebanon or abroad, to preserve their rights and consider the terms of the agreement that have not been implemented as if they didn't exist.”…,.

The respondent has been exercising custody rights as demonstrated by the children being in his new wife's custody. It therefore seems this part of the agreement has already been implemented and can therefore not be covered by the alleged Annulment Agreement.

I am therefore satisfied that the applicant's application cannot succeed.

Counsel for the respondent submitted that the application should be dismissed with costs de bonis propiis because this court does not have jurisdiction to hear this application and this was brought to the applicant and his legal practitioners through the respondent's opposing affidavit.

It is not correct that this court does not have jurisdiction, as it can, subject to the foreign law being proven to it, exercise jurisdiction….,.

It is therefore ordered as follows;

1. That the applicant's application be and is hereby dismissed.

HH28-03 : CHRIS ROBERTS vs AIR ZIMBABWE CORPORATION
Ruled By: HUNGWE J

The plaintiff was a passenger aboard Flight UM14176 from Harare to London on 9 September 1997. He had luggage. The defendant airline was to convey the luggage together with the plaintiff to London. When the plaintiff got to London he failed to get his luggage. It was lost. The plaintiff accepted payment of $4,694=28 from the ...

The plaintiff was a passenger aboard Flight UM14176 from Harare to London on 9 September 1997. He had luggage. The defendant airline was to convey the luggage together with the plaintiff to London.

When the plaintiff got to London he failed to get his luggage. It was lost. The plaintiff accepted payment of $4,694=28 from the defendant. He sued for UK£3,068= and Z$368,550= for the lost luggage and loss of earnings.

At the pre-trial conference stage it was agreed that the following question be placed before the Court as a Stated Case;

1. Is the contract between the parties governed by the Carriage by Air Act [Chapter 13:04]?

In his heads of argument, counsel for the plaintiff argued that in terms of section 7(2) of the Carriage by Air Act [Chapter 13:04], the Court has a discretion when adjudicating in claims brought to enforce liability which is limited by Article 22 of the Geneva Convention. The limitation imposed by Article 22 of the Convention is a guide but not a strict limitation as such a limitation is qualified by the use of the words "just and equitable" in subsection (2). So he argued.

There is no substance in this argument. It is clearly misplaced and misdirected.

To begin with, the use of the words "just and equitable" in section 7(2) of the Carriage by Air Act are restricted to the procedural options open to a Court where there is a possibility of a carrier facing a multiplicity of suits, either in Zimbabwe or elsewhere.

Secondly, the Carriage by Air Act itself is clear and unambiguous in its limitation of liability. Section 7(1) of the Carriage by Air Act states:

"It is hereby declared that the limitations on liability in Article 22 of the Convention apply whatever the nature of the proceedings by which liability may be enforced and that in particular -

(a) Those limitations apply where proceedings are brought by a wrongdoer to obtain a contribution from another wrongdoer; and

(b) The limitation for each passenger in paragraph (1) of that Article applies to the aggregate liability of the carrier in all proceedings which may be brought against him in Zimbabwe together with any proceedings brought against him outside Zimbabwe."

For the defendant, counsel argued that the golden rule of interpretation, which is that a court is bound to give effect to the express provisions of a statute, must be applied unless that leads to its ambiguity. It would lead to an absurdity if that same provision were to be read as implying that where justice and equity required it, a Court could make an award greater than the limitation allowed.

I agree.

A perusal of the Carriage by Air Act is revealing. The preamble of the Carriage by Air Act reads;

"An Act to enable effect to be given to the Warsaw Convention of 1929, as amended by the Hague Protocol of 1955 concerning international carriage by air…,."

By section 3 of the Carriage by Air Act, the Warsaw Convention was adopted as domestic law of Zimbabwe. The purpose of the Convention, among other things, is to limit the liability of air carriers. Article 22 expressly limits the liability of a carrier by air. It is unequivocal.

The plaintiff did not argue otherwise.

In terms of Article 22, the only circumstance where a carrier by air is liable to a higher limit is, whereby special contract, that carrier has agreed to be so bound.

The plaintiff has not alleged the existence of any such special contract. There would be little purpose served by this Act if it were possible to claim an amount higher than the prescribed limit. This is an international Convention. Zimbabwe is a signatory to it. Zimbabwe is obliged to apply the letter and spirit of the Convention.

In the circumstances, the answer to the Stated Case is that the contract between the parties is governed by the 1929 Warsaw Convention as amended by the Hague Protocol of 1944 as adopted into domestic law by the Carriage by Air Act [Chapter 13:04].

It is ordered that -

The plaintiff is to pay the costs of this application.

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage. The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who ...

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage.

The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who are parents to the minor children, alleged that they had entered into a contract with the defendant on the following agreed terms;

1. That the two minor children would be escorted onto the flight and off the flight;

2. That they would be monitored and assisted throughout the flight;

3. That they would be cared for on the plane;

4. That they would be taken through immigration and handed over to a designated person, namely, Haruchemwi Christine Masuta;

5. That their documents would be kept safely by the airline staff who would hand-over same to Hamuchemwi C Masuku; and

6. That Hamuchemwi C Masuku would sign documents acknowledging receiving the minor children.

The plaintiffs alleged that, in breach of the terms of the contract, the minors were not taken care of nor provided any assistance. Instead, a stranger who happened to be a passenger on the plane was asked to assist the children. The plaintiffs alleged that, as a result, they suffered psychological trauma, pain and suffering and claimed $75,000= damages in respect of the first and second plaintiffs and $100,000= damages in respect of the third and fourth plaintiffs.

The defendant excepted to the summons and declaration on the following grounds;

(1) That since the carriage by air of the first and second plaintiffs from Harare to Johannesburg constituted an international carriage within the meaning of Article 1(2) of the Convention for Unification of Certain Rules relating to International Carriage by Air (Warsaw Convention) as ratified by section 3 of the Carriage by Air Act [Chapter 13:04], the cause of action should be premised on the Warsaw Convention.

(2) That the plaintiffs cause of action, being founded on the defendant's alleged breach of contract, cannot be sustained at law; and

(3) That the claims of the Carriage by Air Act and Warsaw Convention, being limited to instances of death or wounding of a passenger or any other bodily injury by a passenger, and the plaintiffs not having pleaded the essential elements, their claim is incurably bad at law.

The defendant prayed for dismissal of the plaintiffs claim with costs of suit on an attorney client scale.

I am indebted to the parties for the detailed heads of argument filed.

The defendant argued that claims arising out of air travel are specifically governed by the Warsaw Convention. Any claims should fall squarely within the four corners of the Warsaw Convention. Any claims falling outside the Warsaw Convention could not be sustained. Since the plaintiffs claims arose from a breach of contract, and, possibly, delict, their claims ought to be dismissed.

The plaintiffs, on the other hand, argued that the Warsaw Convention does not provide the “sole and exclusive” remedies to claims arising from carriage by air. The Convention, as it stands, does not specifically ouster claims arising under common law. In any case, the plaintiffs submitted that Article 17 of the Warsaw Convention does incorporate psychological trauma and distress. In case it is found that Article 17 is applicable, the plaintiffs argued that Article 17 is an archaic piece of legislation which is not justifiable in a dynamic and democratic legal system such as ours.

The first issue falling for determination is whether the Warsaw Convention provides the exclusive remedy to claims arising from carriage by air.

Article 1(1) of the Warsaw Convention provides;

“For the purposes of this Convention, the expression 'international carriage' means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a breath in the carriage or a trans-shipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for purposes of this carriage.”

The Warsaw Convention was ratified by section 3 of the Carriage By Air Act [Chapter 13:04]. That means that where there is conflict between the Warsaw Convention and common law, the Warsaw Convention should prevail and apply.

In the case of Sidhu and Others v British Airways (Pvt) Ltd; Abnett (known as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC) LORD HOPE stated that:

“The Convention describes itself as a 'Convention for the Unification of Certain Rules relating to International Carriage by Air'.

The aim of the Convention is to unify the rules to which it applies. If this aim is to be achieved, exceptions to these rules should not be permitted, except where the Convention itself provides for them. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code which could be applied by the courts…, without reference to the rules of their own domestic law.

The Convention does not purport to deal with all matter relating to contract of international carriage of law. But, in those areas with which it deals, and the liability of the carrier is one of them, the Code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.”

See also Eastern Airlines Inc v Floyd 499 US 530 (1999) where the United States Supreme Court held that an air carrier could not be held liable under Article 17 when an accident had not caused the passenger's death or to suffer physical injury or any physical manifestation of injury.

LORD HOPE, in Sidhu and Others v British Airways (Pvt) Ltd; Abnett (known as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC), went further to say;

“…,. To permit exceptions whereby a passenger could sue out with the Convention for losses sustained in the course of intentional carriage by air would distort the whole system, even in case in which the Convention did not create any liability on the part of the carrier. Thus, the purpose is to ensure that in all questions relating to the carriers liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available in any particular country where he chooses to raise his action.”

In the case of Impala Platinum Limited v Kolinklijke Lunchtraat Maatshappij NV and Another 2008 (6) SA 600 the court found that exceptions should not be allowed unless where the Convention itself provides for those exceptions.

From the law cited above, and case law, it is clear that claims arising out of carriage by air, are exclusively governed by the Warsaw Convention. Where the Convention provides no remedy it follows there is no remedy. The reason is so as to achieve a uniform application of air carriage laws without resorting to domestic law. It is therefore trite that the cause of action should be premised on the Warsaw Convention.

Having found the above, it is clear or apparent that the plaintiffs cause of action, having been founded on an alleged breach of contract and delict, cannot be sustained at law. See El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US155 (1999).

It is also trite that in terms of the Carriage By Air Act [Chapter 13:04], and the Warsaw Convention, claims are limited to instances of death or wounding of a passenger or any other bodily injury suffered by the passengers.

In the case of Morris v KLM Royal Dutch Airlines, King v Brishow Helicopters Ltd (2002) Z ALL ER 565 (HL) the court had the opportunity to consider the meaning of 'bodily injury' as provided for under Article 17 of the Warsaw Convention. It was held that such expression did not cover “a mental injury or illness that lacked a physical cause.”

See also Portgieter v British Airways/l 2005 (3) SA 133 (C) where a claim for negligently causing psychological shock to a passenger by an employee was dismissed.

Article 17 of the Warsaw Convention provides as follows;

“The carrier is liable for damages sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage took place onboard the aircraft or in the course of any of the operations of embarking or disembarking.”

From a reading of the above, it seems that only physical injury is recoverable under Article 17.

It has been established that purely psychological injury is not sufficient in order to recover under the Warsaw Convention. Once an injury is psychological in nature, it is not recoverable.

In the matter in casu, the plaintiffs have not pleaded that they suffered physical injury leading to psychological injury. It is my view, therefore, that the plaintiffs claim falls outside the purview of the Warsaw Convention. The Warsaw Convention was designed to protect carriers from opportunistic claims as the one in casu.

I am of the view that the exception has been well taken and is upheld…,.

Accordingly I order as follows;

1. The exception be and is hereby upheld.

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

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

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

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

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

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

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

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

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

5. What assets constitute the matrimonial estate?

6. The apportionment thereof.

7. Costs.”

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

PARAGRAPH 14

This paragraph reads as follows:

“Clauses 4 to 13 of this order shall only apply during the period that the defendant and the children remain in Zimbabwe pending their permanent relocation to the United Kingdom, and, thereafter, the plaintiff's rights of access to the minor children and the rights of the minor children and the defendant to maintenance shall be by agreement between the parties or failing which by order of a court of competent jurisdiction.”

In my view, it seems clear, from the wording of paragraphs 4 to 13 of the order, that these paragraphs were meant to be operative only during the period that Mrs Beckford and the minor children were in Zimbabwe before their permanent relocation to the United Kingdom.

Paragraph 14 merely reinforces that.

For example, in terms of paragraph 4 of the order, in respect of which there was no appeal, Mr Beckford was to vacate the matrimonial home, and Mrs Beckford and the children were to have the unfettered right to continue living in the matrimonial home.

It goes without saying that the unfettered right to live in the matrimonial home could only be exercised by Mrs Beckford, and the minor children, before their permanent relocation to the United Kingdom. By providing, in paragraph 14 of the order, that after Mrs Beckford and the minor children have permanently relocated to the United Kingdom, Mr Beckford's rights of access to the minor children, and the rights of the minor children, and Mrs Beckford, to maintenance would be by agreement, failing which by order of a court of competent jurisdiction, the learned Judge in the court a quo took into account the fact that after Mrs Beckford and the minor children have permanently relocated to the United Kingdom different considerations would apply to the issues of Mr Beckford's right of access to the children, and the rights of Mrs Beckford and the minor children to maintenance.

Once again, I find the learned Judge's reasoning unassailable. There is, therefore, no basis for interfering with paragraph 14 of the order.

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

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

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

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

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

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

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

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

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

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

(a)...,.

(b)...,.

(c)...,.

(d)...,.

(e) Whether the Frankfurt award was unenforceable ab initio in the absence of any executable assets belonging to the defendant in Germany....,.

Enforceability without Executable Assets

Under the loan agreements in question (Article 10.3 of Loan No. F2971 and Article 9.3 of Loan No. F3040) the parties expressly agreed that the place of jurisdiction for all litigation in connection with the loans would be Frankfurt/Main in the Federal Republic of Germany.

It is therefore perfectly clear that the defendant specifically submitted to the jurisdiction of the Frankfurt court.

The defendant avers that the Frankfurt judgment could not have been enforced by execution in Germany as the defendant had no executable assets in that country, at that time, to satisfy the judgment in whole or in part.

In this regard, counsel for the defendant contends that the mere submission of the defendant to the jurisdiction of the Frankfurt court is not enough to render its judgment effective.

Counsel for the plaintiff counters that submission to the Frankfurt court is sufficient and that the defendant should have raised the effectiveness of its ruling before that court and not in the present proceedings.

The principle of effectiveness that underlies the law of jurisdiction, in its absolute sense, is that the court will only have jurisdiction if it controls the person or property of the defendant, as the mere consent or submission of the defendant to the jurisdiction of the court affords no absolute guarantee that the court's judgment will be effective: see FORSYTH: Private International Law (4th ed.)…,.

However, as is further explained by the learned author, at pp.215-216:

“Today, the doctrine of effectiveness is artificial and conceptual rather than realistic.

And, indeed, even those cases that would most severely restrict submission do not reject it altogether. Moreover, submission is widely recognised in legal systems across the world as a ground of international competence justifying the enforcement of the judgment of a foreign court to which the defendant has submitted. Thus, on the whole, a judgment based on submission will be effective. It is submitted that effectiveness in this slightly attenuated sense should suffice to justify the exercise of jurisdiction on the grounds of submission. The fact is that most other legal systems…, give wide recognition to and encourage submission as a ground of jurisdiction…,. It is to the benefit of international commerce that this should be so….,. As economic development in Southern and Central Africa proceeds, there is no reason, other than archaic restrictions on the exercise of jurisdiction, why the local courts should not develop an international role akin to that of the Commercial Court in London.”

Similar sentiments predicated on policy grounds were expressed in Richman v Ben-Tovim 2007 (2) SA 283 (SCA)…, where ZULMAN JA observed that:

“There are compelling reasons why…, in this modern age, traditional grounds of international competence should be extended, within reason, to cater for itinerant international businessmen. In addition, it is now well established that the exigencies of international trade and commerce require 'that final foreign judgments be recognised as far as is reasonably possible in our courts, and that effect be given thereto'.”

The enforcement of a foreign judgment requires that the foreign court had jurisdiction, in the international sense, according to the principles of our law on the jurisdiction of foreign courts: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,; SCHULZE: International Jurisdiction in Claims Sounding in Money 2008 20 SA MERC. LJ…,.

Thus, the mere fact that the foreign court may have had jurisdiction under its own laws is not conclusive: see Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W)…,.

The rules for assessing the international jurisdiction of a foreign court are expounded by POLLAK: The South African Law of Jurisdiction (1937)…,. The overall position is summarised…, as follows:

A foreign court has jurisdiction to entertain an action for a judgment sounding in money against a natural person if, at the time of the commencement of the action, the defendant is physically present in the State to which the court belongs or is domiciled or resident within that State or has submitted to the jurisdiction of that court.

According to POLLAK: The South African Law of Jurisdiction (1937) there are no other grounds for jurisdiction.

This summation was cited with approval in Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W)…, and followed in Richman v Ben-Tovim 2007 (2) SA 283 (SCA)…,.

With specific reference to submission as a basis of jurisdiction, the position is reiterated by PISTORIUS: Pollak on Jurisdiction (2nd ed. 1993)…,:

“Submission has been accepted, in our law, as an acceptable basis for international competence.

As in the case of local jurisdiction, submission may be by way of agreement or by a defendant acquiescing by his conduct in such jurisdiction after litigation against him has commenced. In the case of agreement, this may be pursuant to a contract between the parties which specifically provides for submission in the event of disputes or by an express or tacit submission after litigation. Submission by conduct may be difficult to prove, and…., the conduct must be of such a nature that it is consistent only with acquiescence.”

Again, in relation to claims sounding in money, FORSYTH: Private International Law (4th ed.)…, encapsulates the modern law as follows:

“It is widely recognised, by both writers and the decided cases, that submission by the defendant to the jurisdiction of the foreign court grants to that court international competence even if it would not otherwise enjoy that competence.”

As regards submission by agreement, the learned author…, states that:

“In accordance with the general principles of the law of contract, parties may, either expressly or impliedly, enter into binding agreements to submit their dispute to a particular court which might otherwise lack jurisdiction…,; express submission where the parties agree to submit in the ipsissma verba of their contract; provided such submission is valid under its proper law, such an agreement is undoubtedly effective.”

Having regard to the foregoing cases and commentaries, I conclude that a defendant's express submission to the jurisdiction of a foreign court suffices, ipso facto, and without any further jurisdictional ground, to endow that court with the requisite international competence, enabling and allowing the recognition and enforcement of its judgments under the common law.

I am fortified in that conclusion by the policy considerations that I have cited earlier, which are obviously germane to any analysis of international competence according to the principles of our law governing the jurisdiction of foreign courts.

In that context, the tenets of international comity, informed by the inexorable trans-nationalisation of trade and commerce, dictate that our courts should be astute to extend, rather than constrict, the scope of international jurisdiction and competence as regards claims sounding in money.

On that basis, there can be no objection to a more liberal approach that recognises the enforceability of a foreign judgment, founded on the submission of the defendant, whether it be a natural person or an artificial entity, to the jurisdiction of the foreign court in question.

I accordingly take the view, in keeping with principle as well as policy, that the explicit contractual submission of the defendant in casu, to the jurisdiction of the Frankfurt court, suffices for the purpose of recognising its judgment.

This is so regardless of the fact that the defendant may or may not have had any executable assets in Germany at the time of the commencement of the plaintiff's action in Frankfurt.

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.

The second respondent did not file a notice of opposition, and, as a result, the court took it that he will abide by the decision rendered.

The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review.

Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction Number 4, under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives.

Let me hasten to say, that, this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent chamber application.

The first to the third applicants are, respectively, sister, father, and sister of one Genius Kadungure who passed away on the 8th of November 2020 (hereinafter the deceased).

The factual background to the application can be summarised as follows:

The deceased was a well to do person who had business interests in Zimbabwe, Botswana, and South Africa. The first respondent approached the family of the applicants, at the funeral, with a document that she purported was a Will of the deceased though it was not signed. Using undue influence, the applicants accepted the document as the last will and testament of the deceased and recommended the appointment of the first respondent as the executrix of the estate of the deceased.

The first respondent dissuaded the applicants from seeking legal advice indicating that she was also their lawyer.

The second respondent accepted the document as the last Will and testament of the deceased in terms of the Wills Act and also appointed the first respondent as the executor. This was followed by the issuance of Letters of Administration to the first respondent dated the first of December 2020.

The applicants reluctantly worked with the first respondent though they had questions over the will - a copy of which was never furnished to them.

After seeking legal advice, they approached the first respondent who refused to furnish them with a copy of the Will and minutes of a meeting held on the 25th of November 2020. They only managed to obtain copies from the second respondent.

To note is that the Will, which was drafted by the first respondent, confers executorship on her.

She, during the lock down period, attended to disposal of the deceased's Lamborghini motor vehicle in what they term 'hazy' circumstances. This was despite the fact, that, there was no detailed inventory and there was no confirmed distribution account.

FNB Bank in Botswana, where the deceased held an account for his company called Quick Gases (Pvt) Ltd, had extended a loan that had been unpaid since the demise of the deceased. He also left assets in South Africa, in the form of trucks, that were in danger of disappearing if the issues of executorship remained unresolved.

The first respondent had, on the 5th of February 2021, advertised an interim distribution account stating, falsely, that such was lying for inspection at the offices of the second respondent. The latter admonished the first respondent over her false claim.

There is litigation in Botswana over the legitimacy of the first respondent's executorship.

The applicants seek an interim interdict prohibiting any administration of the deceased's estate pending the return date upon which a review of the second respondent's decision to appoint the first applicant as the executrix, and to accept the document in question, will be sought.

The grounds for review are framed as illegality/absence of jurisdiction; fraud; speculation; malpractice; and gross irregularity.

The applicants are further concerned by the following acts which cast the authenticity of the Will in doubt:

(i) The haste with which the first respondent seeks to dispose of the Lamborghini without following due process;

(ii) The invitation by the first respondent for members of the public to inspect an estate account when she has already authorised disposal of the said vehicle;

(iii) The Will makes reference to some persons without stating their actual identities;

(iv) The vehicle arrived in Zimbabwe around the 30th of September 2020, and, its inconceivable that the deceased would have a Will drafted bequeathing it to a third party 23 days after its arrival;

(v) The deceased had a large fleet of vehicles and it is surprising that only the Lamborghini was mentioned in the will;

(vi) The first respondent falsely claimed that she is an attorney and she never wanted to avail the Will to the applicants.

The Will is therefore fake and the estate of the deceased should proceed under intestacy.

The matter is urgent and cannot wait because the applicants are the surviving blood relatives of the deceased and have a prima facie right to protect their interests.

The acceptance of the Will is a legal nullity and there is need to stop the first respondent in her tracks. She is already in the process of disposing of some assets of the deceased estate during the lock down period, more specifically, a Lamborghini motor vehicle, using a distribution account that was never availed nor approved by the second respondent.

Quick Gases (Pvt) Ltd, in which the deceased was the sole director, is in danger of being liquidated after F.N.B Bank in Botswana froze the company's bank account.

The applicants have been given up to the 31st of March 2021 to attend to issues relating to the appointment of the first applicant as executrix.

The first applicant is dissipating the deceased's estate to the permanent and irreparable harm of the applicants in circumstances when her appointment as executrix is a nullity; she has not furnished security to the second respondent for due administration of the estate; and she has not furnished the second respondent with a comprehensive inventory.

Waiting to prosecute a review application during the lockdown period without knowing when it will end will prejudice the applicants who are at risk of losing many assets.

The first respondent continues to take the law into her own hands to the detriment of the applicants.

There is no other alternative remedy to protect the rights of the applicants.

There is real risk that the first respondent, in the absence of a court order, will continue to alienate and dispose of the deceased's assets, and, accordingly, only an interdict will protect the rights of the applicants pending the return date.

The second and third applicants deposed to supporting affidavits in support of the first applicant's averments.

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

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

1. The application is hereby granted.

2. The provisional order granted in this matter is hereby confirmed.

3. It be and is hereby declared that:

3.1 The document registered with the 2nd respondent on 25 November 2020 under DR. No.1771/20 as the will of the later Genius Kadungure ('the deceased') (who died on 8 November 2020) is null and void; and

3.2 The deceased died intestate.

4. The decision of the 2nd respondent, to register and accept the aforesaid document as the last will for purposes of administration of the estate of the deceased in terms of section 8(5) of the Wills Act (6:06) be and is hereby set aside.

5. The 2nd respondent's appointment of the 1st respondent, on 2 December 2020, as the testamentary executrix of the estate of the deceased, and all acts done by the 1st respondent (personally or by other persons at her direction) under and by virtue of such appointment be and are hereby declared null and void.

6. The letters of administration issued by the 2nd respondent, on 2 December 2020, in favour of the 1st respondent, under DR No.1771/20, appointing her as testamentary executrix, be and are hereby revoked.

7. The 2nd respondent shall convene another meeting to appoint an executor of the estate of the deceased which meeting shall be presided over by an official other than the official who presided over the meeting of the 25th of November 2020 or any of the officials who previously dealt with the estate of the deceased; and

8. The 1st respondent shall bear costs of suit on attorney-client scale (in the event that she opposes the application).

INTERIM RELIEF GRANTED

Pending the return date, the applicants are hereby granted the following interim relief:

1. Pending the return date, the 1st respondent is hereby interdicted from, in any way, administering, or dealing in the estate of Genius Kadungure ('the deceased') in Zimbabwe, Botswana or South Africa; and

2. The 2nd respondent, or any other person acting on his behalf, be and is hereby interdicted from (without the leave of this court) accepting for filing any document by, or acceding to any request from, the 1st respondent under DR. No.1771/20 save and except for the purposes of relinquishing the letters of administration issued hereunder.”

The first respondent strenuously opposes the application and raises several points in limine as follows:

(1)...,.

(2) The applicants are seeking to interdict conduct outside this court's jurisdiction specifically in Botswana and South Africa....,.

The first respondent visited the jurisdictions of Botswana and South Africa on the strength of the unsigned Will that had been accepted by the second respondent for purposes of administration. The will itself specifically mentions Zimbabwe, Botswana, and South Africa as countries in which the deceased had assets.

The first respondent has commenced litigation in the High Court of the Republic of Botswana.

In that matter, her capacity is said to be administrator of the estate of the late Genius Kadungure. She is suing one Leo Chiweshe. Part of the relief that she seeks is that she be declared the legally nominated executor of the estate of the late Genius Kadungure.

In view of the pending matter, this court will have no jurisdiction to make an order interdicting the first respondent as that will be tantamount to interfering with ongoing litigation in the Botswana jurisdiction.

Seemingly, nothing has been done in relation to the estate of the deceased in the Republic of South Africa.

The Administration of Estates Act Number 66/65 in that country (the Act) deals with administration of deceased estates - including those of foreigners who leave assets upon death.

In terms of section 13(1) of the Estates Act No.66/65, no person may deal with assets of a deceased left in the Republic whether s/he was ordinarily resident unless authorised by the Master of the High Court in South Africa.

The Letters of Administration received by the first respondent, in Zimbabwe, do not entitle her to deal with the assets of the deceased in South Africa unless she is authorised by the Master of the High Court in that country.

In terms of section 4(1)(b) of the Estates Act No.66/65, any Master to whom an application is made to grant Letters of Executorship or to sign or seal any such letters already granted in respect of an estate has jurisdiction in a foreign estate.

Section 22(2)(c) of the Estates Act No.66/65 states, that, a person who applies for Letters of Appointment issued in another State must lodge a declaration under oath with the Master that issues Letters of Executorship. S/he must state that such have not already been granted or signed and sealed by any other Master in the Republic.

There are special provisions relating to what are known as 'proclaimed' States of which Zimbabwe is one of them.

This is in terms of section 40 of the Administration of Estates Act 24 of 1913.

In terms of section 21 of the Estates Act No.66/65, the Master may, instead of issuing Letters of Executorship for estates of foreigners, merely sign and seal the Letters of Appointment already issued in the foreign State.

The first respondent may therefore follow such a course of action.

In my view, should the court be inclined to grant the interdict, there will be nothing amiss in interdicting the first respondent from presenting the Letters of Administration granted to her in Zimbabwe in the Republic of South Africa pending the return date.

The simple reason is that the applicants are seeking the revocation of the Letters of Administration issued to the first respondent under DR No.1771/20.

The outcome of the review process will therefore determine how the administration of the estate in the Republic of South Africa, in relation to the assets left by the deceased, will proceed....,.

1....,.

2....,.

3. The first respondent be and is hereby interdicted from presenting the Letters of Administration issued to her in Zimbabwe under DR No.1771/20 to the Master of the High Court in the Republic of South Africa for purposes of the administration of the deceased's estate in relation to assets in that country.

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

This is an application for review of the second respondent's decision in which he declined to stay proceedings before him in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] (the Act).

The background to the matter is that the applicant is a company duly incorporated in terms of the laws of Zimbabwe, which is in the business of growing coffee, macadamia nuts, avocados, and maize.

On 8 July 2010, the applicant registered a request for arbitration with the International Centre for Settlement of Investment Disputes (ICSZD), against the Government of Zimbabwe (State), in relation to land which the applicant lawfully owned and occupied before a dispute arose with the State.

The State subsequently defended these proceedings which are pending.

On 28 April 2011, a director of the applicant, Bernard Alexander Josef von Pezold (Pezold) was summoned to appear at Chipinge Magistrates Court facing charges of contravening section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

It was alleged, that, the applicant continued in occupation of gazetted land without lawful authority.

In his defence, the applicant denied the allegations and asserted, that, the State is prohibited from bringing the charges under the Constitution of Zimbabwe, the statutes, and international laws ratified by the State.

The applicant relied on Article 26 of the convention which deals with the effect of arbitration and section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] which deals with stay of court proceeding where the matter is within the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSZD).

The applicant then mounted an application for stay of proceedings in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

It is this application that was dismissed by the second respondent which is the subject of this review.

The following are the grounds for review as set out in the Court Application:

“(i) The effect of section 7 of the Arbitration (International Investment Disputes) Act [Chapter 7:03] ('the Act') as read with Article 26 of the International Convention on Settlement of International Disputes Convention (18 March 1965), ratified by the respondent on 20 May 1994;

(ii) The significance of the Bilateral Investments Protection and Promotion Agreement (BIPPA) between Zimbabwe and Germany;

(iii) The effect of section 16(9b) of the Constitution of Zimbabwe on the dispute;

(iv) The difference between ownership and occupation, and, as such, the fact that the applicant had a residual right with respect to occupation;

(v) Instead, he erroneously suggested, that, a separate but related constitutional application had been dismissed by the Magistrates Court on the alleged ground that the applicant was abusing court process; and

(vi) He erroneously reasoned, that, because a previous application, on with the same parties, on a different cause of action, had been dismissed, therefore, the application before him was to be dismissed.”

The application is opposed.

The opposing affidavit was filed by the trial magistrate, the second respondent.

The applicant took issue, in limine, with the propriety of the second respondent deposing to the opposing affidavit.

It was submitted, that, the second respondent needed no protection which would justify his mounting of this opposition. The proper course would have been for a representative of the first respondent to depose to the opposing affidavit.

The respondents did not make any submissions in opposition to this point.

In Leopard Rock Hotel (Pvt) Ltd v Wallen Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) at 278B-F, the following was stated:

“Such belief in the mind of the reasonable litigant is bound to be heightened by the fact, that, not only has the arbitrator refused to recuse himself, but, he has descended into the arena of battle by actively participating in the proceedings for his removal and making common cause with the party maintaining that he should not recuse himself.”

The court continued at 279B-F:

“In my view, in circumstances such as these, an arbitrator, umpire, judge or other adjudicating body has one of two choices. The first is that he could file an affidavit setting out facts which he considers may be of assistance to the court. So long as such facts are stated colourlessly, no-one could object; but, if the affidavit should err plainly in support of one of the parties, it might expose the adjudicator to the odium of the court.

It is most undesirable that any arbiter or other adjudicator of a dispute should appear to be pitching camp with, or rendering assistance to, one of the contestants to the dispute before him: for, the other party is likely to gain that impression that the arbiter and his adversary are conspiring against him: and such an impression would reinforce his belief that the arbiter is biased against him: see the remarks of McNALLY JA in Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) at 148.

When the arbiter makes common cause with one of the parties in such proceedings, any façade of justice is shattered; the arbiter is seen to have descended into the arena with the possible consequential blurring of his vision by the dust of battle. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.

The second choice of the arbitrator or umpire, when served with notice of motion for his removal, or to set aside his award, is to take no action and abide by the court's decision.”

The proper approach in this matter would have been for the second respondent to set out facts which he considered would be of assistance to the court and end there. In the alternative, he would have asked a representative of the first respondent to file the opposing affidavit on behalf of the respondents rather than file an affidavit where he clearly supports one side.

The grounds upon which this court can exercise its powers of review are laid down in section 26 of the High Court Act [Chapter 7:06]. These have been canvassed in a number of authorities in our jurisdiction.

In Tenesi v PSC 1996 (2) ZLR 44, quoted with approval in Ramilewa v Secretary of the Public Service Commission 1988 (1) ZLR 257 (H)…, GREENLAND J quoted with approval from SA Defence and Aid Fund and Anor v Minister of Justice 1967 (1) SA 31 (C), where CORBETT J…, said…,:

“The court can interfere and declare the exercise of the power invalid on the ground of a non-observance of the jurisdictional fact only where it is shown that the repository of the power, in deciding that the pre-requisite fact or state of affairs existed, acted mala fide or from ulterior motive or failed to apply his mind to the matter: see eg Minister of the Interior v Bechler and Others supra [1948 (3) SA 409 (A)]; African Commercial and Distributive Workers Union v Schoeman NO and Another 1951 (4) 266 (T); Sachs 1953 (1) SA 392 (A).”

In casu, the applicant contends, that, the second respondent failed to address his mind to the issues before him. He asked himself the wrong question, and, as a result, addressed the wrong question.

The position, in such cases, was laid down in Bridges & Hulmes P/L v The Magistrate, Kwekwe & Ors 1996 ZLR 189 (HC)…, where it was stated:

“Because of the wrong question of law, he directed his inquiry at matters he should not have considered and failed to apply his mind to the matters in issue.”

In casu, the applicant had previously applied for referral to the Supreme Court of certain questions relating to the violation of the Declaration of Rights.

What was sought in that application was a determination of whether or not the applicant had been denied the right to the protection of law as guaranteed under section 18(1) of the Constitution.

The magistrate dismissed the application.

In the proceedings under review, the applicant made an application in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03].

Section 7 of the Arbitration (Resolution of International Investment Disputes) Act provides:

“7. Stay of court proceedings where matter within jurisdiction of Centre

If any proceedings are instituted in any court in regard to any matter which, under the Convention, is required to be submitted to the Centre for conciliation or arbitration, any party to the proceedings may apply to the court to stay the proceedings, and the court, unless satisfied that the matter is not required to be submitted to the Centre under the Convention, shall make an order staying the proceedings.”

The applicant argued, before the second respondent, that, the criminal proceedings before him were proceedings within the contemplation of section 7 of the Arbitration (Resolution of International Investment Disputes) Act. He therefore applied for relief pending the determination of related proceedings in the International Centre for Settlement of Investment Disputes (ICSZD) to which the Arbitration (Resolution of International Investment Disputes) Act applied.

The second respondent was therefore enjoined to interpret section 7 of the Arbitration (Resolution of International Investment Disputes) Act and determine whether or not the proceedings before him fall under the definition of proceedings as enunciated in the section.

The second respondent did not address his mind to this issue, but, instead, said the following:

“It is important to note, that, this application is preceded by another application under section 24(2) of the Constitution of Zimbabwe wherein was sought a referral of the matter to the Supreme Court of Zimbabwe for the resolution of what the applicant alleged were constitutional questions. The application was dismissed by this court and the reasons for the dismissal are filed of record.

The instant application was opposed by the State on the grounds, inter alia, that the applicant was abusing court process by bringing the same application before the Court which had already made its decision on it.

I do not see the difference, in essence and content, between the two applications.”

Clearly, the magistrate fell into error, as did the magistrate in Williams & Anor v Msipa N.O. and Anor SC22-10.

In that matter…,MALABA DCJ observed:

“The reasons for the refusal by the magistrate of the request by the applicant for the referral to the Supreme Court of the two constitutional questions show that he raised, for his consideration, the false issue of the postponement of the trial.”

In casu, the magistrate raised the false issue, that, the present application, being made in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act, is the same as an application made for the referral of a constitutional issue to the Supreme Court.

This was not the same application. The issues are clearly different.

In the first application, the relief sought was referral to the Supreme Court on the basis that the prosecution was a breach of the applicant's fundamental rights.

What the second respondent was required to determine was whether the request was frivolous and vexatious.

This question did not arise in the present proceedings.

What the second respondent was required to determine, in the proceedings under review, was whether prosecution of the applicant amounted to 'proceedings' within the contemplation of section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

If he had found in the positive, the second respondent would have no discretion. The section is couched in peremptory terms.

It is clear, that, the second respondent failed to apply his mind to these differences of substance.

He considered, that, the two distinct and separate applications that required distinct and separate jurisdictional facts for the determination, were the same.

The reasoning of the second respondent falls within the four corners of what has come to be known as the Wednesbury principles, namely, that:

“It is true to say, that, a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the court can interfere.”

See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 ALL ER 280.

The second respondent, in its opposing affidavit and in his Heads of Argument, does not address the pertinent question whether the proceedings before him were 'proceedings' as contemplated by section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

There is no mention of section 7 of the Arbitration (Resolution of International Investment Disputes) Act in his Heads of Argument at all.

He did not apply his mind to the real issue before him.

Before I conclude, I would want to observe, that, the second respondent, in his opposing affidavit, took offence by the adoption of the Wednesbury formulation in the court application.

He felt that it was contempous of his office and that of the entire judicial system.

Whilst the expression that the second respondent had “taken long leave of mind” might have gone over board, it is not uncommon to find, in court judgements, expressions such as 'no reasonable authority could ever have come to it:' see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 ALL ER 280; 'He just did not apply his mind to the consideration of that question:' see Williams & Anor v Msipa N.O. and Anor SC22-10 …,.

This is not meant to be an attack on the person of the second respondent or his office.

This might also support the applicant's contention, dealt with earlier on in the judgment, that, the opposing affidavit should have been done by a representative of the Attorney General.

Having found, that, the second respondent failed to apply his mind to the issue before him, I will therefore make the following order:

(1) The order of the court a quo be and is hereby set aside.

(2) The matter is remitted to the court a quo for determination before a different magistrate.

(3) That the respondents pay costs on a legal practitioner/client scale, jointly and severally, the one paying the other to be absolved.

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Jurisdiction re: International Jurisdiction, Territorial Sovereignty and the Theories of Lex Causae and Lex Fori

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

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

HH16-09 : RICHARD ETHEREDGE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LANDS, LAND REFORM AND RESETTLEMENT and SENATOR EDNA MADZONGWE
Ruled By: GOWORA J

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

View Appeal
SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

HH192-15 : JAMILA MOKBEL vs HASSAN MOKBEL
Ruled By: UCHENA J

HH28-03 : CHRIS ROBERTS vs AIR ZIMBABWE CORPORATION
Ruled By: HUNGWE J

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

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

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

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

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Law Portal Zimbabwe

Jurisdiction re: International Jurisdiction, Territorial Sovereignty and the Theories of Lex Causae and Lex Fori

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

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER) Ruled By: PATEL J

HH16-09 : RICHARD ETHEREDGE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LANDS, LAND REFORM AND RESETTLEMENT and SENATOR EDNA MADZONGWE Ruled By: GOWORA J

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

View Appeal SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

HH192-15 : JAMILA MOKBEL vs HASSAN MOKBEL Ruled By: UCHENA J

HH28-03 : CHRIS ROBERTS vs AIR ZIMBABWE CORPORATION Ruled By: HUNGWE J

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD Ruled By: MATANDA-MOYO J

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

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

View Appeal HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.) Ruled By: CHIRAWU-MUGOMBA J

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O. Ruled By: MAKONI J

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Law Portal
Zimbabwe

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

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

HH16-09 : RICHARD ETHEREDGE vs THE MINISTER OF STATE FOR NATIONAL SECURITY RESPONSIBLE FOR LANDS, LAND REFORM AND RESETTLEMENT and SENATOR EDNA MADZONGWE
Ruled By: GOWORA J

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

View Appeal
SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

HH192-15 : JAMILA MOKBEL vs HASSAN MOKBEL
Ruled By: UCHENA J

HH28-03 : CHRIS ROBERTS vs AIR ZIMBABWE CORPORATION
Ruled By: HUNGWE J

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

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

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

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J