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

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

The late Job Bruno Kadengu died testate on 25 March 1990. His Will contained the following clauses:

“2. The expression 'Executors' or 'Executor' wherever used in this Will mean either Executors or Administrators or Trustees or any two or all of these offices as may be appropriate in the circumstances and in the context thereof and the term 'Executors' includes the singular and the term 'Executor' includes the plural.

5. My Executor shall take possession of all my property, whether movable or immovable, of whatsoever nature and sort, and wheresoever situate, and whether the same be in possession, reversion, remainder or expectancy, and, after paying thereout all my just debts and taxes payable by reason of my death, and the expenses of the administration of my Estate, then he shall pay and apply the same as hereinafter directed.

6. I hereby direct that my Executor shall purchase a house in the northern suburbs of Harare and I desire that such house be large enough and commodious enough, in the discretion of my Executor, to comfortably accommodate my wife, OLGA, and any dependent children born of me and my said wife who may survive me. I hereby give and bequeath to my said wife the said house as a special legacy. I further give and bequeath to my said wife, as a special legacy (or special legacies), all the household furniture and effects of which I may die possessed and effects of which may, at the time of my death, be situate in the residential property where my said wife and I may be living as at the date of my death. The legacies referred to in this paragraph shall be conditional upon my said wife, OLGA, surviving me for a period in excess of thirty (30) days.

7. I record that I own a certain farming property situate near Rusape. Provided that my mother shall survive me for a period in excess of (30) thirty days and provided that I still own the said farming property as at the date of my death, I hereby give as special legacies to my mother all the farming implements, livestock and other movables which may belong to me at my death and which may be situate on the said farm as at the date of my death. I further hereby give and bequeath to my said mother a life usufruct in respect of the said immovable farming property but subject to the provisions contained in the immediately subsequent paragraph hereof pertaining to my sister, ROSA CHIMAMBO. I direct that the dominium in the said farming property shall be assumed and taken by my Trustee appointed hereunder who shall deal with the same as directed hereunder.

9. After discharging my debts and taxes, and paying the legacies and providing for the aforesaid usufruct, and, generally dealing with my directives detailed hereinabove, my Executor shall sell and liquidate and turn into cash the entire balance of my Estate and my Executor shall hold the resultant monies in his own name as Trustee of a Trust Fund and he shall apply the income and capital thereof as hereinafter directed. The successor in office as Trustee of my Trust Fund shall be the Senior Partner for the time being of the said Messrs Gollop & Blank.

10. My Executor, as Trustee, in such manner as he shall, in his absolute discretion, from time to time think fit, pay and apply the income of my Trust fund to or for or towards, the benefit, maintenance, education, and advancement of my said wife, OLGA, my said mother and any and every child born of my union with my previous wife and any and every child born of my union with my said wife, OLGA, and, without derogating from the generality of the aforegoing, the following persons; viz.”

The appellants were among the persons listed under paragraph 10.

It is common cause that Gregory Slater who was appointed executor of the Will failed to complete the administration thereof before he fled the country on allegations of misappropriation of funds and that Messrs Gollop and Blank renounced their appointment as executors and trustees of the estate on 5 September 1997.

The assets of the estate were given as 4,000 shares in Paradise Park Motel (Pvt) Ltd and a certain piece of land in the district of Makoni called Alloa Farm.

The Master, in an attempt to speed up the administration of the estate, on 2 July 1999, appointed the second respondent as executor dative of the estate.

It seems that the second respondent was unable to remedy the problems left unresolved by Gregory Slater, and, on 28 September 2000, the first and the second appellants wrote to the Master complaining of the second respondent's inaction and his failure to wind up the estate in accordance with the wishes of the testator.

The letter did not achieve the desired result, and, on 24 March 2003, the appellants made an application to the High Court seeking the following order:

“IT IS ORDERED THAT:

1. The Trust which was to be set up in terms of Clause 9 of the Will be and is hereby abandoned.

2. The deceased's 4,000 shares in Paradise Park Motel (Pvt) Ltd shall be sold to the best advantage of the beneficiaries.

3. A large enough and commodious enough house shall be purchased for the first Respondent and her minor children from the proceeds of the sale of Paradise Park Motel (Pvt) Ltd. The Master of the High Court (the third respondent) shall determine whether the house which the estate shall be purchasing for the first respondent and her children is 'large enough and commodious enough'.

4. After purchasing the house described above for the first respondent and her children, the residue shall be equally distributed among the surviving beneficiaries. The shares of the beneficiaries who are outside the country or who are not part (sic) to these proceedings shall be…,. (illegible).

5. The immovable property, situate in Makoni District, namely, Alloa Farm, held under Deed of Transfer 7689/81 shall not be sold. It shall be retained as the family home to be registered in all beneficiaries names or to be registered in the name of the nominated beneficiary in trust for the rest of the beneficiaries.”

It was their contention that the intention of the testator, as expressed in clause 9 of the Will, could no longer be implemented because of the abdication of Gregory Slater and the renunciation by Gollop & Blank. They alleged that they could not agree on a suitable substitute, and, in any event, some of the beneficiaries could not be located while others were resident outside Zimbabwe.

On 23 July 2003 the appellants obtained a default judgment in the terms set out above. This order was, however, rescinded, by consent, and the matter was argued before the court a quo.

The second respondent, the executor dative, alleged that the estate was illiquid making it impossible for him to discharge his mandate. It was his view that the ownership of the 4,000 shares should be determined before the estate could be wound up.

The three issues argued by the parties before the court a quo were as follows:

1. Whether or not the estate can no longer be wound up in terms of the Will because some clauses have become irrelevant;

2. Whether or not the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased's estate; and

3. Whether or not Alloa Farm can still be dealt with in terms of the Will.

The application was dismissed by the court a quo primarily on the grounds that the appellants had no locus standi to bring such an application. In this regard, the learned Judge said:

“It seems to me, however, that a more fundamental point, which unfortunately was not addressed, arises. It is whether or not the applicants have locus standi, that is, a direct and substantial interest, in seeking variation or rectification of the Will.”

And later, at p6 of his judgment:

“It seems to me, therefore, that the applicants in casu are obliged to show the direct and substantial interest that they have in the subject matter before me of seeking the variation of certain clauses of the Will. In terms of the Will they are residuary heirs. They will only be able to benefit from the Will after Clause 9 thereof has been fulfilled.”

The court a quo, though alive to the fact that neither party had been given the opportunity to make submissions on this issue, yet proceeded to decide the matter on an issue not raised during the hearing and addressed by the parties.

In so doing, the learned Judge misdirected himself. It was imperative that the issue was fully canvassed and investigated.

As it was said in Middleton v Carr 1949 (2) SA 374 (AD)…,:

“…, as has often been pointed out, where there has been full investigation of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised. But, unless the Court is satisfied that the investigation has been full, in the above sense, injustice may easily be done if the issue is treated as being before the Court.”

The issue was not before the court a quo, and, in the absence of a full investigation thereof, the court erred in treating the issue as one which was before it.

Clearly, there was a real chance of an injustice being done to the appellants against whom the finding was made.

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

In May 2004, the applicant and the first respondent entered into a software licensing agreement. Following a dispute that arose between the parties in January 2006, the matter was referred to an arbitrator (the second respondent) for arbitration.

On the 23rd of June 2008, the applicant challenged the impartiality of the arbitrator in terms of Article 13(2) of the First Schedule to the Arbitration Act [Chapter 7:15] (the Model Law).

On the 28th of June 2008, the arbitrator rejected this challenge and his decision was communicated to the applicant on the 3rd of July 2008.

The challenge was then referred to this Court for determination on the 1st of August 2008 in terms of Article 13(3) of the Model Law.

The Issues

The issues for determination in this matter are as follows:

(1) The nature of the challenge before this Court....,.

Nature of Challenge before the Court

Counsel for the applicant submits that the arbitrator in casu decided the challenge before him without any substantive submissions having been made by the first respondent. He therefore contends that the latter is now estopped from making fresh submissions though its opposing papers before this Court. In other words, this Court must determine the challenge in the same form as was presented to the arbitrator, viz. without the benefit of any submissions from the first respondent.

Article 13(3) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] enjoins the Court “to decide on the challenge” referred to it by the challenging party without elaborating the procedure to be followed.

Be that as it may, I have no doubt that the Court is confined to determining the challenge on the grounds of challenge presented to the arbitrator and cannot entertain any fresh ground of challenge. However, I am not persuaded that Article 13(3) of the Model Law narrows the scrutiny of the Court, when examining and ventilating the issues before it, to the same submissions that were presented to the arbitrator.

I am not so persuaded for several reasons:

(i) Firstly, although the challenge before this Court may be likened to an appeal, it is not described as such and cannot therefore be regarded as an appeal stricto sensu. Even if it were to be so treated, it does not invariably follow that a party to an appeal cannot make fresh submissions on the grounds of appeal or the issues that constitute the subject-matter of the appeal.

(ii) Secondly, Article 13(3) of the Model Law does not define or fetter the powers of the Court as to the procedure to be followed.

In practice, the procedure that is adopted in the referral of arbitral matters to the Court is by way of ordinary application, and there is nothing in the Rules of Court to preclude the filing of submissions by any party to the arbitration proceedings in question.

(iii) Last but not least, to construe Article 13(3) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] in a restrictive manner would operate to constrict and offend the common law right to be heard which vests in every interested party, as embodied in the audi alteram partem rule, as well as the constitutional right to a fair hearing guaranteed by section 18(2) of the Constitution.

For all of these reasons, I am satisfied that the procedure for challenge before this Court cannot be curtailed in the manner propounded by counsel for the applicant.

HB23-09 : LARRY BEN MPOFU vs MIKA PARIRA MPOFU AND TWO OTHERS
Ruled By: NDOU J

It is trite that a litigant who admits that he was negligent in his tardiness may, nonetheless, be found to merit rescission if he shows bona fides. "One is naturally reluctant to reach a decision which would result in the giving of judgment against a person without his being heard when he protests that ...

HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS
Ruled By: PATEL J

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.The first and second respondents are directors of the third respondent, which is also a safari operator.The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for ...

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.

The first and second respondents are directors of the third respondent, which is also a safari operator.

The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for managing all safari operations in Zimbabwe.

Background

The applicants were granted two written concessions to operate hunting safaris in the Rifa Safari Area for a period of 10 years expiring on the 31st of December 2007.

Before this date, on the 18th of October 2007, the National Parks and Wildlife Management Authority (the Authority) conducted an auction for a new 5 year concession in respect of the applicants' concession area. At that auction, the applicants were prevented from bidding for the concession because they had failed to furnish the requisite Bank guarantee.

According to the first applicant, he then approached the first respondent who undertook to bid on behalf of the applicants after exhausting the respondents' own bidding limit.

The first respondent won the final bid for the sum of $750 billion.

The first applicant then thanked him and was congratulated by all present for having retained the concession.

Subsequently, on the 20th of October 2007, the respondents reneged on their arrangement and sought to retain the concession for themselves.

The respondents deny the applicants averments.

They contend, that, all bidders at the auction were fully aware of the Bank guarantee stipulation, as was clearly stated in the National Parks and Wildlife Management Authority's prospectus, and that there was no arrangement between the parties prior to the auction.

They did, subsequently, discuss the possibility of sub-letting part of the concession area to the applicants but nothing concrete materialised thereafter.

They further aver, that, if their Concession Agreement with the National Parks and Wildlife Management Authority (the Authority) were to be cancelled, they would suffer irreparable harm.

The National Parks and Wildlife Management Authority (the Authority) avers, that, the application is fatally defective in that it does not cite the Minister of Environment and Tourism (the Minister) as required by the Parks and Wildlife Act [Chapter 20:14].

Moreover, the Parks and Wildlife Act stipulates a maximum period of 10 years for hunting concessions and, therefore, the applicants cannot be granted any further extension.

On the 19th of February 2008, the applicants filed an urgent application to assert their rights, and, on the 22nd of February, they were granted a Provisional Order interdicting the respondents from evicting the applicants from the Rifa Safari Area and from interfering with the applicants' operations in that area.

They now seek a Final Order confirming the above relief, and, further interdicting the respondents from exercising any rights in the applicants' concession area pending the determination of Case No. HC891/08.

In that case, the applicants seek the setting aside of the written concession granted by the National Parks and Wildlife Management Authority (the Authority) to the respondents in November 2007. The Concession Agreement was signed by the Minister on the 10th of January 2008....,.

The issues for determination herein, as I perceive them, and as concurred by counsel, are as follows:

1. Whether the non-citation of the Minister as a party to these proceedings is fatally defective....,.

Non-citation of Minister

It is submitted by counsel for the applicants, that, the non-citation of the Minister in these proceedings is not fatal for two reasons:

(i) Firstly, she relies upon Rule 87(1) of the High Court Rules 1971, which stipulates that non-joinder of a party does not preclude the determination of the issues in dispute.

(ii) Secondly, she argues, that, the applicants are not presently seeking the grant of any concession from the Minister and that, in any event, the Minister is simply required to concur with the grant of a concession by the National Parks and Wildlife Management Authority (the Authority) in respect of a specific area and is not concerned with the identity of the grantee.

As regards the non-joinder and misjoinder of parties, Rule 87(1) of the High Court Rules provides as follows:

“No cause or matter shall be defeated by reason of the mis-joinder or non joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

Section 37 of the Parks and Wildlife Act [Chapter 20:14] empowers the grant of leases and hunting rights in safari areas as follows:

“The Authority, with the concurrence of the Minister, may —

(a) Lease sites in a safari area to such persons and for such purposes as it deems fit;

(b) Grant hunting or other rights over or in a safari area to such persons as he deems fit; subject to such terms and conditions as he may impose:

Provided that —

(a) The period of a lease in terms of paragraph (a) shall not exceed twenty-five years;

(b) The period of hunting or other rights in terms of paragraph (b) shall not exceed ten years;

(c) A grant of hunting or other rights, in terms of paragraph (b), shall not prohibit persons from entering into the safari area concerned for purposes other than those for which the rights have been granted.”

While I accept that the non-joinder of a party is not necessarily and invariably fatal to the continuance or determination of any matter, it is trite, that, Rule 87(1) does not absolve a litigant of the obligation to cite all relevant parties.

The discretion of the Court, in this regard, must be exercised so as to ensure that all persons who might be affected by its determination of the issues in dispute be afforded the opportunity to be heard before that determination is actually made.

Turning to section 37(b) of the Parks and Wildlife Act [Chapter 20:14], it is abundantly clear, that, the concurrence of the Minister is an essential statutory sine qua non to the grant of any hunting rights in a safari area.

Although it is the National Parks and Wildlife Management Authority (the Authority) that actually administers and grants such hunting rights, it can only do so “with the concurrence of the Minister” and “subject to such terms and conditions as he may impose.”

This is clearly recognised not only in the concession granted to the first applicant in 2003, but, is also explicitly declared in the preamble to the Concession Agreement concluded with the third respondent in 2007.

In short, the Minister's direct and personal involvement in the approval of any hunting concession cannot be obviated.

By the same token, where the Minister has already approved the grant of hunting rights, he must, of necessity, be concerned with any dispute concerning the exercise or non-exercise of such rights.

In the instant case, the applicants seek an order interdicting their eviction from the Rifa Safari Area and any interference with their operations in that area as well as an order interdicting the respondents from exercising any rights in the same concession area.

In essence, the relief that they seek impinges upon rights previously conferred upon the first applicant in 2003 and those granted to the third respondent in 2007.

In both instances, the determination of this Court will impact upon and interfere with decisions already taken by the Minister.

In my view, he is undoubtedly a highly relevant party to these proceedings with a very direct interest in the outcome and determination thereof.

It follows, that, the failure to cite the Minister in this matter is fatal and that the application should be dismissed simply on that preliminary basis.

However, given the possibility that my conclusion in this regard is incorrect, I shall proceed to consider and determine the merits of this case.

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

In section 158 of the Electoral Act [Chapter 2:13] as read with section 171(4)(b), any person alleged to have committed an electoral malpractice may be called to vindicate his or her name before such a finding is made against him or her.

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

On 12 December 2011, the applicant filed an application in this court under Case No. HC12336/11 seeking a prohibitory interdict against the respondents.

The remedy sought was to prevent the respondents from moving or accepting any motion from any member of the House of Assembly to dismiss the applicant without the matter of his dismissal first being brought before the Committee on Standing Rules and Orders (CSRO) or its sub-committee or other independent and impartial disciplinary authority.

On realising that, despite having filed the aforesaid application, the respondents were determined to proceed with the motion to have him dismissed, the applicant filed the instant urgent application whose amended interim relief is couched in the following terms:-

“1. Pending the determination of the Court Application under Case Number HC12336/11 the respondents are prohibited, restricted, and interdicted from continuing to debate and voting on any motion to dismiss the applicant.

2. Pending the determination of the Court Application under Case Number HC12336/11, any debate, voting, or decision on the motion to dismiss the applicant, with or without amendments, be and is hereby declared null and void ab initio and therefore of no force and effect.”...,.

ON MERITS

Having disposed of the preliminary points raised, I wish to focus on the substantive issues raised by the parties in this application.

The fundamental guiding principle in this case was eloquently summed up by Mr Shepherd Mushonga, the fourth respondent, when he put it in the following words:-

“The principle of separation of powers is he hallmark of a constitutional democracy which entails that the three (3) arms of State, namely, Parliament, the Executive, and the Judiciary are separate and independent of each other in so far as the exercise of their powers is concerned.

The Constitution vests Parliament with the powers to regulate its own affairs. Parliament exercise judicial powers in respect of certain matters that fall within its domain to the exclusion of the Courts.”…,.

I applaud the sentiments and indeed associate myself with same.

Be that as it may, one needs to appreciate the often overlapping function that characterize the legislature, the Executive, and the Judiciary.

Whilst these three arms of Government must enjoy their independence, they do not exist outside each other. They play a complimentary role.

The sovereignty of Parliament, or, to put it simply, the power enjoyed by Parliament is not absolute, for if it were so the citizens would be extremely vulnerable. It would mean that Parliament would do virtually everything it desired, including violating its own Rules and Regulations, to the detriment of its citizen with impunity. Such a scenario, in my view, would not be tenable. There must be some control mechanism through which Parliament is to be held accountable by disgruntled citizens: see The British Constitution by J.S. DUGDALE, M.A, published by Bath James Brodie Ltd, London 1962…,.

From my reading of the applicant's urgent chamber application, and the notices of opposition filed by the respondents, I discern the following issues to be pertinent and decisive in this matter;

(a)...,.

(b)...,.

(c) Whether or not the House of Assembly, through the active participation of the respondents, used illegal means to initiate the dismissal of the applicant.

(d) What is the correct procedure which should be used to initiate the dismissal of the applicant?

(e) Whether or not the amended motion proposed on 14 December 2011, and eventually adopted by the House of Assembly, cures the defects which are of concern to the applicant....,.

(c) and (d) The correct procedure in initiating the dismissal of the applicant

I intend to deal with issues (c) and (d) together.

To fully understand the fear that gripped the applicant in this case, one needs to understand the motion that was tabled for debate in Parliament.

Following numerous allegations which touched on the alleged shortcomings of the applicant in the execution of his duties as the Clerk of Parliament the motion that eventually stood, in the name of the third respondent, was worded as follows:

“Now, therefore, this House places on record its disapproval of the untoward behaviour and actions exhibited by the Clerk of Parliament, Mr Austin Zvoma, and further resolves to invoke provisions of 48(2) of the Constitution of Zimbabwe to dismiss Mr Austin Zvoma from the service of Parliament forthwith through a secret ballot process – Hon Tshuma”…,.

The wording of the motion shows the inherent dangers of allowing the respondents, and other Parliamentarians, to determine the fate of the applicant.

The motion, as it stood, had no provision for proper disciplinary proceedings, yet, the right to be heard, even for a murderer, is one of the core values of the rules of natural justice.

As already alluded to elsewhere in this judgment, section 48(1) of the Constitution of this country has vested the power to appoint a Clerk of Parliament (the applicant) not to every Member of Parliament but to a special organ of Parliament called the Committee on Standing Rules and Orders (CSRO) which organ is tasked to supervise not only the applicant but also other staff members of Parliament who are appointed in terms of section 48(3) of the Constitution.

Section 48(4) of the Constitution then gives Parliament the power to formulate terms or conditions of service for the staff members. The officers of Parliament (Terms of Service) Regulations 1977 were approved by Parliament in terms of this section. These Rules cover, in sufficient detail, the appointment procedure, conditions of service including the procedure to be adopted in the termination of the employee's service should the need arise.

It is pertinent to note that in terms of Part 1 of the Officers of Parliament (Terms of Service) Regulations, 1977 it is stated that “the staff of Parliament shall in addition to the Clerk of Parliament, consist of such officers…,.”

The Regulations go on to identify these other officers or employees as specified in the Regulations.

I do not read this section to exclude but to include the person in the position of the applicant.

A simple perusal of the Regulations concerned clearly show that the administration of the staff members of Parliament, as well as their appointments, is vested in the Committee on Standing Rules and Orders (CSRO).

The Rules, in so far as they deal with the disciplinary proceedings of the staff members of Parliament, are clear and they do not require any complicated interpretation.

The Speaker of the House of Assembly (first respondent) is firmly empowered by the Rules to initiate any enquiry against any of the staff members of Parliament who incidentally include the applicant.

There does not seem, in my view, to be any room for the Committee on Standing Rules and Orders (CSRO), through the Speaker of the House of Assembly, to relinguish or to delegate its administrative functions to the ordinary members of Parliament. This appears to me to have been done for obvious reasons. Ordinary members of Parliament do not appoint the staff of Parliament and the applicant and may not have the capacity or ability to supervise the employees in their day to day activities.

There seems to be greater wisdom in dealing with disciplinary proceedings in terms of the regulations of Parliament. That procedure comments itself in that before anyone is condemned, the individual is given an opportunity to explain his conduct in line with the much cherished and time honoured principle of the audi alteram partem.

It occurs to me that it is only when the Committee on Standing Rules and Orders (CSRO) has conducted a proper inquiry against the applicant, and the applicant found to be guilty, that the Speaker can then advise Parliament in terms of section 48(2) of the Constitution. It is only then that the House of Assembly can then resolve, by the affirmative votes of more than one-half of its total membership, to have the applicant removed.

Anything short of this would be illegal and any finding in support of the approach taken by Parliament would amount to this Court sanctioning Parliament to act in breach of its own Regulations.

This Court did not make the Parliament regulations in question. It was Parliament, in its own wisdom, which made them and the members of Parliament must be seen to be complying with such Regulations.

Having said this, I have not the slightest hesitation in concluding that, Parliament, in allowing the motion, debating on same, and voting on it, clearly overstepped its authority. This is so because the voting that is referred to in section 48(2) of the Constitution must be the end result of due process in the removal or dismissal of the applicant.

(e) Has the amended motion cured the defect alluded to by the applicant?

During argument, it was suggested to me by the two counsels representing the respondents that the seemingly rough edges of the motion that triggered debate in Parliament…, was ultimately refined by the amendment that was proposed by the fourth respondent and subsequently adopted by the House thereby removing the defect complained of by the applicant.

I am not persuaded by this argument.

It completely misses one fundamental issue in these proceedings. The issue is that the respondents or Parliament, as a body, did not have the power to do what it did.

Even if I were to assume, for a moment, that the respondents, and Parliament in general, had such powers, one needs to look at the resolution that was eventually passed, with particular regard to the terms of reference of the proposed five member committee, to appreciate the fallacy of the position taken by the respondents.

The House concluded by proposing the appointment of a special five (5) member committee whose terms of reference is as follows:-

“(a) The special five member committee is to make recommendations to the full House on its findings whether:

(i) To terminate immediately the Clerk of Parliament's contract of employment.

(ii) To suspend without pay for a period of time.

(iii) To demote and/or reprimand the Clerk of Parliament…,.”

The terms of reference, on their own, make it impossible for the committee of five (5) to approach the inquiry with an open or impartial mind. Their mandate is simply to find the applicant guilty at all cost and consider the nature of punishment to be meted out against him. Such an approach clearly represents kangaroo proceedings which must not be allowed to happen within the precincts of the supreme law making body of this country – Parliament.

If allowed to happen, this would be a clear violation of the applicant's constitutionally recognised right to be afforded a fair hearing before an impartial body. The applicant's apprehension is clearly justified and Parliament must not be allowed to stampede on his rights with impunity.

HH94-09 : MATANDA (PRIVATE) LIMITED vs ONIAS GOTORE
Ruled By: MAKONI J

On 3 October 2007, this court granted a provisional order in favour of the applicant. The litigants were not present but were represented by counsel.

On 23 November 2007, the applicant instituted the present proceedings for contempt of court.

The applicant avers that the respondent has defied the provisional order. He was legally represented when the order was granted. It is its belief that same was communicated to him or a copy of the order was sent to him.

The respondent admits that the order was granted in the presence of his legal practitioner. He, however, avers that his legal practitioner advised him that he would be served with the order.

Up to the time of filing his opposing papers he had not been served with the court order.

It was submitted, on behalf of the applicant, that the conduct of the respondent was intended to and indeed undermines the authority of this court. The court was urged to redeem its dignity, reputation, and authority by imposing an appropriate penalty on the respondent.

It was further submitted that if the court were to accept the respondent's defence, it should still find him to be in contempt of court. He has since been served with the order at the time that he was served with the present application. He has not purged his contempt.

Contempt of court is continuous until it is purged by compliance. The court should therefore find him to be in contempt of court based on this fact.

It was submitted, on behalf of the respondent, that in order for the conduct of a party to constitute contempt of court, such conduct must be wilful or intended and calculated to impair the dignity or reputation of the court. The conduct complained of must be in violation of an obligation imposed on such person by a court of competent jurisdiction to obey a court order until its discharge. The respondent was not served with the order. His conduct cannot be said to be unlawful, intentional, and willful.

The provisional order had a provision to the effect that leave was granted to the Deputy Sheriff to serve the provisional order upon the respondent. It is clear from the applicant's papers that no such service took place.

In terms of Rule 42B(1)(a) where service has been effected by the Sheriff or his deputy, proof of service shall be by return of service in Form No.5A or by endorsement on the process concerned.

There is no such proof attached to the applicant's papers.

The applicant advances the argument that the respondent must have been aware of the terms of the provisional order as his legal practitioner was present when it was granted.

This argument cannot succeed. As I have already alluded to, the provisional order had to be served on the respondent.

It appears that cases whereby parties institute contempt of court proceedings, where the order in issue has not been served, are on the rise. There might be need to re-state the elementary requirement in relation to service of court orders.

The need for sufficient notice of the terms of the order being put in issue cannot be over emphasized. This point was made by C J MILLER in his book Contempt of Court, 2nd edition…, when he wrote:

“In all cases, it must be shown that the person against whom it is sought to apply the sanction of the law of contempt has sufficient notice of the terms of the judgment or order which it is alleged he has disobeyed.”

The need for sufficient notice of the terms of the order becomes clearer when one looks at the essential elements in contempt proceedings.

GILLESPIE J, in Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (H)…, had this to say:

“Before holding a person to have been in contempt of court, it is necessary to be satisfied both that the order was not complied with and that the non-compliance was willful on the party of the defaulting party.”

See also Lindsay v Lindsay 1995 (1) ZLR 296 (S)…,.

For one to establish wilfulness, he must establish that the defaulting party was fully aware of the terms of the court order and he chose not to comply with the order. As C J MILLER in his book Contempt of Court, 2nd edition, puts it…,:

“In so far as possible, that person should know, with precision, what it is he is required to do or to abstain from doing.”

CHIDYAUSIKU CJ, in Minister of Lands & Ors v Commercial Farmers Union 2001 (2) ZLR 457 (S), made the same point and quoted from the same author…,:

“Before a finding of contempt can be made, it is necessary to determine whether there has been a factual breach of an order or understanding on the part of the body or person brought before the court. This necessarily demands that the terms of the order be expressed in clear unambiguous language, and, in so far as possible, the person should know, with complete precision, what it is he is required to do.”

This can be achieved if the defaulting party is served with the court order - unless if he was present when the order was pronounced.

In casu, the respondent was not present when the order was pronounced and was not served with the order as was ordered by the court.

The applicant has not, therefore, established wilfulness on the part of the respondent.

The applicant further contends that the respondent should be found to be in contempt of court as he has now been served with the provisional order and has not purged his contempt.

It is my view that, to date, the provisional order has not been served on the respondent.

What was served on the respondent was the court application in this matter to which the provisional order was attached as an annexure. That cannot constitute service of the order as is required by the provision of service in the order itself.

In any event, the facts establishing contempt after the alleged service have not been placed before me. The respondent has not been given an opportunity to comment. The applicant's argument in that regard can therefore not succeed.

Accordingly, I make the following order:

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs.

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

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

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

Before dealing with the main issues in this matter, it is necessary to attend to several preliminary issues that have arisen for determination....,.

Application for Joinder

The intervener in this matter avers that he is the holder of an offer letter to hold, use and occupy the property held by the applicants and that the effect of the relief sought by the applicants would be to nullify his offer letter. He accordingly submits that he has a direct personal and legal interest in the outcome of this case and should therefore be joined in opposition as the third respondent.

The applicants oppose the intervener's application for joinder on the grounds that he does not have any direct or substantial interest in the subject-matter of these proceedings, and that, in any event, he has not furnished any written proof of his acceptance of the State's offer. Moreover, registration of the Tribunal's judgment, per se, will not have the effect of dispossessing him of his right to occupy the property. That would only occur at a later stage, if and when separate proceedings are instituted for the enforcement of the judgment by way of eviction proceedings against him.

In terms of section 16B(2) of the Constitution, ownership of the property in question vests in the State.

Any right of occupation conferred by the offer letter is in the nature of a personal right, deriving from the State's ownership of the property. Therefore, even if the intervener were to establish his acceptance of the State's offer, which, on the papers, he has failed to do, his right to occupy the land is purely derivative.

On the other hand, the papers indicate that there are two other matters currently pending before this Court, in Case Nos. HC7256/07 and HC3995/08, which involve a dispute between the applicants and the intervener concerning their respective rights to occupy and use the farm in question.

The effect of granting the relief sough in casu would be to pre-empt and render academic the outcome of those two cases.

More significantly, it seems somewhat artificial and casuistic to argue that registration of the Tribunal's judgment is entirely separate and distinct from the consequential enforcement of that judgment.

While proceedings for the enforcement of the judgment may entail a different process, registration of the judgment will substantially operate to negate the intervener's rights in terms of the offer letter and he will be left with no defence whatsoever to any action taken by the applicants in enforcing the judgment.

If he is not afforded the opportunity to be heard at this stage, he would clearly be prejudiced in the assertion and protection of the personal contractual right of occupation that he claims to the property in casu: see Rose v Arnold & Others 1995 (2) ZLR 17 (H); Nyamweda v Georgias 1988 (2) ZLR 422 (S).

In the event, I am satisfied that the intervener has established a sufficiently direct and substantial interest in the outcome of these proceedings. His application to be joined as a party to this case is accordingly granted, but with no order as to costs.

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

The whole matter started when one Moffat Phiri, originally from Malawi, passed away on 17 September 1996.He died intesetate.In his estate was a piece of land, commonly known as Number 22 Hunyani Road, Mabvuku, which he was purchasing under a suspensive Deed of Sale from the City of Harare.Moffat Phiri was, at that time, married to the ...

The whole matter started when one Moffat Phiri, originally from Malawi, passed away on 17 September 1996.

He died intesetate.

In his estate was a piece of land, commonly known as Number 22 Hunyani Road, Mabvuku, which he was purchasing under a suspensive Deed of Sale from the City of Harare.

Moffat Phiri was, at that time, married to the first respondent. The couple had three children...,. It would appear that after the death of Moffat Phiri, the first respondent, and her children were evicted from the property by one Lekinala Moffat, a brother of the late Moffat Phiri – and had the property transferred into his name.

In February 2002, Lekinala Phiri also passed away, and on 3 May 2002, the third respondent, who had travelled from Malawi for the purpose, was issued with Letters of Administration by the Master of this Court to wind up the estate of the late Lekinala Moffat...,. The third respondent was also authorised to transfer the property into her name.

Following the issuance of the Letters of Administration to her, the third respondent sold the property to the applicant on 30 May 2002.

The purchase price was paid in full, and the rights in the property were transferred on 31 May 2002. The date is, however, disputed by the first respondent.

The first respondent did not contest her eviction from the property in 1996. It was only after the death of Lekinala Moffat in 2002 that she made her moves.

On 4 June 2002, she approached the office of the Provincial Magistrate who wrote to the fifth respondent advising him that there was a dispute concerning the immovable property in the estate of the late Lekinala Moffat. The Provincial Magistrate directed the fifth respondent not to effect any transfer of rights in the property until the dispute had been resolved. He undertook to advise the fifth respondent of the fact of the resolution of the dispute.

Perhaps not having much faith in the efficacy of the letter, the first respondent then approached this court on 17 June 2002, under a certificate of urgency, citing the third, fourth, and fifth respondents, in a chamber application wherein she alleged that she was the surviving spouse to the late Moffat Phiri, and objected to the appointment of the third respondent as executrix dative in the estate of the late Lekinala Moffat, and transfer of the property into the third respondent's name.

The application did not cite the applicant, who, by then, had purchased the property from the third respondent, and was in the process of receiving cession of rights in the property, or had already received cession of rights in the property.

The application was granted, and a provisional order was issued on 17 July 2002 declaring the immovable property as forming a part of the estate of the late Moffat Phiri, and not that of the late Lekinala Moffat. Cession of rights in the property in favour of the third respondent was set aside, and the fourth respondent was directed to register the first respondent as the holder of rights in the property.

The order also evicted the third respondent and all those occupying through her.

I shall refer to this application as the main matter as it was the first court action between the parties to the dispute relating to the property.

In my view, the first legal error occurred with the granting of this provisional order...,.

The applicant, not being a party to the application, did not oppose the confirmation of the provisional order issued in favour of the first respondent – and this was duly done on 21 August 2002...,.

On 11 November 2002, the applicant caused her legal practitioners to write to the first respondent's legal practitioners highlighting that the provisional order was brutum fulmen as rights in the property had already been transferred to her.

There was no response to this letter.

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

More importantly, in my view, the order was sought erroneously in the absence of the applicant who had acquired rights to the property through a lawful process. Her rights in the property could not be adversely affected in her absence, and without affording her the right to be heard. S fundamental, and paramount, is this ...

HH14-10 : SOBUZA GULA-NDEBELE vs CHINEMBIRI ENERGY BHUNU N.O.
Ruled By: MAKARAU JP

This court cannot make an order adversely affecting the action of the President without affording him the right to be heard.

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

Again, in view of the issues that the plaintiffs' were raising, the hearing had to be adjourned to enable Advocate de Bourbon to respond in writing to the allegations levelled against him.

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

Although in the course of hearing argument on the issue I had pointed out the propriety of awarding costs against Mr. Drury without giving him an opportunity to be heard. On further reflection it is clear that he had such opportunity but failed to exercise it. This is evidenced by the letter to him ...

HH70-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and ALEX & WEBB REALITY and THE REGISTRAR OF DEEDS
Ruled By: UCHENA J

Counsel for the first and second respondents sought the dismissal of the application if the court found in the respondents favour on the preliminary issues he raised. The application cannot be dismissed because of its lack of urgency, as urgency merely determines whether or not it can be heard on an urgent basis ahead of other ...

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

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

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

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

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

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

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

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

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

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

(a)...,.

(b)...,.

(c) Whether the Frankfurt judgment is contrary to natural justice because of the failure to serve court process properly or at all....,.

Service of Court Process

A foreign judgment will not be recognised or enforced where it is shown, on a balance of probabilities, that it was obtained contrary to the rules of natural justice: see VAN WINSEN, CILLIERS & LOOTS: The Civil Practice of the Supreme Court of South Africa (4th ed. 1997)…,.; Corona v Zimbabwe Iron & Steel Co. Ltd 1985 (2) SA 423 (TkA)…,.

In particular, although a mere procedural irregularity will not debar recognition, there must have been reasonable notice of the proceedings to the persons affected and adherence to the audi alteram partem principle: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2 …,.

The defendant herein avers that it was not properly served with legal process instituting KFW's claim in the Frankfurt court.

However, this averment is clearly belied by the certified translation of the Frankfurt court's ruling (at p.5), wherein it is explicitly stated that the defendant was served with the Complaint on 10 April 2005, and, having been required to answer the Complaint within seven (7) weeks, did not give any indication of its willingness to defend within that time limit.

There is nothing in the papers to counter this position.

It follows that the defendant has failed to establish, on a balance of probabilities, any fundamental violation of the rules of natural justice such as to warrant the non-recognition of the Frankfurt judgment.

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

This urgent chamber application was referred to me on 10 May 2010. On the same date, after perusing the papers, I endorsed on it that the matter was not urgent. On 11 May 2010 the applicant's legal practitioners wrote to the Registrar seeking an opportunity to argue the urgency of the matter before the judge. ...

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

This application was argued before me on 16 July, which was the return day of a provisional order granted on 4 May 2009. Although the first respondent was at the initial hearing, he did not appear on the return day. He had filed opposing papers as well as Heads of Argument even though he ...

HH119-10 : THE STATE vs SEKAI NDORO
Ruled By: UCHENA J

The applicant's application sought to take that guardianship from him. Doing so without notifying him offends against the audi alteram partem rule.

CC03-15 : BERNARD MANYARA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

The applicant in this matter seeks a permanent stay of prosecution in respect of a charge that arose more than eight (8) years ago. He claims that his right to a fair trial within a reasonable time, as enshrined in section 18(2) of the former Constitution, has been violated.

The applicant was arrested in November 2005 on a charge of converting to his own use a sum of ZW$760,000,000= that was given to him by the complainant to purchase 30,000 litres of diesel and 8,000 litres of petrol. According to the submissions filed on his behalf before the Magistrates Court on 27 June 2011, he was detained but later released and then arrested again in November 2007. At the end of 2008 he was taken off remand because the State was not ready to proceed. Following his further arrest, in May 2011, he was summoned to appear in court on 20 June 2011, when he gave notice of his intention to apply for the matter to be referred to the Supreme Court in terms of section 24(2) of the former Constitution. The matter was then so referred by the Magistrates Court sitting at Harare on 8 July 2011.

It is averred, on behalf of the applicant, that the inordinate delay of six (6) years in bringing the matter to trial was due to the State's lack of preparedness. It is also averred that he has been prejudiced by the passage of time, the inflation of the Zimbabwe dollar, and the subsequent changeover to the United States dollar.

The State opposed the application for referral on the grounds set out in its response filed before the magistrate on 6 July 2011. It further opposed the request for permanent stay of proceedings in its heads of argument before this Court.

In essence, it is averred that the matter is not properly before this Court because it consists only of the submissions filed in the Magistrates Court. There was no affidavit or evidence adduced in that court, nor was any hearing conducted before it, to enable the magistrate to determine whether or not the application was frivolous or vexatious. Additionally, no documentation was attached to the application to support the applicant's averments as to what transpired between 2005 and 2011. Consequently, neither the prosecutor nor the magistrate could test the veracity of the applicant's allegations.

It is further argued, for the respondent, that this Court is handicapped by the lack of evidence in making a full inquiry into and determining whether or not the applicant's right to a fair trial has been violated....,.

Counsel for the applicant accepts that neither party filed affidavits or gave evidence before the Magistrates Court in relation to the factual and legal requirements to justify or negative a permanent stay of prosecution.

The magistrate only considered the written submissions filed on behalf of the applicant before referring the matter to the Supreme Court....,.

Where an accused person alleges any infringement of his or her right to a fair trial within a reasonable time, the factors that are to be ventilated and determined are now well settled. They are:

(i) The length of the delay;

(ii) The reason or explanation and responsibility for the delay;

(iii) The assertion of his or her rights by the accused; and

(iv) Prejudice to the accused arising from the delay.

See In re Mlambo 1991 (2) ZLR 339 (S); S v Nhando & Others 2001 (2) ZLR 84 (S); S v Nkomo SC52-06.

In order to enable a proper evaluation of the above-mentioned factors it is essential that evidence be led, primarily by the accused person, as to what transpired from the date of the charge to the date when referral of the alleged violation of rights is sought. The reasons for this were clearly articulated by GUBBAY CJ in S v Banga 1995 (2) ZLR 297 (S)…, as follows:

“Regrettably, the manner in which the legal practitioner requested the referral was totally misconceived. It was wholly insufficient to make a statement, from the bar, and then to point solely to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility; to whether at any time before 16 August 1994, he had asserted his right to be tried within a reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a result of the delay. Such a fundamental omission on the part of the defence is fatal to the success of the application….,.

Moreover, the absence of viva voce evidence completely disables findings to be made that the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused, particularly where, as here, his liberty was not interfered with; and that it has impaired his ability to exonerate himself from the charge due to the death, disappearance or forgetfulness of potential witnesses. See In re Mlambo supra at 352G and 354D-E; S v Demba SC194-94; S v Marisa supra at p9.

I trust that I have made it clear that it is essential for an accused, who requests a referral to this court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed. Only in exceptional circumstances will an applicant be permitted to supplement the record of the proceedings before the lower court by the production of affidavits. Cogent reasons will have to be provided as to why the further evidence was not presented to the lower court.”

This reasoning has been subsequently adopted and applied by the Supreme Court on several occasions; see Sivako v Attorney-General 1999 (2) ZLR 271 (S); S v Njobvu 2007 (1) ZLR 66 (S), and, more recently, by this Court in Sengeredo v The State CC11-14, per CHIDYAUSIKU CJ....,.

I advert, firstly, to the notice of application for referral, filed on 27 June 2011, wherein it is stated that “the applicant's affidavit and annexures will be used in support of the application.” It is common cause that no such affidavit was ever filed. All that was attached to the notice were the submissions prepared by his legal practitioners, the request for remand, a bail deposit receipt, the charge sheet, and the complainant's statement.

Following the application cum submissions, the State filed its opposing response, dated 6 July 2011, highlighting the procedural and evidential deficiencies besetting the application.

Despite this, on 8 July 2011, the learned trial magistrate proceeded to issue his ruling (comprising a total of 4 lines) granting the application for referral to the Supreme Court. He did this without hearing argument from the parties or affording them an opportunity to present evidence on the factual circumstances bearing upon the application.

The only “evidence” from the applicant that was before the Magistrates Court consisted of the allegations and assertions contained in the written submissions attached to the application.

According to those submissions, the applicant was first charged in November 2005 and only summoned to court for trial in June 2011.

The obvious implication is that he was available to attend trial throughout that period.

As against this are the averments contained in the complainant's statement, dated 8 May 2011, to the effect that the applicant had run away to South Africa in 2005 and only returned to Zimbabwe in 2011. As pointed out by counsel for the respondent, this appears to tally with the police docket which shows that the applicant could not be located between 2005 and 2011.

There can be no doubt that all of the above assertions and counter-assertions should have been ventilated through viva voce evidence in order to determine the reasons and responsibility for the delay in bringing the applicant to trial.

Equally necessary was the evidence necessary to demonstrate that the applicant did in fact assert his right to a speedy trial, that he has been prejudiced by the delay, and the specific manner in which he has been prejudiced.

Moreover, in respect of all of these factors, the State should have been given the opportunity to test the veracity of the applicant's position through cross-examination, in addition to being given the opportunity to adduce its own evidence to rebut that position.

HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

Finally, although BP Africa Limited and Shell Petroleum Company Limited have not been joined initially, it is submitted by the applicant that service of the Provisional Order upon them will enable them to contest the final order sought....,. On the facts of this particular case, it does not suffice to simply serve a provisional order ...

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE
Ruled By: CHIWESHE JP

It has been argued that the award under present consideration is that kind of award which, although not sounding in money itself, by its terms and wording, gives rise to a formula by which its monetary value can be calculated. Indeed, the applicants have calculated what is due to them in terms of their contracts of ...

HH258-10 : KALAHARI PETROLEUM (PRIVATE) LIMITED vs WEBSTER NGWARU and CONFUELS (PRIVATE) LIMITED
Ruled By: GOWORA J

Added to this is the fact that the defendants themselves were never called upon to answer to a charge of improper conduct on their part as to disentitle them to the commission.

HH201-10 : MABONDE AGRICULTURAL SERVICES and JACOB MABONDE and HAZEL MOYO vs SENTRIDGE INVESTMENTS (PRIVATE) LIMITED and PK CHIVAURA and O CHIKONYORA and OTHERS
Ruled By: BHUNU J

It is true, as pointed out by counsel for the second to fourteenth defendants' that the three estates have not been cited nor have they complained. The deceased could obviously not complain. Their estates have not been cited. As a result, we do not know whether any executors have been appointed. For that reason, ...

HH275-10 : NOBLE GAPARE vs KAEN W. MOYO and RESIDENT MAGISTRATE, HARARE CIVIL COURTS and MESSENGER OF COURT
Ruled By: MAKONI J

Counsel for the first respondent's conduct of approaching a magistrate in the absence of the other party is not acceptable. What she did amounts to snatching at a judgment. I will do no better than quote CHEDA J in Kurarega v Kurarega HB97-04 where he had this to say about the conduct of a ...

HH03-11 : JOYCE MADZORERA vs DAVID SHAVA
Ruled By: CHATUKUTA J

The fact that the reasons for the dismissal of the application in case no. HC3953/05, for the rescission of case no. HC59/05 are not available, is, in my view…., irrelevant. The respondent was given the opportunity to address the court and failed to advance any meaningful submission.

HH57-11 : ELGATE INVESTMENTS (PVT) LIMITED and OTHERS vs THE MASTER OF HIGH COURT and WESLEY MILITALA and PARROGATE ZIMBABWE (PVT) LTD and OTHERS
Ruled By: MTSHIYA J

On 8 February 2011, counsel for the third respondent also appeared before me and indicated that the third respondent had an interest in the matter. Counsel for the second respondent also indicated that there were many creditors interested in the matter. He said those creditors would like to be heard. Counsel for the applicant ...

HB61-11 : ZPRA VETERANS TRUST vs FALLEN HEROES TRUST and GEORGE RUTANHIRE and THERESA MAKONE, N.O. and KEMBO MOHADI (Co-Ministers of Home Affairs)
Ruled By: MATHONSI J

When this application was initially placed before me, and upon realising that it raised issues of national interest affecting a lot of people, including relatives of those who died and were buried during the war of independence and disturbances which may have occurred after independence, I directed that it be served upon all the ...

HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

Even the hearing of oral evidence was not completed because the appellant, who was the defendant in the court a quo, was not allowed to lead evidence. This was in clear violation of the basic tenets of natural justice, in particular the audi alteram partem rule.

SC19-13 : PORTLAND HOLDINGS LTD vs MINISTER OF SPECIAL AFFAIRS IN THE PRESIDENT'S OFFICE
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

The appellant contends, further, that the court a quo erred by not allowing its legal representative to address the court on the merits of the application. To this, the respondent submitted, however, that the appellant's 'arguments on the merits were placed before the court'. An examination of the record shows that the appellant had alleged, in ...

HB04-14 : TRISTAR INSURANCE COMPANY (PVT) LTD vs WILBERT CHIKANYA
Ruled By: KAMOCHA J

In casu, the order was also granted in the absence of the affected party – the present applicant.

SC52-15 : TRIANGLE LIMITED vs VUSIMUSU SIGAUKE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

In any event, the failure to allow the parties, particularly the appellant in the present case, to be heard before the appeal was 'converted' to review proceedings, amounted to an infringement of the rules of natural justice which require a party to be heard before judgment prejudicial to his interests is granted.

View Appeal
SC24-16 : GUARDFORCE INVESTMENTS (PRIVATE) LIMITED vs SIBONGILE NDLOVU and THE REGISTRAR OF DEEDS N.O. and THE DEPUTY SHERIFF
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

I also wish to note, in passing, that the handling of this matter by the High Court leaves a lot to be desired. The chamber application for dismissal of the application for rescission of judgment for want of prosecution was served on the appellant on 2 July 2013 and it was granted on ...

SC29-17 : ZESA ENTERPRISES (PRIVATE) LIMITED vs ALOYCE ROY STEVAWO
Ruled By: MALABA DCJ, GOWORA JA and BHUNU JA

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 ...

View Appeal
SC63-17 : UNIVERSITY OF ZIMBABWE vs KENNETH MUGUMBATE and GOHODZI GOHODZI and MASINIRE RICHARD and MATEKU RICHARD and MLAMBO TINASHE and NYAMUZIHWA RINASHE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA

In Taylor v Minister of Education and Another 1996 (2) ZLR 772 (S)…, the following was stated: “The maxim, audi alteram partem, expresses a flexible tenet of natural justice that has resounded through the ages. One is reminded that even God sought and heard Adam's defence before banishing him from the Garden of Eden. Yet ...

Appealed
HH377-13 : KENNEDY GODWIN MANGENJE vs TBIC INVESTMENTS [PVT] LTD and FOUR OTHERS [Case 1] and MINISTER OF LANDS & RURAL RESETTLEMENT & 3 OTHERS [Case 2]
Ruled By: MAFUSIRE J

The audi alteram partem rule holds that a man shall not be condemned without being given a chance to be heard in his own defence. The rule is so basic to jurisprudence that, as EBRAHIM J said, in Dube v Chairman, Public Service Commission Anor 1990 (2) ZLR 181 (H), it ...

The rule implores public officials, judicial, and quasi-judicial officers, and, really, anyone entrusted with the power to make decisions or the power to take action affecting others adversely, to exercise such powers fairly. Fairness is the overriding consideration.

The legitimate expectation doctrine is an extension of the audi alteram partem rule. In England, in the case of Schmidt and Anor v Secretary of State for Home Affairs [1969] 1 All ER 904 (CA), LORD DENNING MR said…,:

“…, an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.”…,.

Later on, in 1971, LORD DENNING had this to say in Breen v Amalgamated Engineering Union and Ors [1971] 1 All ER 1148…,:

“It is now well settled that a statutory body, which is entrusted by a statute with a discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other hand, or what you will. Still it must act fairly. It must, in a proper case, give a party a chance to be heard…,.”…,.

The doctrine is also part of the South African law; see Administrator, Transvaal and Ors v Traub and Ors 1989 (4) SA 731.

In Zimbabwe, it is firmly entrenched in our law; see Health Professions Council v McGowan 1994 (2) ZLR 392 (S); Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S); and Kanonhuwa v Cotton Co. of Zimbabwe 1998 (1) ZLR 68 (H) among others.

In Health Professions Council v McGowan 1994 (2) ZLR 392 (S), GUBBAY CJ stated as follows…,:

“In short, the legitimate expectation doctrine, as enunciated in Traub, simply extended the principle of natural justice beyond the established concept that a person was not entitled to a hearing unless he could show that some existing right of his had been infringed by the quasi-judicial body…,. Fairness is the overriding factor in deciding whether a person may claim a legitimate entitlement to be heard…,.”…,.

See also Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S), per McNALLY JA…,.

There may be situations where the court might accept an administrative decision taken in violation of natural justice where for, instance, a statute authorises an ex parte action by the administrative authority in an emergency or where there is a sufficient interval between the decision and its implementation during which there is a fair hearing. In Sachs v Minister of Justice, Diamond v Minister of Justice 1934 AD 11, whilst dealing with the statutory exclusion of the audi alteram partem rule in certain situations, STRATFORD ACJ said…,:

“Sacred though the maxim is held to be, Parliament is free to violate it. In all cases where, by judicial interpretation, it has to be invoked, this has been justified on the ground that the enactment impliedly incorporated it. When on the interpretation of the Act, the implication is excluded, there is the end of the matter.”

In Health Professions Council v McGowan 1994 (2) ZLR 392 (S), the learned CHIEF JUSTICE stated…,:

“The exceptions to the rule are set out by PROFESSOR BAXTER in his work on Administrative Law at pp 587–588, as follows:

'(i) Where a statute authorises emergency, ex parte action, it might be implicit in the statute that, unless natural justice is excluded altogether, a hearing need only be given after the decision is taken. If there is no urgency, however, the court will require natural justice to be observed beforehand.

(ii) A court may accept as sufficient compliance with natural justice a hearing held after the decision has been taken where:

(a) There is a sufficient interval between the taking of the decision and its implementation to allow a fair hearing;

(b) The decision-maker retains a sufficient open mind to allow himself to be persuaded that he should change his decision;

These are concessions to the demands of administrative efficiency, but they are limited. A hearing held after the decision can only be acceptable if, in all the circumstances, it was sufficiently fair as to have the effect of 'curing' the failure to hold one before.'”..,.

HB22-16 : DHERERAI MANYONI vs THE COMMISSIONER GENERAL OF POLICE
Ruled By: MATHONSI J

The applicant, a sergeant in the Zimbabwe Republic Police, based at Stops Camp, is yet another prolific litigator who has emerged from our midst. A sharp shooter who has succeeded in filing several applications in this court while on a solo crusade of fighting police authorities who want to discipline him. The applicant ...

HB107-16 : MUNETSI BLESSING MASEDEWE vs MANYARA MASEDEWE
Ruled By: BERE J

I must note that it is most unusual that the lower court would accede to the prosecution of the applicant for the error that is there for all to see - an error which the lower court itself concedes to. It was precisely for these reasons that I felt inclined to grant the provisional order of ...

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

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 ...

HB112-16 : ZIMBABWE REVENUE AUTHORITY vs SIKHANYISIWE MPOFU and CHRISTIAN NDLOVU and T. TASHAYA N.O.
Ruled By: MATHONSI J

This matter was placed before me on the afternoon of 14 April 2016. As the applicant complained of the risk of being in contempt of a court order issued by a magistrate on 12 April 2016 directing it to release fuel to the first respondent within 48 hours, a period which was expiring a while after ...

This matter was placed before me on the afternoon of 14 April 2016.

As the applicant complained of the risk of being in contempt of a court order issued by a magistrate on 12 April 2016 directing it to release fuel to the first respondent within 48 hours, a period which was expiring a while after the matter was placed before me, I set the matter down for hearing on 15 April at 14:30 hours, the best that could be done in the circumstances.

When the matter came up, counsel for the applicant produced returns of service attesting to the challenges experienced in trying to bring the first and second respondents to court. In respect of the first respondent, although the papers show that she was indeed represented by Messrs Sansole and Senda, who wrote a letter on 1 April 2016 to the applicant demanding the release of the fuel which had been seized, the Sheriff reports that they “advised that they have no instructions to receive documents” on behalf of the first respondent - an overused and tired ruse employed by unco-operative legal practitioners.

Regarding the second respondent, who, I must say, did not approach the Magistrates Court before the offending order was issued and therefore should not have been included, his address is given in the State Outline as 1499 Luveve Gwabalanda, Bulawayo. The Sheriff reports that an attempt at that address yielded negativity because the address could not be located and the Luveve Housing office informed the Sheriff that it does not exist.

I was not overly concerned about the second respondent for purposes of this application because the interim relief sought really does not affect him. He did not apply for the release of his fuel but the first respondent did. I then stood the matter down to 1600 hours and directed that the first respondent be served with a notice of set down for that time at 2228 Cowdray Park, Bulawayo. That has since been done but the first respondent has not bothered to come.

I have proceeded to consider the application in her absence. It is, however, necessary to give the background of the circumstances under which the decision was taken.

ULRIC HUBER, Jurisprudence of My Time…, put it very well when he said:

“The duty of the judge is, in general, to give his decision according to the dictate of the law and custom…,. Everything, therefore, which is done by a judge contrary to the precepts of the law or the established essentials of a transaction is ipso facto and immediately null and void by force of law.”

I am surprised that the first and second respondents appear to be difficult to locate at addresses they gave to the authorities. I am also surprised that a magistrate sitting at Bulawayo was able to entertain an application for the release of fuel in respect of which no criminal prosecution was ever commenced before him.

How then could he become seized with a matter in which there was not even a court record?

I say this because the charges preferred against the first and second respondents never saw the light of day in a court of law. They ended at the set down office when the public prosecutor declined to prosecute.

Where the public prosecutor declines to prosecute, ordinarily, no court record is created and the accused person is therefore not taken to court for remand. A court record is only generated when the matter is being taken to court either for a plea recording or initial remand. That is when it is entered in the Criminal Record Book and a number is generated.

The history of the matter is that on 29 March 2016 the applicant seized 20,408 litres of petrol belonging to the first respondent and 7,450 litres of petrol belonging to the second respondent by notices of seizure numbers 014683L and 014684L, respectively, on suspicions that it had been smuggled into the country.

At the same time, the police charged them with smuggling.

As I have said, the criminal prosecution floundered at the first hurdle when the public prosecutor declined to prosecute. That outcome did not stop the first respondent writing a letter addressed to “Tredgold Court, Bulawayo” to wit:

“Application for release of Thirty-seven thousand (37,000) litres of fuel and two (2) trucks in terms of section 59 of The Criminal Procedure (and) Evidence Act.

I bought my fuel from Harare, which was confiscated by The Zimbabwe Revenue Authority and The Zimbabwe Republic Police in Bulawayo suspecting that the fuel had been smuggled from outside the country. After giving evidence of purchase, the prosecution was declined at Tredgold Court. I am hereby applying for a court order for The Zimbabwe Revenue Authority to release the goods mentioned here above.

Yours faithfully

Mpofu Sikhanyisiwe.”

It is significant that the letter could not possibly constitute a proper application to be filed in court. More importantly, the “application” was not served on the present applicant but the magistrate still heard it on 12 April 2016 with the applicant being the present first respondent and the Public Prosecutor presumably as the respondent. The latter did not oppose the application; he could not because he had declined to prosecute, was functus officio and had no interest in the matter at all.

At the end of what was apparently a one-sided affair, the magistrate issued an order in the following:

“IT IS HEREBY ORDERED THAT

Zimra is ordered to release 37,000 litres of petrol belonging to the accused which was confiscated by it pursuant of a criminal offence. The property is to be released within 48 hours from granting of this order into the custody of Sikhanyisiwe Mpofu and Christian Ndlovu.”

The order was issued despite the fact that only Sikhanyisiwe Mpofu had applied and only 20,408 litres of petrol had been seized from her. Although it was issued against the Zimbabwe Revenue Authority (Zimra), it did not occur to the magistrate that the Zimbabwe Revenue Authority (Zimra) deserved to be heard before an order adverse to it could be made.

Therefore, the order was made in breach of the audi alteram partem rule.

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

Fortunately, for the respondents, the applicant having proceeded by urgent application, they are entitled to be heard even without filing opposition owing to the exigencies of the matter.

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

This current application was not served on Retired General Mujuru, who is deceased, or on his wife, the former Vice President of Zimbabwe. They did not get an opportunity to respond to the allegations that they orchestrated the forcible removal of the applicants from their farms for political reasons. The first respondent has not responded to those ...

HH343-15 : SOURCE-NET (PVT) LTD and NELSON BANYA and ALFONCE MBIZWO and BERNARD MPOFU vs STEWARD BANK LIMITED and ECONET WIRELESS
Ruled By: MUSAKWA J

Counsel for the respondents also submitted that the applicants forfeited the right to be heard as they arrived late at court.

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

It is desirable for an international organisation that enjoys immunity to participate in proceedings instituted against it, if only to draw the attention of the court to the bar against its jurisdiction arising from the immunity enjoyed. That would not only show respect for the local courts, but also prevent, at an early stage, the consequences ...

HH250-18 : WIDE FREE (PVT) LTD t/a CORE SOLUTIONS vs MEIKLES LTD
Ruled By: MUREMBA J

The respondent averred that it was denied the opportunity to rebut the evidence relied upon to make the award. The arbitrator was thus biased against it and denied it the opportunity to be heard. The audi alteram partem rule, that is, the 'hear both sides' rule was not observed and the audiatur el altera pars ...

It said that had it been given a full opportunity all those issues would have come out clearly….,.

In ZESA v Maposa 1999 (2) ZLR 452 (SC)…, it was held that;

“Natural justice embraces the requirement that there must be fairness in the procedure.

Therefore, both parties must be treated equally. Each must be given a full opportunity to present his case. (this is a mandatory requirement under Article 18 of the Arbitration Act [Chapter 7:15]) and be afforded an opportunity of answering the case against him by meeting his opponent's evidence and contentions.

See FSI Holdings Ltd v Rio Tinto Zimbabwe Ltd & Anor 1997 (1) ZLR 31 (S).

It is also a rule of natural justice that the arbitrator must not be a judge in his own case; nor must he act with bias against a party. He should scrupulously disclose any interest he has in the dispute or might reasonably be thought to have.

See Leopard Rock Hotel Co (Pvt) Ltd v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) at 270 E – G; and, generally, CHRISTIE, Business Law in Zimbabwe at 474; BUTLER and FINSEN, Arbitration in South Africa at 165."…,.

Article 25(c) of the Arbitration Act [Chapter 7:15] says;

“Unless otherwise agreed by the parties, if, without showing sufficient cause, any party fails to appear at a hearing or to produce documents, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.”

The provision deals with a situation where the other party defaults or fails to produce documents without sufficient cause. The tribunal may continue with the proceedings and make an award on the basis of the evidence presented to it….,.

A party who deliberately absents himself from a hearing or walks out without sufficient cause, cannot, at a later stage, allege that he was denied an opportunity to present his case. See Moyo v Rural Electrification Agency SC04-14….,.

The audi alteram partem principle entitles both parties in the matter to be heard, but if a party is given or granted that opportunity and it willfully refuses to participate, like what happened in the present matter, there is no breach of the principle.

The tribunal was correct in following the provisions of Article 25(c) of the Arbitration Act [Chapter 7:15] because it had no other choice. A party cannot willfully absent itself from a hearing and then cry foul that the rules of natural justice were not followed. Such an attitude exhibits a gross misconception of the rules of natural justice.

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

As the applicant is ordinarily resident in the United Kingdom (UK), she appointed her cousin brother, G.M. Chivazve, and A. A. Musunga of Musunga and Associates, to be her agents to represent her in the administration of the estate late Existo Francis Hapaguti. In this regard, she signed a General Power of Attorney appointing the two as her ...

In this regard, she signed a General Power of Attorney appointing the two as her agents. See annexure THC3 dated 30 April 2009. G.M. Chivazve later terminated the services of Mr. Musunga, and, for all intents and purposes, remained as the sole agent….,.

It was also the applicant's argument that she was never consulted in the process hence the process was flawed.

It is common cause that the applicant appointed two agents, through a Power of Attorney, comprising a legal practitioner and her own cousin brother. She clothed them with the necessary powers to look after her interests in the estate. The general Power of Attorney specifically states that its effect is to “ratify, allow and confirm…, all and whatever my said Attorney, his substitutes, shall lawfully do or cause to be done by virtue of these presents.”

The Power of Attorney is quite clear on the extent to which the agents were expected to do which included to discuss and agree on the Inheritance Plan in terms of section 68D(2) of the Administration of Estates Act [Chapter 6:01].

That section provides that:-

“When drawing up a plan in terms of subsection (1), an executor shall -

(a) Pay regard to the principles set out in subsection (2) of section sixty-eight F, to the extent that they are applicable; and

(b) So far as is practicable, consult the deceased person's family and the beneficiaries and endeavour to obtain the beneficiaries' agreement to it.”

In confirmation of the fact that such consultation took place and an agreement reached, the applicant's agent, Mr. G.M. Chivazve, wrote a letter dated 7 August 2009 addressed to the executor, which letter, inter alia, stated that:-

“In my representative capacity, and on behalf of my cousin sister, Mrs. Stella Hapaguti (the widow of the late Mr. Existo Francis Hapaguti), I acknowledge recent receipt of your letter dated 28 July 2009, together with one bound volume of the interim Forensic Audit Report, as well as a copy of the Draft Administration and Distribution Account thereof.

I can confirm having had time to peruse both the Report and to analyze the Draft Administration and Distribution Account and have found nothing warranting change or adjustment. In particular, I am happy that my initial wish, as proffered at the preliminary meeting we had at my office on 28 May 2009, whereby I wished for my cousin sister, Mrs. Hapaguti, to exclusively inherit the UK matrimonial home, cars, furniture and other property there. I am happy that that wish has largely been adopted and respected…,. l am in accordance, thereof, happy for you to send both Report and Draft Administration Account in their respective formats to the Master of the High Court, in terms of the Administration of Estates Act (Chapter 6:01), for his further consideration.”

When the Inheritance Plan was advertised, the applicant's agent had occasion to examine it and this is what he said in paragraph 2 of his letter of 15 January 2010 to the Executor;

“I can confirm I did manage to visit the High Court within the prescribed period and managed to inspect the said First Interim Administration and Distribution Account and was satisfied beyond reproach that all was, as far as I was concerned, in order. For the avoidance of doubt or ambiguity, I can confirm that I do not have any objections with the Estate Account, nor have I any objections or reservations with the present Plan of Distribution.”

This Plan of distribution was borne out of a process of consultation and this is aptly captured in the agent's letter dated 4 March 2010 after the confirmation of the Plan wherein, in paragraph 4 thereof, he said that:-

“Meanwhile, let me commend you and your team for the objective, non-biased, and professional manner that you have handled this otherwise complex estate where nearly everything seemed extraordinary, and, indeed, 'hidden' from the eyes of my sister Mrs. Stella Hapaguti. Thank you one and all. Yes, we have fought, disagreed, and also quarrelled, but all for the ultimate benefit of all. I am happy for my sister, my vazukuru, and all the other bona fide beneficiaries that include the surviving parents of the late Existo Francis (Mr. and Mrs. Mazhindu).”…,.

The above confirms that there were intense consultations that took place till the executor and the beneficiaries reached an agreed Inheritance Plan. The agent was fully involved in the discussions that took place and in the eventual agreed Plan.

His mandate had not been terminated.

From the applicant's own words, she only terminated her cousin brother's agency on the 14^th of February 2012 - well after the decisions in issue had been made with the participation of that brother.

It is therefore not correct to say she was never consulted. The documents filed of record show, clearly, that the applicant's brother was consulted in the process and he did agree to the final Plan. It is my view that it was not incumbent upon the executor or the Master of the High Court to consult the applicant personally when she had appointed an agent for that purpose. The agent's mandate was adequate for the consultations to be valid and binding. I am of the view that the agent acted within his mandate.

See Seniors Service (Pvt) Ltd v Nyoni 1986 (2) ZLR 293 (S).

HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS
Ruled By: MATHONSI J

I am of the view that…, Article 34 of the Model Law in the Arbitration Act [Chapter 7:15] provides a party against whom an arbitral award has been made in his or her absence, with a remedy to approach the High Court for the setting aside of the award…,. Article 34(2)(a)(ii) provides: “An arbitral award may be ...

HH130-15 : ISRAEL CHIRANGWANDA vs ZIMBABWE LEAF TOBACCO and ADVOCATE DAVID OCHIENG
Ruled By: MAKONI J

Counsel for the applicant…., further submitted that the Arbitrator did not invite the applicant to make submissions on the counter-claims….,. Failure to invite submissions does not warrant the award to be set aside. In any event, it was up to the applicant to make out his case before the arbitrator.

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

The determination by the court a quo, of matters not placed before it, goes against a litigant's right to be heard and this view is supported in the fourth edition of Judicial Review of Administrative Action by J. M. EVANS…, where it was highlighted that the principle that “no man is to be judged unheard” is an ...

HB53-16 : RAILINGS ENTERPRISES (PVT) LTD T/A PAROAN TRUCKING vs DOWOOD SERVICES (PVT) LTD /T/A BRADFIELD MOTORS and DAVID LUWO and ROSE LUWO
Ruled By: MATHONSI J

The audi alteram partem rule connotes that both parties must be heard before a decision is taken - nothing more and nothing else. See Decimal Investments (Pvt) Ltd v Arundel Village (Pvt) Ltd and Another 2012 (1) ZLR 581 (H)…,.

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Law Portal Zimbabwe

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

Appealed SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS Ruled By: PATEL J

HB23-09 : LARRY BEN MPOFU vs MIKA PARIRA MPOFU AND TWO OTHERS Ruled By: NDOU J

HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS Ruled By: PATEL J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION Ruled By: KUDYA J

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA Ruled By: KUDYA J

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O. Ruled By: BERE J

HH94-09 : MATANDA (PRIVATE) LIMITED vs ONIAS GOTORE Ruled By: MAKONI J

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

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER Ruled By: MAKARAU JP

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER Ruled By: MAKARAU JP

HH14-10 : SOBUZA GULA-NDEBELE vs CHINEMBIRI ENERGY BHUNU N.O. Ruled By: MAKARAU JP

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAKARAU JP

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS Ruled By: MUSAKWA J

HH70-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and ALEX & WEBB REALITY and THE REGISTRAR OF DEEDS Ruled By: UCHENA J

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

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE Ruled By: MAVANGIRA J

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT Ruled By: GOWORA J

HH119-10 : THE STATE vs SEKAI NDORO Ruled By: UCHENA J

CC03-15 : BERNARD MANYARA vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED Ruled By: PATEL J

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE Ruled By: CHIWESHE JP

HH258-10 : KALAHARI PETROLEUM (PRIVATE) LIMITED vs WEBSTER NGWARU and CONFUELS (PRIVATE) LIMITED Ruled By: GOWORA J

HH201-10 : MABONDE AGRICULTURAL SERVICES and JACOB MABONDE and HAZEL MOYO vs SENTRIDGE INVESTMENTS (PRIVATE) LIMITED and PK CHIVAURA and O CHIKONYORA and OTHERS Ruled By: BHUNU J

HH275-10 : NOBLE GAPARE vs KAEN W. MOYO and RESIDENT MAGISTRATE, HARARE CIVIL COURTS and MESSENGER OF COURT Ruled By: MAKONI J

HH03-11 : JOYCE MADZORERA vs DAVID SHAVA Ruled By: CHATUKUTA J

HH57-11 : ELGATE INVESTMENTS (PVT) LIMITED and OTHERS vs THE MASTER OF HIGH COURT and WESLEY MILITALA and PARROGATE ZIMBABWE (PVT) LTD and OTHERS Ruled By: MTSHIYA J

HB61-11 : ZPRA VETERANS TRUST vs FALLEN HEROES TRUST and GEORGE RUTANHIRE and THERESA MAKONE, N.O. and KEMBO MOHADI (Co-Ministers of Home Affairs) Ruled By: MATHONSI J

HB118-11 : FANI MULEYA vs ROSINA MULEYA Ruled By: NDOU J and MATHONSI J

SC19-13 : PORTLAND HOLDINGS LTD vs MINISTER OF SPECIAL AFFAIRS IN THE PRESIDENT'S OFFICE Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

HB04-14 : TRISTAR INSURANCE COMPANY (PVT) LTD vs WILBERT CHIKANYA Ruled By: KAMOCHA J

SC52-15 : TRIANGLE LIMITED vs VUSIMUSU SIGAUKE Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

View Appeal SC24-16 : GUARDFORCE INVESTMENTS (PRIVATE) LIMITED vs SIBONGILE NDLOVU and THE REGISTRAR OF DEEDS N.O. and THE DEPUTY SHERIFF Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

SC29-17 : ZESA ENTERPRISES (PRIVATE) LIMITED vs ALOYCE ROY STEVAWO Ruled By: MALABA DCJ, GOWORA JA and BHUNU JA

View Appeal SC63-17 : UNIVERSITY OF ZIMBABWE vs KENNETH MUGUMBATE and GOHODZI GOHODZI and MASINIRE RICHARD and MATEKU RICHARD and MLAMBO TINASHE and NYAMUZIHWA RINASHE Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA

Appealed HH377-13 : KENNEDY GODWIN MANGENJE vs TBIC INVESTMENTS [PVT] LTD and FOUR OTHERS [Case 1] and MINISTER OF LANDS & RURAL RESETTLEMENT & 3 OTHERS [Case 2] Ruled By: MAFUSIRE J

HB22-16 : DHERERAI MANYONI vs THE COMMISSIONER GENERAL OF POLICE Ruled By: MATHONSI J

HB107-16 : MUNETSI BLESSING MASEDEWE vs MANYARA MASEDEWE Ruled By: BERE J

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

HB112-16 : ZIMBABWE REVENUE AUTHORITY vs SIKHANYISIWE MPOFU and CHRISTIAN NDLOVU and T. TASHAYA N.O. Ruled By: MATHONSI J

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

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

HH343-15 : SOURCE-NET (PVT) LTD and NELSON BANYA and ALFONCE MBIZWO and BERNARD MPOFU vs STEWARD BANK LIMITED and ECONET WIRELESS Ruled By: MUSAKWA J

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

HH250-18 : WIDE FREE (PVT) LTD t/a CORE SOLUTIONS vs MEIKLES LTD Ruled By: MUREMBA J

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT Ruled By: CHITAKUNYE J

HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS Ruled By: MATHONSI J

HH130-15 : ISRAEL CHIRANGWANDA vs ZIMBABWE LEAF TOBACCO and ADVOCATE DAVID OCHIENG Ruled By: MAKONI J

View Appeal SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HB53-16 : RAILINGS ENTERPRISES (PVT) LTD T/A PAROAN TRUCKING vs DOWOOD SERVICES (PVT) LTD /T/A BRADFIELD MOTORS and DAVID LUWO and ROSE LUWO Ruled By: MATHONSI J

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Zimbabwe

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

HB23-09 : LARRY BEN MPOFU vs MIKA PARIRA MPOFU AND TWO OTHERS
Ruled By: NDOU J

HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS
Ruled By: PATEL J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

HH23-12 : AUSTIN ZVOMA vs LOVEMORE MOYO N.O. and NOMALANGA KHUMALO N.O .and BRIAN TSHUMA N.O. and SHEPPARD MUSHONGA N.O. and EDNA MADZONGWE N.O. and WILLIAS MADZIMURE N.O. and LYNETTE KARENYI N.O.
Ruled By: BERE J

HH94-09 : MATANDA (PRIVATE) LIMITED vs ONIAS GOTORE
Ruled By: MAKONI J

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

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

HH14-10 : SOBUZA GULA-NDEBELE vs CHINEMBIRI ENERGY BHUNU N.O.
Ruled By: MAKARAU JP

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

HH70-10 : CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs ELSON M JAKAZI and ALEX & WEBB REALITY and THE REGISTRAR OF DEEDS
Ruled By: UCHENA J

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

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

HH119-10 : THE STATE vs SEKAI NDORO
Ruled By: UCHENA J

CC03-15 : BERNARD MANYARA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE
Ruled By: CHIWESHE JP

HH258-10 : KALAHARI PETROLEUM (PRIVATE) LIMITED vs WEBSTER NGWARU and CONFUELS (PRIVATE) LIMITED
Ruled By: GOWORA J

HH201-10 : MABONDE AGRICULTURAL SERVICES and JACOB MABONDE and HAZEL MOYO vs SENTRIDGE INVESTMENTS (PRIVATE) LIMITED and PK CHIVAURA and O CHIKONYORA and OTHERS
Ruled By: BHUNU J

HH275-10 : NOBLE GAPARE vs KAEN W. MOYO and RESIDENT MAGISTRATE, HARARE CIVIL COURTS and MESSENGER OF COURT
Ruled By: MAKONI J

HH03-11 : JOYCE MADZORERA vs DAVID SHAVA
Ruled By: CHATUKUTA J

HH57-11 : ELGATE INVESTMENTS (PVT) LIMITED and OTHERS vs THE MASTER OF HIGH COURT and WESLEY MILITALA and PARROGATE ZIMBABWE (PVT) LTD and OTHERS
Ruled By: MTSHIYA J

HB61-11 : ZPRA VETERANS TRUST vs FALLEN HEROES TRUST and GEORGE RUTANHIRE and THERESA MAKONE, N.O. and KEMBO MOHADI (Co-Ministers of Home Affairs)
Ruled By: MATHONSI J

HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

SC19-13 : PORTLAND HOLDINGS LTD vs MINISTER OF SPECIAL AFFAIRS IN THE PRESIDENT'S OFFICE
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

HB04-14 : TRISTAR INSURANCE COMPANY (PVT) LTD vs WILBERT CHIKANYA
Ruled By: KAMOCHA J

SC52-15 : TRIANGLE LIMITED vs VUSIMUSU SIGAUKE
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

View Appeal
SC24-16 : GUARDFORCE INVESTMENTS (PRIVATE) LIMITED vs SIBONGILE NDLOVU and THE REGISTRAR OF DEEDS N.O. and THE DEPUTY SHERIFF
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

SC29-17 : ZESA ENTERPRISES (PRIVATE) LIMITED vs ALOYCE ROY STEVAWO
Ruled By: MALABA DCJ, GOWORA JA and BHUNU JA

View Appeal
SC63-17 : UNIVERSITY OF ZIMBABWE vs KENNETH MUGUMBATE and GOHODZI GOHODZI and MASINIRE RICHARD and MATEKU RICHARD and MLAMBO TINASHE and NYAMUZIHWA RINASHE
Ruled By: GWAUNZA JA, HLATSHWAYO JA and MAVANGIRA JA

Appealed
HH377-13 : KENNEDY GODWIN MANGENJE vs TBIC INVESTMENTS [PVT] LTD and FOUR OTHERS [Case 1] and MINISTER OF LANDS & RURAL RESETTLEMENT & 3 OTHERS [Case 2]
Ruled By: MAFUSIRE J

HB22-16 : DHERERAI MANYONI vs THE COMMISSIONER GENERAL OF POLICE
Ruled By: MATHONSI J

HB107-16 : MUNETSI BLESSING MASEDEWE vs MANYARA MASEDEWE
Ruled By: BERE J

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

HB112-16 : ZIMBABWE REVENUE AUTHORITY vs SIKHANYISIWE MPOFU and CHRISTIAN NDLOVU and T. TASHAYA N.O.
Ruled By: MATHONSI J

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

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

HH343-15 : SOURCE-NET (PVT) LTD and NELSON BANYA and ALFONCE MBIZWO and BERNARD MPOFU vs STEWARD BANK LIMITED and ECONET WIRELESS
Ruled By: MUSAKWA J

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

HH250-18 : WIDE FREE (PVT) LTD t/a CORE SOLUTIONS vs MEIKLES LTD
Ruled By: MUREMBA J

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS
Ruled By: MATHONSI J

HH130-15 : ISRAEL CHIRANGWANDA vs ZIMBABWE LEAF TOBACCO and ADVOCATE DAVID OCHIENG
Ruled By: MAKONI J

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HB53-16 : RAILINGS ENTERPRISES (PVT) LTD T/A PAROAN TRUCKING vs DOWOOD SERVICES (PVT) LTD /T/A BRADFIELD MOTORS and DAVID LUWO and ROSE LUWO
Ruled By: MATHONSI J