Practicing Certificates and Right of Audience before Courts re: Approach, State Functionaries and Judicial Interference

HB06-12 : KAISER ENGINEERING (PVT) LTD vs MAKEH ENTERPRISES (PVT) LTD
Ruled By: NDOU J

There is a long history of litigation between the parties as evinced by the cross-references cited…,. The history can be summarized as follows. The parties' relationship stems from a lease agreement originally signed between the applicant and a company called Endurite (Pvt) Ltd. The respondent bought the property, the occupancy of which is at the centre of ...

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

This then brings me to the next issue raised by the plaintiffs'. It appears trite to me that a registered legal practitioner to whom the Law Society has issued a practicing certificate enjoys the right of audience in our courts until the practicing certificate lapses by effluxion of time, is lawfully withdrawn, or is set aside ...

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED
Ruled By: GOWORA J

In Bozimo Development Co. (Pvt) Ltd v First Merchant Bank of Zimbabwe Ors 2000 (1) ZLR 1 CHATIKOBO J, in considering an objection to the appearance as counsel in the matter before him by a Chairman of the applicant opined that due to the relationship of the legal practitioner of ...

In Bozimo & Development Co. (Pvt) Ltd v First Merchant Bank of Zimbabwe & Ors 2000 (1) ZLR 1 CHATIKOBO J, in considering an objection to the appearance as counsel in the matter before him by a Chairman of the applicant opined that due to the relationship of the legal practitioner of the applicant with the myriad affairs of the companies that he was Chairman of, and with whose legal brief the legal practitioner was seized, he would not permit him to appear for the same as counsel but would allow him to appear as an agent of the applicants.

In our jurisdiction, a legal practitioner is an officer of the court, and as such the court has jurisdiction over the said legal practitioner, and, in the event that it is established that the legal practitioner has performed acts or actions that are inconsistent with the legal practitioner's duty to the court then it is within the power of the court to sanction such legal practitioner.

In the case before me, there can be no talk of a conflict of interest on the part of counsel for the plaintiff. There is, however, clear evidence on his part of a breach of his duty to the court. He has always acted as the legal practitioner for the plaintiff in relation to its dispute with the defendant's representative. A the pre trial conference in June 2007 he was aware that the most burning issues for determination in the trial related to the shareholding and to the Directors of the company.

A legal practitioner's duty is to protect the interests of his client and to give legal advice. It is not the function of the legal practitioner to then step into the shoes of the client and perform, on behalf of his client, acts that are materially related to the dispute before the court in an endeavour to buttress the case of his client. This is especially reprehensible when one takes into account the fact that the question of the plaintiff's authority to institute the current proceedings had been raised with counsel for the plaintiff; and he was aware that this alone could damage the success of the plaintiff's claim. Notwithstanding this fact, and his knowledge, and more importantly, his duty to the court, counsel for the plaintiff had the temerity to hold a meeting attended only by himself as Director of the company and at which meeting he issued a resolution in terms of which his actions as a legal practitioner in instituting the proceedings were ratified by himself. In addition to this, a resolution passed by counsel for the plaintiff, under the guise of Director of the plaintiff, sought to nullify the appointment of the defendant's nominees as Directors. Whether their supposed appointment was irregular or not was not an issue that he was empowered, as a legal practitioner, to deal with legally. This particular action, if true, would cast a very serious light on the conduct of counsel for the plaintiff as a legal practitioner, especially in light of the surrounding circumstances of this case; taking into account that that was one of the issues for determination at the trial. Even if it had transpired that the appointment had been irregular, for a legal practitioner to then don his client's mantle and rectify the irregularity by nullifying the appointment amounts to serious misconduct. As was said by WESSELS JA in Robinson v Van Hulsteyn & Ors 1925 AD12..., -

“According to our law, a solicitor is an officer of the Court; the Court exercises jurisdiction over him and will see that in the conduct of his professional work he displays towards the Court and towards his clients a very high standard of conduct.”

The conduct of counsel for the plaintiff towards the court cannot, in the instant case be described as being of a very high standard. He has aligned himself so closely with his client's case that this court can be forgiven for stating that he has displayed an interest in the case going beyond that of a legal practitioner.

Appealed
SC47-13 : ALFRED MUCHINI vs ELIZABETH ADAMS and SHEPHERD MAKONYERE N.O. and ESTATE LATE ALVIN ADAMS and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

At the end of the hearing we dismissed the appeal with costs. The following are our reasons for so doing.

The subject of the dispute between the parties is an immovable property known as Plot Number 13 Glynham, Masvingo (“the property”). It formed part of the estate of the late Alvin Roy Adams (“the deceased”) who died on 9 July 2004. The first respondent is his widow.

About one year after the demise of the deceased, in July 2005, the first respondent, desiring to sell the property, approached the legal firm Mwonzora & Partners requesting their assistance in finding a buyer. They found the appellant, and, on 7 July 2005, the first respondent sold the property to the appellant for Z$350,000,000. It is common cause that payment was made by the appellant to Mwonzora & Partners. Thereafter, the appellant moved onto the property having evicted the first respondent and her children therefrom.

Mwonzora & Partners did not transmit the proceeds of the sale to the first respondent who continued to press for payment without success. In the end, that firm advised her to find another firm of legal practitioners to represent her as they were now representing the appellant.

The first respondent engaged the services of Messrs Robinson & Makonyere who attended to the appointment of an executor to the estate. Upon his appointment, Mr Shepherd Makonyere, the second respondent, wrote to the appellant appraising him of the position and advising him that he was liable to be evicted since the property had been purchased by him before the appointment of an executor to the estate.

In response, the appellant filed an ex parte application in the Magistrates' Court seeking an interdict to prevent his eviction by the executor. An interim order was granted.

In his founding affidavit filed in support of his application before the Magistrates Court the appellant stated his case as follows:

“13. I aver that the threats to evict me from the premises are disturbing my peaceful occupation of the premises in that:

(i) I bought the house lawfully from the First Respondent and paid the purchase price in full.

(ii) I occupied the premises with the clear and express consent of both the First Respondent and all beneficiaries of the said Estate.

(iii) I have made considerable improvements on the premises.

(iv) First Respondent had ostensible authority to dispose of the property by virtue of being the surviving spouse of the LATE ALVIN ROY ADAMS.”

However, at the hearing before the magistrate, the appellant argued that the sale of the property had been conducted in terms of section 41 of the Administration of Estates Act [Chapter 6:01]. In so doing, he sought to rely on an allegation made in the opposing affidavit sworn by Chantelle Adams, the first respondent's daughter, that:

“2. When my father died, in July 2004, the family was left in a crippled financial position.

3. My mother then decided to sell the immovable property in dispute, and approached Messrs Mwonzora and Associates to make the necessary arrangements.

10. From the beginning, I did not approve the sale of the property, but, since my mother was desperately in need of the money, I could not resist.”

The magistrate dismissed this argument on the basis that an applicant's case must stand or fall on its founding affidavit. He discharged the rule nisi. The appellant appealed to the High Court which dismissed the appeal.

Still dissatisfied, he has appealed to this Court.

It was contended by counsel for the appellant, that, the sale of the property was effected in terms of section 41 of the Administration of Estates Act [Chapter 6:01] (“the Act”) as it was absolutely necessary for the subsistence of the deceased's family.

He submitted that although an allegation to that effect was not made in the founding affidavit, the issue was sufficiently canvassed before the magistrate and both the magistrate and the court a quo had erred in taking the stance that the application stood or fell on the allegations made in the founding affidavit.

In any event, he argued, the sale of an estate asset in contravention of section 41 of the Administration of Estates Act was not a nullity since the only sanction imposed by the Act was personal liability, on the person disposing of the estate asset, for the debts and liabilities of the estate.

It is trite that an application stands or falls on the averments made in the founding affidavit: see HERBSTEIN & Van WINSEN, The Civil Practice of the Superior Courts in South Africa, 3rd ed…, where the authors state:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still, the main foundation of the application is the allegation of facts stated therein, because these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out.”

This was the principle applied by the court a quo. It said:

“In his founding affidavit, the appellant submitted that the sale should be upheld because the widow or first respondent 'had ostensible authority to dispose of the property by virtue of being the surviving spouse of the late Alvin Roy Adams.'

Now, in law, the applicant's case falls or stands upon what is said in the founding affidavit. It cannot be propped up by what may chance in respondent's opposition.

However, the issue of ostensible authority seems to have been abandoned during the proceedings in the court a quo. It certainly is not part of the grounds of appeal. On this basis alone, the conclusion would have been inescapable that the sale of the property fell foul of the peremptory provisions of section 21 of the Administration of Deceased Estates Act (Chapter 6:01).”

In my view, by the stance adopted by both courts below is unassailable.

In any event, as was submitted on behalf of the respondents, the appellant failed to establish that the disposal of the property was absolutely necessary for the subsistence of the family as Mwonzora & Associates had declined to release the proceeds thereof and have, to date, not done so.

It is incredible that the very firm of legal practitioners which arranged the sale and retained the proceeds could be pressing for transfer of the property from the first respondent who was a client at the time of the sale in full knowledge that the purchase price has not been paid to her.

It is aggravating that this stance is being taken by that firm as representatives of the purchaser of the property when it was the first respondent, the seller, who first approached them and for whom they were acting at the time of the sale.

The High Court referred the question of the conduct of this firm of legal practitioners to the Law Society for investigation - and rightly so, in my view.

A high standard of integrity is expected from legal practitioners.

HH280-10 : CORE MINING AND MINERALS RESOURCES (PVT) LTD vs THE ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES (PVT) LTD and OTHERS
Ruled By: MAVANGIRA J

This is an urgent chamber application in which the applicant's legal practitioner raised a preliminary point which needs to be determined before the Court can proceed to hear the preliminary points that the respondents raise. Counsel for the applicant submitted that Mr Mutamangira should not appear in these proceedings as a legal practitioner for the first ...

Counsel for the applicant submitted that Mr Mutamangira should not appear in these proceedings as a legal practitioner for the first and second respondents and that he can only appear as their agent.

The basis for this is that Mr Mutamangira is intimately and emotionally interested in matters involving the applicant and the respondents and generally in the affairs that have developed and culminated in the institution of these proceedings. Amongst other things he was involved in the investigations that were conducted and which led to the prosecution of the deponent to the applicant's founding affidavit….,. This is unethical conduct which this court should not countenance beyond this stage.

It is contended that Mr Mutamangira and/or the firm ought to have realised the impropriety of their participation in these proceedings as legal practitioners for the first and second respondents. They should have advised their clients accordingly, and, consequently, of the need for a different firm to represent them as their legal practitioners. Mutamangira and Associates would then only act or appear as agents for the said respondents.

The documents which counsel for the applicant referred the court to in support of his submissions are mostly attachments to the first respondent's opposing affidavit which was deposed to by one Godwills Masimirembwa, the Chairman of the first respondent's Board of Directors. One such document is a letter dated 20 September 2010 authored by the fifth respondent and addressed to Mr Masimirembwa. Therein, the fifth respondent directs that the Board investigates and establishes, amongst other issues, the applicant's shareholding as well as the “standing” of its current shareholders. Specific reference was made to paragraph 4 of this letter. The paragraph states, inter alia, that the fifth respondent expected a professionally compiled report and that a suitable person must be identified to undertake the investigation or enquiry on the directions given by the fifth respondent in the letter. It was contended that from the events that ensued Mr Mutamangira turned out to be the suitable person that was needed. Reference was made to Annexure GM3 to Godwills Masimirembwa's affidavit. This is a copy of the minutes of the meeting of the Mining Development Board members with the applicant's members held at the first respondent's Head Office Boardroom on 19 October 2010. Amongst those recorded as being in attendance at the meeting is Advocate F. Mutamangira. Counsel for the applicant specifically referred to para (e) of the minutes…, where the following decision, amongst others, was made or recorded:

“That the Core Mining shares in Canadile be transferred to Marange Resources.”

He submitted that this shows that this was a meeting where the “dismemberment of a duly registered company was being done or discussed and that this was in the presence of Mr. Mutamangira. He submitted that in these circumstances Mr Mutamangira cannot deny the level of involvement that is being alleged against him as the minutes are an indication of his intricate involvement in the affairs referred to.

It was counsel for the applicant's submission that in the scenario postulated by Mr Mutamangira, in which a legal practitioner gives legal advice to a Board of Directors, the clear answer is that such legal practitioner cannot, thereafter, represent the same client as a legal practitioner. (In his submission, this is what elementary knowledge of the law and elementary corporate governance dictates.) ….,.

It was also submitted that it would not have been proper for the applicant to refrain from raising this preliminary issue on the basis of expediency. To do so would be to allow an extremely bad precedent to be set.

Mr Mutamangira, in response, submitted that no evidence was placed before the court to enable it to determine the depth of his alleged involvement in the matters referred to. He submitted that the allegations made were based on speculation. As regards the investigation into the affairs of the fourth respondent, which investigation was conducted at the behest of the fifth respondent, he submitted that the investigation was conducted by the first respondent and not by him or his firm. They only provided legal advice and he cannot thus be said to be or to have been intimately involved in the affairs that have developed for some time eventually culminating in the filing of the instant urgent chamber application.

Mr Mutamangira posed what he appeared to intend to sound as a rhetoric question. He asked whether counsel for the applicant meant by his submission that he would be disqualified from acting as a legal practitioner in circumstances where he had given legal advice to a Board of Directors.

On a perusal of the documents which are attached to the first respondent's opposing affidavits, and which were referred to by counsel for the applicant, it appears clear to me that Mr Mutamangira's, and his firm's, involvement, cannot, for the purposes of these proceedings, be said to be merely that of a legal practitioner. He has participated in the pertinent affairs at a level that precludes him from appearing for the respondents as a legal practitioner in these proceedings. One clear instance is the attendance at the meeting of 19 October 2010….,.

Whilst in Central African Building Construction Company (Pvt) Ltd v Construction Resources Africa (Pvt) Ltd HH112-10 GOWORA J was faced with a different scenario, it appears to me that the observation that she made at page4 of the judgment can be made with the same aptness in casu. She said-

“…,. He (a legal practitioner) has aligned himself so closely with his client's case that this court can be forgiven for stating that he has displayed an interest in the case going beyond that of a legal practitioner.”

Similarly, the reference by counsel for the applicant to Bozimo Trade and Development Co. (Pvt) Ltd v First Merchant Bank of Zimbabwe and Ors 2000 (1) ZLR 1 (H) is also apposite. The headnote reads in part-

“Held: that the legal practitioner should be allowed to represent the company as agent of the company instead of its legal practitioner. He was entitled to represent the company as its agent as he was its alter ego, although he was not the sole or majority shareholder in the company. However, he had such a deep-seated perception of unfair play on the part of the respondents that he might end up prejudicing the applicant's case by representing the company. It would be better for him to hand over the case to legal counsel.”

CHATIKOBO J, at p4 of the judgment, stated-

“…,. Although Mr Kara is neither the sole nor the majority shareholder in applicant, his association with, and the extent of his interest in the applicant, is such that he should be permitted to represent the applicant. Although he appeared before me robed as counsel, I ruled that he could only represent the applicant as its agent and he did so on that basis.”

In Central African Building Construction Company (Pvt) Ltd v Construction Resources Africa (Pvt) Ltd HH112-10 GOWORA J stated…,-

“In Bozimo Trade and Development Co P/L v First Merchant Bank of Zimbabwe and Ors 2000 (1) ZLR 1 CHATIKOBO J, in considering an objection to the appearance as counsel in the matter before him by a Chairman of the applicant, opined that due to the relationship of the legal practitioner of applicant with the myriad affairs of the companies that he was Chairman of and with whose legal brief the legal practitioner was seized he would not permit him to appear for the same as counsel but would allow him to appear as an agent of the applicants.”

She proceeded…,-

“…,. A legal practitioner's duty is to protect the interests of his client and to give legal advice. It is not the function of the legal practitioner to then step into the shoes of the client and to perform acts that are materially related to the dispute before the court in an endeavour to buttress the case of his client…,.”

In conclusion, in relation to the other aspects discussed…, it seems clear to me that Mr Mutamangira and the legal firm Messrs Mutamangira & Associates cannot properly be allowed to continue appearing as legal practitioners for and on behalf of the first and second respondents.

I therefore uphold the preliminary point raised by the applicant's legal practitioner to the extent stated above.

HH280-10 : CORE MINING AND MINERALS RESOURCES (PVT) LTD vs THE ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES (PVT) LTD and OTHERS
Ruled By: MAVANGIRA J

It was further submitted that Mr Mutamangira and/or his firm cannot properly represent the fifth respondent as he is being sued in his official capacity and should thus be represented only by the Attorney-General as the principal legal advisor to the Government. Mr Mutamangira also submitted that had counsel for the applicant sought clarification before raising the ...

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

1. Whether or not the representation of the first applicant by Messrs Nhemwa and Associates when they had previously represented David Whitehead Textiles Limited created a conflict of interest capable of disqualifying the said legal practitioners from representing the first applicant in casu. In addition to submitting that the preparation of the certificate of urgency ...

In addition to submitting that the preparation of the certificate of urgency by Mr Nhemwa was undesirable, counsel for the second respondent went on to point out that Messrs Nhemwa and Associates were, in fact, close to the issues for determination. He said present and retrenched employees of David Whitehead Textiles Limited had raised concerns of conflict of interest. This was so, he argued, because Mr Nhemwa had previously represented both current and retrenched employees of David Whitehead Textiles Limited. That being the case, counsel for the second respondent submitted it would be improper for Mr Nhemwa's legal firm to represent Mr Militala, who is now the Provisional Judicial Manager of David Whitehead Textiles Limited, because that would compromise the rights of employees.

In response to counsel for the second respondent's submissions Advocate Uriri pointed out that Mr Nhemwa had represented a legal entity called Zimbabwe Textile Workers Union. This was in respect of retrenchment packages. He said the said entity shared the same views as the applicant and therefore there was no conflict of interest. He said unlike the situation in Core Mining and Minerals Resources (Pvt) Ltd v The Zimbabwe Mining Development Corporation and 4 Ors HH280-10, where it was ruled that the legal practitioner in question had participated in the pertinent affairs of his client at a level that precluded him from appearing for the same client as a legal practitioner, there was no sufficient evidence in casu to justify a finding of conflict of interest.

I now proceed to determine the point in limine.

In Central African Building Construction Company (Pvt) Ltd v Construction Resources Africa (Pvt) Ltd HH112-10, GOWORA J made the following pertinent comments -

“It is important that a legal practitioner should at all times retain his independence in relation to his client and the litigation which is being conducted...,.

...,. A legal practitioner's duty is to protect the interests of his client and to give legal advice. It is not the function of the legal practitioner to then step into the shoes of the client and to perform acts that are materially related to the dispute before the court in an endeavour to buttress the case of his client...,.”

I agree with the above principles relating to the conduct of legal practitioners and also wish to point out that in addition to the above important principles it should always be remembered that a legal practitioner executes his duties as an officer of court. It would therefore be unfortunate if the independent mind of the legal practitioner is lost because of the need to win the case of his/her client at any cost. Such a legal practitioner would, in my view, have ceased to behave as an officer of court and consequently would render no assistance to the court.

In casu, in the absence of detailed evidence showing active involvement by Mr Nhemwa in the affairs of his client, I am not persuaded to accept that his representation of the Zimbabwe Textile Workers Union calls upon him to distance himself from any participation in this case as the first applicant's legal practitioner. The case cited above, namely Core Mining and Minerals Resources (Pvt) Ltd v The Zimbabwe Mining Development Corporation and 4 Ors HH280-10 clearly demonstrates the need for clear evidence of activities/actions on the part of a legal practitioner that would disqualify him/her from representing a litigant. The facts alluded to should, indeed, clearly point to conflict of interest. Admittedly, the Zimbabwe Textile Workers Union represented workers, but, that alone, in my view, is not enough to establish conflict of interest. More evidence was required to show that the legal practitioner's independence faced the danger of compromise.

In view of what I have said above, I am unable to uphold this preliminary issue. Messrs Nhemwa and Company are not barred from representing the first applicant and therefore had the legal capacity to file this application.

HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE
Ruled By: KUDYA J

Counsel for the respondents was in the invidious position of representing two clients whose versions…, were at cross purposes. In my view, he ought to have declined to represent both of them because of the conflict of interest that arose in such a situation.

Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

Quaere: whether Mr Tawanda Nyambirai, being the Chairman of the first respondent, can represent the latter without staining some ethical considerations.

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

The Attorney-General had been the legal advisor and counsel for the Registrar of Deeds and the Minister of Lands and Rural Resettlement, (hereafter referred to as “the Minister”). The Minister was the third respondent in Case 1 and the first respondent in Case 2. The Attorney-General himself was a substantive party in Case 2, ...

HMA20-17 : FRANK NYAKU BADZA vs SMM HOLDINGS [PVT] LTD [Under Reconstruction] t/a SMM Properties
Ruled By: MAWADZE J and MAFUSIRE J

Order 4 Rule 1 of the Magistrates Court [Civil] Rules authorises a party to institute or defend legal proceedings, inter alia, either in person, or by a legal practitioner….,. Rule 2 then states, unambiguously, that it shall not be necessary for any person to file a power of attorney to act. Admittedly, the Rule ...

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN E. KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

On 7 June 2006, at the request of the parties, I postponed the hearing to 13 July 2006. When the hearing resumed, Mrs Wood, for Turner and Sons, applied for the forced recusal of Mr de Bourbon, for Dobrocks (Pvt) Ltd, on the basis that he had been an arbitrator between these parties in 1994. She referred to Pertisilis v Calaterra ...

On 7 June 2006, at the request of the parties, I postponed the hearing to 13 July 2006.

When the hearing resumed, Mrs Wood, for Turner and Sons, applied for the forced recusal of Mr de Bourbon, for Dobrocks (Pvt) Ltd, on the basis that he had been an arbitrator between these parties in 1994. She referred to Pertisilis v Calaterra & Anor 1999 (1) ZLR 70 (H) as authority for the proposition that the legal practitioner who acted for a former client is precluded from representing a different client in circumstances where a conflict of interest is likely to arise between the former and present client.

SMITH J set out the basis of the rule, at 74C, as being that:-

“A legal practitioner who represents the adversary of his own client in litigation would clearly be violating his or her duty of loyalty and the common law rules against conflict of interest.”

He proceeded to survey American, English, South Africa, and Zimbabwean decided cases on the point at pages 74C – 77. While he held that neither a partner nor his employee could represent an opponent of a former client in order to fulfill the adage that justice must not only be done but that it must manifestly and undoubtedly be seen to be done, he nevertheless permitted a partner to represent the opponent on the basis that there was no allegation that the other partner had acquired information from the papers in the possession of his firm which could be used to the former client's disadvantage.

Mrs Wood contended that justice will not be seen to be done if Mr de Bourbon was allowed to represent Dobrock (Pvt) Ltd, especially on the liquidation case where Turner and Sons allege a deadlock has manifested itself between the joint shareholders - a fact found by Mr de Bourbon, as arbitrator, to exist in his 25 June 1994 ruling. She further foresaw a need to call Mr de Bourbon on the deadlock issue in the liquidation case.

Mr de Bourbon countered by contending that he did not represent either Dobrock (Pvt) Ltd or Turner and Sons but acted in a quasi-judicial capacity. He knew of no law which debarred him from representing either party as long as he had not possessed confidential information which could be used to the detriment of his client's adversary. He referred to Benmac Manufacturing (Pvt) Ltd v Angelique Enterprises (Pvt) Ltd 1988 (2) ZLR 52 (H).

In that case, Mr de Bourbon accepted a general retainer from Angelique Enterprises (Pvt) Ltd in a matter in which that company was involved in a dispute with Albco. He was, at that time, already seized with a retainer for Benmac Manufacturing (Pvt) Ltd in its contest with Angelique Enterprises (Pvt) Ltd. He had accepted the retainer in the matter against Albco after assurance from his instructing attorney that there would be no conflict of interest. It was accepted in that case by that attorney that he had not come into contact with any confidential information which would prejudice Angelique Enterprises (Pvt) Ltd in its contest with Benmac Manufacturing (Pvt) Ltd. The Law Society, and two other counsel, had absolved him of any impropriety, but the Managing Director of Angelique Enterprises, Mr Holland, was not satisfied with their findings and advice.

REYNOLDS J held that Angelique Enterprises (Pvt) Ltd had not shown that Mr de Bourbon had in fact become acquainted with information that could be used to its detriment which would result in real mischief and real prejudice if he continued to act for Benmac Manufacturing (Pvt) Ltd. He did express his reservation on a legal practitioner acting for and against his client in the same or different matters.

Mr de Bourbon submitted that he had not acquired any information that he could possibly utilize to the prejudice of Turner and Sons and that his impartiality in 1994 had not been impugned by any of the parties.

I went through the arbitral award.

It concerned and dealt with the share of each joint shareholder in the extra costs which were above the original cost of construction of the large commercial houseboat which Zambezi Paddle Steamer (Pvt) Ltd was to own. Turner and Sons was not able to show what information Mr de Bourbon accessed which could prejudice its present defence and claim. If anything, I was satisfied that the arbitral award stands on its own and there would be no need to call the arbitrator to testify on it.

I accordingly dismissed the application for the forced withdrawal of Dobrock (Pvt) Ltd's counsel.

HH85-15 : CROWHILL COMPANY (PVT) LTD vs CYNTHIA MAADZA and THE ZIMBABWE WAR VETERANS ASSOCIATION
Ruled By: MUREMBA J

2. Conflict of interest by applicant's lawyer It was submitted that Mr Dzvetero, who was representing the applicant, was conflicted, because in matters preceding this matter that involved the same parties Mr Dzvetero represented the first respondent, and, as such, he was privy to personal information about the first respondent. In Mutanga v Mutanga 2004 (1) ZLR 475 (H) it was held that the ...

HH349-14 : TRUSTEES OF THE S.O.S. CHILDREN'S VILLAGE ASSOCIATION OF ZIMBABWE vs BINDURA UNIVERSITY and MINISTER OF STATE, MASHONALAND CENTRAL and MINISTER OF LANDS and ATTORNEY – GENERAL
Ruled By: MAFUSIRE J

The third point in limine was that counsel for the applicant should be disqualified from representing the applicant. He had been present at the scene. He had witnessed the events. According to the respondents' submissions, it was counsel for the applicant himself who had in fact engineered the dispute. On top of that he had filed a ...

The third point in limine was that counsel for the applicant should be disqualified from representing the applicant. He had been present at the scene. He had witnessed the events.

According to the respondents' submissions, it was counsel for the applicant himself who had in fact engineered the dispute. On top of that he had filed a supporting affidavit to the proceedings. He had become so intimately involved in the affairs of his client that his impartiality and sense of judgment had become compromised. Reference was made to the case of Core Mining and Minerals Resources (Pvt) Ltd v Zimbabwe Mining Development Corporation and Ors 2011 (1) ZLR 22 (H). Therein, the court had disbarred counsel for some of the respondents from representing them at the hearing. He had had extensive and intimate dealings on behalf of those respondents and had aligned himself so closely with their affairs. On top of that those respondents' affidavit had been commissioned by his firm.

I dismissed the respondents' third point in limine.

It was common cause that Mr Mureriwa had questioned and challenged the respondents' presence on the applicant's farm on the day in question. He had filed an affidavit supporting Mr Birditt's version of events. Mr Birditt's affidavit had touched on the nature and extent of Mr Mureriwa's involvement. However, I took the view that Mr Mureriwa's nature and extent of involvement in the applicant's affairs, on 12 June 2014, was in no way comparable to that of counsel in Core Mining and Minerals Resources (Pvt) Ltd v Zimbabwe Mining Development Corporation and Ors 2011 (1) ZLR 22 (H).

In my view, there is no rule of thumb that says a lawyer is automatically disbarred from representing his client in court proceedings where he was a witness to the events that subsequently form the subject matter of those proceedings, or where he has filed an affidavit confirming his involvement and supporting his client's version of events. Every case must depend on its own set of circumstances.

Nonetheless, and in my view, a lawyer who finds himself in Mr Mureriwa's situation must consider seriously the wisdom of wearing the two hats - that of being counsel for the client and that of being a witness for the client. In my view, it would be more prudent to let someone else conduct the court proceedings where the lawyer has been seriously involved in the affairs of the client giving rise to the litigation. This is so to avoid a conflict situation. The lawyer should, at all times, avoid clouding his sense of judgment.

In this matter, it is my earnest view that the precipitous manner in which Mr Mureriwa brought these proceedings betrayed the invidious position of his situation.

View Appeal
HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR)
Ruled By: DUBE-BANDA J

This is an interpleader application and the Sheriff of Zimbabwe is the applicant.

The facts of this case are interwoven and intricate. It is therefore important that I give a detailed background of the facts preceding this application.

For ease of reference, and where the context allows, I will refer to the following parties by their names, i.e. BM Graphics (Pvt) Ltd (judgment debtor); Welli-Will Industries (Pvt) Ltd (claimant); Jon's Engineering (Private) Limited (owner of Stand Number 499 Goodwin Road, Willowvale, Harare) and Melvin Imbayago (judgment creditor).

For a clear understanding and appreciation of the factual matrix in this case, it is significant to quote in verbatim the court order granted by this court on 21 August 2017 (main judgment). This court granted a consent order worded as follows:

“IN THE HIGH COURT OF ZIMBABWE CASE NO. HC1660/14 HELD AT HARARE In the matter between:

BM GRAFICS PRIVATE LIMITED PLAINTIFF And MELVERN IMBAYAGO 1st DEFENDANT PIPE CENTRE 2ND DEFENDANT

Harare, 21st day of August, 2017

Before the Honourable Ms Justice Charewa

Mr B Diza for the plaintiff
Mrs A Dururu for the defendants

Whereupon, after reading documents filed of record and hearing counsel IT IS ORDERED BY CONSENT THAT:

1. The Registrar of the High Court be and is hereby directed, forthwith, to appoint a realtor firm to conduct a valuation of the 20,000 square meters piece of land and the developments thereon which form subject of litigation on property known as Stand 499 Willowvale, Harare.

2. The realtor firm so appointed in terms of paragraph 1 shall undertake the valuation exercise, taking into account the market values, and produce a sworn valuation report within seven days of his appointment which valuation report shall be filed with the Registrar of the High Court.

3. The valuation of the 2000 square metres and improvements thereon arrived at in terms of paragraph 2 above shall be final and payable to the defendants by plaintiff within seven days of its production.

4. The defendants and all those claiming occupation through them shall vacate the property known as Stand No.499 Willowvale, Harare within thirty days of this order or within 30 days of full payment, whichever occurs first.

5. The valuation costs shall be paid in equal proportion by both parties.

6. Each party shall bear its own costs.”

Notwithstanding the fact that BM Graphics (Pvt) Ltd was the plaintiff in the main action, it is the judgment debtor in these proceedings. Malvern Imbayago, who was the first defendant in the main action, is the judgement creditor in this case.

BM Graphics failed to pay for the value of the 2000 square metres piece of land in terms of paragraph 3 of the main judgment, and, consequently, Malvern Imbayago caused a writ of execution calling for payment in the sum of US155,000 to be issued and served on BM Graphics.

In executing the writ, the Sheriff proceeded to Stand No.499 Goodwin Road, Willowvale, Harare (the Stand) and placed under judicial attachment an assortment of property which he believed to be the property of BM Graphics.

This is the property claimed by Welli-Will Industries (Pvt) Ltd, and which is subject of these proceedings.

One Wilbert Makonese, a director of Welli-Will Industries deposed to an affidavit on 16 July 2019 alleging that all the goods placed under judicial attachment belonged to the claimant, and not the judgment debtor.

The said affidavit was submitted to the applicant, prompting him to institute these interpleader proceedings in terms of Order 30 of the High Court Rules, 1971 (the Rules).

The Law and the Facts

The law on inter-pleader applications is settled in this jurisdiction. The onus is on the claimant to prove ownership of the property so claimed: see the case of Phillips and Anor v Ameen and Anor HH108-89; Bernstein v Visser 1934 CPD 270…,; and Deputy Sheriff, Marondera v Travese (Pvt) Ltd and Anor HH11-03.

In the case of Bruce N.O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68…, it was succinctly stated, that, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership. The claimant bears the onus to prove, on a balance of probabilities, that it owns the property the Sheriff attached: see Deputy Sheriff Marondera v Traverse Investments (Pvt) Ltd and Another HH11-03.

In Sheriff of the High Court, Harare v Smit Investments Holdings SA (Proprietary) Limited t/a Geeko Projects and Others HH668-17 DUBE J…, said:

“In Ebrahim v Deputy Sheriff, Durban and Anor 1961 (4) SA 263 where the court made the following remarks on a claimant's onus. The test whether a claimant has discharged the onus of proving his ownership to movable property…, is whether, in the result, the probabilities are balanced in his favour. The strength of the evidence he has to produce to succeed depends upon the circumstances of the particular case…,. Apart from other considerations, the court would no doubt, in such case, require the claimant to produce clear and satisfactory proof of his ownership.”

The high watermark of the claimant's case is that Number 499 Goodwin Road, Willowvale, Harare, where the Sheriff executed the writ, is its Stand.

It says the judgment creditor had no business instructing the Sheriff to attach property belonging to a third party in a bid to satisfy a judgment obtained against the judgment debtor.

It says the Stand was purchased by the claimant on 28 October 2016.

A copy of the agreement of sale shows that BM Graphics (Private) Limited was the registered owner of two ordinary paid up shares in Jon's Engineering (Private) Limited. It sold its shares to the claimant, which then now becomes the registered owner of the two fully paid up shares in Jon's Engineering.

Jon's Engineering is the owner of Stand Number 499 Goodwin Road, Willowvale, Harare.

It is argued, that, since the claimant is the sole shareholder in Jon's Engineering, it is then the owner of the Stand.

The argument culminates in that since the writ was executed at the Stand, the property attached was in the possession of the claimant. It is then submitted, that, since the attached property was in the possession of the claimant, the onus is on the judgment creditor to prove, that, notwithstanding possession, the attached property belongs to the judgment debtor.

The judgment creditor argues that the agreement of sale is suspicious.

The agreement of sale was allegedly concluded on 28 October 2016. On 21 August 2017 BM Graphics (Pvt) Ltd consented to a court order whose terms directed the Registrar of this court to appoint a realtor firm to conduct a valuation of the same Stand the claimant says it purchased in 2016. At the time the court order was made, there was no mention that the Stand subject to the court order had already been sold to the claimant.

Counsel for the claimant attempted to answer this query by arguing that the court order only refers to two thousand square meters of the Stand, while the whole Stand is measuring 5,036 square meters.

This argument does not avail the claimant because the agreement of sale between it and BM Graphics (Pvt) Ltd is for the whole piece of land, not only 3,036 square meters.

The claimant produced another copy of an agreement of sale between it and BM Graphics (Pvt) Ltd signed on 30 October 2015. It says this one was cancelled because it was realised that the land belongs to Jon's Engineering, which had to be involved in the sale of the Stand.

Correspondence was also produced in an attempt to show that the agreement of sale is authentic.

The claimant could not explain why BM Graphics (Pvt) Ltd could, in August 2017, consent to a court order which related to a Stand it no longer owned.

In fact, counsel for the claimant represented the judgment debtor in the main case - this does not bolster the claimant's case at all. It in fact gives weight to the allegations of connivance between the claimant and the judgement debtor.

SC77-17 : JULIANA SABARAUTA vs LOCAL AUTHORITIES PENSION FUND and THE SHERIFF
Ruled By: GUVAVA JA, UCHENA JA and ZIYAMBI AJA

The appellant appealed to this court against the decision of the High Court. After reading the record and hearing submissions from counsel for the parties, we dismissed the appeal with costs. We indicated that reasons for judgment would follow in due course. These are they.FACTUAL BACKGROUNDThe appellant was a director ...

FACTUAL BACKGROUND

The appellant was a director of a company called Plant Haven (Private) Limited (hereinafter referred to as Plant Haven). The appellant resides at No.5 Sir Herbert Taylor Drive, Belvedere in Harare.

The first respondent was Plant Haven's landlord in terms of a lease agreement. Upon breach of that lease agreement, the first respondent obtained judgment, in HC2584/12, against Plant Heaven and one Mr Mantozo, for eviction, arrear rentals, holding over damages, interest, and costs.

On vacating the first respondent's premises, in terms of that judgement, Plant Haven relocated to the appellant's residence at No.5 Sir Herbert Taylor Drive Belvedere, Harare.

On 9 October 2015, the second respondent, acting on behalf of the first respondent, attached a motor vehicle at the appellant's residence for the satisfaction of a debt owed to the first respondent by Plant Haven.

The second respondent instituted interpleader proceedings in the court a quo because the appellant was claiming ownership of the motor vehicle he had attached at her residence.

The basis of her claim was that the motor vehicle was registered in her name, and was therefore hers. Other than the assertions that the vehicle was hers and the registration book, which she argued to be proof of ownership, no evidence was adduced in her affidavits before the court a quo, to show when, where, and how she acquired the vehicle.

When the motor vehicle was attached, Messrs T.K Hove, who were Plant Haven's legal practitioners, wrote to the second respondent as follows:

“Your office attached our client's property in terms of a writ of execution for the capital sum of US5,386=31.”

The letter is headed “Re: Local Authorities Pension Fund v Plant Haven (Private) Limited Case No. HC2584/12.”

There can therefore be no doubt that T. K. Hove Legal Practitioners were raising issues with the Sheriff on behalf of the judgment debtor as the content of the letter confirms their mandate.

The High Court consequently found that the appellant failed to prove ownership of the motor vehicle in question on a balance of probabilities, and the appellant, aggrieved by that finding, appealed to this court on the following grounds:

1. The court a quo grossly misdirected itself in finding that the judgment debtor had relocated to the appellant's premises, a fact which was not borne by the papers.

2. As a result of the finding in (1), the court a quo grossly misdirected itself in concluding that the property belonged to the judgement debtor.

3. The court a quo grossly misdirected itself in concluding that possession of the vehicle by the appellant, at the time of attachment, could not weigh in favour of the appellant's ownership of the motor vehicle.

4. The court a quo erred at law in concluding that the vehicle's registration book did not form prima facie proof of ownership.

5. The court a quo erred in holding the appellant liable to satisfy the debts of the judgment debtor when she was not a party to the judgment in HC2584/12.

From the facts and grounds of appeal, it is clear that the sole issue for determination is whether or not the appellant was able to prove ownership of the motor vehicle on a balance of probabilities.

Counsel for the appellant submitted that ownership was proved on a balance of probabilities because the appellant was in possession of the motor vehicle, which was registered in her name, when it was attached at her residence.

She contends, that, by failing to accept these two facts, the court a quo erred in coming to the conclusion it did.

Relying on the argument that the motor vehicle was in the appellant's possession when it was attached, counsel for the appellant drew the court's attention to the fact, that, possession, at the time of attachment, raises a presumption that one owns the property in dispute.

She submitted that ownership of the motor vehicle was proved by the registration book which showed that the motor vehicle was registered in her name. She argued that a vehicle registration book issued in the name of the holder thereof constitutes prima facie proof of ownership such that once it is produced the onus to prove otherwise rests on the party contending otherwise. In support of this argument, counsel for the appellant relied on the case of Deputy Sheriff, Marondera v Traverse Investments (Pvt) Ltd & Anor HH11-03 where the court held that;

“In respect of the said two (2) vehicles, the first claimant produced vehicle registration books which were obtained in April and May 2000 - way before these proceedings were contemplated. Proof of registration of the said vehicles in the first claimant's name, is, in the court's view, prima facie evidence of ownership. The onus then shifted to the second claimant to try to disprove the first claimant's prima facie entitlement to the said vehicles.”

During argument, counsel for the appellant however conceded that a registration book is not conclusive proof of ownership but merely creates a presumption of ownership of the vehicle.

On the basis of the above, counsel for the appellant submitted that the court a quo erred in concluding that the appellant failed to prove ownership of the motor vehicle on a balance of probabilities when it was clear that the motor vehicle was registered in her name and had been attached while in her possession.

Counsel for the first respondent submitted, that, the court a quo correctly found that the appellant failed to prove ownership on a balance of probabilities.

He submitted that a registration book, on its own, cannot be proof of ownership of a motor vehicle. He relied on the cases of Sheriff of the High Court v Mayaya & Ors HH494-15 and The Sheriff of High Court v Orimbahuru & Anor HH128-16.

Counsel for the first respondent further submitted that the purpose of a registration book, as set out in section 6 of the Vehicle Registration and Licencing Act [Chapter 13:14], is to enable a motor vehicle to be used on the road.

He further submitted that the registration book showing the motor vehicle was registered in her name was not enough to rebut the presumption that the property belonged to the judgment debtor.

In any event, emblazoned on every registration book is a warning that reads: “This registration book is not proof of legal ownership.”

It cannot therefore be relied on to prove ownership when it warns against it.

Accordingly, the court a quo correctly found that the appellant did not prove ownership on a balance of probabilities in the light of a competing claim to ownership by Plant Haven which was also in possession of the motor vehicle when it was attached.

Interpleader proceedings are instituted by the Sheriff in respect of property attached by him when a third party claims ownership of that property.

In such proceedings, it is necessary for the party claiming the attached property to prove ownership by clear and satisfactory evidence. In The Sheriff of the High Court v Mayaya & Ors HH494-15, the court held that;

“In proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership. The claimant must prove, on a balance of probabilities, that the property is his or hers: Bruce N.O. v Josiah Parkers and Sons Ltd 1972 (1) SA 68 (R) at 70C-E.”

In that case, commenting of reliance on a registration book to prove ownership, the court said:

“It is therefore frivolous to argue that because the registration book is not in the name of the first claimant therefore he is not the owner of the motor vehicle. A registration book, on its own, is not proof of legal ownership. This is even endorsed on registration books.”

In the case of The Sheriff of the High Court v Orimbahuru & Anor HH128-16 the court held that:

“It is trite, that, in interpleader applications, the claimant who seeks to assert that the property in dispute belongs to him has to produce such evidence as clear receipts and registration books for the attached vehicles: see High Court Sheriff v S Rougxin Mining P/L & Anor HH542-15.”

It is clear from the facts of this case that the appellant and Plant Haven shared the premises at which the motor vehicle was attached. The writ of attachment states that attachment took place at the appellant's residence from which the judgment debtor operated.

This means that Plant Heaven was in possession of the motor vehicle.

It is trite that where movable property is attached whilst in the possession of the judgment debtor the onus of proving ownership rests on the claimant.

In a bid to discharge the onus placed on her, the appellant produced a registration book of the motor vehicle showing that it was registered in her name.

In my view, the court a quo correctly found that the registration book did not conclusively prove that the motor vehicle belonged to the appellant. The appellant should have led evidence setting out facts as to when and how she had acquired the motor vehicle.

The court a quo's reasoning cannot be faulted. It was based on the case of Air Zimbabwe (Pvt) Ltd & Anor v Steven Nhuta & 2 Ors SC65-14…, where ZIYAMBI JA said:

“As to the ownership of property attached, it was alleged, by the appellants, that, that property belonged to Air Zimbabwe and not to Air Zimbabwe Holdings. In support of this allegation, a number of registration books were attached to the appellants' papers. The learned Judge determined this issue as follows:

'Applicants alleged that the attached assets did not belong to Air Zimbabwe Holdings against which Nhuta had a judgment, but against Air Zimbabwe which not only was not indebted to Nhuta but also the assets for which are immune from attachment. But not a shred of evidence was placed before me that the assets belonged to Air Zimbabwe.

During argument, it was contended, from the bar, that, the evidence of ownership was in the inter pleader proceedings.

It will be remembered that until I had requested a copy of the pleadings in those proceedings, none had been placed before me. No case reference number had been given. Nonetheless, having perused those papers I find that Air Zimbabwe laid claim to 20 out of 29 of the attached vehicles and to 1 motor cycle. As proof of ownership of those vehicles, some registration books were copied and attached. From those registration books about six of the vehicles were in the name of “Air Zimbabwe Corporation” which could be either or both of the applicants according to their argument that both are successor companies. The rest of the vehicles were in the name of “Air Zimbabwe” which again could mean either or both of the applicants.

At any rate, emblazoned on every registration book was a “WARNING” that read: “This registration book is not proof of legal ownership.”…,..'

I find no fault with the above reasoning. It is trite that registration books are not proof of ownership…,.”

It is not in dispute that the appellant was a director of Plant Haven (Pvt) Ltd and that when Plant Haven left the first respondent's premises it relocated to the appellant's residence, namely, No.5 Sir Herbert Taylor Drive, Belvedere, Harare.

The second respondent went to that address to attach the judgment debtor's property.

After the attachment, the appellant claimed that the motor vehicle belonged her, hence the inter-pleader proceedings a quo.

As a claimant, the appellant bore the onus of proving that the attached property did not belong to Plant Heaven (Pvt) Ltd despite its having been found in the possession of the latter. It was therefore incumbent upon the appellant to set out facts and allegations which constitute proof of ownership: see Sheriff of the High Court v Mayaya & Ors HH494-15.

This, the appellant failed to do.

Production of a registration book in her name did not, according to the judgment in Air Zimbabwe (Pvt) Ltd & Anor v Steven Nhuta & 2 Ors SC65-14, amount to proof of ownership. The appellant should have led real evidence of ownership to dispel the judgment debtor's claim of ownership of the same property.

The claim by Plant Heaven to ownership of the motor vehicle made it imperative that the appellant should have produced evidence, in the form of receipts or letters, showing how and when she bought the motor vehicle because the judgment debtor is presumed to be the owner of property attached while in his or her possession.

A claimant in interpleader proceedings who shares possession of the attached property with a judgment debtor, who also claims ownership of it, cannot successfully rely on possession for his or her claim of ownership. He or she must produce clear and conclusive proof of ownership of the attached property.

In light of the above findings, I find no fault in the court a quo's decision that the appellant failed to prove, on a balance of probabilities, that the attached property belonged to her.

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

This is an application by the Master of the High Court for the removal of the first respondent as executor of the estate of the late Willas Mukati Moyo. The application has been filed in terms of section 117 of the Administration of Estates Act [Chapter 6:01] (“the Act”).

The facts upon which the applicant bases this application are as follows:

The respondents are the surviving spouses of the late Willas Mukati Moyo (the deceased). The estate was registered with the Assistant Master in Gweru by the first respondent. She received a Certificate of Authority from the Assistant Master, dated 15 June 2006, which empowered her to withdraw the balance which was in a Kingdom bank Account belonging to the deceased. She was also authorized to take transfer of a residential Stand known as Photo Studio, Stand Number 822 Gweru Township and a Mazda B1800 Registration Number 352-551G.

Following the registration of the estate, the applicant received complaints that the first respondent was benefiting in the estate to the exclusion of the other beneficiaries.

It was also common cause that the first respondent was operating a lodge as a business on the property and was receiving all the proceeds from the business for her own use.

There was also a complaint that she was disposing of the deceased's movable assets.

The applicant, on 31 August 2007, called a meeting at his office in order to resolve the dispute.

Following this meeting, the applicant decided that the first respondent should be removed as executor and approached this court, by way of chamber application, in accordance with the provisions of section 117 of the Administration of Estates Act.

The first respondent opposed the application, and, although such matters are normally dealt with by a judge in chambers, it was directed that the matter be set down on the opposed roll....,.

In her opposing affidavit, the first respondent also raised a complaint regarding the representation of the applicant by Messers Mambara & Associates whom he stated are the second and third respondents legal practitioner....,.

Mr Mambara explained to the court, that, he only became involved in this matter as the applicants counsel following a request to do so by the applicant after he had received directions to file heads of argument. He stated that he accepted the brief as he saw no prejudice in the matter since the applicants claim was essentially the same as that of his clients.

The office of the Master is a public office which must and be seen to operate in an impartial, credible, and transparent manner in order to engender confidence in the mind of the general public.

The representation of the Master, by Mr Mambara in this case, who is also the erstwhile legal practitioner of the second and third respondents, gives an impression of partiality on his part. It is for this reason that the representation of the Master by Mr Mambara was undesirable.

Notwithstanding the absence of prejudice in this matter, such practice, in my view, should not be repeated.

HHH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO)
Ruled By: MAKONI J

On the day of hearing this matter, I issued an order in the following terms:

“1. The decision of the 2nd Respondent of dismissing the Applicants application for recusal in Case No. CRB12586/15 be and is hereby set aside.

2. That the proceedings in case number CRB12586/15 commence de novo before another Magistrate.

3. That there be no order as to costs.”

I indicated that reasons will follow later. These are they.

The applicants were arraigned before the magistrate court facing one count of fraud. The trial commenced. The State closed its case. The defence applied for discharge at the close of the State case.

On 7 April 2016, the second respondent dismissed the application and ordered that the applicants commence the defence case.

Instead, the applicants applied for a postponement of the matter on the basis that they needed to consider the decision to dismiss their application and whether they needed to invoke the review procedure.

The application was dismissed on the basis, that, the applicants ought to have known the matter could proceed to the defence case.

The matter was kindly deferred to 14 April 2016.

In the meantime, the applicants filed an application for review of the decision of the second respondent.

On 14 April 2016, the applicants made an application for a postponement of the matter on the basis that they had filed an application for review and an urgent chamber application for stay of the criminal proceedings pending the determination of the application for review.

The application was dismissed on the basis, that, the pending applications were not an order of court staying proceedings.

The matter was postponed to 25 April 2016.

On that date, the second applicant appeared with a letter from his doctor that he was not feeling well. He applied for a postponement - which application was dismissed.

The matter was finally postponed to 27 April 2016.

On 27 April 2016, the applicants legal practitioner was engaged in the Bail and Motion courts at the High Court. He sent a letter to that effect with the applicants.

The court refused to accept the letter but stood the matter down to 11:15.

At 11:15, another legal practitioner appeared and applied for a postponement to 5 May 2016 at 14:15hrs as that was the only time available.

The matter was however postponed to 3 May 2016.

On that date, another lawyer appeared and applied for a postponement to 15 May 2016 at 14:15 hours.

The court again refused.

The public prosecutor indicated to the applicants that they could proceed to make the application for recusal to the magistrate as indicated in their letter of 26 April 2016. The legal practitioner then requested to meet the trial magistrate and the prosecutor in chambers where the legal practitioner indicated his intention to apply for the recusal of the magistrate.

The application was dismissed and the applicants filed the present application.

The applicants grounds for review can be summarised as:

(1) Gross unreasonableness of the decision of the magistrate in dismissing the application for recusal.

(ii) Bias on the part of the magistrate which would result in a gross violation of the applicant's inalienable right as enshrined in section 69(1) and 70(1)(a).

The application was served on the respondents and none of them opposed the application.

The order was granted on the unopposed motion roll; it was made clear that the application was being granted for the sole reason of the notice of opposition filed by the second respondent.

Since the application was not opposed, it will not be necessary for me to look at the law relating to recusal of a presiding officer and the review of unterminated proceedings.

I felt compelled to write this judgment after having perused the notice of opposition filed by the trial magistrate to the application for review of his decision to dismiss the application for discharge. This was cited by the applicant, in the present matter, to show bias on the part of the presiding magistrate.

It was the applicant's contention, that, after having had sight of the notice of opposition, they had grounds for suspecting that justice will not be administered in an impartial and unbiased manner.

In paragraph 8(iv), the second applicant states the following:

“I submit, that, the use of the following words in the above mentioned paragraphs of the ruling dismissing applicants discharge application have led the 1st applicant to entertain a genuine apprehension that the matter would not be impartially adjudicated.”

The applicants complain that:

(i) The trial magistrate went beyond merely standing by his ruling.

(ii) The conclusive views expressed by the second respondent, on the guilt of the accused, before his defence case, were the basis for his apprehension on bias.

(iii) Both the trial magistrate and the prosecution were represented by the same legal practitioners in opposing the application for review and the urgent chamber applications.

I had occasion to deal with the propriety of a trial magistrate deposing to an opposing affidavit in Makandi Tea and Coffee Estate (Pvt) Ltd v The Attorney General of Zimbabwe N.O. and Gapara N.O. HH595-15. I relied on the authority of Leopard Rock Hotel (Pvt) Ltd v Warrent Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) 278B-F where the following was stated:

“Such belief in the mind of the reasonable litigant is bound to be heightened by the fact, that, not only has the arbitrator refused to recuse himself, but, he has descended into the arena of battle by actively participating in the proceedings for his removal and making common cause with the party maintaining that he should not recuse himself.”

The court continued at 279B-F:

“In my view, in circumstances such as these, an arbitrator, umpire, judge, or other adjudicating body has one of two choices. The first is that he could file an affidavit setting out facts which he considers may be of assistance to the court. So long as such facts are stated colourlessly, no-one could object; but, if the affidavit should err plainly in support of one of the parties, it might expose the adjudicator to the odium of the court.

It is most undesirable that any arbiter or other adjudicator of a dispute should appear to be pitching camp with, or rendering assistance to, one of the contestants to the dispute before him.

For the other party is likely to gain that impression, that, the arbiter and his adversary are conspiring against him: and such an impression would reinforce his belief that the arbiter is biased against him: see the remarks of McNally JA in Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) at 148.

When the arbiter makes common cause with one of the parties in such proceedings, any facase of justice is shattered; the arbiter is seen to have descended into the arena with the possible consequential blurring of his vision by the dust of battle. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.

The second choice of the arbitrator or umpire, when served with notice of motion for his removal or to set aside his award, is to take no action and abide by the court's decision.”

In casu, the applicants can be excused for believing that the respondent had pitched camp with or rendering assistance to the one of the contestants, who is the State, in this matter.

Both respondents were represented by the same legal practitioners which created the impression, in the minds of the applicants, that the respondents were conspiring against them.

The second respondent expressed some very strong views regarding the culpability of the applicants before they had presented their defence case.

The applicants can be excused for believing, that, were the trial to continue before the same magistrate, it was for purposes of going through the motions of a trial when the arbitor had already made up his mind.

At p3 of the cyclostyled judgment in Makandi Tea and Coffee Estate (Pvt) Ltd v The Attorney General of Zimbabwe N.O. and Gapara N.O. HH595-15 I made the following remarks:

“The proper approach in this matter would have been for the second respondent to set out facts which he considered would be of assistance to the court and end there; in the alternative, he would have asked a representative of the first respondent to file the opposing affidavit rather than file an affidavit where he clearly supports one side.”

I would add, the third option is to take no action and abide by the court's decision.

It might be comforting for magistrates to know that reviews are dealt with on the basis of what is contained in the record which they compile during the course of proceedings. The court will merely be enquiring whether there were any irregularities in the course of the proceedings which would warrant interference. The opposing affidavit by the magistrate does not add much value to the review proceedings except in so far as it clarifies facts.

It is for the above reasons that I decided to set aside the second respondent's decision not to recuse himself....,.

In the result, the decision by the second respondent, to refuse an application for his recusal, in the face of the notice of opposition he deposed to, is so unreasonable that no reasonable authority could ever have come to it. I will therefore make the following order:

(1) The decision of the second respondent, of dismissing the applicants application for recusal in case number CRB12586/15, be and is hereby set aside.

(2) The proceedings in case number CRB12586/15 commence de novo before another magistrate.

(3) There be no order as to costs.

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

Section 167(5) of the Constitution provides:“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —(a) To bring a constitutional matter directly to the Constitutional Court;(b) To appeal directly to the Constitutional Court ...

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

I..., did not make a definitive ruling on the issue raised by the applicants that the second respondent (the President of the Republic of Zimbabwe) was not properly before me, he being represented by a private law firm as opposed to being represented exclusively by the office of the Attorney-General.I ...

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.

The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.

The first respondent, the Judicial Service Commission (JSC) is a corporate body established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office.

The fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Co-ordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal.

The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.

As an administrative authority, the Judicial Service Commission (JSC) has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, section 3(1)(a) of the Administrative Justice Act [Chapter 10:23] (AJA) enjoins the JSC to act lawfully, reasonably, and in a fair manner.

On 13 December 2019, the Judicial Service Commission (JSC) held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.

As his obligation, in terms of section 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated, the members are the second to fourth respondents, with the fifth respondent as its Secretary.

In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020, the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020, SI70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary, and set out the Tribunal's terms of reference.

The applicant is aggrieved by the Judicial Service Commission's decision to advise the President that the question of removing the former from the office of a judge ought to be investigated.

Acting in terms of section 4(1) of the Administrative Justice Act, the applicant has applied to this court, on review, to set aside the Judicial Service Commission's decision on the basis that it failed to act lawfully, reasonably, and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the Judicial Service Commission (JSC) in coming up with that decision.

He also seeks certain consequential relief.

I pause to set out the Tribunal's terms of reference. They are:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

The grounds on which the application for review is based are:

“1. The absence of any of the three jurisdictional grounds for the removal of Judge prescribed under section 187(1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;

2. The absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or quid pro quo to confirm the nature and gravity of the case;

3. An objection to the appointment of the Permanent Secretary, as secretary of the Tribunal, on the grounds and basis that she was an actor in the process leading to the applicant's suspension and the establishment of the Tribunal, something which gives credence to the applicant's contention that the decision to refer his matter to the President was completely unreasonable;

4. There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;

5. Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the audi alteram partem rule;

6. The JSC, having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019, and having communicated this to the applicant, could not revisit the matter subsequently as it had become functus officio;

7. The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;

8. To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency.”

For the purposes of this application, the issue of the investigation on the question of the removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to the applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions.

Since I am required to determine this application on procedural grounds, it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon's complaint.

All the respondents opposed the application.

At the commencement of the hearing, and with the consent of the legal practitioners for the applicant and the Attorney General (AG), I made an order for the removal of the AG from these proceedings.

CC10-23 : LAW SOCIETY OF ZIMBABWE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE SENATE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY-GENERAL N.O.
Ruled By: GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, UCHENA AJCC and MAKONI AJCC

The applicant herein, the Law Society of Zimbabwe (hereinafter 'the LSZ') is a statutory corporate body set up in terms of the Legal Practitioners Act [Chapter 27:07]. It is the body responsible for the welfare and regulation of and for representing the legal fraternity in the country. It is capable ...

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HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with.

Preliminarv Issues and Obiections

The parties raised preliminary issues and objections:...,.

The other points taken are that the Attorney-General has no authority to depose to an affidavit on behalf of the first respondent in HC2128/21 (the Minister Justice, Legal and Parliamentary Affairs)...,.

The Attorney-General is the principal legal advisor to the Government and has the authority to represent the Government in civil and constitutional proceedings. If he has knowledge of the facts to which he deposes, he would not be disqualified from deposing to an affidavit on behalf of the Government.

In this case, he explains why the first respondent was unable to depose to the affidavit himself by reason of being unavailable. He further explains that his defence is largely based on legal issues which would be within his domain.

We therefore do not believe that he is disqualified from deposing to the affidavit.

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Practicing Certificates and Right of Audience before Courts re: Approach, State Functionaries and Judicial Interference

HB06-12 : KAISER ENGINEERING (PVT) LTD vs MAKEH ENTERPRISES (PVT) LTD
Ruled By: NDOU J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
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HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED
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SC47-13 : ALFRED MUCHINI vs ELIZABETH ADAMS and SHEPHERD MAKONYERE N.O. and ESTATE LATE ALVIN ADAMS and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT
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Ruled By: MAVANGIRA J

HH280-10 : CORE MINING AND MINERALS RESOURCES (PVT) LTD vs THE ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES (PVT) LTD and OTHERS
Ruled By: MAVANGIRA J

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

HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE
Ruled By: KUDYA J

Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

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

HMA20-17 : FRANK NYAKU BADZA vs SMM HOLDINGS [PVT] LTD [Under Reconstruction] t/a SMM Properties
Ruled By: MAWADZE J and MAFUSIRE J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN E. KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

HH85-15 : CROWHILL COMPANY (PVT) LTD vs CYNTHIA MAADZA and THE ZIMBABWE WAR VETERANS ASSOCIATION
Ruled By: MUREMBA J

HH349-14 : TRUSTEES OF THE S.O.S. CHILDREN'S VILLAGE ASSOCIATION OF ZIMBABWE vs BINDURA UNIVERSITY and MINISTER OF STATE, MASHONALAND CENTRAL and MINISTER OF LANDS and ATTORNEY – GENERAL
Ruled By: MAFUSIRE J

View Appeal
HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR)
Ruled By: DUBE-BANDA J

SC77-17 : JULIANA SABARAUTA vs LOCAL AUTHORITIES PENSION FUND and THE SHERIFF
Ruled By: GUVAVA JA, UCHENA JA and ZIYAMBI AJA

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

HHH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO)
Ruled By: MAKONI J

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

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HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

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Practicing Certificates and Right of Audience before Courts re: Approach, State Functionaries and Judicial Interference

HB06-12 : KAISER ENGINEERING (PVT) LTD vs MAKEH ENTERPRISES (PVT) LTD Ruled By: NDOU J

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

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED Ruled By: GOWORA J

Appealed SC47-13 : ALFRED MUCHINI vs ELIZABETH ADAMS and SHEPHERD MAKONYERE N.O. and ESTATE LATE ALVIN ADAMS and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH280-10 : CORE MINING AND MINERALS RESOURCES (PVT) LTD vs THE ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES (PVT) LTD and OTHERS Ruled By: MAVANGIRA J

HH280-10 : CORE MINING AND MINERALS RESOURCES (PVT) LTD vs THE ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES (PVT) LTD and OTHERS Ruled By: MAVANGIRA J

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

HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE Ruled By: KUDYA J

Appealed HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED Ruled By: MUTEMA J

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

HMA20-17 : FRANK NYAKU BADZA vs SMM HOLDINGS [PVT] LTD [Under Reconstruction] t/a SMM Properties Ruled By: MAWADZE J and MAFUSIRE J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN E. KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD Ruled By: KUDYA J

HH85-15 : CROWHILL COMPANY (PVT) LTD vs CYNTHIA MAADZA and THE ZIMBABWE WAR VETERANS ASSOCIATION Ruled By: MUREMBA J

HH349-14 : TRUSTEES OF THE S.O.S. CHILDREN'S VILLAGE ASSOCIATION OF ZIMBABWE vs BINDURA UNIVERSITY and MINISTER OF STATE, MASHONALAND CENTRAL and MINISTER OF LANDS and ATTORNEY – GENERAL Ruled By: MAFUSIRE J

View Appeal HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR) Ruled By: DUBE-BANDA J

SC77-17 : JULIANA SABARAUTA vs LOCAL AUTHORITIES PENSION FUND and THE SHERIFF Ruled By: GUVAVA JA, UCHENA JA and ZIYAMBI AJA

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA Ruled By: GUVAVA J

HHH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO) Ruled By: MAKONI J

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS Ruled By: MAKARAU JCC

Appealed HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE Ruled By: CHIKOWERO J

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

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HB06-12 : KAISER ENGINEERING (PVT) LTD vs MAKEH ENTERPRISES (PVT) LTD
Ruled By: NDOU J

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

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED
Ruled By: GOWORA J

Appealed
SC47-13 : ALFRED MUCHINI vs ELIZABETH ADAMS and SHEPHERD MAKONYERE N.O. and ESTATE LATE ALVIN ADAMS and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH280-10 : CORE MINING AND MINERALS RESOURCES (PVT) LTD vs THE ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES (PVT) LTD and OTHERS
Ruled By: MAVANGIRA J

HH280-10 : CORE MINING AND MINERALS RESOURCES (PVT) LTD vs THE ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES (PVT) LTD and OTHERS
Ruled By: MAVANGIRA J

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

HH113-11 : ALSHAMS BUILDING MATERIAL t/a LLC (a company incorporated in the United Arab Emirates) vs TAPERA NYEMBA and CHRISTOPHER GOROMONZI and JOSPHAT SACHIKONYE
Ruled By: KUDYA J

Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

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

HMA20-17 : FRANK NYAKU BADZA vs SMM HOLDINGS [PVT] LTD [Under Reconstruction] t/a SMM Properties
Ruled By: MAWADZE J and MAFUSIRE J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN E. KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

HH85-15 : CROWHILL COMPANY (PVT) LTD vs CYNTHIA MAADZA and THE ZIMBABWE WAR VETERANS ASSOCIATION
Ruled By: MUREMBA J

HH349-14 : TRUSTEES OF THE S.O.S. CHILDREN'S VILLAGE ASSOCIATION OF ZIMBABWE vs BINDURA UNIVERSITY and MINISTER OF STATE, MASHONALAND CENTRAL and MINISTER OF LANDS and ATTORNEY – GENERAL
Ruled By: MAFUSIRE J

View Appeal
HH746-19 : SHERIFF FOR ZIMBABWE (APPLICANT) vs WELLI-WILL INDUSTRIES (PVT) LTD (CLAIMANT) and MALVERN IMBAYAGO (JUDGMENT CREDITOR)
Ruled By: DUBE-BANDA J

SC77-17 : JULIANA SABARAUTA vs LOCAL AUTHORITIES PENSION FUND and THE SHERIFF
Ruled By: GUVAVA JA, UCHENA JA and ZIYAMBI AJA

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

HHH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO)
Ruled By: MAKONI J

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J