The Magistrates Court, being a creature of statute, should operate within the confines of monetary jurisdiction bestowed on it by law, re: section 11(b)(ii) and (iii) of the Magistrates' Court Act [Chapter 7:10].

When a Magistrates Court does what is not within its jurisdiction, the result of what it purports to do is void and it is a nullity in law with no force or effect. No benefit can be derived from it. It has been repeatedly stated that it is like trying to build something on nothing and expect it to stand, it will collapse.

The other argument which was raised by the applicant's counsel was that the Magistrates' Court did not have jurisdiction to deal with the matter.

I did not take this submission seriously as the lower court addressed this issue in its judgment as evidenced by the judgment of the lower court attached as Annexure H….,.

The applicant seeks a provisional order in the following terms:-

“Terms of the final order sought

That the provisional order granted by this honourable court be confirmed in the following manner:-

(a) The eviction of applicant be and is hereby set aside until the review matter under case number HC648/09 is finalized.

(b) The respondent be and is hereby ordered to pay costs of suit if it opposes the application.

Interim relief granted

Pending the finalization of the matter, the applicant be granted the relief:-

1. The eviction of applicant be and is hereby set aside until the review matter under case number HC648/09 is finalized.”

The salient facts of the matter are the following.

In September 2007, the applicant's Managing Director, one Elijah Makhulumo, was approached by his acquaintance, one Regis Sibanda. The latter informed him that the respondent's Managing Director, Hetnesh Sunan Patel, was looking for someone who may be interested in taking occupation of his property known as Number 49 Robert Mugabe Way in Bulawayo.

The applicant eventually took occupation of the property.

According to the applicant, it was given the property grantis. The property was derelict and required improvements.

According to the respondent, the applicant occupied the premises under a lease.

On 27 October 2008, the respondent issued summons proceedings in the Magistrates' Court, under case number 704/08, wherein the respondent sought ejectment of the applicant from the said disputed property. The applicant entered appearance to defend.

The applicant did not challenge the jurisdiction of the court at that stage.

Thereafter, the respondent applied for summary judgment on 25 November 2008. The applicant opposed the application for summary judgment in the following terms -

“(a) The building was verbally given to me by the applicant.

(b) I renovated the building to cost more than ten times that it was before (sic).

(c) The applicant is acting in bad faith by wanting the building back because of its new value.

(d) I have done a lot of improvements to the building...,.

It is very difficult for the court to just evict me when there is not even a certificate of eviction from the Rent Board.”

Even at this stage, the applicant did not challenge the jurisdiction of the Magistrates, Court.

The magistrate granted the application for summary judgment in favour of the respondent on 11 December 2008. The application was granted by default.

On 19 December 2008, the applicant applied for rescission of the said summary judgment.

Once more, there were no averments challenging the jurisdiction of the court.

On 27 March 2008, the magistrate dismissed the application for rescission filed by the applicant. The applicant filed a notice of appeal against this dismissal of the application for rescission.

In the notice of appeal, the jurisdiction of the Magistrates' Court was not challenged.

The respondent filed an application in terms of section 40 of the Magistrates' Court Act [Chapter 7:10], on 9 April 2009, for leave to execute pending appeal.

In opposing this application, the applicant, for the very first time, challenged the jurisdiction of the Magistrates' Court. For the first time, the applicant placed a value of UD$70,000= as the value of the improvements.

On the basis of this new averment, the applicant attacks the magistrate for not declining to hear the matter for want of monetary jurisdiction.

It is not clear how this value was supposed to have come to the attention of the magistrate if it was not pleaded, or averred, in the earlier proceedings...,. The applicant did not raise the defence of lack of jurisdiction when it opposed the summons, neither did the applicant do so during other proceedings.

On 28 April 2009, the magistrate granted the respondent leave to execute pending the appeal. Both parties' legal practitioners were present when the magistrate pronounced the judgment.

The first point in limine is –

Whether the High Court of Zimbabwe sitting in Bulawayo has jurisdiction

The background of this point is that this matter was first dealt with by the Harare Magistrates Court. Subsequent to that, the applicant appealed to the High Court, Harare, which appeal is pending and yet to be heard.

The cause of action also arose in Harare as the premises, the subject matter of the dispute, is in Harare.

The issue is whether there is a legal bar to the applicant's institution of these proceedings before the High Court sitting in Bulawayo.

The short answer is that there is no such legal bar. Section 13 of the High Court Act [Chapter 7:06] provides -

“13. Original Civil Jurisdiction

Subject to this, and any other law, the High Court shall have full original jurisdiction over all persons, and over all matters within Zimbabwe.”

It seems to me that there is only one High Court of Zimbabwe, with some of its judges operating from Harare, and others from Bulawayo. There is no law that provides otherwise.

This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance....,.

It is also my considered view, that, the Regional Court had the jurisdiction to order compensation as it did for section 367 of the Criminal Procedure and Evidence Act provides that:-

“Notwithstanding any enactment limiting the civil jurisdiction of the court concerned, any court, including the court of a Regional magistrate, may:

(a) Award compensation in terms of section three hundred and sixty two, three hundred and sixty three, or three hundred and sixty four in any amount; or

(b) Make an order in terms of section three hundred and sixty five for restitution of property, whatever the value of the property concerned.”

This is an opposed application wherein the applicant seeks the following relief:

“1. Respondent shall, within two hours of the service of this order on him, restore the following property to the applicant;

(a) Mitsubishi Pajero 3.0 Registration Number AAV-5956;

(b) Laptop HP Compaq 6720;

(c) Cellphone Samsung D880;

2. The cost of this application shall be borne by the respondent.”

The relief sought arises from the fact, that, upon termination of employment, the respondent retained the applicant's property which is being claimed in the relief quoted above.

It is common cause, that, prior to 18 September 2009, the respondent was employed by the applicant as its Health Services Manager. The respondent's employment was terminated on grounds of ill-health through an internal memorandum dated 18 September 2009. The memorandum reads as follows:

“I acknowledge receipt of your memo dated 15 September 2009 including medical reports from your doctor (Mr Macheka) and some clinical psychologist (Mr Broomberg).

The letter from Mr Macheka is very clear in stating that your ill-health is such that you will not be able to resume your job after the legally stipulated one hundred and eighty days. Mr Macheka states clearly, in reference to yourself, that:

'he needs more time off work for a full resolution of his injuries though at this point one cannot state a definite time-frame and will depend on future reviews and assessment in 2 months time.'

You have now exceeded your maximum sick leave in one year period of service (that is, from 11 March 2009 to 14 September 2009). It leaves the company with very little option, therefore, than to terminate your contract of employment forthwith (that is, with effect from 18 September 2009) in accordance with section 14(4) of the Labour Act [Cap 28:01].

Please note that due to your failure to obtain your doctor's certificate by 17 July 2009, as had been instructed and as re-iterated in previous communication to you, you have forfeited your chance of being terminated through the company's medical boarding process.

Your are thus instructed to surrender all company assets in your possession to the General Manager, Shurugwi not later than close of day on Monday 21 September 2009. For avoidance of doubt, the said assets include the company PAV, laptop, cellphone and line. Failure to surrender the said company assets will result in the company instituting any legal process necessary to recover any such assets.

Your terminal benefits, which include any outstanding salary and leave days up to 18/09/09 will be deposited into your account provided an exit form has been duly completed clearing you of any outstanding liabilities to the company. Your pension benefits from both the Zimasco Pension Fund and NSSA will be processed in the normal manner.”

Paragraph 6 of the above memorandum refers to the property that the applicant wants the respondent to return to it.

The respondent admits that the property belongs to the applicant but refuses to release the property on the ground of unfair dismissal.

In his opposing affidavit, the respondent states as follows:

“1. I wish to raise a point in-limine. It is common cause, that, on 9 October 2009, I instituted proceedings in the Labour Court challenging applicant's decision to terminate my employment contract summarily, see copy of proof of service and copy of the application of review and appeal attached hereto marked annexures (A), (B), and (C).

2. It is common cause that those proceedings are still pending and have not been disposed of.

3. There is, accordingly, a litigation pending between the parties on the same cause of action and in respect of the same subject matter in the Labour Court and this honourable court should decline to exercise its jurisdiction as this is purely a labour matter which should be dealt with and has been properly placed before the Labour Court.”

The respondent further declares:

“I will state that I am in possession of the items pending the settlement of the matter as stated in above Ad Para 3.”

The respondent therefore urged the court to dismiss the application.

In his submissions, counsel for the applicant stated, that, the applicant had satisfied the requirements for an action for vindication. This, he said, was largely so because the respondent himself admitted that the assets he was in possession of belonged to the applicant.

It was submitted, that, notwithstanding the provision of section 89(6) of the Labour Act [Chapter 28:08] (“the Act”), there was no pending matter in the Labour Court relating to an employment dispute between the applicant and the respondent. That being the case, it was argued, the respondent's plea of lis alibi pendens was misplaced.

The undisputed fact was that the applicant's application was filed on 8 October 2009 while the respondent's review application/appeal in the Labour Court was filed on 9 October 2009.

It was therefore the applicant's contention, that, for the special plea to apply, there must have been an appeal/application already pending in the Labour Court.

It was further stated, that, even if such an appeal/application were pending, the court had a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens.

In the exercise of that discretion, the court would have regard to the equities and the balance of convenience in the matter.

In casu, the applicant's argument was that, with the respondent's contract of employment having terminated on 18 September 2009, it wanted its assets restored for the advancement of its business activities. The respondent had no right to hold onto the assets.

It was further submitted, that, the subsequent action placed before the Labour Court by the respondent was based on an allegation of an unfair labour practice on the part of the applicant.

However, in casu, the applicant was seeking relief based on actio rei vindication.

The matters before the courts, according to the applicant, were therefore not based on the same subject matter.

That being the case, and based on its 'full original civil jurisdiction over all persons and over all matters within Zimbabwe' it was argued, this court had jurisdiction to entertain the application unless that jurisdiction is clearly ousted in terms of legislation.

The Labour Court, it was argued, as a special court, only dealt with matters provided for in the Labour Act.

There was no provision for an application for vindication in the Labour Act. This court therefore had the jurisdiction to deal with such an application, it was submitted.

In his supplementary Heads of Argument…, the respondent argued as follows:

“1.1. The applicant, through this application, seeks the restoration of certain property that is in the respondent's possession consequent upon the employment relationship that subsists between the parties.

1.2. It is common cause that there is an ongoing labour dispute between the parties herein, in which the respondent has made an application, to the Labour Court, for a determination of his dismissal as having been unfair.

1.3. It is also common cause that the application made by the respondent, in the Labour Court, falls within the ambit of the provisions of section 89(1) of the Labour Act, more particularly section 89(1)(a).

1.4. It also follows, therefore, that the provisions of section 89(6), quoted above, apply to this matter. While the application made herein is one for the restoration of the assets in the respondent's possession as a consequence of his employment, that issue cannot be related to in isolation from the main application made by the respondent in the Labour Court, which application has the potential of disposing of the whole issue once and for all.

1.5….,.”

Relying on Zimtrade v Malord Makaya HH52-05, the respondent submitted, that, the restoration of the applicant's property could not be separated from the determination of the labour dispute.

The matter, it was argued, fell within the provisions of section 89 of the Labour Act which gives the Labour Court powers to hear and determine issues in labour disputes in the first instance.

In support of his case, the respondent quoted from Zimtrade v Malord Makaya HH52-05 where MAKARAU J…, said:

“Notwithstanding the arguments advanced by Mr Dondo, I am of the opinion, that, matters relating to suspension from employment, with or without salary, and matters relating to dismissals, are specifically within the purview of the Labour Court as these are matters that are provided for in the Act and the regulations made thereunder. There is adequate provision under the Act for setting up machinery to resolve such disputes.

Thus, following my reasoning in the SIBANDA matter, the jurisdiction of this court is specifically ousted in respect of matters of dismissals and suspensions as these are specifically provided for the Act.”….,.

The respondent went further to state, that, the same principles alluded to in Zimtrade v Malord Makaya HH52-05 had been given the same force in T.O. Nyandoro v Cimas Medical Aid Society HC6652/08 where MAKARAU JP…, again said:

“I have had occasion to comment on the jurisdiction of this and the Labour Court in MARTIN SIBANDA & ANOR v BENSON CHINEMHUTE & ANOR HH131/04. In that matter, I came to the conclusion that section 89(6) of the Act takes away the jurisdiction of this and other courts in the first instance in all matters where the Labour Court has been specifically granted jurisdiction. The meaning that I gave to the section in that judgment was that whatever the Labour Court was specifically empowered to do, it would do exclusively. I remain of the same opinion.”…,.

I now come to the issue of jurisdiction.

In casu, the argument to deny this court jurisdiction is largely based on the provision of section 89(6) of the Labour Act which provides as follows:

“(6) No court, other than the Labour Court, shall have jurisdiction, in the first instance, to hear and determine any application, appeal, or matter referred to in subsection (1).”

It is not in dispute that this application is for vindication and is therefore not in terms of the Labour Act. However, the respondent argues that the property in question, having come into his possession through his employment by the applicant, that property cannot be separated from a dispute that relates to his employment.

The property formed party of his conditions of service as per the contract of employment.

Indeed, in his points in limine, the respondent states as follows:

“1. Respondent will argue that the determination of this has a direct and substantial effect on the outcome of the matter pending in the Labour Court in that the outcome of the matter in the Labour Court will resole the validity of the termination of the employment contract in terms of which the respondent acquired permission of the assets concerned.

Put differently, if the High Court were to rule in favour of the applicant it would have, in essence, accepted as fact, that the respondent's contract of employment was validly terminated by the applicant, yet that issue is not before the High Court.

Significantly, the High Court will have usurped the powers of the Labour Court to determine the validity of the respondent's employment contract.”

The respondent goes on to state as follows:

“Respondent admits that applicant is the owner of the assets and that respondent is in possession of the assets.

Respondent will argue that he is in possession of the assets in terms of an employment contract entered into between the parties; a copy of the contract is attached.

Respondent will further argue that the said contract of employment was unlawfully and summarily terminated by applicant by letter dated 18 September 2009. A copy of the letter is attached.”

A reading of the offer letter of employment will show that clause 20 thereof provides as follows:

“You will be entitled to purchase a company vehicle of your choice up to a certain value limit. Should you wish to procure a vehicle with a cost price in access of this limit, this will be approved, provided that the extra sum is paid in cash by yourself at the time of purchase.

All fuel and maintenance costs will be for your account, and your basic salary does include an allowance for fuel for business travel in and around Shurugwi/Gweru.

Your will be entitled to claim for any other prior approved business travel at A.A. Rate, less the portion of the rate for Insurance and Licensing.

Full details of the scheme will be available after acceptance of this employment opportunity.”

The foregoing clearly shows, that, the vehicle belonged to the applicant, and, in his heads of argument, the respondent states as follows:

“Respondent admits that the applicant is the owner of the assets and that the respondent is in possession of the assets.”

In paragraph 4.2. of his opposing affidavit, the respondent also states that:

“I will state that I am in possession of the items pending the settlement or the matter as stated in above AD Para 3.” (AD Para 3 refers to the settlement of the labour dispute in the Labour Court)

Furthermore, in item 13 of Annexure J of his opposing affidavit, the respondent states as follows:

“1. Under the contract I was employed, I have first option to purchase my PAV at book value. The policy was revised downwards and therefore should not affect me but new employees.

2. The vehicle which I am holding now, namely, a Mitsubishi Pajero AAV 5956 is subject to that condition.”

The above is also alluded to in item 10 of the same annexure where the respondent says:

“Re-imbursement for use of own car after amortizing my last vls (an Isuzu KB 320)

Basis of Claim

1. Some years ago, the vehicle policy was changed from a loan scheme to a company vehicle scheme because of increased maintenance costs.

2. One of the clauses was that 'employee on the current loan scheme may at any time amortise their loan and get onto the new company car scheme.'

3. I amortised my loan in terms of that policy and procedure.

4. The policy and procedure was immediately, that afternoon, changed to read that you needed approval of your general manager to amortize. This was AFTER I had amortized.

5. Despite this, I was penalized and went for 18 months without a company vehicle as required by my contract of employment. I also did not receive any compensation from the company for the use of my own vehicle for the period.

6. I calculated the financial loss for the period to be USD14,790 at prevailing exchange rates.”

The same issue of the vehicle is captured in his affidavit to the police, which affidavit is annexure 'B' to the applicant's founding affidavit. In paragraphs 3-13 the respondent states as follows:

“1….,.

2….,.

3. I am in possession of a Mitsubishi Pajero Reg. Number AAV 5956 registered in the name of Zimasco. I am in possession of a laptop computer belonging to Zimasco.

4. I have a cellphone line 0912286646 issued to me by Zimasco.

5….,.

6. Zimasco officically allocated the vehicle to me.

7. The above goods are subject of a labour dispute, which is still in process.

8. Zimasco, in turn, owes me a lot of money, which is subject of determination in the same labour dispute.

9. IT IS CATEGORICALLY NOT TRUE THAT THERE IS ANY THEFT INVOLVED.

10. I HAVE NOT STOLEN THE VEHICLE FROM ZIMASCO ANY MORE THAN ZIMASCO STOLE THE MONEY THEY OWE ME FROM ME.

11. I HAVE NO INTENTION OF KEEPING THE VEHICLE ANY LONGER THAN BEYOND THE LEGAL DETERMINATION OF THE MATTER.

12. I AM MERELY KEEPING THE ITEMS IN SAFE CUSTODY AS ZIMASCO IS ALSO KEEPING IN SAFE CUSTODY WHAT I BELIEVE OWE ME.

13. THIS IS A PURELY CIVIL DISPUTE MATTER SUBJECT TO DETERMINATION BY THE JUDICIARY PROCESS OF THE REPUBLIC OF ZIMBABWE.”

From the foregoing, I am informed that there is indeed a labour dispute still raging in the Labour Court.

That fact is not disputed by the applicant.

The respondent's position is that once that labour dispute is resolved he will surrender the applicant's assets, if need be.

I say 'if need be' because the Labour Court's decision is not yet known.

However, if the Labour Court were to rule in his favour, the withdrawal of the assets from him, at this stage, would lead to serious prejudice on his part, which prejudice the applicant cannot easily compensate him for i.e loss of use of motor vehicle for the period prior to the Labour Court's determination.

I hold the view, that, the total cost to the employer, of retaining an employee, includes the employee's salary and all benefits.

I would, therefore, on that basis, find it untenable, in casu, to remove the assets in question from the respondent's disputed contract of employment.

The employer's obligation to meet total costs of retaining an employee only vanish when employment is finally terminated.

The labour dispute now before the Labour Court is based on a contract of employment.

The assets in casu clearly form part of the respondent's conditions of service (in particular the vehicle).

In any case, the respondent is at liberty to apply to the Labour Court for the continued enjoyment of his full employment benefits until that court makes a final determination on the issue of his dismissal. It would therefore be premature to remove from him the assets that are linked to the labour dispute that he has placed before the Labour Court.

To that end, I am unable to distinguish this matter from Zimtrade v Malord Makaya HH52-05 where MAKARAU J…, ruled that in certain circumstances “an employee can always raise the defence of a claim of right to possess the property of an employer until he or she is effectively and lawfully dis-entitled to the property.”

We have, in casu, a situation where the respondent is saying:

“I was unlawfully dismissed, and, before the unlawful dismissal, I was entitled to the use of the assets which are the subject matter of this application. My case is now before the Labour Court where I am demanding my employment back together with all benefits attaching to my employment.”

The applicant has drawn my attention to the case of Unimark Distributors (Pvt) Ltd v ERF 94, Silvertondale (Pvt) Ltd 1999 (2) SA 986…, where the following appears:

“But, there can be little doubt, that, one of its incidents (dominium) is the right of exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found from whosoever holding it. It is inherent in the nature of ownership that possession of the res should be normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some rights enforceable against the owner, e.g. right of retention or a contractual right.”

I agree with the above.

I am, in casu, of the view, that, the respondent's disputed contract of employment gives him the right to hold onto the assets until the Labour Court declares that he does not enjoy such a right.

The respondent is not merely saying: “I am holding onto the assets because you owe me money.”

A reading of his affidavit to the police might paint that picture. However, the issue goes beyond that. He is actually saying:

“I have a contractual interest in these assets as they form part of my conditions of employment. I shall only release the assets when the Labour Court confirms my dismissal.”

I further believe, that, it is the Labour Court that shall determine whether or not the changed policy relating to vehicles applied to the respondent as alleged by him in his papers.

That being the respondent's argument, the issue of a lien does not arise.

My view is that section 89(6) of the Labour Act, as quoted in this judgment, clearly gives exclusive jurisdiction to the Labour Court in all labour disputes.

Given the wording of that section, I do not see how any other court can seek to place itself as a court of first instance in any labour dispute.

Admittedly, parties retain the right to follow the arbitration route.

Notwithstanding its inherent jurisdiction, I think this court should go a long way to give effect to the legislature's intentions in creating a special court to deal with all labour disputes in the country.

Clearly, in terms of section 89(6) of the Labour Act, the power to hear and resolve the labour dispute between the parties in casu resides in the Labour Court.

Indeed, as I have already said, an attempt by any other court, at this stage, to deal with any aspect of the dispute, would certainly amount to interference with the special functions bestowed on the Labour Court by the legislature.

That is the reason why the legislature was quite specific as to clearly state that “no court, other than the Labour Court” would have jurisdiction in the first instance to hear and determine matters of this nature.

This is a case of dismissal from employment and therefore a labour dispute.

I therefore believe, that, once any other court is satisfied, in a matter placed before it, that the issues for determination therein are entirely anchored on a labour dispute, then, such court should immediately refer the matter to the special court, namely, the Labour Court.

Such a move, would, in my view, be in line with the intentions of the legislature as spelt out in the Labour Act.

I therefore find merit in the respondent's opposition to this application. The application cannot therefore succeed.

I accordingly order as follows:

1. The application be and is hereby dismissed.

2. The applicant shall pay costs of suit.

Jurisdiction

The applicant has taken issue with the trial magistrate's jurisdiction on the basis that the value of the property exceeds the Magistrates Court jurisdiction.

The parties in this matter appeared before a magistrate in the Community Court. The plaintiff was seeking a decree for divorce, custody and maintenance of the two minor children and a share of the property acquired during the subsistence of their unregistered customary law union.

The plaintiff listed in her declaration the property purchased during the unregistered union thus:

1. House Number 5 Greystoke Road, Morningside, Bulawayo;

2. House Number 5503, Luveve 4, Bulawayo;

3. House Number 493 Elly Road, Killarney, Bulawayo;

4. Mark II Toyota vehicle registration number ZW 006087;

5. Mazda 323 Familia;

6. 3 bedroom suits;

7. 3 television sets;

8. Sofas;

9. Refrigerator;

10. Stove; and

11. Flea market stock

The defendant, in his plea, raised a point in limine that the plaintiff's claim was ill-founded and not based on law and further pointed out the value of the property listed supra was in excess of the monetary jurisdiction of the magistrate sitting as a Community Court. These points were raised at the commencement of the trial.

There can be no doubt that the listed property far exceeds the monetary jurisdiction of the magistrate, in particular, the value of the three immovable properties. The parties should have instituted their proceedings in the High Court in respect of the distribution of the property. Since the union of the parties was not registered, the Community Court can adjudicate upon the marital relationship in terms of the proviso to section 16(1)(d) of the Customary Law and Local Courts Act [Chapter 7:05]. Section 16(1)(b)(ii) of the Customary Law and Local Courts Act [Chapter 7:05] prohibits the Community Court from dealing with claims whose monetary value exceeds one hundred dollars ($100=). The plaintiff should not have instituted the proceedings in that court. It is specifically prohibited by law from doing so.

The plaintiff's claim for the maintenance of the two minor children should have been taken to the appropriate Maintenance Court.

After the defendant had raised the above points in limine and sought for a ruling from the Community Court, the presiding officer held the view that the properties should first be evaluated before he could make an informed decision. That in, my view, would not have been necessary at all because even the value of the movables alone, without the three (3) houses, would far exceed a hundred dollars.

The parties, through the Clerk of Court of the Community Court, forwarded the record of proceedings to the Registrar of this court to be placed before a Judge for directives.

In addition, the applicant says that in terms of S.I. 21 of 2009 the maximum monetary jurisdiction of a Civil Magistrates Court is pegged at $2,000=. Therefore, even if the third respondent, a criminal court, were to qualify as a Civil Court, it would not have had jurisdiction to order eviction with regards to a property whose value is well in excess of the given monetary jurisdiction.

Accordingly, says the applicant, the third respondent's eviction is a nullity for want of jurisdiction.

Counsel for the second, third and fifth respondents further stated that the monetary jurisdiction for magistrates, as may be prescribed from time to time, is not relevant to cases under section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] as that section confers unlimited monetary jurisdiction with respect to eviction orders.

It seems to me that this whole appeal was not properly thought out before, during and after it was filed.

Clearly, the court a quo also failed to determine the issues, particularly the issue of jurisdiction which had been pleaded and raised in court. The appellant's lawyers ended up confused with regard to the issue of jurisdiction for they were the ones who had approached the court seeking a sharing of property, but they later argued against the issue of jurisdiction when it was raised by the respondent. As a result, the appellant ended up contradicting himself. To make matters worse all that escaped the learned magistrate. The magistrate simply ordered, at the commencement of the trial, that the matter continues without giving any reasons.

It is my considered view that the magistrate should have declined to deal with this matter for want of a cause of action which would have enabled the court to exercise its jurisdiction. The law of jurisdiction in the Magistrates Court was stated in Hatfield Town Management Board v Mynfred Poultry Farm [Pvt] Ltd 1962 RLR…,.

“It has repeatedly been stated that the magistrates court is a creature of statute and has no jurisdiction beyond that granted by statute. It has no inherent jurisdiction such as is possessed by the superior courts and may claim no authority which cannot be found within the four corners of its statute.”

In terms of section 11(1)(b) of the Magistrates Court Act [Chapter 7:10]:

“1. Every court shall have, in all civil cases, whether determinable by the general law of Zimbabwe or by customary law, the following jurisdiction –

B) …, with regard to causes of action-

(iv) In cases in which is claimed a decree of divorce, judicial separation or nullity of a marriage solemnized in terms of Customary Marriages Act [Cap 3;07], including actions relating to the division, apportionment or distribution of the assets, whether movable or immovable, of spouses or former spouses of such marriages and the payment of maintenance in terms of the Matrimonial Causes Act [Cap 5; 13].”

I agree with the view expressed by the appellant's counsel in that there is nothing in the particulars of claim which sets out a cause of action recognized in terms of section 11(1)(b) of the Magistrates Court Act [Chapter 7:10]. In Mashingaidze v Mugemba HH03-99 GWAUNZA J…, expressed the following view -

“However, while I would support the view that a proven unregistered customary law union should be treated like any other marriage when it comes to dissolution and division of assets jointly acquired by the parties during its subsistence, such a view is currently not supported by the law.”

In casu, there is no allegation of a customary union between the parties. Customary law cannot be applied since the parties did not have a customary union. General Law cannot be applied either, as there is no cause of action pleaded - and none seems to be applicable to the particulars of claim set out.

In Manning v Manning 1986 [2] ZLR [S] the court set aside a Village Court determination which had been exercised outside the jurisdictional limits of the Customary Law and Primary Courts Act. It is without doubt that nothing was placed before the court a quo to enable it to exercise its jurisdiction. It is for that reason that I hold that the magistrate should have declined to deal with the matter.

The third error related to the issue of jurisdiction.

Where the court determines that it is just to deal with the distribution of assets in a customary union in terms of the General Law then the ordinary monetary jurisdiction for that court applies. No evidence was led in this matter to show the monetary value of the property which had accrued to the parties during the course of their union. In my view, however, the fact that the property includes an immovable property would probably place it beyond the magistrate's monetary jurisdiction. In terms of the Magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules 2009 published in S.I.21 of 2009 on 6 March 2009 the monetary jurisdiction for civil claims in the Magistrates Court was set at US$2,000=. I do not believe that that amount would have been sufficient to cover the value of the immovable property in question as well as the long list of movables which were set out in the appellant's particulars of claim.

Accordingly, for the above reasons, I make the following order:

1. The appeal is allowed.

2. The order of the court a quo is hereby set aside.

Section 11 of the Magistrates Court Act [Chapter 7:10] provides, in relevant part, as follows:-

“11 Jurisdiction in civil cases

(1) Every court shall have, in all civil cases, whether determinable by the general law of Zimbabwe or by customary law, the following jurisdiction -

(a)…,.

(b) With regards to causes of action -

(i)…,.

(ii) In actions in which is claimed the delivery or transfer of any property, movable or immovable, where the value of such property does not exceed such amount as may be prescribed in rules…,.

(iii)…,.”

In the Magistrates Court (Civil Jurisdiction) (Monetary Limits) Rules, Statutory Instrument 142/08, S.I.142 of 2008, gazetted on 3 October 2008, the Minister of Justice, Legal and Parliamentary Affairs fixed the monetary jurisdiction of the Magistrates Court in respect of actions for delivery or transfer of movable or immovable property at Z$500,000=. Following the introduction of the multiple currency system, statutory instrument 142/08 was repealed and replaced by Statutory Instrument 21/09, S.I.21 of 2009, which fixed the maximum monetary jurisdiction of the Magistrates' Court at US$2,000=. Statutory Instrument 21/09 was in turn repealed by Statutory Instrument 163/12, S.I.163 of 2012 which fixed the maximum monetary jurisdiction in actions for transfer of immovable property at US$10,000.00= which is the current monetary limit.

It is clear from the aforegoing that in October 2008, the Magistrates' Court had no jurisdiction to order transfer of immovable property whose value exceeded Z$500,000= and that currently the monetary limit stands at US$10,000=.

The plaintiff seeks provisional sentence against the defendant in the sum of $6,606=48, which itself falls squarely within the jurisdiction of the Magistrates Court, but has been brought to this court for unknown reasons. 

Jurisdiction

The third preliminary point taken by the respondent is that the present application should have been brought in the High Court in Harare and not before the High Court in Bulawayo.

This point was not seriously pursued by the respondent suffice it to state that the High Court at Bulawayo has equal jurisdiction to the High Court at Harare. It has been customary, for the sake of convenience to the litigants, for parties to file their claims in Harare where all the respective parties all operate from Harare. Where the parties are located in Bulawayo, it has also been traditional for proceedings to be instituted at Bulawayo as this has a direct bearing on costs. I do not consider that there is any relevant factor that would oust the jurisdiction of this court in this matter. The matter is already before the court and since the filing of the application, in April 2015, the parties have filed extensive papers arguing the respective positions of the parties. 

In terms of section 3(2) of the Children's Act, every Magistrates Court is a Children's Court for any part of its jurisdiction.

The Magistrates Court, being a creature of statute, cannot exercise jurisdiction which is not conferred upon it by statute.

The appellant is a retired soldier. On 30 January 2015 he filed an application for a declaratory order with the Magistrates' Court at Masvingo. The relief sought in that application was in the following terms:

“1. Luckson Mateure is the lawful owner of Mateure homestead and fields in Gono Village, Chief Sumba, Chikavu, Chekai Area, Masvingo Rural District.

2. Luckson Mateure is entitled to do any activities including farming at the said homestead.

3. That the respondent pays the costs.”

The appellant's claims were dismissed by the magistrate in a brief judgment as follows:-

“Application for a declaratory order dismissed. The reasons are that an application for a declaratory order is unknown in the Magistrates' Court. Further, the applicant's failure to highlight in terms of which law the application is made makes the situation worse. The Magistrates' Court is a creature of statute and where an application like this one is not made in terms of the Magistrates' Court Act or the Magistrate's Court Civil Rules, this court lacks jurisdiction to entertain such application.”

Aggrieved by the decision of the Magistrates' Court, the appellant has now noted an appeal against that decision to this court. The appeal is anchored on the following grounds of appeal:-

“1. The court erred in concluding that the Magistrates' Court lacked jurisdiction to entertain an application for a declaratory order.

2. The court erred in not considering the application for a declaratory order by the appellant.

3. Wherefore, appellant prays that the ruling by the court a quo be set aside and be substituted by an order that the court a quo has the jurisdiction to consider applications for declaratory order and the court a quo must consider the appellant's application.”

Factual Background

The appellant contended, in his application before the Magistrates' Court, that he was allocated a piece of land by the Village Head, with the permission of Chief Shumba Chikava Chekai. The appellant then constructed a homestead for his family. The homestead comprised a five-roomed house, a two roomed flat roofed house under zinc, and cattle pens. The applicant averred that he regards the property in question as his only permanent home. The appellant indicated that he had been welcomed by the local Chief in a letter dated 17^th June 2012.

A dispute arose between the appellant and the respondent.

The respondent claims that the land upon which the appellant erected his homestead belongs to his late brother, Samson Chidumwa. This led to confrontation between the parties. Both the appellant and the respondent claim that the piece of land belongs to them. The Village Head failed to resolve the matter resulting in the matter spilling into the courts. The appellant approached the Magistrate's Court seeking a declaration that he was the lawful owner of the land in question.

Whether the Magistrates' Court has jurisdiction to grant an application for a Declaratory Order

The issue for determination by this court is simply whether or not the Magistrates' Court is empowered to grant a declaratur.

The appellant's counsel…, argued that in terms of section 85(1) of the Constitution of Zimbabwe (Amendment) No.20, 2013, this provision not only brought additional rights and liberties but it clearly empowers every court to make a determination on these rights and liberties whenever they are infringed or are likely to be infringed.

Section 85 of the Zimbabwe Constitution provides as follows:-

“Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely;

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of person;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;

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

It was argued, on behalf of the appellant, that the right to convene proceedings under subsection (1) of section 85 gave authority to any court, including the Magistrates' Court, to grant an order for a declaratur. It was further argued that before the advent of the new Constitution, only Superior Courts were seized with the jurisdiction to hear an application for a declaratory order. The appellant's counsel argued that the position changed by virtue of section 85 of the Constitution and that any court can make a determination regarding the rights and liberties of any person, including the Magistrate's Court.

The appellant's case is predicated upon the assumption that section 85 of the Constitution now takes away the power conferred by the High Court in terms of section 14 of the High Court Act [Chapter 7:06]. That assertion cannot be a correct interpretation of the law. Section 14 of the High Court Act specifically provides as follows:-

“The High Court may, in its discretion, at the instance of any interested person, enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I am not persuaded that section 85 of the Constitution confers any rights upon the Magistrates' Court to grant orders for a declaratur….,.

Now, dealing with the issue of whether the Magistrate's Court has the jurisdiction to entertain, let alone grant, declaratory orders, there can be no doubt the Magistrates Court has no power to issue declaratory orders.

The learned magistrate in the court a quo was correct when he dismissed the application on the grounds that he had no jurisdiction to deal with the matter. The High Court is empowered, in terms of section 14 of the High Court Act [Chapter 7:06] to make declaratory orders. The Magistrate's Court is a creature of statute. It operates in terms of the powers conferred upon it by the legislature. The Magistrates Court cannot arrogate to itself powers that are not conferred upon it by statute….,.

The issue of the power of the High Court to grant declaratory orders was canvassed in the case of AGRIBANK v Machigauta & Another 2008 (10) ZLR 244 (S), where GARWE JA, stated…, as follows:

“The above case does not in fact support the appellant's contention that the High Court has no jurisdiction to hear the application. To the contrary, the case is authority for the proposition that the High Court retains its original jurisdiction to grant declaratory orders, even in labour disputes.”

In the case of Johnsen v AFC 1995 (1) ZLR 65, GUBBAY CJ had the occasion to consider when a declaratur can be granted. He stated…, as follows:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court Act 1981 is that the applicant must be an 'interested' person in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future, or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto.”

I am not inclined to agree that the appellant established that the Magistrates' Court has jurisdiction to hear an application for a Declaratory Order. That right is vested in the High Court in terms of section 14 of the High Court Act [Chapter 7:06]. The appellant did not point to the violation of a fundamental right in terms of the Constitution. In any event, section 85 of the Constitution does to give the Magistrate's Court the power to deal with applications for declaratory orders.

The appeal clearly has no merit. In the result, the appeal is hereby dismissed.

I must observe here that the issue of the monetary jurisdiction of the Magistrates Court was not ventilated in the proceedings in the court a quo.

A five roomed house and a two-roomed flat roofed house, in a rural setting, could very well exceed a value of $10,000=. On that basis alone, the Magistrate's Court would not be empowered to deal with the mater.

This was an application for review.

The second respondent was a Provincial Magistrate. At all relevant times she was stationed at Zaka, one of the districts in the Province of Masvingo. It was the proceedings before her in the court below that were brought on review.

On 25 August 2017 she granted a rule nisi ex parte. It was a provisional order of spoliation against the applicants herein [respondents therein], in favour of the first respondent herein [applicant therein] [hereafter referred to as “Mutema”]. The alleged spoliation was in respect of certain business premises situate at Nyika Growth Point, Bikita, namely, Stands 745; 746; 747; 748 and 749 and certain items thereon. The businesses being run on those premises comprised a butchery, a supermarket, a takeaway or kiosk, and a warehouse.

Following the order of spoliation, the applicants were evicted from the premises. Occupation was granted to the respondents.

The main protagonists have always been Mutema and the first applicant herein [“Mutangiri”]. Mutangiri anticipated the return date of the rule nisi. He filed a notice of opposition alleging that the ex parte rule nisi had been procured on the basis of false information. He pressed for the discharge of the rule and a penal order of costs. His grounds, in my own paraphrase, and not necessarily in the order that they were raised, were these:

(i) Mutema and his people were not despoiled. It was him and his own people who had, at all material times, since May 2016, been in occupation of the premises and running the businesses thereon.

(ii) The premises had previously belonged to a company called Mutema Brothers [Private] Limited in which Mutema had been a major shareholder. The company had gone bankrupt and had been placed under liquidation. The liquidator, who had assumed legal ownership and physical control of the premises, and in terms of a written agreement of sale dated 18 May 2016, which Mutema had signed as the first witness, had sold the premises to Mutangiri for $100,000=. It was following that agreement, and in terms of a clause therein that allowed him to take immediate occupation of the property, that Mutangiri and his people had started running those businesses from those premises.

(iii) Neither Mutema nor any of his people had been in occupation. Mutangiri had no lease or any agreement of any kind with Mutema that would have allowed Mutema and his people to be on the premises.

(iv) Mutema was guilty of forum shopping. The premises were in Bikita. There was a Magistrate Court at Bikita. But he had gone all the way to Zaka and obtained, ex parte, a rule nisi on the basis of which he had assumed occupation of the premises.

Mutema filed an answering affidavit.

He maintained that he had been in occupation of the premises on the permission of the liquidator. As proof, he attached several documents in the form of shop licences; Zimbabwe Revenue Authority [ZIMRA]-linked fiscal invoices; and an affidavit by the liquidator. The liquidator confirmed Mutema's occupation of the premises by his permission. He denied any right of occupation as might have been bestowed by himself on Mutangiri.

Mutema also refuted the allegations of forum shopping. He argued that any Provincial Magistrate's Court is reposed with territorial jurisdiction in the entire province in which it may be situated notwithstanding that it may be located in a particular district. He said he had been forced by circumstances to seek the order of spoliation from the Magistrate Court at Zaka because at the crucial moment the magistrate ordinarily stationed at Bikita had not been available.

On the return date, argument by counsel focused mainly on factual disputes centred on whether or not Mutema had proved spoliation.

Judgment was reserved. But before it was delivered, and through an advocate, one Mr T Mpofu, Mutangiri filed some supplementary heads of argument. In them, it was first argued that a litigant had a right to bring up any point of law at any time before judgment is passed. The heads then went on to challenge the monetary jurisdiction of the second respondent. It was argued that before the rule nisi was granted, and certainly before it could be confirmed or discharged, it had been incumbent upon the second respondent to carry out an enquiry, in terms of section 12 of the Magistrates' Court Act [Chapter 7:10], to ascertain whether or not she had the requisite jurisdiction. It was argued that she did not. The value of Mutema's occupation was way above the monetary limit of jurisdiction of a Magistrate's Court, which, for this type of dispute, is ten thousand dollars [$10,000=].

Advocate Mpofu's heads of argument also made the point that the order of spoliation had improperly been granted on the basis of a mere prima facie case. It was said the evidence of this was the rule nisi itself. The law supposes that an order of spoliation is a final order which should be granted only on the basis of a clear right proved on a balance of probabilities. It was argued that in casu, neither Mutema's occupation of the premises, nor his right thereto, had been proved at all.

Faced with a one-sided argument on jurisdiction, the second respondent directed Mutema to also file supplementary heads of argument to deal with the point. He did. He maintained that the second respondent had jurisdiction on account of the fact that the value of his occupation of the premises, which he had sought to be restored into, had to be measured on the basis of the average amount of profit that he generated from the business on a monthly basis. He said it amounted to seven thousand dollars [$7,000=] per month.

In her final judgment, the second respondent dismissed Mutangiri's challenge on jurisdiction. She held that in matters of this nature 'value' is placed on the subject matter, not on the value of the property per se. She said the subject matter was the occupation of the premises and Mutema's point of sale machines. She rejected the notion that 'value' could relate to the market value of the premises, or the value of the business, or the value of the stock. Finding that Mutema had indeed been despoiled, she confirmed the rule nisi.

In this review application, the parties more or less replayed the same arguments as in the court below. I summarize the issues as they were presented as follows:

(i) Whether or not the second respondent had the monetary jurisdiction to deal with the dispute.

(ii) Whether it was competent for the second respondent to grant, ex parte, an order of spoliation on the basis of a mere prima facie right, as opposed to a clear right proved on a balance of probabilities.

(iii) Whether there had been a material misjoinder of an essential party to the dispute, namely, Mutema Brothers [Private] Limited, as the original owner of the properties.

(iv) Whether the second respondent had been faced with a dispute of fact so material as to disable her from resolving the matter on the papers.

(v) Whether Mutema had in fact been despoiled.

Both parties agreed that the issue of jurisdiction went to the root of the matter. Only after I found that the second respondent had jurisdiction would I proceed to consider the rest of the other issues. Therefore, here is my judgment on the issue of jurisdiction.

Two aspects of the order of spoliation by the second respondent read as follows:

“(a) Pending the return date of the Rule Nisi, the Respondents be and are hereby ordered to unlock the butchery, bakery, takeaway and supermarket located on Stands 745, 746, 747, 748 and 749 Nyika Growth Point, Bikita and immediately return the keys for same to the Applicant upon service of this order, failing which the Messenger of Court be and is hereby authorized to so act….,.

(b) Pending the return date of the Rule Nisi, the Respondents are to restore Applicant's point of sale machines and remove their point of sale machine(s) from the butchery, bakery, takeaway and supermarket operating from Stands 745, 746,747, 748 and 749 Nyika Growth Point, Bikita, failing which the Messenger of Court be and is hereby authorized to so act.”

What do the words underlined above mean? What exactly did the second respondent order to be done?

Plainly, the words meant Mutangiri was to restore to Mutema possession of the premises and of the goods in the shops thereon, and, of course, the point of sale machines. Although she did not use the word “deliver”, nonetheless that was what she effectively ordered. She ordered that Mutangiri, failing him, the Messenger of Court, was to 'deliver' those premises and those goods back to Mutema.

How? By unlocking the premises.

And do what else? Immediately return the keys for the premises to Mutema.

That was classically clavium traditio, a form of symbolical delivery where, for example, delivery of goods in a warehouse or storeroom, or a car, is achieved by the handing over of the key to the warehouse, or of the car, to enable someone to take possession and control: see SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed….,.; JTR GIBSON South African Mercantile and Company Law, 8^th ed….,.; and G BRADFIELD & K LEHMANN Principles of the Law of Sale & Lease, 3^rd ed….,.

The second respondent's order did not only end with delivery to Mutema. It went on to order the eviction of Mutangiri and his people. Paragraph [d] read:

“The Messenger of Court, Bikita or Zaka be and is hereby directed, authorized and empowered to unlock the butchery, bakery, takeaway and supermarket on Stands 745, 746, 747, 748 and 749 Nyika Growth Point, Bikita and evict the Respondents and restore possession of same to Applicant.”

So, if the order of the second respondent was directing Mutangiri to 'deliver' the premises and the businesses back to Mutema, and the Messenger of Court to 'evict' Mutangiri if he did not vacate by himself, what was the value of occupation to Mutema? If Mutangiri did not comply, what was Mutema losing? How would this loss be assessed objectively?

Mutema claimed that the value of the spoliation upon him and his people amounted to the value of his profit per month. He put this profit at seven thousand [$7,000=] per month. The only time he dealt with the question of the second respondent's monetary jurisdiction was paragraph 9 of his founding affidavit to the ex parte application. He said:

“Jurisdiction

9. The business operations I run at the aforesaid premises give me an average profit of plus of [sic] minus seven [7] thousand United States dollars per month, and, therefore, this Honourable Court has the jurisdiction to entertain this matter on the basis of the value derived from my occupation being within the monetary jurisdiction of this Honourable Court.”

The second respondent seemed to agree. In her ruling on the point she said:

“In their supplementary heads, the respondents also averred that this court has no monetary jurisdiction to deal with this matter. In this regard, it is trite to note that in applications of this nature value is placed on the subject matter and not the value of the property per se. In this case, the subject matter, as per the interim order, is occupation of the premises situated on the 5 Stands mentioned earlier as well as the return of the applicant's point of sale machines. Value is not about the market value or the value of the business as wrongly put by the respondents; neither is it value of stock as wrongly put by the applicant. It is also trite that the issue of stock was never prayed for by the applicant. That being the case then this court has jurisdiction to deal with this matter.”

With respect, I have not quite followed the reasoning by the second respondent.

But, regarding Mutema's paragraph 9, not only was there no evidence of any sort on this seven thousand dollars value, but also there was no basis laid down for this particular mode of computation. Both the figure and the mode of computation seemed plucked straight from the air. But that is not my major concern. The second respondent, with all due deference to her, manifestly misdirected herself.

Here is how.

By section 12 of the Magistrates Court Act [Chapter 7:10], Magistrates' Courts have the jurisdiction, among other things, to grant spoliation orders. However, this power is made subject to the limits of jurisdiction prescribed by the Act.

It is section 11 of the Magistrates Court Act [Chapter 7:10] that governs the civil jurisdiction of the Magistrate's Courts. In this regard, subsection [1], paragraph [b], sub-paras [ii] and [iii], and the proviso thereto, say:

“11 Jurisdiction in civil cases

[1] Every court shall have, in all civil cases, whether determinable by the general law of Zimbabwe or by customary law, the following jurisdiction -

[a]…,.;

[b] With regard to causes of action -

[i]…,.;

[ii] In actions in which is claimed the delivery or transfer of any property, movable or immovable, where the value of such property does not exceed such amount as may be prescribed in rules, whether in lieu of or in addition to any other claim, which shall include a claim for the cancellation of any agreement relating to such property;

[iii] In actions of ejectment against the occupier of any house, land or premises situate within the province:

Provided that, where the right of occupation of any such house, land or premises is in dispute between the parties, such right does not exceed such amount as may be prescribed in rules in clear value to the occupier;”…,.

By Statutory Instrument 163 of 2012 [Magistrates Court [Civil Jurisdiction] [Monetary Limits] Rules, 2012], the monetary civil jurisdiction of the Magistrates Court was set at ten thousand dollars [$10,000=], for, among others, actions for delivery of movables or immovables and actions for ejectment.

Plainly, the case before the second respondent was a tussle for possession, not only of the premises, but also of the goods inside them. Both parties claimed ownership of the goods. They went to great lengths to prove it. Both claimed the right to, and of, possession of those goods, and the right to trade in them. Both claimed they had been in occupation and possession at all material times. Therefore, at the outset, the law required the second respondent to enquire into the aspect of her monetary jurisdiction.

She did - but she used the wrong yardstick.

As pointed out above, by section 11(1)(b)(i) and (iii) of the Magistrates Court Act [Chapter 7:10], and the proviso to sub-paragraph [iii], the second respondent was obliged to assess the 'clear value' of Mutema's occupation and possession of the premises; the stock-in-trade; the point of sale machines; the equipment; and everything else that the parties tussled over. The words 'delivery' and 'transfer' in sub-paragraph [ii] evidently speak to possession and ownership respectively. Of course, ownership was of no moment. The second respondent was right on this. The remedy of spoliation seeks to protect the right of possession: see SILBERBERG and SCHOEMAN'S The Law of Property, 5^th ed…,.; Kama Construction [Pvt] Ltd v Cold Comfort Farm Co-operative & Ors 1999 [2] ZLR 19 [SC]; Botha & Anor v Barrett 1996 [2] ZLR 73 [S]…,.; Muller v Muller 1915 TPD 29…,.; Shoprite Checkers Ltd v Pangbourne Properties Ltd 1994 [1] SA 616 [W]; and Grandwell Holdings [Private] Limited v Minister of Mines and Mining Development & Ors HH193-16.

The net profit per month was just an arbitrary method of assessing value. It has no legal basis. Asked by myself, at the hearing, to explain the rationale of the use of profits for a period of a month, instead of profits for any other period like a day; a week; six months or a year; or even using the monthly rentals as a yardstick, counsel for the respondent argued that one month was the period of notice Mutema would be entitled to if the liquidator, at whose pleasure he occupied the premises, required him to vacate. He said Mutema was not paying rent but was merely paying licence fees and other taxes connected to the business operations. However, counsel for the respondent conceded that this arrangement was not mentioned anywhere in the papers or raised in the arguments presented in the court below.

Counsel for the applicants drew attention to certain documents submitted by Mutema in the court below by which he meant to prove his exclusive occupation of the premises. These included licence fees and levies paid by himself to the local authorities. The fees or levies were for three monthly periods at a time, such as July to September 2017 or April to June 2016. Counsel for the applicants point was that the value of Mutema's occupation, at the very least, and using his own mode of computation, could not be less than the profits he expected to realize for those three monthly periods for which he had paid the licence fees or levies.

This, to me, made sense, but was obviously not the full argument.

I consider that, in her enquiry, the second respondent ought to have found that the value of Mutema's occupation, even going by his own method of computation, far exceeded ten thousand dollars. For example, at seven thousand dollars per month, the profit for any three-month period would be twenty-one thousand [$21,000=] dollars. But, more importantly, figures in the court below were bandied about to show that the value of the stocks in the supermarket, warehouse, and other premises over which the parties fought, far exceeded ten thousand dollars. Certainly, if he made an average profit of seven thousand dollars per month, then, by simple logic, the value of the goods he was trading in would have been well in excess of this amount.

I consider that using the margin of profit as the yardstick to compute Mutema's occupation was also illogical for another reason.

He was not trading from the air. He was not trading thin air. He was trading from the premises. He was trading in those very goods he had allegedly been despoiled of. Thus, he could only make profits after being in possession and control of the premises, and of the stocks, and trading from the premise, and trading in the goods. If he had been unlawfully dispossessed of the premises, and of the goods, as he alleged, then he had nothing to sell, and nowhere to sell from, and therefore nothing by which to generate any profit.

Admittedly, the issue of 'value', in relation to Mutema's occupation of only the premises [without the goods], was more problematic. That value could not be the same amount as the market value of the property, namely, one hundred thousand [$100,000=], which Mutangiri said he was charged by the liquidator; or the over three hundred thousand [$300,000=], which Mutema, in his suit against the liquidator for allegedly undervaluing the premises, said was the correct market value. To compound this particular problem, Mutema said he was not paying any rentals for his occupation, but merely licence fees and levies, to keep the businesses operational.

However, and be that as it may, Mutema's occupation certainly had a pecuniary value. He needed premises to store his stock in. He needed premises to sell those stocks from. He would need to rent premises from someone else if the disputed ones had not been available, or if the liquidator had not given him occupation for free, as he said. The second respondent did not make an enquiry in this regard. None of the parties gave her any figures on this. Counsel for the respondent argued that the onus had been on Mutangiri to place information before the court on which his challenge on the second respondent's lack of jurisdiction was based.

However, the absence of an amount on the value of Mutema's occupation of the premises should not have led to the second respondent assuming jurisdiction. The cumulative value of Mutema's occupation, i.e. the value of the stocks; the equipment; the profits; and occupation of the premises, far exceeded ten thousand dollars.

That should have been the end of the matter.

The law says any judgment given in excess of the jurisdiction of a court which is not one of inherent jurisdiction is a nullity, see Manning v Manning 1986 [2] ZLR 1 [SC] and Madzwawawa v Vambe HH65-12. The second respondent had no jurisdiction to deal with the dispute in this matter. Therefore, the entire proceedings were a complete nullity.

My findings above, and indeed as the parties acknowledged, make it unnecessary to consider the rest of the other issues….,.

In the final analysis, I make the following order:

1. The second respondent had no jurisdiction to deal with the dispute in this matter. The proceedings in the court below are hereby quashed. The putative rule nisi, issued on 25 August 2017 in case no GL87/17, and subsequently confirmed on 5 October 2017, is hereby set aside.

The Magistrates Court, applying the provisions of the Domestic Violence Act [Chapter 5:16] (hereinafter the DVA) granted an interim protection order in favour of the respondent which was later confirmed on 16 March 2010. The final protection order confirmed by the court a quo reads as follows:

“1….,.

2. The respondent (now the appellant) is interdicted from selling the matrimonial home, being Number 50 Banister Road, without the consent of the applicant or a valid court order.”

Section 2(1) of the Domestic Violence Act [Chapter 5:16] provides as follows:

“Section 2(1)

Court means – a Magistrate Court, High Court, and, for purposes of section eighteen, a local court.”

The net effect of the above definition is that in dealing with the matters of domestic violence the Magistrates' Court, the High Court, and the local courts (in the restricted manner provided for), do not exercise any special jurisdiction. All these three courts may be approached in domestic violence matters as courts of first instance. The only determinant factor a party should pay due regard to is the issue of jurisdiction. As an example a matter which is outside the jurisdictional threshold of the Magistrate Court must, of necessity, be dealt with by the High Court. See also the specific provision in section 18 of the Domestic Violence Act dealing with the jurisdiction of local courts in respect of domestic violence matters. It can therefore be inferred, quite correctly, I believe, that the Domestic Violence Act reposes jurisdiction in such matters in the ordinary courts as defined in section 2(1) and does not create specialised courts….,.

The court a quo…, failed to consider that it had no jurisdiction to interdict the sale of the property in issue.

As already said, where, on account of jurisdictional limits, the Magistrates' Court cannot deal with this matter it has to refer the matter to the High Court and this is precisely why the administration of the Domestic Violence Act is vested on the local courts; the Magistrate Court and the High Court as courts of first instance. Section 12 of the Magistrates' Court Act [Chapter 7:10] deals with arrests and interdicts. Section 12(1) of the Magistrate Court Act [Chapter 7:10] provides as follows:

“12 Arrests and Interdicts

(1) Subject to limits of jurisdiction prescribed by this Act, this court may grant against persons and things orders for arrest tamquam suspectus de fuga, attachments, interdicts and mandamenten van spolie.”

It is therefore clear that the grant of an interdict by the court a quo is made subject to the limits of jurisdiction of the Magistrate Court in civil matters.

In casu, the value of the house is not even stated but it is common cause that its value is way above the current monetary threshold of the jurisdiction of the Magistrates' Court. What this means, in simple terms, is that given that an interdict is only granted upon the injury complained of being set out, it must follow that the injury concerned must be capable of pecuniary evaluation before the court could come to the conclusion that it has jurisdiction to stop the occurrence. That is also the only way that makes the Magistrates' Court different from the High Court in respect of the grant of interdicts. The Magistrates' Court has no unlimited jurisdiction in issuing interdicts. The court a quo did not establish the monetary component of the injury sought to be interdicted in order to be satisfied as to whether it falls within the jurisdiction of the court a quo. The value of the house is not ascertained but I am able to take judicial notice that houses in Braeside, Harare are way above the monetary jurisdiction of the Magistrates' Court in civil matters.

The court a quo, therefore, had no jurisdiction to grant the interdict and this is a serious misdirection. I am therefore satisfied that there is ample basis to interfere with the order of the court a quo in respect of the interdict as the order is patently incompetent and upholding it would result in a miscarriage of justice.

This court, once made aware of such an incompetent order, has the powers to set it aside even in circumstances where this court may not be exercising its appellate functions. This court has this power to interfere with an irregular order. See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140 (S)…,. This principle is founded on the basis that a court cannot give effect to a patent nullity.

Accordingly, for the above reasons, I make the following order:

1. The appeal is allowed.

2. The order of the court a quo in paragraph (2), relating to an interdict, is hereby set aside.

3. There shall be no order as to costs.

In terms of section 85(1) of the Constitution, a Magistrate's Court has jurisdiction to determine the question of an alleged infringement of a fundamental right or freedom enshrined in Chapter 4.

Whilst the definition of a “constitutional matter”, under section 332 of the Constitution, includes matters beyond the jurisdiction of a Magistrate's Court, the mechanism for the protection and enforcement of fundamental human rights and freedoms enshrined in Chapter 4 of the Constitution includes the jurisdiction of the Magistrate's Court.

Section 85(1) of the Constitution gives the persons listed thereunder the right to approach a court, alleging that a fundamental right or freedom enshrined in Chapter 4 “has been, is being or is likely to be, infringed and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

On the basis of section 85(1) of the Constitution, the Constitutional Court enjoys concurrent jurisdiction with a Magistrate's Court in respect of a constitutional matter arising from alleged infringement of a fundamental right or freedom enshrined in Chapter 4.

This matter was brought to me in terms of section 9(6) of the Guardianship of Minors Act [Chapter 5:08] by the magistrate sitting as the Children's Court at Masvingo.

After I had ploughed through the papers submitted by the magistrate I raised a number of issues with the presiding magistrate. It may be prudent to quote the query I raised. It reads as follows;

“1. In terms of what provision of the Guardianship of Minors Act [Chapter 5:08] was this order granted.

2. If it is section 9(1) of the said Act, did the trial magistrate have jurisdiction to grant such an order where one of the parents is alive.

3. Why is the affidavit of one Delight Chikohomero written in ink where additional information is added? Is that proper for court records. Who added that information as the handwriting is patently different from the deponent's signature.”

The response by the learned magistrate makes various concessions.

This matter is an application for guardianship in terms of the Guardianship of Minors Act [Chapter 5:08]. The background facts are as follows;

The record of proceedings consists of an affidavit by the applicant, one Washington Fungisai Mudimbu; an affidavit purportedly by the minor's mother, one Delight Chikohomero; a copy of the applicant's passport which is hardly legible; a copy of the minor's birth certificate; certificate of death of the father of the minor; and an illegible copy of the passport of the minor's mother, Delight Chikohomero.

The applicant regards the minor as a nephew as he is a son to his late brother who passed on on 23 November 2004. The applicant's founding affidavit is not of much help. According to the applicant, the minor's mother is married to another man and is now resident in Botswana.

The applicant avers that on an unspecified date the minor was left in the custody of the applicant. The applicant alleges that, on that basis, he has become what he calls “a de facto guardian.” The applicant wrongly avers that since the father of the minor is late and its mother is domiciled in Botswana the minor has no natural guardian. Lastly, the applicant states, without any further elaboration, that it is in the best interests of the minor for him to be awarded guardianship. The main reason proffered by the applicant is that he is the closest available relative of the minor and that he is currently meeting the material needs of the minor who is in his custody.

The applicant does not give any other detail about himself or why he is a fit and proper person to be awarded guardianship.

The affidavit purportedly by the minor's biological mother raises serious ethical questions and puts into doubt as to who authored it. Its authenticity is clearly in doubt. Some important information is written in ink as additional information and is not countersigned. The handwriting is manifestly different from the deponent's signature or handwriting. The magistrate was unhelpful in explaining all this. In order to illustrate this point, I shall reproduce this affidavit and put the additional information written in ink in italics. It reads as follows;

“I, Delight Chikohomero, do hereby make oath and state that:-

1. I am the biological mother of the minor child, Tadiwanashe Blessing Linnel Mudimbu (born 18 August 2004). I attach a copy of my identity document as Annexure “D”.

2. The minor child's father, Blessing Taremeredzwa Mudimbu, died on 23^rd November 2004.

3. Since the death of the minor child's father, I have relocated to Botswana where I am married to another man and have started another family.

4. I left the minor child under the care of his uncle, Washington Fungisai Mudimbu, who is still in charge of the child's affairs to date. The child had no natural guardian nor tutor testamentary since his father is deceased and I have relocated to another country.

5. I have no objection to the court formally awarding guardianship to the minor child to Washington Fungisai Mudimbu as I consider it to be in the best interests of the child. The child lives with Washington Fungisai Mudimbu who cares for him as though it was his own child. Washington Fungisai Mudimbu enrolled the child in boarding school at Mutambara High School where he takes care of all the child's need.

Wherefore I pray for an order in terms of the Draft Order.”

As already said all what is in italics is additional information written in ink and not counter-signed. The handwriting is clearly different from that of the deponent as appears on her signature.

The question which lingers in the mind is who made this additional information and some cancellations in ink. Why was this not counter signed or a proper affidavit redone? Does this not put into doubt the authenticity of this affidavit?

A Magistrates Court is a court of record and all documents filed should be clear and un-altered.

I do not wish to cast any aspersions on anyone but I am alive that our courts are not immune to fraudulent practices. Fake documents and/or orders have been generated in our jurisdiction. There is no plausible reason why such a poorly drafted affidavit was deemed acceptable by the magistrate who handled this matter. It would be a dereliction of duty if I am to also endorse such an anomaly especially where the interests of a minor child are involved and the rights of the biological mother are at stake.

Another anomaly I noted is that the proceedings were held in a very perfunctory manner. The record of proceedings does not inspire any confidence at all. Indeed, advertisements were placed in both the Government Gazette and the Mirror newspaper but no meaningful inquiry was held by the magistrate. All what is recorded is as follows;

“Mr Hwacha – I have filed in the necessary papers. I have checked the record and there is no objection to the application. I therefore pray for the confirmation of the Draft Order.

Ruling

Draft order confirmation as final.”

These are the proceedings I am obliged to review!

In terms of section 9(4) of the Guardianship of Minors Act [Chapter 5:08] the court should hold an inquiry.

In the case of re: Chikombingo & Ors 2014 (1) ZLR 65) (H)…, I had this to say;

“In terms of section 27 of the Children's Act, after holding of the inquiry and granting the order, the Children's Court is enjoined, within seven days, to submit the record of proceedings to the High Court for review. Such a review can only be meaningful where a proper record of proceedings has been kept.

In re: Gonyora 2001 (2) ZLR 573 (H) it was pointed out that the record of proceedings of a Children's Court which is submitted for review (whether in terms of the Guardianship of Minors Act [Cap 5:08] or the Act [Cap 5:06] must include reasons for the court's decision. The reason for this is clear. This court cannot carry out its review powers to determine whether the proceedings were in accordance with real and substantial justice where there is no record of proceedings and no written reasons for the decision made. In the absence of a proper inquiry, the record of proceedings and the reasons for the order made, this court is hamstrung in deciding whether the Children's Court has taken into consideration the principles that bear on the child's best interests.”

In casu, I am equally hamstrung to assess the propriety of the decision taken by the magistrate.

The most glaring misdirection in this matter is that the magistrate had no jurisdiction to grant the order in issue.

The powers of the magistrate are clearly spelt out in section 9(1) of the Guardianship of Minors Act [Chapter 5:08] which provides as follows;

“9. Appointment of Guardian by Children's Court

(1) Without prejudice to the rights, powers and privileges of the High Court as the upper guardian of the minor children, and the Master in terms of section 74 of the Administration of Estate Act [Cap 6:01], the Children's Court may, on application in terms of this section, appoint a fit and proper person to be the guardian of a minor who has no natural guardian or tutor testamentary.”…,.

The minor child in this matter has a biological mother, who, in the absence of the late father, is the natural guardian.

Secondly, the magistrate has not explained at all why the applicant is deemed to be a fit and proper person. The applicant's affidavit does not deal with this issue at all and no inquiry was held to satisfy this requirement. This court, as the upper guardian of minor children, cannot say with certainty whether the applicant's appointment as the minor's guardian is in the interest of the said minor child and whether the applicant is a fit and proper person.

In the result, I am inclined to invoke the powers bestowed upon me in terms of section 28 of the High Court Act [Chapter 7:06] as read together with section 9(7) of the Guardianship of Minors Act [Chapter 5:08]. I shall proceed to set aside the order made by the magistrate as it is ultra vires the powers of the magistrate. The applicant is at liberty to seek a similar order in an appropriate court taking into account the concerns I have raised.

It is ordered that, the order by the magistrate be and is hereby set aside.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Comparison booklet.

(b) Illustration letter.

(c) Option form.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Dear Mrs Eston,

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Whether the applicants failed to exhaust domestic remedies.

3. Whether the applicants claim has prescribed.

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

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

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

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

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

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

“Rule 9 Disputes

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

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

Let us examine it further.

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

“Rule 42 Effect on terms of employment

(i)…,.

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

(iii)…”

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

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

It is mandatory that the Trustees first determine the matter.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is an urgent chamber application for a mandatory interdict in which the following order is sought on an interim basis;-

That the respondent be and is hereby ordered to furnish the applicant with the following information within forty-eight hours of this order being granted;

1. A schedule detailing the applicant's back-pay and benefits from the period of March 2005 to 31 January 2016.

2. The respondent's salary advice slips for the period 22 March 2005 to January 2016.

3. The date and time at which the applicant shall resume his duties.

4. The date of payment of the applicant's back-pay and benefits.

5. The dates on and manner in which the applicant's salaries shall be paid from the 1^st of February 2016 until the applicant ceases to be entitled to a salary.

The final order sought is for the respondent to show cause why a final order should not be made on the following terms;-

The respondent be and is hereby ordered;

6. To immediately furnish the applicant with all information regarding and relevant to the applicant's employment contract and conditions of service when requested to do so.

7. To fully comply with the judgments of the Labour Court handed down on 6 February 2008 and 22 January 2016 within two weeks of this order being granted failing which the Director General (Chief Executive Officer) of the respondent shall be committed to gaol for a period of three months for contempt of court.

8. To pay costs of suit on a legal practitioner and client scale.

The applicant is the holder of a doctorate in Engineering Science and the respondent (SIRDAC) is a university situated in Hatcliffe, Harare. The background to this application, as set out in the founding affidavit, is that the applicant was employed by the respondent from the year 2000 to 22 March 2005 as the director of the Building Technology Institute (BTI) of the respondent. The Labour Court made a finding, on the 6^th of February 2008, that the respondent's dismissal of the applicant was unlawful. The respondent was ordered to reinstate the applicant with effect from 22 March 2005, the date of dismissal, without loss of salary or benefits.

The applicant alleges that the respondent has failed to comply with this judgment by failing to reinstate him or to pay him his full salary or benefits, or even to pay him damages in lieu of reinstatement in the alternative.

The applicant instituted proceedings in HC4544-08 for an order of contempt to be made against the respondent's Director General. The respondent, in response to that application, purported to 'reinstate' the applicant by way of a letter dated 26 September 2008. The letter was delivered to the applicant on the 7^th of October 2008.

It is common cause that, despite the letter of re-instatement, the respondent has not paid the applicant his salary or benefits, and that, the applicant has not re-joined the respondent's staff to date.

On 26 June 2009, the respondent terminated the applicant's employment by way of a letter. The applicant challenged this termination by way of an application for review before the Labour Court, which granted judgment in his favour on the 22^nd of January 2016…,. That judgment was done by two Labour Court Judges. They alluded to the judgment done by the same court on 6 February 2008 in which an order was made that the applicant be reinstated with full benefits, or, alternatively, be paid damages in lieu of reinstatement. The Labour Court found that the parties should go back to the original order of 6 February 2008 and allowed the application for review, setting aside the decision of the disciplinary committee of 26 June 2009.

The applicant requires information pertaining to his salary arrears in order to prepare an application for damages in lieu of reinstatement. This information is in the possession of the respondent who is being un-cooperative. The applicant is afraid that the respondent will continue to ignore the orders of the Labour Court with impunity. Letters written to the respondent on 22 January 2016 and 3 February 2016 have gone un-answered.

The applicant is of the view that he has no other remedy than to approach this court, on an urgent basis, because he is wallowing in poverty whilst the respondent remains in contempt of the Labour Court orders.

At the hearing of the matter, the respondent took the stance that this matter was not urgent because the requirements of urgency were not met on the papers, and that the application was devoid of merit because the requirements of a mandatory interdict were again not established….,.

It is my considered view that the question of jurisdiction ought to be settled before a decision is made as to whether or not the applicants satisfied the requirements of urgency and then the merits of the matter can be ventilated….,.

It is trite that only this court can grant a mandatory interdict. Such an interdict will compel the respondent to supply the information required by the applicant in order to utilize his remedy in the Labour Court, that of seeking payment of arrear salaries and damages in lieu of reinstatement. See National Railways of Zimbabwe v Zimbabwe Railway Artisans Union & Ors SC08-05, where the following guidance was given;-

“As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals among others that are brought in terms of the Act. Where, however, a dispute can either found a cause of action at common law, or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can easily be resolved by paying regard to the overall intention of the legislature in creating the Labour Court. In my view, in such a case, the Labour Court's jurisdiction being special must prevail. It would make a mockery of the clear intention of the Legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”…,.

This case was decided in 2005, before the advent of the current Constitution, and it would be interesting to see if the Supreme Court's guidance remains the same when the provisions of section 171(1)(a) are taken into consideration.

For purposes of determining whether an application for an interdict ought to be dealt with by this court because it is a common law remedy which the Labour Court has no power to grant, this case is indeed instructive. See also DHL International (Private) Limited v Madzikanda HH51-10; Surface Investments (Private) Limited v Maurice Chinyani HH295-14.

The new Constitution of Zimbabwe has restored the jurisdiction of the High Court over purely labour matters at first instance. The Labour Court's exclusive jurisdiction over all purely labour matters at first instance has been overridden by the Constitution.

The plaintiff issued summons on 25 March 2011 for the payment of a sum of USD$8,936=56, being the balance due to him from the defendant in terms of an agreed early retirement package. The defendant adopted the stance that it had paid all the amounts due to the plaintiff in terms of the parties' agreement.

The issue that the court must determine is whether the amounts paid to the plaintiff by the defendant for October, November and December 2010 constituted notice pay in terms of the early retirement package; and whether the additional payment of cash in lieu of leave and other benefits paid during October -December 2010 also formed part of the early retirement package. If they did not, then the plaintiff's claim must succeed.

The court directed the parties to address it on whether this was a purely labour matter, and, if it was, whether this court's jurisdiction was ousted by the terms of the Labour Act [Chapter 28:01].

I am grateful for the submissions made by both counsel for the defendant and counsel for the plaintiff, which provided great assistance to the court in resolving this issue.

Section 171(1)(a) of the Constitution of Zimbabwe, Constitution of Zimbabwe Amendment (No.20) Act, 2013 provides that;

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

Section 89(6) of the Labour Act [Chapter 28:01] provides that:

“89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions —

…,.

(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

The import of the provisions of section 171(1)(a) of the current Constitution is to reinstate the jurisdiction of this court over labour matters at first instance, which jurisdiction had previously been ousted by section 89(6) of the Labour Act. See Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 and Capri (Pvt) Ltd v Maponga HH92-15.

It is an inescapable conclusion that the Labour Court no longer enjoys exclusive jurisdiction over labour matters at first instance. That exclusitivity, which was based on an Act of Parliament, was overridden by the Constitution. It is therefore no longer necessary to consider whether a matter is purely labour at first instance before assuming jurisdiction to determine it.

Counsel for the plaintiff submitted that, in any event, the facts do not support the supposition that this is a 'purely' labour matter, a fact which would have allowed this court to 'assume jurisdiction' over it before the provisions of section 171(1)(a) of the current Constitution came into force.

I found this submission persuasive, taking into consideration previous findings of this court that agreements which emanate from contracts of labour (where the cause of action and the remedy for that cause of action are at common law) are enforceable on the basis that they are not 'purely labour' matters which this court was previously precluded from hearing at first instance. See Arnold Sikhumbuzo Mahlangu v CZL Incorporated (Pvt) Ltd HH27-13; Madinda Ndlovu vHighlanders Football Club HB95-11 and Medical Investments Limited v Pedzisayi 2012 (1) ZLR 111…,.

Having concluded that the court was cloaked with the requisite jurisdiction to determine the matter, trial commenced.

Should our courts be courts of law or courts of justice?

One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; one is nothing without the other. Yet, those who practice the law, will know that, often times than not, the rigid application of the law may lead to a palpable injustice. That is why the law is fluid, meaning that its application depends on the circumstances before the court.

The law must be applied to avoid perpetrating an injustice, especially where the extent of the injustice would be the non-suiting of a litigant, leaving the litigant with nowhere else to turn as it were. That is not to say that non-deserving litigants should be shielded from the inevitable consequences that flow from a correct application of the law. On the contrary, it is my view that our courts should be courts of law that derive their authority and legitimacy from a fair and impartial application of the law in the pursuit of justice and fairness.

The applicant filed a court application before this court on 8 May 2011 seeking an order for the amendment of the judgment handed down by this court on 23 January 2008 under case number HC4252/2001. The order of January 2008 reads as follows:

“Judgment is entered in favor of the plaintiff as follows:

That Defendant pays;

(a) BP63,750 as replacement value for his damaged vehicle.

(b) 83,717=09 for medical expenses.

(c) BP1,800,000 for loss of income.

(d) $3.50 for towing charges.

(e) BP12,000,000 for car hire charges.

(f) $2,000,000 for pain and suffering.

(g) $850,000 for disability.

(h) $1,000,000 for future medical expenses.

(i) Costs of suit.”

The order sought by the applicant in this matter relates to the Zimbabwe dollar component of that order. The applicant seeks an order that the judgment of this Honorable Court, in case number HC4252/2001, dated 23 January 2008 be amended as follows:-

“That the Defendant pays to the Plaintiff:

1. USD$2,790=60 for medical expenses.

2. USD$116=66 for towing charges.

3. USD$66,666=67 for pain and suffering.

4. USD$28,333=30 for disability.

5. USD$66,666=67 for future medical expenses.

6. Interest at the prescribed rate of 5% per annum calculated from the date of judgment to the date of payment.

7. Costs of suit.”

It is common cause that the respondent has paid in full for the component of the 2008 judgment which provides for payment in Botswana Pula, in terms of the order of the Supreme Court dated 28 February 2012. It is common cause that payment of the Zimbabwe dollar component of the 2008 judgment remains outstanding - although the respondent has tendered this payment to the applicant. It is common cause that the applicant did not attempt to execute in respect of the Zimbabwe dollar component at the date of the judgment in 2008, and that, in 2009, Zimbabwe adopted a multi-currency regime. It is also common cause that after the accident the applicant was disabled.

The applicant has come before this court and avers that he requires urgent medical attention.

He has attached a quotation from a medical specialist, Mr. Bijay B. Garach, dated 23 March 2012, to show that he requires an estimated USD$279,400= for surgery in Durban South Africa. The purpose of the surgery is to correct a condition of stiffness in the right knee which is possibly related to a fracture and muscle tightness and to an associated knee joint injury. Mr. B.A.V. Ncube, a specialist orthopedic surgeon, certified that the applicant is in pain and gross discomfort in his right foot, on 4 June 2012, and that he needs further surgery to remove the implants and to fuse his mid-foot and correct his mal-aligned toes.

The applicant is currently unemployed and has urgent need for funds in order to access the medical assistance he requires.

On 24 October 2012, the applicant's legal practitioners addressed a letter to the respondent to which they attached the judgment of 23 January 2008. In the letter, the respondent was reminded that the Zimbabwe dollar component of the judgment remained unpaid in a total of ZWD$4,937,217=09. It is common cause that the Zimbabwean dollar has fallen into disuse. The respondent was advised that the applicant had approached the Reserve Bank of Zimbabwe which had confirmed that as at 23 January 2008 one United States dollar was equivalent to ZWD$30,000=. Converting ZWD$3,937,212=10 to USD translates into USD$164,573=90. Interest at the prescribed sum translates to USD$41,143=47. The total demanded from the respondent is USD$205,717=38.

In a letter dated 8 November 2012, the respondent, through its legal practitioners, tendered the ZWD$ to the applicant on the basis that the Zimbabwean dollar was still valid currency, and that, it being the currency of the judgment which the applicant was seeking to enforce, that is the currency in which the applicant should be paid. The computation of the interest was brought into question.

In a letter dated 19 November 2012, the applicant's legal practitioners explained that interest had been calculated at the prescribed rate of interest from February 2008. In paragraph 12.1-14 of the founding affidavit the applicant avers that:

“I need to execute against the respondent. I need to have the judgment in my favor sounding in Zimbabwe dollars amended to reflect United States dollars so that I am paid in a currency that I will be able to use. I submit that the Zimbabwe Dollar is now moribund and has fallen into disuse. It is no longer the currency in use at the moment. There is no point in giving me, as respondent contends, the Zimbabwe dollars as I will not be able to use them to access the medical attention that I so badly and urgently require. I submit that I am entitled to effective remedies and giving me Zimbabwean dollars is hardly such effective remedies.”…,.

The notice of opposition was filed of record on 30 May 2013. Mr. Charles Stewart Gardiner deposed to the opposing affidavit on behalf of the respondent. He is a son of the Managing Director of the respondent, and himself a director of the respondent company. He averred that the applicant should apply to the court which granted the judgment in question for the judgment to be corrected in accordance with the rules of this court.

Mr. Gardiner denied that the applicant had a right to correct the judgment in terms of the rules of this court. He denied that the applicant was permanently disabled, although he accepted that the applicant was injured in the accident. He emphatically declared that the applicant was dishonest and that he had fraudulently exaggerated his injuries and allegations of disability. He denied that the applicant is in urgent need of medical attention. He reiterated that the applicant has already received a sum of USD$90,332=24 from the respondent and averred that this amount ought to have been more than sufficient to fund whatever medical attention the applicant allegedly requires.

It was admitted that the respondent is bound by the terms of the Supreme Court order.

The respondent expressed certainty that the applicant's awards which emanated from this court were based on fraud, fraudulent documents and perjured evidence, and referred the court to its application for leave to adduce further evidence which it filed before the Supreme Court simultaneously with its appeal under case number SC19-2008.

Mr. Gardiner averred that the court should have regard to the independent expert evidence that was filed before the Supreme Court to prove the allegations of fraud against the applicant. He re-iterated that the respondent believed that it was obliged to effect payment in the amount claimed by the applicant and awarded to him by the court. It was denied, on behalf of the respondent, that it was to blame for the applicant's hardship because the basis of the liability of the respondent arises entirely from a finding of vicarious liability for the negligence of its former employee.

Three issues fall for determination by this court;

(a) The first one is whether this court has jurisdiction to entertain this matter.

(b) The second issue for determination is whether it is competent for this court to award payment in United States dollars in respect of a judgment sounding in Zimbabwean dollars.

(c) Finally, we must determine whether it is competent to determine the rate of exchange by which the conversion may be made.

(a) Jurisdiction

It was submitted, on behalf of the applicants, that the High Court has jurisdiction to deal with any matter that is placed before it and that there is nothing amiss in this court dealing with a matter arising out of a judgment of this court. The court was referred to the case of Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors SC21-14 as authority for this proposition.

The court perused the judgment of the court a quo HH108-11/ HC5710-09.

The issue for determination, as it was understood by that court, was that the applicants had approached that court since it was the only court with inherent jurisdiction seeking a declaratur that the principle of currency nominalism has no place in Labour Law (i.e. a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. The applicants sought a further declaratur that to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is, in an amount, currency, and quantity that achieves fairness as required by the Labour Act. A further order compelling the respondent to pay damages in USD was sought. The principle relied on by the applicants was that a successful appellant ought to have the discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him for the loss as well as fulfill the objectives of the Labour Act.

The respondent had opposed the relief sought by the applicants before the High Court on the basis that the matters raised had been canvassed and dismissed by the Labour Court and were therefore res judicata; that this matter was purely a labour issue by virtue of section 89(6) of the Labour Act [Chapter 28;01]; that the court was being asked to usurp the role of Parliament by repealing the common law principle of currency nominalism and that the court was being asked to 'overrule” those decisions of the Supreme Court which had already made the point that in quantifying damages in labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension.

The High Court took the view that it was the only court with power to issue declaratory orders. On the issue of usurping the role of Parliament, the High Court took the view that 'it is not impermissible for the judiciary to make law by way of decided cases if an opportunity presents itself to plug a legislative gap especially where not to do so will leave many an unlawfully dismissed employee languishing in an asylum of financial misery'.

On page 5 of the judgment, the High Court postulated the question of whether, in the circumstances of the case before it, it ought to declare that 'in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.'…,.

Clearly, the High Court limited the application and scope of its judgment to the realm of employment relations and to the period during which there was lack of economic normalcy. It applied the principles of equity and enjoined itself to 'tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.'

The High Court ordered the respondent to pay damages in USD using the official exchange rate obtaining as at 5 July 2007.

The respondent appealed.

The appeal and cross appeal came before a five member bench of the Supreme Court on 11 September 2013. The judgment of the Supreme Court was to allow the appeal to the extent of setting aside the judgment of the High Court for lack of jurisdiction. It was held, with the consent of both parties, that the matter should have been determined by the Labour Court.

It is this court's view that it would not be proper to rely on principles which were enunciated in the context of labour disputes, which differ materially from the matter under consideration, and in respect of which certain principles underline their conduct, which are not applicable here, such as social justice and equity. The court is bolstered in its view by the recent judgment of the Supreme Court, Madhatter Mining Company v Marvelous Tapfuma SC51-14, where the court stated that Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors HH108-11 had been overturned on appeal and could no longer be cited as authority or as a basis on which a court can convert damages awarded in Zimbabwe dollars to United States dollars.

The vexing question of whether the USD amount would give true value to the damages that the respondent would be entitled to was posed by the court.

True value was defined as a value that would 'neither over-compensate the respondent nor inadequately do so'. Other pertinent considerations for a court faced with the question of converting Zimbabwe currency to US$ were the issue the two main Zimbabwe dollar to USD$ exchange rates which obtained prior to 2009, i.e. the official and the unofficial rates….,. Finally, the Supreme Court emphasized that it is the Labour Court - and not the Supreme Court - which in endowed with jurisdiction to apply principles of equity in its determination of labour disputes based on the provisions of section 2A of the Labour Act [Chapter 28:01].

See Horace Nzuma & 2 Ors v Hunyani Paper & Packaging SC137-11.

I accepted the submission made on behalf of the respondent that this court has no similar jurisdiction to that of the Labour Court, to determine disputes on the basis of social justice or principles of equity.

The Labour Court, in Madhatter Mining Company v Marvelous Tapfuma SC51-14, was then given guidance by the Supreme Court and the matter was remitted back to it for the determination of the following issues:

(a) What is the effect of the change of currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe Dollar currency which, though not demonetized, is no longer in use?

(c) Has the principle of currency nominalism any application to the circumstances of this case?

(d) The method of calculating the quantum of the debt in current realizable currency if the conclusion of the above issues is in favor of payment in United States dollars.

These questions given for the guidance of the Labour Court are regurgitated here in the realization that these are the same questions that this court may have to determine if the question of jurisdiction in this matter before it is resolved in favor of the applicant.

In defence of this claim, the respondent raised the main point of the absence of jurisdictional basis on which the court can 'change' or 'convert' a judgment that was given by it in January 2008.

I am grateful to counsel for the respondent for the extensive heads of argument filed of record, which appeared to have been tailored to respond to the questions for guidance which were issued by the Supreme Court, as listed above, for the guidance of the Labour Court.

It was submitted, on behalf of the respondent, that if there is such a jurisdiction, there is a dispute as to whether it can be exercised five years after the original judgment and one year after the judgment of the Supreme Court in which the matter was not raised; whether the conversion is to take place on the date of the judgment or on the date on which payment is made; what the proper rate of exchange would be; whether the conversion can be made in respect of those heads of damages which were incurred and paid for in Zimbabwe dollar currency and awarded as special damages at trial; and, finally, the bona fides of the applicant.

The respondent submitted that medical expenses and towing charges are special damages which were incurred in Zimbabwe dollars not United States dollars. The loss was incurred 15 years ago in Zimbabwe dollars, the damages were alleged and proved seven years ago in Zimbabwe dollars. The respondent disputed the applicant's entitled to interest at the prescribed rate, or at any rate, on the basis that the prescribed rate of interest sought to be relied on was only introduced on 23 October 2009 by S.I.164 of 2009 and backdated to 23 October 2008.

Finally, the respondent submitted that, in respect of the three heads of general damages that the applicant now seeks payment for in foreign currency, which was not available to him, and which he did not seek, at the time of the trial, those damages are not due to him in any other currency other than the currency that he claimed them in.

It is trite that the cause of action for the relief being sought must be found in the founding affidavit. See Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D); Director of Hospital Services v Mistry 1979 (1) SA 626 (A)…,.; Dajen (Pvt) Ltd v Durco (Pvt) Ltd 1998 (2) ZLR 235 (SC)…,.; Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (SC)…,.

It was submitted, on behalf of the respondent, that the founding affidavit does not disclose the cause of action to support the relief sought. It was submitted, correctly in my view, that the applicant's need for urgent medical attention is not a jurisdictional basis for the relief sought. It was contended that the fact that the Zimbabwe dollar is now moribund and has fallen into disuse, and that, there is no point making payment in it, again affords the applicant no jurisdictional basis for the relief sought. Finally, it was submitted that to plead ad misericordiam that he is entitled to an effective remedy does not assist the applicant at all.

It is common cause that upon the introduction of the multi-currency basket in January 2009, Parliament did not see fit to introduce any legislation to enable this court to look at judgments given before January 2009.

It was contended that, in the absence of legislative authority that enables this court to look at judgments given in Zimbabwe dollars before dollarization in January 2009, we must be guided by the usual common law Rules. I find myself in full agreement with these statements of the law as it currently stands.

However, in case I am wrong in my view that there is no jurisdictional basis on which this court may grant the relief sought by the applicant, I will proceed to deal with the merits of the matter.

The law that underlies the legal principle of functus officio was summarized in the case of Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 298 (A)…, as follows:

“The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.

See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 @ p176, 178,186-7 and 192; Estate Garlick v Commissioner of Inland Revenue 1934 AD 499 @ p502…,. There are, however, a few exceptions to the rule which are mentioned in the old authorities and have been authoritatively accepted by this court…, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases:

(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example costs or interest on the judgment debt which the court overlooked or inadvertently omitted to grant…,.

(ii) The court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous, or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter 'the sense and substance' of the judgment or order…,.

(iii) The court may correct a clerical, arithmetical or other error in its judgment in order to give effect to its true intention…,.

(iv) Where counsel has argued the merits and not the costs of a case…, but the court makes an order granting costs…, it may thereafter correct, supplement or alter the order…,.”

The submission that none of these exceptions apply to the applicant was accepted by the court, as well as reference that the principle of finality in litigation (interest reipublicae ut sit finis litium) is a part of our law.

See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140 (SC)…,; Maheya v Independent Africa Church 2007 (2) ZLR 319 (SC)…,.

This court also accepted as correct, the submission made on behalf of the respondent, that the present application is not intended to supplement, clarify, or correct the judgment of January 2008 - but to alter its substance. The alterations are not incidental or consequential corrections - but go to the very heart of the orders made.

In respect of towing charges and medical expenses already incurred, the purpose of the application is to change the very basis of the currency in which those special damages were incurred. In respect of the three headings of general damages, the application intends to change the basis on which those damages were sought, when those damages were suffered in Zimbabwe, in the currency of payment then prevailing.

It is common cause that there was a considerable delay by the applicant in bringing this application, the original judgment having been handed down in January 2008 and the use of the United States dollar having been authorized by January 2009. The appeal was heard in October 2010 and the Supreme Court judgment handed down in February 2012. Nearly 15 years have passed since the accident in question and four and half years since dollarization. No explanation was given by the applicant for the inordinate delay in making this application. Any application to correct or supplement an order, whether in terms of the common law or under Rule 449 of the High Court Rules 1971, must be brought as soon as possible, or at the very least within a reasonable period. See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173…,.

The leading cases on currency nominalism in this court merit discussion.

In Shava v Bergus Investments (Pvt) Ltd 2011 (2) ZLR 340 (HC), a full bench of this Court, through my brother MUTEMA J and CHIWESHE JP concurring, held that a party cannot revalue a judgment debt for purposes of execution. Citing Mukorera v Ocean Breeze Engine and Cooling Systems HH13-08…, the court held it to be trite that the principle of currency nominalism was part of the law of Zimbabwe. The court held that, to allow a party to change the currency of the judgment was 'not only incompetent for arbitrariness but offended against the time honored principle of currency nominalism'. The court said the following…,:

“That principle holds that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of the currency.”

The court also said…,:

“It is beyond argument that the first respondent's debt sounded in money and the judgment was given in March 2008 with the specific directive that the values of whatever was damaged by the appellant were to be as at the time of judgment. The values were in Zimbabwe dollars and not in US dollars. The principle of currency nominalism was therefore still applicable. It was accordingly idle for the first respondent to revalorize its claim on execution. It ought to have made a court application for the conversion of the currency.”….,.

Counsel for the respondent…, submitted that, before this court came to above underlined conclusion, it ought to have examined, in greater detail, the impact of the 'once and for all rule' and of the submission that the court cannot 'convert' the currency on application because it will be functus officio.

I found this view persuasive.

It was submitted, further, that reliance on Mukorera v Ocean Breeze Engine and Cooling Systems HH13-08 should not have led the court to the conclusion that it came to, because, in that case, the court was emphatic in its view that:

“…, the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.”

In conclusion, this court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this court cannot revalue an order for the purpose of execution, let alone completely re-write an order granted nearly seven years ago. Any such power would have to be the consequence of legislation - which currently does not exist in Zimbabwe.

Under the common law, and as a protection against loss of value of a judgment, where a litigant has suffered a loss that can properly be expressed in foreign currency the court can enter judgment in foreign currency, but payment must be made in local currency converted as at the date of payment. See Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC)…, where the court said that:

“Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of devaluation in the value of the currency between the date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.”

See also Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A)…, where it was stated that;

“…, the damages to be awarded in this case should be expressed in US dollars. It is implicit in any order to this effect that the judgment debt may be satisfied in South Africa by payment in the foreign currency or by payment of its equivalent in Rand when paid.”

This court is persuaded by the contention, which is supported by various decisions by the Supreme Court and the High Court, that, had the judgment in this matter been sought and made after January 2009, even in respect of an accident that occurred before that date, judgment could be granted in foreign currency as being the effective currency to redress the loss.

As further authority for this proposition, see Kwindima v Mvundura 2009 (1) ZLR 168 (H).

However, in this case, judgment was sought prior to January 2009, specifically in Zimbabwe dollars, and quite clearly Zimbabwe dollars is the currency in which the losses were sustained.

Section 41 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] reads:

“41 Legal tender of banknotes

(1) A tender of a banknote which has been issued by the Bank and which has not been demonetised in terms of subsection (2) shall be legal tender in payment within Zimbabwe of the amount expressed in the note.

(2) The President may, by statutory instrument, call in and demonetize any banknotes issued by the Bank, and shall likewise determine the manner in which and the period within which payment for such banknotes shall be made to the holders thereof.”

It is common cause that the President has not demonetized the Zimbabwe currency in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations 2009, as confirmed by the Finance Act 2009, and that, he had not done so at the time that this application was filed, on 8 May 2013.

Section 44 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] provides that:

“44A Legal tender of foreign currencies

The Minister may, in regulations made under section 64, prescribe that, subject to such conditions as may be specified in the regulations, a tender of payment in any currency other than Zimbabwean currency shall be legal tender in all transactions or in such transactions as may be specified in the regulations.”

It is submitted, on behalf of the respondent, quite correctly in my view, that this provision does not render the Zimbabwe currency to be moribund, but that it allows foreign currencies to be treated as legal tender in addition to the Zimbabwe currency. It was correctly submitted, in my view, that there is no statute or other legal instrument that has abolished or suspended the existence of the Zimbabwe currency. Accordingly, as a matter of law, if not practice, the Zimbabwe currency still exists. See Stuart v National Railways of Zimbabwe (unreported)…,.

If any conversion is to take place for the purposes of allowing the enforcement of a judgment granted before February 2009, in Zimbabwe currency, it must be done at the rate prevailing on the date of payment, not the date of judgment….,.

The Legislature, in its wisdom, only enacted section 44A of the Reserve Bank Act, and did not see fit to provide a further framework to guide us on how to dispose of these matters. If the applicant's judgment has been rendered incapable of being satisfied through lack of a legislative framework that regulates its execution, then the applicant's remedies must lie with the Legislature.

The applicant seeks to use the date of judgment as the date on which conversion into US dollars is to be made, and seeks to use the rate of exchange allegedly applicable on that date. However, it is pertinent to note that, at the date of the judgment, January 2008, the use of United States dollars in Zimbabwe was not permitted, and any judgment given in United States dollars as being the currency in which the loss was sustained could only be satisfied by the payment of Zimbabwe currency as at that date.

This court lacks that jurisdictional basis to make any conversion as at the date of judgment because such conversion would, at that time, have been contrary to exchange control legislation. Any attempt to do a conversion as at the date of the judgment would in effect be to render a completely new judgment, in breach of the once and for all rule.

The 'once and for all rule' is a common law rule that stipulates that a plaintiff must claim, in a single action, compensation for the damage he has already suffered and the prospective loss which he reasonably expects to suffer in future. See Oslo Land Co Ltd v Union Government 1938 AD 584…,.; and Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)…,.

In his book The Law of Delict, PROFESSOR BOBERG sums up the common law position as follows:

“A single wrongful act gives rise to a cause of action for all damage, past and future, that it causes. This means that a plaintiff cannot claim compensation piecemeal for his various losses as they occur: he must sue 'once and for all' for the whole of his damage, seeking redress not only for the harm he has already suffered (actual or accrued loss) but also for the harm he expects to suffer in the future (prospective loss). And if he succeeds he will generally be awarded damages in a lump sum, payable immediately, in respect of both past and future losses.”

See also Elvins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)…, where the court said:

“The 'once and for all' rule applies especially to common law actions for damages in delict, though it has also been applied to claims for damages for breach of contract….,. Expressed in relation to delictual claims, the rule is to the effect that in general a plaintiff must claim, in one action, all damages…,. This rule appears to have been introduced into our practice from English Law. Its introduction and the manner of its application by our courts have been subject to criticism…, but it is a well entrenched rule. Its purpose is to prevent a multiplicity of actions based upon a single cause of action to ensure that there is an end to litigation.”

In Dube v Banana 1998 (2) ZLR 92 (HC)…, the law in Zimbabwe was stated in the following terms:

“Our law recognizes the 'once and for all rule' which states that a plaintiff, when suing for damages, must sue for all his damages in a single action, both for loss suffered and for prospective loss…,. In my opinion, the once and for all rule should be modified. I consider this can best be done by an Act of Parliament rather than by 'judge-made law', which is, by its very nature, haphazard and piecemeal. The Law Development Commission of Zimbabwe issued a report entitled Report No. 43: 'Once and for all rule in claims for damages', in which, as the title suggests, it examined the rule and in which it made recommendations for its reform.”

Parliament has not intervened to change the law.

This court accepts as a correct application of the law to the circumstances of this case that the applicant has had his once and for all right to claim damages for the injuries which he sustained in the accident. He elected to litigate for those damages in 2008. He claimed those damages partly in Zimbabwe currency and partly in Botswana Pula. He received the awards he sought. He had a further opportunity to recast his case before the Supreme Court, in October 2010, when the appeal was heard, which was after dollarization. He chose not to do so, or to seek the leave of the Supreme Court to have the Zimbabwe dollar component of the judgment 'converted' to a currency that he could use. The Supreme Court, on application for its leave, would have had an opportunity for 'judge made law' to decide whether to remit the matter back to this court for evidence to be adduced on the question of the 'conversion' of the Zimbabwe dollar component of the judgment to a currency of the applicant's choice.

The applicant cannot now come back to this court seeking to change the judgment given to him. The applicant has already had his day in court he cannot now come for a second judgment arising out of the same circumstances as the first.

Res judicata is a rule that matters which have already been adjudicated upon between the same parties cannot be adjudicated again. It is a consequence of the 'once and for all rule'.

In Union Wine Ltd v Snell and Co Ltd 1990 (2) SA 189 (C)…, the Judge said:

“Although it is not clear from the cases whether the 'once and for all' rule is just a manifestation of the exceptio rei judicatae or whether it has a wider range than the latter, it is settled practice in South Africa that where a cause of action gives rise to more than one remedy a plaintiff who pursues one of those remedies and has obtained a judgment thereupon can be met with a plea of res judicata if he should institute a second action to pursue one of the other remedies.”

It is common cause that the parties before this court are the same as those before the court in 2008. It is common cause that the cause of action is the same and that damages are being sought pursuant to that cause of action. In the January 2008 judgment this court decided that the applicant had suffered damages which required to be redressed by the payment of Zimbabwe currency. This court accepts that all those issues are now res judicata and cannot be re-opened.

In the result, this court finds that it has no jurisdiction to grant the relief sought by the applicant, and that, no factual basis has been laid in the founding affidavit to justify granting the relief sought. The court is functus officio, the damages which the applicant seeks to be 'converted' to another currency now, were assessed and awarded in 2008. Any attempt to re-assess the award made in 2008 now, even if such assessment involves the calculation of the value of the damages in a different currency, would amount to changing the nature of the judgment given in 2008, a power which is only available to a superior court on appeal.

The matter cannot properly be determined by the improper use of this court's inherent jurisdiction.

This court's inherent jurisdiction does not cloak it with power to re-determine issues between the same parties which have already been conclusively determined. It may only do so on limited grounds where it is directed to do so by a higher court, the Supreme Court, and on very specific directions. There being no such direction from the Supreme Court, to this court, it is trite that the issues between the parties are res judicata.

This court has no jurisdiction to exercise the same principles of social justice and equity as the Labour Court, and any attempt to rely on labour matters, as the basis for inviting this court to exercise powers that are specific to and pertinent to the Labour Court will find no truck with this court.

In the circumstances of this case, where 'accident damages' were assessed and awarded as special damages and general damages, under the law of delict, it is my view that, there is no factual or legal basis in the papers filed of record, on which this court can 'convert' a 2008 judgment made in Zimbabwe currency to United States dollars.

Despite this finding, this court respectfully declines to exercise its discretion and grant punitive costs against the applicant as advocated for by counsel for the respondent.

Accordingly, the application is dismissed with costs on an ordinary scale.

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision.

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”

At the conclusion of submissions by counsel, the parties in this case agreed that this matter should have been determined by the Labour Court and not the High Court.

It was also common cause that a determination by the Labour Court was necessary before the Supreme Court could be seized with this matter. Consequently, it was agreed between the parties that the matter be referred to the Labour Court for determination, and that, in the event of either party not being satisfied with the determination of the Labour Court, the aggrieved party appeals to the Supreme Court.

The Court agreed with the common stance of the parties.

The Court directed the parties to submit a draft order by consent for approval by the Court. The parties were not able to agree on the details of the order by consent. They addressed the following letter to the Registrar of this Court:

“FLEXIMAIL (PVT) LTD v GIFT BOB SAMANYAU AND 38 OTHERS: CASE NO. SC-135/11

We respectfully request that you place this memorandum before His Lordship The Chief Justice.

We refer to the above Supreme Court appeal in respect of the above matter which was heard on the 11^th of September 2013. Pursuant to the Court's direction that the parties draft a consent order and revert to the Court by the 13^th of September, we advise that there are areas of agreement and areas of disagreement.

Areas of agreement

The parties agree that the matter be referred to the Labour Court for quantification.

Areas of disagreement

The parties disagree on the following three issues:

1. Whether or not the appeal was allowed.

2. Whether or not the cross-appeal was allowed.

3. Whether or not the Labour Court was directed to quantify the damages in United States dollars or whether this issue remains open.

It is the appellant's view that the appeal was allowed as the Court indicated that the judgment of the High Court was set aside. However, the question of whether the respondents are entitled to damages in United States dollars remained to be decided by the Labour Court during the quantification proceedings. Accordingly, the cross appeal cannot have been granted.

We respectfully request the Court's direction as to how to proceed.”

The Court has considered the submissions by counsel and the above letter addressed to the Registrar of this Court seeking directions. The Court has come to the following conclusion.

1. The judgment of the High Court in this matter is hereby set aside for lack of jurisdiction. To that extent the appeal succeeds. The matter should have been determined by the Labour Court.

2. There being no valid appeal to this Court from a court of competent jurisdiction, the cross appeal falls away. The matter is hereby remitted to the Labour Court for determination.

3. For the guidance of the Labour Court, the Labour Court is directed to determine the following issues –

(a) What is the effect of the change in currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have the power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe dollar currency which, though not demonetised, is no longer in use?

(c) Has the principle of currency nominalism any application in the circumstances of this case?

(d) The method of calculating the quantum of the debt in current realisable currency if the conclusion of the above issues is in favour of payment in United States dollars.

This matter has trudged a long and tortuous journey.

The applicants are former employees of the respondent who were charged with misconduct and dismissed in 2005 following disciplinary processes. The applicants challenged their dismissal right up to the Labour Court in case number LC/H15/06. The Labour Court found for the applicants on 5 July 2007 and ordered their reinstatement, alternatively, payment of damages in lieu of reinstatement. The respondent opted to pay damages, caused their quantification on 10 December 2008 equivalent to 5 years salary using the cut off date of 5 July 2007 and tendered them to the applicants.

The tender, dated 11 February 2009 from the respondent's legal practitioners addressed to the applicants' erstwhile legal practitioners, Mwonzora & Associates, reads:

“RE: L MAWERE AND OTHERS v FLEXMAIL: QUANTIFICATION OF DAMAGES

In line with the judgment of the Labour Court handed down on 10 December 2008, please find herewith our client's cheque in the sum of $12,594=77 (revalued) in full settlement of the amounts due to your clients. A copy of the schedule as to how the various figures were arrived at is attached hereto.

You will note from the computation that the amounts have been revalued and inflation adjusted to February 2009.

The matter is accordingly closed…,.”

The applicants, through their then legal practitioners mentioned above rejected the tender and returned the cheque in question. The attempt at payment was tendered after breakdown of quantification negotiations. The primary reason for rejecting the tender was that the respondent attempted to pay the damages in Zimbabwe dollars in February 2009 when the currency had become moribund.

In their amended draft order the applicants are seeking a declaratory order in the following terms:

“IT IS HEREBY ORDERED:

1. The respondent be and is hereby ordered to pay damages in lieu of reinstatement to the applicants in United States Dollars using the initial United States Dollar salary scales which were used by the respondent when it started paying its employees in foreign currency.

2. That the respondent pay the costs of suit.”

The main thrust of the applicants' argument, as gleaned from the founding affidavit and heads of argument, is as follows:

The applicants have approached this court, since it is the only court with inherent jurisdiction, seeking a declaratur that the principle of currency nominalism has no place in Labour Law (a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. Further, they seek a declaration to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is in an amount, currency, and quantity that achieves fairness as required by the Labour Act. The applicants further seek an order compelling the respondent to pay damages in United States dollars using the initial United States dollar salary scales which were used by the respondent when it started paying its employees in foreign currency i.e. in February 2009. A successful appellant, so the argument went, should have a discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him/her/ it for the loss as well as fulfil the objectives of the Labour Act.

Interpreting the order of the Labour Court to mean payment in Zimbabwe dollars would amount to making the order a brutum fulmen because the Zimbabwe dollar, by the time of the tender, had became de facto valueless and useless, this would amount to non-payment thereby reducing court orders into empty judgments which is both unfair and against public policy.

The respondent's opposition was premised on the following main planks:

1. The matter is res judicata in that the Labour Court handed down judgment in case number LC/H/15/06 ordering the respondent to either reinstate the applicants or pay damages in lieu thereof. Following quantification of such damages, the amount due and payable was duly remitted to the applicants. In the event, this application disguised as an “application for a declaratory order” is merely meant to deal with the same issues which were concluded by the Labour Court.

2. The issue brought before this court is an employment/labour issue and by virtue of section 89(6) of the Labour Act [Chapter 28:01], the jurisdiction of this court is ousted.

3. What the applicants are asking this court to do is to:

3.1 Ignore the salaries payable to the applicants as at 5 July 2007 when an order of reinstatement was made by the Labour Court.

3.2 Depart from the current position of law and order payment of damages based on a date after the order of reinstatement was made.

3.3 Ignore the lawful currency that governed the contractual relationship between the parties as at 5 July 2007 (which required payment of salaries in Zimbabwe dollars) and set aside that trite position to enable the applicants to be paid afresh damages in lieu of reinstatement in US dollars. This is despite the fact that, as at 5 July 2007, the applicants' employment contracts entitled them to remuneration in Zimbabwe dollars and not in US dollars sought by the applicants.

4. The issues raised by the applicants have been dealt with by the courts on many occasions and are not unique to the applicants.

I am mindful of the fact that what the applicants are inviting this court to do, as submitted by counsel for the respondent, boils down to two pertinent issues, viz:

1. To do that which Parliament should, i.e. to make law by repealing the common law principle of currency nominalism; and

2. To “overrule” those decisions of the Supreme Court which have already made the point that in quantification of damages in respect of labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension. See Redstar Wholesalers v E Mabika SC52-05 and First Mutual Life Limited v Jackson Muzivi 2000 (1) ZLR 325 (S).

Points 3 and 4 of the respondent's opposition cited above are interwoven with point 2 cited immediately above so I shall deal with them pari passu…,. First, let me deal with points one and two of that opposition quoted above. They allude to the issue of res judicata and ousting of this court's jurisdiction by virtue of section 89(6) of the Labour Act....,.

Regarding the issue that this court's jurisdiction is ousted by section 89(6) of the Labour Act [Chapter 28:01], I am unable to subscribe to this view. The subsection cited provides that:

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subs (1)”.

Subsection (1) has six paragraphs listing the functions to be exercised by that court to the exclusion of all other courts. Those functions do not include issuing declaratory orders. This meant that the Labour Court has no inherent jurisdiction to issue declaratory orders, and, in the event, the jurisdiction of the High Court remains intact.

In Sibanda & Anor v Chinemute NO & Anor HH131-04, MAKARAU JP…, put it aptly thus:

“Thus, the power to issue a declaratory order is not available in all courts that apply common law. It is specific to this court…,.

It is common cause that the Labour Court has not been specifically empowered to issue declaratory orders as this court has been. It cannot create such a relief or the procedure for granting such relief as it is not a court of inherent jurisdiction.”

I am in respectful agreement with this view.

The applicant seeks an order of rei vindicatio. It seeks recovery of its property, namely, motor vehicle, a Toyota Hilux Double Cab Registration Number AAE 7098, HP 450 laptop, Samsung Galaxy S5, and a Samsung Tablet 4 presently in the possession of the respondent without the applicant's consent.

The circumstances are that the respondent was employed by the applicant as a Director of Works in terms of a written contract. The respondent gave notice of his intention to resign from the applicant's employment. He indeed resigned on the 18^th of December 2017. During the term of his employment the respondent was issued with a motor vehicle and other gadgets for use in the performance of his duties. Upon resignation, the respondent remained in possession of the vehicle and the gadgets. Despite the termination of his employment the vehicle and the gadgets remained registered in the names of the applicant. The applicant requested the respondent to surrender the motor vehicle and other gadgets that were issued to the respondent during the course of his employment. The respondent, despite lawful demand, declined to return the property in question prompting the applicant to file a police report at ZRP St Marys CR68/01/18, CID Chitungwiza DR17/1/18. The docket was referred to the Prosecutor General who declined to prosecute holding that the dispute was civil.

This prompted the applicant to file this urgent chamber application for rei vindicatio.

The respondent opposed the application. He raised three points in limine in his Notice of Opposition which he thought could dispose of this matter which can be summarized as follows -

(a) The application is frivolous and vexatious;

(b) The application is not urgent;

(c) Lis alibi pendens; and

(d) That the High Court has no jurisdiction to hear this matter....,.

JURISDICTION OF THE HIGH COURT

The long and short of the respondent's submission was that the present matter relates to benefits which he is entitled to on the termination of his contract of employment hence the Labour Court has exclusive jurisdiction over this matter. In light of the above this court does not have jurisdiction to deal with the present matter hence the matter ought to be dismissed with costs. The respondent said the High Court declined jurisdiction in the case of Telone (Private) Limited v Edwin Matinyarare HH140-13.

In opposition to the submissions, the applicant referred the court to the case of Joram Nyahora v CFI Holdings (Private) Limited SC81-14…, where the Supreme Court had occasion to deal with a similar issue….,; the Supreme Court, in the above matter, said -

“As submitted on behalf of the respondent, the right of an individual to approach the High Court seeking relief, other than that specifically set out in section 89(1)(a) of the Act, has not been abrogated. Nothing in section 89(6) takes away the right of an employer or employee to seek civil relief based on the application of pure principles of Civil Law, except in respect of those applications and appeals that are specifically provided for in the Labour Act. Nor is there contained in section 89 any provision expressly authorizing the Labour Court to deal with an application, such as in the instant case, for the common law remedy of rei vindicatio. Such applications fall squarely within the jurisdiction of the High Court.”

I cannot do any better other than to hold that this court has jurisdiction to hear this matter.

While the High Court declined jurisdiction in the case of Telone (Private) Limited v Edwin Matinyarare HH140-13, in my view, this judgment is persuasive but not as binding on me as the Supreme Court one.

See also Surface Investments (Private) Limited v Maurice Chinyani HH295-14; Zimbabwe Broadcasting Holdings v Gono ZLR 2010 (1) ZLR 8; Zimbabwe Educational Scientific Social And Cultural Workers Union v Claud Kaharo HH222-11; and Gloria Rumbidzai Mkombachoto v Commercial Bank of Zimbabwe Limited and The Registrar of Deeds HH10-02.

The defendant was employed by the plaintiff as a driver attached to the Advisor to the Governor. He was issued with a Toyota Vigo motor vehicle registration number ABD7870 belonging to the employer for use in the discharge of his duties. He was retrenched from employment in January 2011 in terms of an approved retrenchment package which he signed in terms of which he is entitled to be paid a net sum of $19,312=80.

The plaintiff has sued the defendant seeking an order directing him to return the Toyota Vigo motor vehicle he is holding on to and damages for unlawful use of the said vehicle.

He initially took a point in limine that the dispute involving the motor vehicle is a labour one in which this court has no jurisdiction. Counsel for the defendant abandoned that point in limine, correctly in my view, on the basis that it was not well taken given that the plaintiff's cause of action is the actio rei vindicatio, a purely civil remedy in which this court's jurisdiction has not been ousted by section 89(6) of the Labour Act [Chapter 28:01].

The defendant has counter claimed seeking payment of $19,312=80 being unpaid retrenchment package and delivery of the registration book of the motor vehicle he claims is part of his retrenchment package.

The plaintiff objected to the defendant's counter-claim on the basis that it is, in essence, a labour dispute which should be determined by the Labour Court enjoying exclusive jurisdiction by virtue of the ouster provision contained in section 89(6) of the Labour Act. Counsel for the plaintiff submitted that as the defendant's claim is for payment of a retrenchment package, which is provided for in section 13(1)(b) and section 13(2) of the Labour Act [Chapter 28:01], this court's jurisdiction has been ousted by section 89(6). It is the Labour Court which enjoys jurisdiction exclusively.

Counsel for the defendant submitted that this court should exercise jurisdiction because in the counterclaim the defendant is seeking to enforce a civil debt. The fact that the debt arose out of an employment relationship is irrelevant. He maintained that the Labour Court has no jurisdiction to hear and determine civil disputes, the disposition of which does not involve the application of Employment Law expressly provided for by statute. It was strongly argued, on behalf of the defendant, that the right of an individual to approach this court seeking relief other than that specifically set out in the Labour Act remains as section 89(6) does not take away the right for civil relief premised on purely Civil Law principles.

Section 89(6) of the Labour Act [Chapter 28:01] provides;

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

Section 89(1) of the Labour Act [Chapter 28:01] states that:

“The Labour Court shall exercise the following functions:

(a) Hearing and determining applications and appeals in terms of this Act; and

(b) Hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) Referring a dispute to a Labour Officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) Appointing an arbitrator from the panel in subs (6) of section ninety-eight to hear and determine an application;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;

(e) Doing such other things as may be assigned to it in terms of this Act or any other enactment.”

The procedure for retrenchment of employees is provided for in section 12C of the Labour Act. Section 13 provides:

“Wages and benefits upon termination of employment

(1) Subject to this Act or any regulations made in terms of this Act, where any person -

(a) Is dismissed from employment or his employment is otherwise terminated; or

(b) Resigns from his employment; or

(c) Is incapacitated from performing his work; or

(d) Dies;

he or his estate, as the case may be, shall be entitled to wages and benefits due to him up to the time of such dismissal, termination, resignation, incapacity or death, as the case may be, including benefits in respect of any outstanding vacation and notice period, medical aid, social security and any pension and the employer concerned shall pay such entitlements to such person or his estate, as the case may be, as soon as reasonably practicable after such event, and failure to do so shall constitute an unfair labour practice.

(1a) Wages and benefits payable to any person or to his or her estate in terms of this section shall not form part of or be construed as a retrenchment package which an employee is entitled to where his or her employment has been terminated as a result of retrenchment in terms of section 12C.

(2) Any employer who, without the Minister's permission, withholds or unreasonably delays the payment of any wages or benefits owed in terms of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding two years or both such imprisonment.”

In his supplementary heads of argument, counsel for the plaintiff conceded that section 13 of the Labour Act specifically excludes retrenchment packages which is included as an unfair labour practice by virtue of the all-embracing section 8(e)(iv) of the Labour Act, which provides that an employer commits an unfair labour practice if he fails to comply with a determination or direction which is binding upon him in terms of the Labour Act.

It is clear that a retrenchment package is provided for in the Labour Act. It is an entitlement of an employee whose employment is terminated in terms of section 12C of the Labour Act. Where an employer does not pay a retrenchment package or delays making payment, an employee has a remedy - including criminal sanction. Indeed, failure to pay constitutes an unfair labour practice. There are remedies available for unfair labour practices.

I find myself having to repeat what was stated in Matongo v Midlands State University HH174-13…, that:

“This court has, in a number of cases, interpreted that ouster provision to mean that the Labour Court has jurisdiction in all matters where the cause of action and remedy for that are provided for in the Act; Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) 114 C; DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H) 204 A; Tuso v City of Harare 2004 (1) ZLR 1 (H); Moyo v Gwindingwi N.O. & Anor HB168-11 at pp 5-6 (now reported in 2011 (2) ZLR 368); Jambwa v GMB HH124-13 at p4;

I am in agreement with the postulation of MAKARAU JP (as she then was) in Medical Investment Ltd v Pedzisayi (supra) at 114 C that:

'In interpreting these two sections of the Act (i.e. section 89(1) and section 89(6)) this court has, in the authorities I have cited above, held that the Labour Court has exclusive jurisdiction in all applications and matters that are not only defined but are determinable in terms of the Act. In other words, the Labour Court has jurisdiction in all matters where the cause of action and the remedy for that cause of action are all provided for in this Act.'

I have cited the provisions of section 13 of the Act which entitle an employee to wages and benefits upon termination of the employment contract. In the event of a breach of those provisions the employee has remedies, including criminal prosecution, against the employer.”

In Chiwundo v Zimbabwe National Family Planning Council HH212-13…, I made the point:

“To the extent that the applicant was entitled to appeal all the way to the Labour Court, it means that the substance of this application is, in essence, a labour dispute disguised as an application for a declarator. Section 89(6) of the Labour Act [Cap 28:01] has ousted the jurisdiction of all other courts, in the first instance, to hear and determine any application, appeal or matter falling under the jurisdiction of the Labour Court. The present dispute clearly falls under the ouster provisions as it should be determined by the Labour Court.”

See also William Bain & Company Holdings (Pvt) Ltd v Nyamukunda HH309-13.

In my view, the defendant's cause of action, being the non-payment of a retrenchment package, is found in the Labour Act. His remedy is also located in that Act. For that reason, the jurisdiction of this court has been ousted by section 89(6) of the Labour Act. It matters not that the package was agreed between the parties. In fact, it was approved by the relevant authorities, namely, the Works Council and the Minister of Public Service, Labour and Social Welfare. This court will still not exercise jurisdiction.

1. The plaintiff's point in limine is hereby upheld.

2. Jurisdiction in respect of the defendant's counter claim is declined.

3. The matter shall proceed to trial in respect of the plaintiff's claim.

4. The issue of costs is reserved until the end of trial.

The respondent was employed by the applicant as Head Administration. As part of his employment benefits he was allocated a motor vehicle for his duties, namely, a Toyota Hilux registration number ABD 8617 (the vehicle).

On 3 June 2011, the applicant terminated the respondent's contract of employment following disciplinary proceedings in terms of the National Code of Conduct. When the respondent was on suspension he was allowed to use the vehicle. The respondent challenged the dismissal by noting an appeal to the Labour Relations Office. The matter is still pending.

The applicant then instituted the present proceedings seeking to recover the vehicle from the respondent. The basis for seeking such relief is that the respondent does not have any lawful basis for holding on to the applicant's vehicle. His entitlement to the vehicle, like any other benefits, ceased as a consequence of the termination of his employment. It was also averred that by holding onto the vehicle, the respondent is contravening section 57 of the Road Traffic Act [Chapter 13:11].

The application is opposed mainly on three grounds.

(i) The first ground is that this court has no jurisdiction to entertain an application of this nature. The matter is pending before the Labour Court and the applicant ought to have followed that route.

(ii) The second ground is that the noting of an appeal suspends the decision appealed against.

(iii) The third ground is that he is entitled to continue to use the vehicle as the terms of his suspension allowed him to use the vehicle pending the determination of the matter.

JURISDICTION

It was submitted on behalf of the applicant that the present claim is based under the common law principle of rei vindicatio. There is no provision, in terms of the Labour Court Act [Chapter 28:01] which allows it to deal with such an issue.

It was further submitted that the decisions in Zimtrade v Marlord Makaya 2005 (1) ZLR 427 (H); Medical Investments Limited v Rumbidzayi Pedzisayi HH26-10; and DHL v Madzikanda HH51-10 were patently wrong and that this court was at large to depart from them.

It was contended that if there was a labour dispute between the parties, but the relief being sought cannot be granted by the Labour Court, as in the case of rei vindication, the High Court exercises jurisdiction. This would constitute an answer to the position adopted by MAKARAU JP in the three cases referred to above. The un-intended consequence of the position in these three cases is that it leaves a dispute without an adjudicating authority.

It was further contended that when an employee is dismissed, the employer-employee relationship ceases to exist. The relationship can only be salvaged by a lawful order reinstating the employee. Where there is no such relationship then the rules of Labour Law do not apply. The parties will then have to be guided by the operation of common law which is properly administered by courts of inherent jurisdiction such as this court.

The respondent contends that this court has no jurisdiction to entertain this matter and relies on the authority of the three cases referred to by the applicant.

It is common cause that the respondent acquired or possessed the vehicle by virtue of an employment contract. The contract was terminated. The respondent is challenging the termination of the contract.

The issue for me would be whether the issue of vindication of the vehicle can be determined without directly dealing with the rights of the parties on the issue of termination of the contract of employment.

The answer, in my view, is to be found in DHL v Madzikanda HH51-10…, where MAKARAU JP…, in reference to her other judgment in Zimtrade v Marlord Makaya 2005 (1) ZLR 427 (H) stated:-

“In that matter, which was unopposed, I declined jurisdiction. My reasoning in that matter was, firstly, that the Labour Court has exclusive jurisdiction in matters relating to suspensions from employment and termination of employment. Secondly, I reasoned that the possession of the employer's property by an employee, in terms of the contract of employment, is so inter-dependently linked to the contract that one cannot decide on one without deciding on the other.

In the result, because the Labour Court has exclusive jurisdiction over the one, it follows that it also has exclusive jurisdiction over the other. The conditions of service of an employee are simply the terms upon which that employee is employed and to try and separate the contract from its terms upon which that employee is employed and to try and separate the contract from its terms appears to me legally untenable, and, in any event, highly untenable.”

I associate myself fully with the above sentiments.

The relief that the applicant seeks in this matter is premised on the final outcome of the labour dispute. That dispute has not been exhaustively and decisively determined by the appropriate court. MAKARAU JP…, in DHL v Madzikanda HH51-10 dealt with the issue why the Labour Court is the appropriate forum….,. She said:-

“Where, however, a dispute can either found a cause of action at common law or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can easily be resolved by paying regard to the overall intention of the legislature in creating the Labour Act.

In my view, in such a case, the Labour Court's jurisdiction, being special, must prevail. It would make a mockery of the clear intention of the legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the Act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”

I will therefore find that this court has no jurisdiction to grant the relief that the applicant seeks. I will adopt the procedure adopted by MAKARAU JP…, by proceeding to determine the matter on the merits on the assumption that I might have erred.

The facts of this matter are almost on all fours with those in DHL v Madzikanda HH51-10 where MAKARAU JP…, made a finding that the status of the respondent in that matter had not been finally determined as it was pending before the Labour Court and that the respondent has successfully discharged the onus on him to prove the right to possess the vehicle pending the determination of the appeal that was pending before the Labour Court.

The respondent, in casu, has discharged the onus on him to establish the defence of claim of right. In effect, the applicant has not advanced any arguments on that issue. If I had jurisdiction in this matter I would have found for the respondent.

The last issue is whether the noting of an appeal to the Labour Court suspends the decision appealed against in view of the provision of section 92E of the Labour Act [Chapter 28:01].

It was contended, for the applicant, that an appeal in terms of section 92(E) of the Labour Act does not suspend the decision appealed against. Any action taken after dismissal is valid even if the dismissal is later overturned. The employer is at liberty to hire another employee. That is why there is section 89(2)(c) of the Labour Act which allows a court ordering re-instatement to specify an alternative for damages in lieu of reinstatement.

That an appeal filed in terms of section 92E of the Labour Act does not suspend the decision appealed against is settled. The employee is regarded as dismissed pending the determination of the appeal. MAKARAU JP…, in DHL v Madzikanda HH51-10…, dealt with the issue in this way;

“It however appears to me that the provisions of section 92E of the Act have no effect on the claim of right that the respondent is raising at common law. Where the law regards the respondent as dismissed he has never accepted that position and is challenging his purported dismissal before the Labour Court. For as long as his challenge is alive and not fully determined, his claim of right remains alive with it. It is only when his challenge is invalidated at law that he loses the basis for his claim of right. The claim that the respondent has is not, in my view, dependent upon whether the law regards him as an employee or not rather it is dependent upon whether or not the dispute between the parties has been definitively resolved.”

In casu, the dispute between the parties has not been exhaustively and definitively determined. The respondent's defence of claim of right is still alive. The applicant can only approach this court after the appeal has been determined. Assuming I had jurisdiction, I would have dismissed the application on the basis that it is premature.

In view of the above findings I will make the following order:

1. The application is dismissed.

2. The applicant to pay the respondent's costs.

The applicant and the respondent enjoyed an employer-employee relationship for a period of 16 years; the respondent having been taken in initially as a low level employee, but, to his credit, rising through the ranks to the position of Branch Manager for Marondera.

At some stage during the period of employment, the respondent was issued with the employer's Ford Ranger 1800 pick-up registration number AAO 4838 for use although initially he was not entitled to it. When he was promoted to Branch Manager, it was a condition of employment that he be allocated a vehicle, and, therefore, held the vehicle as part of his conditions of service. In addition, he was also allocated a company house, being No.1088 Fairview Crescent, Winston Park, Marondera at a nominal rental of US$20 per month deducted from his salary.

On 16 May 2011, the respondent resigned from employment, and, in his letter of resignation of that date, he requested to purchase the motor vehicle that he was using. The applicant refused to sell the motor vehicle to him and demanded that he surrenders it and also vacate the company house on a given date. The respondent did not surrender the vehicle neither did he vacate the house.

I must mention that a dispute arose between the parties hinging on whether the respondent had resigned or had been dismissed as the applicant had, after the respondent's resignation, purported to conduct a disciplinary hearing and to dismiss him from employment. Although that leg of the dispute between the parties is not before me, I mention, for completeness, that it has since been resolved by the Labour Court which concluded that the respondent had in fact resigned and had not been dismissed.

Be that as it may, the respondent's refusal to surrender both the vehicle and the house prompted the applicant to make this application before this court seeking an order compelling the respondent to surrender the property.

The application is opposed, and, in his opposing affidavit, which also betrays the level of acrimony in the relationship between the parties, the respondent sought to argue that as the motor vehicle and accommodation were part of his employment benefits, those issues were outside the jurisdiction of this court and fell for determination by the Labour Court which was then seized with an appeal he had lodged therein.

The respondent insisted that in terms of the conditions of service of the applicant, he was entitled to purchase the vehicle as he had had it for 7 years when the conditions of service allowed an employee the right to purchase a vehicle allocated to him at the expiration of a period of 5 years....,.

Regarding the issue of jurisdiction, this court has stated, on times without number, that its jurisdiction has been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01] only in those matters where the Labour Court is granted specific jurisdiction by section 89(1) of the Labour Act: Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H)…,.; DHL International Ltd v Madzikanda 2010 (1) ZLR 201 (H)…,.; Moyo v Gwindingwi N.O. & Anor HB168-11….,.; Jambwa v GMB HH124-13; PG Industries (Zimbabwe) Ltd v Machawira HH255-12.

The Labour Court enjoys exclusivity in all matters where the cause of action and the remedy are all provided for in the Labour Act. Outside that, for instance where the cause of action and the remedy are located in the common law, the ouster provision in the Labour Act has no application and this court will exercise jurisdiction.

In casu, it is common cause that the employment contract of the parties was terminated in May 2011. The applicant insisted that it had been terminated by dismissal while the respondent took the view that he had resigned. As I have already stated, the Labour Court decided in favour of the respondent concluding that he had resigned. Whatever the case, the employment of the respondent was terminated and he is no longer an employee of the applicant.

The situation presented by this case is the same as that which arose in Medical Investments Ltd v Pedzisayi 2010 (1) ZLR 111 (H) and I can do no better than repeat what was stated by MAKARAU JP…, that:-

“While it has to be accepted that the respondent's claim of right to the motor vehicle arises from her terminated contract of employment with the applicant, this is a far cry from holding that there is a labour dispute between the parties that can find a remedy or resolution in terms of the Act. The resolution of the dispute between the parties is not entwined with the resolution of the contract of employment, as was the case in Zimtrade v Makaya supra (2005 (1) ZLR 427 (H)). There, pending determination of the contract of employment, the employer sought to repossess its assets from the employee using the rei vindicatio. It appeared to me, then, to be the correct position at law that where the validity of the suspension of the employee or the termination of their employment is still pending, the rei vindicatio could not properly lie at the instance of the employer.

I am still of the same view.

On the contrary, where the status of the former employee is without dispute, the rei vindicatio can lie at the instance of the employer in appropriate cases and the matter thereby falls outside the purview of the Labour Court as it is not a matter that can be heard or determined in terms of the Labour Act or any other related enactment. It is my view that the rei vindicatio is not a cause of action whose remedy can be granted in terms of the Act as a stand-alone remedy in the absence of a dispute that is specifically provided for under the Act.”

I associate myself fully with that pronouncement. I will therefore exercise jurisdiction.