The parties have met in round table conferences in the presence of their respective legal practitioners, resulting in settlement of some of the issues.

The parties, just before the commencement of this trial, reduced their settled issues into writing in the following manner:-

“(1) A decree for divorce in favour of the plaintiff.

(2) Custody of the minor child of the marriage, namely Marvin Mudenda, born on the 30^th October 1992, be and is hereby awarded to plaintiff.

(3) Defendant be and is hereby ordered to contribute US$250= [later reduced, by consent, to US$150=] [per month] towards the maintenance of the minor child aforementioned.

(4) Stand Number 3744 Bulawayo Township of Bulawayo Township Lands, also known as number 3 Browning Road, Malindela, should be registered in the names of the children of the marriage in equal shares, namely:

4.1 Marcel Mudenda born on the 23^rd September 1987;

4.2 Melanie Mudenda born on the 3^rd of October 1989;

4.3 Marvin Mudenda born on the 30^th of October 1992;

Provided that plaintiff shall have exclusive usufruct of the property until she dies, or remarries, whichever first occurs.

(5) Plaintiff and defendant shall, within seven days of this order, sign all necessary papers for the transfer referred to above, and the plaintiff's legal practitioners shall attend to the said transfer, at the cost of both parties in equal shares.

(6) Plaintiff and defendant shall agree on the value of Stand Number 12028 Bulawayo Township Lands up to the slab level within fourteen days of this order, failing which the parties' legal practitioners shall approach a valuator, to be paid by both parties in equal shares, to give value to the said Stand up to slab level, and, in either event, the defendant shall be given the option to buy out the plaintiff of her share herein within sixty days of valuation failing which property shall be sold and therefrom levied plaintiff's half share of the property, as expressed in the valuation or agreement, as the case may be.”

When the trial started, the defendant, however, changed the above settled issues.

Item (1) was made an issue, i.e. the defendant now says the marriage has not irretrievably broken down.

Under item 4.3, the defendant wants a condition added to the effect that the property shall not be disposed of by the children before the youngest child attains the age of twenty-one years.

At some stage, a default judgment was granted against the first respondent. Under case number HC667/08, the first respondent applied for rescission of the default judgment.

The parties, after filing heads of argument, and the matter having been set-down for hearing, reached a settlement. The settlement culminated in a consent order dated 14 January 2009, phrased as follows -

“It is ordered that:-

1. Judgment granted is default in case number HC197/07 and X-Ref HC2794/07, 341/07, on the 21^st February 2008 be and is hereby rescinded.

2. Applicants application case no. 1623/07 for the dismissal of the main action, case no. HC197/07 be and is hereby withdrawn.

3. The applicants supplementary affidavit filed under HC667/08 be and is hereby incorporated as pleadings under case no.HC197/07.

4. The respondents are granted leave to file any answer, in they so wish, to the supplementary affidavit, within 15 days of this order.

5. The parties be and are hereby directed to file heads of argument within 10 days after the filing and service of the answer to the supplementary affidavit or expiry within which the answer is to be filed.

6. Pending the finalization of the main action, case no. HC197/07, the parties shall continue to peacefully co-exist at the farm in dispute.

On 4 December 2008 it, second applicant, then commenced the process of loading the tobacco in the barns for purposes of having the tobacco cured. On 6 December 2008 the first respondent came to the farm and had a discussion with Robert Strong. He said that if the applicants wished to continue using the barns they had to pay for them. He said that he himself had no use for the barns as he had not grown any tobacco. The first respondent had then left but returned a short while later to threaten the applicants' workers from returning to work the following day. On 7 December 2008, the first respondent turned up armed with a pistol and locked all the gates. A report was made to the police, and, subsequently, an urgent application filed with the court in 11 December 2008 resulted in the court issuing a mandament van spolie against the first respondent. The order sought by the applicants was granted with the consent of the respondent and resulted in the applicants being restored possession of the disputed items, and, in addition, a temporary interdict was granted against the first respondent preventing him from interfering with the applicants and their employees. That Order was to be effective up to 15 April 2009.

When the parties appeared before me for trial on 21 June 2010, they had agreed on all the outstanding issues except the issue of the motor vehicles. Counsel for both parties tendered a document titled “Consent Order” duly signed by the parties' respective legal practitioners. That document reflected what the parties had agreed to as confirmed by their legal practitioners. Counsel submitted that the document be taken as the parties' agreement on the dissolution of the marriage and the distribution of the matrimonial estate.

The parties', having agreed on almost all the issues, it remained for this court to decide on whether the marriage had irretrievably broken down or not and also on the distribution of the two motor vehicles that they had not agreed on, namely, the Mazda B1800 and the Opel Kadett.

On 23 March 2010 the applicant filed an urgent application in this court for a provisional order meant to entitle it to the following relief -

“Terms of Final Order Sought

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

1. The first respondent be and is hereby ordered to give the premises known as Stand 24A Chadcombe, Harare to the applicant, unless and until the Supreme Court orders otherwise.

2. The first respondent be and is hereby ordered to pay costs of suit on a Legal Practitioner and Client scale.

Interim Relief Granted

Pending the confirmation or discharge of this Provisional Order the applicant is granted the following interim relief:-

1. The second respondent and all those acting for him or claiming occupation or use through him be and are hereby interdicted from plying their business from premises known as Stand 24A Chadcombe, Harare.”

The urgent application was placed before PATEL J, and, on 29 March 2010, the parties consented to the following order -

“It is ordered by consent that:-

1. The matter shall proceed as an ordinary application in terms of the Rules subject to the following:-

2. Rockmount Trading (Private) Limited be and is hereby substituted as the second respondent in this matter.

3.The applicant shall file its answering affidavit by the 6^th day of April 2010.

4. The second respondent shall file any further notice of opposition by the 6^th day of April 2010.

5. The applicant shall file Heads of Argument by the 8^th day of April 2010.

6. The applicant shall index and paginate the record by the 13^th day of April 2010.

7.Thereafter, the Registrar is directed to forthwith set the matter down on the opposed roll.

8. The costs of the present application shall be costs in the cause.”

This application has now been placed before me in terms of the above order. The parties have since complied with the consent order.

With the urgent application having been turned into an ordinary application, it means the interim relief originally sought now falls away and the application is now based on the final order, namely an order “giving the premises to the applicant unless and until the Supreme Court orders otherwise; and an order for the respondents to pay costs of suit on a Legal Practitioner and Client Scale.”

On 1 August 2007 the applicant herein, under Case No.HC4094/07, issued summons against the respondent herein claiming special damages in the sum of $4,102,500,000= in Zimbabwe dollars. The respondent (defendant) entered an appearance to defend and the matter proceeded in due to be set down for trial. A few days before the matter was due to be tried on the continuous roll the defendant filed a consent to judgment as set out in the summons and declaration. On 4 January 2009 judgment was entered for the applicant (plaintiff) in accordance with the consent filed by the defendant. The plaintiff has now launched these proceedings to have the judgment entered in its favour set aside.

The defendant opposes the application.

The founding affidavit sets out the facts leading to the granting of the judgment as follows. The plaintiff filed summons under Case No. HC4094/07 alleging breach of contract on the part of the defendant and seeking the payment of special damages arising out of the breach; the parties filed pleadings resulting in the matter being set down for a pre-trial conference before a judge in chambers. At the pre-trial conference the defendant offered to settle the matter by paying the sum claimed on the summons. The plaintiff declined to accept the offer and its representative advised that the plaintiff would be filing an amendment of the claim before the trial. The deponent avers that the judge before whom the matter was set down for the pre-trial conference raised the issue of the replacement of the bus for the engine. The plaintiff's representative indicated that the issue would be dealt with just before the trial. In the result, the matter was referred to trial on the understanding that the plaintiff would be filing an amendment to its claim before the trial. The matter was set down for trial on 19 January 2009. On 13 January 2009 the defendant's legal practitioners wrote to the plaintiff's legal practitioners to the effect that they had filed a consent to judgment in terms of the summons. The letter, which was served upon the latter, was received on 15 January 2009 as the date stamp thereon will show. The consent to judgment was actually filed on 14 January, even though it was signed on 13 January 2009. On 15 January 2009 the plaintiff also filed an application to amend its claim. However, unbeknown to the plaintiff the consent to judgment that had been filed by the defendant on 14 January 2009 had been granted the same day by the trial judge in chambers. The plaintiff's legal practitioners, unaware that judgment had been entered in their client's favour in terms of the summons, had written to the defendant's legal practitioners on 15 January 2009 responding to the letter of 13 January 2009. The response was to the effect that it had always been the intention of the plaintiff to amend its claim, which position the defendant and its legal practitioners were aware of. In the event, the plaintiff would not accept the consent and the cheque tendered under cover of the letter of 13 January 2009 was returned to the defendant.

A judgment obtained by consent, may, in terms of the Rules of the High Court, be set aside if the applicant shows that there are good and sufficient grounds for it to be set aside. Order 8 Rule 56 provides -

“A judgment given by consent under these rules may be set aside by the court and leave given to the defendant to defend or to the plaintiff to prosecute his action, such leave shall only be given on good and sufficient cause and upon such terms as to costs and otherwise as the court deems fit.”

Over the years, courts have laid out general guidelines as to what would constitute good and sufficient cause, and three broad considerations have been accepted as the factors to be taken into account when determining what would constitute good and sufficient cause. These are -

(i) The explanation given by the applicant for his default;

(ii) The bona fides of the application to rescind the judgment;

(iii) The bona fides of the merits of the defence; See Du Plessis v Hughes N.O. 1957 R&N 706 (H) and Georgias & Anor v Standard Chartered Finance Zimbabwe 1998 (2) ZLR 488.

According to the plaintiff, the court herein has sufficient cause to set aside the judgment, because, as the plaintiff complains, the defendant snatched at a bargain resulting from the circumstances prevailing in the economy by consenting to judgment in the sum on the summons when it well knew that the plaintiff intended to amend its claim as the amount on the summons had no appreciable value and that the plaintiff had indicated, through its legal practitioners, that it intended to file an amendment of the claim. The refusal by the defendant to have the judgment set aside is described by the plaintiff as 'snatching at a judgment.'

The procedure whereby a judgment may be granted by consent is provided for in Order 8. The relevant Rules are Rule 54 and Rule 55 which provide as follows -

“54. Requisites to consent to judgment

 A consent to judgment shall be in writing and be signed by the defendant personally or by a legal practitioner who has entered appearance on his behalf. The defendant's signature shall be verified by an affidavit made by someone other than himself, or by the signature of a legal practitioner acting for him and not the opposite party.

55.    Judgment or Order

Upon filing a consent to judgment with the Registrar the plaintiff may make a chamber application for judgment and thereupon may be given an order made according to such consent.”

The plaintiff suggests that since this was a judgment it did not seek the court has good and sufficient cause to set the judgment aside. The plaintiff contends that the court could only have granted the judgment upon application by the plaintiff and that, in the absence of such application the court did not have grounds for entering the judgment in question. The plaintiff also contends that the judgment given did not discharge the defendant's liability. Although there are no cases in point on this issue counsel for the plaintiff has referred me to two case authorities, viz; Lambert v Mainland Deliveries [1977] ALL ER 826 and Molete v Union National South British Conference Company 1982 (4) SA 178. In the former case, MEGAW LJ observed...,-

“...,.I would, however, say this also: that it is a jurisdiction which ought to be exercised with very great care, and it may well be that the cases in which it falls to be exercised should only be rare. It is desirable that litigation, once apparently finished, including litigation finished by means of payment into court which is either of the full amount claimed or an amount accepted deliberately by a plaintiff, ought not lightly to be allowed to be re-opened. But that there are such cases where the court has such jurisdiction is, I should have thought, apparent from the examples that were discussed during the argument before us. If, for example, the claim put forward in the county court by a plaintiff was one which contained a simple mistake as to the amount (as for example, LAWTON LJ suggested in the course of argument, by the omission of a '0' in the amount of the claim making it 150 pounds instead of 1,500= pounds) it would be absurd indeed if it were suggested that the defendant, having received the particulars of the claim, should be in a position to then promptly pay 150= pounds into court and then to say: “The result under the rule, is that this action is stayed and cannot be re-opened.” Another example, which I put forward during argument is: supposing a plaintiff discovers, when it is nearly time for trial, that the damage he has suffered is substantially increased by reason of some event over and above what he has included in his particulars of claim. As a matter of courtesy, he, or his solicitors, notify the opposing side that he will amend particulars accordingly. Is it possible that the law is that in those circumstances a defendant receiving information could promptly make a payment in of the sum at that moment included in the particulars of claim and then say; 'Well that is the end of it. This action is stayed. You, the plaintiff, may not amend your pleadings because the action is stayed and the court has no right to remove the stay'? It cannot be so. There must be, as was said by GREEN MR, cases in which the court has the power to set aside a stay.”

Both counsel are agreed that the Rules permit a plaintiff, where the defendant has filed a consent to judgment, to make a chamber application for the judgment to be granted in its favour, and that the court seized with the trial then entered judgment. The respondent concedes that the judgment, stricti sensu, was not entered in accordance with the procedure set out in Order 8 of our Rules of Court.

The question that then must be asked is whether this error is sufficient to constitute good and sufficient cause.

This court, can, however, set aside such judgment on the basis that good and sufficient cause having been established.

The respondent has sought reliance on Washaya v Washaya 1989 (2) ZLR 195 (H) in which case the court was concerned with an application to set aside a judgment granted by consent where the legal practitioner had apparently consented without instructions to do so from his client. The court therein found that even though the legal practitioner might not have been accorded instructions to consent, nevertheless, under the common law such consent was recognisable and would bind the affected party.

I agree with counsel for the applicant that the circumstances surrounding the judgment in the Washaya v Washaya 1989 (2) ZLR 195 (H) case are different and distinguishable from the present. In the Washaya v Washaya 1989 (2) ZLR 195 (H) case the court was dealing with a consent properly filed by a legal practitioner and on the basis of which the court duly entered judgment in favour of the applicant. The plaintiff therein actually prayed for judgment to be entered in the amount in respect of which the defendant had consented to the judgment. In the present case, the plaintiff did not apply for the default judgment, and, instead, it was the court which mero motu then granted judgment in favour of the plaintiff. This, presumably, is the error that the plaintiff is adverting to when it applies for the setting aside of the judgment on good and sufficient cause.

Can this court then conclude that the judgment was entered in error and thus find that such error constituted good and sufficient cause?

In terms of our Rules, when a defendant files a consent to judgment, the plaintiff may apply, through the Chamber Book, for judgment in terms of the consent filed by the defendant. In casu, the plaintiff did not file an application for the judgment to be entered. In effect, therefore, the judgment was not granted through consent by both parties to the dispute. It was in fact granted by the court mero motu. It is for this reason that the plaintiff wishes to have the judgment set aside because it never consented thereto. The plaintiff has referred to two passages in the Washaya v Washaya 1989 (2) ZLR 195 (H) judgment which I respectfully agree with. The first..., is stated in these terms -

“It is stating the obvious, but it does require stating, that for such a judgment to have any validity the essential ingredient of consent must be present. What is more, the court must be satisfied as to the presence of consent. It is for this reason that both in South Africa and Zimbabwe the governing rules prescribe, in clear and peremptory terms, the form a consent to judgment must take.”

And later at 201E-F -

“It is clear, in terms of these precedents, common sense, and justice that once a court is not satisfied that a party consented to judgment then that party is entitled to restitutio in intergrum. Put differently, had the court granting the judgment been aware that the party had not consented it would not have acceded to the request that it enter judgment. The judgment must, therefore, be set aside.”

In the premises, I find that there is good and sufficient cause to have the consent judgment entered into on 14 January 2009 to be set aside.

In the result it is ordered as follows -

1. The judgment of this court dated 14 January 2009 be and is hereby set aside.

On 7 February 2001, the first applicant and the respondent entered into a lease agreement in terms of which the respondent leased to the first applicant certain premises known as the Boka Tobacco Auction Floors.

On 24 December 2010, in HC9478/10, by the consent of all the parties herein, this court issued an order in terms of which the respondent herein was allowed reasonable access to the leased premises on the following conditions:

“1.1 The access shall be restricted to inspection of the premises and causing necessary repairs thereof.

1.2 The access shall be exercised upon reasonable written notice being given to the respondents, through their Chief Executive Officer or the Security Manager, at least 48 hours before the initial visit to allow proper co-ordination and facilitation of the exercise after which oral notice to the said company representatives shall suffice.

1.3 The applicant be and is hereby directed not to exceed the limits of clause 14 of the lease agreement executed by the parties on 7 of February 2001.”

The above order ought to be understood in the context that the applicants herein were the respondents in HC9478/10 and the respondent herein was the applicant.

In casu, the applicants contend that “the respondent has exceeded the limits of the order and is seeking to achieve an ejectment of the applicants without following due process.” They allege that the respondent broke into the premises and also made indications that there would be massive demolitions on part of the premises. They also allege that the respondent's representative also advised subtenants on the premises that they were to remove their property from the premises as the respondent would be undertaking extensive demolitions, alterations and additions to the premises. The respondent allegedly also caused the demolition of two pillars holding the main gate, removed asbestos roofing on the parking sheds and also removed the steel poles. The respondent allegedly also caused the erasure of the applicants' signage inscribed at the reception doors and on the premises and has proceeded to have its own name inscribed on the signage.

The applicants therefore seek, in casu, a provisional order in the following terms:

1. INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicants be and is (sic) hereby granted the following relief:

(a) That the respondent be and is hereby interdicted from carrying out any ejectment of the applicants and all those claiming occupation through them from, and or interfere with the business of the applicants and the sub-tenants at the premises situate at 13km peg Simon Mazorodze Road, Harare without the authority of an order of a competent court.

(b) The respondent be and is hereby interdicted from conducting the business of Tobacco Auction Floors on the premises which form subject matter of the Lease Agreement executed between the parties on the 7^th of February 2001 until resolution of all disputes relating to, or arising from, the Lease Agreement which are currently pending in this court in cases number HC9478, HC7005/10, HC8312/10 and HC7324/10.

(c) The respondent be and is hereby directed to, restore, at its cost, the applicants' signage at the premises in issue within twenty four (24) hours of this order being made failing which the applicants shall restore same at the respondent's cost.

(d) The repairs to be effected pursuant to the order made on the 24^th of December 2010 be and are hereby suspended pending finalisation of the matters pending in this court in cases number HC7055/10, HC8312/10 and 7324/10.

TERMS OF FINAL ORDER SOUGHT

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

(a) That the provisional orders issued in this matter be and are hereby confirmed.

(b) That the respondent shall pay the applicant's costs of suit on the applicable scale in terms of the Law Society Tariff for fees charged by legal practitioners, or, alternatively, costs on an attorney-client scale be and are hereby granted to the applicants”.

The respondent denies that it intends to unlawfully evict the applicants.

The respondent's legal practitioner submitted that it is rather the applicants who have, without the authority of a court order, barred the respondent from entering or accessing the premises in defiance of the consent order of 24 December 2010.

On 17 February 2011, a consent order was issued by this court in HC1151/11 in the following terms:

“IT IS ORDERED:

That first respondent be and is hereby ordered to reconsider applicant's husband application (sic) for an extension of his Provisional Restriction Notice for a further 90 days.

That in the event of the first respondent declining to extend the applicant's husband permit (sic), and applicant's husband appealing to the Second Respondent, First Respondent be and is hereby ordered to release the applicant's husband from Harare Remand Prison until the determination of  applicant's husband appeal (sic) by the Second Respondents.

That the Notice to Prohibited Person be suspended.

That each party pays its own costs.”

The applicant has now filed this urgent chamber application and contends that the first respondent has complied with the first part of the consent order and has since declined to extend her husband's permit. Her husband has appealed against the decision. Despite such appeal being made, she contends the first respondent has refused to release her husband. She contends that in terms of the consent order quoted above, and in view of the first respondent's refusal to release her husband, this court should now order the first respondent to so release her husband.

The applicant thus seeks a Provisional Order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause why a final order should not be made in the following terms:-

1. That First Respondent be committed to prison for ninety days for his contempt of this honourable Court particularly his defiance and contempt of this Honourable Court's Consent Order in Case No. HC1151/11 granted on 16 February 2011. (sic)

2. That the first respondent pays the costs of this application on an attorney/client scale. (sic)

INTERIM RELIEF GRANTED

Pending the final determination of this matter, the applicant is granted the following relief:-

(a) That within twelve hours of the service of this Order upon the First Respondent to show cause why a Final Order should not be made in terms of the Final Order sought herein.

(i) First Respondent is ordered to release the applicant's husband, Emmanuel Chimaobi Udoh, from Harare Remand Prison immediately. (sic)

(ii) That this order shall be effected on First Respondent by the applicant's legal practitioners by service on the Director of the Civil Division of the Attorney-General's Office or on the first respondent personally.” (sic)

Counsel for the applicant submitted that the consent order creates no confusion and that its terms were consciously agreed to by the parties who anticipated that in the event of the first respondent declining the applicant's husband's application, there may be filed an appeal against such a decision. He submitted that the parties agreed that in the event of such appeal being filed, the first respondent would release the applicant's husband from Harare Remand Prison pending the determination of the appeal. Furthermore, he submitted, it was agreed that the “Notice To Prohibited Person”, in terms of which the applicant's husband was arrested and incarcerated, was suspended. Counsel for the applicant further submitted that subsequent to the consent order being granted, on 16 February 2011, the applicant submitted an application to the first respondent on 17 February 2011. On 21 February 2011 the first respondent wrote the letter…., in which he referred to “your recent application for a residence permit…,” and advised that the application “has been refused.” He submitted that this application was made in terms of the consent order; that when it was declined and an appeal was made, it became incumbent upon the first respondent to release the applicant's husband as anticipated by the terms of the consent order. He also submitted that the first respondent had no justification at all for not releasing the applicant's husband in the circumstances and was therefore in contempt of court. The Provisional Order sought must therefore be granted.

In opposing this application, the first respondent contends, in one breath, that the Consent Order has been “religiously complied with”. He contends that the Consent Order compelled him to reconsider the applicant's husband's application for extension of his Provisional Restriction Notice. However, since there was an application of “spousal residence permit” that was already lodged and pending, it was only proper that that application be finalised. This was done, and on the basis of the evidence gathered by the first respondent's officials in Gweru, the application was declined as it had no merit. The applicant's husband was advised accordingly. It is stated, in the opposing affidavit, that it is denied that the first respondent failed to comply with the Consent Order as he, in fact, went a step further by concluding the application for spousal residence permit extension. This, it is stated, is an application that had been pending since 2007 and had not been finalised because the applicant and her husband failed to avail themselves for the process to be concluded. Efforts to locate the applicant's husband at the given address in Harare had proved futile. The applicant's husband was then only arrested in KweKwe in November 2010, and, by then, he had, by operation of law, become a prohibited person and he was notified of this status in terms of section 14(1)(i) of the Immigration Act. This notification was held in abeyance by the Consent Order but after the application for residence permit extension failed, it came into operation as the applicant's husband is a prohibited person by virtue of operation of law. It is for these reasons, it was contended, that he remains in detention….,.

At the hearing, counsel for the respondents submitted that as the first part of the Consent Order requires the first respondent to reconsider the applicant's husband's application for extension of the Provisional Restriction Notice, such reconsideration could only be done if an application had been made with the first respondent. He submitted that no such application was made. He submitted that the second part of the Order does not refer to any Provisional Restriction Notice but to a permit and that as the first respondent issues various types of permits, it is not clear as to what permit the second part of the Order is referring to. As no application was made for a Provisional Restriction Order, and, consequently, no such application was declined by the first respondent, the provisions of the Consent Order were thus not triggered into operation. It was submitted that the application which the first respondent considered and determined was an application for a residence permit and that such application was not made pursuant to the Consent Order. It (the application), had been made in 2007 and the first respondent's letter dated 21 February 2011 was in response to the 2007 application. It was submitted that in the circumstances, the Consent Order places the first respondent under no obligation to release the applicant for these stated reasons.

A perusal of the papers placed before the court shows the following sequence of events. On 17 February 2011 the Consent Order already quoted above was issued. On 21 February 2011 the Principal Director of Immigration wrote a letter to the applicant's husband. It reads:-

“I refer to your recent application for a Residence Permit to the Principal Director.

I regret to advise you that your application has been refused. In terms of s19(2)b of the Immigration Regulations 1998. (sic).

Please bring this notification letter together with your passport to the nearest Immigration Office to finalise on departure arrangements.”

On 22 February 2011, the applicant's legal practitioner wrote to the respondents legal practitioners in the following terms:-

“We refer to the above matter in which an order was granted by Consent on 16 February 2011.

We would have thought as clearly expressed by the Honourable Justice BHUNU, now that the file for Mr Emmanuel Udoh has been found he would by now have been released. The application was for him to be released immediately and not whenever your client wants.

It is a week since the order was granted, and, as expressed on the phone yesterday, there is no legal basis to continue detaining Emmanuel Udoh at all.

The basis upon which he was purportedly detained at Harare Central Remand Prison was the Notice to Prohibited Person which was suspended by consent.

The detainee should have been released immediately on his wife's application for a Permit on a Provisional Restriction Notice whilst the Department of Immigration was processing his permit and we understand this application was done on 17 February 2011.

It cannot surely take a week to process our client's Provisional Restriction Notice. Unless, therefore, our client is released on a Provisional Restriction Notice by close of business on 22 February 2011 we have been instructed to proceed with an Urgent Application for contempt of Court”. (sic)

On 23 February 2011, the respondents' legal practitioner responded to the applicant's legal practitioner as follows:-

“We regret to say your interpretation of the consent order is materially different from ours.

Our understanding of the order is that once the file was located (even though our client insists it never went missing as you allege or at all) it had to process your application. As it were, our client has processed yours application in terms of the Consent (Order) and found it devoid of ment (sic) (merit) and dismissed it. In the circumstances, our client is convinced that he has religiously complied with the Consent Order and is not in contempt as you allege or at all. We hope this clears things up.”

On 24 February 2011, the applicant's legal practitioner wrote a letter to the second respondents on behalf of the applicant's husband, appealing to them to exercise their discretion in the applicant's husbands' favour and order the Department of Immigration to grant him an extension of his permit on the grounds stated in the letter. They also wrote a letter to the respondent's legal practitioners on 1 March 2011 and stated the following:

“We refer to the above matter and advise that your client the first respondent declined to extend our client's permit.

Our client has since appealed to the second respondent. We enclose copy of our client's letter of appeal a copy of which was served on both first and second respondents. Since our client has appealed against first respondent's refusal to extend the permit kindly instruct your client to immediately release our client as ordered in para 2 of the Consent Order. (sic).

We thought your client would by now have complied with para 2 of the Order. Since it was served early on 28 February 2011. (sic) Unless your client immediately releases our client our instructions are to proceed with an application for contempt. (sic) There certainly can be no different interpretation of paragraphs 2 of the Order as that seems clear.” (sic).

The first respondent appears to be rather equivocal or ambiguous in his stance. In one breath it is claimed that the order, or the terms thereof, ought not to have been agreed to as it is not in tandem with how the first respondent's affairs are run. In another/the next breath it is contended that the first part or the first paragraph of the order was consciously and properly agreed to, as it is in accord with Immigration Laws. In yet the next breath it is claimed that the first respondent has religiously complied with the Consent Order. Against this ambiguousness is the fact that in his letter of 21 February 2011, the first respondent referred to the applicant's husband's “recent application.” He did not refer to an application made in 2007 - which he now seeks to portray as the application which he considered and determined. Furthermore, in that letter, the first respondent advised the applicant's husband to bring the letter together with his passport to the nearest Immigration Office “to finalise on departure arrangements.” This latter part of the letter would seem to indicate a number of possibilities. One would be that the first respondent did not anticipate an appeal by the applicant's husband. Such a stance, however, would be contrary to the (agreed) terms of the Consent Order in terms of which an appeal was in fact anticipated. Another possibility would be that, to the first respondent, it did not matter whether the applicant's husband appealed against the determination made by him. He had no interest in the second part of the Consent Order which anticipated an appeal. It is highly improbable, in my view that by referring to a recent application in his letter of 21 February 2011 the first respondent meant an application made four years earlier in 2007. In fact, the first respondent's legal practitioner's letter of 23 February 2011 clearly stated that the applicant's husband's application was processed in terms of the Consent Order, was found devoid of merit and was dismissed. The letter stated that the first respondent is convinced that he has religiously complied with the Consent Order and that he is not in contempt of court as alleged or at all. No mention is made of any appeal having been made by the applicant's husband.

When mention was made, in the letter of 1 March 2011, of the applicant's husband's appeal, the letter was not responded to. The aspect of the consequence of such appeal in terms of the Consent Order thus appears to have been deliberately avoided by the first respondent, or his legal practitioners, in any correspondence they exchanged with the applicant's husband's legal practitioners. The stances which the first respondent has now placed before the court, especially regarding the second part of the Consent Order in which reference is made, inter alia, to an appeal, was never expressed to the applicant's husband or his legal practitioner before this hearing. What is apparent from the correspondence is that the first respondent was keen to deport him immediately upon the determination of his application.

For the above reasons, I find persuasive counsel for the applicant's submission that the parties have always been clear as to what application the first respondent was to reconsider and determine. Furthermore, that they have always been clear that the appeal referred to, or anticipated, in the first part of the Consent Order is an appeal against the determination made in terms of the first part of the Consent Order.

In the next breath, the submission was made by counsel for the respondents that when the terms of the Consent Order were agreed upon, he, (counsel for the respondents) was under a misapprehension as to how the first respondent conducted its business or operations. It was only at a later stage that he was made to realise that the consent order, or the terms thereof, ought not to have been agreed to by or on behalf of the first respondent. He has since been given instructions to apply for the consent order to be set aside…..,.

Counsel for the respondents went to great lengths addressing the court on the reasons why or how the Consent Order in HC1151/11 was granted in the terms in which it is phrased. He also addressed the court at length about the undesirability of the terms of the Consent Order to the first respondent. Those issues are certainly not before this court. What is before this court is a consent order issued by this court more than a month ago in HC1151/11. The relief now sought before this court arises from the said Consent Order.

Whatever intentions the first respondent has about it, the Consent Order is extant.

It follows, therefore, in my view, that the first respondent, having complied with the first part of the Consent Order, as he confirms that he did, and the applicant's husband having appealed against the determination made in terms thereof, the first respondent must now, in compliance with the second part or paragraph of the Order, release the applicant's husband from Harare Remand Prison pending the determination of his appeal. Subparagraph (i) of paragraph (a) of the interim relief must therefore succeed….,.

For the above reasons, an Order was issued, on 29 March 2011, in which the relief granted was to order the immediate release of the applicant's husband from Harare Remand Prison by the first respondent with the first respondent being ordered to pay the applicant's costs.

The purpose of the loan that was granted to the applicants was to enable them to lease a plane from an American company known as Interject Leasing Corporation. However, the American company went into liquidation and the applicant(s)' project collapsed. The collapse came after the first respondent had already paid the proceeds of the loan directly to the American company as per arrangements.

It is common cause that the applicants defaulted in servicing the loan. The first respondent then resorted to litigation which resulted in the following consent order from this court.

“1. That judgment be entered for the plaintiff against the defendants jointly and severally the one paying the others to be absolved as follows:-

1.1 In the sum of United States Dollars 590,470=68;

1.2 Interest on the sum of US$506,200= at the rate of 14.5% per annum from the 1^st June 1988 to the date of payment;

1.3 In the sum of $54,917=68;

1.4 Interest on the sum of $49,688=99 at the rate of 14.5% per annum from 31^st March 1999;

1.5 Costs of suit including the wasted costs of two days;

1.6 Defendants' claims are dismissed with costs.”

It is important to note that the relief granted in the above order was in foreign currency (i.e. United States Dollars).

The relief prayed for in this application is, in actual fact, a stay of execution of the above court order. This is so because the first respondent has since proceeded to execute against the consent order.

In its opposing affidavit to this application the respondent states the following -

“The suggestion that the first respondent (sic) overpaid its liability to the first respondent is not accepted. It is interesting to note that in its papers in case number HC5054/04 it was claimed on its behalf that as early as April 2004 the first applicant had settled its liability to the first respondent in full. This was a false claim. The letter from the Sheriff of Zimbabwe in this connection annexure “E” is incorrect. In fact, I would point out that the Sheriff of Zimbabwe has been most unhelpful in dealing with this matter. Pursuant to a Writ of Execution against movable and immovable property issued in this matter, and based on the judgment of this court granted by consent, the Deputy Sheriff auctioned the immovable property of the second and third applicants. Because the prices offered at the time were unreasonably low and the immovable property was, in any event, mortgaged to the first respondent, the first respondent made what it considered a reasonable offer for the purchase of the property at the auction. This offer was accepted and all the requirements of both the auctioneer and the Sheriff were satisfied. This notwithstanding, the Sheriff refused to transfer the property to the first respondent. In this connection, I point out that the sale of the immovable property of the second and third applicants was, in fact, effected by public auction on 30 April 2004 and the first respondent's bid at the time was $110,000,000=, which was quite reasonable. The first respondent was required to pay the auctioneer's commission of $5,500,000=, and paid this but the Sheriff simply refused to confirm the sale and instruct, as is normal practice, the transfer of the property to the auction-purchaser, which, in this case, was the first respondent. Accordingly, therefore, annexure “E” does not come as a surprise to the first respondent because it is consistent with the very unhelpful attitude exhibited for a long time by the Sheriff.”

It is the execution referred to above that the applicant(s) seek to have set aside...,.

How do the applicants' founding affidavit justify the relief sought? The main founding affidavit deposed to by the second applicant gives a background of the loan facility. Among other things, the founding affidavit then makes the following conclusions on the dispute -

“9.1

Against the background of this unpleasant history and what would properly qualify as a case for judgment entered in error, the applicants took steps to settle in full the judgment debt of US$590,470=68 plus interest by paying the equivalent of the said amount to the first respondent. The payment of the equivalent amount in Zimbabwe dollars was purely on the basis of the trite position of our law as set out in the Makwindi Oil Procurement case supra. Further, the clear history of this matter shows that the Zimbabwe dollar equivalent is what was due to the first respondent in any event.

9.2

Attached marked “D” is a copy if the schedule showing the copy of the various amounts paid in Zimbabwe and how there were appropriated against the judgment debt in United States dollars at the official exchange rate.

9.3

In fact annexure “D” shows that the first respondent has been overpaid to the extent of US$2,431,219=62. Even clearer is annexure “E” a letter from the Sheriff of Zimbabwe advising the first respondent that the judgment debt had been fully settled according to the records available to the Sheriff.

9.4

The first respondent is, however, adamant and has not accepted the full payment as advised by the Sheriff. Consequently, it is important that an order be made upholding the position taken by the Sheriff and setting aside the writ of execution issued by the first respondent on the clear basis that the same has been satisfied.

It is clear that the first respondent has received more than what is due to it. What is also clear is this debt has since long been paid.

In the circumstances, the position taken by the Sheriff should be upheld and consequently the writ of execution issued pursuant to the judgment under case number 11569/98.”…,.

In order to decide whether or not the relief sought should be granted, all I need to do is to determine whether or not the debt was satisfied as reported by the Deputy Sheriff. The applicants' argument, in my view, is anchored on that report. The Deputy Sheriff's letter dated 13 February 2009 reads as follows -

“1. The judgment debtor paid the debt in full (see copy of confirmation to the Sheriff's Office dated 20^th January 2009 attached hereto).

Since payment was done in full I am not in a position to re-auction the property in execution by private treaty.

On the Sheriff's side it appears there is no cause of action now.

R. Matore

for:  MASTER/REGISTRAR/SHERIFF FOR ZIMBABWE”

On 18 February 2009, the first respondent, through its legal practitioners, reacted to the above in the following terms -

“Our records indicate that the judgment debt has not been paid at all. As you would have seen from the Sheriff's file the judgment was expressed in the currency of the United States and payable in that currency. We have no record of any payment, and, a matter of fact, as recently as October 2008 the judgment debtors were still attempting to effect payment, unfortunately this was in the incorrect currency. If the Sheriff for Zimbabwe is adamant that payment of the judgment debt has been effected in full we should be grateful if we could be furnished with details of such payment including:

1. The date or dates when payments were made;

2. The place and persons or entities to whom payment was effected including copies of the relevant receipts; and

3. The currency in which the payments were made.

Our file, and the correspondence in it, indicates quite clearly that the Sheriff's office has refused to co-operate in a proper disposal of this matter. In the event that we do not receive a response from your office within the next 14 days, and upon instructions from our client, we will apply for an appropriate court order. In the event, the Sheriff, and your office, will be cited as parties and orders for costs will be sought against yourselves.

M P Mahlangu

GILL GODLONTON & GERRANS”

The above sets out the respondents' position and that position remained unchanged up to the date of the hearing of this matter.

Counsel for the applicant(s) submitted that there were two issues for determination, namely -

1. Whether or not the applicants( )should settle the debt in foreign currency; and

2. Whether or not the applicant(s) had fully paid the loan.

As has already been indicated, I need not deal with the issue relating to the justification of settling the debt in foreign currency. That was fully and adequately covered in MAKARAU J's judgment quoted at length at pp7 and 8 of this judgment. I totally associate myself with the findings and ruling in that judgment.

On the issue of confirmation by the Deputy Sheriff that the debt was cleared; I make the following observation.

As an Officer of this court, and in executing the judgment, the Deputy Sheriff was primarily doing it for the benefit of the judgment creditor who happens to be the first respondent. It was, in my view, incumbent upon the Deputy Sheriff to verify payment figures with the first respondent before making a pronouncement as he/she did on 13 February 2009. Failure to seek verification resulted in the first respondent's negative, but, most probably, correct response of 18 February 2009.

The first respondent denied knowledge of any payments made after June 1998 when a balance of US$506,200= was reflected as outstanding. Furthermore, the first respondent stated that if payments had indeed been made the offer of US$1,000,000= placed before the first respondent on 8 October 2008 could not have been made.

I agree with that observation.

Given the foregoing, my view is that the first respondent has, on a balance of probabilities, proved that it is still owed money by the applicant(s). The first respondent has advanced a credible story that throws out any possible merit in the applicant's case.

I cannot help but agree with counsel for the first respondent when he says -

“It is not for this honourable court to entertain a debate as to what payments have been made by the applicants and exactly how much is still owed; this honourable court has been asked to stay execution and it is respectfully submitted that if it is found that money is still due by the applicants, no matter in what sum, then this application has to fail.”

All in all, the application for stay of execution has no merit and cannot succeed. (See also Lowveld Leather Products (Pvt) Ltd v IFC & Anor 2003 (1) ZLR 78).

I therefore order as follows -

1. The application be and is hereby dismissed.

Following the acquisition by the State of the applicant's farm, the parties filed a consent order with this Honourable Court under Case No.HC308/10 in the following terms -

“It is hereby ordered with the consent of the parties that:-

1. The tobacco on Masasa Plot Lot 2 Lions Head, Rusape, allocated to second respondent shall be harvested, cured, graded and removed from the said Plot in terms of an agreement to be concluded between second respondent and Chidziva Tobacco Processors (Private) Limited, which agreement shall cater for the involvement of applicant and/or his son, Kirk Voest, with regard to these activities only.

2. Applicant shall remove his carpentry equipment, as set out in the annexure to Case No. HC 308/10, within seven days on granting of this Consent order.

3. All other farming equipment and/or materials shall be removed from the said plot in accordance with the law.

4. Parties to bear their own costs in respect of these proceedings.”

The consent order was granted on 22 January 2010.  The matter should have ended there. However, the applicant and the second respondent are unable to agree on the import of paragraph 3 of that order….,.

I am inclined…, not to grant the order sought…,.

The applicant seeks, in the main, an order allowing him to remove from the farm the equipment and materials listed on Annexure “B” to this application. Counsel for the first respondent has indicated from the outset that it is the acquiring authority's intention to acquire the equipment and the materials so listed under Annexure “B”.

An order such as the one sought by the applicant would defeat the object of the intention of the first respondent, namely, to acquire the equipment in terms of the law and in accordance with paragraph 3 of the consent order granted on 22 January 2010 under Case No.HC308/10.

Accordingly, it is ordered that the application be and is hereby dismissed with costs.

1. …,.

2. That, by consent of the parties, the plaintiff shall pay the fourth defendant US$380= per month as holding over damages calculated from 1 February 2009 to the date of his vacating the premises.

WHEREUPON, after reading documents filed of record and hearing counsel, IT IS ORDERED:

1. That the parties be and are hereby granted an order for divorce.

2. That the plaintiff be and is hereby awarded the custody of Lwazi Edward Sibanda (born on 20^th June 2003) with the defendant being afforded reasonable rights of access to the minor child.

3. That the defendant be ordered to pay monthly maintenance for the minor child until the child attains the age of 18 years or becomes self-sufficient whichever happens earlier.

4. That given the fact that the originally agreed figure for maintenance has been rendered obsolete because of dollarization, the parties need to agree on a new figure failing which a new figure be computed by a court of competent jurisdiction upon application by the plaintiff.

5. That the plaintiff be and is hereby declared to be the sole and absolute owner of the following movable assets;

(i) American fridge freezer;

(ii) Wide screen television set;

(iii) Washing machine; and

(iv) Three-seater, two-seater and one-seater black sofas.

6. That the defendant be and is hereby declared to be the sole and absolute owner of the following movable assets;

(i) Omega motor vehicle;

(ii) BMW motor vehicle;

(iii) Small television set;

(iv) Dining room table;

(v) All beds;

(vi) VCR and DVD player; and

(vii) All movable wardrobes and kitchen units.

7. That the plaintiff be and is hereby awarded 50% of the current market value of a DAF truck motor vehicle bearing engine number H-77549 and chassis number XLRTG46WSOE392966 with the defendant being given the first option to buy out the plaintiff within 30 days from the date of this order failing which the right is extended to the plaintiff.

8. That in the event of both parties failing to comply with clause 7 (supra) it is hereby ordered that the truck be valued by a mutually agreed car dealer for purposes of its disposal at best advantage to enable each party to get a share of his or her entitlement.

9. That the plaintiff be and is hereby awarded 50% of the current market value of a house commonly referred to as House Number 65 Sparrow Lark Way, Burnside, Bulawayo with the defendant being given the first option to buy out the plaintiff within 30 days from the date of this order failing which the right is extended to the plaintiff.

10. That in the event of both parties failing to exercise their options in terms of clause 9 (supra) then the house in question be valued by a mutually agreed estate agent for purposes of its disposal at best advantage to enable each party to get a share of their entitlement.

The applicant has had a change of mind. She wants the consent judgment set aside. She accused the presiding magistrate of not giving her a chance to state her case. It is difficult to understand what she means by that when the parties approached the court with a draft order which they wanted the court to record into an order of court.

Similarly, it is difficult to understand how her legal practitioner would have withdrawn her notice of appeal without her mandate. If he did not agree with her he would have just renounced agency instead of withdrawing her appeal without her authority.

This matter was initiated by way of an urgent chamber application wherein the plaintiff was granted a provisional order in the following terms:-

“(i) That 1^st and 2^nd respondents be and are hereby interdicted from reselling and transferring right, title and interest in Flat Number 42064/13 Makokoba to any person save for the applicant.

(ii) That the respondents be and are hereby interdicted from processing any transfer of the right, title and interest in Flat Number 42064/13 Makokoba to any person save for the applicant.”

The terms of the final order the plaintiff sought were these:-

“(1) That the respondents be and are hereby ordered to take all necessary steps to transfer right, title and interest of Flat Number 42064/13 Makokoba, Bulawayo to applicant within five (5) days of confirmation of order.

(2) Failing compliance with (1) above the Deputy Sheriff be and is hereby authorized to sign the relevant papers for the effecting of transfer to applicant.

(3) That the 1^st and 2^nd respondents, jointly and severally, pay costs of this suit one paying the other to be absolved at an attorney-client scale.”

The parties, however, later agreed that the whole application be referred to trial and obtained a court order by consent to that effect.

The parties in these two farming matters agreed to have them consolidated and argued at the same time as the facts of both matters are identical. Both were gazetted for compulsory acquisition in terms of subsection (1) of section 5 of the Land Acquisition Act [Chapter 20:10].

Thereafter, they reached an agreement with the Minister of State for National Security, Land, Land Reform and Resettlement in the President's Office whereby the respective farms surrendered part of their agricultural holdings and the Minister agreed to withdraw his application to the Administrative Court (which at that time had jurisdiction in such disputes) for confirmation of the acquisition. The agreement in each case was then taken to the Administrative Court for it to be made into a court order which was accordingly done. The effect of that was that the particular pieces of land were delisted and that ownership of the respective pieces of land reverted to the original owners i.e. the respective applicants.

After the respective agreements had been made into consent orders of the Administrative Court the farms were gazetted and both appear in the 7th Schedule of Constitutional Amendment Number 17 which came into effect on 14 September 2005. Constitutional Amendment Number 17 introduced section 16B in terms of which the two farms were acquired. The relevant provisions recite as follows -

“16B Agricultural land acquired for resettlement and other purposes

(2) Notwithstanding anything contained in this chapter –

(a)  All agricultural land –

(i) That was identified on or before the 8th July 2005 in the Gazette or Gazette Extraordinary under, section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7, being agricultural land required for resettlement purposes; or

(ii) That is identified after the 8th July 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], being agricultural land required for resettlement purposes; or

(iii) …,.

is acquired by and vested in the State with full title therein with effect from the appointed day or in the case of land referred to in (iii) with effect from the date it is identified in the manner specified in that paragraph.”

Both farms were itemized in Schedule 7 as pieces of land which constituted land referred to in section 16B(2)(a)(i) of the Constitution of Zimbabwe above. They were acquired through General Notice 144A of 2002 and were itemized as 44.

It accordingly admits of no doubt that the two farms were identified before 8 July, 2005, and itemized in Schedule 7 and were acquired by and vested in the State with full title therein with effect from 14 September, 2005 – the appointed day.

In casu, the orders by consent were issued by the Administrative Court in 2003. The one relating to Felton Farm, for instance, was issued on 5 August 2003. The orders therefore preceded the appointed day id est 14 September, 2005.

However, it was strenuously argued by the applicants that their case was completely different because their pieces of land had been returned to them by orders by consent which were made into court orders by the Administrative Court. It was then contended that the Constitutional Amendments set out in section 16B(2)(a)(i) and (ii) of the Constitution of Zimbabwe above did not vest their pieces of land to the acquiring authority. They reasoned that, since the court orders returned their pieces of land to them, they had acquired real rights in the properties. The Minister had, in fact, withdrawn the applications to confirm. The properties were restored to them in terms of the law. No legislation can act retrospectively to take away acquired rights that have vested in the right holders. They went on to submit that they had worked on and improved the farms on the understanding that the pieces of land were theirs to do as they wished.

It was their belief that contrary to popular belief the recent amendment to the Constitution did not make all farming land State land