Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: GARWE JA

This is an application for condonation for non-compliance with the Rules of this Court and for an extension of time within which to file and serve a notice of appeal in terms of the same Rules.The respondents oppose the application.FACTUAL BACKGROUNDThe first respondent is a medical aid society registered in ...

FACTUAL BACKGROUND

The first respondent is a medical aid society registered in terms of the Medical Services Act [Chapter 15:13]. The second respondent is said to be the investment vehicle of the first applicant.

Both respondents are managed by two separate boards of directors.

It is common cause that the applicant was, in terms of his contract of employment, the Chief Executive Officer of the first respondent.

In a judgment handed down by two judges of the Labour Court on 10 March 2017, two awards made in favour of the applicant were set aside and in their place the court substituted an order dismissing the applicant s claims before the arbitrator.

Dissatisfied, the applicant appealed to this Court against that judgment on 1 March 2019.

The notice of appeal reflected that it had been filed pursuant to Rule 29 of the now repealed Supreme Court Rules.

At the hearing of the appeal, the matter was, by consent, struck off the roll for the reason that the appeal should more properly have been noted in terms of the then Supreme Court (Miscellaneous Appeals and References) Rules.

This was on 14 March 2019.

Prior to the above developments, in a practice directive issued as 3/13 by the late former Chief Justice of Zimbabwe, on 29 November 2013, the following requirement was, inter alia, made applicable to all the superior courts of Zimbabwe:

“Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned. Provided that a Judge may, on application, and for good cause shown, reinstate the matter, on such terms as he deems fit.”

So far as I am aware, the practice directive, together with a number of others issued at about the same time, were not discussed amongst judges of this Court....,.

In Absa Bank Limited v Lekuku (32700/2013) (2014) ZAGPJHC 274 (14 October 2014) the court expressed the view, that, where a practice directive is a product of a collective discussion of the judges in a particular division, a court should not tamper with the provisions of the Practice Manual and that the matter was better left in the hands of the Judge President who, after consulting the judges of that division, can advise the Chief Justice to amend the relevant portions of the Practice Directive.

In the case of Practice Directive 3/13, it is a fact that it was not the product of discussions amongst the judges of this Court. It was issued by the then Chief Justice, without any input from judges, in order to manage the figures of inactive matters that gave the impression that there was backlog in uncompleted cases.

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

This is an appeal against a decision of the Administrative Court of Zimbabwe handed down on 8 March 2019 upholding two consolidated appeals by the first to the fourth respondents (The Cosmo Trust, Babra Vitoria, Margaret Soper and Linda Bromley) challenging the issuance of an environmental impact assessment certificate by the sixth respondent (Environmental Management Agency) and a development permit issued consequent thereto by the City of Harare.

The City of Harare, the fifth respondent herein, has also filed a cross-appeal against the same judgment of the Administrative Court.

The gravamen of the grievance before the court a quo was that the issuance of the environmental impact assessment certificate and development permit violated various procedural requisites as well as Environmental Law.

After due consideration of all the papers filed of record, and submissions made by counsel on behalf of the parties, I am not persuaded that, save for the decision of the court a quo to relate to the merits of the dispute inter se, the court a quo was wrong in upholding the appeal.

In the circumstances, subject to that rider, both appeals stand to be dismissed with costs.

FACTUAL BACKGROUND

The first appellant, Sharadkumar Patel, is a director of Meadows (Pvt) Ltd, a company incorporated in accordance with the laws of this country.

It was to him that the development permit for the Meadows of Monavale was granted.

The company, Meadows (Pvt) Ltd, owns a piece of property called The Meadows of Monavale Extension of Mabelreign. It was in respect of that piece of land that the development permit was granted by the City of Harare.

The first respondent, The Cosmo Trust, is a duly registered trust whose powers and objectives include the protection of the environment and natural resources of Monavale in the general interest of its residents.

The second to the fourth respondents occupy separate pieces of land along Fennela Drive that are contiguous to the Meadows of Monavale.

The fifth respondent, the City of Harare, is a local authority which issued the development permit for the construction of residential units on the Meadows of Monavale.

The sixth respondent, the Environmental Management Agency, is a statutory body established in terms of the Environmental Management Act [Chapter 20:27].

The seventh respondent is the Minister of Environment, Tourism and Hospitality Industry (“the Minister”), under whose aegis the sixth respondent falls.

It was also the Minister who dismissed the first to the fourth respondents appeal against the issuance of an environmental impact assessment certificate issued by the sixth respondent, which decision is partly the subject of the present appeal.

The piece of land that lies at the centre of the dispute between the parties, namely, the Meadows of Monavale Extension of Mabelreign, was transferred into the second appellant's name (Meadows (Pvt) Ltd) in June 1987.

It is 16,2885 hectares in extent and borders Fennella Drive and Monavale Road in Monavale.

The property has remained largely undeveloped over the years, although the record shows that the first appellant has a residence on a portion of that property. It is part of a much bigger piece of land known as the Meadows of Monavale which is five hundred and seven (507) hectares in extent and is a wetland known as the Monavale Wetland.

That wetland forms the headwaters of the Marimba River and its tributary, the Avondale stream, and is part of a network of wetlands within the City of Harare, providing a wide diversity of beneficial ecosystems to the city. It is an important component of Harare's water system, through water accumulation from direct rainfall, runoff and groundwater influx; flood flow attenuation, and slow release of water to base flow in streams; groundwater recharge; protection against flooding and the impact of storms; trapping excess sediment from runoff, reducing siltation of dams; and improvement of water quality for household supply through filtration.

Following a proposal by the first respondent and an organisation called Birdlife Zimbabwe, surveys were carried out resulting in the appellants obtaining authority, from the Surveyor-General, for the Meadows of Monavale Extension of Mabelreign to be subdivided into two plots; the first being a 9,35 hectare plot on the northern side of the property which was to be known as Stand 201 and which was to be sold to Birdlife Zimbabwe and the remainder, a six hectare plot, to be retained by the appellants. The subdivision permit subsequently lapsed and the sub-division was never effectuated.

Zimbabwe acceded to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat known as the Ramsar Convention on 3 January 2013.

Upon accession, the country nominated seven sites, including Monavale Wetland, to be included in country's Ramsar list of Wetlands of International Importance. The other sites were Cleveland Dam, Chinhoyi Caves, Driefontein Grasslands, Victoria Falls National Park, Mana Pools and Lake Chivero.

In 2014, the appellants submitted an application for an environmental impact assessment certificate for a housing development on the land.

On 9 July 2014, the Director-General of the Environmental Management Agency dismissed the application on the basis that the land was not suitable for such a development as it was situated in an ecologically sensitive area and ecosystem in need of protection under the Ramsar Convention. The appellants were advised to adopt an alternative land use that would ensure that the area was maintained and protected.

That decision was not thereafter challenged.

In 2015, the appellants submitted an application for a development permit with the City of Harare (“The City Council”). Despite objections, a development permit was issued. The first respondent lodged an appeal against the development permit in the Administrative Court. The permit was set aside, in November 2016, on the basis that the appellants had not, before applying for the permit, secured an environmental impact assessment certificate.

That judgment remains extant although there was an attempt to appeal against it, which was abandoned.

Pursuant to the decision of the Administrative Court, the appellants submitted another application for an environmental impact assessment certificate to the Environmental Management Agency.

The application was made in respect of Stand 201, Monavale.

No stakeholder consultation was conducted with interested parties, notwithstanding the peremptory provisions of section 136 of the Environmental Management Act [Chapter 20:27] (“the EMA”).

An environmental impact assessment certificate was then issued by the agency on 10 November 2017.

The certificate stated, that, it had been granted in respect of a housing development on Stand 201 Monavale (6804), subject to eight conditions highlighted in an annexure to that certificate.

Armed with the environment impact assessment certificate, the appellants wrote to the City Council requesting the Council to re-issue the development permit previously granted in November 2015. The request was treated, by Council, as a new application for a development permit.

The first respondent then appealed to the Minister against the decision by the agency to issue the certificate.

In the appeal, the first respondent raised a number of complaints; that there was no Stand known as 201 Monavale and that interested persons had not been given the opportunity to make representations in the matter; that the developer had failed to carry out wide consultations with stakeholders before approaching the agency; that, notwithstanding its clear interest in the matter, it had not been notified of the issuance of the certificate; that the decision to grant the certificate violated its environmental rights and those of its members; and that the decision breached the country's international obligations under the Ramsar Convention. Further, that the certificate had not been issued by the agency's Director-General.

In a response penned by the Ministry's Permanent Secretary, the appeal was dismissed on various bases.

That, whilst the agency was not in a position to confirm whether or not Stand 201 existed, the Director General of the Environmental Management Agency could properly delegate the authority to issue the certificate to a junior; that, the documents submitted reflected that there had been public consultation on the part of the developer and that reservations had been taken into account.

Whilst accepting that the agency may have erred in failing to notify interested persons of the issuance of the certificate, he stated that no injustice had been occasioned by such failure; that, whilst the objectors had rights, the appellants also had rights to their property, subject only to the need for any development on the property to take into account the need for the wise use of the land.

Unhappy with that decision, the first respondent noted an appeal to the Administrative Court in June 2018.

In the meantime, the appellants had submitted an application for a development permit with the City Council in May 2018.

On receipt of notification of the application, the first to fourth respondents, individually and separately, filed letters of objection. The Council's Director of Works then advised the appellants of these objections. The appellants responded to those objections and attached supporting documentation, including an environmental impact assessment report prepared at their instance in respect of Stand 201.

The Director of Works did not cause the response to be forwarded to the respondents.

Instead, he compiled a report recommending that the City Council's Environmental Management Committee, a sub-committee of Council, issue a development permit as requested.

The land on which the one hundred and twenty one cluster houses were to be developed was reflected as “Meadows of Monavale Township.”

The Director also suggested a number of conditions, including, ironically, the need to obtain an environmental impact assessment certificate - which had already been issued by the sixth respondent (the Environmental Management Agency).

On 23 July 2018, the City Council's Environmental Management Committee held a meeting to consider a total of fourteen matters, including the building permit application submitted by the appellants. The meeting commenced at 2:10pm and ended at 2:50pm. It recommended the granting of a development permit authorising the appellants to erect one hundred and twenty one cluster houses, subject to the conditions stipulated in the report compiled by the Director of Works.

In September 2018, the first to fourth respondents then filed an appeal with the Administrative Court against the issuance of the development permit.

By agreement between the parties, the two appeals were consolidated for purposes of the filing of the heads of argument and hearing.

PROCEEDINGS BEFORE THE ADMINISTRATIVE COURT

In their grounds of appeal and submissions in respect of the development permit issued by the City Council, the first to fourth respondents attacked the decision to issue the permit on a number of bases:

(i) First, that the Environmental Management Committee of the Council is not a local planning authority, and, consequently, had no power to issue a development permit.

(ii) Second, that no proper application for a development permit had been filed with the Council.

(iii) Third, that the permit had been issued in the absence of a valid environmental impact assessment certificate, since the permit imposed, as one of the conditions for the grant of the permit, the need to secure an environmental impact assessment certificate.

(iv) Fourth, that the proceedings of the committee were tantamount to a kangaroo court as the committee had not adverted to the merits of the matter, and, in particular, the fact that this was a protected wetland, before resolving to grant the permit.

(v) Fifth, that the committee had resolved to grant the permit without affording the respondents the right to be heard. They submitted, that, the development permit had been improperly issued and that it should, as a consequence, be set aside.

In respect of the environmental impact assessment certificate, the respondents submitted as follows:

1. First, that there had been no public participation and the audi alteram partem rule had not been observed.

2. Second, that the certificate was void for vagueness as it did not identify the project, contrary to section 100(5) of the Environmental Management Act.

3. Third, that the certificate had been issued in respect of Stand 201, which did not exist, rendering the certificate void for vagueness; and

4. Fourth, that there had been a failure, on the part of the Minister and the Environmental Management Agency, to appreciate that environmental rights take precedence over private rights to land.

In its heads of argument filed in the Administrative Court, the City Council submitted as follows:

(i) First, that the mere failure to comply with one or other administrative provision does not necessarily result in a nullity. It depends on whether the statute envisages that the failure should result in a nullity. It also depends on its materiality.

(ii) Second, that a proper application for a development permit had been filed.

(iii) Third, the first to fourth respondents objections had been considered in the Director of Works report, and, therefore, the audi alteram partem principle had not been violated.

(iv) Fourth, that the Ramsar Convention had neither been approved by Parliament nor had it been incorporated into domestic legislation. Therefore, it was not binding on Zimbabwe.

(v) Fifth, that the social rights claimed by the respondents had to be reviewed against the appellants competing right to develop a property that belonged to them.

(vi) Sixth, that the environmental management committee exercised a power vested in it by Council itself.

In their heads of argument, dealing with both appeals, the appellants in this matter submitted as follows:

(a) The decision made by the environmental management committee of the City Council was a decision of the Council itself, as a local town planning authority.

(b) Second, that there was a proper application before the Council which cannot be impugned on the basis, that, having been made by a committee of Council, it had not been made by Council itself.

(c) Third, that the committee was not bound to formally hear the first to the fourth respondents as it was sufficient for written objections to be considered.

(d) Fourth, that the decision of the Administrative Court, holding that the environmental impact assessment certificate had to precede the issuance of a development permit, was wrong.

(e) Fifth, that the Ramsar Convention itself does not prohibit development on a wetland, but, instead, encourages the wise-use of such land.

THE DETERMINATION OF THE ADMINISTRATIVE COURT

In its determination, the court a quo found as common cause, that, the property belonging to the appellants is part of a wetland and that the piece of land on which the appellants intended to erect one hundred and twenty-one cluster homes was virgin and undeveloped. It found that the development was intended to take place on the unregistered Stand 201 measuring 9.35 hectares which the appellants had unsuccessfully attempted to shear off from the main Meadows of Monavale Extension.

It found, further, that, the omission to particularise that portion of the land on which the development was to take place was a serious error which should not have been condoned by Council.

The court further found, that, the failure to attach the signed consent of NMB Bank, which had a mortgage bond registered over the property, was a fatal irregularity.

In doing so, the court took into account the provisions of section 26 of the Regional, Town and Country Planning Act [Chapter 29:12] (“the RTCP Act”) which provides, that, an application for a permit shall be accompanied by the consent, in writing, of the holder of any real right registered over the property.

The appellants, not having justified why the application had not been accompanied by the consent in writing of NMB Bank, the court found that the defect rendered the application invalid.

Further, the court found that the development permit related to the larger undivided piece of land owned by the appellants. The environmental impact assessment certificate, to the contrary, related to the unregistered Stand 201 measuring 9.35 hectares.

It therefore found, that, the development permit, which related to the entire 16,2885 hectares, could not be predicated on an environmental impact assessment certificate issued in respect of 9.35 hectares of land. Moreover, the development permit made it clear that it had been issued to enable the erection of one hundred and twenty-one cluster houses.

The environmental impact assessment certificate, on the other hand, stated that it had been granted to the appellants to enable a housing development to take place on Stand 201 Monavale. The court found, that, it was impossible to ascertain the nature of the developments proposed by those two sets of documents.

As regards the application for a development permit filed by the appellants on 15 May 2018, the court a quo found that it relied on documentation annexed to an earlier application submitted in 2015.

It concluded, that, since an application that is not determined within three months is deemed to have been refused in terms of section 26(7) of the Regional, Town Country Planning Act, those documents could not have been relied upon in the application submitted on 15 May 2018.

The court accordingly found, that, the application for the development permit was defective in that respect and that it should not have been processed by the City Council. By necessary implication, it further found that the development permit issued pursuant to that application was also a nullity.

On the objections filed by the first to fourth respondents, the court noted, that, although four letters of objection had been forwarded to the City Council, the Director of Works had referred to only two objections in his write-up to Council. He did not indicate which two of the objections had been considered.

The court also found, that, the City Council had unlawfully shifted the onus of proof to the first to fourth respondents when it determined that their objections were not supported by evidence.

As regards the contention that Council had failed to properly address the implications of granting a development permit on an internationally-protected wetland, the court determined, that, whilst the appellants have the right to deal with the property in a manner they may choose, that right was attenuated by section 86 of the Constitution 2013, which provides that the enjoyment of rights and freedoms must be exercised reasonably and with due regard to the rights and freedoms of others.

It found, that, there was good reason for the view, that, the core of the wetland be left wild, untouched, and suitable for the diverse range of migrant birds, including some that are endangered species that come all the way from countries as far afield as Cameroon, Congo, and Kenya.

The court found, that, the construction of cluster houses would involve digging up foundations, clearing land, and erection of houses.

In these circumstances, so the court concluded, there was need to rely on the precautionary principle which is applicable where, due to unavailable scientific knowledge, there is uncertainty as to the future impact of the proposed development.

On the environmental impact assessment certificate, the court reiterated its earlier finding, that, this had been issued in respect of Stand 201, which does not exist. The certificate was issued in respect of the whole property measuring 16,2338 hectares. The first to fourth respondents had not been consulted during the preparation of the report which preceded the issuance of the certificate.

Consequently, the court also upheld the appeal against the grant of the certificate.

In the result, having upheld both appeals, the court ordered that the appellants, the City Council, and the Minister pay the costs of suit on the ordinary scale.

It is against that order that the two appeals were noted to this Court by the appellants and the City Council.

GROUNDS OF APPEAL BEFORE THIS COURT

In their notice of appeal, the appellants relied on a number of grounds. I reproduce these hereunder:

“1. The Administrative Court fundamentally erred in failing to find that the first respondent, being a Trust, did not have legal capacity to have mounted the appeals that it mounted in the Administrative Court.

2. The Administrative Court further grossly erred in interfering with the discretion of the 5th respondent in condoning the reference to an undivided portion of the Meadows of Monavale, known as Stand 201 of Monavale, when such condonation had been done in the exercise of the administrative discretion by the 5th respondent.

3. The Administrative Court further erred in finding, that, the application for a development permit submitted to the 5th respondent was defective in that it had been accompanied by documents from a previous application when such attachments did not have the effect of invalidating the application.

4. The Administrative Court grossly erred in finding, that, the appellants failure to attach to their application for a development permit, submitted to the 5th respondent, the consent of NMB Bank was fatal to such application when there was no evidence that the said Bank had an interest in the land and was not argued by the parties.

5. The Administrative Court further erred in finding, that, the 5th respondent had violated the audi alteram partem rule and had therefore not properly considered the objectives of the 1st up to 4th respondents objectives to the development permit.

6. The Administrative Court further erred in its application of the concept of restrictive measures in section 86(2)(f) of the Constitution of Zimbabwe and finding, therefore, that the appellants could not carry out the development on the property in issue as part of the exercise of the right of ownership enshrined in section 71(2) of the Constitution of Zimbabwe.

7. The Administrative Court further erred in relying upon the precautionary principle in prohibiting the development proposed on the piece of land in issue by the appellants.

8. The Administrative Court grossly erred in finding, that, the environmental impact assessment certificate issued by the 6th respondent was void for vagueness when it related to an identifiable property and the correction of the certificate had been placed before the Court.”

The City of Harare, as appellant, also attacked the determination of the court a quo on a number of grounds which I quote verbatim hereunder:

“1. The court a quo erred in finding that the application for a development permit was defective in that it was accompanied by documents from a previous application when such deficiency, if any, did not have the effect of invalidating the permit.

2. The court a quo erred in finding that appellant had violated the audi alteram partem rule by failing to properly consider the objectives when there was clear evidence throughout the record of a consideration of the objections.

3. The court a quo erred in stopping a development on the bases of unproven likelihood of harm to the environment.

4. The Administrative Court erred by failing to arrive at the conclusion, that, the permitted development was consistent with the 'wise use' concept contained in the provisions of the Constitution, the Environmental Management Act, and the Ramsar Convention on the protection of the environment.

5. The court a quo erred in allowing immaterial and irrelevant objections to the permit and the Environmental Impact Assessment Certificate to guide it. It so erred to appreciate that this was a town planning matter and one to be dealt with in the wide sense.

6. At any rate, the court a quo erred in failing to consider that any deviation from the provision of the Regional, Town and Country Planning Act and the Environmental Management Act was not material enough to warrant nullification of the permit. It so erred in that it failed to consider the materiality principle.”

APPELLANTS SUBMISSIONS BEFORE THIS COURT

In their submissions, the appellants submitted as follows:

The first respondent, being a Trust, cannot sue or be sued in its name, but, rather, in the name of the trustees.

The appeal instituted by the Trust against the grant of the Environmental Impact Assessment Certificate was therefore invalid.

Although the High Court Rules 1971 define association to include a Trust, and further allow any such association the locus standi to sue or be sued in its own name, the Rules do not apply to the Administrative Court.

The Administrative Court (Miscellaneous Appeals) Rules 1980 SI 122/1980, do not have a provision similar to the High Court Rules. The first respondent (the Trust) should not, therefore, have been a party to the proceedings before the court a quo.

Further, the appellants submitted that the City Council, being a town planning authority, could quite competently delegate its functions to a committee of Council in terms of section 12(3) of the Regional, Town and Country Planning Act.

They also submitted, that, the Environmental Management Committee of the City Council was entitled to condone mis-references in the papers that were placed before it.

The complaint by the first to fourth respondents, on the incorrect description of the property, was therefore not a fundamental defect that warranted interference by the court a quo, especially because the court had accepted that the development was to take place on the appellants property measuring 16,2885 hectares.

There was no requirement that the appellants identify the specific portion of that land where the development was to take place, particularly in view of the fact that the subdivision previously applied for had lapsed.

The error was not serious and the objectors had been able to lodge their objections.

As regards the finding by the court a quo, that the application was invalid on account of the fact that documents from a previous application (that had lapsed) had been attached, the appellants submitted that these were supporting documents and constituted “such information as may be prescribed” as provided for in the Regional, Town, Country Planning Act. The fact that an application is deemed dismissed, in terms of section 26(7) of that Act does not mean documents from that application cannot be attached or used in a subsequent application.

On the finding by the court a quo, that, the failure to attach the consent of the NMB Bank was fatal, the appellants submitted that the issue had only been very vaguely referred to and that it had been assumed that it had been abandoned.

The parties had not addressed the court on this issue.

Moreover, being a question of fact, the four respondents had not shown whether the bonds in issue were still current.

It was therefore an irregularity for the court to make a finding on an issue of fact not traversed by the parties and which was not founded in the pleadings by the parties.

As regards the finding that the audi alteram partem principle had been violated, the appellants submitted that the four respondents objections contained in letters they had sent to the City Council had been considered before the City Council came up with a decision on the application for a developmental permit.

Indeed, the objections were brought to the attention of the appellants who responded to each of the issues raised in the objections....,.

In their heads of arguments, the first to the fourth respondents have submitted, that, on the objections that they had raised in respect of the development permit, they submitted that the letters raised different issues.

The chairperson of the first respondent objected on the basis that this was an ecologically sensitive and biologically diverse area which should not be tampered with. The Sopers, on the other hand, objected on the basis that there had been no prior consultation with the residents who were likely to be affected.

Moreover, the City Council, having received a response from the appellants, including a report on soil tests done at their instance, made no attempt to bring the response and new facts to the attention of the respondents....,.

The fifth respondent's submissions mirrored its previous submissions before the court a quo....,. Further, that, although the minutes of the Council meeting refer to only two objections, the objectors concerns had been taken into account....,.

Whilst the parties had been involved in litigation in respect of this piece of land in the past, before the appellants sought an environmental impact assessment certificate in 2017 there had been no stakeholder consultation.

This violated section 136 of the Environmental Management Act.

That section provides that the Environmental Management Agency, amongst other requirements, shall ensure that the rules of natural justice are duly observed, and, in particular, shall take all reasonable steps to ensure that every person whose interests are likely to be affected by the exercise of the function is given adequate opportunity to make representations in the matter.

Further, section 26 of the Regional, Town and Country Planning Act provides that an application for a permit shall be made to a local planning authority and shall be accompanied by the consent in writing of:

(a) The owner of the land; and

(b) Where the application relates to development which involves an alteration —

(i) In the character of the use of any land or building; or

(ii) In the conditions of title to the property;
the holder of any real right registered over the property concerned:

Provided that the local planning authority may dispense with any consent required in terms of this subsection if it is satisfied that —

(a) The applicant has made all reasonable attempts to ascertain the address of the person whose consent is required and has been unable to do so; or

(b) The person whose consent is required has unreasonably failed or refused to give his consent and that the permit, if granted, would not prejudice the rights of such person.”

That the appellant did not attach the consent of NMB Bank, the mortgage holder, is common cause.

It is also common cause, that, the City Council was not requested, at any stage, to dispense with the consent required in terms of paragraph (b) to the proviso. Nor did the appellants themselves attempt to show that they had made reasonable attempts to ascertain the address of NMB or that NMB had unreasonably failed to give its consent and that it would not be prejudiced by the grant of the permit.

SC48-15 : ATTORNEY-GENERAL vs LEOPOLD MUDISI and PATROBS DUBE and DERECK CHARAMBA and MUSEKIWA MBANJE and MEHLULI TSHUMA
Ruled By: MALABA DCJ, GARWE JA and PATEL JA

One of the fundamental precepts of natural justice, encapsulated in the maxim audi alteram partem, is the right of every person to be heard or afforded an opportunity to make representations before any decision is taken that might impinge upon his rights, interests, or legitimate expectations.This precept of the common ...

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

The applicant in this matter seeks an order declaring the legality of her occupation of a piece of farmland in Seke District and the nullification of the consolidation of that land with an adjoining farm.

She also seeks the eviction of the second respondent and an order for costs against him.

The first respondent (the Minister) resists the application on the ground, that, the applicant's right to occupy the land was withdrawn.

The second respondent has not filed any notice of opposition and is accordingly in default.

The first respondent was required to file his heads of argument in March 2012, and, having failed to do so, was automatically barred.

However, there being no objection from the applicant, the bar imposed upon the first respondent was uplifted by consent, and his failure to file heads timeously was also condoned.

Any costs incurred by reason of his late filing of heads of argument are to be borne by the first respondent.

Background

In 2002, the Minister allocated Subdivision 2 of Denby Farm to the applicant through an offer letter dated 2 June 2002.

Thereafter, the applicant took occupation, prepared the land, moulded bricks for farm buildings, and purchased equipment in anticipation of commencing farming activities.

In 2005, the Provincial Lands Committee held a meeting chaired by the second respondent. The meeting took a decision to consolidate the applicant's farm (Subdivision 2) with the farm allocated to the second respondent (Subdivision 9) and further resolved that the applicant should vacate her farm.

The Minister's position is that the consolidation in dispute was procedurally effected and that the applicant's offer letter was automatically withdrawn because she had failed to comply with the conditions attaching to the offer of land.

It is common cause that there was no formal communication of the withdrawal to the applicant - even after a written request by her lawyers.

The applicant asserts, that, her right to occupy the farm has not lapsed or been legally terminated and therefore still subsists.

She also challenges the legality of the consolidation process as being tainted by bias and corruption, having been influenced by the second respondent for his own benefit.

Additionally, she contends that any offer letter or lease issued to the second respondent is not superior to her offer letter and cannot override her right to occupy the farm.

Issues for Determination

At the hearing of this matter, the applicant's counsel did not persist with his point in limine contesting the authority of the deponent to the opposing affidavit. Consequently, the following issues emerged for determination:

(a) Whether the applicant had duly complied with the conditions attaching to her offer letter.

(b) The legality of the process consolidating Subdivisions 2 and 9 of Denby Farm.

(c) Whether the first respondent was entitled, or empowered, to withdraw the offer letter.

(d) Whether the applicant's offer letter was duly withdrawn or cancelled.

(e) Whether the applicant's right to occupy still subsists and whether it is accordingly recognisable and enforceable.

Compliance with Conditions

The conditions applying to the applicant's offer letter required her to take up personal and permanent residence on the holding upon acceptance of the offer, which was to be communicated to the Minister within 30 days of receipt.

The applicant avers, that, she took occupation of the farm soon after it was allotted to her and confirmed her acceptance of the offer by notice dated 29 June 2002.

The Minister's deponent simply states, that, the applicant failed to take up residence or to occupy the land, without addressing her detailed averments as to the manner in which she took occupation.

On balance, I am satisfied that the applicant's evidence is to be preferred over the Minister's bare denial. I accordingly find, that, she did comply with the conditions of occupation stipulated in her offer letter....,.

Whether Offer Letter Withdrawn or Cancelled

In terms of paragraph 3 of the conditions attaching to the applicant's offer letter, the offer may be cancelled or withdrawn for breach of any of the conditions set out in the letter.

In view of my earlier finding, that, the applicant did comply with the requisite conditions, there does not appear to have been any valid ground entitling the Minister to cancel or withdraw the offer made to the applicant.

Even if any such ground did exist, it is abundantly clear that the Minister did not take any specific steps to cancel or withdraw the offer.

The undisputed facts are that the offer was never formally terminated.

The applicant was not given any notice of any alleged breach of the conditions of offer. Nor was there any formal notice or communication of the offer having been withdrawn; and there is absolutely nothing in the opposing papers to suggest otherwise.

The Minister's argument, that, the offer was automatically withdrawn, simply cannot be accepted.

As I have already stated above, the power to withdraw or cancel an offer of land must be exercised lawfully and procedurally, and this quite obviously necessitates the giving of due notice to the holder of the offer letter.

It follows, that, the procedure for cancellation or withdrawal, in accordance with the conditions set out in the applicant's offer letter, was never followed.

HH539-15 : TATENDA MUKAMBA and ODWELL STANLEY vs UNIBAX INVESTMENTS T/A ARUNDEL VILLAGE SPAR
Ruled By: MATANDA-MOYO J

On 4 February 2014, I issued the following order in favour of the applicants:

(1) That, the arbitral award of the arbitration tribunal granted by Honourable C.T. Kadenga on 19 February 2014, in favour of the applicants, be and is hereby registered as an order of this court.

(2) That, Respondent be and is hereby ordered to pay the sum of $20,790 (twenty thousand seven hundred and ninety dollars) to each applicant in terms of the operative part of the award.

(3) That, Respondent be and is hereby ordered to pay the costs of suit.

I have been requested to give reasons and these are they.

This is an application for registration of an arbitral award in terms of section 98(14) of the Labour Court Act [Chapter 28:01]. The applicants obtained an arbitral award in their favour on 19 February 2014 in the following:

(a) That, the respondent pay $15,785 to each applicant as back pay;

(b) That, respondent pay $155 to each applicant as cash in lieu of leave; and

(c) That, the respondent pay $3,850 to each applicant as damages in lieu of reinstatement.

The respondent opposed the registration of the award on the basis, that, the award was not authenticated as original. The respondent also argued, that, no arbitration agreement nor referral to arbitration documents were attached to the application, in compliance with the Arbitration Act [Chapter 7:15].

The respondent challenged the application in the face of an appeal pending before the Labour Court.

The respondent submitted, that, it noted an appeal before the Labour Court and such appeal has the effect of suspending the arbitral award. Once the arbitral award is suspended, it follows that it could not be registered.

It is the respondent's case, that, the arbitral award sought to be registered is patently wrong and contrary to public policy in that it was issued without the respondent having been given an opportunity to make representations.

The applicants challenged the authority of H. Maticha in deposing to an affidavit on behalf of the respondent without authorisation.

The respondent is a legal persona and any person purporting to act on its behalf must do so on the strength of resolution from the company directors....,.

The respondent submitted, that, it was not given an opportunity to make representations by the arbitrator.

The doctrine of public policy was dealt with by GUBBAY CJ…, in the case of ZESA v Maposa 1999 (2) ZLR 452…,.;

“The approach to be adopted is to construe the public policy defence, as being applicable to either a foreign or domestic award, restrictively, in order to preserve and recognise the basic objective of finality in all arbitration, and to hold such defence applicable only if some fundamental principle of law or morality or justice is violated.

An award will not be contrary to public policy merely because the reasoning or conclusion of the arbitrator are wrong in fact or in law; where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitute a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.

The same consequences apply where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned.”

It is correct, in terms of Article 34(2) of the United Nations Commission of International Trade Law (UNICITRAL) Model Law, Schedule to Arbitration Act [Chapter 7:15], that, this court can set aside an award if it finds that the award is in conflict with the public policy of Zimbabwe.

Similarly, this court can refuse to register an award which is contrary to public policy.

A look at the proceedings before the arbitrator would show, that, the respondent was represented on both occasions. It is not correct that the respondent was not given an opportunity to present its case. The award speaks for itself.

It is my finding, that, that submission by the respondent is incorrect.

SC12-18 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO
Ruled By: BHUNU JA

This is a chamber application for leave to appeal against the judgment of the Labour Court in terms of Rule 5(2) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

The applicant is a tertiary educational institution incorporated as such under the University of Zimbabwe Act [Chapter 25:16].

Both respondents are its former workers who were employed as research fellows at its Institute of Development Studies. They were dismissed from employment by the Disciplinary Tribunal on allegations of misconduct. They are alleged to have wilfully refused to obey a lawful order to be re-deployed from the Institute of Development Studies offices to the University campus.

Aggrieved by their dismissal from employment, they approached the Labour Officer complaining of unfair dismissal. The Labour Officer, in turn, referred their grievance for arbitration. The arbitrator ruled in their favour and made an award of reinstatement, and, in the alternative, damages in lieu of reinstatement.

Dissatisfied with the arbitration award, the applicant appealed to the Labour Court without success. Unhappy with the decision of the Labour Court, the applicant sought leave to appeal to this court. On 5 April 2013, the Labour Court granted the applicant leave to appeal to this Court.

The applicant did not, however, reinstate the respondent as ordered by both the arbitrator and the Labour Court. As the result, the respondents approached the arbitrator for quantification of damages in lieu of reinstatement. The arbitrator assessed damages in the amounts of US$156,852=13 and US$134,362 respectively.

Aggrieved by the quantification award, the applicant, once again, appealed against that award to the Labour Court.

Despite the appeal, the respondents proceeded to register the award with the High Court for enforcement. A writ of execution and attachment of the applicant's property was subsequently issued.

The applicant made an urgent application for stay of execution without success. It then successfully appealed to this court for stay of execution pending appeal under judgment number SC06-13.

The applicant's appeal against the quantification award was subsequently dismissed by the Labour Court.

Its complaint is that CHIVIZHE J granted the application for dismissal of the appeal without a formal hearing of the appeal.

They allege, that, despite numerous requests, the honourable judge failed to provide the applicant with reasons for judgment, resulting in the lapse of time stipulated of the intended appeal.

It therefore became necessary to apply for condonation and extension of time to file an application for leave to apply to this Court.

Both parties filed heads of argument.

The applicant now alleges, that, while they were waiting for the set down date of hearing they were surprised to receive a written judgment by HOVE J dismissing the application for leave to appeal to this Court.

It is not clear to me, but, it appears that the matter was subsequently placed before the same judge who then properly heard the application and dismissed the applicant's claim under judgment LCH/H/472/2011 at page 56 of the record of proceedings.

It is this judgment which prompted this application.

In terms section 92F(3) of the Labour Act [Chapter 28:01], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court.

When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal, he does not treat the application as an appeal against the refusal to grant leave by the court a quo. He simply decides the matter on the merits as if it was a fresh application before him/her.

For that reason, while he may consider the criticisms levelled against the judge in the court a quo, these are not overriding considerations, because, he makes his own independent, fresh determination on the basis of the papers and arguments placed before him/her.

I now turn to consider the application for leave to appeal to this Court on the merits.

An application for leave to appeal to this Court is firmly grounded on the applicant's prospects of success on appeal.

In terms of section 92F of the Labour Act, appeals from the Labour Court only lie to this Court on a point of law.

In that regard, the first question for consideration is whether the applicant's grounds of appeal raise a point of law.

The grounds of appeal essentially raises the question whether the applicant was subjected to a fair trial when CHIVIZHE J issued an order, under case number LC/H/145/11, without giving reasons for the order which it has branded a judgment.

The order is dated 31 October 2012 and it reads:

“IN THE LABOUR COURT OF ZIMBABWE

LC/H/145/11

In the matter between:

KWANELE JIRIRA & ANOTHER: Applicants

UNIVERSITY OF ZIMBABWE: Respondents

Before the Honourable B T Chivizhe, President

(IN CHAMBERS)

Whereupon, after reading documents filed of record:

IT IS ORDERED THAT -

The application for dismissal of appeal in terms of Rule 19(3)(a) of the Labour Court Rules be and is hereby granted.”

The above order is clearly not a judgment but an order given by the learned judge a quo sitting in chambers.

This is so because it does not bear a judgment number or reasons for judgment. It cites no legal representatives, signifying that none were heard - although both parties had legal representation.

This is clearly a default judgment.

It is not correct for the applicant to say, in its founding affidavit, that, the learned judge did not give reasons for its judgment. This is because, in the same breath, it confesses that the judgment was given pursuant to an application for dismissal of its appeal because of its failure to file heads of argument timeously.

It is therefore plain, that, the applicant's appeal was dismissed for want of compliance with the Rules.

Nowhere in its grounds of appeal does the applicant allege that it filed its heads of argument timeously.

HB86-10 : ELVIS NDLOVU vs HIGHER LEARNING CENTRE
Ruled By: MATHONSI J

This is an application for registration of an arbitral award made in terms of section 98(14) of the Labour Act [Chapter 28:01]. That section provides:

“Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection (13) to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the award exceeds the jurisdiction of any Magistrate Court, the High Court.”

The arbitral award sought to be registered was made by an arbitrator, P.A Chenyika, on 13 June 2008.

In the award, the arbitrator ruled that the applicant had been unlawfully dismissed by the respondent and he ordered his reinstatement without loss, that he be paid the agreed salary of R8,000 per month and arrears of his salary.

It would appear, that, when the applicant presented himself for reinstatement, the respondent refused to comply with the arbitral award. It also did not pay the applicant his outstanding salary. As a result, the applicant returned to the arbitrator and sought a quantification of damages in lieu of reinstatement as provided for in section 89(2)(C)(iii) of the Labour Act.

On 21 July 2008, the arbitrator quantified damages in lieu of reinstatement.

Again, the respondent did not pay the damages in lieu of reinstatement. Basically, the respondent did not do anything at all about the award as it did not challenge it in the Labour Court, either by way of appeal or review.

The applicant then filed this application seeking to register the award.

The application for registration has been opposed by the respondent on the basis, that, when the award was made, the respondent had applied for a six (6) month postponement of the hearing, up to December 2008, as its Executive Chairman was going to be away in Namibia on business.

The respondent has also argued, that, there was a breach of the rules of natural justice in that it was not afforded an opportunity to be heard before a determination was made, and that the arbitrator did not avail a copy of the award as provided for in section 98(13) of the Labour Act.

None of the reasons for opposing the application for registration are sustainable.

It is common cause, that, there is an arbitral award in existence which award was made in terms of the law. That award has not been set aside, and, indeed, nothing has been done by the respondent to challenge that award as it is entitled to do by the Labour Act. It is common cause that there is nothing pending in any court putting to question that award.

The respondent cannot seek to challenge an arbitral award in opposing papers filed in an application for registration.

In an application of this nature, this court does not inquire into the merits or otherwise of an arbitral award. That is the province of the Labour Court, upon an application or appeal being made to that court.

Registration of an arbitral award is only done for purposes of enforcement because the labour structures have no enforcement mechanism. Upon registration, the award has the effect of a civil judgment of the appropriate Court. This is in terms of section 98(15) of the Labour Act.

As long as the award stands unchallenged, the appropriate court has no mandate to inquire into the propriety or otherwise of that award and is obliged to register it.

In the result, I make the following order:

1. That, the arbitral award of arbitrator, P.A Chenyika, dated 13 June 2008, and the subsequent quantification of damages in lieu of reinstatement dated 21 July 2008 be and are hereby registered in terms of section 98(14) of the Labour Act [Chapter 28:01].

2. That, the respondent shall bear the costs of suit on an ordinary scale.

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

This application is made in terms of Article 34 of the Uncitral Model Law which is a schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award issued by the arbitrator, K. Segula, on 29 July 2014, in terms of which she quantified the respondent's damages in lieu of reinstatement as $87,640 made up of:

(i) $1,400 May 2003 salary;
(ii) $50,400 damages;
(iii) $35,000 pension contributions; and
(iv) $840 cash in lieu of leave.

The applicant employed the respondent as a Personal Assistant to its President and Chief Executive Officer from 2 September 2002. The relationship between the parties deteriorated when the respondent complained of sexual harassment by her immediate superior. The employment contract was terminated giving rise to a labour dispute which eventually went to arbitration.

On 24 March 2014, the arbitrator issued an arbitral award, the import of which was that the respondent had been unfairly dismissed.

It is not clear from the papers why the matter took almost 10 years to finalise if indeed the respondent had been dismissed on 19 June 2003.

Whatever the case, the applicant did not reinstate the respondent, necessitating a second hearing before the arbitrator for purposes of quantification of damages due to the respondent.

The quantification hearing occurred on 10 June 2014, but not before the applicant had, on 17 April 2014, noted an appeal against the initial award to the Labour Court.

At the conclusion of oral submissions, the parties agreed to make written closing submissions.

The applicant's legal practitioner undertook to submit his on 16 June 2014 after which the respondent was to submit hers. The period was later extended by the arbitrator as a result of which the applicant's submissions were to be filed by 25 June 2014 with the respondent obliging on 30 June 2014.

The closing submissions were eventually filed by both parties and the arbitrator quantified the damages and delivered her award aforesaid on 29 July 2014.

Problems started again.

The applicant appealed against the second award to the Labour Court. The applicant also launched this application for the setting aside of the award.

In its founding affidavit, deposed to by its Finance Manager, McShaman Kembo, the applicant stated that the award ought to be set aside on two (2) grounds, namely:

(i) That, it deals with a dispute not contemplated by or not falling within the terms of the arbitration, or contains decisions on matters beyond the scope of the arbitration in that while the arbitrator was only seized with the issue of damages in lieu of reinstatement, she had gone beyond her mandate by dealing with and awarding a sum of $35,000 in respect of pension contributions.

(ii) The second ground is that the award is in conflict with the public policy of Zimbabwe in the sense, that, there was a breach of the rules of natural justice, in particular, the audi alteram partem rule, in that, after the parties had made oral submissions, the arbitrator allowed the respondent to produce further evidence which she went on to rely upon without according the applicant an opportunity to respond.

The evidence was in the form of a lengthy document with the title “Application in support of quantification of damages.” The write up itself is ten (10) pages to which is attached another eight (8) paged document called 'Zimbabwe All Industry Salary Survey.'

The applicant complains, that, the documents contain evidence which was not made available at the oral hearing of 10 June 2014, and that, as a result, it did not respond to it. Significantly, the arbitrator went on to rely on that un-rebutted evidence in awarding the respondent damages in lieu of reinstatement and $35,000 as pension contributions.

The respondent opposed the application, and, in her lengthy opposing papers, she complained about the non-joinder of the arbitrator in the proceedings and disputed having introduced new evidence to the prejudice of the applicant.

According to her, all that is contained in her submissions dated 30 June 2014, which I have already cited, was available at the hearing on 10 June 2014.

If the applicant had chosen not to address those issues in its closing written submissions, that should certainly not be her problem.

To the respondent, the application is another ruse being employed by the applicant to deny her justice and to wear her down.

At the hearing, the respondent, however, conceded that the issue of pension contributions was not only outside the scope of the arbitration, it had also not been brought up at the hearing on 10 June 2014.

That notwithstanding, the arbitrator made an award for it....,.

Regarding the existence of an appeal to the Labour Court, I agree with counsel for the applicant, that, an Article 34 application is available to a litigant outside the appeal procedure and now that section 171(1)(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on labour matters which had been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01] there is nothing stopping me from exercising jurisdiction.

Section 171(1)(a) of the new Constitution provides:

“The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

To the extent that the Constitution overrides any Act of Parliament, there can scarcely be any doubt that section 171(1)(a) of the Constitution overrides section 89(6) of the Labour Act.

What this means is that, by clear constitutional provision, this court has original jurisdiction over all matters, including those of a labour nature, where prior to the new constitutional order, the Labour Court enjoyed exclusivity.

Considering that this matter has been set down and argued before me, while the appeal is still pending in the Labour Court, it is expedient that I indulge the parties and determine the matter.

In terms of Article 34(2)(a)(ii) of the Uncitral Model Law:

“An arbitral award may be set aside by the High Court only if the party making the application furnishes proof that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not submitted, only that part which contains decisions on matters not submitted to arbitration may be set aside.”

That Article allows a severance of the offending part of the award where appropriate. It is therefore apparent that this court is empowered to set aside a portion of an award and uphold another portion in appropriate circumstances.

The respondent has conceded that the issue of pension fell outside the terms of reference of the matter to arbitration; the arbitrator having only been requested to determine the respondent's damages in lieu of reinstatement.

Indeed, pension contributions cannot, by any measure, be regarded as falling within the ambit of damages, which Van WINSEN J…, in Myers v Abramson 1952 (3) SA 121 (C)…, (quoted with approval by GUBBAY CJ in Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (S)…,.) defined as:

“The measure of damages accorded such employee (a wrongfully dismissed one) is, both in our law and in English law, the actual loss suffered by him, represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.”

In my view, the concession made by the respondent, in respect of the award for pension contributions, was proper.

I would otherwise set aside only that part of the award, but, there is also merit in the submissions made by counsel for the applicant regarding the evidence which was allowed by the arbitrator post hearing of the matter.

As I have said, after the parties had agreed to make written closing submissions, the respondent went on to submit further evidence, including documentation attached to the written submissions.

There was really nothing wrong with that, considering that she was self-acting and a lay person. It was, however, incumbent upon the arbitrator, having taken such evidence, to allow the applicant to respond.

She did not. Instead, the arbitrator went on to rely upon such evidence in determining the matter.

A whole array of correspondence was thrown in after the hearing, including allegations of publication of the matter in the Daily News of 6 September 2002 and other issues relating to outstanding leave.

I do not agree with the respondent, that, all this information was already available at the time of the hearing. If it was, there would have been no need to re-submit it via the written closing submissions.

Article 34(5) of the Model Law seeks to clarify what would be regarded as being in conflict with the public policy. It provides:

“For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if -

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

One of the basic tenets of the rules of natural justice is the audi alteram partem rule, which enjoins every adjudicating authority to hear the other side before determining the matter.

There can be no doubt that the arbitrator fell foul of that rule. To that extent, there is no alternative but to interfere with the award.

I must, however, express my profound disappointment at the unacceptable delays that have occurred in this matter.

This dispute started more than 10 years ago and is still simmering now. Surely, there can be no excuse for delaying a labour dispute for such a lengthy period of time.

The respondent, who I must add, presented very sound and reasoned arguments, which, on any day, may turn a lot of legal practitioners green with envy, complains bitterly about the delay which she says has been orchestrated by the employer to frustrate her into abandoning her claim.

She has drawn my attention to the sentiments made in Khoza v Sasol Ltd where the court stated:

“I am satisfied, that, Mr Hinds and his office were grossly remiss, and that the employee, who all of this time was wallowing in poverty and in unemployment, was more than justified in approaching this court for relief rather than wait for the rusty old train of Sasol that takes its own time in its delivery of justice. I have yet to encounter a worse case where there is a more callous disregard of the prejudice that an employee suffers when the wheels of justice are deliberately slowed down by a resort of obfuscation by those who flaunt their financial muscle in what appears to be an obscene game of cat and mouse in which the only loser can be the employee.

In the unequal contest between a multi-billion rand empire that the employer is, and an unemployed person, as was submitted by Mr Spoor, all you have to do is to wear down the resolve of your less endowed opponent, tire him out and hope that he will go away, his quest for justice abandoned. Delay the day when he can get justice, and you can then thereby deny him justice.

I disagree.

As long as the courts are open, and as long as they purport to be the arbiters of fairness and justice between the powerful and the relatively powerless, so long will they not allow the sort of conduct displayed by the employer in this case to go without consequences.”

I associate myself fully with those remarks.

This matter ought to be brought to finality without further delay. The respondent has done everything within her power to achieve that, including the binding of the record, the application for set down, and payment of security for service of the notices of set down - as if she was the applicant. Throughout all that process, the applicant remained unconcerned, giving credence to the view that the applicant would like to perpetuate the matter endlessly.

The basis of setting aside of the award cannot be blamed on the respondent. She therefore cannot be visited with costs. The arbitrator, who is to blame, was not cited.

In the result, IT IS ORDERED THAT:

1. The arbitral award issued by the arbitrator K. Segula, dated 17 July 2014, is hereby set aside.

2. The quantification of damages in lieu of reinstatement is hereby remitted to the same arbitrator for a hearing de novo within fourteen days of this order.

3. Each party shall bear its own costs.

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 27 January 2022 dismissing the appellant's application. After hearing submissions, we dismissed the appeal, on 20 July 2023, for lack of merit. We indicated that our reasons will follow. These are ...

THE FACTS

The appellant and the first (Clever Sibanda), fifth to eleventh respondents (Ettah Sibanda, Joyce Sibanda, Elphina Sibanda, Khefeni Sibanda, Maxwell Sibanda, Siyolisiwe Sibanda and Sibusisiwe Sibanda) are all surviving children of the late Melusi Sibanda who died on 5 September 2005.

On 7 May 2019, Clever Sibanda was appointed executor dative of the estate of the late Melusi Sibanda by Letters of Administration issued on that date.

The second respondent (Nqobile Mloyi) purchased an immovable property, being House Number 501 Nkulumane, Bulawayo from the estate of the late Melusi Sibanda during its administration by the executor dative.

Though the appellant alleges that he was named heir in a document purporting to be a Will of the deceased, such assertion did not curry favour with the appointing authority, hence, the appointment of Clever Sibanda as executor dative (executor) on 7 May 2019.

The appointment has not been challenged and is extant.

At a meeting called by and held before the third respondent (the Deputy Master of the High Court of Zimbabwe), on 25 June 2019, it was resolved, that, the late Melusi Sibanda's immovable property, that is, House Number 501 Nkulumane, Bulawayo registered under a Deed of Transfer number 3478/2001 (“the property”), would be sold with the consent of all the beneficiaries thereto.

The meeting was attended by the appellant and some of the cited beneficiaries.

The minutes of the above meeting, before the Deputy Master of the High Court of Zimbabwe, quote the appellant as having stated as follows in respect of the property:

“Rental was $120 per month to 2019, I have collected the rentals as the heir I was chosen by my father, I am responsible to bring these siblings together. I have archived (sic) to take care of my mother, share the cattle, buried my father. I was supposed to take care of my siblings; I am surprised that they say they do not know the Will. At law, the house can be sold according to my father legacy, they can share rent if possible. I agree to let the house be sold.”

On 12 March 2020, the Deputy Master of the High Court of Zimbabwe, upon the executor's application, issued a certificate of consent to sell the house otherwise than by public auction in terms of section 120 of the Administration of Estates Act [Chapter 6:01].

On 1 September 2020, the executor duly entered into an agreement of sale of the aforesaid property with the second respondent. He duly received the purchase price, and, it was submitted that he distributed the proceeds amongst the beneficiaries.

The appellant was aggrieved by the disposal of the immovable property.

He alleged, that, neither himself nor his other siblings, who are also beneficiaries, had been consulted and hence they had not consented to the sale.

Accordingly, on 9 March 2021, he approached the third respondent (the Deputy Master of the High Court of Zimbabwe) for a meeting.

During that meeting, he had an opportunity to peruse the file pertaining to the Estate Late Melusi Sibanda. He noted that a certificate, in terms of section 120 of the Administration of Estates Act [Chapter 6:01] (the Act) had been issued on 12 March 2020. He also noted, that, the immovable property had been valued at US$15,000.

Armed with this information, the appellant filed a court application “for unlawful disposal of deceased's immovable property.”

That application was essentially a challenge to the issuance of a certificate in terms of section 120 of the Administration of Estates Act by the Deputy Master of the High Court of Zimbabwe, which authorized the executor to sell, otherwise than by public auction, the deceased's only immovable property.

In his founding affidavit, the appellant alleged, that, no due inquiry was undertaken by the Deputy Master of the High Court of Zimbabwe before the issuance of the certificate and that not all of the children of the late Melusi Sibanda had given their consent for the disposal of the property. He averred, that, this was contrary to the agreement of 25 June 2019 that this property would only be sold with the consent of all the beneficiaries.

The application was opposed by the second respondent who averred, that, he was an innocent purchaser of the property in question. Further, he denied that the beneficiaries had not been consulted, and, in this regard, he attached affidavits from the beneficiaries consenting to the sale.

In the second respondent's view, the executor's action was bona fide as all the beneficiaries had consented to the sale.

At the hearing of the application, the appellant and the second respondent raised preliminary objections which were all dismissed by the court a quo.

On the merits, the court a quo held, that, the appellant could not competently challenge the sale because the deceased's property had been properly sold. It found, that, at the meeting of 25 June 2019, the appellant is recorded as having unequivocally accepted that the house be sold. In regards to the value of the property, the court a quo made a finding, that, no legal basis had been established for interfering with the decision of the Deputy Master of the High Court of Zimbabwe in issuing his authority under section 120 of the Administration of Estates Act. Accordingly, the court a quo dismissed the appellant's application with costs.

Aggrieved by the decision of the court a quo, the appellant noted the present appeal on four grounds of appeal. These are:

GROUNDS OF APPEAL

“1. The court a quo grossly erred in making a finding that the “applicant has not made a case for the relief he is seeking” yet the appellant's Court Application for Unlawful Disposal of the Deceased's Immovable Property was heard in contravention of peremptory rules of the High Court Rules 1971 for filing and serving the notice of opposition and peremptory rules of the High Court Rules 2021 for setting down opposed matters. The court a quo misunderstood and/or misinterpreted the appellant's points in limine.

2. The court a quo grossly misdirected itself in making a finding that “applicant has not made a case for the relief he is seeking” yet the court a quo conveniently mis-interpreted the resolution of the meeting held on 25 June 2020 (sic) and ignored the executor's letter.

3. The court a quo grossly erred in making a finding that “applicant has not made a case for the relief he is seeking” yet the court a quo did not apply the law according to section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02].

4. The court a quo grossly misdirected itself in making a finding that “the applicant has not made a case for the relief he is seeking” yet the Deputy Master of the High Court failed to conduct proper due diligence in terms of section 120 of the Administration of Estates Acts [Chapter 6:01].”

The appellant prayed for the appeal to be allowed and for the setting aside of judgment of the court a quo.

He also prayed for:

(i) The setting aside of the certificate issued by the Deputy Master of the High Court of Zimbabwe in terms of section 120 of the Administration of Estates Act;

(ii) The setting aside of the sale of the immovable property in question;

(iii) The placement of a caveat on the said property;

(iv) For the Deputy Master of the High Court of Zimbabwe to ensure, that, all beneficiaries consent to the sale before the property can be validly sold; and

(v) That, the Registrar of Deeds is forbidden from transferring the property to anyone without an order of the court and that if any transfer had occurred it be reversed.

The court holds, that, only two issues commend themselves for determination, and, these are:

1. Whether or not the court a quo erred in dismissing the appellant's preliminary points, that, the application was heard in contravention of Rule 233 of the High Court Rules 1971 and Rule 59 of the High Court Rules 2021.

2. Whether or not the court a quo erred and misdirected itself in finding, that, the immovable property was sold with the consent of all the beneficiaries and in accordance with the law governing the administration of deceased estates.

SUBMISSIONS BEFORE THIS COURT

The appellant submitted, inter alia, that, the court a quo erred in making a finding that he had failed “to make a case for the relief he was seeking” yet his application challenging the unlawful disposal of the deceased's immovable property was heard in contravention of peremptory rules of the High Court Rules 1971 for filing and serving the notice of opposition and peremptory rules of High Court Rules 2021 for setting down opposed matters. He submitted, that, the court a quo misunderstood and/or misinterpreted his points in limine.

On the merits, he submitted, that, the court a quo mis-interpreted the resolution of the meeting held on 25 June 2019 and ignored the executor's letter, resulting in it holding that the appellant failed to make a case for the relief he sought.

He further took issue with the court a quo's alleged failure to apply section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02].

Lastly, he submitted that the Deputy Master of the High Court of Zimbabwe failed to conduct due inquiry in terms of section 120 of the Administration of Estates Act before issuing the authority to sell.

Per contra, counsel for the respondent submitted, that, regarding service of the notice of opposition, the appellant admitted that he was served with the first notice of opposition. He further submitted, that, the appellant also admitted to receiving the second notice of opposition as well.

In this regard, counsel submitted that the court a quo was correct in holding that the appellant did not suffer any prejudice.

Counsel further contended, that, rules are made for the benefit of the court and that the court, in terms of Rule 4C of the then applicable High Court Rules 1971, had the power to condone a departure from the rules as the appellant had been served. The infractions the appellant alluded to in his preliminary points were properly condoned by the court a quo.

On the merits, counsel submitted, that, at a meeting held on 25 June 2019, before the Deputy Master of the High Court of Zimbabwe, where it was resolved that the immovable property would be sold by consent of all beneficiaries, the appellant consented to the sale of the house.

He contended, that, the minutes of the said meeting were never challenged by the appellant; as such, he could not approbate and reprobate. He submitted that the court a quo correctly found, that, according to the minutes, the appellant had consented to the sale.

Further, counsel submitted that the other beneficiaries deposed to affidavits in which they consented to the sale of the house.

In this light, he averred that the Deputy Master of the High Court of Zimbabwe did carry out due inquiry as required of him. Counsel, as a result, prayed that the appeal be dismissed with costs.

ANALYSIS

2. Whether or not the court a quo erred in dismissing the appellant's application upon finding that the immovable property was sold with the consent of all the beneficiaries and in accordance with the Administration of Estates Act

This issue arises from the second to the fourth grounds of appeal. These grounds of appeal are essentially an attack on the court a quo's finding that the appellant did not prove his case for the relief he sought.

On the other hand, the second respondent averred, that, the court a quo correctly found that the appellant's case had no merit as all beneficiaries had consented to the sale.

It is trite, that, this court can only interfere with the findings of the court a quo on limited grounds.

An Appellate Court will not lightly interfere with an exercise of discretion by a lower court unless it is shown, inter alia, that, some error was made in exercising the discretion, such as that it acted upon a wrong principle; that it allowed extraneous or irrelevant matters to guide it or affect it; that it mistook the facts or failed to take into account some relevant consideration: see Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S); Halwick Investments v Nyamwanza 2009 (2) ZLR 400 (S).

The nub of the appellant's case was that the Deputy Master of the High Court of Zimbabwe had not conducted a due inquiry before issuing a section 120 of the Administration of Estates Act certificate.

He submitted, that, had the Deputy Master of the High Court of Zimbabwe conducted such an inquiry he would have noted, that, not all beneficiaries had consented to the sale of the property as had been agreed to in the meeting of 25 June 2019. It is that agreement he said was binding on the Deputy Master of the High Court of Zimbabwe and the Executor in terms of section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02].

Section 120 of the Administration of Estates Act pertains to the power granted to the Master of the High Court of Zimbabwe to authorise the sale of property otherwise than by public auction. The section provides:

“If, after due inquiry, the Master is of (the) opinion that it would be to the advantage of persons interested in the estate to sell any property belonging to such estate otherwise than by public auction he may, if the will of the deceased contains no provisions to the contrary, grant the necessary authority to the executor so to act.”

The due inquiry the Master of the High Court of Zimbabwe is enjoined to conduct is an interrogation of the reasons why the executor would like to sell the property otherwise than by public auction and whether such would be in the interests of those interested in the estate, such as beneficiaries. The Master of the High Court of Zimbabwe must satisfy himself/herself that such a manner of sale would be to the advantage of persons interested in the estate. In the process, the Master of the High Court of Zimbabwe may take such steps as he/she deems fit, including engaging the beneficiaries, in order to arrive at an appropriate opinion: see Katsande v Katsande & Ors 2010 (2) ZLR 82 (H).

In casu, the appellant, and other beneficiaries, held a meeting with the Master of the High Court of Zimbabwe on 25 June 2019.

At that meeting, it was resolved that the immovable property of the deceased would be sold by consent of all the beneficiaries. The appellant is quoted as having stated, inter alia, that:

“At law, the house can be sold according to my father legacy they can share rent if possible. I agree to let the house be sold.”

The minutes of the meeting were in fact provided by the appellant.

It is clear that at that meeting the appellant gave his consent to the sale. It was in light of this that the court a quo made a finding, that, the resolution requiring consent from all beneficiaries applied to those beneficiaries who did not attend the meeting or who had not given their consent thereat, since the appellant had given his consent in the meeting.

The court a quo further noted, that, the other beneficiaries had given their consent through the affidavits filed of record. In the circumstances it could not be said that some of the beneficiaries had not given their consent.

The court is of the view, that, the finding by the court a quo, that, given the obtaining circumstances, the term “all beneficiaries” that were to still give consent as per minutes of 25 June 2019 meeting applied to those beneficiaries who did not attend the meeting or consent thereat, is not unreasonable or irrational so as to warrant this court's interference.

Surely, if there were some beneficiaries who attended the meeting on 25 June 2019 and had expressed their consent to the sale of the property, it was not unreasonable to conclude that the reference to “all” beneficiaries was intended to cover those beneficiaries who were not part of the meeting or were yet to give their consent.

The finding of the court a quo cannot be faulted in this regard.

The other leg of the appellant's attack of the court a quo's decision was that it had failed to appreciate that the Master of the High Court of Zimbabwe did not apply the law according to section 5(1)(a) of the Deceased Estates Succession Act [Chapter 6:02]. That section provides:

“5(1) Where as a result of a distribution in intestacy any property devolves upon any heirs in undivided shares —

(a) The heirs may agree upon an alternative division of the property, and such agreement shall be binding on the executor.”

In his view, the aforesaid section 5(1)(a) of the Deceased Estates Succession Act mandated the Master of the High Court of Zimbabwe, and the executor, to ensure that the consent of all the beneficiaries was obtained before the property was disposed of.

This is what he apparently considered as an alternative division or direction to sell the property.

This argument is again premised on his assertion, that, not all beneficiaries had consented to the sale. He was, however, unable to refute the existence of affidavits from all other beneficiaries consenting to the sale.

It was in this respect that the court a quo alluded to the fact, that, he had no authority to speak on behalf of the other beneficiaries in the light of the affidavits filed of record.

The other beneficiaries had in fact been cited as respondents in the application but had opted not to participate. It was apparent to all and sundry, that, it was only the appellant who had had a change of mind after his initial consent before the Master of the High Court of Zimbabwe.

In dealing with this change of mind, the court a quo aptly remarked, at p8, that:

“Applicant's contention, that, he did not consent to sale of the property, cannot withstand scrutiny. Applicant attended a meeting held on the 25th June 2019. At the meeting, he unequivocally agreed that the house be sold. Applicant cannot be permitted to play double standards, that, when it suits him, he agrees to the sale of the property, and, when it does not suit him, to make a turn and allege that he did not consent to such sale. This is impermissible.”

The Master of the High Court of Zimbabwe cannot, in the circumstances, be faulted for issuing the section 120 certificates as he had been favoured with the necessary information to form an opinion in terms of the law.

In any case, given the circumstances of this case, the Master of the High Court of Zimbabwe was enjoined to exercise his discretion in determining whether to grant the section 120 certificate or not.

The appellant's effort at relying on section 5(1)(a) of the Deceased Persons Succession Act was misplaced and inapplicable.

In casu, the appellant lamentably failed to establish, that, the court a quo erred in holding that the Master of the High Court of Zimbabwe had properly exercised his power in issuing the section 120 certificate. There is indeed nothing to show, that, the Master of the High Court of Zimbabwe may have injudiciously exercised his discretion. On the contrary, the Master of the High Court of Zimbabwe sanctioned the sale of the immovable property in accordance with the law - after due inquiry.

Accordingly, the appeal has no merit.

DISPOSITION

It was for the above reasons that the appeal was dismissed with costs.

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

The High Court (the 'court a quo') granted an application filed by the first respondent, on an urgent basis, for spoliatory relief. The appellant, disgruntled by the decision, appealed to this Court.

At the commencement of the hearing, counsel for the appellant raised a point in limine, that, the second respondent's heads of argument were improperly before the court as they were filed in support of the appeal. He thus prayed that they be struck out with no order as to costs.

Counsel for the second respondent was not opposed to the striking out of the heads of argument. As a result, an order by consent was issued striking out the second respondent's heads of argument.

There was, therefore, no appearance for the second respondent before the court.

FACTUAL BACKGROUND

The first respondent is the holder of an offer letter for subdivision 6 of Braemar Farm in Seke District (the farm) under the jurisdiction of the Manyame Rural District Council. The farm was allocated to him on 17 November 2009 and is 122,540ha in extent. The farm had been gazetted on 3 September 2004 in the Government Gazette Extraordinary Vol. LXXXII, No. 72.

The acquisition of the farm by Government is still extant.

On 10 May 2022, the first respondent filed an urgent chamber application for a spoliation order against the appellant.

The first respondent alleged, that, on 5 May 2022, at around 3:00pm, the appellant instructed his workers to build a two roomed house and a surrounding wall in his cattle grazing area. The appellant proceeded to dig trenches for the wall and completed building the two-roomed house.

Upon enquiring from the appellant about the reason why he had built a structure on his farm, the appellant responded, that, he had been allocated the piece of land by the second and third respondents for the purpose of constructing a school.

The first respondent requested for a meeting with the appellant as a means to iron out the issue, but, the appellant declined to attend.

The first respondent reported the invasion by the appellant to the police, but, did not get much assistance. The first respondent, thereafter, made an application for a spoliation order in a bid to recover the portion of the farm that had been taken by the appellant.

The appellant opposed the application.

In his opposing affidavit, he raised five preliminary objections:

(i) Firstly, he alleged, that, the first respondent had no cause of action against him.

It was the appellant's position, that, he was entitled to occupy and possess the portion of the farm as it was now Stand Number 7727 Nyatsime Township (the 'Stand'). The appellant further stated, that, he acquired the Stand through a lease agreement entered into between him and the second respondent.

He further stated, that, the Stand was not part of a farm but was a planned urban settlement which fell under the jurisdiction of the Manyame-Chitungwiza Joint Committee.

The appellant also stated, that, the land on which the first respondent was entitled to occupy was different from where his Stand was situated as evidenced by the layout plan and site plan for the area;

(ii) The second preliminary point was that the remedy of spoliation was wrongly sought. It was the appellant's view, that, any charge against the appellant should have been for trespass and not spoliation;

(iii) The third point was that the application was made using the wrong form thus failing to comply with the rules of court;

(iv) The fourth point was that the matter was not urgent; and finally

(v) That the first respondent ought to have joined the Minister of Local Government and Public Works as well as the Manyame-Chitungwiza Joint Committee to the proceedings.

On the basis of these preliminary points, the appellant sought an order that the application be dismissed.

On the merits of the matter, the appellant denied sending his workers onto the first respondent's farm. He argued, that, the piece of land belonged to him and that he was developing it in order to build a school. He maintained, that, the first respondent was never in peaceful and undisturbed possession of the land where the appellant built his structure as such piece of land did not belong to him. The appellant further averred, that, the first respondent was mistaken in thinking that the Stand was part of his farm as evidenced by the lease agreement.

The second respondent opposed the application and raised a preliminary point, that, the application was not urgent.

On the merits, the second respondent averred, that, the gazetted land, on which the farm stood, had since been placed under the jurisdiction of the Manyame-Chitungwiza Joint Committee as established under S.I. 211/21.

The second respondent averred, that, the Stand was allocated to the appellant lawfully with all processes duly followed.

It was also the second respondent's averment, that, the offer letter issued to the first respondent had since been withdrawn by the fourth respondent.

The second respondent thus prayed for the dismissal of the application.

The third respondent also opposed the application and raised two preliminary points:

(i) The first point being, that, there was non-joinder of the Manyame-Chitungwiza Joint Committee; and

(ii) Secondly, that, the matter was not urgent.

On the merits of the matter, the third respondent averred, that, the first respondent failed to furnish any proof that he was in peaceful and undisturbed possession of the land occupied by the appellant. Further, that, the first respondent failed to fulfil the requirements to be satisfied in an application for spoliation.

Not to be outdone, the fourth respondent also opposed the application and raised the preliminary point, that, the matter was not urgent.

On the merits, the fourth respondent averred, that, the offer letter giving the first respondent authority over the farm was withdrawn on 7 February 2015 and the land was subsequently parceled out to the Ministry of Local Government and Public Works.

Thus, the fourth respondent suggested that the offer letter in the possession of the first respondent was null and void and therefore he had no legal right to be on the farm.

DETERMINATION BY THE COURT A QUO

The court a quo, in dealing with the application, found no merit in the preliminary points raised. The court a quo held, that, an application for spoliation is urgent by its nature and thus the application was properly before it. It also found, that, there was a valid cause of action before it as the first respondent had an offer letter in his possession which gave him a right to be on the land. It held further, that, the form which had been used by the first respondent was not the correct one but found that there was substantial compliance with the Rules. It further found, that, non joinder of a party to proceedings did not necessarily vitiate the proceedings.

With regards to the merits of the case, the court a quo found, that, the land occupied by the first respondent was a commercial farm held by the fourth respondent. As it was a commercial farm, it fell outside the jurisdiction of the Ministry of Local Government and Public Works, the second, and third respondents. They thus had no mandate over the farm.

The court found, that, the Minister of Local Government and Public Works had no power or authority to establish or expand an urban settlement. The court held, that, the second and third respondents could not come on the first respondent's farm and impose conditions on that land.

It held further, that, the appellant had no legal basis to take the land from the first respondent as this was the sole prerogative of the President.

The court a quo noted, that, the actions by the second respondent, in issuing a lease agreement to the appellant, amounted to an exercise of authority reposed only in the President and that such actions were therefore illegal and criminal.

The court a quo accordingly found, that, the first respondent was despoiled of his farm and granted the application for spoliation against the appellant. It also ordered, that, the appellant, and all those claiming occupation through him, must vacate the farm. It made a further order, that, the appellant must remove all structures which he had constructed and refill all the trenches that he had dug on the farm.

Aggrieved by the decision of the court a quo, the appellant appealed to this Court on the following grounds of appeal;

“(1) The court a quo erred in finding, that, the requirements for spoliation were satisfied in circumstances where the 1st respondent failed to establish that the appellant was in occupation of subdivision 6 of Braemar Farm Plot thereby despoiling him.

(2) The court a quo erred in granting spoliatory relief in circumstances where there was no evidence before it that the appellant's lease agreement with 2nd respondent related to a farm and not a designated Stand.

(3) The court a quo erred in affording the relief of spoliation in circumstances where there existed material dispute of fact as to which land belonged to the appellant and which land belonged to the respondent.

(4) The court a quo erred in holding, that, the matter was urgent in circumstances where the urgency was self-created by the 1st respondent.

(5) The court a quo erred in determining, that, the appellant had a cause of action against the appellant in circumstances where they were in occupation of different pieces of land.

(6) The court a quo erred in ordering the appellant to pay costs of suit on a higher scale in the absence of evidence on record justifying such a course.”

THE APPELLANT'S SUBMISSIONS ON APPEAL

Counsel for the appellant submitted, that, the appellant had proved, before the court a quo, that, the land that the first respondent alleged to have been dispossessed of by the appellant was non-existent.

Counsel argued, that, the offer letter issued to the first respondent was withdrawn by the fourth respondent, and, as such, he had no legal right to occupy the land.

He further argued, that, the court a quo ignored SI 211/21 that had empowered the appellant to use the land in issue.

Counsel further argued, that, there is evidence on record to show that the fourth respondent had informed the court that the farm no longer existed as it was now Council land.

Counsel submitted, that, the judgment in Commercial Farmers Union & Ors v Minister of Lands and Rural Settlement & Ors 2010 (2) ZLR 576 (S) made it unlawful to seek spoliatory relief for anyone who was in occupation of acquired agricultural land.

He further argued, that, spoliation cannot occur in relation to a thing that does not exist, and, hence, that the court a quo granted relief that was a brutum fulmen.

FIRST RESPONDENT'S SUBMISSIONS ON APPEAL

Counsel for the first respondent submitted, that, the issue of the withdrawal of the offer letter was raised for the first time during the hearing before the court a quo. Neither the fourth respondent nor the appellant had produced a copy of the notice of withdrawal of the offer letter.

Counsel further submitted, that, the matter had to be postponed to allow for the withdrawal letter to be furnished to the court.

He further argued, that, there was no due process to notify the first respondent that there was a withdrawal of the offer letter.

It was counsel's argument, that, the second respondent had no jurisdiction to enter into a lease agreement with the appellant over gazetted agricultural land. He maintained, that, the farm is not under the jurisdiction of the second respondent and the appellant could not legally enter into a lease agreement over that land.

Counsel thus prayed for the dismissal of the appeal.

ISSUE FOR DETERMINATION BEFORE THIS COURT

One issue arises from the grounds of appeal and the submissions made by counsel before this Court. The issue to be determined by this Court is whether or not the court a quo erred in granting the first respondent's application for spoliation.

ANALYSIS

Spoliation proceedings hail from a common law remedy which is meant to discourage members of the public from taking the law into their own hands: see Mswelangubo Farm (Pvt) Ltd & Ors v Kershelmar Farms (Pvt) Ltd & Ors SC80-22; Chiwenga v Mubaiwa SC86-20.

The remedy encourages members of society to follow due process in obtaining or acquiring any res they believe belongs to them in circumstances where they have been unlawfully disposed. The mandement van spolie is therefore a possessory remedy aimed at the restoration of possession where a party is unlawfully deprived of its prior peaceful and undisturbed possession of property.

The facts of each matter determine whether or not spoliation or unlawful disposition has occurred.

It is trite, that, in spoliation proceedings, the lawfulness or otherwise of the possession is not an issue. Spoliation simply requires the restoration of the status quo ante pending the determination of the dispute of right between the parties: see Augustine Banga & Anor v Solomon Zawe & Ors SC54-14.

The essential elements to be fulfilled in an application for spoliation were enunciated in the case of Botha and Another v Barrett 1996 (2) ZLR 73 (S) where GUBBAY CJ…, stated that:

“It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are:

(a) That, the applicant was in peaceful and undisturbed possession of the property; and

(b) That, the respondent deprived him of the possession forcibly or wrongfully against his consent.”

The requirements were further discussed in Streamsleigh Investments (Pvt) Ltd v Autoband (Pvt) Ltd 2014 (1) ZLR 736…,. The court held as follows:

“It has been stated in numerous authorities, that, before an order for mandamus van spolie may be issued, an applicant must establish that he was in peaceful and undisturbed possession and was deprived illicitly.”

See also Nino Bonino v De Lange 1906 TS 120…, where the court, in outlining the scope of the mandamus van spolie, stated as follows:

“It is a fundamental principle, that, no man is allowed to take the law into his own hands. No one is permitted to depose another, forcibly or wrongfully, against his consent of possession of property whether movable or immovable. If he does so, the court will summarily restore the status quo ante and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.”

The above authorities make it clear, that, the underlying principle in an application for spoliation is to quickly restore possession and ward off self-help.

In making such an application, the applicant must show that he was in peaceful and undisturbed possession and that possession was illegally taken without his consent.

I will deal with these requirements seriatim.

WAS THE FIRST RESPONDENT IN PEACEFUL POSSESSION OF THE PROPERTY

There is no doubt, that, the first respondent was peacefully minding his own business on the farm when the appellant started building on his grazing land. He was the holder of an offer letter which had been issued to him by the fourth respondent in 2009. The offer letter gave him the legal right to live and carry out farming operations on the farm. He was carrying out farming operations at that farm for over thirteen (13) years. He had set aside part of the farm for grazing his cattle.

In opposing the application, the appellant submitted, that, the first respondent could not claim that he was in peaceful possession of the farm. He argued that the first respondent's offer letter had been withdrawn, and, as such, he had no legal right to occupy the farm.

It was not in dispute, that, the purported withdrawal of the offer letter was never communicated to the first respondent as the hard copy of the notice was only provided to the court when the matter was heard. In fact, it was not part of the documents filed by the respondents a quo and the court had to adjourn the proceedings to enable the fourth respondent to produce it.

A perusal of the notice of withdrawal reflected, that, it had been issued on 27 May 2022 and was not served on the first respondent.

It was also apparent, that, the notice was issued after the invasion by the appellant on the farm had occurred.

Clearly, therefore, at the time when the appellant was building structures and digging trenches, the first respondent had a valid offer letter.

That effectively disposes of the issue of the first respondent's possession of the farm.

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA

This is an opposed chamber application for condonation of non-compliance with Rule 38(1)(a) and extension of time within which to note an appeal made in terms of Rule 43(3) of the Supreme Court Rules 2018.FACTUAL BACKGROUNDIn August 2022, the applicant filed an urgent chamber application for an interdict against the ...

FACTUAL BACKGROUND

In August 2022, the applicant filed an urgent chamber application for an interdict against the respondents in the High Court, Bulawayo. In the application, the applicant sought to interdict the first and second respondents from carrying out any mining activities on the applicant's mining claims; namely, Berea 17, Berea 18, and Site 232 within certain co-ordinates.

The applicant, on the one hand, and the first and second respondents, on the other, have been involved in a dispute over mining claims boundaries for some time. The dispute has been before the High Court from as far back as March 2014 when the applicant approached the High Court in an urgent chamber application in HC386/14 seeking a provisional order against the respondents.

On 3 March 2014, the High Court granted an order in these terms:

1. The court orders and directs the fourth respondent to engage the Regional Mining Surveyor to conduct and prepare a comprehensive report pertaining to the dispute under Case No.HC386/14.

2. The matter be and is hereby postponed pending production of the report in para 1 above.

The fourth respondent was the Mining Commissioner N.O. (Masvingo Mining District).

On 14 August 2014, the Principal Mining Surveyor, in the Regional Mining Engineer's office, submitted his report to the Chief Government Mining Engineer in compliance with the above court order.

That report noted a number of irregularities in the disputed claims. These included, that, whilst the claim numbers remained the same, the sizes of the claims had been adjusted by enlarging some of them leading to claims encroaching into each other. The report therefore recommended, that, the claims should be adjusted down to the original sizes as at the time of initial registration, and that, in the process, the principle of priority rights should be applied.

A final order was granted in that case, almost 6 years later, on 24 February 2020, in the following terms:

1. The fourth respondent be and is hereby directed to implement the findings and remove encroachments on the disputed claims in terms of the survey report dated 14 August 2014 within 14 days of this order.

On 4 June 2021, the Chief Government Mining Engineer (CGME), M.J. Munodawafa, prepared his report on how the findings of 14 August 2014, as mandated by the court order of 24 February 2020, were to be implemented by reverting to the original claim boundaries as at the time of original registration of the parties respective claims. That report included a map and an explanation of how each claim was to be affected.

The parties were duly advised of the Chief Government Mining Engineer's report on the implementation of the resolution to the dispute by letter dated 31 January 2022.

On 28 August 2022 (or 22 August 2022 as contended by the respondents) the applicant filed another urgent chamber application in the court a quo seeking to interdict the first and second respondents from conducting mining activities on the disputed claims.

The application was opposed by the first and second respondents and judgment thereof was rendered on 20 October 2022 in the presence of counsel for the contesting parties. The applicant was also present when judgment was handed down.

The judgment having been handed down on 20 October 2022, any aggrieved party had 15 days from that date within which to note an appeal in terms of Rule 38(1)(a) of the Supreme Court Rules 2018.

That period lapsed on 10 November 2022, and, by that time, no party had filed or noted an appeal.

When the applicant sought to appeal against that judgment, she was out of time; hence, this application for condonation and extension of time within which to appeal which was issued on 5 December 2022.

In making this application, the applicant alleged, that, judgment in the matter was handed down on 21 October 2022.

Upon requesting the written judgment, the applicant's legal practitioners were initially advised, that, the record was with the judge who had handed down the judgment, and, later on, that the judgment was available on the Integrated Electronic Case Management System (IECMS) platform.

The applicant alleged, that, her legal practitioner's efforts to log in to the system and retrieve the said judgment were futile. On 2 November 2022, efforts were made to obtain a copy of the judgment from the first respondent's legal practitioner but only a part of the judgment was availed.

The applicant further alleged, that, her legal practitioners only managed to get the written judgment on 7 November 2022, which judgment she became aware of on 8 November 2022.

Thereafter, she met her legal practitioners on 12 November 2022 and instructed them to appeal against the court a quo's decision. This was, however, after the expiry of the dies induciae on 10 November 2022, thus, necessitating the filing of this application.

She also alleged, that, her legal practitioners unsuccessfully tried to upload the current application on the Integrated Electronic Case Management System (IECMS) platform on 21 November 2022. The application was only successfully uploaded on the platform on 5 December 2022 due to technical breakdowns within the IECMS platform.

The application is opposed by the first and second respondents.

The first respondent, in its opposing affidavit, contended, that, the applicant did not file her urgent chamber application for an interdict on 28 August 2022 but on 22 August 2022, with the judgment being handed down on 20 October 2022 and not on 21 October, as submitted by the applicant.

The first respondent averred, that, its legal practitioners got a copy of the judgment from the High Court Civil Registry on 21 October, on which date the applicant's legal practitioners could also have obtained the judgment.

It contended, that, there is no evidence to prove the assertion that the applicant was advised by the Registrar of the court a quo that the record was still before the judge who had delivered the judgment.

The first respondent contended, that, the applicant was only trying to file the appeal in light of the fact that the first and second respondents started mining operations in November 2022, which the applicant seeks to stop.

It further contended, that, the applicant is misleading the court by stating, that, her legal practitioners tried to access the judgment on the Integrated Electronic Case Management System (IECMS) platform as she does not have substantive evidence to support her claim. In any case, the matter had not been filed through the IECMS platform.

There was thus no reasonable explanation why they obtained the judgment on 7 November 2022 despite being aware of its existence prior to that date, and that the first respondent's legal practitioner had obtained the judgment a day after the handing down on 20 October 2022.

On the assertion that the first respondent's legal practitioners had given the applicant's legal practitioner a part of the judgment, counsel for the first and second respondents deposed to an affidavit refuting such allegation. He denied being approached by the applicant or her legal practitioners for a copy of the judgment.

On prospects of success of the appeal, the first respondent contended, that, the applicant's intended appeal had no prospects of success as the dispute between the parties was resolved. It thus prayed for the dismissal of the applicant's application.

The second respondent associated itself with the averments of the first respondent.

The two respondents also averred, that, a large chunk of the applicant's founding affidavit comprised inadmissible hearsay.

They contended, that, once that chunk is expunged, there is virtually no explanation for the delay in noting the appeal within the stipulated period.

Equally, there is no explanation for the delay in filing this application upon realizing that she was out of time.

The two respondents contended, that, the applicant's legal practitioner ought to have deposed to an affidavit confirming the challenges alluded to by the applicant in obtaining the judgment and in noting the appeal.

THE LAW

It is trite, that, for an application for condonation for non-compliance with the Rules and for extension of time within which to note an appeal to succeed, the applicant should satisfy the court, that, he or she has a reasonable explanation for the delay and non-compliance with the Rules and also establish that there are prospects of success of the appeal.

This position was reiterated in Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…, wherein GUBBAY CJ set out factors to be considered in such an application as follows:

“(a) That, the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That, there is a reasonable explanation for the delay;

(c) That, the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.”

See also: Kombayi v Berkout 1988 (1) ZLR 53 (SC); Ester Mzite v Damafalls Investments (Pvt) Ltd SC21-18.

It is important to note, that, these factors are not individually decisive on whether the application for condonation for late noting of appeal and extension of time within which to appeal is granted.

They are considered conjunctively.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S), SANDURA JA remarked as follows:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

See also: Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S)…,.

APPLICATION OF THE LAW TO THE FACTS

2. Whether or not the Appeal has good prospects of success

Prospects of success refers to the question of whether the applicant has an arguable case on appeal.

In Essop v S [2016] ZASCA 114, the Court, in defining prospects of success, held that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that, a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but, have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational, basis for the conclusion that there are prospects of success on appeal.”

In casu, the applicant avers that the intended appeal has good prospects of success.

The applicant alleged, that, the court a quo erred by finding that she had no prima facie right entitling her to the relief that she sought. The applicant's counsel submitted, that, in terms of the order granted under HC386/14, which order was based on a survey report dated 14 August 2014, she had been declared the legal owner of the mine in dispute and it had been found that the respondents were encroaching on her legally registered mine.

He further submitted, that, the court a quo mis-interpreted this order in the sense, that, another report, which was issued on 4 June 2021, replaced the one done on 14 August 2014.

I, however, find that the applicant's intended appeal does not enjoy good prospects of success.

Contrary to what the applicant states, the court a quo did not mis-interpret the judgment under case number HC386/14. The report of 4 June 2021 was produced in line with the court's order in HC386/14, and, in terms of that report, the mining areas which the applicant claims ownership over were found to have been irregularly over-pegged.

For instance, the claim Berea 17 was originally 4 hectares in extent, and yet, it now covered an area of 17 hectares, thus encroaching into another miner's claim that had been registered prior to the expansion.

The same was observed of claims Berea 18 and Site 232.

In compliance with the final court order of 24 February 2020, the recommendations of the Chief Government Mining Engineer, dated 4 June 2021, were availed to the parties on 31 January 2022 and the necessary adjustments were effected by the fourth respondent under case number HC386/14 on the disputed claims.

These recommendations were not challenged.

The net effect was, that, the mining claims were restored to their original positions to eliminate the dispute. This is what was done in the implementation of the court a quo's decision in HC386/14. The decision, and its implementation, did not affect ownership of the claims, but, simply, reduced the claims to their original sizes as at the time of original registration.

In the circumstances, there are no prospects of success on appeal. If anything, the applicant is simply intent on prolonging a dispute that was resolutely resolved. This will inevitably prejudice the respondents who are eager to comply with the adjusted claims and proceed with their mining activities.

This is a case where the applicant ought to be reminded of the need for finality to litigation.

As aptly noted by McNALLY JA in Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.:

“It is the policy of the law, that, there should be finality in litigation.

On the other hand, one does not want to do injustice to litigants. But, it must be observed, that, in recent years, applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays, either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute. The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt; roughly translated, the law will help the vigilant but not the sluggard.”…,.

The applicant lamentably failed to justify the need to exercise my discretion in favour of granting her condonation and extension of time within which to note an appeal.

SC61-23 : CHIDO MATEWA (as Executrix Dative of the Estate Late Judith Matewa) vs CITY OF HARARE
Ruled By: BHUNU JA, MUSAKWA JA and MWAYERA JA

This is an appeal against the whole judgment of the Administrative Court (the court a quo) in which it dismissed the appellant's application for review.FACTUAL BACKGROUNDThe appellant is the executrix dative of the late Judith Matewa's estate (the deceased). The respondent is responsible for urban planning and development.In 1987, the ...

This is an appeal against the whole judgment of the Administrative Court (the court a quo) in which it dismissed the appellant's application for review.

FACTUAL BACKGROUND

The appellant is the executrix dative of the late Judith Matewa's estate (the deceased). The respondent is responsible for urban planning and development.

In 1987, the late Stephen Matewa, who was the deceased's husband, acquired Stand Number 431 Mandara Township of subdivision A of Lot 2 of Mandara of The Grange. He was granted a subdivision permit SD/241A by the respondent. The subdivision resulted in the creation of Stand Numbers 730, 731, 732 and 733.

Stand Number 733 was to be used for a road servitude.

The sub-division was done under ten conditions with clause 7 thereof providing that Stand 733 should be transferred to the City of Harare for road purposes.

Clause 5 of the conditions of permit SD/421A provided, that, Stephen Matewa was to construct an asphalt road on Stand 733, at his own cost, which would eventually be handed over to the respondent.

On 7 October 1987, the late Stephen Matewa wrote a letter to the respondent in which he stated that the construction of the road on Stand 733 was beyond his financial capability. When Stephen Matewa passed on, in 1993, part of his estate was distributed except Stand 733 which was reserved for road construction.

Stephen Matewa was survived by his wife, Judith Matewa, who inherited his estate - excluding Stand 733.

Later, Judith Matewa passed on.

Upon Judith Matewa's death, the appellant was appointed the executrix dative to Judith's estate hence her interest in this matter.

It is alleged by the appellant, that, the issue of the road construction was silent from 1987 until June 2021 when the respondent, without notice and consent of the appellant, began preparations to construct a road on Stand Number 733.

The appellant felt, that, the respondent's action was prejudicial to the estate of the late Judith Matewa as the land was private property. In her view, before any developments could be carried out on the land, she ought to have been consulted and her consent should have been secured.

The appellant's allegations are contrary to a letter dated 7 October 1987 written by Stephen Matewa.

In that letter, Stephen Matewa wrote to the respondent admitting that he was aware that he was expected to construct two roads as part of the respondent's condition for the subdivision permit and that the cost of constructing the roads was beyond his means. In addition, Stephen Matewa suggested to the respondent, that, the respondent construct the roads itself for the benefit of the community. Further to that, he offered to sell two of his plots and to give 12 and a half per cent of the proceeds thereof to the respondent.

In response to Stephen Matewa's letter, the respondent's Director of Works (the Director) wrote, that, the respondent was unable to assist because the roads were on private property. Further to that, the Director stated, that, Stephen Matewa had to meet the costs of construction. Upon completion, he was to hand over the roads to Harare City Council. The Director concluded by stating, that, any future development of the land had to comply with the requirements of the permit.

In June 2021, the respondent began preparations for the construction of the road on Stand Number 733.

The appellant made an application in the court a quo seeking a review of the respondent's decision to construct the road as she believed that this constituted a gross irregularity. She vehemently contested the decision by the respondent as she was of the view, that, the respondent had encroached onto private property. The appellant argued, that, the respondent's conduct, in acquiring the property without communicating or reaching a settlement with the owner, was improper.

Per contra, the respondent submitted that Stand 733 was a road servitude and belonged to it through Deed of Transfer 5994/87.

In dismissing the application, the court a quo found, that, the appellant laboured under the mis-apprehension that Stand 733 was part of Judith Matewa's estate.

Aggrieved by this decision, the appellant lodged the current appeal on the following grounds:

GROUNDS OF APPEAL

1. The court a quo erred in holding that the issue for determination was ownership of Stand 733, Mandara Township, Harare.

2. The court a quo grossly erred in not dealing with any of the grounds of review raised by the appellant.

Before this Court, the relief sought was as follows:

RELIEF SOUGHT

WHEREFORE, the appellant prays that:

1. The appeal be allowed with costs.

2. The judgment of the court a quo, in case number ACC18/21, be and is hereby set aside.

3. The matter under ACC18/21 be and is hereby remitted to the court a quo for determination before a different judge.

APPELLANT'S SUBMISSIONS

The appellant submitted, that, Stand 733 constitutes private property. She submitted, that, her late father had approached the respondent, in 1987, requesting it to help in the construction of the road and the respondent declined stating it was private property. She further submitted, that, the construction of the road will compromise developments that have been made on the property.

RESPONDENT'S SUBMISSIONS

Counsel for the respondent argued, that, the property in question was duly transferred to the respondent in terms of the law. He further argued that the respondent, as the administrative authority, acted in terms of the Regional, Town and Country Planning Act [Chapter 29:12]. According to counsel for the respondent, as long as the subdivision permit remains extant, there is no way the land in question can revert to the appellant.

ISSUES FOR DETERMINATION

1. Whether or not the court a quo erred in resolving the matter on the basis of ownership of Stand 733 Mandara Township, Harare.

2. Whether or not the court a quo did not deal with the grounds for review that were raised by the appellant.

APPLICATION OF THE LAW TO THE FACTS

1. Whether or not the court erred in resolving the matter on the basis of ownership of Stand 733 Mandara Township, Harare

It was Ms Matewa's argument, that, the construction of the road on the Stand remains the obligation of the appellant, hence, the respondent cannot rescind the obligation without negotiating with the appellant and compensating for investments done on the property. She is of the view, that, the Stand or property in question is private property.

It is apparent from the permit that Stand 733 is no longer private property.

This development came about when the deceased applied for a subdivision of Stand 431 Mandara Township, Harare. Clause 7 of the permit that created the Stand provides as follows:

“Stand 733 shall be transferred to the City of Harare for road purposes.”

The permit is quite clear, that, Stand 733 belongs to Harare City Council. The permit does not provide for any compensation to the appellant upon the completion of the road.

It is inconceivable, that, the appellant could aver that the respondent began preparations for the construction of the road without negotiating with the appellant and compensating for investments done on the property.

Road construction was part of the permit agreement and was done with no provision that the late Stephen Matewa would be compensated.

To suggest that compensation should be made would be improper.

The court a quo cannot be faulted for finding, that, Stand Number 733 is not private land; regard being had to clause 7 of the permit that created the Stand. Stand 733 is not part of the late Stephen Matewa's estate as it is a road servitude in favour of the respondent.

The plan and diagram on p20 of the appeal record stipulates, that, the land which is described as a road shall be transferred to the City of Harare for road purposes.

The road reservation is still extant as it was never set aside.

Hence, the respondent, as the owner of the property in question, was not obliged to consult the appellant first before making preparations for constructing a road.

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare, dated 1 March 2022, setting aside the second appellant's decision to deny the respondent leave to sue the first appellant and granting the respondent leave, in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] (the Act), to institute proceedings against the first appellant for damages for breach of contract.

Aggrieved by the decision of the court a quo, the appellants have noted the present appeal for relief.

THE PARTIES

The first appellant is a company under administration pursuant to the provisions of the Reconstruction of State-Indebted Insolvent Companies Act. The second appellant is the administrator to the first appellant.

In terms of the State Indebted Insolvent Companies Act, a company under reconstruction, such as the appellant, cannot be sued without leave granted by its administrator.

The third respondent is a company duly registered in terms of the laws of Zimbabwe.

FACTUAL BACKGROUND

On 17 August 2017, the first appellant and the respondent entered into an agreement in terms of which the respondent was to hire out to the first appellant certain equipment for use at its mining operations. It was a term of the agreement, that, the first appellant would pay the respondent the sum of US$220,000 as mobilisation and demobilisation fees for the equipment. It was a further term of the agreement, that, in the event of termination by either party, fourteen (14) days written notice shall be given to the defaulting party, calling upon it to remedy its breach within those fourteen (14) days failing which the agreement would be cancelled by the aggrieved party.

On 31 January 2018, the first appellant addressed to the respondent a letter headed “Notice to terminate - equipment hire agreement” wherein it notified the respondent, that, it intended to terminate the agreement with effect from 15 February 2018. The first appellant alleged, that, the respondent had breached the agreement in a material way in that “since their commissioning to date, none of the hired excavators has been able to achieve the agreed monthly production target and none has been able to achieve 85% availability.”

The respondent's view was that the first appellant's letter of termination did not comply with the provisions of the termination clause of the agreement. It therefore considered such termination to be unlawful.

The respondent contended, that, as a result, it suffered damages in the sum of US$4,000,000 representing the full contract price it would have realized had the contract run its full course.

It also contended, that, the first appellant owed it the sum of US$220,000 being the mobilisation fees.

By the time of this fall out, the first appellant had been placed under reconstruction in terms of the State Indebted Insolvent Companies Act and the second appellant was appointed as its administrator.

The respondent wrote to the second appellant seeking leave to sue the first appellant.

Leave to sue was denied for the reason, inter alia, that, the respondent's case had no merit and that, instead, it was the first appellant who should be suing the respondent whom it had overpaid.

Aggrieved by the stance taken by the second appellant, to deny it leave to sue the first appellant, the respondent approached the court a quo seeking review of the second appellant's decision. It listed grounds for review as follows:

“(a) Gross unreasonableness of the decision arrived at.

(b) Unfair withholding of leave to sue.

(c) Bias or interest in the cause.”

After a full hearing, the court a quo granted the application for review and issued the following order:

“1. The second respondent's decision of 29 March 2021, denying the applicant leave to sue the first respondent be and is hereby set aside.

2. The applicant is granted leave, in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27], to institute proceedings against the first respondent for damages for breach of contract and unpaid mobilisation costs.

3. Each party shall bear its own costs.”

It is that order that is the subject of this appeal.

GROUNDS OF APPEAL

The grounds of appeal are as follows:

“1. The court a quo erred in granting the respondent 'leave to sue' when such relief cannot be granted by a court acting in accordance with section 4 of the Administrative Justice Act [Chapter 10:28].

2. Furthermore, the court a quo misdirected itself setting aside second appellant's administrative decision in circumstances where the said court makes no finding of illegality, gross impropriety, manifest irrationality, arbitrariness, or a failure by the administrative authority to apply his mind to the facts of the matter.

3. The court a quo also erred in enquiring into the merit of the disputation inter parties instead of evaluating whether, in the circumstances, the respondent was entitled to negation of the moratorium enjoyable by the first appellant under section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27].

4. Concomitant to the aforementioned ground, the court a quo further erred in granting the respondent unconditional leave to institute proceedings against the first appellant in circumstances where the putative claim was not cognizable at law.”

RELIEF SOUGHT

The appellants seek the following relief:

“1. That, the instant appeal succeeds with costs.

2. That, the order of the court a quo be set aside and substituted with the following:

(i) The application is dismissed.

(ii) The applicant shall pay the respondent's costs.”

THE ISSUES

The grounds of appeal raise the following issues:

1. Whether or not it was competent for the court a quo to grant leave to sue acting in accordance with section 4 of the Administrative Justice Act [Chapter 10:28] (AJA).

2. Whether or not the court a quo erred in setting aside the second appellant's decision in the absence of a finding of illegality, gross impropriety, irrationality, arbitrariness, or a failure by the administrator to apply his mind to the facts of the matter.

3. Whether or not the court a quo erred in enquiring into the merits of the matter instead of determining whether, in the circumstances, it was proper to protect the first appellant against the suit as provided for by the Reconstruction of State Indebted Insolvent Companies Act.

4. Whether or not the putative claim was recognized at law.

ANALYSIS

The appellants submit, that, the court a quo should not have set aside the second appellant's decision in the absence of a finding of illegality, gross impropriety, irrationality, arbitrariness, or failure by the administrative authority to apply his mind to the facts of the matter.

It is further submitted, that, the court a quo erred in enquiring into the merit of the matter instead of determining whether, in the circumstances, it was proper to protect the first appellant against the suit as provided for by the Reconstruction of State Indebted Insolvent Companies Act.

In deciding to decline leave to sue, the second appellant considered that there was no merit in the respondent's intended suit.

He held, for instance, that, the respondent had, on the whole, been overpaid in respect of the mobilisation fees and advance payments. However, the second appellant did not, through evidence, demonstrate the alleged over payments and the extent of such over-payment. Any overpayment should surely have been proved by reliance on proof of payment - such as receipts.

Further, as correctly observed by the court a quo, the second respondent failed to apply his mind to the question whether the agreement had been properly terminated.

In terms of the agreement, a party seeking to terminate the same must give fourteen (14) days notice to the defaulting party, calling upon it to remedy the alleged breach. In the event that the defaulting party fails to remedy the breach within the notice period, and only then, is the aggrieved party entitled to terminate the agreement.

In casu, the first appellant addressed a letter of notice to terminate. The same letter also served as the actual letter of termination. As observed by the court a quo:

“The termination of the agreement could only have been done pursuant to a notice to remedy the alleged breaches. I do not believe that the intention of the parties was that the same notification letter served as the termination letter. The court's view is that the two processes cannot be combined.”

The court a quo also noted, that, attached to the second appellant's report was an internal report highlighting the defects found on the respondent's equipment. There was no indication whether that report had been shared with the respondent, and, if so, what the respondent's comments thereon were.

In other words, there was no evidence that the respondent had been heard on that point, contrary to the “audi alteram partem” rule.

The inconsistencies in the second appellant's reasons for declining the respondent's request for leave to sue the first appellant are glaring. The court a quo correctly noted these inconsistencies and granted the respondent's application for review.

The court a quo did not make the traditional finding of illegality, gross impropriety, irrationality, arbitrariness, or failure on the part of the second appellant to apply his mind to the facts before him.

That, on its own, does not constitute a misdirection, given the circumstances of this case.

The court a quo was of the view, that, the application for leave to sue had not been properly dealt with. It gave reasons for that view based on the papers before it. It described the second appellant's decision as being “contradictory” and “inconsistent” with the facts before it. It observed, that, certain evidence had not been shared with the respondent, who could not have been heard on that point. It also found, that, some critical positions had been taken in the absence of supporting evidence.

In short, the court a quo found that the second appellant acted irrationally and failed to apply his mind to the facts before it.

The second appellant, by not hearing the respondent on aspects of the evidence placed before him by the first appellant, breached a fundamental rule of natural justice, the need to hear both parties to the dispute before a decision is taken.

The decision of the court a quo cannot be impugned. On the whole, the second appellant's decision was grossly irrational.

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

The four appeals are against parts of the High Court's Judgment HB157-23 (“the court a quo”) which was handed down on 27 July 2023.

The appeals are against the decision of the court a quo setting aside the thirteenth respondent's decision to accept the appellants nomination papers as candidates for the impending harmonised general elections.

The four appeals SCB59/23, SCB60/23, SCB61/23 and SCB62/23 were consolidated and heard by this Court on 2 August 2023.

On 3 August 2023, we issued the following order:

1. The appeals be and are hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted as follows:

'The applications be and are hereby dismissed with costs.'

3. The reasons for the court's decision will follow in due course.”

We undertook to furnish reasons for our disposition. These are they.

FACTUAL BACKGROUND

On 21 June 2023, the fourteenth respondent constituted a Nomination Court to receive submissions for the nominations of candidates for the election of constituency members to the National Assembly for the Bulawayo Metropolitan Province. This was in accordance with Proclamation 4 of 2023, gazetted under S.I. 85 of 2023 by the President.

The determinant facts of this appeal emanate from the events that transpired on 21 June 2023 at the Nomination Court.

The appellants appeared before the Nomination Court for their nominations as candidates for elections scheduled for 23 August 2023. The nomination officer accepted their nominations and registered them as candidates.

The respondents, except for the thirteenth to fifteenth respondents, applied to the court a quo for the setting aside of the appellants (respondents a quo) nominations. They alleged, that, their nomination papers were in disarray. They further alleged that when the appellants lodged their papers, before 4pm, they were advised to correct them. The respondents further alleged, that, the appellants thereafter filed their corrected papers out of time, after 4pm, in violation of the Electoral Act [Chapter 2:13] (“the Act”). They further alleged that, by 4pm, the appellants were outside the courtroom frantically trying to rectify their nomination papers. They further asserted, that, such nominations were null and void.

In response, some of the appellants asserted that their papers were in order and that they lodged them with the nomination officer who accepted them before 4pm. The other appellants stated, that, their papers had errors which were pointed out by the Nomination Court and were corrected and filed with the nomination officer before 4pm. Some of the appellants maintained, that, they were in court with their corrected papers which were accepted before 4pm.

In his opposing affidavit, the 13th respondent, Innocent Ncube, in his official capacity as the Provincial Elections Officer, and, for and on behalf of the Zimbabwe Electoral Commission (“ZEC”) and the Chairperson of ZEC, indicated that the nomination papers were procedurally and timeously lodged between 10am and 4pm. He also pointed out that the designated courtroom could only accommodate 12 to 15 people at any time. During the proceedings, at 3:55pm, he announced that all prospective candidates who were queuing outside because of his administrative decision (to allow 12 to 15 people at any time) should hand over their nomination papers to the police officer as the court was due to close at 4pm. The police officer collected all the nomination papers and handed them over to the thirteenth respondent before 4pm. Thereafter, the nomination officer would call in those whose papers he would be processing.

In respect of the form, Annexure “B” relied upon by the applicants a quo, he pointed out that it was a register in which the secretary captured the times when the nomination forms were inputted into the Zimbabwe Electoral Commission's (ZEC) records. In other words, he stated that the form was for the purpose of data capture into ZEC's system and not a record reflective of the time when the nomination papers were lodged with the nomination officer.

On the basis of the above facts, the court a quo found for the applicants a quo (now respondents). It held that the appellants nominations had been lodged after the stipulated cut-off time of 4pm. It, therefore, declared the nominations of the appellants as null and void.

PROCEEDINGS BEFORE THE COURT A QUO

The parties made submissions on both the preliminary points and the merits before the court a quo, after which the court a quo rendered a composite judgment for all the applications, which had been consolidated by consent.

Counsel for the thirteenth, fourteenth, and fifteenth respondents raised a preliminary point, that, the court a quo had no jurisdiction. He submitted that all the applications ought to have been filed in the Electoral Court.

Counsel for the first to the sixth appellants associated himself with the submissions made by counsel for the thirteenth, fourteenth, and fifteenth respondents on jurisdiction.

He further submitted, that, there was no application before the court because the first to twelfth respondents had irregularly truncated the dies induciae. Counsel also argued that the respondents had no locus standi and that the applications were based on hearsay evidence. He submitted that the first to twelfth respondents had not attended the Nomination Court but sought to rely on social media reports and a document, Annexure “B” which was differently interpreted by the Electoral Commission.

He also argued in limine, that, there were material disputes of fact that could not be resolved on paper.

He further submitted, that, there was a material non-joinder of Citizens Coalition for Change party (CCC) which had sponsored some of the appellants. In support of this assertion, he contended that the party would be prejudiced in obtaining proportional representation seats.

Finally, on preliminary points, counsel submitted that the applications were an abuse of the court process.

Counsel for the seventh to twelfth appellants in SCB59/23 associated himself with the preliminary points raised by counsel for the thirteenth, fourteenth, and fifteenth respondents and counsel for the first to the sixth appellants. He emphasised that the applications were based on hearsay evidence and that only the Electoral Court had exclusive jurisdiction to hear the applications.

Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel who addressed the court before him.

Counsel for the appellants in SCB60/23 also associated himself with submissions that had been made by counsel before him.

Per contra, counsel for the first to twelfth respondents opposed all the preliminary points raised, characterising them as meritless.

He relied on the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66-21 for the proposition, that, the court had jurisdiction. Regarding the validity of the applications, he submitted that the parties had attended a case management meeting and agreed on truncating the dies induciae.

On locus standi, he submitted that the respondents had a legitimate interest in the nomination proceedings because they had a direct and substantial interest in the outcome of the process. In relation to the applications being based on hearsay evidence, he contended, that, the respondents relied on public information and that there was Annexure “B” which supported their position. He further submitted that there were no material disputes of fact. A robust approach would resolve the matter.

Counsel for the first to twelfth respondents further submitted, that, the applications a quo were not an abuse of the court process given the substantial interests which the respondents had in the nomination of candidates for the constituencies where they were registered voters.

Finally, in relation to the non-joinder of Citizens Coalition for Change party (CCC) he argued that the party had no direct and substantial interest in the acceptance of the nomination papers.

The court a quo deferred the determination of the preliminary points to the end of the hearing and sought to be addressed on the merits.

Counsel for the first to twelfth respondents submitted, in support of the applications, that, the nominations ought to be nullified since they were accepted after 4pm in defiance of section 46 of the Electoral Act [Chapter 2:13]. He further submitted that the nomination officer unlawfully opened the court to specifically allow the affected candidates to present their papers out of time. He argued that the police officer who collected the papers was not a nomination officer. Annexure “B” confirmed that the nomination papers were filed out of time.

Counsel for the thirteenth to fifteenth respondents submitted that Annexure “B” was not a document reflective of the times when the nomination papers were lodged with the nominations officer. Further, he submitted, that, the nomination papers were submitted and received before the cut-off time of 4pm on the day in question. He emphasised that the officers of the Zimbabwe Electoral Commission (ZEC) who placed evidence before the court, through their supporting affidavits, spelt out that no nomination papers were submitted after 4pm. Finally, he submitted that there was no breach of section 46 of the Electoral Act.

Counsel for the first to the sixth appellants in SCB59/23 submitted, that, the respondents were relying on hearsay evidence that the social media was awash with; information that the appellants nomination papers were in disarray and filed out of time. He pointed out that the appellants filed their papers in compliance with section 46 of the Electoral Act before 1600 hours. Further, in opposing the allegations, he relied on the Zimbabwe Electoral Commission (ZEC) and the nomination officer's evidence that Annexure “B” was not a document indicative of the lodgement of nomination papers, but, that the time reflected on it related to the time of data capture.

Counsel for the seventh to twelfth appellants in SCB59/23 was also critical of Annexure “B” and he agreed with submissions by counsel for the first to the sixth appellants in SCB59/23 on it. He submitted that the respondents were relying on hearsay evidence and that they failed to discharge the onus and to prove the factual basis of their allegations. Their evidence was speculative as they relied on social media assertions.

Counsel for the appellants in SCB60/23 associated himself with submissions made by counsel who addressed the court before him. He emphasised, that, his clients submitted their nomination papers on time. He further added that the collection of nomination papers by the police officer, at the instruction of the nomination officer, did not amount to contravening section 46 of the Electoral Act.

Counsel for the first to fourth appellants in SCB61/23 associated themselves with counsel for the other appellants submissions.

DETERMINATION OF THE COURT A QUO

The court a quo gave a composite judgment. It dismissed all the preliminary points and made a finding that Annexure “B” was a document prepared by a Zimbabwe Electoral Commission (ZEC) official and that it spoke for itself, that, the nomination papers were submitted after 4pm. It found that the submission of papers from the appellants, through the police officer, was unlawful. It thus declared the nominations as null and void and issued the following order:

“IT IS DECLARED THAT:

1. That, the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of section 46(7) & (8) of the Electoral Act [Chapter 2:13].

2. That, the decision of the 1st Respondent, sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023, to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.

ACCORDINGLY, IT IS ORDERED THAT:

3. 1st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.

4. Respondents shall jointly and severally pay the costs of suit.

OBERT MANDUNA; ERECK GONO; DOUGLAS NCUBE; GIFT SIZIVA; SANPOULUS MAPLANKA; PRINCE DUBE; NQOBIZITHA NDLOVU; DESMOND MAKAZA; BAJILA COLLINS DESCENT; SICHELESILE MAHLANGU; DESIRE MOYO; ALELAIDE MHLANGA; NOMPILO BHEBHE; SURRENDER KAPOIKILU; RAPHAEL PASHOR SIBANDA; NTANDOYENKOSI MINENHLE GUMEDE; FRANK MHLANGA.

5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.

6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.”...,.

SUBMISSIONS BEFORE THIS COURT

(a) Preliminary Issues

Counsel for the first to the twelfth respondents raised three preliminary issues....,.

The second point raised was that the appeals were fatally defective because the appellants appealed against the whole judgment instead of the parts that affected them.

He further pointed out that some of the appeals did not cite some of his clients who were applicants before the court a quo. This was particularly argued to be the case with SCB60/23. In his view, such an omission denied parties who were before the High Court the right of audience. It was contended, that, the appeals could not be valid appeals if they left out interested parties....,.

Eventually, all parties agreed that in light of the decision of the Constitutional Court in the case of Chamisa v Mnangagwa CC21-19 it was not necessary to dwell on the preliminary issues. Moreso considering the role of the court in matters of public importance as set out in the cited case.

Counsel for the first to twelfth respondents abandoned the preliminary points and accepted that the appeal be determined on the merits.

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY
Ruled By: CHITAKUNYE JA

This is an opposed chamber application for condonation for late filing of an application for leave to appeal and leave to appeal in terms of Rule 60 and 61 of the Supreme Court Rules 2018.At the conclusion of hearing on 31 August 2023, I gave an ex-tempore judgment dismissing the ...

This is an opposed chamber application for condonation for late filing of an application for leave to appeal and leave to appeal in terms of Rule 60 and 61 of the Supreme Court Rules 2018.

At the conclusion of hearing on 31 August 2023, I gave an ex-tempore judgment dismissing the application with costs. The applicant has requested for the written reasons for the decision. These are they.

THE FACTS

The applicant was formerly employed by the respondent as a lecturer. In 2018, he was charged with four counts of misconduct. The disciplinary proceedings were conducted in terms of the Labour (National Employment Code of Conduct) Regulations 2006, Statutory Instrument 15 of 2006.

He was duly convicted of two of the counts and acquitted of the other two counts by an internal Disciplinary Authority.

Dissatisfied with the internal Disciplinary Authority's determination on the two counts upon which he was convicted and dismissed from employment, he appealed to an internal Appeals Committee which upheld the Disciplinary Authority's decision.

Further dissatisfied by the decision of the Appeals Committee, he referred the matter to a Labour Officer and eventually to the Labour Court.

The Labour Court's decision was not to his satisfaction, hence, he appealed to this Court in SC236/20.

On 13 November 2020, this Court issued an order, by consent, setting aside the proceedings that had been undertaken before the Labour Officer and the Labour Court as such proceedings were held to have been nullities.

The applicant thereafter filed a new appeal to the Labour Court against the determination of the internal Disciplinary Authority and the upholding of that decision by the internal Appeals Committee.

On 8 February 2022, the Labour Court dismissed the applicant's appeal in an ex tempore judgement. Upon his request, written reasons for judgment were provided on 11 March 2022.

The applicant belatedly sought leave to appeal, but, that initial application was struck off the roll as he was out of time and had not sought condonation for the late filing of such an application.

The applicant subsequently filed an application for condonation for failure to seek leave within the period prescribed by the Rules and for leave to appeal in the Labour Court on 23 June 2022.

That application was dismissed by the Labour Court on 6 June 2023.

In terms of the proviso to Rule 60(2) of the Supreme Court Rules 2018, the applicant had ten (10) days within which to approach this Court for leave to appeal against the Labour Court's judgment from the date of the dismissal of his application by the Labour Court.

The applicant's initial application, in SC378/23, was fatally defective and was struck off the roll on 27 June 2023. The current application was filed on 8 August 2023 which was way outside the period by which such an application ought to have been filed.

It is in view of this that the applicant seeks condonation for failure to file the application for leave to appeal within the prescribed period and for leave to appeal.

The application is opposed.

In its opposition, the respondent contended, inter alia, that, the delay is inordinate and that there is no reasonable explanation for the delay. It also contended, that, there were no prospects of success on appeal. It thus prayed for the dismissal of the application.

THE LAW

It is trite that in an application for condonation for non-compliance with the Rules, an applicant is obligated to demonstrate to the court that he or she has good cause for the grant of the relief. The applicant is required to, inter alia, provide a reasonable explanation for the delay and for non-compliance with the Rules and also to show that there are good prospects of success on appeal.

In Forestry Commission v Moyo 1997 (1) ZLR 254 (S) GUBBAY CJ set out factors to be considered in such an application as including:

“(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(c) That the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.”

See also Machaya v Munyambi SC04-05; Easter Mzite v Damafalls Investments (Pvt) Ltd SC21-18.

These factors are not individually decisive on whether the application for condonation for non-compliance with the Rules is granted. They are considered cumulatively.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S), SANDURA JA remarked as follows:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

See also: Director of Civil Aviation v Hall 1990 (2) ZLR 354 (SC)…,.

ISSUES FOR DETERMINATION

1. Extent of the delay and whether the explanation for such delay is reasonable.

2. Whether there are good prospects of success in the envisaged appeal.

3. Whether there is prejudice to be suffered by the other party if condonation is granted.

APPLICATION OF THE LAW TO THE FACTS

2. Prospects of success in the envisaged appeal

The applicant's grounds of appeal mostly allude to a dissatisfaction with the court a quo's findings leading to the dismissal of his appeal. Some of the grounds are on findings of fact and not on questions of law.

It would appear that the need to clearly raise grounds of appeal on questions of law were lost in his gripe with the court a quo's decision.

In Sheckem Ngazimbi v Murowa Diamonds (Pvt) Ltd SC27-13, this Court explained the purpose of an application for leave to appeal as follows:

“The purpose of requiring leave, before noting an appeal, to be given by the President of the Labour Court, or, upon refusal, by the judge of the Supreme Court, in terms of section 92F(2) of the Act, is to prevent appeals not based on questions of law getting to the Supreme Court. The right to appeal given by section 92F(1) is a limited right. The exercise of it is made conditional upon leave being granted.”

The question is thus whether there are prospects of success in those grounds that relate to questions of law.

Prospects of success refer to the question of whether the applicant has an arguable case on appeal.

In Essop v S [2016] ZASCA 114, the court, in defining prospects of success, held that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that, a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”…,.

In Chikurunhe v Zimbabwe Financial Holdings SC10-08, the Court held that:

“The party seeking leave must show, inter alia, that he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”

In casu, the applicant intends to appeal against the judgment of the court a quo on the basis, that, the court erred by failing to uphold his grounds of appeal against the lower tribunal's disciplinary process that resulted in his being dismissed from employment, which he alleged was flawed.

The applicant avers, that, his right to be heard or to respond to the investigations, the right to an informed response, and the right to meaningful legal representation were violated.

The applicant also claims, that, he was denied the right to defend himself, the right to call witnesses, and the right to request documents with which he could defend the charges against him.

The court a quo held, that, upon his suspension from work being lifted, the applicant failed to report for duty.

The court further held, that, the applicant's legal practitioner walked out of the hearing and failed to challenge the evidence against the applicant, hence, the applicant could not blame anyone for that.

In Zesa Enterprises (Pvt) Ltd v Stevawo SC29-17…, it was held that:

“The right to be heard is a fundamental cornerstone of our law. It is a fundamental principle of the rules of natural justice forming the backbone of a fair hearing enshrined in our Constitution as read with the Administrative Justice Act [Chapter 10:28]. The maxim that no one shall be condemned without being heard holds sway in our law.”

In that case, the Court went on to qualify the right to be heard as follows:

“The right to be heard is, however, not an absolute immutable rule of law. It can be waived or forfeited where the beneficiary is at fault….,. Professor G. Feltoe in his booklet, A Basic Introduction to The Administrative Law of Zimbabwe, states at p18, that, the principle of natural justice can be waived when he says:

'Clearly, when a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice, and he declines to avail himself of this right, then, he has waived his right.'”

Further, in David Moyo v Rural Electrification Agency SC04-14 ZIYAMBI JA had this to say concerning an employee who had failed to attend a disciplinary hearing despite knowledge thereof:

“In our view, the appellant, by deliberately absenting himself, without leave, from the hearing, waived his right to challenge the conduct of the disciplinary proceedings.”

In casu, it is common cause that the applicant was suspended from employment after which the suspension was lifted within three days of the date of suspension. The applicant was thereby required to report for duty.

The letter lifting the suspension was served at his residential address which he had provided.

He did not report for duty, hence, disciplinary proceedings were instituted.

The applicant was notified of the disciplinary proceedings against him and the date of the hearing. Whilst the applicant was not present in person, as he averred that he had left for China upon being suspended, he was legally represented by a legal practitioner of his choice.

It is not disputed that the appellant left for China without the respondent's authority.

The applicant submitted a written response to all the charges against him. His legal practitioner…, duly attended the disciplinary hearing whereat he presented the applicant's written response to all the charges and this was accepted by the disciplinary authority.

However, when the legal practitioner's request for a 7 months long postponement of the hearing was rejected, the legal practitioner left the hearing before it ended on the basis, that, he had no further instructions from his client.

As a result, the applicant failed to challenge the evidence placed before the disciplinary authority.

In the circumstances, it cannot be said that the applicant was denied the right to be heard and to defend himself. Such right was accorded to him, and subsequently waived by his legal practitioner when he walked out of the disciplinary hearing....,.

His legal practitioner presented his written response to the charges. Unfortunately, the legal practitioner, thereafter, opted to walk out of the hearing.

The opportunity to argue the applicant's case, and even cross examine witnesses, was there for the taking, but, he opted to leave. Clearly, this is a situation where the applicant was afforded what he now craves for but opted not to take it at the time.

It cannot therefore be said, that, he was denied an opportunity to participate in the disciplinary proceedings.

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Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: GARWE JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC48-15 : ATTORNEY-GENERAL vs LEOPOLD MUDISI and PATROBS DUBE and DERECK CHARAMBA and MUSEKIWA MBANJE and MEHLULI TSHUMA
Ruled By: MALABA DCJ, GARWE JA and PATEL JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

HH539-15 : TATENDA MUKAMBA and ODWELL STANLEY vs UNIBAX INVESTMENTS T/A ARUNDEL VILLAGE SPAR
Ruled By: MATANDA-MOYO J

SC12-18 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO
Ruled By: BHUNU JA

HB86-10 : ELVIS NDLOVU vs HIGHER LEARNING CENTRE
Ruled By: MATHONSI J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
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SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA

SC61-23 : CHIDO MATEWA (as Executrix Dative of the Estate Late Judith Matewa) vs CITY OF HARARE
Ruled By: BHUNU JA, MUSAKWA JA and MWAYERA JA

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY
Ruled By: CHITAKUNYE JA

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Law Portal Zimbabwe

Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS Ruled By: GARWE JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC48-15 : ATTORNEY-GENERAL vs LEOPOLD MUDISI and PATROBS DUBE and DERECK CHARAMBA and MUSEKIWA MBANJE and MEHLULI TSHUMA Ruled By: MALABA DCJ, GARWE JA and PATEL JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA Ruled By: PATEL J

HH539-15 : TATENDA MUKAMBA and ODWELL STANLEY vs UNIBAX INVESTMENTS T/A ARUNDEL VILLAGE SPAR Ruled By: MATANDA-MOYO J

SC12-18 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO Ruled By: BHUNU JA

HB86-10 : ELVIS NDLOVU vs HIGHER LEARNING CENTRE Ruled By: MATHONSI J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA Ruled By: MATHONSI J

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA Ruled By: CHITAKUNYE JA

SC61-23 : CHIDO MATEWA (as Executrix Dative of the Estate Late Judith Matewa) vs CITY OF HARARE Ruled By: BHUNU JA, MUSAKWA JA and MWAYERA JA

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY Ruled By: CHITAKUNYE JA

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Law Portal
Zimbabwe

SC73-19 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: GARWE JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC48-15 : ATTORNEY-GENERAL vs LEOPOLD MUDISI and PATROBS DUBE and DERECK CHARAMBA and MUSEKIWA MBANJE and MEHLULI TSHUMA
Ruled By: MALABA DCJ, GARWE JA and PATEL JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

HH539-15 : TATENDA MUKAMBA and ODWELL STANLEY vs UNIBAX INVESTMENTS T/A ARUNDEL VILLAGE SPAR
Ruled By: MATANDA-MOYO J

SC12-18 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO
Ruled By: BHUNU JA

HB86-10 : ELVIS NDLOVU vs HIGHER LEARNING CENTRE
Ruled By: MATHONSI J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

SC10-24 : ELPHAS MAPHISA vs CLEVER SIBANDA N.O. (as executor dative of the Estate of the late Melusi Sibanda) and OTHERS
Ruled By: GWAUNZA DCJ, MAKONI JA and CHITAKUNYE JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA

SC61-23 : CHIDO MATEWA (as Executrix Dative of the Estate Late Judith Matewa) vs CITY OF HARARE
Ruled By: BHUNU JA, MUSAKWA JA and MWAYERA JA

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY
Ruled By: CHITAKUNYE JA