The respondent, that is to say the Reserve Bank of Zimbabwe is a body corporate established in terms of the Reserve Bank Act [Chapter 22:15]. Its function, among others, include acting as the Exchange Control Authority in terms of the Exchange Control Act [Chapter 22:05] as read with the Exchange Control Regulations Statutory Instrument 109/09, S.I.109 of 2009.

On the other hand, the applicant is a duly registered company which is in the business of exporting commodities.

In terms of section 7 of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004, the applicant is required to acquit its export documentation, that is to say, repay or settle its debts or obligations to the respondent arising from export receipts commonly known as CD3 forms. The section reads:

“7(1) With effect from the 1st January 2004, every business organisation engaging in the export of goods and services shall be required to acquit the export documentation in respect of those exports.”

Failure to acquit CD3 forms in terms of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004 amounts to a criminal offence punishable by the courts.

Sometime in 2000, the applicant fell into arrears with the acquittal of some of its CD3 forms.

As a result, it was prosecuted, convicted, and fined in the Magistrates Court. In sentencing the applicant, the trial magistrate found special circumstances for not ordering repatriation. As a result, he sentenced the applicant to a fine of $2,000,000 but declined to order repatriation as requested by the State.

Repatriation, in terms of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004 means to pay back.

Following the conviction and sentencing of the applicant, the respondent demanded the acquittal of the outstanding CD3 forms in terms of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004.

The applicant refused to repay or settle its debts to the respondent arising from the outstanding CD3 forms arguing that it had been absolved by the magistrate from paying its debts to the respondent whereupon the respondent allegedly invoked the sanction provided by section 7 of the Exchange Control Regulations S.I.9 of 2009.

The effect of which was to freeze the applicant's foreign currency account number 9440031502000.

The applicant then filed this application seeking a declarator to the effect that it has been absolved from regularizing or acquitting its CD3 forms by the Magistrates Court.

It also sought an order overriding the sanction imposed by the respondent.

The respondent has objected to the applicant's application on the basis that it has not exhausted its domestic remedies and that the magistrate's refusal to order acquittal of the CD3 forms did not amount to absolving the applicant from regularizing or acquitting its CD3 forms according to law.

The issues which arise from the undisputed facts is:

(i)...,. 

(ii) Whether or not the applicant is properly before this Court.

While it is desirable that parties should be encouraged to exhaust their domestic remedies before approaching the courts, the mere existence of domestic remedies does not oust the unlimited jurisdiction of this Court.

The Court has therefore discretion whether or not to entertain the application.

Having regard to the fact that the regularization or acquittal of CD3 forms has a direct bearing on the fiscus, the country's economy, and the applicant's business operations, it is in the national interest that the matter be determined as soon as possible. That being the case, I have decided to determine the matter on the merits so as to avoid unnecessary delays which may have the effect of prejudicing both parties and the nation at large.

This is an application for review brought in terms of Order 33 of the High Court Rules. The facts of the matter are not in dispute. They are as follows:

The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in 1992, she was confirmed as a permanent employee of the respondent. On some date in 1991, the applicant, or someone purporting to be her, filled out an employment form in which it was represented that the applicant had attended Lord Malvern High School between 1977 and 1980 and had passed three subjects at "O" Level. The form was not signed nor dated.

It is pertinent to note here, that, the applicant did not deny the respondent's averment that it was the applicant herself who filled out the form.

On 18 November 1999, the respondent's Personnel Manager requested the applicant to furnish proof of her qualifications. This, the applicant failed to do. She was then charged with misconduct before a disciplinary committee. The charges that were preferred against her were communicated to her by a letter dated 15 June 2000 that read, in part, as follows:

"RE MISCONDUCT CHARGES

1. Insubordination - wilful and unreasonable disobedience of a lawful order from a superior. Category I section I.

2. Theft, fraud, forgery, involvement in bribery, misappropriation, falsification of documents. Category I section 3.

3. Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied conditions of his/her contract of employment. Category 1 section 5.

In the letter dated 18th November 1999, from the Human Resources Manager, you were advised that the Chief Executive had requested that you submit proof of the 3 "O" Level passes that you had claimed to possess on joining the Board in 1991, and also in the interviews of 1996, by 26th November 1999. You, however did not submit these or offer an explanation by the due date.

The Regional Personnel Officer (Northern) then wrote to you on 4th January 2000, reminding you to respond in writing to the Chief Executive's request by 12th January 2000; which she set as the new deadline. However, you did not respond in writing as had been required. Your failure to respond as required is considered to be insubordination."

The Disciplinary Committee found her guilty of the alleged act of misconduct and recommended that her employment be terminated.

The applicant appealed against this decision.

In accordance with the provisions of the respondent's Code of Conduct, her appeal was noted to the Chief Executive in accordance with the respondent's Code of Conduct who dismissed the appeal.

The applicant then filed the above application for review.

The applicant alleged, as her grounds for review:

(i) Firstly, that the Disciplinary Committee that sat to hear her matter was not properly constituted; and

(ii) Secondly, that the decision of the respondent to dismiss her is grossly unreasonable.

The application was duly opposed.

In opposing the application, the respondent raised three preliminary issues:

(i) Firstly, the respondent argued, that, the applicant has approached the wrong forum for relief.

The respondent contended that the applicant ought to have noted an appeal to the Labour Relations Tribunal in terms of section 101(7) of the Labour Relations Act [Chapter 28.01].

The issue of whether or not, in labour issues, this court has concurrent jurisdiction with the Labour Relations Tribunal has exercised this court before. In my view, GILLESPIE J has put the issue to some rest in Zikiti v United Bottlers 1998 (1) ZLR 389. I can do no better than quote from the learned judge. This is what he had to say:

" The particular point concerning the bringing of review proceedings in the High Court, in connection with an employment dispute not yet resolved in a lower authority, is generally raised as an instance of a suggested obligation to exhaust domestic remedies before approaching this court.

The Labour Relations Act does not expressly require that the domestic or statutory procedures and remedies be exhausted before an approach is made to this court.

The question whether an intention to this effect is to be necessarily implied from the legislation has therefore exercised the court on occasion. It would appear, from the authorities, that, in employment disputes the court does not hold its common law jurisdiction in principle to be ousted or suspended pending the exhaustion of domestic remedies."

In my view, the point made by GILLESPIE J is that the court will not ordinarily close its doors to any litigant who is entitled to relief from it, but, in the exercise of its inherent jurisdiction to regulate and control its proceedings so as to prevent an injustice or abuse of its process, the court may withhold its jurisdiction.

A caution is however sounded in the judgment that the courts should sparingly exercise this equitable discretion to withhold its jurisdiction, as the courts of law should be open to all.

I agree with this view.

The jurisprudential basis supporting this view is obvious and has its foundation in the universally acclaimed right of every one to an effective remedy by the competent national tribunals for acts violating rights granted him or her by the laws of the land: Article 8 of the Universal Declaration of Human Rights (1948).

In the matter before me, no reason was advanced as to why I should withhold the court's jurisdiction. It has not been shown that recourse to the machinery set up under the Labour Relations Act will confer a more effective remedy to the applicant.

I therefore decline the invitation to withhold my jurisdiction in the matter.

This matter was placed before me through the Chamber Book as an urgent application on March 10, 2008. The applicant seeks the following provisional order against the respondent:

“Pending confirmation or discharge of this Provisional Order;

1. The respondent be and is forthwith hereby interdicted and restrained from using the applicant's name and materials and posters resembling the applicant's materials and posters in his campaign for the House of Assembly seat of Mabvuku-Tafara.

2. The respondent be and is hereby ordered to forthwith remove the posters he plastered in and around the Constituency, failing which the applicant's structures in Mabvuku-Tafara Constituency be and are hereby authorised to remove the said posters in the company of the Deputy Sheriff or members of the Zimbabwe Republic Police, if necessary.

SERVICE OF THE PROVISIONAL ORDER

This Provisional Order shall be served by the respondent by the applicant's Legal Practitioners or the Deputy Sheriff of Chinhoyi. (sic)”...,.

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

The respondent is the outgoing Member of the House of Assembly for the Mabvuku-Tafara constituency for the applicant. The applicant has fielded hundreds of candidates in the forthcoming harmonised Presidential, Senatorial, Parliamentary and Council elections. In an internal candidate selection process, the respondent failed to garner the support of his political party to stand as that party's chosen representative for the House of Assembly seat of Mabvuku-Tafara constituency. Instead, one Shepherd Madamombe is the official candidate for the applicant.

The applicant approaches this court for the above relief.

Sekai Holland, the applicant's Secretary for Policy Research and Ideology, deposed to the founding affidavit.

In it, she states that the applicant, on 14 February 2008, notified the Zimbabwe Electoral Commission of its intention to substitute the respondent with Shepherd Madamombe.

On 15 February 2008, the Nomination Court sat to receive the nomination of candidates. Shepherd Madamombe's papers were accepted as representing the applicant. The respondent, who had earlier been endorsed by the applicant, also filed his nomination papers - but as an independent. His papers were accepted by that Court as such.

The applicant now seeks to interdict the respondent from conducting his campaign using its materials and posters.

This application has been brought to the wrong Court.

The Nomination Court is the proper court to decide the eligibility of each candidate.

Once it was satisfied that a candidate is eligible to be registered, and registered him, then it was up to the applicant to deal with the question of use of its materials in terms of its internal disciplinary procedures, if any was applicable.

The applicant does not say, in its papers, that the respondent is no longer its member.

If he is, then all the more reason this matter should have been dealt with internally. 

There is no evidence to suggest that all internal remedies had been exhausted by the applicant nor is there an averment that the respondent has been expelled from that party so as to require the adoption of conflict management mechanisms available in terms of Part XX1A of the Electoral Laws Amendment Act Number 17 of 2007.

The applicant seeks a declaratory order to the effect that the applicant is entitled to the issue of an unrestricted practicing certificate permitting her to practice as a specialist obstetrician and gynecologist. She also seeks consequential relief that the respondents issue her with unrestricted practicing certificate permitting her to practice as a specialist obstetrician and gynecologist and costs of suit.

The background facts are that the applicant is a Yugoslavian citizen. She has a residence permit which permits her to remain in Zimbabwe indefinitely. On 8 February 2000, the applicant applied for provisional registration as a medical practitioner and specialist registration as an obstetrician and gynecologist. She was duly registered on 7 August 2001 with the practicing certificate restricting her practice to a Government central hospital. She commenced work at Parirenyatwa Hospital. The applicant then took unpaid leave from 29 July 2002 to 28 February 2003.

In April 2005, the applicant applied for re-registration on the provisional register. This was approved in May 2005 subject to her obtaining a post of Senior Registrar Obstetrician and Gynecologist working in a Government hospital under the supervision of a specialist gynecologist.

In February 2006 the applicant wrote to the first respondent requesting re-registration as approved in May 2005. She attached confirmation of an offer of employment by Parirenyatwa Group of Hospitals. She was duly registered on the provisional register with effect from 23 February 2006 for a period of three years.

In January 2008, the applicant applied for the issue of an un-restricted practicing certificate. The application was not approved.

The applicant then filed the present application.

In its opposing papers, the first respondent raised a point in limine that the applicant had not exhausted the domestic remedies available to her before approaching the court.

I will deal with this point first.

Counsel for the respondents submitted that in terms of section 22 of the Health Professions Act [Chapter 27:19] (“the Act”), any person who is aggrieved by any decision taken in regard to him by Council may appeal against the decision to the Authority within thirty days after being informed of the decision.

Section 123 of the Health Professions Act provides for an appeal from the Authority to this court.

It was further submitted that the appeal procedure was capable of affording the applicant effective redress. No special circumstances or reasons were advanced by the applicant for approaching this court. The applicant ought to have exhausted the domestic remedies available to her under the domestic legislation.

Counsel for the applicant submitted that the point raised in limine is without merit and ought to be dismissed…,. He said that this court has already stated, in McGown v Health Professions Council 1994 (1) 86 (H), that in such disputes as the present one, the procedure for an appeal does not apply.

He further submitted that in an application for a declaratory order, such an order will be granted even if some other form of relief is available.

In my view, McGown v Health Professions Council 1994 (1) 86 (H) can be distinguished from the present matter. In that matter SMITH J, when he made the remark that “the applicant does not have a right of appeal against the condition imposed by the PCC” he was dealing with the provisions of the now repealed Medical, Dental and Allied Professions Act [Chapter 244]. That Act did not provide a procedure for an appeal where a person had a condition imposed by the PCC. The repealed Act did not have a provision similar to section 22(1) of the Health Professions Act [Chapter 27:19] which provides for an appeal to lie to the Health Professions Authority of Zimbabwe (“the Authority”) by any person who is aggrieved by any decision taken in regard to him by a Council. It did not also provide for an appeal to the High Court whereas the Health Professions Act further provides for an appeal to lie to this court where any person is aggrieved by a decision of the Authority. See section 128(1) of the Health Professions Act [Chapter 27:19].

In my view, the appeal procedure is available to the applicant as such a procedure is available in terms of the Health Professions Act to any person aggrieved by any decision taken in regard to him…,.

The applicant has decided to approach the court rather than proceed by way of domestic remedies provided for in the Health Professions Act.

It has been laid down in a number of cases that where domestic remedies are capable of providing effective redress in respect of the complaint, a litigant should exhaust the domestic remedies themselves unless there are good reasons for not doing so. See Girjac Services (Private) Limited v Mudzingwa 1990 (1) ZLR 243 (S)…,.

The same approach was adopted in Masunda v Chairperson of Cresta Lodge Disciplinary and Grievance Committee HH115-94…, and Moyo v Forestry Commission 1996 (1) ZLR 173 (H)…,.

The applicant did not advance, in her founding papers, good reasons for not pursuing the domestic remedies available to her. However, it was submitted on her behalf that a declaratory order will be granted even if some other form of relief is available. See Jansen v AFC 1995 (1) ZLR 63 (H)…,.

In Jansen v AFC 1995 (1) ZLR 63 (H) the point was also made that the merits of each case constitute one of the circumstances of the matter to which regard must be paid before a declaratory order is issued.

In casu, the applicant seeks a declaratory order to the effect that she is entitled to an un-restricted practicing certificate.

The nature of the relief being sought by the applicant is such that she is asking me to substitute my own decision for that of the first respondent.

It has been held in these courts that a court will not interfere in the sphere of practical administration. See Director of Civil Aviation v Hall 1990 (2) 354 (S)…,. There are issues which, in my view, can best be revolved by the administrative structure provided for in the Health Professions Act.

In my view, there are disputes of fact which this court cannot resolve.

They would require the expertise provided for in the Health Professions Act. In paragraph 13 to her founding affidavit the applicant disputes that she remains registered on the provisional register of medical practitioners. She refers to annexure C to disprove the respondents averments.

This court cannot say whether registration on the specialist register is the same as registration on the permanent register. The court does not know what to do with the fact that during the period of the applicant's initial registration on the provisional register, she was absent without leave for a certain period. Such issues can best be dealt with by the domestic remedies provided for in the Health Professions Act.

In view of the above, I am not able to grant to the applicant the relief that she seeks. The Health Professions Authority is capable of providing effective redress in respect of the applicant's complaint. She ought to have exhausted the domestic remedies available to her under the domestic legislation.

In the result, the point in limine is upheld.

Accordingly, the application is dismissed with costs.

On 7 January 2009, the applicant filed this application seeking an order compelling the first respondent to change its name within six weeks of the granting of the order.

In its founding affidavit, the applicant averred that it was duly registered by the third respondent on 26 October 2006. On 12 November 2008, it came to its attention that the third respondent had registered the first respondent, whose name is identical to its own.

The applicant further averred, that, on 14 November 2008, it wrote to the third respondent objecting to the registration of the first respondent on the basis that their two names were identical and pointing out that the first respondent's main line of business was also real estate.

No response was elicited by this letter, although, in consequence to a follow up on the letter, the third respondent wrote to the first respondent bringing to its attention the objection and the basis of the objection and gave a copy of this letter to the applicant.

In opposing the application, the second respondent deposed to an affidavit on behalf of the first respondent and also on his own behalf.

In the affidavit, the first respondent indicated, by way of giving a historical background to the dispute, that, as far back as 2001, the promoters of the first respondent had registered a company by the name Southbay Investments (Private) Limited. The promoter was therefore the first to use the prefix “Southbay”.

In 2006, the applicant changed its name from Vineyard Real Estate to its current name with the full knowledge of the existence of Southbay Investments (Private) Limited. Objections were raised to the proposed change of name to no avail.

Regarding the merits of the application, the first and second respondents argued that the applicant did not have goodwill in the name “Southbay”; denied that the first respondent had misrepresented to the public or caused any confusion in the public as to the distinction between the two companies as the first respondent was not trading as a real estate agency and had made no moves to be registered as such with the Estate Agents Council; finally, the respondent argued that there is a big difference between the two companies such that the public will not be confused by the two registrations.

In the main, the second respondent argued that since it was incorporated as a subsidiary to Southbay Investments (Private) Limited, it was not meant to carry out real estate business but to manage the property portfolio of the parent company.

The third respondent did not oppose the application.

At the hearing of the matter, the first and second respondents took a point in limine, objecting to the jurisdiction of this court.

Counsel for the respondents argued that the matter was before the third respondent to whom a letter of objection had been addressed by the applicants, and who, to all intents and purposes, was still seized with the matter. He argued that the process started by the parties before the third respondent should be completed before the court exercises its jurisdiction in the matter.

On the turn, I dismissed the point in limine and indicated that my reasons would follow.

The jurisdiction of this court over all matters and people in Zimbabwe is a power inherent in the court as the only superior court in the land with unlimited jurisdiction at first instance.

It is not ousted save by the clearest language in a statute.

In instances where this court has concurrent jurisdiction with other bodies and tribunals set up by law, this court may, in its discretion, withhold its jurisdiction to allow the inferior tribunal to complete its processes. The court has, at times, withheld its jurisdiction to allow domestic and statutory remedies to be exhausted.

The test as to when this court will withhold its jurisdiction is, in my view, well settled.

In a judgment that has since been endorsed by the Supreme Court, MTAMBANENGWE J observed, in Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H)…, that, where domestic remedies are capable of providing effective redress in respect of the complaint, and the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so: see Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S).

Counsel for the applicant, correctly in my view, observed that the third respondent, in this matter, has shown a clear dis-inclination to deal with the matter.

He has been seized with the complaint since November 2008 and all he has done is to address a single letter to the first respondent.

When served with this application, he did not oppose it or at least indicate to the court that he is actively dealing with the matter and requires time to complete his processes.

Thus, the statutory remedies have proved incapable of providing redress in the matter and the machinery set up to effect redress at the domestic level may have compounded the cross-complaints brought by the parties about the two registrations.

On the basis of the above, I therefore held that the applicant had a good reason for approaching the court without first exhausting the statutory remedy.

Failure to exhaust domestic remedies

Clause 5(d) of the Tribute Agreement provides -

“Should any dispute arise as regards the interpretation of this agreement, or the enforceability of its clauses, the mining commissioner shall have jurisdiction and, failure him, the High Court.” ....,.

On 8 April 2009, the applicant's legal practitioners wrote requesting for a meeting of the two parties before the Mining Commissioner. Before the matter was set down, or the Mining Commissioner responded, the applicant jumped the gun.

The applicant did not give a reasonable explanation for its failure to exhaust domestic remedies, and as such the application should fail on that score.

From the foregoing, the application cannot be granted because of these procedural deficiencies, i.e. it is not urgent, and, in any event, the applicant has not exhausted domestic remedies contained in clause 5(d) supra.

The respondent raised two points in limine.

The first one was the failure to exhaust internal or domestic remedies provided by law before the applicant approached this court.

The goods in question, in casu, were seized by the respondent in terms of section 193 of the Customs and Excise Act [Chapter 23:02]. When the goods are seized thus, the owner, or possessor, thereof, will have to make representations for their release should they want to have their goods back. The office who seized the goods will then make his/her own report to the Commissioner of the respondent in terms of section 193(5) of the Customs and Excise Act [Chapter 23:02]. The applicant's representations, as well as the report by the officer, are then submitted to the Commissioner, who will then have to make a decision to either release, or declare forfeit, the goods in question in terms of section 193(6) of the Customs and Excise Act [Chapter 23:02].   

A Notice of Seizure was issued on 3 August 2009.

No representations were made by the applicant herein to enable the respondent's Commissioner to make a decision in terms of section 193(6) of the Customs and Excise Act [Chapter 23:02]. The applicant has, instead, made a civil suit for the release of the goods in question (this is provided for in section 193(12) of the Customs and Excise Act [Chapter 23:02]).

The said section 193(12) of the Customs and Excise Act [Chapter 23:02], however, only allows the applicant to institute civil proceedings where the Commissioner has refused to release the seized goods in terms of section 193(6)(a) of the Customs and Excise Act [Chapter 23:02].

This, therefore, means the applicant cannot make the application where the Commissioner has not yet made a decision on whether to release the goods or not.

So, besides the applicant instituting civil proceedings before the Commissioner has made a decision on the fate of the goods, it has also made the application without giving the requisite notice as required by the Customs and Excise Act [Chapter 23:02].

The applicants in this matter are all duly elected Members of Parliament. The first respondent is the Clerk of Parliament, cited herein in his official capacity.

The second respondent was elected to the position of Speaker of the House of Assembly on the 25th of August 2008.

The applicants challenge the validity of the second respondent's election as Speaker on several grounds.

They originally sought an order setting aside the second respondent's election, and, consequentially, an order nullifying all acts performed by him qua Speaker. However, at the hearing of this case, counsel for the applicants conceded the excessiveness and enormity of the consequential relief sought and opted not to pursue that aspect.

Background

By virtue of section 39(2) of the Constitution of Zimbabwe, the Speaker must be elected in accordance with the Standing Orders of the House of Assembly.

On the 25th of August 2008, following the swearing-in of Members of Parliament (Members), the first respondent announced the procedure for the election of the Speaker. As there was more than one person proposed as Speaker, the election was to be conducted by secret ballot as enjoined by Standing Order Nos. 4 and 6 of the House of Assembly.

According to the applicants, what ensued in Parliament thereafter was chaotic and disorderly and quite contrary to the requirements of a secret ballot.

The first respondent concedes that there was an unprecedented number of Members in the Chamber on that day but denies that the voting process was disorderly or improper. The second respondent supports this position and also raises several preliminary objections to the application, pertaining to locus standi, non-joinder, and the exhaustion of domestic remedies.

The Issues

In the event, the preliminary and substantive issues for determination in this matter, as I perceive them, are as follows:

(i)...,.

(ii)...,.

(iii) Whether the applicants should have exhausted domestic remedies available in Parliament before approaching this Court....,.

Exhaustion of Domestic Remedies

The second respondent avers that the applicants did not lodge any formal objection or complaint with the first respondent before the election result was announced. It was incumbent upon the applicants to have exhausted relevant Parliamentary processes before approaching this Court. In this regard, counsel for the second respondent relies upon the decision in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC)…,

He submits, quite correctly, that the nature of the relief sought by the applicants carries far-reaching implications for the separation of powers doctrine because it asks the judiciary to interfere with the internal proceedings of Parliament. Consequently, the Court should not recognise the applicants' locus standi to claim such relief unless they have made proper and diligent attempts in Parliament to redress the conduct complained of or provide a satisfactory explanation for their failure to do so.

As is clearly recognised in section 5 of the Privileges, Immunities and Powers of Parliament Act [Chapter 2:08], Members enjoy full freedom of speech and debate in Parliament and the proceedings of Parliament are generally immune from being questioned or impeached in any court of law. In other words, as a general rule, Parliament is at large to regulate its own proceedings without external interference.

However, it is well-established that in a constitutional democracy, such as ours, this general immunity is necessarily and invariably subject to the provisions of the Constitution. This subordination to the primacy of the Constitution is entrenched and clearly recognised in sections 3 and 49 of the Constitution. See Smith v Mutasa N.O. & Another 1989 (3) ZLR 183 (SC)…,; Chairman, Public Service Commission & Others v Zimbabwe Teachers Association & Others 1996 (1) ZLR 637 (S)…,.

The election of the Speaker is a process that is not exclusive to Parliamentary privileges and powers. It is explicitly regulated by section 39 of the Constitution and there can be no doubt that it is a matter that is justiciable by the courts to ensure due compliance with the Constitution and the Standing Orders.

Nevertheless, I fully endorse the approach enunciated by the Constitutional Court of South Africa in Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) and concur that this Court should be loathe to interfere with the internal proceedings of Parliament unless it is shown that the applicants have attempted to exhaust relevant Parliamentary processes in the first instance.

In the instant case, it appears from the first applicant's affidavit that several queries were raised by certain Members during the election process but the first respondent refused to take any questions throughout the election.

What is not clear from the papers is whether the queries that were raised were by way of formal objection or mere interjection.

In this respect, counsel for the first respondent submits that the first respondent was entitled to ignore informal protests or interjections and that any MP wishing to be heard had to make a formal objection by standing up and raising a “point of order” as envisaged in Standing Order Nos. 49 and 61.

As against this, counsel for the applicants argues that, although the conduct of normal Parliamentary business does admit the possibility of formal objections, there is no equivalent procedure prescribed in the Constitution or in the Standing Orders with respect to the election of the Speaker that enables the Clerk of Parliament to deal with formal objections.

Having regard to the Standing Orders, taken as a whole, I am inclined to agree with counsel for the applicants. Standing Order Nos. 49 and 61, relating to formal speeches and objections, are contained in the Section titled PUBLIC BUSINESS, and, more specifically, in the sub-section titled Order in House and Rules of Debate.

As appears from Standing Order Nos. 7 and 17, the Speaker holds the Chair for the conduct of public business generally. In the absence of the Speaker, the Deputy Speaker assumes the Chair, and, in the absence of both, the Chair is assigned to the Deputy Chairperson of Committees or a member of the Chairperson's panel.

At no stage does the Clerk of Parliament exercise the powers of the Chair in the conduct of ordinary public business to which the procedures outlined in Standing Order Nos. 49 and 61 apply.

The only occasion on which the Clerk holds the Chair is for the purpose of conducting the election of the Speaker in terms of Order Standing Order Nos. 3 to 7.

These Standing Orders are contained in the section titled PROCEEDINGS ON MEETING OF NEW PARLIAMENT.

As I have already noted, Standing Order Nos. 49 and 61, which provide for formal objections, are to be found in an entirely different section, and, therefore, they do not apply to Standing Order Nos. 3 to 7 governing the election of the Speaker.

Arguably, the power of the Chair to take and deal with formal objections could and should be implied, mutatis mutandis, in the latter context as well. However, a strict interpretation of the Standing Orders precludes any such importation in the absence of clear language to that effect.

It follows from all of this that the Standing Orders do not prescribe any procedure for the raising of formal objections during the election of the Speaker and before the election result is announced. It also follows that, in the absence of any such procedure, there was no internal Parliamentary process that the applicants could be required to exhaust before approaching this Court for the relief that they seek.

That being so, the second respondent's preliminary objection in this regard cannot succeed and must be dismissed.

The applicant is prematurely before this court. 

It has not exhausted the internal remedies available to it. In fact, the Cotton Marketing Technical Committee is seized with this matter which was referred to it by the applicants. The Cotton Marketing Technical Committee has written to the first respondent warning it against engaging in trade practices which violate the terms and conditions of its trading licence. My understanding is that the Cotton Marketing Technical Committee is a Committee of the second respondent. In terms of the Agricultural Marketing Authority Act [Chapter 18:24] the second respondent is endowed with wide ranging powers and functions over the marketing of agricultural products. Section 5 of the Agricultural Marketing Authority Act [Chapter 18:24] provides -

“5. FUNCTIONS AND POWERS OF AUTHORITY

(1) Subject to this Act, any regulatory Act and any other enactment, the functions of the Authority shall be –

(a) To regulate the participation in the production, buying or processing of any agricultural product by producers, buyers or processors or classes of producers, buyers or processors of any agricultural product upon  such terms and conditions including, as appropriate, the fixing of quotas, as may be prescribed;

(b) To promote the proper marketing and fair pricing of any agricultural product by any producers, including producers in the communal and resettlement areas, who the Authority considers require assistance;

(c) To properly co-ordinate its operations with those of any statutory body charged with the regulation and marketing of any agricultural product to ensure that the operations of any such statutory body accord with the purposes of the Authority and at all times to act in the economic interests of all the parties concerned and in the national interests;

(d) To promote contract farming of strategic crops;

(e) ...,.

(f) ...,.

(g) ...,.

(h) ...,.

(i) ....,.

(j) ...,.

(k) ...,.

(l) ...,.

(m) ...,.”

Section 3(1) of S.I.142 of 2009 provides -

“3(1) All functions which, under the Act, the Board (of the Agricultural Marketing Authority) may exercise in relation to any agricultural commodity shall, in terms of these regulations, be exercised on its behalf by a Committee of the Board established in terms of s13 of the Act to be known as the Cotton Marketing Technical Committee.” ...,.

The general functions of this Cotton Marketing Technical Committee are outlined under section 3(3) of S.I.142 of 2009 as follows -

“(a) To promote the growing, ginning, processing, manufacture, preparation or marketing of seed cotton, cotton planting seed, cotton lint and seed cotton products; and

(b) To set and maintain standards relating to the quality, classification, grading, moisture content and packaging of seed cotton, lint or cotton seed which may be –

(i) Accepted by the Committee, a ginner or any other person; or

(ii) Sold by a person, other than the Committee, whether for use within or outside Zimbabwe; and

(c) To assist in the training, examination and accreditation of graders of seed cotton; and

(d) To ensure that fair trade practices prevail in the cotton industry”...,.

The Cotton Marketing Technical Committee is also charged with the responsibility of registering buyers, contractors, growers and their Associations. Registration is a prerequisite to doing business in the cotton industry. The Board is required to issue certificates of registration to all players who meet its criteria. The certificates are renewable annually. By the same token the Cotton Marketing Technical Committee has the power to cancel the registration of any player. Aggrieved persons, in that regard, may appeal to the Board whose decision shall be final.

S.I.142 of 2009 also provides for various offences under section 22.

Section 49 of the Agricultural Marketing Authority Act [Chapter 18:24] provides for appeals against decisions of the Board. An aggrieved party may appeal to the Minister and ultimately to the Administrative Court.

In my view, the Cotton Marketing Technical Committee is still seized with the matter. The fact that in the instant case the Cotton Marketing Technical Committee has issued written warnings to the first respondent and taken, so far, no further action, does not in itself mean the Cotton Marketing Technical Committee has abandoned its statutory role. A warning might well be what the Cotton Marketing Technical Committee believes to be adequate or appropriate. With further reports or information they might act substantively either by dismissing the applicant's concerns or acting upon them. After all, by the applicant's own admission, the bulk of the cotton is still on the market.

In casu, the applicant approached this court directly without even exhausting the domestic remedies provided for in section 11 of the Domestic Violence Act [Chapter 5:16].

The applicant brought this application for the purpose of denying the first respondent emergency monetary relief granted to her in terms of the Domestic Violence Act [Chapter 5:16].

If I am wrong in the above finding, still the application had to be dismissed for failure to exhaust internal remedies.

Even if it is true that the applicant failed to get audience with the first and second respondents, the applicant is at liberty to approach the Police Service Commission for relief – section 16 of the Police Trials and Boards of Inquiry Regulations, 1965. Thus, the applicant's failure, without good and sufficient cause, to exhaust domestic remedies available to him is fatal to his application – Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H) and Communications Allied Svc (s) Workers Union of Zimbabwe v Tel-One (Pvt) Ltd 2005 (2) ZLR 280 (H)..,.

The respondent complained that the applicant should have exhausted the domestic remedies provided for in its Constitution and Regulations before coming to this court.

The complaint is devoid of any merit.

The respondent cannot be expected to go back to the same body which it believes to have unreasonably and unfairly treated it. It no longer has faith in the respondent, rightly so, in my view. There is no guarantee that the respondent would not continue giving illogical decisions. The applicant was, accordingly, entirely correct in abandoning the domestic remedies and have recourse to this court in the light of the urgency of the matter.

The respondents are entitled to remedies enshrined in the Mines and Minerals Act [Chapter 21:05] to challenge the determination by the Mining Commissioner.

They have not utilized these remedies; they have shown their displeasure by writing letters of complaint through their legal practitioners. Letters of complaint are not sufficient - the respondent must formally challenge the Mining Commissioner's boundary determination.

At the hearing of the matter, counsel for the first respondent, after raising extraneous issues relating to service of the application, submitted, on the merits, that the applicant had not exhausted domestic remedies.

In his view, the applicant still had to negotiate with the regulating authority on the modalities of holding the procession. If that effort failed, according to counsel for the first respondent, the applicant could then approach the local magistrate.

I find the submissions made by counsel for the first respondent to be devoid of any merit.

Exhausting Domestic Remedies

The reason why the applicant brought its application for review is because of the BANC ABC Super 8 KNOCK OUT CUP (2010) Edition) provides -

“13.  ARBITRATION

13.1 In order to expedite the resolution of protests so as not to disrupt the smooth flow of the competition, an ad-hoc Arbitration Committee shall be set.

13.2 The decision of the ad-hoc Arbitration Committee shall be final.” …..,.

POINT 2 - DOMESTIC REMEDIES

It was submitted by counsel for the first and second respondents that section 124(2) of the Parks and Wildlife Act [Chapter 20:14] provides for an appeal to an aggrieved person to the Ministry of Environment and Natural Resources. The section gives the Minister power to substitute the decision of the respondents. The Parks and Wildlife Act [Chapter 20:14] therefore provides adequate relief to aggrieved persons.

Counsel for the applicants, on the other hand, submitted that section 124 of the Parks and Wildlife Act [Chapter 20:14] was not peremptory; that domestic remedies can be dispensed with where there are special circumstances. He also submitted that the Administrative Justice Act [Chapter 10:28] came into effect in 2004 when the Parks and Wildlife Act [Chapter 20:14] was already in existence. This provides a party with a choice to either exhaust the domestic remedies or to approach the High Court.

It has been laid down in a number of cases, in our jurisdiction, that where domestic remedies are capable of providing effective redress in respect of the complaint, and, secondly, where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so. See Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 234 (S)….,. See also Moyo v Forestry Commission 1996 (1) ZLR 173 (H)….,.; Muzengi v Standard Chartered Bank Zimbabwe Limited & Anor 2002 (1) ZLR 334 (S)….,.; and  Djordjevic v The Chairman of the Practice Control Committee of the Medical and Dental Practitioners Council of Zimbabwe & Anor HH110-09.

Some of the factors to be considered in determining whether the court can withhold its jurisdiction until domestic remedies are exhausted were considered in Lawson v Cape Town Municipality 1982 (4) SA 1 (S) …,. COMRIE J said -

“Among these are: the subject matter of the statute (transport, trading licences, town planning and so on); the body or person who makes the initial decision and the bases on which it is to be made; the body or person who exercises appellate jurisdiction the manner in which that jurisdiction is to be exercised, including the ambit of any re-hearing on appeal, the powers of the appellate tribunal, including its power to redress or cure wrongs of a reviewable character; and whether the tribunal, its procedures and powers are suited to redress the particular wrong of which an applicant complains.”

Section 124 of the Parks and Wildlife Act [Chapter 20:14] provides:

“(1) Any person who is aggrieved by any decision of an appropriate authority, for unalianated land or for any waters in refusing to issue or cancelling or imposing condition in respect of a permit referred to in subs (4) of section fifty-nine or section eighty-six may appeal against the decision to the Minister.

(2) Upon an appeal being made in terms of subs (1) the Minister may uphold the decision of the appropriate authority or may direct the appropriate authority to issue a permit in terms of subs (4) of section fifty-nine or section eighty-six or to delete all or any of the conditions imposed in respect of such permit and the appropriate authority shall comply with such direction.”

Section 124(1) of the Parks and Wildlife Act [Chapter 20:14] uses the word “may”. The applicants argue that it is permissive and not peremptory.

I agree with the respondents' position that the word was used to give an aggrieved party a choice whether to appeal or not. The appeal procedure is available to “Any person who is aggrieved by any decision of an appropriate authority…,.”…,.

The appeal procedure was therefore available to the applicants.

In my view, the appeal procedure was capable of providing effective redress to the applicant's complaint. The Minister, in terms of section 124(2) of the Parks and Wildlife Act [Chapter 20:14], is empowered to do various acts - one of which is what the applicants seek in paragraph 2 of the Draft Order. The powers that the Minister has were as described by COMRIE J in Lawson v Cape Town Municipality 1982 (4) SA 1 (S) “of considerable breath and would, in my view, cater for most cases…,.” He can, inter alia, issue permits, unlike this court which does not have such powers under the Administrative Justice Act [Chapter 10:28]. The Minister is better placed to acquire the appropriate information before he can grant a permit.

The issue which, however, exercises my mind is whether it was appropriate for the applicant to approach this court seeking the relief that he seeks.

The applicant insists that his relationship with the respondent is governed by the Code of Conduct and has come to court protesting what he perceives to be serious breaches of that Code of Conduct which has been made available to the court. Clause 6G of that Code provides:

“The Appeals Procedure 

(i) If either party is dissatisfied with the decision made by the disciplinary hearing committee, they may appeal to the General Manager within seven (7) days.

(ii) The General Manager, through the Appeals Committee, shall resolve the appeal within fourteen (14) days.

(iii) If either party remains dissatisfied after the decision by the General Manager, they may seek redress from the Labour Court.”…,.

Counsel for the applicant argued that this is an application for a declaratory order and that this court must entertain it for that reason.

I do not agree.

The applicant elected to ignore the available domestic remedy provided for in the Code of Conduct preferring to seek redress in this court. There is a catena of cases in which this court has stated that it will be very slow to exercise its general review jurisdiction where a litigant has not exhausted available domestic remedies before approaching the court. It will only exercise that jurisdiction where good cause is shown for the early approach: Musandu v Cresta Lodge Disciplinary and Grievance Committee HH115-94; Moyo v Forestry Commission 1996 (1) ZLR 173 (H); Tuso v City of Harare 2004 (1) ZLR 1 (H); Chawora v Reserve Bank of Zimbabwe 2006 (1) ZLR 525 (H); Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H); Moyo v Gwindingwi N.O. & Anor HB168-11.

In Moyo v Gwindingwi N.O. & Anor HB168-11…, this court made the following pronouncement which I still stand by:

“In my view, domestic remedies in this particular case are those remedies and the procedure set out in the code of conduct as being available to an aggrieved party to pursue. An appeal to the Labour Court from a decision of the Director of Corporate Services is provided for in the code of conduct. It is a domestic remedy available to the applicant and she has to exhaust it.”

The respondent raised three points in limine. Firstly, it was argued that the applicant adopted the wrong procedure in that he should have lodged his complaint with the Health Professions Authority first in terms of section 22 and 5(f) of the Health Professions Act [Chapter 27:19].

This argument is without substance for the simple reason that a close reading of the relevant sections 5, namely 5.5(f), section 21(1) and section 22 of the Health Professions Act [Chapter 27:19] reveals that the applicant could not have competently approached the Health Professions Authority as that role can only be performed by the respondent. The Health Professions Authority cannot, mero meto, intervene to settle a dispute between the applicant and the respondent.

It is the respondent that elected to ignore the internal remedies….,.

Thirdly, the respondent argued that the applicant should have exhausted domestic remedies by referring his complaint to the Health Professions Authority.

In a line of cases, this court has determined that it will be very slow to exercise its general review jurisdiction in a situation where a litigant has not exhausted domestic remedies available to him.

A litigant is expected to exhaust available domestic remedies before approaching the courts unless good reasons are shown for making an early approach. See Musandu v Cresta Lodge Disciplinary and Grievance Committee HH115-94; Moyo v Forestry Commission 1996 (1) ZLR 173 (H); Tuso v City of Harare 2004 (1) ZLR (1) (H); Chawora v Reserve Bank of Zimbabwe 2006 (1) ZLR 525 (H); and Tutani v Minister of Labour and Others 1987 (2) ZLR 88 (H).

In her heads of argument, counsel for the applicant submitted that an application for review can be made to the High Court provided the applicant can show “special circumstances” or “good reason” for not exhausting domestic remedies. She argued that the dispute between the parties was intertwined between the termination of employment and the applicant's tenancy at a house belonging to the first respondent from which she was threatened with eviction. This therefore created the special reason to approach the court earlier. Counsel for the applicant appeared to shift from the above argument in her submissions in court. She stated that the applicant had, in fact, exhausted the available domestic remedies as “domestic” should be interpreted to exclude the Labour Court where the applicant should have appealed in terms of the Code of Conduct.

I do not agree with both schools of thought.

In my view, domestic remedies, in this particular case, are those remedies and the procedure set out in the Code of Conduct as being available to an aggrieved party to pursue. An appeal to the Labour Court from a decision of the Director of Corporate services is provided for in the Code of Conduct. It is a domestic remedy available to the applicant and she has to exhaust it.

In Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S)…, GUBBAY CJ stated:

“In Tutani v Minister of Labour and Others 1987 (2) ZLR 88 (H) at 95D, MUTAMBANENGWE J observed that where domestic remedies are capable of providing effective redress in respect of the complaint, and, secondly, where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust his domestic remedies before approaching the courts unless there are good reasons for not doing so. The same approach was applied by SMITH J in Musandu v Chairperson, Cresta Lodge Disciplinary Committee HH115-94 (not reported) and was referred to with approval by MALABA J in Moyo v Forestry Commission 1996 (1) ZLR 173 (H) at 191 D – 192B. 

I respectfully endorse it.

In this matter, the procedure under section 6 of the Code of Conduct, and the availability of an appeal to the Labour Relations Tribunal, was capable of affording the respondent effective redress against the unlawful termination of his employment. Furthermore, the unlawfulness had not been undermined by such domestic remedies, for the grievance procedure had not been resorted to. Finally, no special circumstances or good reasons were advanced by the respondent for approaching the High Court.”

Clearly, therefore, the availability of an appeal to the Labour Court is part of domestic remedies and it was capable of according the applicant effective redress.

Counsel for the respondent sought to argue that the applicant has not exhausted its domestic remedies and therefore should not be heard by this court; it should, instead, appeal to the Commissioner, and thereafter to the Fiscal Appeals Court.

With all due respect to counsel, that argument failed to find favor with me, for the reason that section 32 of the Value Added Tax Act [Chapter 23:12] does not mention the directive to issue a garnishee order as one of the issues that an aggrieved taxpayer can object to. Section 32 of the Value Added Tax Act [Chapter 23:12] mentions:

(i) The refusal to register that person in terms of the VAT Act.

(ii) Cancellation of that person's registration in terms of the VAT Act or refusal to cancel registration.

(iii) Refusal to make a refund, an assessment made in terms of sections 31, 36, 37.

(iv) Any direction or supplementary action made by the Commissioner in terms of section 52(3), 52(4).

Secondly, contrary to the finding by the court a quo that there is no room to lodge an objection against the imposition of the garnishee.

The appellant contends that the arbitrator should not have entertained the dispute as the respondent had not exhausted the internal domestic remedies available to him under the Labour National Employment Code of Conduct, S.I.15 of 2006.

…,. The Court also accepts counsel for the first respondent's preliminary point that the applicant should have exhausted the remedy of an appeal instead of making a Constitutional application.

The law provides a clear remedy of an appeal where an applicant is not happy with a decision of a lower court. Competent relief could have been granted by the Supreme Court, on appeal, since all that the applicant wanted was an order that the property in dispute was not especially executable and subject to sale by execution.

The second ground in the special plea, that the plaintiff has not exhausted domestic remedies, has no merit.

It is common cause that the plaintiff and the defendant are members of two distinct cooperatives, Joseph Msika Housing Cooperative Ltd and Casa Nova Housing Cooperative, respectively. The dispute is between the members of the cooperatives and not the cooperatives. The dispute between the parties is anchored on spoliation and recourse would be to seek redress by the court and not referral of the matter to arbitration.

Section 115 of the Cooperatives Societies Act [Chapter 24:05], which counsel for the respondent sought to rely on, relates to disputes between a society and its members or between registered societies.

The scenario in casu is a dispute between members of two distinct cooperatives and it does not fall for dispute resolution as provided in the Cooperatives Societies Act [Chapter 24:05]. 

2. Jurisdiction of this court

During argument, in response to a query by myself, counsel for the defendants conceded that it was not a question of this court lacking jurisdiction to determine the dispute between the parties, but rather the fact that the plaintiffs had allegedly not exhausted their domestic remedies when they had “rushed” to this court.

As mentioned earlier, the argument by the defendants was that the Constitution provided ways and means of terminating someone's office. It was argued that the plaintiffs had not followed those channels.

The general view is that it is discouraged for a litigant to rush to this court before he or she has exhausted such domestic procedures or remedies as may be available to his or her situation in any given case. He or she is expected to obtain relief through the available domestic channels unless there are good reasons for not doing so: see Nokuthula Moyo v Norman Gwindingwi NO & Anor HB168-11.

See also Musandu v Cresta Lodge Disciplinary and Grievance Committee HH115-94; Moyo v Forestry Commission 1996 (1) ZLR 173 (H); Tuso v City of Harare 2004 (1) ZLR 1 (H); Chawara v Reserve Bank of Zimbabwe 2006 (1) ZLR 525 (H); and Tutani v Minister of Labour and Others 1987 (2) ZLR 88 (H).

However, it is also the general view that the domestic remedies must be able to provide effective redress to the complaint. Furthermore, the alleged unlawfulness complained of must not be such as would have undermined the domestic remedies themselves: see Tutani v Minister of Labour & Ors 1987 (2) ZLR 88 (H)…,; Moyo v Forestry Commission 1996 (1) ZLR 173 (HC)…,; and Musandu v Chairperson of Cresta Lodge Disciplinary and Grievance Committee HH115-94.

The court will not insist on an applicant first exhausting domestic remedies where they do not confer better and cheaper benefits: Moyo's case, supra, at p 192.

In casu, it was rather a long shot for the defendants to pitch an argument on the so-called domestic remedies. There was no such thing. The Constitution of the Harare Municipal Workers Union had no provision dealing directly or indirectly with the plaintiffs' grievances. Evidently, the defendants had to stitch together some disparate provisions of the Constitution in order to craft the 'domestic remedies' argument. They relied on the following clauses:

(a) Clause 10(1)(b), which provided for the composition of the Executive Committee of the Harare Municipal Workers Union and the one year tenure of office.

(b) Clause 10(2), which said a member whose subscriptions were in arrears was ineligible for a position in  the Executive Committee of the Harare Municipal Workers Union.

(c) The same clause, 10(2), which said a member on suspension was not eligible for election into the Executive Committee of the Harare Municipal Workers Union.

(d) Clause 10(4), which said a member of the Executive Committee of the Harare Municipal Workers Union could vacate office if he resigned, or was suspended or expelled, or if he missed three consecutive sittings.

The defendants' argument was that there was nothing stopping the plaintiffs from requisitioning Annual General Meetings or Triennial General Meetings and sponsoring motions to vote out stale office bearers.

The plaintiffs' grievance was that as Chairman, the first defendant wielded enormous influence and control of the Harare Municipal Workers Union. As part of their proof for that proposition, they pointed to the amended Constitution. They said it was contrived to deal with such of the complaints against the first defendant as they had brought to court.

That sounded plausible enough to me.

Clause 5(b) of the new Constitution, highlighted above, is certainly a curious provision. It is demonstrably an emotional outburst against the employer or his agent questioning any individual's right to membership of the Harare Municipal Workers Union. The same emotions are exuded in the first defendant's so-called letters of expulsion to the plaintiffs. Undoubtedly, in this action, the first defendant regarded the plaintiffs as nothing more than mere surrogates for Harare City Council. According to him, their court case, this case, was nothing but a hatchet job to get rid of him.

The plaintiffs complained that using his vantage position as Chairman, the first defendant had avoided or prevented the holding of any of the Constitutional meetings of the Union. The defendants did not deny that since 2007 no meeting of any sort had been held. The one finally held, in 2012, was undoubtedly a response to the plaintiffs' court case. The plaintiffs' action had been instituted in May 2011. Therefore, even if I had been persuaded that there had been adequate or effective domestic remedies to deal with the plaintiffs' grievances, which I was not, still the first defendant had undermined the plaintiffs' rights thereto….,.

1. FAILURE TO EXHAUST DOMESTIC REMEDIES

Initially, TBIC Investments (Private) Limited's point was that in the withdrawal letter, the Minister had invited the applicant to make representations - albeit after the decision to withdraw the offer letter had been made. After he had obliged, the applicant, had, however, gone on to file Case 2 before waiting for the Minister's response. Therefore, the argument proceeded, the process had not been completed.

For the record, on 20 December 2011, the Minister had finally responded to the applicant's representations. But he said nothing new. He maintained his position that the land in question had been bought by an indigenous entity which had enjoyed the right of use prior to getting transfer and that it was the entity that had been behind the de-listing of the property. The Minister also said that if TBIC Investments (Private) Limited had procured the title deed fraudulently then that was a criminal issue that had to be investigated.

However, even if the Minister had not written the letter of 24 December 2011, I would still not have been prepared to hold that in Case 2 the applicant was non-suited.

I am satisfied that he had been treated unfairly. In my view, the Minister did not seem to have been sufficiently sensitive to his plight. Here was someone who had been an indigenous land owner. Despite the Minister's avowed policy of sparing indigenous land owners from compulsory acquisitions, the applicant had nonetheless lost his Guernsey Farm. Of course, the Minister had tried to do something about it. He had offered him the Goromonzi property. But, whatever the Minister's good intentions, the fact remains that since 2009 the applicant had not been able to occupy that land. The Beatrice farm that he had been offered as an alternative had demonstrably turned out to be unsuitable for reasons that he had clearly and satisfactorily articulated to the Minister. It had never been in doubt that the applicant had been entitled to a second farm. TBIC Investments (Private) Limited's argument that the Minister had no obligation to offer the applicant alternative land was self-serving and contrary to the Minister's own position. The Minister's own position was that he would continue to look for an alternative piece of land for the applicant.

Thus, given that the applicant had lost his own farm in 2005 despite that he was an indigenous person; given that the land he had been offered in 2009 had turned out to be unavailable because TBIC Investments (Private) Limited and Paul Esau Hupenyu Chidawanyika claimed it; and given that when he had taken action in Case 1 to assert his rights, the process had been thwarted by the Minister when he had revoked the offer letter just before the hearing, I would not be prepared to hold that in Case 2 the applicant had approached the court prematurely. That case had been instituted some four months after the Minister's withdrawal letter.

I am satisfied that, by the withdrawal letter, the Minister had made a substantive decision.

From the cover, the application was allegedly a complaint in terms of section 345 of the Mines and Minerals Act [Chapter 21:05]. But this was neither here nor there.

Section 345[1] of the Mines and Minerals Act [Chapter 21:05] gives this court the original jurisdiction in every civil matter, complaint or dispute arising under the Act, unless the parties have agreed, or this court has decided, to refer the matter to the Mining Commissioner in the first instance….,.

Section 345[1] of the Mines and Minerals Act [Chapter 21:05] reads:

Counsel for the respondents submitted that the applicants' approach to this court was incompetent by reason that they had not exhausted internal or domestic remedies.

He relied on the authority of Sithole v Senior Assistant Commissioner and Others HB17-10 where this court, per NDOU J, pronounced that a failure by the applicant, without good and sufficient cause, to exhaust domestic remedies available to him is fatal to his application and Moyo v Forestry Commission 1996 (1) ZLR 173.

Counsel for the respondents located the domestic remedies available to the applicants in the suspension letters written by the first respondent where he states at the end that:

“During the period of your suspension you are not allowed to visit any of our campuses without my permission and a breach of this condition shall constitute another act of misconduct for which you will be duly charged.”

He submitted that the foregoing provision of the suspensions accorded the applicants a domestic remedy before they could approach this court for recourse.

I do not agree. Indeed, that argument is without merit for two reasons;

(i) Firstly, there is no remedy at all provided by the cited portion of the suspension letters because it only allowed the applicants to approach the Vice Chancellor if they desired to visit the campuses. It is not a remedy against the suspension from University studies and examinations.

(ii) Secondly, while the Vice Chancellor is empowered to suspend a student, his decision is subject to ratification by the University Council in terms of section 8(5) of the Midlands State University Act [Chapter 25:21]. Once the decision has been ratified by the Council it cannot be that of the Vice Chancellor alone and he certainly cannot competently revise it without reference to the Council.

In any event, domestic remedies envisaged by the law, are those which are available to the applicant by virtue of the disciplinary procedure of the institution not what the respondents have sought to rely upon.

While the Mining Commissioner has jurisdiction to resolve a mining dispute, it occurs to me that, in the circumstances of this matter, that cannot be regarded as a suitable course of action.

For a start, the Commissioner has already ruled on the matter which ruling has been disregarded by the first respondent with impunity. More importantly, the exigency of the matter calls for urgent action which the Commissioner appears incapable of.

In Puwayi Chiutsi v Commissioner of Police and Zimbabwe Revenue Authority and Anor HH65-05, BHUNU J said:

“Apart from the need to exhaust domestic remedies before approaching the courts, section 196 precludes the applicant from approaching the courts before observing laid down procedures…,. As the laid down 60 days period has not yet expired, this application is ill-conceived and premature. The section is mandatory and admits of no exception because it constitutes a prohibition without making provision for any exception.”

The respondent has opposed the application stating that the debt is not yet due because there is a serious dispute as to the exact amount owing - which dispute has been referred to arbitration.

The arbitration is still to be undertaken in order to settle the dispute and determine the amount due. It made reference to areas of conflict, namely, the allegedly undelivered wheat worth US$462,835=60 which is included in the claim, weight differences accounting for about US$46,438=08 and $167,500=, defective delivery (rotten rice) worth $14,000= and errors in computation of interest which would reduce its liability by $73,192=21.

For these reasons, the respondent argued, the dispute should be resolved by arbitration in terms of the agreement of the parties….,.

The question of the exact amount owing has been referred to arbitration, a process which the applicant does not appear keen to follow, it having elected, instead, to go for the winding up of the respondent….,.

Even if I am wrong in that conclusion, that it would be unsafe to allow the liquidation of the respondent…., only for the liability to be successfully contested, this is a matter in which I would, in the exercise of my narrow discretion, withhold the order of winding up because of a number of reasons.

In the first instance, the parties agreed to refer the dispute to arbitration and that arbitration process is yet to commence. Surely, referral of the matter to arbitration was upon a realization that there was a bona fide dispute involving figures.

In the second instance, without a fair determination of the dispute, the applicant stopped midstream and then pursued this application for a winding up. In so doing, it is seeking to deprive the respondent an opportunity, provided by the agreement between the parties, to have the dispute determined by arbitration. Indeed, the applicant would like the consequences of winding up to set in without it having proved its claim - without subjecting the claim to the test of arbitration….,.

To my mind, the applicant is aware that arbitration, which was agreed by the parties, would not yield positive results and has therefore elected to employ the procedure for winding up in order to enforce payment of a disputed debt. This is unacceptable as it amounts to harassment or oppression of the respondent; Millward v Glaser 1950 (3) SA 547 (W)…,.

The respondent submitted that the matter ought to have been referred to arbitration in terms of the arbitration clause in the lease agreement.

In Recoy Investments (Pvt) Ltd v Tarion (Pvt) Ltd 2011 (2) ZLR 65 (H), it was held…, that:

“In terms of article 8 of the schedule to the Arbitration Act, which is clear and admits of no ambiguity, the court has the jurisdiction to hear the matter where none of the parties has applied for a stay of the proceedings and a consequential referral to arbitration. A party wishing to have the matter decided by arbitration is obliged to set the terms of the dispute. An arbitration process cannot be set in motion in the absence of a dispute. Before reference to arbitration, there must therefore exist a dispute which is capable of formulation prior to the appointment of an arbitrator. In the absence of a dispute, an arbitrator cannot be appointed and therefore can be no reference to arbitration…,. The respondent did not allege that there was a dispute and had not applied for a stay of proceedings. The court accordingly had jurisdiction.”

See also Cargill Zimbabwe v Culvenham Trading (Pvt) Ltd 2006 (1) ZLR 381 (H).

By parity of reasoning, the respondent in casu did not frame a dispute for referral to arbitration and did not apply for stay of action proceedings under HC39/15. Consequently, nothing turns on the arbitration clause in the lease agreement. In any case, the relief sought by the applicant, being a declaratory order, can only be issued by this court in the exercise of its power under section 14 of the High Court Act [Chapter 7:06].

It is trite that, even though this court has inherent jurisdiction to decide any matter, traditionally, it will not invoke such inherent jurisdiction where a party has other domestic remedies through which it can obtain recourse.

Section 283(c)(i) of the Constitution introduced the involvement of the Provincial Assembly of Chiefs on whose recommendation the President appoints chiefs. This means what the applicants wanted to do in terms of their customs, as regards the nomination of the Acting Chief, may be included in the Provincial Assembly's recommendations to the President.

Section 286(1)(a) and (f) of the Constitution provides that the functions of a Provincial Assembly of Chiefs includes; the protection, promotion and development of Zimbabwe's culture and traditions and the facilitation of settlement of disputes between and concerning traditional leaders. It is therefore within a Provincial Assembly's mandate to make recommendations about how an Acting Chief should be nominated under the Budzi clan. This also means the applicants have alternative remedies through which they can stop the first respondent's appointment. They can, in addition to presenting their grievances to the President for resolution, present them to the Provincial Assembly of Chiefs which can in turn include them in its recommendations to the President.

This matter, which concerns the removal of a chief, was placed before me for trial. Section 283 of the new Constitution, Constitution of Zimbabwe Amendment (No.20) Act 2013, now deals comprehensively with the appointment and removal of chiefs as well as with any disputes pertaining thereto. With the leave of the court, heads of argument were submitted by counsel for the plaintiff and the fifth defendant in order to determine if the trial could proceed in light of this provision.

By way of a brief background, the plaintiff's claim is for an order:

“1. Declaring that the customary principles of succession to the Murinye chieftainship were not observed nor given due consideration in the appointment of the 5^th defendant as Chief Murinye.

2. Directing the 4^th Respondent (plaintiff appears to use Defendant and Respondent interchangeably although this matter was brought by way of action) (sic) to forthwith make a recommendation to the President for the removal of the 5^th Respondent (sic) from chieftainship of the Murinye clan.

3. Directing the 1^st, 2^nd, 3^rd and 4^th Defendants to cause a meeting of the eligible elders of the Murinye clan to be convened to elect the most eligible candidate from the MUNODAWAFA house for appointment as the next Chief Murinye.

4. Directing the 1^st, 2^nd, and 3^rd Defendants to record the conclusions of the meeting of the eligible elders of the Murinye clan and forward to the 4^th Defendant and form the basis for a recommendation to the President on the appointment of the next Chief MURINYE.

5. For the payment of costs by the Respondents (sic), jointly and severally, the one paying the other being absolved.”

The new Constitution provides as follows in section 283;

“283 Appointment and removal of traditional leaders

An Act of Parliament must provide for the following, in accordance with the prevailing culture, customs, traditions and practices of the communities concerned -

(a) The appointment, suspension, succession and removal of traditional leaders;

(b) The creation and resuscitation of chieftainships; and

(c) The resolution of disputes concerning the appointment, suspension, succession and removal of traditional leaders; but -

(i) The appointment, removal and suspension of Chiefs must be done by the President on the recommendation of the provincial assembly of Chiefs through the National Council of Chiefs and the Minister responsible for traditional leaders and in accordance with the traditional practices and traditions of the communities concerned;…,.

(ii) Disputes concerning the appointment, suspension and removal of traditional leaders must be resolved by the President on the recommendation of the provincial assembly of Chiefs through the Minister responsible for traditional leaders;…,.

(iii) The Act must provide measures to ensure that all these matters are dealt with fairly and without regard to political considerations;

(iv) The Act must provide measures to safeguard the integrity of traditional institutions and their independence from political interference.”

THE PLAINTIFF'S ARGUMENT

The plaintiff's position is that section 283(c)(ii) does not take away the jurisdiction of the court to hear the case. He draws strength from the provisions contained in the 6^th Schedule of the new Constitution, in particular section 18(9) which provides as follows:

“All cases, other than pending constitutional cases, that were pending before any court before the effective date may be continued before that court or the equivalent court established by the Constitution, as the case may be, as if this Constitution had been in force when the case were commenced, but -

(a) The procedure to be followed in those cases must be the procedure that was applicable to them immediately before the effective date;

(b) The procedure referred to in subparagraph (a) applies to those cases even if it is contrary to any provision of Chapter 4 of this Constitution.”

The plaintiff further relies on subsection 18(10)(b) which provides that:

“For the purposes of subparagraph (9) -

(a)…,.

(b) A civil case is deemed to have commenced when the summons was issued or the application was filed, as the case may be.”

As such, the plaintiff therefore points out that it initially issued summons on 23 September 2009, under HC4455/09, and, following an application for joinder, summons were re-issued again on 16 September 2011 under the present matter as case no. HC8352/11. The plaintiff's point, therefore, is that these summons essentially precede the new Constitution. According to the plaintiff, the matter therefore falls to be dealt with in terms of the procedure laid out in section 18(9) and (10) of the 6^th Schedule since the Constitution came into full effect on the 22 August in 2013.

The plaintiff further relies on the case of Gurta v Gwaradzimba NO HH353-13 for illustrating the Constitutional point that the procedure to be adopted in such cases is that which was applicable at the time.

THE 5^TH DEFENDANT'S ARGUMENT

The essence of the fifth defendant's argument is that the new Constitution clearly uses the word MUST in directing that such disputes be resolved by the President. It is argued that the word is peremptory rather than directory and requires strict compliance. The first defendant cites the cases of Sutter v Scheepers 1932 AD 165…, and also that of The Minister of Environmental Affairs and Others v Pepper Bay Fishing (Pvt) Ltd 2003 All SA 1 SCA for its point on the peremptory nature of the word.

Also put forward by the fifth respondent's counsel is the incompetency of the relief sought in light of the principles provided for in the Constitution. It is pointed out this court is being asked to make a recommendation for the removal of the fifth defendant when the Constitution clearly stipulates how such recommendation is to be made to the President….,.

The emphasis by the fifth defendant's counsel is, therefore, that it being clear that applicable principles are those in the new Constitution, it is the President, according to these principles, who has original jurisdiction in resolving any disputes relating to a Chief. It is therefore maintained that this court cannot hear this matter in preference to the President who is so mandated by the Constitution. It is the fifth defendant's position that in the absence of his pronouncement, it will be premature for this court to step in. Legal doubt is further expressed as to whether even if such pronouncement were made, this court could still review the President's decision.

THE EFFECT OF SECTION 18(9) OF THE 6^TH SCHEDULE

This matter indeed falls within the ambit of a non-constitutional matter which was pending at the time the new Constitution came into force. As such, as exhorted by section 18(9) of the 6^th Schedule, it is to be continued “as if the new Constitution was in place when the action was commenced.”

There is no doubt that the principles to be applied to the case are those of the new Constitution. The wording of section 18(9) is clearly designed to ensure that such cases, commenced prior to the new Constitution coming into force, are subjected to constitutional standards. In this instance, the new Constitution provides the channels which must be followed for the appointment, removal and suspension of a Chief in section 283(c)(i). It also articulates the channels that must be followed in disputes concerning the appointment suspension and removal of a chief, in section 283(c)(ii).

As regards to disputes, section 283(c)(ii) of the Constitution makes it clear that the President must deal with such disputes and that the recommendation must come to him through the Provincial Assembly of Chiefs and the Minister responsible for chiefs. In other words, the Provincial Assembly of Chiefs actively plays a role in the resolution of the dispute in accordance with the traditional practices and traditions of the communities concerned. It is their efforts or recommendations which are then communicated to the Minister who, in turn, communicates with the President for action.

As regards the appointment, removal, and suspension of a chief, as distinct from any dispute, section 283(c)(i) of the Constitution stipulates that the President is, again, the one who must act on the recommendation of the following: the Provincial Assembly of Chiefs through the National Council of Chiefs and the Minister responsible for chiefs.

The starting point is, therefore, at the provincial level. Among the duties of the National and Provincial Council of Chiefs, as stipulated in section 286(1)(f) of the new Constitution is “to facilitate the settlement of disputes between and concerning traditional leaders”. This is clearly a dispute which falls within their mandate in terms of their role in facilitating resolution since it concerns a traditional leader.

THE IMPORT OF SECTION 283 OF THE NEW CONSTITUTION

The next issue for consideration is whether the above provisions therefore oust this court's jurisdictions as argued by the fifth defendant's counsel.

In the recent case of Gambakwe and Ors v Chimene and Others HH465-15, UCHENA J discussed the import of section 283(c)(ii) of the Constitution regarding the resolution of disputes. In dealing with an urgent matter placed before him, which involved a dispute pertaining to chieftaincy, he made the following remarks pertaining to the ambit of this section:

“As already said, the requirement in section 283(c)(ii) of the Constitution, that disputes concerning the appointment of chiefs 'must be resolved by the President on the recommendation of the Provincial Assembly of Chiefs through the Minister responsible for traditional leaders;' imposes a duty on the President, and is indicative of the legislature's intention that only the President should resolve such disputes. Otherwise, how must the President resolve such disputes if the courts can also resolve them? The use of the word 'must' means he is obliged to resolve every such dispute…,. I therefore agree with Mr Dondo and Ms Hove that the applicants have come to the wrong forum.”

UCHENA J seems to suggest that the courts have no jurisdiction.

In cases such as this, where the President has the ultimate discretion on whom he appoints as Chief in terms of both the Constitution and the Traditional Leaders Act [Chapter 29:17], what is reviewable by the courts, as stated in the case of Chagaresango v Chagaresango 2000 (1) ZLR 99 (S), is not how the President exercises his discretion but whether those who formulate their advice to him, acted on sound principle. The Minister's advice which he relays to the President is said to be reviewable on three grounds, namely, illegality; irrationality; and procedural impropriety. See Rushwaya v Minister of Local Government & Anor 1987 (1) ZLR 15 (S)…, and Gorden Moyo v Stephen Mkoba & Ors SC35-13.

What would thus be reviewable in the present matter would be the Minister's advice in accordance with the channels stipulated in section 283(c)(i) and (ii) of the Constitution.

Constitutionally too, as provided for by section 171, the High Court has inherent jurisdiction to hear all civil and criminal matters throughout Zimbabwe. The High court is therefore always a forum of jurisdiction that can be selected by the parties and the court will exercise its jurisdiction where it is clear that it should. Critically, however, where domestic remedies for resolving the issue are provided, as in the case before me, the court will want to know why it should exercise its inherent jurisdiction if such remedies have not been exhausted. For the court's jurisdiction to be completely ousted would require a specific provision to that effect.

The key point therefore is that where a remedy is provided, it is indeed within the court's power to insist that the remedy be exhausted before it will intervene in the appropriate manner permissible. It would otherwise make no sense to ignore the fact that remedies are provided and constitutionally so in this case. The starting point, for coherence and clarity, is therefore to ensure that such remedies have been exhausted as a prelude to the court's intervention so that the court is essentially coming in where it should and in the manner that it should….,.

The import of the provisions of the new Constitution on issues relating to disputes and the removal of chiefs that were filed before its coming into effect are such that the procedures in section 283(c)(i)(ii) are to be applied in the face of a dispute. This is a natural consequence of the mandate to apply the provisions of the new Constitution to all cases that were pending. There is no escaping that reality.

There is no reason why the remedies provided in section 283(c)(i) and (ii) of the new Constitution cannot be exhausted. I therefore decline to hear this matter.

Accordingly, the matter is dismissed with costs.

Superior courts frown upon invitations to interfere with uncompleted proceedings of the inferior courts or special tribunals. They do so only in exceptional circumstances: see Attorney-General v Makamba 2005 [2] ZLR 54 [S]; Matapo & Ors v Bhila NO & Anor 2010 [1] ZLR 321 [H] and S v John 2013 [2] ZLR 154 [H].

Furthermore, it is discouraged for litigants to come to this court before they have exhausted such domestic procedures or remedies as may be available to them in any given situation. They are expected to obtain relief through the available domestic channels, unless there are good reasons for not doing so: see Tutani v Minister of Labour & Ors 1987 [2] ZLR 88 [H]; Moyo v Gwindingwi NO & Anor 2011 [2] ZLR 368 [H]; and Makarudze & Anor v Bungu & Ors 2015 [1] ZLR 15 [H].

Whilst by section 69 of the Constitution, it is everyone's right to access the courts for the resolution of disputes, this right does not detract from the obligation of persons subject to special tribunals, like the applicant is, to appear before them, in appropriate situations. The High Court should not be embroiled prematurely in the internal or domestic procedures of the police force, or of any other body for that matter. Only deserving cases should be entertained.

The present application is not one of them.

The first point in limine taken by counsel for the first to third respondents is that the appeal upon which this urgent chamber application is predicated was lodged to the wrong forum.

She submitted that the fourth respondent had acted in terms of section 50 of the Mines and Minerals Act [Chapter 21:05] hence the applicant could only competently note an appeal to the Minister of Mines and Mines Development and not the High Court. She further argued that the relief sought by the applicant cannot be granted in the circumstances.

I am not persuaded by this reasoning.

A proper reading of the applicant's notice and grounds of appeal shows that the grounds of appeal are not solely restricted to the proposed cancellation of the applicant's certificate of registration as provided for in section 50 of the Mines and Minerals Act. The applicant raises four grounds of appeal which include, inter alia, the failure by the fourth respondent to properly adduce relevant evidence, the failure to properly assess the evidence placed before the fourth respondent, arriving at a wrong finding of fact, and prescribing an improper penalty. Clearly, the grounds of appeal are not solely predicated or restricted to the provisions of section 50 of the Mines and Minerals Act which relates to the proposed cancellation of the applicant's certificate of registration. My perception is that the applicant has noted an appeal in terms of section 361 of the Mines and Minerals Act which provides as follows;

“361. Appeal from Mining Commissioner's Court to High Court

Any party who is aggrieved by any decision of a Mining Commissioner's Court under this Act may appeal against such decision to the High Court, and that court may make such order as it deems fit on such appeal.”...,.

The applicant's appeal is therefore in respect of the fourth respondent's decision on a number of issues and not necessarily on the issue relating to the proposed cancellation of the applicant's certificate of registration for which an appeal would lie to the Minister of Mines and Mines Development. It is my finding that the applicant's appeal is properly before this court and the point in limine taken in this respect lacks merit.

It is significant that the applicant filed this application without completing the appeal process which he had commenced and without bothering to withdraw the appeal either. The respondents immediately took that point in limine, namely, that the application for review was incompetent by reason that the applicant made it without exhausting domestic remedies available to him in terms of the Police Act [Chapter 11:10], a process which he commenced and left hanging in preference to this application…,.

The issue is simple, after lodging an appeal to the Commissioner General, which is a remedy available to the applicant aggrieved by the decision of a single officer, did the applicant exhaust that remedy?…,.

In his answering affidavit, the applicant contemptuously dismissed the points in limine stating:

“AD IN LIMINE

The points in limine raised by the 1^st respondent are baseless and meant to test the court's intelligence. I am advised, which advice I accept, that this Honourable Court enjoys inherent powers to review proceedings and decisions of the lower courts. Further, in terms of the Constitution, section 70(5)(a), I have a right to have my case reviewed by a High court.”…,.

There is…, no doubt that the applicant has not denied that the remedy of an appeal was commenced but not completed.

The applicant spurned the opportunity to explain why he did not exhaust internal remedies when it was presented to him electing to grand stand about the issue. Having left the appeal hanging and making an early approach to this court, on review, he was obliged to give good and sufficient reasons for doing so. This is because, this court will always refrain from exercising its general review jurisdiction where a party has not exhausted domestic remedies.

That is the point made by NDOU J in Sithole v Senior Assistant Commissioner and Others HB17-10 where the learned judge stated:

“If I am wrong in the above finding, still, the application had to be dismissed for failure to exhaust internal remedies. Even if it is true that the applicant failed to get audience with the 1^st and 2^nd respondents, applicant is at liberty to approach the Police Service Commission for relief - section 16 of the Police Trials and Boards of Inquiry Regulations, 1965. Thus, applicant's failure, without good and sufficient cause, to exhaust domestic remedies available to him is fatal to his application; Tutani v Minister of Labour and Others 1987 (2) ZLR 88 (H) and Communications Allied Svc(s) Workers Union of Zimbabwe v Tel One (Pvt) Ltd 2005 (2) ZLR 280 (H) at 287.”…,.

It was stated in Tutani v Minister of Labour and Others 1987 (2) ZLR 88 (H)…, that where domestic remedies are capable of providing effective redress in respect of the complaint, and, secondly, where the unlawfulness alleged has not been undermined by the domestic remedies themselves, a litigant should exhaust the domestic remedies before approaching the courts unless there are good reasons for not doing so. That judgment was cited with approval by the Supreme Court in Girjac Services (Pvt) Ltd v Mudzingwa 1999 (1) ZLR 243 (S)…,.

Let me, therefore, repeat what I stated in Moyo v Gwindingwi NO & Another 2011 (2) ZLR 368 (H)…, ;

“In a line of cases, this court has determined that it will be very slow to exercise its general review jurisdiction in a situation where a litigant has not exhausted the domestic remedies available to him. A litigant is expected to exhaust available domestic remedies before approaching the courts unless good reasons are shown for making an early approach.”

See also Makarudze and Another v Bungu & Others 2015 (1) ZLR 15 (H)…,.

While it is true that this court has review jurisdiction even in respect of un-terminated proceedings of an inferior tribunal, it retains a discretion to decide whether to exercise that jurisdiction or not. This court will certainly not jump to exercise its jurisdiction where clearly the applicant has other remedies available to him which he has spurned in favour of making an early approach to this court. See Chiwundo v Zimbabwe National Family Planning Council HH212-13.

That a local remedy is inconvenient, unattractive or does not produce a favourable result is not enough to absolve one from pursuing such remedies, nor are doubts about the effectiveness of local remedies or prospects of financial costs involved.

See Human Rights Committee decision in A v Australia CCPR/C/59/D/560/1993 (A v Australia [1997] UNHRC 7, UN Doc CCPR/C76/D/900/1993). See also Article 19 v Eritrea (2007) AHRLR 73 (ACHPR2007).

It is incumbent upon a complainant to take or attempt to take necessary steps to exhaust local remedies.

According to the European Court of Human Rights, even if an applicant has reason to believe that available local remedies and possible appeals will be ineffective, he should still seek them to allow local or domestic courts and/or tribunals and authorities the opportunity to develop existing procedures and rights by way of interpretation.

See Layla Sahin v Turkey ECHR 2005-XI (GC) 44774/98. See also DePalle v France 2010-111 ECHR.

This is particularly important for the maintenance of public order in a democratic society….,.

As I have already stated, there is a procedure to be followed by an aggrieved party which is provided for in the employment code of conduct.

We have a situation where the applicant was dismissed from employment in terms of an employment code of conduct. It provided relief to her which she chose not to pursue. She cannot then come now, because she has lost that relief by prescription, and seek a declaration of her rights which she could have enforced in a competent tribunal.

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society.

The truth of the matter is that these currencies had been circulating on what had been dubbed a 'parallel market' for quite some time. There are those who welcomed the formal adoption of those currencies as legal tender in this country which had been ravaged by the knock-on effects of super hyper inflation. Others bemoaned the symbolic annihilation of our currency which they associated with a corresponding perception of the annihilation of our national sovereignty. The majority of the people were perturbed by the effect of the introduction of the multi-currency system on their pensions, insurance policies, and life savings.

This case is about a group of workers who, between them, gave more than twenty years of loyal service to their employer. In terms of the pension policy that was in operation at the outset both employer and employees diligently contributed monthly to a pension fund.

The issue that falls for determination, put simply, is whether all sixty seven employees are entitled to challenge the determination by the employer as to what constitutes their basic annual salary for purposes of calculating their pension benefits. Depending on the answer to this question, the court will have to determine, further, whether these employees are entitled to demand further payments by the employer towards their eventual pensions.

At the heart of these issues lies the contentious issue of the effect of the introduction of the 'multi currency' system on the calculation of pension contributions which had previously been based on our local currency, and were now set to be calculated on the basis of the United States dollars, the currency that the employees were now remunerated in.

Some would say that the question ought to be holistically and definitively addressed by Parliament as a matter of policy. Others feel that it is simply a question of implementing the provisions set out in the relevant pension fund.

We have been asked to issue an interdict and a declaratur as to the parties' rights and obligations in terms of the rules of their pension fund.

The application before the court was filed of record on 16 December 2013. The founding affidavit was deposed to by G. Chiparaushe in a personal capacity and as the duly authorized representative of the sixty six other applicants who attached supporting affidavits authorizing him to represent them.

The first respondent is a sugar cane growing and processing company duly registered in accordance with the laws of this country and the employer of the sixty-seven applicants.

To avoid confusion, the first respondent shall be referred to as TRIANGLE. The second respondent is the Triangle Senior Staff Pension Fund (to be referred to as TSSPF), a properly constituted pension fund, duly registered with the Commissioner of Insurance, Pension and Provident Funds Act (IPEC), in terms of section 6 of the Pension and Provident Funds Act [Chapter 24:09]. The Triangle Senior Staff Pension Fund (TSSPF) is governed by its rules (the Fund Rules).

The first applicant averred that the application before the court was brought in accordance with Rule 9 of the Triangle Senior Staff Pension Fund Rules which provides that a member or any person whose claim is derived from a member shall have the right to refer a dispute to a court of law in this country for determination.

The applicants had previously approached an arbitrator, Honourable J.T Mawire, in terms of the Labour Act [Chapter 28:01] to determine the dispute, and, on or about the 5^th of September 2013, the arbitrator found that he did not have the jurisdiction to determine the dispute between the parties.

It was submitted, on behalf of the applicants, that they had a clear right to the interdict and declaratur that they sought.

The first applicant averred that he became an employee of TRIANGLE on the 1^st of April 1980, and a member of the Triangle Senior Staff Pension Fund (TSSPF) on the 1^st of July 1996. As from the date of his membership to the Triangle Senior Staff Pension Fund, TRIANGLE commenced deducting his share of pension contributions from his basic salary. The applicant remains a member of the Triangle Senior Staff Pension Fund to date.

The first applicant averred, further, that in terms of clause 11 of his contract of employment, membership to the Triangle Senior Staff Pension Fund (TSSPF) became compulsory on the date of his appointment, and his contribution of 7% of his basic monthly salary was automatically deducted and forwarded to the Triangle Senior Staff Pension Fund (TSSPF), by TRIANGLE, every month. According to the Terms and Conditions of the employment of C Band staff (Loss Control Manager), as at 1 July 1996 the basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that:

“The basic salary is pensionable and the company currently contributes 13% to the Triangle Senior Staff Pension Fund.”

After the basic salary was a list of benefits which were to be paid on behalf of the employee on a 50% contribution basis, such as CIMAS medical aid and a drug scheme. Further benefits included an education allowance which was expressly qualified as being taxable.

The first applicant averred that, currently, in terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules, TRIANGLE is obliged to make a corresponding monthly contribution to the Triangle Senior Staff Pension Fund of 13.5% of the first applicant's basic monthly salary. On the basis of the aforesaid, the first applicant averred that he and his fellow applicants have a clear right to have a deduction of 7% of his basic monthly salary made and to have a corresponding 13.5% of his basic monthly salary contributed by TRIANGLE. Failure to match the first applicant's contribution would be a failure by TRIANGLE to abide by the Triangle Senior Staff Pension Fund Rules.

It was submitted that, in or about October 2000, the Managing Director of TRIANGLE, Mr. J. M. Cleasby, advised members of the Triangle Senior Staff Pension Fund (TSSPF) that it was closed to new entrants on the basis that its existing members would be given an option to transfer to a different pension fund, the Triangle Pension Plan (hereinafter referred to as The Money Plan). In November 2000, Mr. Cleasby wrote a letter to the members of the Triangle Senior Staff Pension Fund and advised them that the date of transfer to The Money Plan was the 1^st of January 2001. Paragraph 3 of the letter stated that:

“To assist you in making a decision please find enclosed;

(a) Comparison booklet.

(b) Illustration letter.

(c) Option form.”

It was submitted, on behalf of the applicants that, TRIANGLE caused a booklet called 'Defined Benefit Triangle Senior Staff Pension Fund or Defined Contribution The Money Plan', which compared the two schemes to be published. All sixty seven applicants opted to remain members of the Triangle Senior Staff Pension Fund (TSSPF).

The first applicant averred that the applicants suffered an injury and/or that, alternatively, an injury is reasonably apprehended by them. In support of this contention is the averment found in paragraph 18 of the first applicant's founding affidavit, that TRIANGLE has unilaterally decided to refuse to make its share of contributions to the Triangle Senior Staff Pension Fund and/or to deduct their 7% contributions from their basic monthly salaries. The allegation against TRIANGLE is that, by refusing to recognize most of the earnings of members of the Triangle Senior Staff Pension Fund (TSSF) as 'pensionable', it has, by its conduct, breached the terms of the Triangle Senior Staff Pension Fund Rules and interfered with the accrual of pension benefits.

In support of this averment, the first applicant referred to a letter to the trustees of the Triangle Senior Staff Pension Fund (TSSPF), dated 1 April 2009, written by the TRIANGLE managing director, Mr. S. D. Mutsambiwa. The letter was entitled “Pensionability of US$ Salaries”. It reads as follows:

“Kindly note that the January 2009, February 2009 and March 2009 salaries have been paid in USD$ to employees who are members of the Triangle Senior Staff Pension Fund (TSSPF). These salaries were paid in USD$ without any confirmation by the employer whether or to what extent the salaries would constitute pensionable emoluments. A decision in this regard is still to be made pending a review of the 'dollarisation' of the Zimbabwean economy and the bearing this will have, amongst other things, on the functioning of the Fund. The company will be arranging a meeting with the Board of Trustees in the near future to consider the way forward both in relation to existing pensioners and active member. In the meantime, and until further notice, contributions will be remitted to the Fund Administrators as an interim measure pending final decisions regarding the way forward in respect of the Triangle Senior Staff Pension Fund (TSSPF). This interim arrangement should under no circumstances be regarded as an implied decision having been taken that current USD$ salaries are indeed classified as pensionable emoluments.”…,.

On 8 July 2009, TRIANGLE introduced the “guaranteed package” to employees in the Executive grade, backdated to June 2009….,.

In paragraph 24 of his founding affidavit, the first applicant avers that all the applicants were forced to sign the acceptance letter in unilateral variation of their conditions of employment.

To prove this claim, he referred to an electronic mail communication dated 15 December 2009, addressed to Mr, Eston, in which Fred Nyangwe advised that Mr. Eston's failure to sign the letter which contained the new conditions of service, meant that, with effect from 1 December 2009, his salary, as set out in the letter, would be discontinued and he would go back to earning his old salary as at 31 May 2009. He was also advised that the difference between the two salaries, which he had been paid, would be deducted from his old salary until it had been recovered in full.

On 7 October 2010, TRIANGLE announced that the Triangle Senior Staff Pension Fund (TSSPF) would be discontinued and its active members moved to the Money Fund with effect from 1 November 2010. The Triangle Senior Staff Pension Fund Trustees refused to sign a resolution to approve the disbanding of the Fund on the basis that this violated the Triangle Senior Staff Pension Fund Rules and constituted a reversal of the undertakings made by TRIANGLE to the Fund members.

The Trustees were of the view that the procedure set out by Rule 36 of the Triangle Senior Staff Pension Fund Rules had not been followed.

A meeting was held at which TRIANGLE announced the transfer of the Triangle Senior Staff Pension Fund members to the Money Plan and told the members that the transfer values would be based on January 2009 salaries and not on current salaries.

Again, this was alleged to be in violation of the Triangle Senior Staff Pension Fund Rules.

The applicants' contention is that the relevant Rule equates pensionable emoluments to a member's basic salary or wage. Members' basic salaries had increased significantly since 2009, in some instances by 500%. TRIANGLE contended that following the Triangle Senior Staff Pension Fund Rules would result in its bankruptcy.

On 19 October 2010, the Triangle Senior Staff Pension Fund members delivered a petition to the trustees of the Triangle Senior Staff Pension Fund to demonstrate that they did not wish or agree to transfer from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan. On 15 February 2011 the trustees addressed a letter to the TRIANGLE Human Resources Manager. Paragraph 3 of the letter reads as follows:

“…,. Of concern by members is why the trustees are not being consulted on the future of the Fund in accordance with the Fund's rules. Member trustees are not being kept informed as to what is happening and are not being asked for input or direction…”

In February 2011, TRIANGLE announced a further annual salary review together with changes to the structure of employment benefits. Members were asked to agree to and sign for these changes by 7 March 2011. Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, reads as follows:

“Dear Mrs Eston,

The structure of your remuneration package has been reviewed in the context of the need to align the employee remuneration framework…,. It is confirmed that your actuarily calculated benefit in the TSSPF is to be based on the USD$ salary that has been used to determine your Fund contributions since 1 January 2009…,.”

In response to the petition by members of the Triangle Senior Staff Pension Fund (TSSPF), the Insurance and Pensions Commission (IPEC) called a meeting and advised that TRIANGLE was at liberty to disband the Triangle Senior Staff Pension Fund (TSSPF) - but only after fully funding it and complying with the requisite termination procedures.

In paragraph 38 of the founding affidavit, it is averred, on behalf of the applicants, that they have no other remedy. Various meetings with the trustees have not yielded any results. TRIANGLE has continued to refuse to recognize members' basic salary as the pensionable emolument. Repeated appeals to the Insurance and Pensions Commission (IPEC) to intervene have not yielded any tangible solutions.

The applicants reiterate that no other remedy other than a declaratur and an interdict can assist them to assert their pension rights.

On 20 January 2014, TRIANGLE filed a notice of opposition.

The opposing affidavit was deposed to by Fred Nyangwe, the Human Resources director. He raised various points in limine;

(i) The first of which was that the applicants had failed to exhaust domestic remedies.

(ii) The second preliminary point raised is that there are material disputes of fact which make this matter incapable of resolution on the papers filed of record.

(iii) The third preliminary point raised in the founding affidavit is that this matter is lis pendens, the decision of the arbitrator, Mr. Mawire, of 23 September 2013, not being final.

(iv) The final preliminary point raised is that this matter has prescribed because the applicants' claims arose in August 2009, or, alternatively, January and August 2010.

On 20 February 2014, an answering affidavit was filed on behalf of the applicants. TRIANGLE was accused of usurping the power of the Board of Trustees of the Triangle Senior Staff Pension Fund (TSSPF) and of attempting to close the Fund. The trustees deliberated over the dispute for more than two years and it was alleged that they have failed to resolve the issue because the chairman of the Fund frustrated all efforts to settle the matter. It was contended that TRIANGLE frustrated efforts by the Insurance and Pensions Commission (IPEC) to resolve the dispute starting with the meeting of 6 October 2011, by failing to comply with the Insurance and Pensions Commission directives.

The issues that fall for determination before this court are as follows:

1. Whether this court is correctly seized with this matter.

2. Whether the applicants failed to exhaust domestic remedies.

3. Whether the applicants claim has prescribed.

4. Whether there are material disputes of fact which are not capable of resolution on the papers filed of record.

5. What constitutes basic salary for purposes of calculating the contributions due from the applicants and from TRIANGLE for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF) every month.

6. Whether the applicants are entitled to the relief sought....,.

(a) Whether this court is correctly seized with this matter - the cause of action

It was submitted on behalf of TRIANGLE that the applicants' contention that their cause of action is derived from Rule 9 of the Triangle Senior Staff Pension Fund Rules is a misconception. It was submitted that because there is no cause of action, no relief can be given by this court.

Rule 9 of the Triangle Senior Staff Pension Fund Rules reads as follows:

“Rule 9 Disputes

“If a dispute arises in respect of any Member or any person whose claim is derived from a Member, the Trustees, acting upon such evidence as they deem adequate, whether amounting to legal proof or not, shall determine the matter provided, however, that the Member or person whose claim is derived from a Member shall have the right, in the event that they are not prepared to abide by the decision of the Trustees, to refer the dispute to any recognized body for arbitration or to a court of law within Zimbabwe for determination. In the event of such referral, the Principal Officer shall inform the Registrar, in writing, of the nature of the dispute.”

The contention that Rule 9 of the Triangle Senior Staff Pension Fund Rules does not create a cause of action but merely sets out the pre-requisites to a right of action to resolve disputes against the Triangle Senior Staff Pension Fund (TSSPF) is a curious one.

Let us examine it further.

TRIANGLE contended that, in order for this court to have jurisdiction to hear the dispute, we must consider whether the dispute contemplated by Rule 9 embraces a dispute between a member and the employer, we must consider whether the requirement of the matter being determined by the Trustees is a pre-requisite to further action, and, whether a Member can rely on Rule 9 where there has been no decision by the Trustees, when Rule 42(ii) of the Triangle Senior Staff Pension Fund Rules is taken into consideration.

“Rule 42 Effect on terms of employment

(i)…,.

(ii) No person shall have any claim in respect of the Fund or against the Fund or against the Trustees or the employers, except in accordance with the provision of these rules.

(iii)…”

In paragraph 84 of its heads of argument, it is submitted on behalf of TRIANGLE that the dispute contemplated by Rule 9 is one between a member and the Triangle Senior Staff Pension Fund (TSSF) and not between a Member and the employer. It is argued that Rule 9 gives no right of action to an employee against the employer; such a dispute must first be determined by the Trustees.

Rule 9 of the Triangle Senior Staff Pension Fund Rules is peremptory; in the event of a dispute the Trustees shall determine the matter.

It is mandatory that the Trustees first determine the matter.

In the interpretation of statutes the word shall is construed as being peremptory rather than directory. See Sutter v Scheepers 1932 AD 165…, where the court said that:

“Without pretending to make an exhaustive list, I would suggest the following tests, not as comprehensive but useful guides. The word 'shall,' when used in a statute, is rather to be construed as peremptory than as directory unless there are other circumstances that negative this construction…”

See also Prospect Estates Ltd v The King 1942 SR 41…,.; Washaya v Washaya 1989 (2) ZLR 195 (HC)…,.; Bulawayo Bottlers (Pvt) Ltd v Minister of Labour, Manpower Planning & Social Welfare & Ors 1988 (2) ZLR 129 (HC)…,; S v Makamba 2004 (1) ZLR 169 (HC)…,.

The word 'may' is directory, which means that, when it is used in a statute, it gives a discretion whether or not to act.

Clearly, Rule 9 explicitly gives a Member who is not prepared to abide by a decision of the Trustees, a right to refer the dispute to arbitration or to court. It was contended on behalf of TRIANGLE that the applicants do not have a right to approach this court, that doing so flies in the face of Rule 42(ii) of the Triangle Senior Staff Pension Fund Rules because the alleged dispute has not been subject of a compulsory determination by the Trustees.

It is my view that the arguments proffered on behalf of TRIANGLE are self-serving and circuitous.

The record is replete with minutes of the Trustees meetings which show quite clearly that the Trustees were unable to resolve the dispute between the parties. The failure to make a decision is, in my view, a state of affairs that can be interpreted as a decision.

At ad paragraph 4.3 of the applicants' answering affidavit…, is an averment made on behalf of the applicants that a dispute was declared on 7 October 2010. The dispute was referred to the Trustees in accordance with Rule 9. The Triangle Senior Staff Pension Fund Board of Trustees took two years to deliberate on the dispute - and failed to agree. The applicants averred that the Chairman of the Triangle Senior Staff Pension Fund (TSSPF), who is nominated by TRIANGLE, frustrated all efforts to resolve the dispute.

It therefore cannot, in my view, be said that the Trustees of the Triangle Senior Staff Pension Fund (TSSPF) were not approached in terms of Rule 9 and asked to resolve the dispute between the parties. The Trustees were approached, and, in their wisdom, failed to resolve the dispute. The Trustees' failure to act is itself the result of inability to resolve the dispute. In my view, it is implied by the wording of Rule 9 that any decision made by the Trustees, or lack of decision, can be referred to arbitration or to a court, by any member who cannot abide by it.

We have been petitioned by 67 members who cannot abide by the Trustees' failure to make a decision.

My reading of Rule 9 does not support the interpretation submitted on behalf of TRIANGLE, that the nature of the dispute contemplated relates to a dispute between members and Trustees of the Triangle Senior Staff Pension Fund (TSSPF) only and does not confer a right to legal recourse against TRIANGLE.

Rule 9 makes no distinction between the Trustees of the Triangle Senior Staff Pension Fund and TRIANGLE.

It is my view, therefore, that the applicants are properly before this court in terms of Rule 9 of the Triangle Senior Staff Pension Fund Rules as read with Rule 42(ii).

I find the argument proffered by the applicants persuasive, that the failure by the Trustees of the Triangle Senior Staff Pension Fund (TSSPF) to resolve the dispute for over two years, cannot, and should not, be allowed to preclude them from enforcing their rights as against the respondents merely because it is not a 'positive' or a conclusive decision. Even a 'negative' decision, as in a failure to act, amounts to a decision that ought to be subjected to judicial review and scrutiny in the interests of justice.

(b) Did the applicants fail to exhaust internal remedies?

This is an aspect of the Rule 9 argument…,. To rehash the argument in brief, TRIANGLE contends that Rule 9 of the Triangle Senior Staff Pension Fund Rules mandates the Trustees to make a decision as a pre-requisite to a member referring a dispute to arbitration or to a court otherwise Rule 42(ii) prohibits such litigation.

The court was reminded that the Triangle Senior Staff Pension Fund Rules are binding on the parties by virtue of section 7(3) of the Pension and Provident Funds Act [Chapter 24:09]. The Rules are said to provide a complete domestic remedy for disputes of this nature. It is contended that there has been no compliance with Rule 9.

It was submitted on behalf of the applicants…, that there is no merit in this preliminary point.

The applicants contended that, as a matter of law, a litigant has a duty to exhaust domestic remedies only where those remedies are capable of providing effective redress in respect of the complainant. The internal remedy must not be illusory or inadequate.

The case of Djordjevic v Chairman, Practise Control Committee, Medical and Dental Practitioners Council of Zimbabwe & Anor 2009 (2) ZLR 221 (H) was cited as authority for the proposition that where there are good reasons for not exhausting domestic remedies, they need not be resorted to before the court can entertain the cause. The court, in that case, had this to say:

“Where domestic remedies are capable of providing effective redress in respect of the complainant, a litigant should first exhaust those remedies unless there are good reasons for not doing so.”

Similarly, in Moyo v Forestry Commission 1996 (1) ZLR 173 (H), it was held that:

“A court will not insist on an applicant first exhausting domestic remedies where the appeal created by the code of conduct does not confer on the aggrieved party better and cheaper benefits than its remedies or where the decision appealed against undermined the domestic remedies. In the present case, the domestic remedy was not better and cheaper than the court remedy and the failure to hold an inquiry and to keep a record of proceedings undermined the domestic remedies themselves.”

The applicants contended, further, that the provisions of Rule 9 are clear. Trustees of the Triangle Senior Staff Pension Fund should, ordinarily, determine a dispute arising in respect of a Member or a person whose claim is derived from a Member, subject to the Trustees' capability to provide effective redress in respect of the complainant.

I find this argument persuasive, especially when regard is had to the contents of the letter dated 15 February 2011 written by two Triangle Senior Staff Pension Fund Trustees in which they express dismay at TRIANGLE's failure to consult the Trustees on the future of the Triangle Senior Staff Pension Fund (TSSPF) in accordance with the Fund's Rules. There is a clear implication in that letter, by the Trustees, that the Rules of the Fund were not being followed by TRIANGLE, to the detriment of the Triangle Senior Staff Pension Fund….,. The Trustees state, unequivocally, that they were not being asked for input or direction.

It is my view that this preliminary point lacks merit, for the reasons already stated above, and this court will not insist that the applicants first exhaust domestic remedies when the Trustees clearly failed to resolve the dispute over a two year period. The referral of the dispute to the Trustees did not provide effective redress to the applicants. The Trustees failure to resolve the dispute, by failing to come to any decision in regards to the dispute, is a very good reason why the applicants should not be made to go back and seek resolution from them.

This preliminary point is dismissed for lack of merit.

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15.

The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot be deprived of his property against his will means that he is entitled to recover it from any person who retains possession of it without his consent; SILBERBERG and SCHOEMAN, Law of Property, 3ed…,.

A common thread runs through the above cited dicta. It is that no person is allowed, at law, to retain the property of another against the latter's will. Put differently, the law allows the owner to recover his property from whoever is holding the same against the owner's will. The only exception which the law recognizes is where the possessor has some enforceable right against the owner.

The generally accepted position which is enunciated in the first paragraph of this judgment constitutes the applicant's cause of action. Its contention is that gold claim number 45464, Makaha [“Makaha”] belongs to it. Makaha is in Mudzi which is under Mutoko District. It states that:

(a) Makaha was granted to it in 2012 by the fourteenth respondent (Minister of Mines and Mining Development); and

(b) In an ownership dispute of Makaha which ensued between the fourth respondent and it in October 2016, the Acting Provincial Mining Director for Mashonaland East Province, who works under the purview of the fourteenth respondent (Minister of Mines and Mining Development), decided the dispute in its favour.

It alleges that the first to thirteenth respondents' continued occupation of, and mining at, Makaha adversely affects its interests as well as its mining rights. It, therefore, moves the court to evict the respondents from Makaha.

All the respondents oppose the application.

The second to the thirteenth respondents are a syndicate which is known as Tabatana Mining Syndicate, the first respondent in casu. The fourteenth respondent is the Minister of Mines and Mining Development.

(i) They own Makaha through the fifth respondent; and

(ii) They appealed the decision of the Acting Provincial Mining Director to the fourteenth respondent who is yet to decide the appeal.

They allege that the application for their eviction was prematurely filed. They contend that the parties should await the decision of the fourteenth respondent.

They state that there is a dispute of ownership of Makaha in terms of which the applicant and them are both in possession of certificates of registration. They aver that there is a material dispute of fact which cannot be resolved on the papers. The matter, they insist, should be properly ventilated and determined by way of an action. They aver that it requires viva voce evidence for its resolution.

They challenge the applicant's certificate of registration. They say it is not authentic but a fraud.

They deny that there was ever any forfeiture of Makaha which was made against them or against the fifth respondent. The forfeiture, they state, was improperly done and is, therefore, invalid. They insist that their mining activities at Makaha are within the law. They state that their appeal suspends the decision of the Acting Provincial Mining Director. They aver that all the processes are suspended pending the determination of the appeal. They deny having ever despoiled the applicant of Makaha. They move the court to dismiss the application with costs on a higher scale.

The fourteenth respondent's affidavit (Minister of Mines and Mining Development) aims at clarifying issues, he says. He acknowledges that the respondents' appeal is before him for his consideration. He states that he set up what he terms the Disputes Committee which he mandated to hear, deliberate and make recommendations on the parties' dispute to him. He confirms that the Disputes Committee is seized with the parties' case.

As proof of its ownership of Makaha, the applicant attached to its application Annexure C. The annexure is a certificate of registration which the fourteenth respondent issued to it on 9 September 2014. It shows that it is the registered owner of Makaha.

The applicant's statement, which is to the effect that it acquired mining rights of Makaha in 2012, cannot possibly be correct. The date of registration which appears on the certificate does not support that allegation. Mineral rights are not acquired through any form other than by way of the annexure which bears 9 September 2014 as the date that the fourteenth respondent granted mining rights of Makaha to the applicant.

It is common cause that the respondents, less the fourteenth respondent (Minister of Mines and Mining Development), showed some activity at Makaha in 2016. Their activity created the dispute between the applicant and them. The same was referred to the Acting Provincial Mining Director (“the Director”) for Mashonaland East Province for resolution. The Director works under the supervision of the fourteenth respondent. The dispute which, in earnest, was between the applicant and the fourth respondent was decided in the applicant's favour.

The Director's ruling, which is dated 25 October 2016, reads, in part, as follows:

“Please be advised that Earthrow Investments (Pvt) Ltd has no legal right over mining claims registered in favour of Prosper Machekera even though he might be a Director in the company. Earthrow Investments and Prosper Machekera should sign an official tribute agreement and/or transfer title from Machekera P.

Basing on the above observations it is concluded that Earthrow Investments (Pvt) Ltd does not have a claim in the areas under dispute….,. Milmath Securities should be allowed to work…,.”…,.

It is the statement of the applicant that the decision of the Director constitutes its second reason for claiming title in Makaha. It submits that it should be allowed to continue its mining operations at Makaha without any interference from the respondents. It avers that these despoiled it of Makaha. It therefore moves the court for their eviction from the same.

The decision of the Director should, in my view, be read in its proper context.

An effortless reading of the same shows that the Director acknowledged the fifth respondent's title in Makaha. What he is disagreeing with is the allegation that the fourth respondent has title in the same. He, in all probability, must have examined the records which are in his office. Those must have revealed to him that the fifth (Proper Machekera), and not the fourth (Earthrow Investments) respondent has title in Makaha.

It is for the mentioned reason, if for no other, that he stated that the fourth respondent (Earthrow Investments) has no legal right over mining claims which are registered in favour of the fifth respondent (Proper Machekera).

He acknowledged, as late as October 2016, that Makaha was registered in the name of the fifth respondent. He acknowledges, further, that the fifth respondent may be a director of the fourth respondent. He states the correct position of the law which is that the only occasion when the fourth respondent can have title of Makaha occurs when the registered owner of Makaha (i.e. the fifth respondent) signs an official tribute agreement with, and/or transfers title in Makaha to, the fourth respondent.

According to the Director's records, therefore, two persons have title in Makaha. These are the applicant and the fifth respondent (Proper Machekera). The fourth respondent (Earthrow Investments) does not.

It was by way of comparative analysis that he remained of the view that when the fourth respondent's case is compared with that of the applicant, the latter entity, which has title in Makaha, was better placed than the fourth respondent to continue its mining operations at Makaha. That is the context in which the Director's decision should be understood....,.

The applicant has real rights in Makaha. The fifth respondent does also have real rights in the same. The remaining respondents who teamed up with the fifth respondent whose rights the Director recognized in his ruling do, through him, have some rights in Makaha.

Whether or not the respondents, the fifth respondent in particular, suffer(s) forfeiture of Makaha remains a matter for another day. The issue of the alleged forfeiture can only be resolved through viva voce evidence. That is so because the respondents contest the same in a very emphatic manner. They describe the alleged forfeiture as having been of no force or effect. Their reason is that it was irregularly implemented. They challenge the applicant's certificate of registration for Makaha. They state that the certificate is a fraud on the part of the person or official who issued it in the name of the applicant.

There are, in my view, material disputes of fact in the parties' case. The fourteenth respondent states as much. He is seized with the parties' dispute which he will determine after he has received the recommendations of the Disputes Committee which he set up to investigate the parties' competing claims of Makaha.

It goes without saying that neither party has a better claim to Makaha than the other. Their claims are equal in competition one against the other. The court cannot, in the circumstances, grant the application.

The applicant failed to establish its case on a balance of probabilities. Its application is without merit. It is, accordingly, dismissed with costs.