Pleadings re: Withdrawal of Pleadings, Admissions, Proceedings or Claims

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED
Ruled By: CHITAKUNYE J

The plaintiff is a self employed male adult. The first defendant is employed by the second defendant as a Marketing Assistant. The second defendant is a company duly incorporated with limited liability according to the laws of Zimbabwe. At all material times, the plaintiff was the owner of a Nissan Sunny FB15 motor vehicle registration no. AAP 1693. ...

At all material times, the plaintiff was the owner of a Nissan Sunny FB15 motor vehicle registration no. AAP 1693. The first defendant was authorized to drive the second defendant's motor vehicle, viz; Nissan Hardbody registration no. AAG 1002.

On 28 July 2007, and at the intersection of Julius Nyerere Way and Nkwame Nkrumah Avenue, around 0300hours, a collision occurred between the plaintiff's aforesaid motor vehicle and the second defendant's motor vehicle then and there driven by the first defendant.

The two motor vehicles sustained damages. The plaintiff's motor vehicle was damaged beyond economical repair.

On 15 October 2007, the plaintiff issued summons against the two defendants claiming the replacement value of the Nissan Sunny FB15 as at the time of judgment and interest thereon at the prescribed rate from the date of judgment to the date of final payment. At the time of issuance of the summons that replacement value was $7 billion. The plaintiff alleged that the collision was caused solely as a result of the negligent driving of the first defendant. The particulars of negligence alleged were that:-

1. She failed to keep a proper look out.

2. She failed to give precedence to the plaintiff's motor vehicle.

3. She failed to apply her brakes timeously or at all.

4. She entered the main road at a time when it was unsafe to do so.

The first defendant admitted that indeed a collision occurred on the night in question between the aforementioned motor vehicles. She admitted that she was driving the second defendant's motor vehicle but this was not in the course of her employment. She denied that she was negligent in any way. She, on the other hand, contended that the plaintiff was the sole cause of the accident in that:-

1. He was over-speeding in the circumstances.

2. He drove without due care and attention.

3. He failed to take precautionary measures once he noticed the first defendant's vehicle emerging from the round about.

Alternatively to the above, that plaintiff contributed significantly to the occurrence of the collision by being negligent in the manner or manners averred above.

After the closure of pleadings, the plaintiff withdrew his claim against the second defendant.

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

HH53-09 : ZIMBABWE ALLIED GROUP LTD vs MILDRED AND MATHIAS (PVT) LTD
Ruled By: MAKONI J

Litigants, and legal practitioners in particular, must bear in mind that litigation is not a battle of wits whereby they strive to outwit each other. They should know that the object of the litigation is to do justice. I can do no better than to quote WESSELS J in Whittaker v Ross Anor 1911 ...

HH13-12 : YVONNE CHISESE vs ALLUVIAL EXPLORATION SERVICES (PRIVATE) LIMITED
Ruled By: MAVANGIRA J

In terms of Order 33 Rule 5(1) of the Magistrates Court Rules (Civil Rules, 1980): “The withdrawal or dismissal of an action or a decree of absolution from the instance shall not be a defence to any subsequent action.”

HB116-09 : EDWARD MANGENA and MALAKI MPOFU vs NINNO FILANNINO and FIVE OTHERS
Ruled By: NDOU J

Thereafter, the parties' legal practitioners of record approached CHEDA J on 19 June 2009. It was apparently agreed that the matter be heard on 6 July 2009. So the matter was set down for hearing. On 1 July 2009, the applicants legal practitioner filed a letter saying they intended withdrawing the main application under HC197/07. Initially the ...

Thereafter, the parties' legal practitioners of record approached CHEDA J on 19 June 2009.

It was apparently agreed that the matter be heard on 6 July 2009. So the matter was set down for hearing.

On 1 July 2009, the applicants legal practitioner filed a letter saying they intended withdrawing the main application under HC197/07. Initially the applicants did not tender costs.

On 2 July 2009, the first respondent's legal practitioner wrote back saying they were not consenting to the withdrawal.

On 3 July 2009, the applicants' legal practitioner filed another withdrawal letter - this time tendering costs.

Still, the first respondent did not consent.

It is important to quote from the letter of withdrawal itself to understand the motive -

“Re: Edward Mangena & anor v Nino Flannino and Ors: HC197/07 (Set Down for 6 July 2009)

We refer to the above matter. We would like to advise you that our clients would like to withdraw this matter with a tender of costs on an ordinary scale due to the following reasons:

1. The relief our clients wanted on the draft order was for them to be reinstated on Lot 32 and 33 Essexvale, which they have been reinstated, and they are peacefully co-existing with 1^st respondent in this matter. From the look of things, we would like to believe that the relief being sought has been cured since the parties now co-exist together and continue their farming activities without disturbance from each other.

2. Since that farm was not de-listed, and there is no authority from the Ministry of Lands that de-listed the farm, it means the applicants are in lawful occupation of that land.

The applicants have allocation letters, and everything entitling them to the land.

Thus, there is no reason to continue pursuing this matter under HC197/07 fully knowing that the applicants were given that land by the designating authority, and now are in peaceful existence on Lot 32 and 33 Essexvale, and they are satisfied to be carrying on their farming activities. Their allocations have not been LAWFULLY set aside.

3. The applicants are not interfering with business of the 1^st respondent. Then, as facts stand on the ground, everyone is happy and continuing with their business. The papers show their designated plots which they occupy.

It is on these grounds that the applicants would withdraw their matter and tender wasted costs on an ordinary scale since it was because of the respondent conduct that the applicants approached the court. Thus, accompanying this letter is a notice of withdrawal. By copy of this letter, we advise the Honourable Justice Ndou, through his clerk, that we have withdrawn the matter.”

It is trite that in the absence of agreement between the parties, the court retains a discretion whether or not to allow the withdrawal of a case after set down – Abramacos v Abramacos 1953 (4) SA 474 (SR) and Pearson & Hutton NNO v Hitzeroth & Ors 1967 (3) SA 591 (E)...,.

A party is normally permitted to withdraw a claim, subject to an appropriate order as to costs, unless the withdrawal amounts to an abuse of the court process – Levy v Levy 1991 (3) SA 614 (A)..., and HERBSTEIN and VAN WINSEN – The Civil Practice of the Supreme Court of South Africa (4^th Ed.)...,. Although these authorities were specifically dealing with trial actions, the same principles, in my view, apply to application proceedings.

The above-mentioned letter of withdrawal contains inaccuracies.

It is misleading to give the impression that the applicants sought a relief of co-existence with the first respondent. They actually sought full rights to the land in dispute, and, more importantly, the eviction of the first respondent.

This peaceful co-existence is a creature of CHEDA J's above-mentioned order in paragraph 6...,. This co-existence is interlocutory “pending the finalization of the main action, case no.197/07”. It was never meant to be a final determination of the parties' rights, even before the matter was argued. Thus, withdrawal for the reasons given by the applicants..., amounts to an abuse of the court process - Levy v Levy 1991 (3) SA 614 (A).

The withdrawal is not made in good faith and should not be permitted.

Accordingly, I refuse the withdrawal, and the matter will be argued on the merits.

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS
Ruled By: KARWI J

Following that development, first and second defendants then applied for an order cancelling transfer of the property to the plaintiff, and directing him to transfer the property to them. That application was withdrawn by consent, and the first and second defendants agreed to pay the costs.

View Appeal
HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO
Ruled By: PATEL J

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....,.

In his opposing papers, the second respondent questioned the jurisdiction of this Court and the nature of the relief claimed by the applicants. In particular, it was averred that the matter fell within the purview of Parliamentary privilege and was therefore not justiciable and that the declaratory relief sought by the applicants could not properly be granted in the circumstances of this case.

However, these objections were withdrawn and not specifically pursued by counsel at the hearing of this matter.

HH73-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and F MATAMBANADZO and J D NYAMUNDA and EIGHT OTHERS
Ruled By: MAKARAU JP

This is an exception with an exception. The application was partly argued before me, and prior to the resumed hearing it was withdrawn without a tender of costs. The issue of costs was then raised for my determination. For a full appreciation of the nature of the dispute before me, it is, in my view, necessary ...

This is an exception with an exception. The application was partly argued before me, and prior to the resumed hearing it was withdrawn without a tender of costs.

The issue of costs was then raised for my determination.

For a full appreciation of the nature of the dispute before me, it is, in my view, necessary that I set out the history of this matter in some detail.

The plaintiff issued summons against the twelve defendants on 1 October 2008. In the summons, it sought an order declaring that the twelve had seceded from the plaintiff, and that they should be restrained from holding themselves as office bearers in the Manicaland Diocese of the plaintiff.

The claim was defended.

In their plea, the defendants denied the allegation that they seceded from the plaintiff Church, and put the plaintiff to the proof thereof. They further averred that if the plaintiff had proceeded to relieve the defendants of their posts within the Church such divesture was not in accordance with the canons of the plaintiff – and was therefore illegal.

Two of the defendants denied that they were office bearers and averred that they were employees of the Church whose contracts of employment were still extant.

In particular, the first defendant averred that the decision to withdraw the Diocese of Manicaland from the plaintiff was a decision of the Standing Committee of the Diocese, and that this decision could not be brought before the courts without citing the body that made the decision. It was further averred that, in any event, the decision to withdraw from the plaintiff had been rescinded and the fact communicated to the plaintiff.

After the pleadings had closed, the matter proceeded to a pre-trial conference.

In their draft minutes of the pre-trial conference the defendants raised the issues of the locus standi of the plaintiff to bring the proceedings against them, the non-citation of the Board of Trustees to the action, the fate of the contracts of employment of the second and third defendants, and whether the plaintiff could seek the eviction of the defendants from the properties built and owned by the Diocese of Manicaland.

The issue of locus standi of the plaintiff, and the role of the Board of Trustees of the Diocese of Manicaland, appear to have weighed heavily with the judge presiding over the pre-trial conference who then directed that the defendants file an exception outside the time limits provided for in the Rules to deal specifically with these issues. The judge also directed that the exception be filed on or before the 29^th of April 2009, and that, thereafter, the matter proceeds in terms of the Rules.

On the 27^th of April 2009 the defendants filed a special plea and exception in which it was alleged that the claim brought by the plaintiff against the defendants was bad in law and does not set out a valid cause of action. It was further alleged that in terms of the Acts of the Diocese of Manicaland all legal proceedings relating to the property of the Diocese of Manicaland is to be brought by, and in the names of, the Trustees.

The exception was opposed, and, in due course, was set down before me for hearing.

It is not necessary that I detail the proceedings relating to the hearing of the exception. Suffice it to say that the hearing was postponed, and, prior to the resumption of the same, the defendants withdrew the exception by written notice dated 24 February 2010.

At the same time, the defendants filed a notice to amend its plea at the trial of the matter to add a special plea. It is pertinent at this stage to observe that, unless it is further amended, the special plea to be raised at the trial of the matter is worded in the exact language used in the exception that has been withdrawn before me. To the special plea is, however, attached a copy of the Acts of the Diocese of Manicaland.

The issue that arose before me is whether, in the circumstances, the defendants should be made to pay the costs of the withdrawal of the exception.

The defendants argued that they should not be made to meet the costs of the withdrawn exception as they have, in essence, substituted it with a special plea which they filed on the date of the withdrawal of the exception.

Order 21 of the High Court Rules 1971, which provides for the filing of exceptions and special pleas does not provide for how these are to be disposed of and what order as to costs, if any, a court may make where an exception has been withdrawn.

It is trite that in a legal system in which the procedures are driven by the parties to the suit, as opposed to a system where the process is managed by the court, the general rule appears to me to be that any party to the suit is entitled to withdraw any of its pleadings provided this does not cause any injustice to the other party. Following this general rule, it is trite that the defendants before me were at liberty to withdraw their exception and special plea; provided the withdrawal did not cause any injustice to the plaintiff, and which injustice could not be cured by an order of costs.

In casu, the withdrawal of the exception is not in issue. By the time the exception was withdrawn..., both parties had incurred some costs as the parties appeared before me for oral argument. This was after both had filed Heads of Argument in the matter. Counsel argued the matter for the best part of the morning before seeking a postponement. For all these procedures, and necessary attendances, both parties had to pay legal fees to their respective legal practitioners.

In view of the above, the defendants should have tendered the plaintiff's wasted costs caused by the withdrawal. This is standard practice in this jurisdiction.

HH81-10 : MILRITE FARMING (PRIVATE ) LIMITED vs ENOCK PORUSINGAZI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and FOUR OTHERS
Ruled By: UCHENA J

In spite of the above concessions, counsel for the applicant did not withdraw the application because he did not have his client's instructions to withdraw it. Counsel for the applicant correctly balanced his duty to the court with his duty to his client by not withdrawing the application – even though it's one that should have ...

SC09-14 : MARANGE APOSTOLIC CHURCH OF ST JOHANNE and ISRAEL RUWOKO vs CLEMENCE MOMBERUME
Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

This is an appeal against the decision of the High Court Harare, in HC11782/2011, which was handed down on 15 May 2013. The background to the dispute is that the respondent instituted court action in 2005 against the first appellant and two others for, inter alia, the return of certain church goods and regalia. On 13 ...

This is an appeal against the decision of the High Court Harare, in HC11782/2011, which was handed down on 15 May 2013.

The background to the dispute is that the respondent instituted court action in 2005 against the first appellant and two others for, inter alia, the return of certain church goods and regalia. On 13 December 2006, a default judgment was granted in favour of the respondent. This judgment was subsequently rescinded on 14 May 2007. Almost two years later, on 3 February 2009, the respondent's then legal practitioners filed a notice of withdrawal of the action, purportedly on the instructions of the second appellant.

It is pertinent to note that the first appellant and the respondent belong to rival factions of what used to be one church.

The crux of the appeal is whether or not the court a quo erred in accepting that the said notice of withdrawal in case No.2716/2005 was filed on the instructions of the second appellant as opposed to the respondent.

The judge a quo accepted the respondent's version that the second appellant, acting maliciously and without the respondent's specific mandate, gave the instructions to the legal practitioners to withdraw the action in HC2716/05. In accepting this evidence, the learned Judge relied essentially on the affidavit dated 24 November 2011 and filed by the respondent's erstwhile legal practitioner, Mr Gunje. The affidavit was to the effect that Mr Gunje had, in fact, never met the respondent, had always dealt with the second appellant as the respondent's representative, and that the second appellant was the one who gave him the instructions to file the Notice of Withdrawal. The court a quo, however, made no reference to the letter, written by Mr Gunje almost three years earlier on 9 February 2009, and addressed to the first appellant's legal practitioners. As indicated below, we find the contents of this letter to be quite significant.

The second appellant's defence was that he never gave the instructions in question to the respondent's legal practitioners; rather, that it was the respondent himself who did so. The first appellant, in his notice of appeal and heads of argument, took the same position. Strangely, in argument before us, counsel for the first appellant deviated from this position and attempted to argue that the second appellant did, in fact, give the relevant instructions, but solely acting as agent for the respondent.

In our assessment of Mr Gunje's affidavit, we find that he failed to explain, in any way whatsoever, the contents of his letter of 3 February 2009, which was addressed to Messrs Danziger & Partners, the first appellant's legal practitioners. Nor does Mr Gunje's affidavit deal with the contradictions between his averments therein and the statements contained in the said letter. The essence of that letter, which was written on the very same day that the Notice of Withdrawal was filed, was that Mr Gunje had taken detailed instructions and then recommended to his client that he should withdraw his claim in HC2716/05. Our reading of the letter makes it clear that the client referred to was the respondent. The contemporaneity of the letter with the Notice of Withdrawal, in our view, leaves no room for any other conclusion.

One of the points taken by the respondent was that the second appellant had, at the time he allegedly gave instructions for the Notice of Withdrawal to be filed, switched allegiance from the respondent's faction to that of the first appellant. However, this assertion is quite evidently belied by the second appellant's letter dated 8 March 2009 which shows that, a month after the Notice of Withdrawal was filed, he was still acting for and on behalf of the respondent's faction.

When all is considered, we find that the probabilities clearly favour a finding that it was the respondent himself who, acting on the advice of his lawyer, gave the instructions for the Notice of Withdrawal to be filed.

In the result, this court is of the view that the judge a quo erred in finding, on the papers, that the withdrawal was not properly made as it was not done either by the respondent or on his authority or instructions. We accordingly find that the judge misdirected himself by ordering that the Notice of Withdrawal in case HC2716/05 be set aside and that the matter be reinstated.

In the event, it is ordered as follows;

(1) The appeal is allowed with costs.

(2) The judgment and order of the High Court be and are hereby set aside and substituted with the following:

“The application be and is hereby dismissed with costs.”

HB63-10 : SALLY MAPLANKA vs B. A. NCUBE HOLDINGS
Ruled By: NDOU J

At the commencement of this hearing the issue 2.2…, was withdrawn by consent.

HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF
Ruled By: NDOU J

During the course of the pleadings, the first plaintiff has, procedurally, remained the sole plaintiff after Cain Moyo, who was the second plaintiff, withdrew his claim and opted to abide by the court's order.

View Appeal
HH06-13 : THE MESSENGER OF COURT (HARARE) vs TAVENHAVE-MACHINGAUTA LEGAL PRACTITIONERS
Ruled By: MTSHIYA J

On 16 February 2012, the applicant filed a notice of withdrawal in respect of Manase and Manase Legal Practitioners. This also led to a formal withdrawal of their notice of appearance on 20 February 2012.

HH30-13 : BRIAN MUNEKA and DADIRAI RWANZA and JANIES TIMOTHY and EDMOND MULEYA and MUSEKIWA MUZANENHAMO and TSITSI DHLIWAYO vs MANICA BUS COMPANY
Ruled By: MTSHIYA J

Notwithstanding settlement with its other former employees, the respondent did not withdraw its opposition to this application.

HH49-13 : FIRST CLASS ENTERPRISES (PVT) LTD vs TRYMORE MUCHINGAMI AND 2 OTHERS
Ruled By: MATHONSI J

Although it had cited the third defendant alleging that it was also liable as the insurer of the second defendant, the plaintiff subsequently withdrew the claim against the third defendant.

HH117-13 : SUNBEACH PROPERTIES (PRIVATE) LIMITED vs NATIONAL SOCIAL SECURITY AUTHORITY and REGISTRAR OF DEEDS
Ruled By: MUSAKWA J

Initially, the plaintiff had sued Total Zimbabwe (Private) Limited but, in due course, the claim against Total Zimbabwe (Private) Limited was withdrawn.

HH370-13 : BENJAMIN JENGWA and GEORGE MUSHIPE and AUGUSTINE MANYAU vs ZIMBABWE TEACHERS ASSOCIATION (ZIMTA)
Ruled By: MATANDA-MOYO J

Counsel for the applicants withdrew the application after conceding that the order sought had been overtaken by events. The application sought to bar the respondent from conducting Zimbabwe Teachers Association (ZIMTA) national elections which ran from 22 – 25 April 2005 in Victoria Falls. The application was heard on 17 October 2013 well after such ...

HB09-13 : ELLEN MBUVAH and MINING INDUSTRY PENSION FUND and NATIONAL RAILWAYS OF ZIM and OTHERS vs JAMES MANGACHENA & ANOR and DR ZIWAI MANESWA and DISHAI MARKETING & MERCHANDISING (PVT) LTD and OTHERS
Ruled By: CHEDA AJ

I made an order in motion court that the above matters be removed from the roll and said the reasons would follow. These are they.

HB38-11 : JONATHAN NATHANIEL MOYO vs JOHN LANDA NKOMO and DUMISO DABENGWA
Ruled By: BERE J

The second development was the determination of the second defendant's costs of suit as a result of the withdrawal of the suit against him by the plaintiff….,. The second defendant's costs For some reason, after the second defendant had just opened his case, and when he was in the middle of giving his evidence in ...

The second development was the determination of the second defendant's costs of suit as a result of the withdrawal of the suit against him by the plaintiff….,.

The second defendant's costs

For some reason, after the second defendant had just opened his case, and when he was in the middle of giving his evidence in chief, the plaintiff decided to withdraw his claim against him but declined to offer the second defendant his costs up to this stage of the proceedings.

The second defendant insisted on getting his costs.

The plaintiff, through his counsel, insisted that the second defendant was not automatically entitled to his costs but that such costs were at the discretion of the court.

I agree. Costs are generally at the discretion of the court but that discretion must be judiciously exercised. Discretion is not just grounded in air but must be properly anchored.

To guide the parties in this case, perhaps reference should be made to Order 7 Rule 52(1) which reads as follows:

“Where the defendant has entered appearance, the plaintiff shall not be entitled, save with the defendant's consent in writing, to withdraw the action until he has paid the defendant's taxed costs or has undertaken to pay such costs. Such undertaking shall be incorporated in the notice of withdrawal.”

The established norm is that a party who decides to withdraw action against the other party must tender costs.

The plaintiff in this case did not advance his reasons for withdrawal. Both the court and the second defendant were deprived of such reasons.

In order to depart from the norm, there must be special reasons. No such reasons were advanced. I think it would be a sad day in litigation proceedings if a plaintiff were to be allowed to initiate proceedings and withdraw such proceedings without tendering costs. Such practice, if unchecked, would promote spurious and adventurous litigation.

In this case, it is doubtful that even if the plaintiff had allowed his case to run its full circle he would have been able to establish his case as against the second defendant. I am more than satisfied that the plaintiff properly appreciated the futility of pursuing his claim against the second defendant, Dumiso Dabengwa. In such circumstances, the plaintiff cannot avoid the payment of costs. I accordingly order that the plaintiff pays the second defendant's costs up to the stage he formally withdrew his action against him.

HH125-11 : ECONET WIRELESS (PRIVATE) LIMITED vs RENAISSANCE FINANCIAL HOLDINGS LIMITED and RENAISSANCE MERCHANT BANK CORPORATION
Ruled By: MAVANGIRA J

In addition, counsel for the respondents submitted that the front page of the Herald of Friday 3 June 2011 reported on the placing of the second respondent under curatorship, yet the application was still filed without the court being advised that circumstances had changed….,. As the second respondent is now under a curator, there ...

In response to the withdrawal against the second respondent, counsel for the respondents submitted that the withdrawal is inconsequential. The statutory position is that the curator must be given an opportunity to investigate the second respondent and deal with creditors and debtors alike. He submitted that it was because the applicant was aware of this requirement that it cited the second respondent; because the money was paid into the bank - the second respondent. The second respondent is thus a real, substantial and interested party. He submitted that the court must determine the case that was placed before it. Counsel for the respondents submitted that the first respondent, an entirely different corporate entity, seeks, by way of the letter of 25 April 2011, to compromise a creditor-debtor relationship between the applicant and the second respondent. Whether or not the second respondent is aware of this is anyone's guess. In any event, the curator of the second respondent, in carrying out his duties or conducting his business, will also be dealing with deposits made by the applicant into the second respondent.

The applicant has now withdrawn the application as against the second respondent. The second respondent is thus no longer of any relevance to this application…,.

It is also my view that the withdrawal against the second respondent cannot be said to be inconsequential particularly if consideration is taken of the nature of the relief sought in conjunction with the fact that the first respondent is a separate legal entity to the second respondent. The withdrawal against the second respondent, taken in conjunction with the fact that the first respondent is not under curatorship, seems, in my view, to render redundant counsel for the respondents' submissions regarding what he referred to as the broad contextual backdrop which the court must consider in determining this matter.

View Appeal
HB08-14 : JONATHAN MOYO vs ROSELINE NKOMO
Ruled By: MAKONESE J

The applicant was a candidate for the National Assembly seat for Tsholotsho North constituency in Matabeleland North Province in the Harmonised General Elections held on 31st July 2013 as a nominee of ZANU (PF). The respondent was declared winner of the National Assembly election in respect of the said constituency. She stood in the election as a candidate for the MDC(T) party.

The applicant was not satisfied with the outcome of the election, and, accordingly, on 1st August 2013, filed a Petition in terms of section 167 of the Electoral Act [Chapter 2:13], hereinafter referred to as the “Act”.

The Petition filed by the applicant is couched in the following terms:

“BE PLEASED TO TAKE NOTICE THAT the Petitioner hereby petitions the Electoral Court for an Order in terms of the Draft annexed hereto on the grounds that:

1. The Petitioner was a candidate in the National Assembly Election for the Tsholotsho North Constituency on the 31st July 2013.

2. That the 9th Respondent was returned as the National Assembly member for Tsholotsho North in that election and this return was improper and irregular for the reasons detailed in the annexed affidavit.

3. The combination of electoral malpractices and irregularities highlighted in the annexed affidavit render the election null and void or voidable as the court may deem appropriate.

TAKE NOTICE FURTHER THAT, the accompanying affidavit and supporting documents are tendered in support of this application and should be read as specifically forming part of this notice.”

The applicant prayed that this court grants him relief in the Draft Order, in the following terms:-

“1. The 9th Respondent was not duly elected as the representative of Tsholotsho North Constituency as declared on 1st August 2013 by the First Respondent.

2. That the said election be and is hereby set aside and that a bi-election be held within 90 days of this order.

3. That the voters roll for Ward 22 and 9 of Tsholotsho North Constituency be rectified to reflect voters resident in these wards prior to the election referrein herein.

4. That the Registrar of this Honourable Court duly communicate this court's order to the Speaker of Parliament.

5. That the Respondent's jointly and severally pay the costs of this application.”

Pursuant to the filing and service of the Electoral Petition upon the nine Respondents, the first to sixth respondents filed an exception to the Petition on the grounds of mis-joinder in that the citation of the first to sixth respondents was contrary to the provisions of Part XXII and section 166 of the Electoral Act.

The applicant subsequently withdrew all actions against the first to eighth respondents, leaving the ninth respondent, who is now the only respondent in this action.

SC63-14 : UNITED REFINERIES LIMITED vs MINING INDUSTRY PENSION FUND and REGISTRAR OF DEEDS and ERROL S. WOLHUTTER and AUSTIN J. SIBANDA t/a JOEL PINCUS KONSON AND WOLHUTTER
Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

Most pertinent to the application was the finding by the court that the appellant sought, through the supplementary affidavit, to withdraw admissions that had been made in the opposing affidavit. The court stated the following: “…,. The applicant seeks to introduce evidence by way of a supplementary affidavit to the effect that this arrangement was ...

Most pertinent to the application was the finding by the court that the appellant sought, through the supplementary affidavit, to withdraw admissions that had been made in the opposing affidavit.

The court stated the following:

“…,. The applicant seeks to introduce evidence by way of a supplementary affidavit to the effect that this arrangement was never a sale. The supplementary affidavit supposedly paints a completely different picture of the transaction. The applicant has not followed the correct procedure outlined in Rule 189 which provides for the withdrawal of the admissions it made. No formal application for the withdrawal of admissions was made. There is no doubt in my mind that once the supplementary affidavit is admitted, the applicant will effectively be saying, yes we made admissions but that, that is not a correct reflection of the transaction as it was a loan agreement. The admissions made earlier are therefore being challenged and will fall away on the filing of the further affidavit. The applicant has not laid a basis for the filing of a further affidavit that has the effect of withdrawing admissions earlier made.”

I have not been convinced by the contention on behalf of the appellant that the supplementary affidavit, rather than withdrawing admissions, sought instead to place before the court the antecedent agreement concluded between the parties. The opposing affidavit filed by the appellant on 24 February 2011 is rather terse and to the point. In paragraph 5 of the same, the deponent averred:

“The letter in question does not suggest that first respondent has actually cancelled the sale, but rather asserts that first respondent will proceed to do so unless the transaction can be reviewed on an amicable basis and invites settlement overtures.”

Given the averments in paragraph 11 of the founding affidavit, to which the response was addressed, the court could only conclude that the appellant in fact admitted certain facts. In a later paragraph, specifically paragraph 9, the respondent discusses its inability to pay capital gains tax necessary to facilitate transfer to the respondent. Mention is also made in the same paragraph of negotiations of a sale of the property back to the appellant. To then suggest, in a supplementary affidavit, that in fact the real transaction between the parties was a loan and that the agreement of sale was merely to serve as security for the said loan would be to change the whole tenor of the relationship between the parties. It would introduce new facts which were not placed before the court in the papers filed before it.

The court a quo came to the correct conclusion.

The effect of allowing the supplementary affidavit would be to sanction the withdrawal of an admission under circumstances where no good cause had been shown. To admit the supplementary affidavit would also result in the admissions being withdrawn in the absence of a formal application.

The appellant has criticised the High Court for what it suggested was the court's defence of the respondent's claim in respect of the finding by the court a quo that the admission of the supplementary affidavit would have the effect of defeating the respondent's claim against the appellant. This is what the court said:

“There is no doubt that the respondent will suffer an injustice if this affidavit is admitted at this stage. The court is of the view that the admission or filing of the affidavit would clearly prejudice the applicant which relied on these admissions in the main matter as it will not be able to maintain its position on the merits. The respondent will be placed in a worse off position if the affidavit is admitted than he would have been had the pleading in its amended form, been filed in the first instance, see DD Transport (Pvt) Ltd (supra) for the proposition. Once this happens, the matter will change its course. The main matter will have a completely different outlook as the applicant is raising a defence as opposed to admissions it made in the opposing affidavit. The cause of action will fall away. If the further affidavit is allowed, this signals the end of the matter. The new averments sought to be admitted disposes of the respondent's claim to the property. This prejudicial outcome cannot be cured or compensated by a special award of costs.”

CC10-16 : EVERJOY MEDA vs MAXWELL SIBANDA and ZAMBE GWASIRA and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

At the end of hearing argument for both parties, the Court dismissed the application with costs on the legal practitioner and client scale. It was indicated that reasons for the decision would follow in due course. These are they. The applicant approached the Court in terms of section 85(1)(a) of the Constitution of the ...

These are they.

The applicant approached the Court in terms of section 85(1)(a) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the Constitution”) which provides that any person acting in their own interests is entitled to approach a court alleging that a fundamental right or freedom enshrined in Chapter V has been, is being, or is likely to be infringed and the court may grant appropriate relief.

The applicant is customarily married to the second respondent. During the subsistence of the marriage, immovable property known as Stand No.48 Dan Judson Road, Milton Park, Harare (“the property”) was acquired and registered in the name of the second respondent. The couple separated in 2001 and the second respondent moved out of the said property. The ownership of the house was not changed at the Deeds Registry and title remained with the second respondent.

In 2010, the second respondent entered into a business transaction with the first respondent in terms of which he undertook to cut timber at the latter's plantation. The second respondent failed to perform his obligations in terms of the agreement leading to the first respondent suing him for breach of contract and loss of future earnings. The first respondent obtained a default judgment from the High Court and proceeded to attach the property, which was still in the name of the second respondent. The first respondent also applied to the High Court for an order declaring the property especially executable.

The applicant opposed the application on the basis that she was entitled to 50% share of the property. She argued that the property could not be sold in execution, to recover her husband's debts.

The court a quo granted the order sought by the first respondent declaring the property especially executable.

The applicant did not appeal against the judgment. It remains extant.

Instead, the applicant approached the Court, in terms of section 85(1) of the Constitution, alleging that she has personal rights to the property which have been infringed by the order declaring the property especially executable. She alleged the right to property enshrined in section 71(3) of the Constitution has been infringed.

The founding affidavit made no reference to any other fundamental human right enshrined in Chapter V of the Constitution being infringed.

Counsel for the first respondent took several points in limine.

Counsel for the first respondent argued that the application was improperly before the Court because the remedy the applicant should have utilized was that of an appeal to the Supreme Court as the application was in response to the judgment of the High Court. He argued that the Constitutional Court has no jurisdiction to overturn an extant order of the High Court in a constitutional application not alleging that the decision was a violation of the right to equal protection of the law. Counsel for the first respondent argued that if the decision of the High Court was on a constitutional point raised before that Court the applicant ought to have approached the Court by way of appeal on that point in terms of section 167(5)(b) of the Constitution. He further argued that the court a quo's decision was based on the interpretation and application of sections 2 and 14 of the Deeds Registries Act [Chapter 20:05] on real rights and the effect of their registration.

According to counsel for the first respondent, having not appealed against the order of the court a quo, the applicant cannot have it set aside without impugning the constitutionality of the statutory provisions in terms of which the judgment was made.

Counsel for the applicant indicated that he had instructions to withdraw the matter and sought to apply that the matter be withdrawn. Counsel for the first respondent opposed this application arguing that the matter should not be withdrawn but that the Court exercise its discretion and dismiss the matter with costs on a higher scale.

While parties may, at any time before a matter is set down, withdraw a matter, with a tender of costs, the same does not hold true for a matter that has already been set down for hearing.

Once a matter is set down, withdrawal is not there for the taking.

The applicable principles are set out in ERASMUS 'Superior Court Practice' B1-304. A person who has instituted proceedings is entitled to withdraw such proceedings without the other party's concurrence and without leave of the court at any time before the matter is set down. The proceedings are those in which there is lis between the parties one of whom seeks redress or the enforcement of rights against the other. An application for appropriate relief on the grounds of alleged violation of a right is such a proceeding.

See Abramacos v Abramacos 1953 (4) SA 474 (SR); Pearson & Hutton NNO v Hitseroth 1967(3) 591 (E)…,; Protea Assurance Co Ltd v Gamlase 1971 (1) SA 460 (E)…,; Huggins v Ryan NO 1978 (1) SA 216 (R)….,; Franco Vignazia Enterprises (Pty) Ltd v Berry 1983 (2) SA 290 (C)….,; Levy v Levy 1991 (3) SA 614 (A)…,; HERBSTEIN & VAN WINSEN 'The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa' (5ed)…,..

From the above authorities, it is the law that a court, having satisfied itself that a matter is properly before it, can refuse to grant an application for withdrawal of the matter.

Faced with this compelling position of the law, counsel for the applicant then sought to argue that there was no application before the Court to dismiss. It was his view that as an application in terms of section 85(1)(a) of the Constitution was brought before the Court instead of an appeal against the judgment of the court a quo the matter was improperly before the Court.

Counsel for the applicant failed to appreciate the import of section 85(1) of the Constitution. The section provides:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely -

(a) Any person acting in their own interests;

(b)…,.

(c)…,.

(d)…,.

(e)…,.

is entitled to approach a court alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental human right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to courts on questions of violation of fundamental human rights and freedoms with minimal technicalities. The facts on which the allegation is based must of course appear in the founding affidavit.

Whether or not the allegation is subsequently established as true is a question which does not arise in an enquiry as to whether the matter is properly before the Court in terms of section 85(1) of the Constitution.

In this case, the applicant alleged in the founding affidavit that her right to property had been infringed.

Whether her allegation is true or not is not the issue. What matters is that she alleged a violation of a fundamental human right and as such the Court was properly seized with the matter. The question of the veracity of the allegation would have been tested on the basis of evidence placed before the Court.

The Court agrees with counsel for the first respondent that there is an application before it to dismiss….,.

It was the unanimous decision of the Court that the matter be dismissed.

CC10-15 : PROSECUTOR GENERAL, ZIMBABWE vs TELECEL ZIMBABWE (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GOWORA JCC, GUVAVA JCC, MAVANGIRA AJCC, CHIWESHE AJCC, MAKONI AJCC, BHUNU AJCC

In light of these concessions, counsel for the applicant belatedly sought to withdraw the matter. The court ruled against him and proceeded to hear argument on the question of costs…,.

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA
Ruled By: MATHONSI J

I must state that the applicant filed a notice of withdrawal of the application against the second respondent who is said to be a Consultant engaged by the first respondent to analyse baryte deposits found at the prospective mine.

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS
Ruled By: MALABA CJ

WHETHER THE WITHDRAWAL OF THE MATTER WAS VALID The case of Meda v Sibanda and Ors 2016 (2) ZLR 232 (CC) is authority for the principle that a party cannot withdraw at will a matter that has been set down for hearing. The party intending to withdraw the matter must obtain the consent of the other party and the ...

WHETHER THE WITHDRAWAL OF THE MATTER WAS VALID

The case of Meda v Sibanda and Ors 2016 (2) ZLR 232 (CC) is authority for the principle that a party cannot withdraw at will a matter that has been set down for hearing. The party intending to withdraw the matter must obtain the consent of the other party and the leave of the Court. The purported withdrawal would otherwise have no legal effect.

Rule 53(2) of the Rules gives effect to the principle by providing as follows:

“53. Withdrawal

(2) A person instituting any proceedings may, at any time before the matter has been set down and thereafter, by consent of the parties or leave of the Court, withdraw such proceedings, in either of which event he or she shall deliver a notice of withdrawal and shall embody in such notice an undertaking to pay costs.”

Rule 53(2) is subject to provisions of the Constitution. One such provision is section 93(3), which has been interpreted to mean that once a petition or application challenging the validity of an election of a President or Vice President has been lodged with the Constitutional Court it cannot be withdrawn.

In Meda v Sibanda and Ors 2016 (2) ZLR 232 (CC)…, the Court said:

“While parties may, at any time before a matter is set down, withdraw a matter, with a tender of costs, the same does not hold true for a matter that has already been set down for hearing. Once a matter is set down, withdrawal is not there for the taking.

The applicable principles are set out in De VAN LOGGERENBERG and E BERTELSMANN ERASMUS: Superior Court Practice (2^nd edn, Juta & Co Ltd, Cape Town, 2015) at p B1-304. A person who has instituted proceedings is entitled to withdraw such proceedings without the other party's concurrence and without leave of the court at any time before the matter is set down. The proceedings are those in which there is lis between the parties, one of whom seeks redress or the enforcement of rights against the other…,.

Once a matter has been set down for hearing it is not competent for a party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of the court. In the absence of such consent or leave, a purported notice of withdrawal will be invalid. The court has a discretion whether or not to grant such leave upon application. The question of injustice to the other parties is germane to the exercise of the court's discretion. It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one. See Abramacos v Abramacos 1953 (4) SA 474 (SR); Pearson & Hutton NNO v Hitseroth 1967 (3) 591 (E) at 593D, 594H; Protea Assurance Co Ltd v Gamlase 1971 (1) SA 460 (E) at 465G; Huggins v Ryan NO 1978 (1) SA 216 (R) at 218D; Franco Vignazia Enterprises (Pty) Ltd v Berry 1983 (2) SA 290 (C) at 295H; Levy v Levy 1991 (3) SA 614 (A) at 620B; HERBSTEIN & VAN WINSEN 'The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa' (5ed) p750.”…,.

The applicants took the view that the filing of a Notice of Withdrawal after a matter had been set down for hearing had the effect of terminating the proceedings before the Court.

They were wrong.

The act of setting the matter down for hearing puts it under the control of the Court. A party who files a notice of withdrawal without the consent of the other parties or the leave of the Court, after the matter has been set down, and fails to attend at the hearing, runs the risk of being found in default. The Court can, as happened in this case, exercise its discretion and proceed to hear submissions from the party who is before it on the day of the hearing.

View Appeal
HH467-16 : ALBAN GERALD BOWERS vs SHARIFFA PRESIOUS BOWERS
Ruled By: CHITAKUNYE J

Rule 189, which deals with the withdrawal of admissions, provides that:- “The court may, at any time, allow any party to amend or withdraw any admissions so made on such terms as may be just.” In D D Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S)…, GUBBAY JA…, had this to say on the test ...

HH130-16 : YAKUB MAHOMED vs JOHN ARNOLD BREDENKAMP
Ruled By: CHIGUMBA J

The following issues were referred to trial in the main matter: 1. Whether the current proceedings can be proceeded with despite the pending nature and the non-conclusion of proceedings in HC4221-08?…,. At the hearing of the matter, a Notice of Withdrawal was tendered, dated 25 January 2016, in terms of which the plaintiff withdrew its action in case ...

View Appeal
HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: CHIGUMBA J

The interim interdict was withdrawn by the applicants before its confirmation.

HH101-15 : MICHAEL LESLIE MITCHELL STUBBS vs RENE STUBBS (nee DU PLOOY)
Ruled By: UCHENA J

A consent paper signed by the parties after they will have made admissions at the pre-trial conference, as happened in this case, is a compromise agreement which embodies admissions which cannot be withdrawn without complying with Order 27 Rule 189 of the High Court Rules 1971, which provides as follows; “The court may, at any time, allow ...

HH468-18 : KETHIWE VAN DER SANDEN vs ROBERTUS ANTOINE W. VAN DER SANDEN and ROY MASAMBA and REGISTRAR OF DEEDS N.O.
Ruled By: CHIRAWU-MUGOMBA J

At the hearing of this matter, the applicant's legal practitioner attempted to withdraw the application against the first respondent after the realization that there was essentially no remedy sought against him since he had disposed of the property. I pointed out to counsel for the applicant that, procedurally, it was not proper to withdraw a matter that had ...

CC05-19 : MISHECK MUZA vs REGGY SARUCHERA (as liquidator of J.W. Jaggers Wholesalers PL) and PRICE TRUST and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS
Ruled By: MALABA CJ and PATEL JCC and GUVAVA JCC

Counsel for the second respondent submitted that it was important to take note of the legal effects of a withdrawal. He submitted that the withdrawal of a matter is the end of it and no appeal can be made attacking that withdrawal….,. The decision to withdraw a matter from a court's roll is a personal one, contrary ...

HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

In Patterson Timba v Reggie Saruchera N.O. and Others HH461-15…, I stated the following; “In dealing with the issue of costs on withdrawal of proceedings specifically, AC CILLIERS in the Law of Costs, 2nd ed p121 had this to say: 'Where a litigant withdraws an action or in effect withdraws it, very strong reasons must exist why a defendant ...

HH461-15 : PATTERSON TIMBA vs REGGIE SARUCHERA N.O. and RESERVES BANK OF ZIMBABWE and NATIONAL SOCIAL SECURITY AUTHORITY and RENNAISSANCE FINANCIAL HOLDINGS LTD and RENAISSANCE MERCHANT BANK LTD
Ruled By: MAKONI J

In dealing with the issue of costs on withdrawal of proceedings specifically, AC CILLIERS in the Law of Costs, 2nd ed…, had this to say: “Where a litigant withdraws an action or in effect withdraws it, very strong reasons must exist why a defendant or respondent should not be entitled to his costs. A plaintiff or applicant who withdraws his ...

CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

Seven days after the declaration, on 3 August 2013, of the results of the Presidential election (hereinafter referred to as “the election”) held on 31 July 2013, showing Robert Gabriel Mugabe (hereinafter referred to as “the first respondent”) as the winner of the election, Morgan Tsvangirai (hereinafter referred to as “the petitioner”), who was one of the candidates contesting the election, lodged with the Constitutional Court (hereinafter referred to as “the Court”) a petition challenging the validity of the election under section 93(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (hereinafter referred to as “the Constitution”).

The petitioner used fourteen grounds for challenging the validity of the election which he alleged constituted corrupt practices committed by the first respondent through his agents or by third parties with his knowledge.

He also alleged irregularities which he said were committed by the second and fourth respondents, who were responsible for conducting the election.

It was the petitioner's averment, that, the said acts, which were allegedly committed in violation of the provisions of the Electoral Act [Chapter 2:13] (hereinafter referred to as “the Electoral Law”), had materially affected the validity of the election.

He prayed for an order declaring the election invalid and setting it aside and for a fresh Presidential election to be held within sixty days after the determination.

The respondents opposed the petition on the ground, that, the petitioner had lodged it when he had no evidence to prove the allegations of commission of corrupt practices and irregularities in the conduct alleged against them. They prayed for dismissal of the petition with costs.

The petition was set down for hearing at 10am on 17 August 2013.

At 17:25 hours, on 16 August 2013, the petitioner filed, with the Constitutional Court, a document titled “Notice of Withdrawal of the Petition” (hereinafter referred to as “the notice of withdrawal”). The notice of withdrawal was accompanied by an affidavit in which the petitioner gave reasons for wanting to withdraw the petition.

The reasons confirmed the accusations, by the respondents, that, the petitioner had lodged the petition and made the allegations of commission by them of corrupt practices and irregularities in the election when there was no evidence to support them.

The relevant parts of the affidavit of the purported withdrawal read as follows:

“1. It is with deep regret and sadness that I find myself having to depose to this affidavit which I present for purposes of explaining the reasons behind the withdrawal of the Election Petition just filed by my legal practitioners at my specific instance.

2. It is common cause that I filed a petition challenging the outcome of the Presidential Election in terms of its processes and outcome.

3. In the petition, various allegations regarding the conduct of the election by the second respondent were made, which allegations touch on the credibility and authenticity of the voting material which is currently under the control of the second and third respondents.

4. In order to gain access to voting material and other documents and information two urgent chamber applications were filed under case EC27/13 and EC28/13. Whilst arguments were advanced on the points in limine, judgment was indefinitely reserved in the matter. The merits have not been heard.

5.– 6…,. 7. As at the time of deposing to this affidavit (15:43 hours on Friday 16th August 2013), the judgment(s) in the applications for the materials had not been delivered. This, in my view, seriously handicaps my prosecution of the petition and it has rendered it impracticable for me to proceed with same.

8. I draw attention to the fact, that, I had specifically indicated, in my petition, that such material would be needed for the purposes of prosecuting the petition. The fact that I still do not have the material means that I cannot meaningfully prosecute my petition.

9.– 11…,. 12. I am also aware, that, the first respondent addressed crowds at the National Heroes Acre during the Heroes Day celebration on 12 August 2013. I am further aware, that, he made further unsavoury comments in which he criticised my decision to approach this Court. The fact that the CHIEF JUSTICE was in attendance on the day and the fact that he is expected to preside over my petition does very little to inspire my confidence in the possibility of my enjoyment of the constitutional right to a fair hearing.

In this regard, I make no imputation, gratuitous or otherwise, about the integrity of the honourable CHIEF JUSTICE. My concern is with the conduct of the first respondent.”

The question that arose from the proposed withdrawal of the petition was whether or not section 93 of the Constitution, which is a complete Code on matters relating to a petition or application challenging the validity of an election of a President lodged with the Constitutional Court, under subsection (1), provided for withdrawal of the petition or application as a right.

In the notice of withdrawal, and the affidavit accompanying it, the petitioner made no reference to a provision of the Constitution under which a right to withdraw a petition or application lodged with the Constitutional Court under sub-section (1) of section 93 of the Constitution is conferred....,.

Mr Mehta, representing the petitioner, argued, that, section 178(1) of the Electoral Act [Chapter 2:13] (the Electoral Law) provides a right to withdraw at any time an election petition presented by a candidate to the Electoral Court complaining of an undue election or an undue return. He argued that the provisions of section 178(1) of the Electoral Law were applicable to a petition lodged with the Constitutional Court under section 93 of the Constitution.

The legal practitioners for the respondents, and the Attorney-General, argued on a constitutional principle, that, every act claimed as a right under the Constitution must be traceable to a particular provision of the Constitution. The only section of the Constitution in terms of the provisions of which a right to withdraw a petition lodged with the Constitutional Court would have been given to a petitioner is section 93 of the Constitution.

The contention was, that, as section 178 of the Electoral Act (the Electoral Law) concerned election petitions presented to the Electoral Court, its provisions were not applicable to a petition or application lodged with the Constitutional Court under section 93(1) of the Constitution.

The argument was that the use of the words “subject to this section” at the beginning of section 93 of the Constitution makes the provisions thereof exclusive and overriding in effect on subject-matters relating to the preparation, lodgment, hearing, and disposition of a petition or application lodged with the Constitutional Court under subsection (1).

At the end of the hearing of the parties on the question of the legality of the proposed withdrawal of the petition, the Constitutional Court agreed with the respondents, that, the Constitution contained no provision for withdrawal of a petition or application lodged with it under section 93(1) of the Constitution. It held that the petitioner had no right to withdraw the petition.

The hearing of the petition then commenced.

Mr Mehta indicated that he had no meaningful submissions to make on the merits of the petition. He said his instructions were not to prosecute the petition any further than what was contained in the papers filed of record.

Counsel for the first respondent argued, that, the petition was the weakest document ever lodged with the courts in the country challenging the validity of an election.

Advancing the position taken by the first respondent in the opposing affidavit, he argued that the petitioner knew, at the time of preparation and lodgment of the petition, that, he had no evidence to prove the serious allegations of commission of corrupt practices he made against the first respondent. He adhered to the written heads of argument which addressed each of the allegations of commission of corrupt practices made against the first respondent.

Counsel for the second, third, and fourth respondents, made reference to the contents of the opposing affidavit deposed to by the third respondent on behalf of the second respondent and supporting documents filed of record to show that the accusations of commission of irregularities in the conduct of the election by the second, third, and fourth respondents were unfounded.

Counsel for the Attorney-General advanced the same argument as the respondents, to the effect, that, the petition was lodged without any evidence to support the allegations on which the validity of the election of the first respondent as President of Zimbabwe was being challenged.

After hearing submissions from the respondents' legal representatives, the petitioner having indicated, through his legal representative, that, he had no meaningful submissions to make on the merits of the petition, and, having evaluated and assessed all the evidence presented and contained in the papers, the Constitutional Court came to the conclusion that the petition had no merit.

Consequently, the petition was dismissed, and, an order made, on 20 August 2013, in the following terms:

“IT IS DECLARED:

1. THAT the Zimbabwe Presidential election held on 31 July 2013 was in accordance with the laws of Zimbabwe and in particular with the Constitution of Zimbabwe and the Electoral Act [Chapter 2:13];

2. THAT the said election was free, fair, and credible. Consequently, the result of that election is a true reflection of the free will of the people of Zimbabwe who voted; and

3. THAT Robert Gabriel Mugabe was duly elected President of the Republic of Zimbabwe and is hereby declared the winner of the said election.”

It was indicated, at the time, that, reasons for the decision, that, section 93 of the Constitution does not provide for a right of withdrawal of a petition or application lodged with the Court under subsection (1) challenging the validity of an election of a President and for the order made on 20 August 2013 would be given in due course.

These are the reasons.

To put the reasons for the decision on the question of the legality of the proposed withdrawal of the petition into proper context, it is necessary to set out the provisions of the relevant sections of the Constitution.

Section 167(2)(b) of the Constitution provides:

“167 Jurisdiction of Constitutional Court

(1)…,.

(2) Subject to this Constitution, only the Constitutional Court may —

(a)…,.;

(b) Hear and determine disputes relating to election to the office of President;…,.”

Section 93 of the Constitution provides:

“93 Challenge to presidential election

(1) Subject to this section, any aggrieved candidate may challenge the validity of an election of a President or Vice-President by lodging a petition or application with the Constitutional Court within seven days after the date of the declaration of the results of the election.

(2) The election of a Vice-President may be challenged only on the ground that he or she is or was not qualified for election.

(3) The Constitutional Court must hear and determine a petition or application under subsection (1) within fourteen days after the petition or application was lodged, and the court's decision is final.

(4) In determining a petition or application under subsection (1), the Constitutional Court may —

(a) Declare a winner;

(b) Invalidate the election, in which case a fresh election must be held within sixty days after the determination; or

(c) Make any other order it considers just and appropriate.

(5) If, in a petition or application under subsection (1) —

(a) The Constitutional Court sets aside the election of a President, the election of the President's two Vice-Presidents is automatically nullified;

(b) The Constitutional Court sets aside the election of either or both Vice Presidents, the President must, without delay, appoint a qualified person or qualified persons, as the case may be, to be Vice-President or Vice-Presidents.”

Section 94 of the Constitution provides:

“94 Assumption of office by President and Vice-Presidents

(1) Persons elected as President and Vice-Presidents assume office when they take, before the Chief Justice, or the next most senior judge available, the oaths of President and Vice-President respectively in the forms set out in the Third Schedule, which oaths they must take —

(a) On the ninth day after they are declared to be elected; or

(c) In the event of a challenge to the validity of their election, within forty-eight hours after the Constitutional Court has declared them to be the winners.”

Zimbabwe is a constitutional democracy practising a representative system of government. By the exercise of their sovereign authority, the people of Zimbabwe made the Constitution in terms of which they established elective public offices. They vested the offices with powers of government, to be exercised in accordance with the Constitution, or any other law, on their behalf and for their benefit.

Under the Constitution, an election to an elective public office is regarded as a central institution in a democratic society practicing a representative form of government.

It is by an election that is freely and fairly held in accordance with the tenets of the Constitution and the provisions of the Electoral Act (the Electoral Law) that Zimbabwean citizens can directly or indirectly, through freely chosen representatives, take part in the government of their affairs.

An electoral system based on free, fair, and regular elections to elective public offices established by the Constitution, or any other law, is one of the principles of good governance which bind the State and all institutions of Government at every level.

Under section 67(3) of the Constitution, every Zimbabwean citizen who is of or over eighteen years of age is, subject to the Constitution, guaranteed a right to vote in all elections and referendums to which the Constitution or any other law applies.

Section 67(1)(a) of the Constitution confers on every Zimbabwean citizen, without any reservation and regardless of voting status, the right to free, fair, and regular elections for any elective public office established in terms of the Constitution or any other law.

It is when all measures have been taken by public officials responsible for conducting an election in accordance with the Electoral Act (the Electoral Law) to ensure that the election is violence-free and all the necessary mechanisms for voters to cast their vote freely in secret have been put in place, that the right of every Zimbabwean citizen to a free, fair, and credible election is secured and the person elected has the right to hold office.

So a free, fair, and credible election for any elective public office is an essence of democratic self-government.

The office of President is an elective public office established by the Constitution. Executive powers are assigned to the office to be held in the interest of Zimbabwean citizens and used for their benefit. By virtue of section 67(1) of the Constitution, every Zimbabwean citizen has the right to a free, fair, and credible election of a President, expressing the will of the people.

By virtue of section 67(1) of the Constitution, every Zimbabwean citizen who is of or over eighteen years of age has a right to vote in an election of a President and to do so in secret.

Section 93(1) of the Constitution is based on a presumption of validity of the election of the President forming the subject of the petition or application lodged with the Constitutional Court.

Challenging the validity of the election of a President, in terms of section 93(1) of the Constitution, is as much an act of democratic self-government as acting in accordance with the Constitution and the Electoral Act (the Electoral Law) to ensure free, fair, and credible elections.

The investigation by the Constitutional Court, in terms of section 93(3) of the Constitution, to establish the truth of what happened in the election, and the giving of a final and binding decision on the validity or invalidity of the election, is a protection of the right of every Zimbabwean citizen to a free, fair, and credible election of a President.

The meaning of section 93(3) of the Constitution is that the Court must inquire into and establish whether the alleged acts of corrupt practices, irregularities or acts, on which the validity of the election is impugned, happened.

If acts are found to have happened, the Constitutional Court must inquire into the question whether they materially affected the validity of the election.

The finding of the truth or falsity of the allegations of fact on which the petition or application is based would require the hearing of evidence, and evaluation and assessment of it, in accordance with the competent rules of analysis.

The question for determination is whether or not the provisions of section 93 of the Constitution include a right to withdraw a petition or application lodged with the Constitutional Court challenging the validity of an election of a President.

The Constitutional Court holds, that, a right of withdrawal of a petition or application lodged with it under sub section (1) is not expressly provided for under section 93 of the Constitution and cannot be implied from the terms of those provisions.

There is no other provision of the Constitution or the Electoral Act (the Electoral Law) which gives a petitioner or applicant who challenges the validity of an election of a President, in terms of section 93(1) of the Constitution, the right to withdraw the petition or application once lodged with the Constitutional Court.

The reasons for this decision are these.

The exercise of the right of petition or application provided for under section 93(1) of the Constitution is limited.

Locus standi in judicio for the exercise of the right is limited to an aggrieved candidate. No other person has a right, under section 93(1) of the Constitution, to lodge a petition or application with the Constitutional Court challenging the validity of an election of a President.

The exercise of the right is also restricted as to the subject matter the petition or application can address. It can only be based on grounds which materially affect the validity of the election.

There is a presumption of the validity of the election.

For that reason, the grounds on which the petition or application is based must be clearly and precisely pleaded to bring out the alleged invalidity of the election and its basis.

The requirement that the petition or application must be based on grounds which challenge the validity of the election of a President imposes a vital limit to the exercise of judicial authority under section 93(3) of the Constitution.

The Constitutional Court is not to concern itself with isolated grievances which have no effect on the validity of the election. This is because the Constitution's design has left the election of a President to the people. It is only when an aggrieved candidate challenges, by a petition or application, the validity of the election and raises a legal question of exceptional public importance that it becomes the “unsought responsibility” (to borrow the phrase from Bush v Gore 531 US 2000) of the Constitutional Court to provide an effective and urgent resolution of the dispute it would have been forced to confront.

Section 93 of the Constitution enacts the principle, that, an election can only be declared invalid and set aside upon clear proof of facts of commission of prohibited conduct which materially affect the validity of an election.

It is also a limitation on the exercise of the right of petition or application under section 93(1) of the Constitution that the petition or application must be lodged with the Constitutional Court within seven days after the date of the declaration of the results of the election.

It is of note, that, so far, only the positive acts connected with the preparation, definition of subject-matter, and the lodgement of the petition or application are provided for.

What is guaranteed is the right of access by the aggrieved candidate who meets the prescribed requirements to the Constitutional Court to seek redress of his or her grievances.

The right of petition or application is conferred on an aggrieved candidate and protected under section 93 of the Constitution as a legal remedy for the protection of the right guaranteed to every citizen under section 67(1) of the Constitution to free, fair, and regular elections for any elective public office established in terms of the Constitution or any other law and exercised in accordance with the provisions of the Electoral Act (the Electoral Law).

The office of President is an elective public office established by the Constitution.

Every Zimbabwean citizen, regardless of voting status, has a fundamental right to a free, fair, and credible Presidential election. In other words, he or she has a right to a valid election of a President held in accordance with the relevant provisions of the law governing the conduct of the election.

An aggrieved candidate is a registered voter who shares with all other Zimbabwean citizens the right to a free, fair, and credible election of a President.

It is the alleged commission, by the respondents, in the election, of corrupt practices and/or irregularities prohibited under the provisions of the Electoral Act (the Electoral Law) which materially affects the validity of the election, in violation of the fundamental right of every Zimbabwean citizen to a free, fair, and credible election of a President, that constitutes the subject matter of the petition or application lodged with the Constitutional Court under section 93(1) of the Constitution.

What is not to be overlooked when interpreting the provisions of section 93 of the Constitution is the fact, that, they set up a procedural mechanism, the purpose of which is the protection of the fundamental right of every Zimbabwean citizen to a free, fair, and credible election for the public office of President.

It is a procedural mechanism, the implementation of which is intended to uphold the fundamental principle of the rule of law on which Zimbabwe is founded.

The Constitutional Court is enjoined, in the discharge of its duties under section 93(3) of the Constitution, to hold firmly in its mind, and act in accordance with the value fundamental to any democratic society, that, the basis of authority of a representative government to govern is free, fair, and regular elections.

There are, of course, many factors, the consideration of which point to the conclusion, that, a right to withdraw a petition or application lodged with the Constitutional Court, under subsection (1) of section 93 of the Constitution, challenging the validity of an election of a President, is not provided for under section 93 of the Constitution.

The preferred rule of interpretation is that all relevant provisions having a bearing on the subject for interpretation must be considered together as a whole in order to give effect to the objective of the Constitution, taking into account the nature and scope of the rights, interests, and duties forming the subject-matter of the provisions.

Section 93 of the Constitution must be considered as one whole and all other provisions which have a bearing on its true meaning must be brought into view and considered so as to enforce the spirit and underlying values of the Constitution.

The provisions of section 93 of the Constitution are designed so as to embody a structural and functional connection between the subject matters of the rights and obligations provided for and those provisions of the Electoral Act (the Electoral Law) which prohibit corrupt practices and irregularities in the election which materially affect the validity of the election.

As a result, the subject-matters of the procedural rights and obligations provided for under section 93 of the Constitution are an enforcement of the provisions of the Electoral Act (the Electoral Law) which proscribe corrupt practices and/or irregularities, the commission of which materially affects the validity of an election of a President.

The essential elements of a petition or application lodged under section 93 of the Constitution do not only provide a basis of the vital link between the procedural rights and obligations under the fundamental law and the provisions of the Electoral Act (the Electoral Law), they also define the scope, content, and effect of the subject matters of those rights and obligations.

The right of petition or application is given to an aggrieved candidate to enable him or her to take the grievance to the only court that has the power to hear him or her on the matter.

Implicit in section 93 of the Constitution is a rule, that, a petition or application lodged with the Constitutional Court under sub-section (1) is a legal document which meets all the requirements of validity and triggers the imposition of the obligation on the Court and other parties to the proceedings.

The lodgment of the petition or application, under section 93(1) of the Constitution, does not only commence proceedings, it gives the petitioner or applicant the right to be heard by the Constitutional Court in his or her cause.

It imposes on the Constitutional Court the reciprocal obligation to hear and determine the petition or application.

In the absence of an express provision for a right of withdrawal of the petition or application, the immediacy of the direct connection between the right to be heard and the corresponding obligation on the Constitutional Court to hear and determine the petition or application lodged with it under section 93(1) of the Constitution excludes the right of withdrawal of the petition or application from the application of the provisions of section 93(3) of the Constitution.

The direct connection between the right of the petitioner or applicant to be heard following the lodgement of the petition or application and the corresponding obligation on the Constitutional Court to hear and determine the petition or application is not established by construction taking into account the provisions for the jurisdiction of the Constitutional Court under section 167(2)(b) of the Constitution.

It is expressly provided for by section 93(3) of the Constitution, which imposes on the Constitutional Court an obligatory duty to hear and determine the petition or application.

Section 93(3) of the Constitution provides that the Constitutional Court “must hear and determine the petition or application lodged under subsection (1) within fourteen days after the date of lodgment.”

The word “must” is not used to mark only the obligation in respect of the time limit within which the acts designating the duty imposed must be carried out. The word is also used to indicate to the Constitutional Court that it is under an obligation to treat the petition or application in the manner prescribed and not in any other way.

What is imposed is a duty to obey the order first.

Obedience is doing that which is required by the law. In other words, the women and men exercising judicial authority must appreciate the meaning of the provisions to the effect, that, the Court with the power with which they are imbued “must hear and determine” the petition or application lodged with it. The word must surely mean more than that the Constitutional Court has power to hear and determine the petition or application. The words speak to an obligatory duty to exercise the jurisdiction the Constitutional Court has. The words state an obligation, the performance of which was a carefully chosen means to a particular end.

For the Constitutional Court to acquire full knowledge of the facts in issue, which is necessary if the final and binding decision required to result from the entire proceedings is to be made, taking into account the fundamental principles of justice, transparency, and accountability, it has to hear and determine the petition or application.

Considering that the Constitutional Court, which is the final court in the land, has been given original and exclusive jurisdiction on all matters relating to an inquiry into the validity of an election of a President brought to it by means of a petition or application, it makes sense to require it to acquire full knowledge of the facts before making a final and binding decision on the validity or invalidity of the election of a President.

The intention was obviously to reduce the risk of an erroneous decision to a more tolerable minimum: hence, the requirement that all nine Judges of the Court must sit to hear and determine a petition or application challenging the validity of an election of a President.

The Constitutional Court would have no choice but to “hear and determine” the petition or application lodged with it under section 93(1) of the Constitution. It cannot put itself, or let itself be put, in a position in which it is unable to hear and determine the petition or application.

A petition or application can be heard and determined when it is extant at the time of hearing.

When exercised, the right to withdraw the petition or application would have the effect of removing the petition or application from the exercise by the Constitutional Court of its jurisdiction.

That would prevent the Constitutional Court from discharging the obligatory duty imposed by section 93(3) of the Constitution. The Court would be in breach of the Constitution.

The purpose of the procedural mechanism provided for under section 93 of the Constitution is to secure a just, fair, final, and binding decision by the highest court in the land on the merits of the question of the validity or invalidity of an election of a President, raised in a petition or application lodged under subsection (1) within fourteen days after the lodgement.

It is clear, that, the final and binding decision on the validity or invalidity of the election of a President is required to be based on the merits of the case.

Section 93(3) of the Constitution is based on the principle of natural justice, that, he who hears a cause or matter must determine it.

The mandatory hearing and determination of the petition or application on the merits is the means required to be used to produce the final and binding decision on the validity or invalidity of the election of a President.

A finding that withdrawal of the petition or application, is, in the circumstances, a right provided for under section 93 of the Constitution, would be contrary to the rule of interpretation requiring that effect be given to the purpose of the provisions under construction.

Adherence to the requirements of the procedure provided for under section 93(3) of the Constitution, by the Constitutional Court, in the exercise of the powers vested in it, is made a fundamental matter.

The primary purpose of the method of processing the petition or application lodged under section 93(1) of the Constitution, as provided for under section 93(3), is the establishment of the truth or falsity of the allegations of commission of corrupt practices and/or irregularities made against the respondents.

It is the people who, in the exercise of their sovereign authority, decided that when a petition or application is lodged with the Constitutional Court, challenging the validity of an election of a President, they are entitled to know the truth about the allegations on the basis of which the validity of the election is impugned. They decided, in their wisdom, that, the most effective means of getting to the bottom of the allegations of electoral impropriety was a hearing and determination of the petition or application on the merits, by the highest court in the land, which would produce a final decision binding on all Zimbabwean citizens.

The Constitutional Court is under a duty to respect the judgment of the people and carry out the mandate in the manner prescribed to achieve the intended objective.

The hearing and determination of the petition or application, which the Constitutional Court is enjoined to undertake, would involve receiving evidence on the facts in issue presented by the parties in affidavit form, hearing oral or written arguments by or on behalf of the parties, evaluating and assessing the evidence in accordance with the competent rules of analysis, and making findings on the truth or falsity of the facts in issue.

Considering that the procedure provided for is the only one by which the jurisdiction of the Constitutional Court can be exercised under section 93 of the Constitution and that it is the only way in which the petition or application lodged under sub section (1) can be brought to an end, the final and binding decision envisaged under section 93(3) of the Constitution can only be one determining the petition or application on the merits.

It is a requirement, under section 93(3) of the Constitution, that, the petition or application be brought to an end by a judgment of the Constitutional Court as opposed to being brought to an end by means of a unilateral decision and actions of a petitioner or applicant to withdraw the petition or application.

It is not a decision that would be based on the reason given by the petitioner or applicant for withdrawing the petition or application. It would be a decision based on the results of the evaluation or assessment by the Constitutional Court itself of the evidence and arguments presented by the parties and findings of the facts in issue.

A final decision can only mean that all the issues raised by the petition or application have been determined or litigated on the merits.

Determination of the petition or application can only be by the Constitutional Court.

Withdrawal of the petition or application would determine nothing. It cannot be a judgment of the Constitutional Court, which is the only means by which a petition or application lodged under section 93(1) of the Constitution is required to be brought to an end.

In prescribing what the Constitutional Court has to do to ensure the achievement of the objective pursued, the people would not have included acts the performance of which would in effect have prevented the achievement of the objective.

In any case, one cannot withdraw what one has no control over.

Every right must be traceable to a particular provision of the Constitution or any other law.

It is one of the principles of Constitutional Law, that, every right is conferred for protection by, and, except in instances of private law, against the State.

In a constitutional democracy, Government is relevant to the extent that it uses the collective power the people entrusted it with to protect and promote their rights.

The use of the words “subject to this section” at the beginning of section 93 of the Constitution means that nothing should be done by the State in the exercise of the powers provided for to infringe the rights for the protection of which the procedural mechanism was set up.

Rights, like powers, can be provided for expressly or impliedly.

If withdrawal of a petition or application lodged under section 93(1) of the Constitution was intended to form part of the rights protected under the provisions of section 93 of the Constitution, it would have been expressly provided for under that section as a separate and distinct right from the right to petition or apply for redress of grievances relating to the alleged invalidity of an election of a President.

The right cannot be inferred from the concept of fundamental liberty, which is one of the fundamental values on which a democratic society is based.

The reason is that, as a right, it would have been conferred for protection by the State. It would be the subject of regulation by the Constitution. The need for an express provision for a right to withdraw the petition or application is the more apparent when regard is had to the fact, that, conditions for the exercise of the right may vary from a provision that the withdrawal can be done at any time to a provision that it can only be done on the authority of the Constitutional Court upon a special application.

The latter requirements create conditions for a withdrawal not in conformity with the prescribed procedure.

In this case, there is no withdrawal to talk about. There is nothingness.

As there is no express provision, in section 93 of the Constitution, for the right of withdrawal of a petition or application lodged under subsection (1), there is no need to try and establish the right by necessary implication.

A right to withdraw a petition or application would not form part of the right to petition or apply for redress of grievances. It cannot, for example, be implied as a part of the right to petition or apply for redress of grievances, as the right to food, the right to clothing, and the right to reasonable accommodation have been implied from the right to life.

It would not even be necessary to seek to establish the right of the withdrawal of the petition or application by the application of the necessary implication rule: see Ferrera v Levin NO and Ors 1996 (1) SA 984 (CC)…,.

The rule is that where withdrawal of a petition or application for redress of grievances in which the public has an interest is not expressly provided for, the intention is to exclude it.

There is also the principle that every provision of a Constitution has an historical source to be taken into account.

The historical root of the principle embodied in section 93 of the Constitution, excluding the right to withdraw a petition or application lodged under sub section (1), challenging the validity of an election of a President, lies in the electoral laws that have governed the conduct of elections in the country.

Immediately before the Constitution came into effect, on 22 May 2013, it was a longstanding principle of law in the jurisprudence of this country, that, a petition presented to an Electoral Court complaining of an undue election or an undue return to the office of President was not subject to a right of withdrawal.

The principle was the basis of the provisions of section 111(4) of the Electoral Act (the Electoral Law) and its predecessors.

Mr Mehta sought to rely on section 178(1) of the Electoral Act (the Electoral Law) to support the argument, that, a petition or application lodged under section 93(1) of the Constitution is subject to a right of withdrawal.

Section 178(1) of the Electoral Act (the Electoral Law) provided that an election petition presented to an Electoral Court complaining of an undue election or an undue return of a person elected to a public office may be withdrawn at any time.

Section 111 of the Electoral Act (the Electoral Law) made provision for presentation to the Electoral Court of an election petition complaining of undue election or an undue return of a person to the office of President.

Section 111(4) of the Electoral Act (the Electoral Law) made it clear, that, the provisions of section 178(1) of the Electoral Act were not applicable to an election petition presented to the Electoral Court under section 111(1) of the Electoral Act.

This exclusionary formula had been applied by similar provisions of successive Electoral Acts in this country for many years.

The provision was conformable to the former Constitution.

The effect of exclusion of the right of withdrawal of a petition or application challenging the validity of an election of a President is greater protection to that election than is provided for an election the petition or application challenging the validity of which is subject to a right of withdrawal.

Both methods are essences of democratic self-government.

The manner in which the provisions of section 93 of the Constitution are drafted demonstrates that the framers of the Constitution were aware of the existence of the principle on which section 111(4) of the Electoral Act (the Electoral Law) was based.

They elevated that principle to a constitutional principle on the understanding that it excluded from the rights conferred and protected by section 93 of the Constitution the right to withdraw a petition or application lodged with the Constitutional Court under sub-section (1).

The rationale for excluding a right of withdrawal of a petition or application lodged with the Constitutional Court under subsection (1) of the provisions of section 93 of the Constitution lies in the strength of the public interest in an election of a President which may be harmed by the withdrawal of the petition or application.

The public interest in the establishment of the truth or falsity of allegations of invalidity of an election of a President was given primary recognition and effect at the expense of the individual right of the petitioner or applicant to withdraw the petition or application at any time.

Every constitutional democracy sets great value on the office of President in the distribution of the powers of the State.

By the Constitution, the people, in the exercise of their sovereign authority, designated the office of President as one of the most important offices. They assigned to the office of President powers, by the lawful exercise of which they committed themselves to be governed in accordance with the conditions they prescribed. An election of a President is therefore a central institution for securing democratic self-government. By the election, the people choose the person who will exercise the powers of self-government for their benefit.

Under the Constitution, executive authority is vested in the President.

He or she exercises the powers, subject to the Constitution, through a Cabinet of Ministers made up of women and men of his or her own choice.

The person elected to the office of President becomes the Head of State and Government and Commander-in-Chief of the Defence Forces.

The President is not just the leader of the Government in power.

An election of a President in Zimbabwe is a popular affair, in that every citizen registered on a voters roll at ward and constituency level countrywide is eligible to vote for a President. A Presidential candidate is required to receive at least half plus one vote (51% threshold) of all the valid votes cast in the election to be entitled to a declaration as the winner.

Once chosen, in a free, fair, and credible election, a President assumes an office with enormous powers which he or she is required to exercise in accordance with the Constitution or any other law. He or she is under a duty to represent every Zimbabwean citizen regardless of whether or not he or she voted him or her into power.

An election of a President is bound to generate profound public interest, not necessarily measured by the number of votes cast in the election. Stakes are very high and political tensions may rise to levels that threaten public order and national security.

The election of a President is not just about finding an answer to the question who of the candidates should be the leader of the Government. It is about choosing a leader who will have the interests of all Zimbabwean citizens at heart and has the intellectual ability to exercise the powers of the office in accordance with the fundamental principles and values on which a democratic society is based to change the lives of the people for the better.

By the very nature of the circumstances in which it arises, a petition or application challenging the validity of an election of a President alleging that the President-elect stole the election requires effective and urgent determination on the merits.

It is indicative of simmering political tension and potential disturbance of public peace and tranquility.

The cause is the very fact, that, those who would have voluntarily taken part in the electoral process, convinced that the rules by which they act guarantee the validity of the electoral outcome, challenge it as losers.

The framers of the Constitution understood, that, in this world of men and women, there are those unscrupulous enough, and skillful enough, to use falsehood disguised as a genuine challenge of the validity of an election of a President as an effective political tool to undo an otherwise free, fair, and credible election.

A petition or application challenging the validity of an election of a President may be a predatory action aimed at preventing ascendancy into power by the winner.

The use of a known lie, as a tool for political ends, to undo the outcome of an otherwise valid election, is, at once, at odds with the premises of democratic government and the orderly manner in which political change is effected: see Mcdonald v Smith 472 US 479 (1985)…,.

The framers of the Constitution were also aware of the provision of the Electoral Act (the Electoral Law) prohibiting corrupt practices and irregularities in an election for public office which materially affect the validity of the election. They were conscious of the fact, that, elections can be stolen. They were acutely aware of the possibility that a candidate who cries foul after losing an election may, after all, have the truth on his or her side.

The people decided, that, an uninterrupted judicial investigation of the merits of the alleged invalidity of an election of a President would produce results that are consonant with public peace and tranquility.

HH56-17 : MANGWIRO SIBANDA vs JANE H. CHIKUMBA and ALTFIN INSURANCE COMPANY
Ruled By: MATANDA-MOYO J

The plaintiff instituted proceedings against the defendants, jointly and severally, the one paying the other to be absolved for the following relief; 1. Payment of the sum of $3,700= being costs of repairs to the plaintiff's sprinter vehicle registration number AAQ 5021 which was damaged due to a collision solely caused by the first defendant. The other vehicle ...

The plaintiff instituted proceedings against the defendants, jointly and severally, the one paying the other to be absolved for the following relief;

1. Payment of the sum of $3,700= being costs of repairs to the plaintiff's sprinter vehicle registration number AAQ 5021 which was damaged due to a collision solely caused by the first defendant. The other vehicle involved, which was being driven by the first defendant, a Toyota land cruiser registration number AAX 3378, was comprehensive-insured by the second defendant.

2. Payment of $9,750= being hiring costs incurred by the plaintiff during the period his vehicle was under repair.

3. Payment of interest on the sum total of $13,450= at the prescribed rate from date of summons to date of full payment.

The defendants, whilst accepting liability for causing the accident, deny liability for the amounts claimed above.

The first defendant pleaded that the vehicle involved was comprehensively insured by the second defendant. She did what was expected of her by referring the plaintiff to the second defendant. Her obligations ended there as she was not privy to what transpired between the plaintiff and the second defendant thereafter. She is at a loss why the plaintiff decided to join her in the proceedings.

The second defendant, on the other hand, pleaded that it attended to repairs which were caused by the accident involving the first defendant. The plaintiff's vehicle had been involved in any earlier accident which the second defendant is not liable for. Secondly, the plaintiff signed a release form which had the effect of releasing the defendants from any further suits or claims arising from the said accident. The defendants later offered the plaintiff, without admitting liability, the sum of $3,500= in exchange for the vehicle which offer was rejected by the plaintiff.

The defendants denied the plaintiff's vehicle was valued at $6,500= before the accident. The defendants also denied liability for $9,750= being costs allegedly incurred by the defendant through hiring a replacement vehicle. They put in issue the figure claimed.

At pre-trial conference the parties agreed that the issues which fell for determination are;

1. Whether or not the plaintiff is entitled to a further disbursement, the same claim having been settled. If so, in what amount?

2. Whether or not the plaintiff was entitled to hire a vehicle, and, if so, the quantum thereof....,.

At the time of the trial the second defendant was under liquidation and no leave was sought to proceed against the second defendant. It was only the first defendant whom the plaintiff proceeded against.

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

The four applicants are parents of minor children who wrote Ordinary Level examinations in November 2017. The examinations are managed by the second respondent, a body corporate duly established by and in terms of section 3 of the Zimbabwe School Examinations Council Act [Chapter 25:18].The results for the November 2017 ...

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

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:

1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null and void.

2. The appointments of the 2nd respondent, as Acting President and President of the Movement for Democratic Change party, were unconstitutional and therefore null and void.

3. All appointments and/or re-assignments and actions of the 2nd respondent, in his purported capacities as Deputy/Acting or incumbent President, were unconstitutional and therefore null and void.

4. The 1st respondent be and is hereby ordered to hold an Extra-Ordinary Congress after the lapse of at least one month after the date of this Order.

5. The respondents are ordered to pay the applicant's costs of suit, jointly and severally, the one paying the others to be absolved....,.

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

The remaining protagonists are members of the Party who were cited as follows in the court a quo;

The second appellant is the President of the Party, while the third appellant is its National Chairman.

The first respondent, who was the applicant a quo, is the Organising Secretary for the Gokwe Sesame District. The second respondent is the Deputy President, the third respondent is the Acting President and the fourth respondent is the Secretary General of the Party....,.

Mr Mpofu, lead counsel for the appellants, noted that the second and fourth respondents (Messrs Mudzuri and Mwonzora) had not participated in the proceedings a quo and were only cited herein because they had been cited in those proceedings. He then withdrew the appeal against both these respondents with a tender of costs on the ordinary scale.

As regards the third respondent (Ms Khupe), she too did not actively participate in the proceedings a quo and has resisted this appeal on purely technical grounds. Consequently, the appeal against the third respondent should also be withdrawn with a tender of costs on the ordinary scale.

This would leave the first respondent (Mr Mashavira) as the only opposing party herein.

Messrs Zimudzi and Kadoko, counsel for the second and fourth respondents respectively, noted that their clients were only concerned with the question of costs against them in the draft order. Accordingly, they both accepted the withdrawal of the appeal in respect of their clients and the tender of costs....,.

Counsel for the third respondent, Mr Madhuku..., was opposed to the withdrawal of the appeal against his client who had a clear interest in the matter. In particular, she had an interest in defending the judgment a quo, and, therefore, a right to participate in these proceedings. He submitted that once the matter was set down for hearing, the appellants could not unilaterally withdraw the appeal against the third respondent who was now entitled to pursue a judgment in her favour.

In reply, Mr Mpofu persisted with the argument that the third respondent had no right to any judgment because she was not involved in the proceedings a quo....,.

Ruling on Withdrawal of Appeal

Having considered submissions by counsel, the Court was of the view that leave for the withdrawal of the appeal against the third respondent should be refused.

Whilst it was clear that she was not directly entitled to insist on a judgment following withdrawal, it was however clear that she had a direct and substantial interest in the outcome of these proceedings. Case authority was agreed that this Court had a discretion whether or not to grant leave for the withdrawal of any appeal. In the particular circumstances of this appeal, therefore, the request for leave to withdraw the appeal against the third respondent was refused.

As regards the second and fourth respondents, no issues arose. The withdrawal of the appeal and tender of costs had been accepted by them. In the result, the Court made the following order:

“(a) The application for leave to withdraw the appeal against the second and fourth respondents is granted with costs.

(b) The application for leave to withdraw the appeal against the third respondent is refused with no order as to costs.”

Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.BACKGROUND FACTSThe following facts are common cause;The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car ...

View Appeal
HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA
Ruled By: MUZOFA J

The plaintiff issued summons against the defendants claiming payment of US$13,868=90 for car rental charges due to the plaintiff and interest thereon at the rate of 3.5% from 1 April 2016 to date of full payment.The undisputed facts are that the first defendant entered into a car hire agreement with ...

HH454-18 : YAKUB MAHOMED vs JOHN BREDENKAMP
Ruled By: CHIKOWERO J

At the hearing, the respondent withdrew its opposition to the filing of the answering affidavit. The respondent's heads of argument had taken issue with such filing.

View Appeal
HH139-18 : MARIA SITHOLE vs MATHIAS SITHOLE and CECK ENTERPRISES PL and B.R.M HOVE and PETER DZIMBA and MANNERS JARAVAZA and PARDON CHAKANYUKA and REGISTRAR OF DEEDS
Ruled By: DUBE J

This case concerns a sale and transfer of property carried out contrary to a court order.

It is trite law that a thing done contrary to the direct prohibition of a court order is void and is of no legal effect. Such a thing is regarded as never having been done. A disregard of a court order is fatal to the validity of a contract that is concluded in violation of a court order.

This is an application for confirmation of a provisional order.

The brief background to the application is as follows;

The applicant and the first respondent were married to each other and they later separated. The first respondent passed away on 2 February 2013. The applicant obtained a provisional order, on 8 October 1997, under HC8638/97, against the first respondent and the Registrar of Deeds, in the following terms;

“1. That the 1st respondent be and is hereby interdicted from selling, ceding, encumbering or otherwise disposing of his right, title and interest in Stand No. 2395 Glen View Township of Glen View situate in the District of Salisbury pending the finalization of the appeal noted by the applicant in case No. CC1314/92: DC1/93.

That the 1st respondent be and is hereby interdicted from removing any of the movable assets in the matrimonial home.

2. That the 2nd respondent be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of 1st respondent's right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.

3. That the 1st respondent pays the costs of this application.”

The first respondent did not oppose the provisional order which was granted during his life time and was barred for the reason of not opposing this application. He remains barred and this matter can proceed without notice to him or his estate.

The seventh respondent (Registrar of Deeds) is cited in his official capacity and did not oppose the application.

The claims against the third to sixth respondents, who are legal practitioners that represented the respondents at different stages of this dispute, were withdrawn.

HHH74-18 : THE PROSECUTOR GENERAL OF ZIMBABWE vs SHMUEL KLEIN
Ruled By: CHITAPI J and MUSHORE J

In this appeal, the Prosecutor General, pursuant to an order for leave to appeal having been granted by a judge of this court on 19 August 2014, noted an appeal against the acquittal of the respondent by the Regional Magistrate Eastern Division on 26 April, 2012.

The respondent, then a 58 year old Israel national, was charged on two counts of statutory contraventions.

In the first count, the respondent was charged with a contravention of section 3 of the of the Precious Stones Trade Act [Chapter 21:06]. It was alleged against him that, on 17 March 2012, and at Harare International Airport, he unlawfully had in his possession 8,486.66 carats of rough diamonds whose estimated valued was $2,437,708=22.

In the second count, the respondent was charged with a contravention of section 12(1) of the Immigration Act [Chapter 4:02] which creates an offence called “entry by evasion”. It was alleged against him that at the same place and on the same date as in the first count, the respondent, being the holder of a foreign passport, unlawfully failed to present himself to an immigration officer and entered Zimbabwe without authority contrary to the law.

The respondent pleaded not guilty to both counts.

In brief outline, the facts of the matter were that the respondent was a pilot instructor employed by an airline domiciled and operating from Israel. He was booked to fly on a South Africa Airlines scheduled flight out of Zimbabwe. He had flown into Zimbabwe the same date, that is, 17 March 2012. His boarding pass for exiting had been issued in South Africa at the time that he checked in to fly into Zimbabwe. The respondent was dressed in his pilot uniform. As part of the departure formalities for the return journey, the respondent presented himself to an aviation security screening point where his hand luggage was screened. Suspected precious stones were discovered and recovered in his luggage. These are the rough diamonds which grounded the charge in the first count.

On the second count, it was alleged against the respondent that, on arrival at Harare International Airport, on 17 March 2012, he did not present himself to an immigration officer but entered the country as a crew member yet he had travelled as a passenger.

The respondent denied both charges, and, with respect to the second count, he alleged that he was in fact on duty and wore his uniform. He had a valid boarding pass for Harare as with the rest of the passengers and the crew since boarding passes are issued to everyone on board an aircraft for accounting purposes should the plane be involved in a mishap or accident.

With respect to the first account, the respondent averred that he was an agent for a licensed diamond company whose licence he produced as well as an affidavit authenticating the agency relationship. The respondent averred, further, that he was a transit passenger en route to Israel and that the diamonds for which he produced documents of origin did not originate from Zimbabwe but from South Africa.

The Regional Magistrate, after a full trial, acquitted the respondent on both counts.

In response to the grounds of appeal filed by the appellant, the magistrate supported his decision to acquit the accused on the basis that the State had consented to the production of the permit or licence to possess diamonds which the respondent produced. The magistrate held that on the evidence adduced by the State, the respondent fell into the group of persons who could lawfully deal in or possess diamonds in terms of the Precious Stones Trade Act and that the respondent was a transit passenger. There was no evidence that the origin of the diamonds was Zimbabwe.

In respect of the second count, the magistrate held that the State did not lead any evidence as to what it alleged the accused had done in relation to the alleged failure to complete immigration formalities. At best, the State had only led evidence of a generalized nature from a witness regarding procedures to be followed by a person who wishes to enter Zimbabwe.

The above extrapolation briefly sets out what the case against the respondent was all about.

At the hearing, on 23 February 2017, the State prosecutor gave notice that he intended to abandon and withdraw the appeal. He requested for the matter to be postponed to 9 March 2017 so that he would prepare and file the necessary papers to give effect to the State's withdrawal.

On 8 March 2017, the State prosecutor filed supplementary heads of argument in support of the State's decision to withdraw its appeal. Both the prosecutor and the respondent's counsel made brief submissions in relation to the withdrawal.

The question which exercised the mind of the court was, whether or not the Prosecutor General, as appellant, could just abandon and withdraw the appeal in circumstances where the court was seized with the appeal. Put differently, the question which arose for consideration was whether or not the court could, if it had reservations with the reasons given for the withdrawal of the appeal, refuse to grant an order of withdrawal and direct that the appeal be argued on the merits.

A consideration of various pieces of legislation will help inform the decision of the court in regard to answering the question arising.

Section 258 of the Constitution, 2013 provides as follows:

“258 Establishment and Functions of National Prosecuting Authority

There is a National Prosecuting Authority which is responsible for instituting and undertaking criminal prosecutions on behalf of the State and discharging any functions that are necessary or incidental to such prosecutions.”

Section 260 of the Constitution provides as follows;

“260 Independence of Prosecutor–General

(1) Subject to this Constitution, the Prosecutor General -

(a) Is independent and is not subject to the direction or control of anyone; and

(b) Must exercise his or her functions impartially without fear, favour, prejudice or bias.”

Section 12 of the National Prosecuting Authority Act [Chapter 7:20] provides as follows:

“12 Power to institute and conduct criminal proceedings

(1) The Prosecutor General –

(a) Shall institute and conduct criminal proceedings on behalf of the State; and

(b) Shall carry out any necessary functions incidental to instituting and conducting such criminal proceedings; and

(c) May discontinue criminal proceedings; and

(d) Shall issue certificates nolle prosequi in accordance with the Criminal Procedure and Evidence Act [Chapter 9:07], to persons intending to institute private prosecutions, where the Prosecutor-General chooses not to prosecutor; and

(1) The Prosecutor-General may assign any duty referred to in subsection (1) to the National Director of Public Prosecutions, subject to the control and directions of the Prosecutor General.

(2) Subject to the Constitution and this Act, a member shall, subject to the control and direction of the Prosecutor-General, exercise the powers referred to in subsection (1), in respect of –

(a) The area of jurisdiction for which he or she has been appointed; and

(b) Any offences which have not been expressly excluded from his or her jurisdiction, either generally or in a specific case, by the Prosecutor-General.

(3) A member shall be competent to exercise any of the powers referred to in subsection (1), to the extent that he or she has been authorised thereto, in writing, by the Prosecutor-General, or by a person designated by the Prosecutor-General.”

The cited constitutional and statutory provisions speak to the powers and authority of the Prosecutor General in relation to conducting prosecutions of criminal cases on behalf of the State. Both on trial of an accused person and on appeal, as in this case, the Prosecutor General exercises the functions of prosecuting on behalf of the State as envisaged in section 258 of the Constitution.

In the absence of legislation to the contrary, the powers of the Prosecutor–General to undertake a prosecution also implies the power to stop a prosecution and a fortiori to withdraw a prosecution brought by the Prosecutor General.

In the matter Highstead Entertainment (Pty) Ltd t/a “The Club” v Minister of Law and Order and Others 1994 (10) SA 387 (C) the court held that the discretion to decide whether to proceed with a prosecution or to withdrew it is one of the fundamental functions in exercising a duty to prosecute.

Section 260 of the Constitution provides for the independence of the office of the Prosecutor General in the discharge of prosecutorial functions.

The Prosecutor-General “is not subject to the direction or control of anyone” in regard to discharging prosecutorial functions.

It follows that a court has no power to order the Prosecutor General to mount a prosecution or how to conduct criminal proceedings, save perhaps to the extent that once the Prosecutor General decides to prosecute, such prosecution should then be conducted in terms of the procedural rules obtaining in the court in which the case is listed for determination.

In R v Comptroller-General of Patents (1899) IQB 909…, in extrapolating on the independence of the Attorney General (equivalent of the Prosecutor General in this jurisdiction); the court held that when the Attorney General, in exercising his functions as an officer of the Crown, such functions were not subject to review by the court of the Queens bench or any other court.

The Zimbabwe Constitution, 2013 whilst entrenching the independence of the Prosecutor General has provided, in section 260(1)(b), safeguards which the Prosecutor General must have regard to when exercising his or her powers in terms of section 258 and 260(1)(a) of the Constitution.

What this entails is that, where an aggrieved person complains of an infraction of his or her fundamental rights and can prove, successfully, that the Prosecutor-General has failed to have regard to the safeguards listed in section 260(1)(b), the court, in the exercise of its wide powers of review, may enquire into such a complaint and grant an appropriate remedy.

The court cannot, however, mero motu review the powers or decisions of the Prosecutor General made in the discharge of his or her prosecutorial functions.

There must be a complaint of an infraction of someone's rights having been violated revised in this appeal. The complaint triggers an enquiry and review of the Prosecutor General's discharge of his functions.

In casu, no such complaint has been raised against the Prosecutor General's actions or decisions.

That being, the decision to withdraw the appeal is a matter peculiarly within the Prosecutor General's discretion and however he or she has arrived at such decision is his or her responsibility.

It is to be noted that the Prosecutor-General, in deciding to prosecutor, stop a prosecution, or withdraw it, does so taking into account the public interest, the interests of justice, and the need to avoid an abuse of the court process.

A lot of factors come into play when the Prosecutor General decides whether or not to prosecute or indeed to withdraw a prosecution. Some of the factors may not be in the public interest to disclose.

In my judgment, the courts, save where there is a complaint by an affected or interested party, must not interfere with the exercise of the prosecutorial functions of the Prosecutor General. The Prosecutor-General should not be subjected to any pressure either by the Executive or by the courts in the proper exercise or discharge of his functions regarding prosecutions.

Indeed, where an affected party petitions the court that the Prosecutor General, in the exercise of his or her functions, has broken the law, the court will issue an appropriate remedy.

An example of such an instance, in this jurisdiction, related to the refusal by the Prosecutor General (then Attorney General) to issue the complainant, whose case he had refused to prosecute, with a certificate “nulle prosequi”. The certificate would have enabled the complainant to conduct a private prosecution against the person whom the complaint alleged to have committed a criminal offence from which the complainant suffered harm; see Prosecutor General v Telecel Zimbabwe (Pvt) Ltd SC01-14; 2015 ZWCC 10; CC10-15.

This was topical case.

A reading of the High Court, Supreme Court and Constitutional Court judgments will show that the courts did not interfere with the Prosecutor General's decision to decline a prosecution. The courts simply ordered him to take the statutory step, as required of him, to issue a certificate nulle prosequi in terms of the Criminal Procedure and Evidence Act [Chapter 9:07] at the instance or request of the complainant.

To conclude this judgment, I must point out that whilst the Prosecutor General's right of appeal to this court, in relation to criminal appeals, derives from sections 61 and 62 of the Magistrates Court Act which suffers the Prosecutor General to first obtain leave of a judge to appeal, there is nothing which stops him from subsequently throwing in the towel and withdrawing the appeal.

The withdrawal of an appeal in respect of a matter brought by that party on appeal is a unilateral act which the court cannot stop nor review. It must follow that once the appellant has withdrawn an appeal the court cannot continue to deal with the matter. The court must endorse the withdrawal.

There was therefore no need in this matter for counsel for the appellant to file arguments or convince the court of the reasons nor their reasonabless for the Prosecutor General's decision to withdraw the appeal. It was the appellant's prerogative to withdraw the appeal.

Consequently, the following order shall issue;

1. That the appeal by the Prosecutor General, in case No. CRB R 263/12, is hereby withdrawn by the Prosecutor General as appellant.

2. The judgment of the Regional Magistrate, dated 25 April 2012, in the aforesaid case, shall remain extant.

SC52-18 : INNSCOR AFRICA LIMITED and GERIBRAN SERVICES (PRIVATE) LIMITED vs COMPETITION AND TARIFF COMMISSION
Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

This is an appeal against the judgment of the High Court holding that a conglomerate is a “merger” as defined in terms of section 2 of the Competition Act [Chapter 14:28] (“the Act”), and, therefore, notifiable to the respondent in terms of section 3A of the Competition Act if its ...

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

This was an urgent chamber application for a stay of execution.

It was filed on 6 March 2015. It was brought to my chambers at 17:15 hours three days later, i.e. on 9 March 2015. There were eleven applicants. Their case was that on 6 March 2015, i.e. the date the application was filed, the Sheriff, the second respondent herein, was scheduled to sell a number of properties belonging to applicants two to eleven.

The basis for seeking a stay was that the first respondent, National Social Security Authority (hereafter referred to as “NSSA”), had a judgment against the first applicant, Tetrad Holdings Limited (hereafter referred to as “Tetrad Holdings” or simply “Holdings”). It was said that that judgment had been obtained in error. NSSA's debt was said to be with Tetrad Investment Bank Limited (hereafter referred to as “Tetrad Bank” or simply “the Bank”) and not with Tetrad Holdings.

Apparently, Tetrad Investment Bank Limited was a subsidiary of Tetrad Holdings Limited.

However, in the founding papers, it was stressed that Tetrad Investment Bank Limited and Tetrad Holdings Limited were two distinct and separate entities. As such, it was said that an application for the rescission of the National Social Security Authority's (NSSA) judgment against Tetrad Holdings Limited had already been filed with this court. Thus, it was argued, if the Sheriff's sale went ahead there would be prejudice, not only to the shareholders of the applicants but also to the creditors.

After reading the papers, I agonised over whether or not to set down the matter for hearing.

The application was extremely economic with information. For example, other than describing all the applicants as companies incorporated according to the laws of Zimbabwe, and mentioning that the National Social Security Authority (NSSA) had a judgment against Tetrad Holdings Limited, which judgment was what the Sheriff was executing, the founding papers said nothing about the nature of the relationship between NSSA, as the judgment creditor, and the rest of the applicants. But, the main matter in which the writ of execution had been issued being a debt collection claim, I guessed that respondents two to eleven must have been guarantors or sureties of some sort. As it turned out, indeed they were.

But, that was not all.

The certificate of urgency, signed on 6 March 2015, said the matter was urgent because the sale was scheduled to take place that day; that Tetrad Holdings Limited was not, and had never been, the National Social Security Authority's (NSSA) debtor, but that it was Tetrad Investment Bank Limited that was; that for that reason the application for rescission of judgment had excellent prospects of success, and that, if the matter was not heard on an urgent basis, there was a risk of irreparable prejudice to the applicants' shareholders and creditors.

Only one date was mentioned, namely 6 March 2015 - the date of the sale.

Nothing was said about when the National Social Security Authority (NSSA) had obtained the judgment. It was not mentioned when the applicants had become aware of that judgment. No information was given as to what action, if any, the applicants had taken upon getting to know about that judgment. Neither the date of NSSA's writ nor that of the Sheriff's attachment was given. The property that the Sheriff had attached and was selling was not disclosed. Finally, it was not said when the application for rescission of judgment had been filed.

I turned to the founding affidavit and the rest of the papers. They were essentially an extension of the certificate of urgency.

Only two other dates were mentioned, namely, 8 August 2014 and 16 February 2015. It was said 8 August 2014 was when Tetrad Investment Bank Limited had held a Scheme Meeting with its creditors which the National Social Security Authority (NSSA) had attended, which, allegedly signified NSSA's acceptance that its debt was with the Tetrad Investment Bank Limited not Tetrad Holdings Limited. It was said 16 February 2015 was when the Sheriff had served the notice of sale on Tetrad Investment Bank Limited.

That was about all that the founding affidavit ever disclosed by way of additional information. The rest were basically legal arguments on why the sale had to be stopped....,.

The case number for that rescission application was just left blank!...,.

The urgent chamber application was classically a dog's breakfast. But, in spite of my serious misgivings at that stage, I set it down for hearing on 12 March 2015. I decided to let the applicants have their day in court....,.

On urgency, it was said the National Social Security Authority's (NSSA) judgment had been given on 28 March 2014. That was almost a year ago. NSSA's writ had been served on 15 August 2014 but the applicants had turned the Sheriff away on the basis that execution had been suspended pending an order for leave to convene a Scheme Meeting in terms of the Companies Act [Chapter 24:03]. On 20 August 2014 and 10 October 2014 NSSA had sent the Sheriff back to the applicants with the writ. Movable properties for applicants two to eleven had then been attached.

Thus, the National Social Security Authority (NSSA) argued, the applicants had been aware of the attachment as far back as August 2014 but had chosen to do nothing until the day of the sale - almost seven months later.

On 16 February 2015, the applicants had been served with the Notice of Sale - again they had chosen to do nothing.

Only on 27 February 2015 did they file an ordinary court application for the condonation of the late filing of the application for rescission of judgment. However, they had withdrawn that application on 5 March 2015. They had then proceeded to file the urgent chamber application on the next day, 6 March 2015....,.

As I invited the parties into my chambers, it was manifestly obvious that the applicants could not reasonably persist with their urgent chamber application in the state that it was in.

Indeed, counsel for the applicants advised that it was no longer necessary to argue the aspect of urgency and waste the court's time. He said that what the applicants would now request was that the matter be removed from the roll for urgent matters and referred to the ordinary roll. The parties could be granted the liberty to file supplementary affidavits. The costs could be made in the cause.

He submitted that the applicants were not prepared to withdraw their urgent chamber application, and that they could not be forced to do so. He said whether I could strike off the matter from the roll for urgent cases or simply refer it to the ordinary roll would amount to the same thing because, ultimately, the matter would one day be heard on the ordinary roll.

Unfortunately for the applicants, their stance was not an agreed position with the National Social Security Authority (NSSA), something which counsel for the applicants, from the remarks which prefaced his submissions, had obviously anticipated. Counsel for NSSA insisted that the matter should simply be dismissed with costs on the higher scale of attorney and client because the application had undoubtedly been an abuse of the court process.

Seeing my inclination towards dismissing the application with costs, counsel for the applicants argued, forcefully, that where a judge decides that a matter brought to him under a certificate of urgency, is, in fact not urgent, the proper course is to refer it to the ordinary roll or strike it off the roll for urgent matters. The judge should then leave the question of costs for determination together with the merits of the case.

He said if I were to order costs at that stage, the applicants would have to seek my leave to appeal to the Supreme Court, thereby entailing the matter being heard again. He submitted that if I were to dismiss the application it would mean that I would have decided the merits of the case yet these had not been argued before me.

He said there were a number of Supreme Court decisions to the effect that if a judge finds the matter not to be urgent the proper course is to strike it off and not to dismiss it. At that stage, counsel for the applicants did not have the citation of those cases but only remembered some of the parties involved. He offered to make the judgments available to me later on.

After hearing argument from both sides I was of the view that the applicants' case for urgency had lacked merit right from the onset; that by refusing to withdraw it and insisting that it be referred to the ordinary roll where they would try and patch it up by filing supplementary affidavits, and that by also insisting that the question of costs be left over for determination together with the merits, the applicants were trying to have their cake and eating it.

I felt I had the discretion to refer or not to refer to the ordinary roll an application that is brought under a certificate urgency when it is not urgent.

However, in this case it was my strong view that the applicants had not supplied me with any useful information that would have enabled me to decide whether or not their case merited to be dealt with on an urgent basis. They had dragged the respondents to court. When they had submitted their application in the first place they had obviously taken the view that it had been complete. However, it was obvious that they now realised how seriously defective it had been. So, instead, of doing the logical thing, namely, to withdraw it and tender wasted costs, they were now cleverly trying to salvage the situation by seeking a referral of the matter to the ordinary roll so that they could supplement their pleadings. In the process they hoped to avoid paying the wasted costs.

I considered that such conduct was inappropriate and that the applicants had to be mulcted in costs. In the end I dismissed the application with costs on an attorney and client scale. I stressed, in my ex tempore pronouncement, that it was because of the serious lack of merit on the aspect of urgency that I was dismissing it.

Subsequent to my order, counsel for the applicants supplied a number of authorities on the point that where a judge decides that an urgent chamber application is in fact not urgent, the proper course is to strike it off the roll.

The first was a judgment of this court by UCHENA J in African Consolidated Resources Plc & Ors v Minister of Mines and Mining Development & Ors 2010 (1) ZLR 208 (H). At p215D-E of his judgment the learned judge said:

“Mr Mutamangira urged this court to dismiss the application if the court found in favour of any of the respondents' preliminary issue.

As I cannot deal with other issues in view of my finding that the application is not urgent, the order sought by the respondents is not appropriate. A finding that a case is not urgent does not mean that the applicant's case has no merits. It means the case does not qualify for hearing on an urgent basis in terms of Rule 244 of the High Court Rules. It should simply take its place among cases awaiting to be set-down for hearing in terms of the rules applicable to [non]-urgent applications. See the comments of CAMERON JA in Commissioner, South African Revenue Service v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Services v Hawker Aviation Partnership & Ors 2006 (4) SA 292 (SCA) at 299F–300A.

A case judged to be not urgent should simply be struck off the roll for it to be proceeded with like any other case.”

The second case was that of Phineas Mariyapera v Eddies Pfugari (Private) Limited & Anor SC03-14. On pp1 and 2 of the cyclostyled judgment ZIYAMBI JA said:

“Mr Uriri, for the appellant, in his submissions before us, raised two points. Firstly, that having found the matter was not urgent, the court a quo should simply have removed the matter from the roll and not dismissed it. Secondly, that the order of punitive costs was an improper exercise of the court's discretion and that an award of costs on the ordinary scale would have been the appropriate order.

Dealing with the first issue, Mr Uriri conceded that although the court dismissed the application, such dismissal was not on the merits and therefore would not give rise to a plea of res judicata in any future proceedings. This was, in our view, a proper concession. However, the point needs to be made that in a case such as this one the correct order to be made would be that the matter be removed from the roll, rather than dismissed. The order of the court a quo will be amended accordingly.

On the second issue, namely, the award of costs on the higher scale, we find that the court a quo did make certain findings of fact which could not properly be made without an enquiry into the merits of the matter. However, there were other findings of fact which were either common cause or apparent on the papers, and undisputed, which were properly taken into account by the Court in the determination of the issue….,.

We accordingly find that there is no basis on which it can be said that there was an improper exercise of the court's discretion in awarding costs on the higher scale such as would warrant interference by this Court.”

The third case was Air Zimbabwe (Private) Limited & Anor v Stephen Nhuta & Ors SC65-14. At p5 of the cyclostyled judgment, ZIYAMBI JA said:

“The first ground of appeal makes no sense because the court a quo did not decline to hear the matter. Indeed, having found that the matter was not urgent it nevertheless proceeded to hear and determine it on an urgent basis. In so doing, the court a quo contradicted itself. What it should have done, once a finding of lack of urgency was made, was to strike or remove the matter from the roll of urgent matters and not proceed to hear the merits for, once a hearing has taken place and a decision made on the merits, the question of urgency becomes irrelevant.”

The fourth and last case was that of Edward Tawanda Madza v The Reformed Church in Zimbabwe Daisyfield Trust & Ors SC71-14. Again, the same learned judge of appeal said…,:

“The learned Judge was of the view that the urgency was created by the appellants….,. We do not find any impropriety in the learned Judge's exercise of his discretion in this regard.

However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.

Accordingly, it is ordered as follows:

1….,.

2. The judgment of the court a quo is altered to read as follows:

'The matter is not urgent. It is removed from the roll. The applicants shall pay the costs of this application.'

3….,.”

It seems to me that what the above authorities were concerned with was the dismissal of the entire urgent chamber application as if it would have been determined on the merits.

That was neither the order that I gave in this case nor the import of it.

In my view, an urgent chamber application is one in which there is, unavoidably, the initial or opening application for the matter to be heard on an urgent basis. Only after this has succeeded can the merits of the dispute be considered.

In my view, the application for the matter to be treated as urgent is an inevitable adjunct of the actual application on the merits. Urgency has its own set of considerations. So what I dismissed in this case was that antecedent application for the matter to be heard on urgent basis. Even though both parties and myself did from time to time touch on the merits during the hearing, nonetheless I restricted my order of dismissal to the aspect of urgency. The applicants had not been prepared to withdraw it. I could not force them to do so. But, I did not feel bound to accede to their request to have the matter referred to the ordinary roll. What they had presented to me in the first place had been a complete application by itself. They had made their bed of roses. They could only lie on it.

My order of costs on the higher scale was informed by the spuriousness of the application for the matter to be heard on an urgent basis, and the applicants' attitude that, notwithstanding their realisation and manifest acceptance of the paucity of their papers, they, nonetheless, sought to avoid paying the costs that they had caused the respondents to incur.

I found it unacceptable.

CC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) in terms of Rule 21(2) of the Constitutional Court Rules, S.I.61 of 2016 (“the Rules”).

The applicant intends to file the substantive application with the Constitutional Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The substantive application the applicant intends to make, in terms of section 85(1)(a) of the Constitution, should leave for direct access be granted, alleges that the decision of the Supreme Court, dismissing an appeal against a decision of the High Court upholding his conviction and sentence of imprisonment for bribery violated his right to a fair trial enshrined in section 69(1) of the Constitution.

The applicant had to show that it is in the interests of justice for an order for direct access to be granted.

FACTUAL BACKGROUND

The applicant was employed by the Zimbabwe Republic Police as the Officer-In-Charge of Guruve Criminal Investigation Department.

On 24 October 2014 he was arraigned before the Magistrate's Court facing a charge of bribery, as defined in section 170(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). It was the respondent's case that on 3 April 2014 the applicant unlawfully and intentionally received $200 from one Biggie Chipfunde in order to influence investigations in a criminal case involving the latter as an accused. The criminal case was pending before the Magistrate's Court.

The applicant denied the charge of bribery. He said that he received the money from Biggie Chipfunde, genuinely believing that it was a donation to a fundraising campaign.

After a full trial, the applicant was convicted of bribery. He was sentenced to twelve months' imprisonment, of which four months were suspended for a period of five years on conditions of good behaviour.

The applicant noted an appeal to the High Court against the conviction and sentence. The grounds of appeal against conviction were that the trial magistrate ignored glaring inconsistencies in the evidence of the respondent's witnesses; that the respondent failed to prove its case beyond a reasonable doubt; and that the authority to organise entrapment had not been properly obtained.

The ground of appeal against sentence was that a non-custodial sentence was more appropriate given the circumstances of the case.

The High Court upheld the conviction. The appeal against sentence was also dismissed by the High Court.

The applicant noted an appeal to the court a quo against the judgment of the High Court. The court a quo found that the appellant's grounds of appeal, against conviction, did not emanate from the High Court's ratio decidendi. It held that no proper grounds of appeal had been placed before it. The court a quo also upheld the sentence, after finding no misdirection on the part of the High Court. The appeal was dismissed in its entirety.

It is against this background that the applicant filed the application for leave for direct access to the Constitutional Court. He alleged that the court a quo breached his fundamental right to a fair trial.

The contention was that the proceedings in the Magistrate's Court were tainted with gross irregularities which resulted in a substantial miscarriage of justice. He alleged that the trial magistrate “deliberately ignored analysing and evaluating the defence case and its documentary exhibits which rebutted all essential averments in the State case.”

The applicant further alleged that the subsequent upholding of the trial magistrate's decision, by the High Court, was irregular, as that court relied on section 170(2) of the Criminal Law (Codification and Reform) Act (the Code) as the basis for dismissing the appeal when the trial magistrate did not rely on the provision in question to convict him.

He alleged that section 170(2) of the Criminal Law (Codification and Reform) Act is invalid. He argued that the section is an unconstitutional provision which casts a reverse onus on the applicant to prove his innocence, thereby breaching section 70(1)(a) of the Constitution which guarantees an accused person the right to be presumed innocent until proven guilty.

Lastly, the applicant averred that the court a quo omitted to exercise its review powers provided for under section 25(2) of the Supreme Court Act [Chapter 7:13]. He contended that failure to exercise the powers provided for by law was an infringement of his right to have the case reviewed by a higher court, guaranteed under section 70(5)(a) of the Constitution.

The applicant averred that granting leave for direct access to the Constitutional Court would be in the interests of justice as it would vindicate his right to a fair trial guaranteed under section 69(1) of the Constitution.

The application was opposed by the respondent.

Counsel for the respondent submitted that the court a quo properly evaluated the evidence adduced by the State and concluded that the High Court had reached the correct decision in dismissing the appeal against conviction and sentence. The applicant was not happy with the manner in which the evidence was assessed by the court a quo. That does not mean that the decision of the court a quo is in violation of the applicant's fundamental rights.

DETERMINATION OF THE ISSUES

WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT LEAVE FOR DIRECT ACCESS TO THE CONSTITUTIONAL COURT BE GRANTED

The jurisdiction of the Constitutional Court is provided for under section 167(1) of the Constitution.

The Constitutional Court is the highest court in all constitutional matters. It decides only constitutional matters and issues connected with decisions on constitutional matters. The Constitutional Court has the power to make the final decision on the question whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Direct access is an extraordinary procedure which is granted only in deserving cases and has been sparingly granted. Before a party can be granted leave to approach the Constitutional Court directly, in terms of section 85(1)(a) of the Constitution, he or she or it has to satisfy all the requirements set out in Rule 21(3) of the Constitutional Court Rules. The requirements are as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

It is peremptory for an applicant to set out facts or grounds, in the founding affidavit, the consideration of which would lead to the conclusion that it is in the interests of justice to have the matter placed before the Constitutional Court directly.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18, the Court had occasion to deal with the requirements to be satisfied in an application of this nature. It held as follows…,:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied.

The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

Where the jurisdiction of the Constitutional Court is sought to be invoked on the allegation that the decision of a subordinate court, on a non-constitutional matter, violated a fundamental human right, the applicant must show that the violation was a result of failure by the subordinate court to act in accordance with the law governing the proceedings concerned leading to an arbitrary decision.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Ltd and Anor CC11-18 the Court held as follows…,:

“The theory of constitutional review of a decision of the Supreme Court, in a case involving a non-constitutional matter, is based on the principle of loss of rights in such proceedings because of the court's failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision.”

What amounts to a constitutional matter is defined in section 332 of the Constitution as meaning a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution.

In Moyo v Sergeant Chacha and Ors CC19-17, the Court explained the import of section 332 of the Constitution in the following words…,:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”…,.

The mere allegation that a fundamental human right enshrined in Chapter 4 of the Constitution has been infringed does not mean that a constitutional issue has arisen from a decision of a subordinate court.

A decision of a subordinate court, on any matter within the ambit of its jurisdiction, would not be found to have given rise to a constitutional matter on the basis of a founding affidavit complaining about an alleged incorrectness of the decision of the subordinate court.

The question of whether or not the court a quo correctly assessed and evaluated the evidence before it is a factual matter that does not involve the interpretation, protection or enforcement of the Constitution.

A contention that the court a quo did not take some evidence into account in reaching its decision cannot be used as a ground to allege that the applicant's right to a fair trial, enshrined in section 69(1) of the Constitution, was violated.

In General Council for the Bar of South Africa v Jiba and Others [2019] ZACC 23 it was held as follows…,:

“The apparently incorrect determination of facts by the majority in the Supreme Court of Appeal and the erroneous application of the three-stage test to those facts also do not raise a constitutional issue. This is because the standard is well established and the determination of facts, whether right or wrong, does not amount to a constitutional issue.”

Du PLESSIS, PENFOLD and BRICKHILL, Constitutional Litigation, 1edn, Juta & Co Ltd, Cape Town, 2013 state as follows…,:

“While the ambit of the phrase 'constitutional matter' is clearly very wide, it is not unlimited. Most significantly, the Constitutional Court has indicated that a purely factual matter does not amount to a constitutional matter.

For example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended that the decision of the Supreme Court of Appeal upholding his conviction for fraud and theft contravened his right to a fair trial (and particularly the right to be presumed innocent) and to freedom and security of the person.

The basis for this contention was the allegation that the Supreme Court of Appeal erred in its evaluation of the evidence and in finding that Boesak's guilt had been proved beyond reasonable doubt.

The Constitutional Court rejected this argument, holding that 'the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot itself be a constitutional matter' or, put differently, disagreement with the Supreme Court of Appeal's assessment of facts is not a breach of the right to a fair trial.

The court thus held that '[u]nless there is some separate constitutional issue raised…, no constitutional right is engaged when the appellant merely disputes the findings of fact made by the [Supreme Court of Appeal].'”…,.

No constitutional issue can arise from a contention that evidence was incorrectly assessed by the subordinate court.

The Constitutional Court does not assume jurisdiction when it is being called upon to reverse factual findings of the court a quo on non-constitutional issues. The remedy of an appeal is available to a litigant who is dissatisfied with an outcome of a matter on the merits. A litigant defines the boundaries of the appeal through the grounds of appeal.

This is a clear remedy which was available to the applicant.

In defining his appeal before the court a quo, the applicant raised five grounds against the conviction and one ground against the sentence.

The judgment of the court a quo shows that three of the grounds of appeal against conviction were abandoned. The abandoned grounds attacked the correctness of the High Court's decision on the allegation that proof beyond a reasonable doubt had not been led by the respondent. The abandoned grounds of appeal also raised the issue regarding the lawfulness of the entrapment authority.

At the hearing of the application, the applicant sought to argue that the court a quo should have detailed the reasons why he abandoned some of the grounds of appeal. The allegation was that the grounds were not voluntarily abandoned by his legal practitioner.

The legal practitioner acted in the interests of his client.

Having abandoned some of the grounds of appeal, the applicant could not seek to revive those grounds of appeal in an application to the Constitutional Court, alleging that there are irregularities which amounted to a substantial miscarriage of justice.

Once a party abandons some of the grounds of appeal, he or she or it cannot seek to attack the Appeal Court for accepting the abandonment.

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –

“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:

(1) That the President of the Apostolic Faith Mission of Africa International is Reverend Zulu.

(2) That the President of the Apostolic Faith Mission of Africa is Reverend Clement Nyathi.”

On the day of the hearing, on 10 July 2018, the first applicant quickly made what he termed an application for the matter to be removed from the roll.

That application, which must have taken everyone by surprise, was vigorously opposed by the first, second and fourth respondents.

The court may mention, at this stage, that, for all intents and purposes, it became clear, as the matter progressed, that this was an application (i.e. the main application and the “mini” application for removal from) were being orchestrated by the first applicant.

The second applicant, despite being present in court, and allegedly appearing in an individual capacity, said virtually nothing apart from bending over for a second to say he was associating himself with the first applicant's submissions - and this only when asked by the court.

The third applicant was not even present, although, upon inquiry by the court, the three (3) applicants were said, by the first applicant, to be appearing purely in their individual capacity.

The first applicant then told the court that for some reason, the third applicant had failed to attend court.

It was however clear that the first applicant, as he went on over-drive in submissions, was really speaking on behalf of all three (3) applicants - and moreso supposedly on behalf of a “church”.

This court had to discover later on…, that the third applicant is his wife, as shown by various other matters brought before the courts.

As the first applicant insisted, the court decided not to shut him out, as an unrepresented litigant, but to give him a long ear so to speak.

The court still asked him, however, to be clear on what application exactly he was making; in terms of what legal basis he was making it; and the reasons why he was making it.

The first applicant then said that this matter was heard before Mr Justice BERE who clearly recused and also clearly stated that no Judge from the Bulawayo High Court would hear the matter. He said that Justice BERE thus and then recused himself on his behalf and on behalf of all Bulawayo High Court Judges.

He went on to say both parties were therefore of the view that the matter would be transferred elsewhere and were shocked to be told that they were appearing before me.

He went on to say both parties would still press that no Bulawayo High Court Judge should hear the matter hence the application for its removal from the roll.

The court later learnt, from a copy of an order produced by counsel for the first, second and fourth respondents, and after reading a 'swarm' of other matters by the same litigants, that;

(i) Firstly, my brother Mr Justice BERE…, did not recuse himself from, this matter.

(ii) Secondly, and in any case, he did not and could not have legally recused himself on behalf of all other Bulawayo Judges. He clearly recused himself on his own behalf only.

(iii) Thirdly, both parties, the first applicant seemed to mean that the applicants and the respondents were all anticipating that the matter would be transferred elsewhere or would still pursue for that position. Clearly, that was not the case, he must himself have been taken by surprise, not only the respondents but also the second applicant. The third applicant was not in attendance anyway.

When the court sought to confirm whether indeed a transfer of the matter was the expectation and wish of both parties, counsel for the first, second, and fourth respondents emphatically disagreed and submitted that the court is being misled.

Counsel for the first, second, and fourth respondents also shed light on the plethora of cases, mostly applications brought before the courts by the three (3) applicants and/or their group. He further submitted that the applicants merely make a flurry of accusations, unfoundedly, with the sole purpose of diverting the court from its core business and mandate to properly deal with issues before it.

Ultimately, the first applicant in fact then and again went overdrive in his accusations, adding to the list counsel for the first, second, and fourth respondents himself and the Registrar's officer.

He even accused all Bulawayo Judges of “discussing” these matters before going into court.

He could not back down - even after being reminded that the Judge in this hearing had just come from Harare.

Unclear and unheralded as it sounded, the first applicant was directed to file his clear and written application before 18 July 2018 and serve it on the defendants' counsel.

He did not by close of business on 17 July 2018. The application/request had no merit, and, in any case, was vigorously opposed.

It is dismissed.

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: MAFUSIRE J

Following certain concerns that I had raised on the form and content of the urgent chamber application herein, the applicant decided to withdraw it. However, it insisted that each party should bear their own costs. On the other hand, the respondent insisted not only on its costs, but also that ...

After full argument on costs I awarded them at the higher scale. Below are my reasons, most of which I had given ex tempore.

The urgent chamber application had been for an order that the respondent (“the Bank”) should uplift or remove the embargo that it had unilaterally placed on the applicant's account with it.

The applicant's deponent, one Richard Mayiya (hereafter referred to as “Richard”), was a Director of the applicant. He claimed that two other Directors, a husband and wife team based in South Africa, had resigned. He said that such a development had been communicated to the Bank with instructions to alter the signing mandate originally given to it. The mandate had included those Directors. The Bank had initially complied. Richard Mayiya said he had made some four withdrawals single handedly. However, the one ex-Director, the husband, one Reuben Munsamy (hereafter referred to as “Reuben”), had subsequently written to the Bank on the applicant's forged letter-head, denying that he had resigned from the applicant and that he was still a signatory to the account. The letter had warned the Bank of grave consequences if it should honour requests for withdrawals on the basis of Richard's single signature.

The Bank had filed a notice of opposition objecting to the urgent chamber application on both technical and substantive grounds. But since the application was withdrawn it became unnecessary to argue it on the merits, except in so far as they had a bearing on the question of costs.

At the hearing, the applicant had wanted a postponement. It transpired that as they had been waiting to be called into chambers the parties had had an opportunity to discuss the matter. It seems the issue had finally crystallised into whether or not Reuben Munsamy had indeed resigned as a Director of the applicant and was no longer concerned with the manner the applicant's account with the Bank would be run. The applicant wanted a postponement to present its second resolution that allegedly would prove that Reuben had indeed resigned. The first resolution was the one on which the application had largely been predicated upon. It had been challenged.

The Bank was opposed to a postponement. Among other things, it said the applicant had had ample opportunity to produce proof of Reuben Munsamy's resignation and that the purpose for which the applicant wanted the postponement, namely, to produce another resolution, would not change the complexion of the case. It seemed the Bank wanted Reuben himself to provide the proof of his resignation and to confirm the alteration of the signing arrangements.

There was a stalemate.

Counsel for the applicant formally moved the application for a postponement. Counsel for the Bank responded. It was before counsel for the applicant could reply that I raised my concerns in order that he could take them into account in his reply.

It had seemed to me, even before I had read the notice of opposition, that the urgent chamber application was defective in a number of ways. So I felt if the application was to be postponed I had to be satisfied that it was regular in the first place. It was at that point that the applicant decided to withdraw it. I felt it was a decision well-taken and I commended counsel for the applicant for it.

The applicant's grounds for insisting that each party should bear their own costs was that the Bank's action in “freezing” its account had been taken unilaterally; that it had not afforded the applicant a chance to make representation and that there had been no justification for such action given that proof of Reuben Munsamy's resignation, in the form of a Form CR14, had been furnished to the Bank. Furthermore, the Bank must have initially accepted the applicant's position because Richard Mayiya had made four withdrawals soon thereafter before the embargo had been placed.

In spite of the applicant's submissions, I not only awarded the costs against the applicant but also on the higher scale. My reasons were these.

The urgent chamber application was defective from the outset. It had not been in Form 29 of the Rules of this court as required by the proviso to Rule 241(2): see Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H); Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14 and Base Minerals Zimbabwe (Private) Limited & Anor v Chirosva Minerals (Private) Limited HH559-14. Among other things, the grounds for the application had not been set out on the face of the application.

The certificate of urgency was also defective.

It did not comply with Rule 244. Among other things, it omitted the most basic of information on which the legal practitioner who had certified the matter to be one of urgency had based her conclusions on. Incidentally, she happened to be the same legal practitioner of record for the applicant – an aspect that I did not take issue with despite the respondent's protestation. Virtually all the averments in the purported certificate of urgency had been arguments on the merits of the case, essentially why the Bank had to be ordered to uplift the embargo.

In General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (2) ZLR 301 (HC), it was held that the reason behind the certificate of urgency is that the court is only prepared to act urgently in a matter where a legal practitioner is involved and has given his or her assurance that such treatment is warranted. The legal practitioner must apply his or her mind and judgment to the circumstances of the case and reach a personal view that the matter is urgent. He or she must support his or her judgment with reasons.

Apart from the form, the urgent chamber application was also defective in substance.

Among other things, Richard Mayiya's main proof that Reuben Munsamy had stepped down was some resolution allegedly reached on 24 October 2014.

However, this document clearly referred to Reuben's removal from a different entity altogether, an entity that was based in a different country altogether - South Africa. Richard Mayiya had alleged that the applicant, known as RM Mining and Industrial Zimbabwe (Private) Limited, and that the other entity, known as RM Mining and Industrial South Africa CC, had a “common shareholding”, whatever that meant. However, the two, being completely different entities despite their names sharing the same root, it was not explained why Reuben Munsamy's alleged resignation from the South African entity would automatically be a resignation from the applicant.

Counsel for the applicant argued that the applicant had subsequently updated its Form CR14 to align with the new development and that it was such proof as had been submitted to the Bank. However, Reuben, in a communication to the Bank, which was part of the applicant's papers, had denied that he had resigned. Under such circumstances it should have been obvious to the applicant that the only sensible thing for the Bank to have done would be to embargo the account.

Another document submitted by the applicant as proof that Reuben Munsamy had resigned and that the Bank had seemed to accept that fact, was an extract of a bank statement of the applicant's account. It showed some debit and credit entries between 13 November 2014 and 16 December 2014. The applicant alleged that communication to the Bank, of Reuben Munsamy's alleged resignation, had been on 10 November 2014. However, nowhere on the bank statement did it show that the transactions had been on Richard Mayiya's single signature. Furthermore, given that Reuben's warning to the Bank had been on 16 December 2014, it made sense that the Bank immediately placed the embargo. The applicant could not rationally expect the Bank to continue honouring Richard's unilateral withdrawal instructions in the face of Reuben's warning. For the applicant to have mounted an urgent application under such circumstances was rather irresponsible.

That was not all.

It was manifestly untrue for the applicant to allege, in its application, that the Bank had embargoed its account without warning. Its legal practitioners had written to the Bank on 18 December 2014 demanding the removal of the embargo. The Bank had responded on 23 December 2014. It advised of Reuben's communication and of the fact that it had informed Richard about it. It had asked Richard to provide resolutions and other documents to confirm Reuben's alleged resignation. The Bank had also expressly advised Richard that the two entities had been separate and that the document that it had initially been furnished with had been in respect of the South African entity and that it was irrelevant. Instead of dealing with the Banks' concerns, the applicant had rushed headlong with its urgent chamber application.

The draft provisional order sought the same relief in both the interim and final orders.

In both instances, it was, in essence, a final order being sought.

As I asked counsel for the applicant was it not obvious that the blocking of the account by the Bank was but a symptom of the underlying festering dispute between the parties? There had been no indication anywhere in the application that the applicant had brought, or was planning to bring, substantive proceedings to end the dispute so as to pave way for the opening of the account. Instead, the applicant had precipitously filed the urgent chamber application which avoided the main dispute. It should have been obvious to the applicant that there had been a serious misjoinder of parties and that the enormous dispute of fact, namely, whether or not Reuben had stepped down, could not possibly be resolved on the papers, let alone in summary fashion as is inevitable in an urgent chamber application.

Finally, when I had got seized of the matter, on New Year's eve, literally some few hours before the demise of 2014, I had agonised over whether or not to set it down on account of the numerous defects apparent on the face of the application. Eventually, I decided I would give the applicant its day in court. But seeing that the application was against the Bank only, and that this was a party that would not help bring out the full story, I expressly directed that the application and notice of set down be served, not only on the Bank, but also on the other Directors, and that proof of such service should be filed or produced at the hearing. Furthermore, realising that the other Directors may well have been out of the country and in their home country, South Africa, I further directed that if proper service was not going to be possible, given the short time available, at least the applicant had to inform the other Directors of the application and of the date and time of the hearing.

Surprisingly, at the hearing, no proof of service of the application and or of the notice of set down was available.

Counsel for the applicant advised that in response to my directive, another meeting of the applicant had been convened at which Reuben Munsamy had resigned - again. He said he had a copy of the resolution to that effect and would produce it if it was necessary.

That was hardly satisfactory. We were going round in circles.

In the end, I considered that there was no reason why the Bank had to be put out of pocket in respect of such a vexatious application. I felt costs on the higher scale were justified.

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

The BackgroundThe applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.According to the applicant's affidavit, the companies in question are ...

The Background

The applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.

According to the applicant's affidavit, the companies in question are being laid claim to by nine different respondents (Lourence Erasmus Vermaak, Terence Cobden Rhodes, Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai).

The tenth respondent (the Registrar of Companies) was cited to throw light on the question of ownership by virtue of certain statutory returns that have been filed with it.

Despite the assistance that the court would indeed have obtained from the tenth respondent's comments, none were availed as the tenth respondent (the Registrar of Companies) did not participate at all in these proceedings.

The companies in question, namely, Beverly East Properties and Karoi Properties (the companies) were established by the late Brian James Rhodes who died on 29 July 2006.

At least this much is not in dispute.

The companies own commercial premises described as 184 Mutare Rd; 186 Mutare Rd; 188 Mutare Rd; 194 Mutare Road, all in Msasa.

These premises are leased.

Until October 2011, the rentals were being collected by an estate agent, namely, Robert Root and Company. They discontinued agency and accounted to the applicants for rentals held by them.

Certain tenants have continued paying rentals to the applicants.

The applicant averred, in its affidavit, that, it is currently holding $70,000 in trust by way of accumulated rentals from these tenants.

In its affidavit, the applicant lays out the conflicting claims that it has been saddled with as emanating from triple sources:

(i) The first set of claimants for the rentals is a Trust called Phoenix Trust which the deceased is said to have established in 1998. The first and second respondents (Lourence Erasmus Vermaak and Terence Cobden Rhodes) are identified by the applicants as Trustees asserting that the Trust is the lawful owner of the entire share capital in the companies and to whom the applicants should account for the rentals held as representatives of the companies.

(ii) The second claimant, also laying claim to the rentals is said to be Gideon Hwemende, the third respondent (a former employee of the deceased) whom the applicant indicates in its affidavit as having made diverse claims to shareholdings in the companies ranging from 40%, to 60%, as well as to the entire ownership of the companies.

(iii) The third set of claimants are the fourth to ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai), who, in their capacity as Directors appointed by the third respondent (Gideon Hwemende), lay claim to interests in the companies.

The affidavits and various annexures filed by the different claimants bear the hallmarks of a dramatic 'corporate soap opera' characterised by intrigue; alleged chicanery; resultant grievance.

It is necessary to set out the facts somewhat fully from the papers filed of record as they have a bearing in determining in whose favour the balance emerges in terms of this interpleader application.

The Facts

Mr Lourence Vermaak, the first respondent, initially submitted an opposing affidavit on 12 March 2013 which was later withdrawn and expunged from the record by court order obtained as a result of a default judgement.

From the correspondence on file, the reason for the seeking that this initial opposing affidavit be withdrawn was because it had been obtained through coercion.

HH365-13 : LYDIA MAURO (NEE) NYAMBO vs REGIS MAURO
Ruled By: UCHENA J

The parties, at their pre-trial conference, agreed on all issues except the distribution of their immovable properties, namely, the matrimonial home at Stand No.293 Vainona Township of Vainona and Stand No.3505 Dhonza Close, Budiriro 2, Harare and a generator. In her claim, the plaintiff wants the immovable property to be sold and shared equally when their youngest child attains the age of majority. She, in evidence, said the generator is used to electrify the matrimonial home during Zesa's load shadings therefore it should not be distributed until the youngest child attains the age of majority.

In his amended plea, the defendant wants the immovable properties to be distributed in two alternative ways;

1. That they be sold on divorce and the proceeds be shared equally between the parties; alternatively

2. That the Vainona property be subdivided, with the developed part being awarded to the plaintiff and the undeveloped part, on which there is a two bed roomed cottage, being awarded to him together with the Budiriro house.

The plaintiff replicated setting the stage for a trial on the parameters created by their pleadings. When the plaintiff took to the witness stand she wasted no time but tactfully sought to close the litigation by accepting the defendant's alternative option. She told the court that she accepts the subdividing of the Vainona property and an award to her of the developed portion with the defendant taking the undeveloped portion and the Budiriro house. She said this would ensure that their children will not have to move away from the house and environment they are used to. They would continue to enjoy the standard of life they are used to.

The defendant refused to accept the plaintiff's pre-emptive measure. He opened his defence case and testified that it would be unjust for the plaintiff to be awarded the developed portion while he takes the undeveloped portion and the Budiriro house. He explained that the Vainona house is a 20-roomed double story house on 5,378 square meters. The developed Stand was to be 2,500 square meters in extend, with the 20-roomed double story house. The undeveloped Stand was to be 2,878 square meters in extend with the two bed roomed cottage. He told the court that the whole Vainona property is valued at about US$500,000=, while the undeveloped portion would be valued at about US$60,000=. The Budiriro house is valued at about US$40,000=, giving him a total of US$100,000= from their immovable properties against the plaintiff's net value of about US$440,000= from their immovable properties. He argued that such distribution of their immovable properties will not be equitable. He urged the court to distribute their immovable properties in terms of his main option, in terms of which both properties should be sold on the granting of divorce and be shared equally between him and the plaintiff.

He had, though had not mentioned this in his pleadings, offered to accommodate the plaintiff and his children in alternative rented accommodation in Vainona.

In his address, counsel for the plaintiff submitted that the defendant, in his amended plea, committed himself to the two options he gave and cannot resile from any of them the plaintiff chooses to accept. He submitted that the plaintiff's acceptance of the defendant's alternative option left no dispute on which the court has to make a determination. He referred the court to the case of Shill v Milner 1937 AD 101…, where DE VILLERS JA said;

“The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full inquiry.”

He also referred the court to the case of Robinson v Randfontein Estates G.M. COLTD 1925 AD 173…, where INNES CJ made the same observation.

Counsel for the plaintiff stressed that the parties where locked into and confined to the parameters created by their pleadings and should be kept strictly to their pleas. He submitted that the plaintiff's replication did not reject or put in issue the defendant's offers as in it she merely said; “The plaintiff denies each and every allegations of fact or law in the defendant's plea and joins issues for pre-trial conference.” He submitted that the defendant's offered options are not allegations of fact or law so they remained available for the plaintiff to accept as long as they remained un-withdrawn. He submitted that once an admission is made it remains in existence until it is withdrawn by leave of the court on an application to amend or withdraw it. He referred to Rule 189 of the High Court Rules which provides as follows;

“The court may, at any time, allow any party, to amend, or withdraw any admission so made on such terms as may be just.”

It is true that the defendant did not withdraw, or amend, his amended plea in which he gave the two options. That means he can be held to his options but only if the legal principles enunciated in the cases referred to by counsel for the plaintiff justifies that approach.

Counsel for the defendant did not challenge the authority of the cases referred to by counsel for the plaintiff but sought to rely on the quoted passages allowing departure, where departure will not cause prejudice. He submitted that taking the defendant's main option or the plaintiff's own option will not cause prejudice to the plaintiff. He also argued that the effect of pleadings also binds the plaintiff to her suggested manner of distributing the parties' immovable properties. The case can, if possible, be resolved on the basis of there being no prejudice to the plaintiff if the defendant's main option,or her own option is used.

I am, however, of the view that the case of Shill v Milner 1937 AD 101 was quoted out of context. DE VILLERS JA actually said;

“The importance of pleadings should not be unduly magnified. The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full inquiry. But within those limits the court has wide discretion. For pleadings are made for the Court, not the Court for pleadings. Where a party has had every facility to place all the facts before the trial Court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal merely because the pleading of the opponent has not been as explicit as it might have been.” Robinson v Randfontein Estates G. M. Co. Ltd 1925 AD. (198). In another case, Wynberg Municipality v Dreyer (1920) A.D. 443), an attempt was made to confine the issue on appeal strictly to the pleadings but it was pointed out by INNES CJ that the issue had been widened in the court below by both parties. “The position should have been regularised of course”, said he, “by an amendment of the pleadings; but the defendant cannot now claim to confine the issue within limits which he assisted to enlarge.”…,.

The decision starts by admonishing against unduly magnifying the importance of pleadings which are made for the Court and not the Court for the pleadings. It then clearly states that the Court has a wide discretion,which it judiciously exercises guarding against causing prejudice or preventing full inquiry. The Court should also be guided by whether or not the parties have enlarged the inquiry from that strictly necessitated by the pleadings. The plaintiff could have simply accepted the alternative option without replicating. She chose to replicate leading to the trial which could have enlarged the confines within which the parties' dispute can be resolved but for her accepting the defendant's alternative option on taking to the witness stand. The plaintiff's counsel extensively cross-examined the defendant on his options inviting from him the reason why he was reneging from the alternative option he had sanely and freely given. That cannot be termed an enlargement of the issues as the cross examination concentrated on the accepted option. I must therefore carefully consider the effect of the defendant's resistance to the plaintiff's acceptance of his alternative option.

The defendant's alternative option may, as already explained in the defendant's evidence, result in giving the plaintiff an unfair advantage in the distribution of the immovable's which they acquired through equal contributions. The reason for its being belatedly embraced by the plaintiff and belatedly abandoned by the defendant seems obvious. It may unduly give an advantage to the plaintiff at the defendant's expense. That, however, has not been substantiated by an evaluation of the properties and the proposed subdivisions. It must also be considered that the defendant, at his own initiative, proposed that option with his eyes wide-open. He may well have made that offer appreciating the cost of accommodating his children till the youngest attained the age majority as put to him by counsel for the plaintif. He appeared to have appreciated that responsibility as demonstrated by his offering to accommodate them in alternative accommodation in the Vainona area if his main option was accepted. The defendant was made aware of the effect of his admission.

He did not apply to withdraw it.

In view of the need to hear the parties on the real dispute and to avoid preventing a full inquiry, if the defendant had made an application to withdraw the admission, I would have been inclined to grant it. In the case of DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (SC)…, GUBBAY CJ commenting on when a court can grant a withdrawal of an admission said;

“The general and broad approach to be adopted by the court in determining whether to allow the withdrawal of an admission, and one which has been followed time without number over the past seventy years or so, is that enunciated by WESSELS J in Whittaker v Roos & Anor 1911 TPD 1092 at 1102-1103:

'This Court has the greatest latitude in granting amendments, and it is very necessary that it should have. The object of the Court is to do justice between the parties. It is not a game we are playing, in which if some mistake is made the forfeit is claimed. We are here for the purpose of seeing that we have a true account of what actually took place and we are not going to give a decision upon what we know to be wrong facts. It is presumed that when a defendant pleads to a declaration he knows what he is doing, and that, when there is a certain allegation in the declaration, he knows that he ought to deny it, and that, if he does not do so, he is taken to admit it; but we all know, at the same time, that mistakes are made in pleadings and it would be a very grave injustice if, for a slip of the pen, or error of judgment, or the misreading of a paragraph in pleadings by counsel, litigants were to be mulcted in heavy costs. That would be a gross scandal. Therefore, the Court will not look to technicalities but will see what the real position is between the parties.'

These, then, are the principles to be applied by a court concerned with an application to amend a plea which would, if granted, have the effect of withdrawing an admission.”

The defendant chose to lead evidence on why his alternative option should not be accepted. The court tried to guide his counsel to the effect of the plaintiff's acceptance of his client's alternative option to the distribution of the Vainona property. Counsel for the defendant persisted in leading evidence against his client's admission.

That is not permissible.

In the case of DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (SC) GUBBAY CJ…, said;

“The effect of a formal admission made in pleadings was underscored in Gordon v Tarnow 1947 (3) SA 525 (AD) where DAVIS AJA, at 531-532, said:

'But this admission in the plea is of the greatest importance for it is what Wigmore (paras 2588-2590) calls a 'judicial admission' (of the confessiojudicialis of Voet (42.2.6)) which is conclusive, rendering it unnecessary for the other party to adduce evidence to prove the admitted fact, and incompetent for the party making it to adduce evidence to contradict it. (See also H Phipson 7 ed p 18)).Wigmoreloccit, speaking of judicial admissions in general, refers to the Court's discretion to relieve a party from the consequences of an admission made in error.It does not seem to me that such a discretion could be exercised in a case where the admission has been made in a pleading in any other way than by granting an amendment of that pleading.'

These dicta were approved by MACDONALD ACJ…, in Moresby-White v Moresby-White 1972 (1) RLR 199 (AD) at 203E-H; 1972 (3) SA 222 (RAD) at 224.”…,.

The defendant's evidence as to why he wants to resile from his option to subdivide the Vainona property was therefore given in circumstances where it should not have been given as a litigant cannot lead evidence against his own admission without first amending it or withdrawing it. The plaintiff was entitled to accept the defendant's option for as long as it remained unwithdrawn. An admission, as already demonstrated through the case of DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (SC), can only be withdrawn through an application for amendment of the pleading. The defendant, despite being guided towards that route chose to lead evidence against his own admission.

In the result, the dispute between the parties on the distribution of the immovables was extinguished by the plaintiff's acceptance of the defendant's alternative option.

prev 1 2 next

Back Main menu

Law Portal Zimbabwe

Pleadings re: Withdrawal of Pleadings, Admissions, Proceedings or Claims

HH60-09 : TENDAI MAZANHI vs DAISY MAROVANIDZE and CHEEZ HOLDINGS (PRIVATE) LIMITED Ruled By: CHITAKUNYE J

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA Ruled By: MAKARAU JP

HH53-09 : ZIMBABWE ALLIED GROUP LTD vs MILDRED AND MATHIAS (PVT) LTD Ruled By: MAKONI J

HH13-12 : YVONNE CHISESE vs ALLUVIAL EXPLORATION SERVICES (PRIVATE) LIMITED Ruled By: MAVANGIRA J

HB116-09 : EDWARD MANGENA and MALAKI MPOFU vs NINNO FILANNINO and FIVE OTHERS Ruled By: NDOU J

HH11-10 : NABANE ROY TSHUMA vs TONGAI MUSEMBURI and TENDAI MUSEMBURI and MACKSON TOTSHANE NCUBE and THE REGISTRAR OF DEEDS Ruled By: KARWI J

View Appeal HH28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O. CLERK OF PARLIAMENT OF ZIMBABWE and LOVEMORE MOYO Ruled By: PATEL J

HH73-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and F MATAMBANADZO and J D NYAMUNDA and EIGHT OTHERS Ruled By: MAKARAU JP

HH81-10 : MILRITE FARMING (PRIVATE ) LIMITED vs ENOCK PORUSINGAZI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and FOUR OTHERS Ruled By: UCHENA J

SC09-14 : MARANGE APOSTOLIC CHURCH OF ST JOHANNE and ISRAEL RUWOKO vs CLEMENCE MOMBERUME Ruled By: GWAUNZA JA, GOWORA JA and PATEL JA

HB63-10 : SALLY MAPLANKA vs B. A. NCUBE HOLDINGS Ruled By: NDOU J

HB72-10 : ETTAH NCUBE and CAIN MOYO vs JOEL NCUBE and JULIUS SIBANDA and DEPUTY SHERIFF Ruled By: NDOU J

View Appeal HH06-13 : THE MESSENGER OF COURT (HARARE) vs TAVENHAVE-MACHINGAUTA LEGAL PRACTITIONERS Ruled By: MTSHIYA J

HH30-13 : BRIAN MUNEKA and DADIRAI RWANZA and JANIES TIMOTHY and EDMOND MULEYA and MUSEKIWA MUZANENHAMO and TSITSI DHLIWAYO vs MANICA BUS COMPANY Ruled By: MTSHIYA J

HH49-13 : FIRST CLASS ENTERPRISES (PVT) LTD vs TRYMORE MUCHINGAMI AND 2 OTHERS Ruled By: MATHONSI J

HH117-13 : SUNBEACH PROPERTIES (PRIVATE) LIMITED vs NATIONAL SOCIAL SECURITY AUTHORITY and REGISTRAR OF DEEDS Ruled By: MUSAKWA J

HH370-13 : BENJAMIN JENGWA and GEORGE MUSHIPE and AUGUSTINE MANYAU vs ZIMBABWE TEACHERS ASSOCIATION (ZIMTA) Ruled By: MATANDA-MOYO J

HB09-13 : ELLEN MBUVAH and MINING INDUSTRY PENSION FUND and NATIONAL RAILWAYS OF ZIM and OTHERS vs JAMES MANGACHENA & ANOR and DR ZIWAI MANESWA and DISHAI MARKETING & MERCHANDISING (PVT) LTD and OTHERS Ruled By: CHEDA AJ

HB38-11 : JONATHAN NATHANIEL MOYO vs JOHN LANDA NKOMO and DUMISO DABENGWA Ruled By: BERE J

HH125-11 : ECONET WIRELESS (PRIVATE) LIMITED vs RENAISSANCE FINANCIAL HOLDINGS LIMITED and RENAISSANCE MERCHANT BANK CORPORATION Ruled By: MAVANGIRA J

View Appeal HB08-14 : JONATHAN MOYO vs ROSELINE NKOMO Ruled By: MAKONESE J

SC63-14 : UNITED REFINERIES LIMITED vs MINING INDUSTRY PENSION FUND and REGISTRAR OF DEEDS and ERROL S. WOLHUTTER and AUSTIN J. SIBANDA t/a JOEL PINCUS KONSON AND WOLHUTTER Ruled By: ZIYAMBI JA, GWAUNZA JA and GOWORA JA

CC10-16 : EVERJOY MEDA vs MAXWELL SIBANDA and ZAMBE GWASIRA and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE and THE REGISTRAR OF DEEDS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

CC10-15 : PROSECUTOR GENERAL, ZIMBABWE vs TELECEL ZIMBABWE (PRIVATE) LIMITED Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GOWORA JCC, GUVAVA JCC, MAVANGIRA AJCC, CHIWESHE AJCC, MAKONI AJCC, BHUNU AJCC

HH339-14 : ROCK CHEMICAL FILLERS (PVT) LTD vs BRIDGE RESOURCES (PVT) LTD and TAPIWA GURUPIRA and MOST CHIKUMBA Ruled By: MATHONSI J

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS Ruled By: MALABA CJ

View Appeal HH467-16 : ALBAN GERALD BOWERS vs SHARIFFA PRESIOUS BOWERS Ruled By: CHITAKUNYE J

HH130-16 : YAKUB MAHOMED vs JOHN ARNOLD BREDENKAMP Ruled By: CHIGUMBA J

View Appeal HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO Ruled By: CHIGUMBA J

HH101-15 : MICHAEL LESLIE MITCHELL STUBBS vs RENE STUBBS (nee DU PLOOY) Ruled By: UCHENA J

HH468-18 : KETHIWE VAN DER SANDEN vs ROBERTUS ANTOINE W. VAN DER SANDEN and ROY MASAMBA and REGISTRAR OF DEEDS N.O. Ruled By: CHIRAWU-MUGOMBA J

CC05-19 : MISHECK MUZA vs REGGY SARUCHERA (as liquidator of J.W. Jaggers Wholesalers PL) and PRICE TRUST and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS Ruled By: MALABA CJ and PATEL JCC and GUVAVA JCC

HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: MAKONI J

HH461-15 : PATTERSON TIMBA vs REGGIE SARUCHERA N.O. and RESERVES BANK OF ZIMBABWE and NATIONAL SOCIAL SECURITY AUTHORITY and RENNAISSANCE FINANCIAL HOLDINGS LTD and RENAISSANCE MERCHANT BANK LTD Ruled By: MAKONI J

CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

HH56-17 : MANGWIRO SIBANDA vs JANE H. CHIKUMBA and ALTFIN INSURANCE COMPANY Ruled By: MATANDA-MOYO J

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL Ruled By: ZHOU J

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

Appealed SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

View Appeal HH563-18 : CAR RENTAL SERVICES (PVT) LTD T/A AVIS RENT A CAR vs BERNARD CHISWA and SHAILLON CHISWA Ruled By: MUZOFA J

HH454-18 : YAKUB MAHOMED vs JOHN BREDENKAMP Ruled By: CHIKOWERO J

View Appeal HH139-18 : MARIA SITHOLE vs MATHIAS SITHOLE and CECK ENTERPRISES PL and B.R.M HOVE and PETER DZIMBA and MANNERS JARAVAZA and PARDON CHAKANYUKA and REGISTRAR OF DEEDS Ruled By: DUBE J

HHH74-18 : THE PROSECUTOR GENERAL OF ZIMBABWE vs SHMUEL KLEIN Ruled By: CHITAPI J and MUSHORE J

SC52-18 : INNSCOR AFRICA LIMITED and GERIBRAN SERVICES (PRIVATE) LIMITED vs COMPETITION AND TARIFF COMMISSION Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O. Ruled By: MAFUSIRE J

CC08-20 : FEATHERS MUKONDO vs THE STATE Ruled By: MALABA CJ

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA Ruled By: MABHIKWA J

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED Ruled By: MAFUSIRE J

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS Ruled By: TSANGA J

HH365-13 : LYDIA MAURO (NEE) NYAMBO vs REGIS MAURO Ruled By: UCHENA J

Categories

Your Donation.

Law Portal
Zimbabwe