Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court

View Appeal
HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION)
Ruled By: KWENDA J

This is application made in terms of section 213 of the Companies Act [Chapter 24:03] for leave to institute proceedings against the respondent, a company in liquidation.

Should leave be granted, the applicant intends to file an application in terms of Rule 449 of the High Court Rules 1971, for correction of a default judgment entered against it in favour of the respondent on 12 March 2014 (the respondent was placed under provisional liquidation on 8 October 2014).

A draft of the application to be filed once the anticipated leave be granted was submitted with the applicant's papers.

The application, should leave be granted, will be a second bite since an earlier attempt, in the year 2015, succeeded initially but collapsed on appeal in the Supreme Court on 26 January 2018.

At the hearing, I complained that the applicant's case was difficult to follow.

The founding affidavit is unnecessarily long and winding. It contains information largely irrelevant. The error necessitating the intervention of the court, in terms of Rule 449, is not clearly decipherable since it is not correctly articulated.

The impression created in the applicant's founding affidavit, as read with the prayer in the application to be filed, is that the judgment debt was overstated because the respondent applied an inflated rate of interest of 45 percent per annum as opposed to 15 percent per annum: see paragraph 7 of the applicant's founding affidavit and the draft order at page 89 of 1 case No. HC1405/13 of the consolidated papers.

However, that position cannot be reconciled with the applicant's assertion in an earlier case that the correct rate of interest is 25% per annum.

At the hearing, a lot of energy and time was expended on extracting from the huge mass of documents submitted with the application what it is that the applicant says went wrong in case No. HC1405/13 which needs correction by this Court.

After lengthy deliberations, it turned out the applicant's case could be stated clearly and concisely.

I will summarise it below:

On 7 May 2015, the applicant filed an application for the variation of the default judgment. The application was filed and prosecuted without the leave of this court notwithstanding the provisional order for liquidation.

In addition to that, the applicant failed to cite the Deposit Protection Corporation despite its direct and substantial interest as liquidator: Final liquidation was confirmed by this Court on 19 May 2016 whereupon the Deposit Protection Corporation was appointed liquidator.

Be that as it may, the application succeeded and the judgment in case HC1405/13 was rescinded on 27 May 2015.

Subsequently, the Deposit Protection Corporation approached the court, in terms of Rule 449(1) for rescission of judgment on the grounds that the applicant had erred in failing to cite it in the case yet it was clearly an interested party.

This court granted the application and rescinded the judgment in case No. HC4155/15.

The effect of the rescission of judgment was that the original court order in case no. HC1405/13 entered against the applicant for the payment to the respondent of $1,824,505=05 popped up again and became operational: prior to provisional liquidation, on 12 March 2014, this Court had entered default judgment against the applicant in favour of the respondent for the payment of $1,824,505=05.

In his reasons for the judgment, the Honourable CHIWESHE JP, in case no. HH390-17 (HC4203/16) observed as follows:

(a) The failure by the applicant to obtain leave of the court before instituting proceedings against the respondent in case no. HC4155/15 was fatal.

(b) Section 213 of the Companies Act [Chapter 24:03] is peremptory and proceedings instituted against the respondent, without leave of the Court, and the resultant court order, were a nullity.

(c) In addition to being liquidator, the Deposit Protection Corporation is an interested party by operation of section 57 of the Banking Act, and failure to cite it in proceedings against the respondent, which is under liquidation, rendered such proceedings fatally defective.

The applicant's appeal to the Supreme Court against the judgment of the Honourable Judge President was dismissed on 26 January 2018 meaning that the default judgment in case No. HC1405/13 remains extant.

The applicant is still aggrieved by the judgment in case No. HC1405/13 and wants it corrected in terms of Rule 449(1).

However, it can only file its application with leave of this Court.

It is alleged, that, when the respondent applied for judgment in case No. HC1405/13 it did not disclose to this court that the applicant had made payments to the respondent after summons had been issued thereby reducing the debt by $1,381,166.

The argument, therefore, is that when judgment was entered, on 12 March 2014, the correct amount owing was around $500,000 and not $1,824,505=05 and the respondent had the obligation to advise the court of the payments.

In other words, the complaint is not about the interest rate applied, but an act of non-disclosure by the respondent of payments effected subsequent to the summons.

After hearing both counsel, I concluded that this application for leave is without merit. My reasons are as follows:

1. The intended application to correct judgment has no prospects of success at all.

2. The alleged payments are said to have been made after judgment had been entered. I will quote paragraph 7 of the founding affidavit…, of the application:

“…, respondent caused a writ in the sum of $1,824,505=05 to be issued against the applicant. This is an incorrect balance as applicant had made subsequent payments of $1,381,166.”

The applicant's complaint, therefore, is not against the judgment but the writ.

If the applicant made certain payments after judgment, it is the writ that requires correction and not the judgment.

In practice, when payments are made after judgment has been entered, the judgment needs no correction but the judgment creditor simply issues a writ for a lesser amount, or, if the writ has already been issued, instructs the Sheriff to collect a lesser amount.

If the judgment creditor collects more than necessary, that can only give rise to an enrichment claim.

The correctness of an order is not affected by payments subsequent to its issuance.

The applicant boldly asserts, in paragraph 7 of its founding affidavit, that it paid a sum of $1,381,166 but fails to attach proof.

The payment is disputed.

Indeed, in argument, counsel for the applicant failed to point to any proof of alleged payment.

All payments on the papers preceded the summons.

In papers filed in case no. HC4155/15, the provisional liquidator of the respondent, one John Mafungei Chikura, justified the figure of $1,824,505=…,. He said:

“On 2 April 2014, the then applicant's legal practitioners wrote to Chihambakwe, Mutizwa & Partners saying:

'Our client has been effecting payment(s) to your client and has paid to your client a total of $1,381,166. Please confirm by return that you will not be seeking to recover from our client the amount reflected in the order dated 12 March 2014…,.'”

On 23 April 2014, Chihambakwe, Mutizwa & Partners responded:

'…, if payments were made which reduced the debt, then, certainly, our client will not be entitled to execute on the judgment debt but appropriate instructions will be issued to the Sheriff to recover only the amount which will be outstanding.'

The difference between the parties respective positions arose from the fact that the applicant was using interest rate of 25 percent which was never agreed upon by the parties….,. The liquidator took into account all the payments made by the applicant.

The respondent has therefore always insisted, since the year 2014, that the amount due to it, as stated in the judgment debt, is correct.”

After the position taken by the provisional liquidator of the respondent, in the correspondence quoted above, the applicant could have applied for rescission of judgment as early as 2014 if it was aggrieved by the judgment.

It did not.

The correspondence reveals, that, the judgment debt in HC1405/13 is correct, but, the applicant simply wanted certain payments claimed by it to be deducted from the writ.

The applicant filed an application for correction of judgment in HC4155/15 more than a year after the correspondence quoted above i.e. on 7 May 2015.

The application made in terms of Rule 449(1) was fatally defective: see the judgment of the Honourable CHIWESHE JP…, discussed above.

This application is intended to afford the applicant a second attempt.

The draft application which the applicant intends to file, if it gets leave, is attached…,. Sadly, the applicant does not intend to cite the Deposit Protection Corporation again.

In other words, the applicant wants leave to file another defective application.

If I grant this application, I would be granting the applicant leave to file a fatally defective application.

The applicant has exhibited lack of diligence since the proceedings in case no. HC1405/13 were commenced against it. It did not properly defend the claim resulting in a default judgment. The emails exchanged by the parties, and the pleadings filed of record, reveal that the respondent unsuccessfully pushed for a settlement. The applicant did not act after service of a notice of intention to bar. It did not apply for rescission of judgment in 2014 when it became aware of the judgment in the matter. It only filed an application a year later - in the year 2015. On filing the application, it failed to pay attention to Rules resulting in an adverse Supreme Court order. It failed to articulate this case with clarity. The founding affidavit contains hung statements.

Such lack of diligence cannot be condoned: see Ndebele v Ncube 1992 (1) ZLR 288 (S); Gugulethu Hwasha v CABS & Ors HH974-15.

The respondent is already distressed.

This unnecessary litigation is likely to make matters worse and prejudice creditors.

This application is an abuse of process because it has no merit at all.

I order as follows:

The application is dismissed with costs on a legal practitioner client scale.

SC89-21 : KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD vs EMMANUEL RENSBURG and MEGAMANIA AUCTIONEERS and SHERIFF OF THE HIGH COURT N.O.
Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

There is demonstrably no merit in the appeal....,.Counsel for the appellants made a tender of costs on the ordinary scale.The view of the court is that the tender was properly made.I should point out, that, after the interventions of the court, counsel for the appellants could not advance any meaningful ...

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS
Ruled By: GOWORA J

In this jurisdiction, the question has not yet come up for discussion by the court. I am therefore indebted to the respondents for providing the court with an authority from South Africa.

SC100-21 : PARKHAM ENTERPRISES (PVT) LTD and NYASHA MOTSI vs ADHESIVE PRODUCTS MANUFACTURES (PVT) LTD and THE MASTER OF THE HIGH COURT N.O.
Ruled By: CHITAKUNYE JA

COSTSIt is clear from the papers filed of record, and submissions made, that the applicants were alerted of the futility of appealing against a default judgement but for some reason had persisted.The attitude adopted by their counsel, in the court a quo and in this Court, of seeking to deny ...

View Appeal
HH485-20 : MIKE MHLANGA vs IRENE MHLANGA
Ruled By: CHIRAWU-MUGOMBA J

This matter falls squarely in the realm of the law of succession in Zimbabwe. The background is as follows:

On the 24th of January 2014, the plaintiff issued summons against the defendant seeking the following relief:

(a) Eviction of the defendant, and all those claiming through her, from House Number 1138 Section 3, Kambuzuma, Harare.

(b) Payment of arrear rentals amounting to $17,280 for four rooms over a period of six years.

(c) Holding-over damages at $240 per month from date of summons to date of eviction.

(d) Costs on a higher scale if defendant opposes, otherwise normal costs.

In his summons and declaration, the plaintiff made the following averments:

He is the owner of the Kambuzuma house (the property) by virtue of Deed of Transfer No. 3302/94. The defendant was a wife to the plaintiff's late father and she is staying at the property despite having her own house as provided to her by her late husband.

The plaintiff's father had three wives, who include the plaintiff's mother, the defendant, and another wife who stays in section 5 Kambuzuma.

The plaintiff's late father had a plan to provide all his wives with their own houses. The property in issue was for the first wife. The third wife had a house provided for her in Kambuzuma, and, to the defendant, he arranged that she joins a housing co-operative in Mabvuku, and, as a result, she was allocated Stand number 10700 in New Mabvuku.

The plaintiff's father passed on before he could build a house in Mabvuku for the defendant. Nonetheless, the cooperative has since built a house for her which she is renting out.

She has refused to move out of the Kambuzuma property. She is occupying four out of six rooms.

In her plea, the defendant averred as follows:

The plaintiff inherited the house from the deceased estate of his late father as an heir and thus he has an obligation to provide her with alternative accommodation. No house was acquired for her in Mabvuku. That house belongs to the co-operative and payments were made since 2002 by the defendant's daughter. The defendant only uses three rooms, and this arrangement has been sanctioned by the Master of the High Court.

At an edict meeting held in 1994, it was ruled, that, the defendant and the plaintiff's mother should continue staying at the house. As a surviving spouse, the defendant can continue staying at the property. If the plaintiff wants the defendant to leave, he has to provide the defendant with alternative accommodation. The defendant's stay is legal and she is not liable to pay damages to the plaintiff.

The joint pre-trial conference minute reflects the following as the issues:

1. Whether or not the plaintiff still has an obligation to provide the defendant with accommodation, when the defendant now has her own house?

2. Whether or not the defendant joined the housing co-operative in Mabvuku at the instigation of the plaintiff's father?

3. Should the defendant pay arrear rentals, holding over damages, and costs on a higher scale?

The admissions were recorded as follows:

1. The plaintiff inherited House Number 1138 Section 3 Kambuzuma in his own right in May 1994.

2. The plaintiff provided the defendant with accommodation from 1994 to date - a period of 21 years.

3. The defendant joined a housing co-operative in Mabvuku while her husband was still alive.

4. The defendant was allocated House No.10700 in New Mabvuku in 2005 and is now a landlady.

The trial itself was very short.

The plaintiff's evidence-in-chief was through his mother, Efradia Mhlanga, acting through a power of attorney, since the plaintiff is based in the United Kingdom.

She told the court that the plaintiff is her son. When her husband passed away, in 1997, the plaintiff was appointed heir to the deceased estate.

In support, she produced Letters of Administration dated the 15th of November 1994. The letters indicate that one Richard Chimbari was appointed executor dative in the estate of the late Mwaoneka Isaac Mhlanga.

The defendant was married to the late Mwaoneka Isaac Mhlanga but she was never at any point chased away.

The plaintiff now sought eviction of the defendant since he was a registered owner. In support, a copy of title deeds of the property in the name of the plaintiff were produced.

The defendant now stays in Seke, and, if the court authorises her eviction, she can leave end of August.

Under cross examination, the plaintiff's Efradia Mhlanga stated, that, the defendant has a house in Seke that she built on her own though she did not have any proof.

She also stated, that, the defendant started staying at the Kambuzuma property when their husband was still alive though she did not know the exact date but it was in the 1990s.

The plaintiff's legal practitioner confirmed that the claim for arrear rentals and holding over damages was no longer being pursued.

On her part, the defendant told the court, that, the plaintiff is her step-son. She married her late husband in 1991 in terms of the then African Marriages Act [Chapter 238]. She however started staying with him in 1980 at the property. Since then, she has not stayed at any other place.

Her husband left her at the property and she has nowhere to go.

Her husband considered that, at that time, their children were young.

She implored the court to have mercy on her. Seke is her home where she was born. The plaintiff had a duty to provide her with alternative accommodation.

Her house in Mabvuku was paid for by her child. When she joined the co-operative, in 1988, she was young and was working. She denied that it was her late husband who encouraged her to join the cooperative. The house was still in the name of the co-operative.

In support of her contention, the defendant produced a rates statement from the City of Harare which indicates the name of the ratepayer as Kugarika Kushinga Co-operative.

Under cross examination, she conceded, that, although one of her children is staying at the property, all payments to the cooperative, and to the City of Harare, are made in her name.

From the pleadings and the evidence led, the following is common cause:

1. The plaintiff has real rights in the property through registration of title in his name as the heir to the deceased estate of his late father.

2. The defendant has been resident at the property since her marriage to the deceased.

3. The defendant owns a property in Mabvuku.

4. The plaintiff has not offered the defendant alternative accommodation.

In my view, the legal issue that arises is this - does the plaintiff have the duty to provide the defendant with alternative accommodation?

The Law

The legislature has made provisions for the immediate protection of the family of a deceased person upon death. The first layer of protection is through the provisions of the Deceased Persons Family Maintenance Act [Chapter 6:03] – specifically section 10 that reads as follows:

“10 Protection of deceased person's family and property

(1) Notwithstanding any law, including customary law, to the contrary, when any person dies, any surviving spouse or child of such person, shall, subject to section eleven, have the following rights —

(a) The right to occupy any immovable property which the deceased had the right to occupy and which such surviving spouse or child was ordinarily occupying immediately before the death of the deceased;

(b) The right to use any household goods and effects, implements, tools, vehicles or other things which immediately before the death of the deceased the surviving spouse or child was using in relation to such immovable property;

(c) The right to use and employ any animals which immediately before the death of the deceased were depastured or kept on such immovable property;

(d) To an extent that is reasonable for the support of such surviving spouse or child, the right to any crops which immediately before the death of the deceased were growing or being produced on such immovable property.

(2) Any person who does an act with the intention of depriving any other person of any right, or interferes with any other person's right, that has accrued to that other person in terms of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(3) A court convicting a person of an offence in terms of subsection (1) may order the convicted person, or any other person, to restore any property or pay any money which he has unlawfully acquired to the person entitled thereto in terms of subsection (1) or to any other person specified by the court, and any such order shall have the same effect and may be executed in the same manner as if the order had been made in a civil action instituted in the court.”

In other words, at death, the salient features of the protection afforded is as follows:

(a) The protection is afforded to all persons, be it under general or customary law.

(b) A surviving spouse or child is entitled to remain in occupation of an immovable property that they were staying in immediately before death provided that the deceased was staying with them or the deceased had a right to occupy such property. This means if there is another property that the deceased was not occupying, but had a right to occupy, the surviving spouse or child can also occupy such property if they were staying there immediately before death of the deceased.

(c) The surviving spouse or child have a right to use tools and household goods, including motor vehicles, that they were using immediately before death.

(d) They also have a right to use animals and have a right to any crops that were available to them immediately before death.

These protectionist rights are taken very seriously such that any infringement is a criminal offence (section 10(2) of the Deceased Persons Family Maintenance Act).

These rights, however, are not in perpetuity.

They “terminate upon completion of the administration of that portion of the deceased estate to which those rights relate;” see section 11(b) of the Deceased Persons Family Maintenance Act.

During the era of the 'heir' an additional duty was placed on him (given that the male primogeniture rule was predominant) to look after the dependants of the deceased. He could not evict them without providing alternative accommodation.

Although a dependant was not defined, guidance could be gleaned from the definition in section 2 as follows:

“'dependant', in relation to a deceased, means —

(a) A surviving spouse;

(b) A divorced spouse, who, at the time of the deceased's death, was entitled to the payment of maintenance by the deceased in terms of an order of court;

(c) A minor child;

(d) A major child who is, by reason of some mental or physical disability, incapable of maintaining himself and who was being maintained by the deceased at the time of his death;

(e) Parent who was being maintained by the deceased at the time of his death;

(f) Any other person who -

(i) Was being maintained by the deceased at the time of his death.”

Registration of property bestows real rights that are enforceable against the whole world. In Takafuma v Takafuma 1994 (2) ZLR 103 (S)…, McNALLY JA had this to say:

“The registration of rights in immovable property in terms of the Deeds and Registries Act [Chapter 139] (now [Chapter 20:05]) is not a mere form nor is it simply a device to confound creditors or the tax authorities - it is a matter of substance. It conveys real rights upon those in whose name the property is registered.”

In my view, the acquisition of real rights and the expected duty of the heir reveals the tension between general law and customary law of inheritance.

The immediate question is: does the duty to provide alternative accommodation end upon the acquisition of title and does it apply to even those dependants who have accommodation already?

Application of the law to the facts

The two witnesses, that is, the plaintiff's mother and the defendant in person, appeared to be very simple women who did not appreciate the legal nature of the dispute.

The plaintiff's mother is also very elderly and it did not help matters that the legal practitioner also seemed unsure of what evidence to elicit from her. The defendant's legal practitioner also seemed to be unsure of what questions to put to her. As a result, the entire trial took about one and a half hours.

The saving grace is that the question before the court was more legal than factual.

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

I must make observations concerning the heads of argument filed on behalf of the applicants in this matter.These stretch up to 127 pages.Heads of argument are meant to be simply that. The purpose of heads of argument is to set out, briefly, the main heads of argument and are by ...

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.

HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

The applicant is the maternal grandmother of the two minor children, Laura Edna Chigumadzi born on 4 August 1999 and Lawrence Takudzwa Chigumadzi born on 28 September 2000, for whom she sought an order granting her their custody and guardianship.

The first respondent is the biological father of the minor children. He however has not been involved in their life since his separation from their late mother in 2005. He lives in the United Kingdom with his wife and child from a subsequent marriage.

The applicant filed an urgent application on 27 July 2015. The urgency was based on her urgent need to have authority to apply for a passport for Laura who has to urgently travel to Ghana to take up a scholarship at SOS-HERMANN GMEINER INTERNATIONAL COLLEGE.

I heard the application on 29 July 2015 and granted it on the following terms;

1. The applicant, Naomi Mukundu, be and is hereby appointed the legal guardian and custodian of the minor children, Laura Edna Chigumadzi (born 4th August 1999) and Lawrence Takudzwa Chigumadzi (born 28 September 2000).

2. There shall be no order as to costs.

I indicated that my reasons for judgment would follow. These are they.

The Facts

The applicant is the two minor children's maternal grand-mother. She is the mother of the minors late mother, Elizabeth Lorraine Mukundu, who died on 13 July 2010. Elizabeth Lorraine Mukundu was initially married to the respondent in terms of an unregistered customary law union which they upgraded into a civil marriage in 2005.

Shortly thereafter, the respondent left her and the children, presumably for the UK where he now stays.

Sometime in 2005, Elizabeth and her children were brought to the applicant by her husband's relatives after she had had a miscarriage. Elizabeth and her children later went to stay at the first respondent's homestead in Murehwa. The first respondent neglected them and gave them no support till the children stopped going to school.

Towards the end of 2008, Elizabeth, who was now sick and unable to look after the children, came back to stay with the applicant. The applicant looked after her and the children till she died in 2010.

The first respondent did not come back to attend his wife's funeral, nor did he render any assistance towards her funeral's expenses.

The applicant continued to look after the children to this date.

She arranged for the children to go back to school. She sought and obtained SOS's assistance in the payment of their fees.

In paragraph 8 of her founding affidavit, the applicant described the first respondent's only contact with the children as follows:

“The 1st respondent would call the children once a year and promise to send them clothes or toys and they would never come. 1st respondent sent Laura an amount of US42 twice on her birthday after the death of her mother and has send nothing to Lawrence. He also send a bag of clothes. In 2013 or thereabouts he sent a runner to buy second hand bicycles for the children but the bicycles were rusty and old so we could only take one.”

The above, while establishing that the first respondent has not completely forgotten his children, does not show that he has their best interest at heart.

Counsel for the applicant submitted, that, the applicant has always been there for the children, and is suitable for appointment as their custodian and guardian.

She further submitted, that, the applicant has demonstrated that she has the minor children's best interests at heart, as demonstrated by her caring for their welfare and putting them back in school.

Her submissions are supported by common cause evidence.

The applicant stays with the two minor children and has, for years, been taking care of them. In spite of her limited means, she put them back in school and sought, on their behalf, SOS's help in paying their school fees. This shows genuine love and care for her daughter's children.

The first respondent's counsel orally submitted, that, his client is opposed to Laura going to Ghana to pursue her education under the scholarship she has been awarded. He submitted, that, the first respondent wants her to continue with her education in Zimbabwe and is able to fund her education.

The disposition of a litigant is judged from his conduct, as demonstrated by what he has done or not done and not by what he promises to do in the future.

The first respondent has, in the past, neglected his children to the extent of their having to drop out of school until the applicant had to seek SOS's intervention. He neglected them and their mother to the extent of denying them education, health care services, nutrition, and shelter. He left them in that condition until the applicant came to their rescue.

He therefore has demonstrated his attitude towards his children.

He has, contrary to the provisions of section 81(1)(f) of the Constitution, exposed them to lack of education, shelter, and nutrition.

When they came back from his homestead in Murehwa they were not going to school and had been starving, as their mother was sick and could no longer fend for them as the first respondent had abandoned them. The first respondent now opposes his daughter's chance to get sound education.

He clearly does not have her best interest at heart.

The court as the upper guardian of all minors cannot be swayed by the whims of a parent who has for years displayed that he does not care about the welfare of his children.

Off Record Submissions

During his submissions, counsel for the first respondent said he would, off the record, not oppose the applicant's application as he had been touched by the curator's detailed report on what the children had gone through as a result of the neglect at the hands of their father.

I, unfortunately for him, recorded that submission, as a court of record, cannot go off record.

This demonstrates, that, the first respondent's neglect of his children is apparent and cannot be disputed.

A legal practitioner has a duty to the court and to his client. If he says something against his client to the court, the court is entitled to take it seriously as he knows his client's case better than anybody else in the proceedings.

The request to make off the record submissions is unlawful and unprocedural. It however cannot prevent the court from using what the legal practitioner said.

When I pointed out that I could not go off record, counsel for the first respondent, to his credit, maintained that he could personally not oppose the order sought as it is in the minor children's best interest.

His view confirms the curators view, and my finding, that the order sought is in the children's best interest.

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

On 16 June 2021, I partly heard the applicant's chamber application for condonation and reinstatement of an appeal in terms of Rule 70(2) of the Supreme Court Rules 2018.On 11 May 2020, the applicant filed a notice of appeal, but failed to inspect the record within the time prescribed by ...

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

The delay in handing down judgment in this matter, especially considering the manner in which the matter will be disposed of, is most sincerely regretted.

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber)
Ruled By: MUTEMA J

Order 7 Rule 50 of the High Court Rules 1971 provides that a defendant who has failed to enter appearance shall be deemed to be barred.

In case number HC1508/14 the respondents issued summons against the applicant on 2 July 2014 claiming arrear rentals and eviction as a result of breach of a lease agreement entered into by the parties.

The summons was served at the applicant's domicilium citandi et executandi, Number 5 Luton Street, Belmont, Bulawayo on 4 July 2014 by affixing it thereat on the door after unsuccessful diligent search.

The dies induciae expired on 18 July 2014.

On 17 July 2014, the respondents legal practitioners, out of courtesy, e-mailed the summons to the applicant and also alerted the applicant that they had served the summons at his domicilium citandi on 4 July 2014.

The applicant did not enter appearance to defend.

On 31 July 2014, the applicant filed a chamber application for the upliftment of the automatic bar.

The respondents opposed that application hence this opposed application.

Now, in an application by a defendant for the removal of a bar from entering appearance, that litigant should set out, briefly, his/her defence and the facts upon which he/she relies for that defence so that the court can form some opinion of its merits.

He or she must also set out, briefly, some facts which the court can scrutinize to gain some idea whether the defence is bona fide: see Broadley N.O. v Stevenson 1973 (1) SA 585 (R) and the cases cited therein.

This is the legal position pertaining to an application of this nature.

The explanation proffered by the applicant, for his failure to enter appearance, is contained in paragraphs 6 and 7 of his founding affidavit. They read:

“6. I did not see the summons as I had long vacated the premises where the summons were served and so I could not enter an appearance to defend within the time limit prescribed in the Rules.

7. I only got to know of the summons on the 18th of July, when the respondents legal practitioners sent me a copy through an e-mail and already the time within which I was supposed to have entered an appearance to defend had lapsed, which means I am automatically barred in terms of Order 7 Rule 50 of the High Court Rules 1971.”

In paragraphs 11 and 12 of his Heads of Argument, the applicant took a swipe at the respondents in these words:

“11….,. For the respondents to seek to cling on an (sic) application of default judgment will be tantamount to snatching of a judgment.

12. The respondents legal practitioners appear to be eager to obtain a default judgment at the slightest opportunity, disregarding the need for courtesy when dealing with fellow legal practitioners. The respondents legal practitioners are fully aware of the date when the applicant came to be aware of the summons, hence there is no need to oppose the present application except from malice.”

That applicant chose Number 5 Luton Street, Belmont, Bulawayo as his domicilium is beyond caevil. Clause 24 of the lease agreement signed by the parties provides:

“24. Domicilium and Notices

24.1 The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any legal notice or the serving of any process, as follows:

The Lessors

Room 24, SAVYON LODGE, CNR M. NDLOVU AVE AND ROBERT MUGABE WAY, BULAWAYO

The Lessee

5 LUTON STREET, BELMONT, BULAWAYO

24.2 Each of the parties shall be entitled, from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office address.”

It is trite, that, the purpose of choosing a domicilium address for the giving of a notice or service of process is to relieve the party giving the notice or serving the process, of the burden of proving actual receipt of the notice or process.

The manner of service of the summons in casu, of affixing it on the outer or principal door at the applicant's domicilium citandi, constitutes good and valid service permissible in terms of Rule 40(b) of the High Court Rules.

The applicant's explanation regarding his failure to enter appearance, in paragraph 6 of his founding affidavit, that he did not see the summons because he had long vacated his domicilium is neither here nor there.

As far as the respondents and the law are concerned, Number 5 Luton Street. Belmont, Bulawayo was, on 4 July 2014, still the correct address for service of the applicant.

The applicant very well knew, that, in terms of clause 24.2 he was obliged to write to the respondents advising them of his change of domicilium before, during, or after leaving 5 Luton Street.

He did not so do, thereby exhibiting a dearth of diligence regarding legal issues.

The applicant's lack of diligence did not end there.

Even after he got to know of the summons on 18 July 2014, and that the summons had been served at his last known address for service, on 4 July 2014, he adopted a lackadaisical approach to the matter.

He could still have entered appearance on 18 July 2014, either as a self actor and engage a legal practitioner thereafter, or through one, for. by that date, the automatic bar was not yet operative.

That was the last day of the dies induciae.

The applicant is not such an unsophisticated individual as not to be unable to draft an appearance to defend, simple as it is. Very unsophisticated litigants have managed to enter appearance as self-actors in this court.

In light of the above inexcusable shortcoming, the applicant had neither a moral nor a legal ground to pour scorn on the respondents or their legal practitioners using the verbiage he employed in paragraphs 11 and 12 of his Heads of Argument quoted supra.

Such indecent and intemperate language must be censored and discouraged - especially by legal practitioners whose client's cause looks doomed....,.

Again, there was absolutely no plausible reason for the applicant's legal practitioner…, to get overly excited, in paragraph 18 of his Heads of Argument. wherein he poured further vitriol upon the respondents legal practitioners by alleging that their conduct is not only unethical but they should be ordered to pay costs “de bonis proprisii” (sic).

If any costs de bonis propriis were to be ordered, between the two sets of legal practitioners, it is counsel for the applicant himself who qualifies to be so mulcted, for launching an application that was hopeless from the outset.

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.

The facts relevant to the resolution of the dispute between the parties are briefly these:

The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent paid a deposit of $12,000 and took possession of the vehicle. He, however, failed to pay the balance of $12,175.

The applicant then sued for the balance under case number HC2869/13 and obtained default judgment.

As a follow up to the default judgment, a writ of execution was issued which resulted in the vehicle in question being attached by the Deputy Sheriff.

The respondent filed an application for rescission of the default judgement under case number HC548/14.

The applicant's legal practitioners drew up papers to oppose the application, but, before they filed them, the parties reached a settlement which culminated in the signing of an agreement annexure “D” to applicant's founding affidavit. It was drafted in these words:

“MEMORANDUM OF AGREEMENT

It be and is hereby recorded that following a meeting between:

Plaintiff and her legal practitioner Mr G. Nyoni

Defendant and his legal practitioner Mr S.S. Mazibisa

It was agreed without force; duress and undue influence and the parties conscious of what they were doing, that:

1.The execution of Defendant's property be stayed only and strictly on the following conditions:

(a) That, he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th of May 2014.

(b) That, he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe; Sheriff's further costs and commission; interest of US$250 and costs as will be taxed, all by the 27th of May 2014.

2. The BMW X5 registration number ACX 0734 shall be removed by plaintiff from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage charges) and kept at Plaintiff's place or other safe place until the defendant has fully paid all monies detailed in paragraph (1) above.

3. Should the Defendant fail to make any one of the payments mentioned in (1) above, the plaintiff shall, without notice to the Defendant, take the vehicle to a car dealer (sellers of second hand vehicles) for the car to be sold by private treat at such reasonable price as will be determined thereat.

4. This memorandum shall stand as Defendant's mandate to the Plaintiff and the said car dealer to sell and transfer the car to the would-be purchaser.

DATED at BULAWAYO on this the 26 day of MARCH 2014.”

It was signed by both parties and their respective legal practitioners.

As a result of the agreement, the application and opposition for rescission under case number HC548/14 could not be pursued.

The respondent failed to meet the payments stipulated in the agreement of 26 March 2014 and the vehicle was taken to a dealer, but, the highest offer received was US9,000. There followed a series of correspondence between the parties legal practitioners concerning the value of the vehicle and whether the respondent should pay the applicant's costs.

On 3 September 2014, the current legal practitioners of the respondent wrote to the applicant's legal practitioners as follows:

“RE: M. NCUBE vs SIPIWO NKOMO

The above matter refers and to our previous conversation.

Kindly note, that, I am preparing a payment plan which is to commence at the end of September 2014 inclusive of clearing the balance if that option is still possible then.

In the meantime, may I please have photocopies of all the filed pleadings since Messrs Cheda and Partners seem to have lost the whole file in their moving offices. I have tried to photocopy directly from the High Court, but, at a dollar per page, it was too stiff, hence the favour that I now seek.”

The respondent was obliged with the documents he requested, which papers he then used to pursue his application for rescission of judgment in case number HC548/14 which had been laid in abeyance by the memorandum of agreement alluded to above - without alerting the applicant.

On 23 October 2014, the respondent obtained a default judgment, with costs, rescinding the judgment the applicant had obtained in HC2869/13.

The applicant says she was shocked to receive a letter, on 19 November 2014, written to her legal practitioners by the respondent's current legal practitioners to this effect:

“RE: MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13

The above matter refers and to the attached court order.

Be advised that we have since obtained a rescission of judgment of the order which was in favour of your client. Mr Ncube had clearly wanted this matter to rest and had resigned himself to losing both the BMW X5 and the money, a sum of US$12,000, plus other monies that he had paid to the sheriff.

What he then found unfair was the fact that your client wanted to further make him pay a sum in excess of US$2,000 as legal costs when she had both the car and the money. Clearly, that was for all to see, a gross injustice.

In light of the rescission of judgment may the status quo before the judgment be restored, and the matter proceed through normal trial route and Mr Ncube pays the balance which was owing. Failing which, may your client make arrangements to refund the money paid to her by Mr Ncube, by the 1st of December, 2014.

As yours took back possession of the vehicle, which she is using, as we are told by Mr Ncube that he has seen her use the motor vehicle, there is therefore no legal basis for her not to return the money since she had taken back the motor vehicle and enjoys its use.”

That letter elicited a response from the applicant's legal practitioners in this vein:

“We refer to the above matter and to your 19 November 2014 letter. We are, we should confess, shocked by your stance which borders on lack of candour and dishonesty. There is a memorandum of agreement that you signed. Did you disclose it to the court? We are interested in this because we saw the papers in court and the agreement was not part thereof. Can we hear from you urgently as we are determined to take this back to court and to show the court that it was, in our view, at least, misled.”

This letter provoked no response from the respondent hence the current application.

At the hearing of the application, counsel for the respondent attempted, in vain, to introduce cases not cited in the respondent's heads of argument on the basis that he was only briefed by Ndove, Museta and Partners the day before.

I disallowed it in terms of Rule 238(2c) because Ndove, Museta and Partners had been served with the notice of set down on 12 February 2015 but briefed counsel on the eleventh hour. No explanation for that was forthcoming.

As if that was not enough, counsel for the respondent went on to smuggle into the hearing new issues that appear not anywhere in the papers in an endeavour to persuade the court to dismiss the application.

I will proceed to deal with those technical issues that he raised first before adverting to those raised in the opposing affidavit and the heads of argument....,.

In his heads of argument, the respondent raised three issues in opposing the grant of this application. I herewith deal with them hereunder:...,.

(b) That respondent did not withhold information from the court when he obtained rescission of the default judgment

The argument by the respondent here is that he did not conceal the existence of the agreement when he applied for and was granted the default judgment in HC548/14 because that agreement had been “filed with the Registrar and became part of the record in the main matter which was cross-referenced to in the application for rescission.”

The paucity and fallacy of this argument is too glaring to escape censure.

Firstly, the respondent does not say who had filed it and in which case number of the three cross-referenced cases.

What he refers to as the main matter can only be HC2869/13 wherein the applicant is the owner of the litigation and she could not have filed it therein when the agreement had not yet been concluded.

In any event, it was the respondent's duty to bring the existence of that agreement to the court's attention in HC548/14 by either attaching a copy, or, if, as he alleges, a copy had already been filed in one of cross-referenced cases, to lead the court to the particular cross-referenced case.

Surely, the respondent cannot expect the Honourable Judge to peruse all cross-referenced files for a document not alluded to in the current matter, especially in Bulawayo High Court matters, where, for some very amiss and inexplicable reason, except to push volumes by legal practitioners in order to maximize on fees, those cross-references are a volume of files in almost all matters civil.

Further, the argument that the respondent concealed the existence of the agreement in question from the court is corroborated by his prior sly conduct evinced in annexure “E” to the applicant's founding affidavit, namely, the letter of 3 September 2014, quoted above, wherein he fooled the applicant by alluring her into believing that he would pay what was due with effect from end of that month, and, if he could be obliged with copies of the filed pleadings to replace his which had been lost.

He deliberately hoodwinked the applicant because he very well knew that the purpose for which he required those copies was to go behind the applicant's back and resume the application for rescission which had already been settled via the agreement which he had breached by failure to pay.

This indeed is dishonest and unethical conduct, by a litigant who is a legal practitioner and an officer of court, of the highest order.

No wonder the applicant expressed shock and disbelief after receiving the respondent's legal practitioners letter of 19 November 2014, gleefully waving a copy of the default judgment surreptitiously obtained on 23 October 2014.

I am convinced, that, had the existence of the agreement been brought to the attention of KAMOCHA J in HC548/14 and also the respondent's letter of 3 September 2014, the Honourable Judge would certainly not have granted that default judgment, or, at the very least, he would have directed the respondent to give the applicant notice that he was going back to court to resume his application for rescission of judgement.

From the foregoing findings, it is apparent, that, the applicant has shown good cause for the granting of rescission of the default judgment in case number HC548/14....,.

It behoves me to utter some strictures regarding the scale of costs in view of the respondent's conduct in casu.

It is clear, that, the respondent snatched at a judgment and his conduct was premised on trickery. Over and above that, the respondent had the effrontery to go to town in attempting to oppose this application, and, in the process, defending his unethical conduct thereby further putting the applicant out of pocket unnecessarily.

He surely deserves to be mulcted with costs on the attorney–client scale.

In the result, I make the following order:

1....,.;

2....,.;

3. The respondent is ordered to pay costs of suit at an attorney–client scale.

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

On 20 October 2020, counsel for the third and fourth respondents wrote to the Registrar of this Court advising that he did not file opposing papers for the third and fourth respondents as they did not intend to oppose the order sought by the applicants.The letter was a courtesy to ...

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

We remain grateful for the submissions that were made on behalf of the applicant.

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

This is an opposed application for leave to appeal against a decision of the Supreme Court (“the court a quo”) made in terms of section 167(5)(b) of the Constitution as read with Rule 32(2) of the Constitutional Court Rules 2016 (“the Rules”).FACTUAL BACKGROUNDThis application emanates from an election petition lodged ...

FACTUAL BACKGROUND

This application emanates from an election petition lodged with the Electoral Court to nullify the election of the respondent and to declare the applicant as a duly elected Member of Parliament for Chegutu West.

The background to the matter is that in July 2018 the applicant took part in a parliamentary election in Chegutu West in which the respondent was declared the winner by 10,932 votes as opposed to 10,828 votes attributed to the applicant. The applicant lodged a complaint with the Zimbabwe Electoral Commission (ZEC) District Elections Officer challenging the results of that election on the basis that ZEC had made mistakes in collating and verifying the results.

The mistake was apparently admitted by the Zimbabwe Electoral Commission (ZEC).

On 10 August 2018, the applicant filed a petition in the Electoral Court seeking the correction of the erroneous declaration. The Electoral Court held, that, the petition fell foul of the peremptory requirements of Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995 which sets out certain peremptory requirements pertaining to the form and content of an election petition.

The applicant had brought the petition on notice and the court held, that, the form and content of the petition did not comply with Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995, rendering it fatally defective. The court found, that, the applicant had failed to present his case in the proper format required by law and there was therefore no valid petition before the court. The petition was accordingly dismissed.

The applicant noted an appeal to the court a quo:

(i) Firstly, he averred that the petition was not fatally defective for having been brought on notice as section 169 of the Electoral Act [Chapter 2:13] made such notice mandatory.

(ii) Secondly, he contended, that, the Electoral Court could have condoned non-compliance with its rules as section 17(9) of the Electoral Act vests the court with such competence to condone.

(iii) Lastly, he contended, that, the court failed to consider the merits of the petition despite the Zimbabwe Electoral Commission (ZEC) having acknowledged the error that resulted in the undue return complained against.

Before the matter was heard, the respondent gave written notice of a preliminary objection in the proceedings.

He averred, inter alia, that the court a quo was barred from adjudicating the appeal on account of section 182(2) of the Electoral Act which requires an election appeal to be disposed of within 3 months. He contended that once the prescribed period of 3 months expired, the court has no jurisdiction to entertain the matter.

Per contra, the applicant submitted, that, section 182 of the Electoral Act did not operate to bar the court from determining the appeal since the applicant had already filed process and the matter was pending. His argument was to the effect that the provision was not intended to non-suit a litigant who was already before the court.

The court a quo held, that, it is a petitioner who is dominus litis in an election petition and that it is he or she who ought to seek directions as envisaged by section 182 of the Electoral Act and should be especially vigilant in monitoring and managing the progress of their own cases in order to meet the stipulated time limits. It further found, that, the 3 months period stated in section 182 of the Electoral Act was mandatory and could not be exceeded under any circumstances.

As a result, the respondent's point in limine, challenging the continued adjudication of the appeal beyond the time limit prescribed by section 182(2) of the Electoral Act was sustained and the appeal was removed from the roll.

Aggrieved by that finding, the applicant filed the present application on 15 April 2021.

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

This application was set down during vacation, i.e. on the Motion Court for 17 December 2020.

When this matter was called, Mr Moyo, counsel for the applicant rose and made a submission that the papers were in order, and he prayed for an order in terms of the draft order. Mr Mazibiko stood up and said he was representing the first respondent.

I noted that the first respondent was not served with the notice of set down. Mr Mazibuko might have only become aware of the application because the matter was called out in his presence in the Motion Court.

I pointed out to Mr Mazibuko that the first respondent was barred and the application was not opposed.

He was not deterred.

He attacked the validity of the service of the application on the first respondent and attacked the competence of the application itself. Notwithstanding that he was further advised that the first respondent was barred, he argued that he was raising points of law, and, in his view, a court cannot grant such an order as sought by the applicant.

On his part, Mr Moyo contended that the first respondent was barred for want of filing a notice of opposition, and the application was not opposed, and he submitted that his papers were in order and prayed for an order in terms of the draft.

After briefly hearing both counsel, I granted the order sought, couched in the following terms:

“1. The provisional judicial management order issued on the 1st day of March by this court, under cover of HC3455/15 be and is hereby discharged.

2. Nyasha Motsi, in his personal capacity, be and is hereby directed to pay applicant's costs of suit on an attorney and client scale.”

Following the granting of the order quoted above, Messrs Calderwood, Bryce Hendrie and Partners addressed an ultimatum to the Deputy Registrar of the High Court, and I reproduce below the ultimatum in full:

“We confirm that this matter was on the unopposed roll on Thursday 17 December 2020. We further confirm that the application was granted by the Honourable Mr Justice Dube-Banda. However, in his granting the application, the Honourable Judge did not indicate whether he was granting on the basis that the 1st respondent was barred or on the basis of the substantive verbal submissions made by both counsel as to whether the application should be granted.

The distinction is important as the first respondent would like to know the correct step to take hereafter as in the case of the former, an application for rescission would have to be filed whilst in the case of the latter, then an appeal must be filed.

May you therefore, as a matter of urgency, clarify with his Lordship which of the two is the position; if is the latter position, we would be pleased if his Lordship were to provide his written reasons. As you would appreciate that there are timelines for filing once one or the other, we would appreciate a speedy response from your office.”

I believed that after the brief hearing, I stated that the first respondent was barred for want of filing a notice of opposition, and the application was not opposed.

The ultimatum containing a lecture from Messrs Calderwood, Bryce Hendrie and Partners came as a total surprise to me.

However, if I did not state that I was granting the order sought on the basis that the first respondent was barred and the application was not opposed, the oversight is regrettable and it was not intended.

The letter from Calderwood, Bryce Hendrie and Partners concludes as follows:

“as you would appreciate that there are timelines for filing once one or the other, we would appreciate a speedy response from your office.”

A letter to the Deputy Registrar is, in essence, a letter to the presiding judge, and, in general, to demand of a judge to provide “a speedy response” is rather taking discourtesy to new heights.

The office of a judge must be respected. It is not about the person of the judge - it is about the office, it is about the court as an institution: see Ex Parte Zondo and Others; In Re: Administrator of JS Moroka and Others v Kubheka and Another (1170/2020) [2020] ZAMPMHC 12 (29 May 2020).

HH297-21 : MUSA KIKA vs LUKE MALABA and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and THE JUDICIAL SERVICE COMMISSION and THE ATTORNERY GENERAL OF ZIMBABWE
Ruled By: MUREMBA J, KWENDA J and MUSITHU J

This is a unanimous decision of the court.The applicant filed an urgent court application which was allocated to us on the 14th of June 2021. After perusing it, we set it down for hearing today at 2pm for the purpose of doing case management.An hour before the hearing, we were ...

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

The applicants filed an Urgent Chamber Application on 26 September 2019. The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) filed opposing papers on the date of the hearing.

The 8th to 14th respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) did not file any papers and their position is that they do not oppose the application, if the terms thereof are broadened to encapsulate their interests.

Mr K. Shamuyarira, a trade unionist representing the 15th respondent (Zimbabwe Federation of Trade Unions) is opposed to the application. He also did not file opposing papers.

The relief sought was amended at the eleventh hour.

The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) opposing papers were predicated upon the original relief sought.

The relief that is now sought reads as follows;

“1. INTERIM RELIEF SOUGHT

1.1 It is ordered that pending the final resolution of this matter either in the court of first instance or an appeal;

(a) The applicants are to deposit the 'Trade Union Dues' for the Zimbabwe Sugar Milling Industry Workers Union into the Master of the High Court Trust Account until the final resolution of SC518/19.

2. FINAL TERMS OF THE PROVISIONAL ORDER

2.1 The interim order is confirmed.

2.2 The 1st to 14th respondents shall pay costs of suit on an Attorney and client scale.”

The background of the matter can be traced back to a matter adjudicated upon by MAFUSIRE J in HMA38-19 referred to as Zvanyanya and Others v ZISMIWU and Others.

This matter was heard on 23 May 2019 and 27 June 2019 and the date of written reasons is 28 August 2019.

In HMA38-19 the applicants therein, who are members of a faction of a trade union, sought to have three respondents (namely 2nd, 3rd and 4th respondents, Godfrey Katerere, Brawl Chikandiwa and Tavonga Vandirai)) to be disqualified from membership of the trade union, and, flowing therefrom, to be disqualified from holding positions in the trade unions National Executive Committee. The applicants in HMA38-19 also sought an order to hold elections to choose members of the National Executive Committee and to hold annual general meetings in terms of its Constitution.

MAFUSIRE J resolved the issues by way of an order which reads as follows;

“(i) The second, third, and fourth respondents ceased being members of the first respondent upon the termination of their contracts of employment with the seventh respondent.

(ii) By reason of paragraph (i) above the second, third, and fourth respondents are hereby disqualified from holding any positions in the first respondents national executive committee.

(iii) The first respondent shall hold elections to choose members of the national executive committee within sixty (60) days of the date of this order, or within such other time frame as may be agreed upon.

(iv) The first respondent shall hold an annual general meeting in terms of its Constitution by no later than the 31st December 2019.

(v) The costs of this application shall be borne by the first, second, third, and fourth respondents, jointly and severally.”

The first to sixth respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele and Nokhutula Dube) have since appealed against the whole, final and definitive judgment under HMA38-19 to the Supreme Court. The appeal appears under cover of SC518/19.

It would appear that specifically because of the order under HMA38-19, and the developments thereafter, the acrimony between the parties intensified.

It may be necessary to identify the parties at this stage.

The first and second applicants (Triangle Ltd and Hippo Valley Estates Ltd) are the employers.

The first respondent (Zimbabwe Sugar Milling Industry Workers Union) is a registered trade union in terms of the laws of Zimbabwe.

The second to seventh respondents (Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) are members of a faction of the first respondent while the eigth to fourteenth respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) are members of the second faction.

The two factions are involved in a fierce battle to control the first respondent.

The fifteenth respondent (Zimbabwe Federation of Trade Unions) is ostensibly the mother body of the first respondent (Zimbabwe Sugar Milling Industry Workers Union) while the fourteenth respondent (Admore Hwarare) is cited in her official capacity.

The employer is, by virtue of the law, enjoined to transmit union dues to the first respondent.

The situation has been complicated by the fights and disagreements between the two factions set on wrestling and winning control over the first respondent.

The applicant is of the view, that, in order to safeguard the union dues they should be transmitted to a trustworthy and secure institution, namely, the Master of the High Court. This is to prevent the funds being misused or to stop or prevent the various warring factions seeking to apportion a slice of the cake to themselves.

As is usual in such applications, points in limine were raised.

Some of the points in limine seem to have been abandoned while others were seemingly overtaken by events.

Points in limine raised by the first to seventh respondents were;...,.

Counsel for the first to seventh respondents..., pointed out, that, the applicant filed heads of argument on 30 September 2019 as well as an amended draft order. These two sets of documents were only served on her, as counsel for the first to seventh respondents, ten minutes before the scheduled time for the hearing of this application.

No warning was given of the amended draft order.

Counsel for the first to seventh respondents avers, that, in HMA38-19 the applicants chose to abide by the decision of the Court. She sought to demonstrate, that, the various cases relied upon by the applicants are either misplaced, irrelevant, or misunderstood.

She averred, that, the applicants should not have approached the court without notifying all the parties....,.

It is important to give proper notice to other parties of any amendments sought timeously and to serve them with the application....,.

Counsel for the first to seventh respondents, though partially disadvantaged because of receiving the applicants papers late in the day, appeared to rise to the occasion in the circumstances.

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

One of the crucial elements of the new constitutional dispension ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment (No.20) Act 2013 (“the Constitution”) adopted the rule of law and supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy.

For this reason, public office bearers ignore their constitutional obligations at their own peril. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:

“Power tends to corrupt, and absolute power corrupts absolutely!”

John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”

Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.

To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.

However, this case also illustrates the need, on the part of the litigants, to move away from old fashioned Private Law habits when it comes to Constitutional Law litigation. While constitutional litigation may entail the vindication of a private right, it differs from Private Law litigation in that over and above that it seeks to entrench legality and the deepening of the constitutional order for the benefit of the broader public.

This is why it has been said that:

“Where a matter concerns the constitutionality of a law…, the need for certainty may require the court to decide the matter irrespective of whether or not the party advancing the challenge had standing:” MAX du PLESSIS et al 'Constitutional Litigation' Juta, 2013 quoting the South African cases of Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)…, and South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC)…,.

This application seeks to enforce the enactment of the law envisioned in section 210 of the Constitution to provide for “an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

It also seeks a declarator that the respondents have breached the Constitution by failing to enact such a law timeously after the coming into operation of the new Constitution and a mandamus for the respondents to gazette the Bill envisioned in section 210 of the Constitution thereof within forty-five days.

At the time of hearing of the application, a period of two years and four, five months had lapsed from the time of coming into operation of the rest of the Constitution, on 22 August 2013, when the President-elect, under the Constitution, assumed office. That delay, of less than two and a half years, might not have been sufficient to satisfy a finding of violation of the Constitution and the application might have failed on that score, with a period of, say, three being deemed to be the sufficient one.

However, post-hearing, intimations or overtures that the matter might be settled by consent of the parties were made necessitating the holding of three Court-presided meetings of the parties over time on the basis that both sides were agreed that the envisaged legislation had to be enacted; and, indeed, both sides agreed that the application was essentially not opposed, but differed slightly on the appropriate timelines for the enactment of the law.

Herein lies the nub of this matter.

Had the constitutional legality principle been put above all else, the application could have been granted immediately with immense public benefit. However, the Private Law litigation habit of “winner takes all” of wanting the other side to be declared a violator of the Constitution stood in the way as did the attitude on the other side of not wanting to make any move unless so ordered.

Had the Court appreciated, then, how deeply entrenched these arcane positions were, relics of Private Law litigation habits, a different approach could have been adopted of immediately issuing the order, with reasons to follow.

It is regretted that this approach was not followed.

FACTUAL BACKGROUND

The applicants are citizens of Zimbabwe who have taken it upon themselves to see to it that the respondents adhere to the constitutionally-created obligations imposed on them by section 210 of the Constitution.

The applicants submit, that, the respondents have done nothing to fulfil their constitutional obligations clearly outlined in the supreme law.

Section 210 of the Constitution requires the enactment of a law to provide for an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.

The applicants aver, that, it has been over two years since the inception of the Constitution and the Act required, in terms of section 210 of the Constitution, has not been put in place.

It is further the applicant's contention, that, the failure by the respondents to enact the law, in terms of section 210 of the Constitution, is a breach of the Constitution. The right to equal protection of the law, under section 56(1) of the Constitution, is under threat, according to the applicants, due to failure or delay in enacting the law directed by section 210 of the Constitution.

The application is opposed.

The respondents submit, that, the law-making process cannot be carried out overnight. The respondents further submitted, that, they are working on making sure that the Act is in place and filed of record a working document they are allegedly focused on as a roadmap towards the eventual enactment of the law in question.

The timeline within which the Act envisaged by section 210 of the Constitution should be enacted sits at the heart of this application.

The applicants, in their final submission to this Court, are seeking the following relief:

1. The respondents failure, to enact the law provided for in terms of section 210 of the Constitution of Zimbabwe, is in breach of the Constitution of Zimbabwe.

2. The failure by the respondents, to enact the law to bring into effect section 210 of the Constitution of Zimbabwe, is a violation of the applicant's right to equal protection and benefit of the law as defined by section 56(1) of the Constitution.

3. The respondents must gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within 45 days from the date of this order.

4. The respondents, jointly and severally, each paying the other to be absolved pay costs of suit.

ISSUES

The first question this Court is seized with is whether or not the applicants have locus standi to bring this matter before this Court. This question shall be disposed of first before delving into questions arising from the merits of the application.

On the merits of the application, three questions arise and they are the following:

(1) Whether or not the respondent's delay in enacting the law, provided for in terms of section 210 of the Constitution of Zimbabwe, constitutes an unreasonable delay in fulfilling constitutional obligations in terms the Constitution of Zimbabwe.

(2) Whether or not the requirements for a mandamus have been satisfied to order the respondents to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty five days from the date of this order.

The aforementioned questions, on merit, will be disposed of separately hereunder after addressing preliminary and standing issues.

PRELIMINARY ISSUES

Before proceeding to deal with the merits, there are a number of preliminary issues that call for the Court's attention, although not raised by the parties, but being questions of law.

Their determination is paramount in clarifying what really is before this Court as opposed to what is purportedly so.

THE APPLICANTS FOUNDING AFFIDAVIT IS DEFECTIVE

The founding affidavit in this application is replete with anomalies which render it defective. It is deposed to by the first applicant. He is the one who, under oath, swears to and undertakes to depose to the founding statement forming the basis of the suit. Thereafter, the very same affidavit identifies the second applicant, by naming him, and states, that, the second applicant brings the application 'in his own right.'

It is pertinent to note, that, the second applicant does not, at any point, take the oath or undertake to depose to the founding affidavit.

Neither does he sign the affidavit which is signed by the first applicant.

It does not end there.

The founding affidavit of the first applicant then purports to tell the story of both the applicants.

This it does in the most unusual way. The first applicant appears to be the author of the first to fifth paragraphs of the founding affidavit. He refers to himself in the first person where he states thus: “I am the Applicant herein:” and refers to the second applicant in the second person were he states: “The Second Applicant is Rashid Stuart Mahiya.”

It is not clear at what stage the second applicant takes over the reins of authorship to the first applicant's founding affidavit, but, it appears to be possibly at about the sixth paragraph of the founding affidavit. At paragraph 6.2, the first applicant is referred to in the second person where it says:

“In my line of work, I have witnessed the agonies of the violence perpetrated against our citizens in unmitigated proportions, in particular, the first applicant, by the State and its agents.”

It appears from the above remarks, that, it is the second applicant who now puts forth his own story through the first applicant's founding affidavit.

From the above, it is clear, that, apart from being mentioned by the first applicant, there is no affidavit before the court that can be attributed to the second applicant.

Therefore, the founding affidavit before the court is that of the first applicant.

The second applicant, in a strange and unusual manner 'infuses' his own averments in an affidavit sworn to and signed by the first applicant.

Thus, effectively, there is no affidavit placed before this Court by the second applicant.

The founding affidavit also only identifies two respondents, the first and second respondents. The third and fourth respondents are not identified as respondents save for their citation on the face of the application.

Further to that, at paragraph 8.1 of the founding affidavit, the authorship appears to have reverted back to the first applicant were it is stated that:

“The Applicant and I are ordinary citizens of Zimbabwe and Human rights activists.”

Such back and forth approach is unacceptable. It leaves the facts muddled, not being clear which averments are to be attributed to which applicant. Such breadth-taking bundling is unacceptable, embarrassing, and an unworthy handiwork of one who is a senior legal practitioner.

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application in which the applicant sought an order in terms of the draft. The applicant and the fourth respondent (the Prosecutor General) consent to an order of the Court in terms of the draft order, as amended.

The third respondent's position (the Commissioner General of Police, Zimbabwe Republic Police)
is that he will abide by the decision of the Court.

The first and second respondents (Sergeant Chacha and the Zimbabwe Anti-Corruption Commission) persist in their opposition to the granting of the original draft order and the order by consent.

When asked by the Court to provide the legal basis for their attitude, they were not able to advance any legal basis for their continued opposition to the granting of the order consented to by the applicant and the fourth respondent.

This quite clearly evinces an attitude of: “Why be difficult when one can be impossible?”

The papers before the Court clearly reveal that there is a real possibility that due process was not complied with in the handling of this matter.

In the light of that, the concession by the Prosecutor-General is based on sound legal considerations in this matter.

Quite clearly, a definitive decision on whether or not there was failure of due process in the handling of this matter can only be determined by the Constitutional Court, as opposed to a Judge sitting in Chambers. It is for the Constitutional Court, if it so finds that there were procedural failures of due process in this matter, to decide what remedies are available to the applicant.

The first and second respondents have no locus standi to drive this process forward without the fourth respondent, who is the dominus litis in all criminal prosecutions. Their continued and persistent opposition to the application is driven by something other than legal considerations.

I accordingly grant an order in terms of the consent draft order between the applicant and the fourth respondent. The consent draft order reads as follows:

“1. The Registrar is directed to set the matter down for hearing on an urgent basis.

2. Pending the determination of the case action in case no. CCZ73/2016, the criminal proceedings envisaged against the applicant, in terms of the charges levelled against him by the first respondent, are stayed.”

The timetable for the set down of the main Court application will be agreed between the applicant and the fourth respondent in consultation with the Registrar of this Court.

The applicant and the fourth respondent have now agreed on the timetable, and the agreed timetable is hereto attached.

“AGREED TIMETABLE FOR THE SET DOWN OF THE MAIN APPLICATION

1. The respondents shall file and serve their notices of opposition by 15 November 2016.

2. The applicant is to file an answering affidavit by 18 November 2016.

3. The applicant is to file and serve heads of argument by 25 November 2016.

4. The respondents shall file their heads of argument by 2 December 2016.

5. The Registrar is to set the matter down for hearing on the first available date thereafter.

6. Should any party find the need to file supplementary heads of argument, the same shall be filed not later than four days before the date of set down.”

Costs will be costs in the cause.

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

This was an opposed application. The original and main dispute was between the applicant and the third respondent. But, in this particular application, the applicant sought a remedy against the first and second respondents.

I guess the third respondent was cited merely as a nominal respondent being so much of an interested party.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 10:28]. She complained that, being administrative bodies and therefore entities governed by that Act, the first and second respondents had failed to adhere to the standards set out in section 3 of the of the Administrative Justice Act. Briefly, these are:

(i) The right of a person to receive adequate notice of the nature and purpose of any action proposed to be taken by an administrative body;

(ii) The right to a reasonable opportunity to make adequate representations; and

(iii) The right to adequate notice of any right of review or appeal where applicable.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

The details were these:

The applicant was quarrelling with the third respondent over a piece of sugar cane land on which they had been allocated by Government in terms of its land reform programme. The applicant had an offer letter dated 2004 over a piece of land that was plus or minus 50 hectares in extent. The third respondent also had an offer letter issued sometime in 2017 over a piece of land plus or minus 21 hectares in extent.

The applicant claimed the 21 hectares offered to the third respondent had been carved out of her own 50 hectares without due process.

She said, in September 2017, the third respondent, buoyed by that recent offer letter to him, had tried to force his way onto her land, yet, for thirteen years, she had been growing sugar cane undisturbed on the entire land - including the 21 hectares allegedly offered to the third respondent unprocedurally.

In September 2017, the applicant brought an urgent chamber application against the third respondent for an interdict to bar him from interfering with her farming operations on the disputed land.

I heard it. I never had to decide the matter. The parties agreed to an order by consent.

Essentially, the agreement was to have the matter referred to the first respondent for determination. The first respondent is the proper forum for such disputes. It is a constitutional body. In terms of section 297 of the Constitution, it is empowered to investigate and determine complaints and disputes regarding, among other things, the allocation of agricultural land.

On 14 September 2017, I issued an order by consent.

The operative part said the applicant would harvest the crop of cane on the disputed portion of the land, but, that, thereafter, all operations on it would cease pending the resolution of the dispute by the first respondent within thirty days.

The first respondent obliged.

In its notice of opposition to the present application, the first respondent said it had resolved the dispute in terms of the High Court order and in accordance with its Constitutional mandate.

It said on the appointed day, it had called the parties for a survey of the land boundaries. Using the advanced GPS facility (Global Positioning System), it had established, that, the 21 hectares allocated to the third respondent had been over and above, and quite separate from the 50 hectares allocated to the applicant. Her 50 hectares were intact. Of those, about 48 were arable. The respondent might have been farming the extra 21 hectares over the years but she had no lawful authority or any right over them.

It was this decision by the first respondent that sparked the present application.

The applicant said she was disgruntled by the decision. She claimed her representative had not been given an opportunity to make representations. She claimed the decision was unfair, unprocedural, illegal and irrational. In this regard she merely regurgitated the language of Secretary for Transport & Anor v Makwavarara 1991 (1) ZLR 18 (SC).

The applicant sought the following orders:

(i) That, the resolution made by the first respondent, on the dispute between the applicant and the third respondent, be set aside;

(ii) That, the offer of 21 hectares by the second respondent to the third respondent over the applicant's plot be cancelled;

(iii) That, the applicant should continue to tend to her sugar cane crop on the 21 hectares pending finalisation of the dispute;

(iv) That, the first and second respondents had to invite the applicant and the third respondent to submit representations in respect of the disputed land within thirty days of the court order; and

(v) That, the second respondent should make a determination into the matter giving written reasons within ninety days of the date of the court order.

The application was manifestly ill-conceived. I dismissed it soon after the presentation of oral submissions and gave my reasons ex tempore. That was on 2 February 2019.

The record was returned to the Registry.

Only in August 2019 did the Registry receive a letter from the applicant's lawyers wanting written reasons for my decision and claiming that a previous request had, by mistake, not been delivered. But, regrettably, I could not oblige soon enough. For much of the second term vacation, and the third term, I was indisposed.

That explains the delay in rendering this judgment.

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.This was an opposed application.The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the ...

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HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

The application was well-researched, well-argued, as well as presented.It drew my attention to a number of important case authorities which, in a large measure, addressed the concerns of the applicant.

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Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court

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HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION)
Ruled By: KWENDA J

SC89-21 : KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD vs EMMANUEL RENSBURG and MEGAMANIA AUCTIONEERS and SHERIFF OF THE HIGH COURT N.O.
Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS
Ruled By: GOWORA J

SC100-21 : PARKHAM ENTERPRISES (PVT) LTD and NYASHA MOTSI vs ADHESIVE PRODUCTS MANUFACTURES (PVT) LTD and THE MASTER OF THE HIGH COURT N.O.
Ruled By: CHITAKUNYE JA

View Appeal
HH485-20 : MIKE MHLANGA vs IRENE MHLANGA
Ruled By: CHIRAWU-MUGOMBA J

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

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

HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber)
Ruled By: MUTEMA J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

HH297-21 : MUSA KIKA vs LUKE MALABA and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and THE JUDICIAL SERVICE COMMISSION and THE ATTORNERY GENERAL OF ZIMBABWE
Ruled By: MUREMBA J, KWENDA J and MUSITHU J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

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Law Portal Zimbabwe

Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court

View Appeal HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION) Ruled By: KWENDA J

SC89-21 : KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD vs EMMANUEL RENSBURG and MEGAMANIA AUCTIONEERS and SHERIFF OF THE HIGH COURT N.O. Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS Ruled By: GOWORA J

SC100-21 : PARKHAM ENTERPRISES (PVT) LTD and NYASHA MOTSI vs ADHESIVE PRODUCTS MANUFACTURES (PVT) LTD and THE MASTER OF THE HIGH COURT N.O. Ruled By: CHITAKUNYE JA

View Appeal HH485-20 : MIKE MHLANGA vs IRENE MHLANGA Ruled By: CHIRAWU-MUGOMBA J

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL Ruled By: DUBE J

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

HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT Ruled By: UCHENA J

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS Ruled By: UCHENA JA

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI Ruled By: MUTEMA J and MOYO J

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber) Ruled By: MUTEMA J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE Ruled By: MUTEMA J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O. Ruled By: DUBE-BANDA J

HH297-21 : MUSA KIKA vs LUKE MALABA and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and THE JUDICIAL SERVICE COMMISSION and THE ATTORNERY GENERAL OF ZIMBABWE Ruled By: MUREMBA J, KWENDA J and MUSITHU J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS Ruled By: WAMAMBO J

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO Ruled By: MAFUSIRE J

View Appeal HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE Ruled By: MAFUSIRE J

View Appeal HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: MANGOTA J

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Zimbabwe

View Appeal
HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION)
Ruled By: KWENDA J

SC89-21 : KENNEDY NGIRAZI and NAN JIANG MINE (PVT) LTD vs EMMANUEL RENSBURG and MEGAMANIA AUCTIONEERS and SHERIFF OF THE HIGH COURT N.O.
Ruled By: BHUNU JA, MATHONSI JA and CHIWESHE JA

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS
Ruled By: GOWORA J

SC100-21 : PARKHAM ENTERPRISES (PVT) LTD and NYASHA MOTSI vs ADHESIVE PRODUCTS MANUFACTURES (PVT) LTD and THE MASTER OF THE HIGH COURT N.O.
Ruled By: CHITAKUNYE JA

View Appeal
HH485-20 : MIKE MHLANGA vs IRENE MHLANGA
Ruled By: CHIRAWU-MUGOMBA J

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

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

HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

SC132-21 : FRANK BUYANGA SADIQI vs CHANTELLE MUTESWA and OTHERS
Ruled By: UCHENA JA

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

HB37-15 : LAWRENCE CLEMINSON vs BRIAN SHER and RUEBEN POSWELL (as executor in the Estate Late Sally Lieber also known as Sally Zella Lieber)
Ruled By: MUTEMA J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

HH297-21 : MUSA KIKA vs LUKE MALABA and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and THE JUDICIAL SERVICE COMMISSION and THE ATTORNERY GENERAL OF ZIMBABWE
Ruled By: MUREMBA J, KWENDA J and MUSITHU J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

CC15-17 : JONATHAN MOYO vs SERGEANT CHACHA and ZIMBABWE ANTI-CORRUPTION COMMISSION and COMMISSIONER GENERAL OF POLICE, ZIMBABWE REPUBLIC POLICE and PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J