The plaintiff and the defendant were joined in holy matrimony on 13 June 1997, in terms of the Marriages Act [Chapter 5:11]. The marriage still subsists. They had, however, commenced living together as husband and wife, in terms of customary law, in August 1985. Their marriage was blessed with two children, one born on 31 March 1989 and the other born on 17 August 1994.

After several years of apparently happy marriage some unhappy differences arose culminating in the plaintiff issuing summons for divorce and other ancillary relief on 6 July 2010. The plaintiff alleged that the marriage has irretrievably broken down to such an extent that there are no reasonable prospects of restoration to a normal marriage relationship. He outlined the grounds for the breakdown as that:

(a) The defendant has been seeing other men;

(b) The parties are currently on separation; and

(c) Consequently, the parties have lost love and affection for each other.

In the circumstances, the plaintiff sought a decree of divorce.

During the subsistence of the marriage, the parties acquired an immovable property, namely, Stand No.7865 Budiriro 5B, Harare and various movable property. The plaintiff offered the defendant a 25% share in the immovable property with him retaining 75%.

On the movable property, he offered most of the property to the defendant.

He also asked to be given custody of the minor child born on 17 August 1994.

The defendant, in her plea, denied that she was seeing other men. She however did not deny that the marriage has irretrievably broken down as the parties have lost love and affection for each other. She made a counter claim for:

(a) A decree of divorce.

(b) 50% share in the immovable property.

(c) Custody of the minor child born on 17 August 1994.

(d) An order for maintenance in respect of herself in the sum of USD300 per month.

(e) Sharing of the movable property in terms of her counter-proposal in paragraph 6 of her counter claim.

At a pre-trial conference held on 9 March 2011 the parties agreed that:

1. The marriage has irretrievably broken down.

2. Custody of the minor child, born on 17 August 1994, be given to the defendant with the plaintiff enjoying reasonable rights of access.

3. The plaintiff pays maintenance in the sum of USD50 for the minor child.

4. The defendant shall get all the movable property except the following -

(i) Carpet;

(ii) Radio (with amplifier, turner, cassette player and 2 speakers);

(iii) 1 DSTV decoder;

(iv) DVD;

which shall be retained by the plaintiff as his sole and exclusive property.

The issues referred to trial pertained to –

1. The fair and equitable distribution of the immovable property, namely, Stand No.7865 Budiriro 5B, Harare;

2. The quantum of maintenance to be paid by the plaintiff to the defendant for the defendant's upkeep; and

3. Who should pay the costs of suit?...,.

1. What share should each party get in respect of the immovable property, being Stand 7865 Budiriro 5B, Harare?

The evidence from both parties shows that the immovable property was bought after about 12 years from when the parties started living together as husband and wife under customary law. Incidentally, it was the same year their marriage was solemnized in terms of the Marriages Act [Chapter 5:11].

It is common cause that the property was purchased through a loan granted to the plaintiff from Tel-one Pension Scheme. All loan deductions were made from the plaintiff's salary. In as far as payment of the purchase price is concerned the defendant admitted she had no direct contribution.

It was also common cause that the plaintiff paid off the loan in about five years. During that same period he built a pre-cast wall around the property; opened savings accounts for their two children with Building Societies into which he made deposits for the future benefit of the children; he bought a motor vehicle; and, last, but not least, he paid for the defendant's college training in dress-making and tailoring.

This tended to confirm the plaintiff's argument that the loan repayments left him with enough money to comfortably provide for the needs of the family.

It, in a way, dealt a severe blow to the defendant's contention that the loan repayment left the plaintiff with inadequate resources to provide for the family and so she provided for the shortfall.

Whilst the plaintiff's evidence was consistent with his pleadings, the defendant found herself having to alter some aspects of her pleadings in light of what had been accepted as common cause.

For instance, whilst in her plea she contended that she engaged in tailoring and would make clothes for resale in South Africa and locally and that her income from this venture was used to take care of all other expenses at home after the monthly deductions on the plaintiff's salary of the house loan would have rendered his earnings inadequate to cater for the whole family, when the fact that the plaintiff actually remained with adequate resources to pay for other family needs as indicated above, was brought to the fore, the defendant could not refute that.

When quizzed further on her business of tailoring it became evident she only qualified as a tailor after the property had been bought. She further could not, with any amount of certainty, show that whatever she was engaged in, albeit disputed by the plaintiff, brought any meaningful income.

Equally, in her plea, she indicated that one of her sources of income was selling vegetables she grew at the Stand as the Stand was spacious. When the reality was placed on the table that the Stand was not spacious as evident from the plan submitted to court, the defendant altered her position to now say yes inside the Stand there may not have been space but she meant that she also utilized space outside the Stand. Even then, she could not show that such a venture, if ever it existed, brought in anything of substance.

In 1989, the plaintiff and defendant married each other in terms of customary law. Their marriage was however not registered. After a period of about ten years living together in the manner of husband and wife they decided to have their marriage solemnized in terms of the Marriages Act [Chapter 5:11] of the laws of Zimbabwe. Their marriage was thus solemnized on 11 February 1999 at Harare in terms of the Marriages Act. That marriage still subsists.

Their marriage was blessed with two children who were born in 1991 and 1998 respectively.

After a period of about ten years from the year their marriage was solemnized, some unhappy differences between the parties became unbearable and the plaintiff opted to seek a decree of divorce. On 9 April 2010, the plaintiff sued the defendant for a decree of divorce and other ancillary relief.

The plaintiff alleged that the marriage relationship has irretrievably broken down to an extent that it cannot be restored to a normal marriage relationship for the following reasons:

(1) The defendant is verbally abusive towards the plaintiff and generally disrespectful;

(2) The defendant is not financially responsible;

(3) The defendant has lost all love and affection for the plaintiff; and

(4) The defendant has a child born to an adulterous relationship with another woman.

As a consequence of this, the plaintiff believed the marriage has irretrievably broken down. She therefore sought a decree of divorce.

During the subsistence of the marriage the parties acquired movable property of which she sought to be awarded most of that property.

She also sought an order awarding her custody of the minor child with the defendant being ordered to pay monthly maintenance for the upkeep of that child.

She further sought an order for costs.

The defendant, in his plea, denied being abusive and financially irresponsible. He however did not deny that he fathered a child as a result of an adulterous relationship he had with another woman. He equally did not deny that the marriage has irretrievably broken down.

The defendant raised a claim in reconvention.

In his claim, he sought an order distributing the movable property according to his own schedule. He alleged that the parties also acquired an immovable property, namely, Stand No.458 Glen Norah A, Harare. He thus sought an order awarding him that immovable property.

The plaintiff's plea to the defendant's claim for the immovable property was to the effect that that immovable property was bought by the plaintiff alone and not by the parties. It should therefore be awarded to the plaintiff.

At a pre-trial conference, most of the issues were settled. The parties agreed that:

(1) The marriage between them has irretrievably broken down and so a decree of divorce should be granted;

(2) Custody of the minor child, Charmaine Tadiwanashe Sande (born 30 January 1998), be awarded to the plaintiff with the defendant exercising reasonable rights of access.

(3) The defendant pays maintenance for the minor child at the rate of USD50 per month and that he buys a set of school uniform for the child twice a year;

(4) The defendant shall contribute towards the adult child's University education;

(5) The manner of sharing of all the movable property.

The issues referred for trial comprised:

(1) Whether or not the defendant is entitled to claim a share in the immovable property known as Stand 458 Glen Norah Township of Glen Norah, Harare.

(2) If the defendant is entitled to a share in the said immovable property, what share is he entitled to?

(3) Whether or not there should be an award of costs against the defendant.

The plaintiff gave evidence and tendered a number of documentary exhibits in support of her case. The defendant thereafter gave evidence contending that he is entitled to a 60% share of the immovable property....,.

The contentious issue pertains to the immovable property, namely, Stand number 458 Glen Norah A, Harare.

From the evidence adduced in court it was common cause that the parties' first immovable property was a residential Stand in Ruwa. That Stand was bought after the defendant obtained a loan from his employer. Though the parties are not agreed as to the eventual contribution of each one, they are, however, agreed that the Stand was registered in their joint names and that both of them directly contributed to its purchase price. This Stand was sold after the purchase of Stand 458 Glen Norah A (the immovable property in question).

The immovable property in question was acquired in 1999 whilst the Ruwa Stand was sold, at the earliest, in 2000, as that is the year the defendant's loan towards that Stand was paid off. The parties are however not in agreement on the manner in which the proceeds from the sale of the Ruwa Stand were utilized.

The defendant contended that part of the proceeds went towards clearing the balance of the plaintiff's loan for the purchase of the Glen Norah house, partly towards the purchase of a pick-up truck, and the balance towards improvements to the Glen Norah house.

The plaintiff denied that any of the proceeds went towards the Glen Norah house. She maintained that the defendant used all the proceeds, including her 50% share, towards the purchase and repairs to a pick-up truck the defendant stubbornly bought.

The plaintiff argued that she should be awarded the immovable property because she is the one who bought it and she will be the one staying with the children.

She tendered documents showing that she applied for a mortgage loan from her then employer, Standard Chartered Bank. She was granted the loan in the total sum of $455,000 to enable her to buy Stand number 458 Glen Norah A, Harare. This amount comprised the full purchase price of $435,000 and transfer fees. The loan was to be repaid through deductions from her salary over a period of 300 months. She repaid the loan in about five years due to additional income she got from her employment such as staff bonus and profit sharing scheme that her employer devised for its employees. She argued that during the period of loan repayment the defendant did not assist her at all. The defendant had in fact been against the idea of the plaintiff purchasing the house. The plaintiff categorically refuted the defendant's contention that proceeds from the sale of the Ruwa stand were used to pay off her loan.

The plaintiff also tendered the agreement of sale and the Deed of Transfer both showing that they were in her name as the purchaser and owner.

The defendant's evidence was to the effect that he contributed about 80% of the purchase price for the Ruwa Stand whilst the plaintiff contributed about 20%. For the Glen Norah house, the plaintiff's contribution was about 20% by way of loan from her employer and the balance of the purchase price was from proceeds of sale of the Ruwa Stand. He contended that his contribution in the Glen Norah house must be assessed on the basis of his greater contribution in purchasing the Ruwa Stand which, in turn, was a greater contribution towards clearing the plaintiff's loan. In the circumstances, he believed he deserved a 60% share in the Glen Norah house.

The defendant did not however have any documentary proof of his assertions. The defendant's excuse for lack of such proof was that the plaintiff had destroyed all the documents to do with the Ruwa Stand.

At the end it became a question of his word against the plaintiff's word as supported by her documents.

The defendant's position is not supported by certain contradictions and inconsistencies within his evidence. For instance, whilst documentary evidence shows that the plaintiff obtained a loan covering the total purchase price, including transfer costs, at some stage, the defendant gave the impression that the loan was inadequate to pay the full purchase price. When this was shown to him he seemed to retract and to now contend that it is the loan that was cleared by proceeds from the Ruwa Stand. This is epitomized in paragraph 10 of his Summary of Evidence wherein he stated that –

“The defendant will tell the court that all in all the house costed (sic) about ZW$475,000 and the plaintiff only contributed about ZW50,000 which she got from her workplace.”

According to paragraph 8 of that same Summary of Evidence he said:

“However, before the Ruwa Stand was sold, the parties agreed that the plaintiff would acquire a loan from her work place in order to raise a deposit for the Glen Norah Stand. The plaintiff obtained the loan from Standard Chartered Bank where she was working.”

The inescapable conclusion one gets is that the loan applied for, and obtained, by the plaintiff was for the deposit hence it was only ZW$50,000 against a purchase price of ZW$475,000.

The evidence tendered by the plaintiff showed that the loan was for ZW$455,000 to cover the entire purchase price of ZW$435,000 and transfer costs.

The Agreement of Sale, which the defendant confirmed he signed as a witness, has a special clause that the sale was conditional upon the purchaser, who in this case is indicated as the plaintiff, being able to secure a loan of ZW$435,000 from Standard Chartered Bank.

No where in that agreement is it stated the plaintiff was to secure only a deposit. Clearly, the defendant was not being truthful.

I am of the view that Stand 458 Glen Norah A was paid for in full by the loan obtained by the plaintiff from her then employer.

This is an appeal against a judgment of the Labour Court which dismissed an appeal by the appellant (“Murawo”) against the termination of his contract of employment by the respondent, the Grain Marketing Board (“the GMB”).

The background facts are as follows:

Murawo was employed by the GMB as a Safety, Health and Environment Officer. Between 4 March and 7 March 2004 the GMB held a strategic planning workshop (“the workshop”) at Troutbeck Inn, Nyanga. Those eligible to attend the workshop were divisional heads and departmental heads. Officers below departmental heads could also attend the workshop if invited.

Murawo was neither a divisional head nor a departmental head.

On 5 March 2004, Murawo attended the workshop and presented his paper. However, it later turned out that Murawo's attendance at the workshop had not been authorised by the GMB directorate. He was, therefore, asked to leave the workshop.

On 6 March 2004, Murawo left the workshop and checked out of the hotel, but remained within the hotel premises because he had a cheque to give to Mrs Zemura (“Zemura”), the GMB's Public Relations Manager, who was participating in the workshop.

However, Murawo's continued presence at the hotel offended the GMB directorate.

Consequently, the directorate called upon Mhonde, Murawo's head of department, to ensure that Murawo left the hotel premises. Subsequently, Murawo left Troutbeck Inn after giving Zemura the cheque that he was supposed to give her.

Thereafter, on 8 March 2004, Murawo was suspended without pay and benefits on the ground that he had committed two acts of misconduct in terms of the GMB Code of Conduct (“the Code”). In relevant part, the letter of suspension, written by Mhonde, reads as follows:

“On Wednesday the 3rd of March 2004, you communicated to me that the Marketing Director had invited you to the Strategic Planning Workshop. This, however, turned out to be untrue.

On Saturday morning, at about 08.30am, on the 6th March 2004, I told you to leave the Troutbeck Inn immediately as you were not invited to the meeting. However, up to lunchtime you were still at the premises and now purporting to have been tasked by the A/CEO to discuss issues related to workers with the Union representatives, Mr Munodawafa and Mr Mhunza, and present them in the seminar. This also turned out to be untrue.

Given the scenario explained above, Management has decided that you be suspended without pay and benefits with immediate effect, and you are being charged in line with the GMB Code of Conduct as follows:

1. Category I section 1: 'Insubordination – wilful and unreasonable disobedience of a lawful order from a superior'.

2. Category I section 5: '…, activities inconsistent with the express or implied condition of his contract of employment.'…,.

In keeping with the provisions of our Code of Conduct you are required to reply in writing answering to the above charges…,. Your reply must, of necessity, cover the following aspects:

(a) Admit or deny the charges.

(b) Facts to be taken into account if you admit the charges.

(c) If you deny the charges, offer an explanation of the basis of your defence…,.”

On 9 March 2004, Murawo replied to the letter of suspension. His letter, in relevant part, reads as follows:

“I confirm that I did not receive a written invitation to present a paper at the Troutbeck Retreat. I, however, thought, in good faith, that, since this was an important strategic planning session of the organisation our department could take advantage of the gathering of eminent people in the organisation to market the Health and Safety portfolio which was launched some eight months ago.

I prepared a document for presentation. Initially, the presentation was short and just a small section of the presentation of the Engineering Department. I, however, developed a longer presentation which I thought could be incorporated in the Engineering Report. I thought I was contributing to the organisation's cause. I did not know that in doing so I was contravening any section of the GMB Code of Conduct.

Therefore, if at all I contravened category I section 1 and 5 of the Code, the contravention was not wilful.

When I was excused from the activities of the 6th of March 2004, I checked out of the hotel. I, however, realised that I had forgotten to give a cheque I had been asked to bring to Mrs Zemura. As the morning session had already started, I thought it was not wise to disturb the session. I waited for an opportune moment to give the cheque to Mrs Zemura. That moment presented itself at lunchtime and I duly handed over the cheque to Mrs Zemura. At the same time, some apples and potatoes I had ordered away from the hotel, after checking out, were only delivered to me around the same time. I then left for Harare…,.”

On 18 March 2004, Murawo appeared before a disciplinary hearing committee which found him guilty on both counts, and recommended his dismissal. He was subsequently dismissed with effect from the date of his suspension, i.e. 8 March 2004.

Thereafter, on 3 May 2004, Murawo appealed to the Acting Chief Executive Officer (“Muvuti”) against the dismissal. In that appeal he alleged that he had attended the workshop because Mhonde had indicated to him that he (Mhonde) would be comfortable if he (i.e. Murawo) attended the workshop and presented his own paper as an addendum to his (i.e. Mhonde's) report. He also denied being ordered by Mhonde to leave Troutbeck Inn.

Nevertheless, on 30 May 2004, Muvuti dismissed the appeal.

Aggrieved by that decision, Murawo appealed to the Labour Court. After hearing evidence and considering written submissions filed on behalf of the parties, the Labour Court allowed the appeal in respect of the first count, i.e. the count alleging “wilful and unreasonable disobedience of a lawful order from a superior”, but, dismissed the appeal in respect of the second count, i.e. the count alleging that Murawo committed “activities inconsistent with the express or implied condition of his contract of employment.”

Dissatisfied with that result, Murawo appealed to this Court....,.

I now wish to determine whether Murawo was properly found guilty of the act of misconduct specified in section 5.

I have no doubt in my mind that he was.

In the Labour Court, four people gave evidence and were cross-examined. These were Murawo, the GMB Marketing Director (“Makwenda”), Mhonde, and Zemura.

Murawo alleged that he attended the workshop at Troutbeck Inn because he had been invited to do so by Mhonde. That allegation was denied by Mhonde, who said that Murawo had told him that he had been invited to the workshop to present his report by Makwenda. On the understanding that Makwenda had invited Murawo to attend the workshop, Mhonde authorised Murawo's travel arrangements. Makwenda denied that he had invited Murawo to the workshop.

Zemura said that although initially Murawo was not part of the group of people going to attend the workshop he subsequently told her that he had been asked to attend the workshop by Mhonde, and present his report. Acting on that information, she booked him into the hotel.

In his judgment, the Senior President of the Labour Court said the following at pp 24-25 of the cyclostyled judgment (judgment no. LC/H/51/2006):

“On the issue of inconsistent conduct, I am persuaded to agree with the respondent's submissions that the appellant lied and conducted himself in a manner not befitting an officer of his status.

The first lie relates to the issue of who actually invited the appellant to the workshop.

I do not believe that Mr Mhonde ever invited the appellant. The appellant would have said so in his response to the allegations contained in the letter of suspension. Instead, the appellant told the truth by stating the following:

'I confirm that I did not receive a written invitation to present a paper at the Troutbeck Retreat. I, however, thought, in good faith, that since this was an important strategic planning session of the organisation our department could take advantage of the gathering of eminent people in the organisation to market the Health and Safety portfolio which was launched some eight months ago. I prepared a document for presentation….,.'

The above constitutes the truth on the issue of invitation. Any departure from the above cannot be true.

If that were not the case, I would have expected the appellant to go further and say: 'You verbally invited me to present my ten page report as an addendum to yours'.

The appellant does not say so because he knows that he had told his boss that Mr Makwenda had invited him. That was a lie.”

And at p26, the Senior President continued as follows:

“All arrangements for the appellant's attendance at the workshop were based on lies from himself.

The lie to Mrs Zemura was that the Technical Manager (Mhonde) had authorised him to attend, and the lie to Mr Mhonde was that Mr Makwenda had invited him to present a detailed paper on the Safety, Health and Environment Programme. Both officers had then, in good faith, proceeded to facilitate the appellant's attendance at the workshop…,.

My finding, therefore, is that the appellant attended the workshop without authority and that he lied about his invitation. Such conduct was therefore inconsistent with the express and implied conditions of his contract of employment i.e. a violation of the expected degree of honesty and integrity.”

It is clear, therefore, that the learned Senior President made specific findings of fact on the credibility of the four people who testified before him. He found that Murawo had lied, and that the witnesses who testified on behalf of the GMB had told the truth.

As stated by HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa 4ed…,:

“It has repeatedly been laid down that, in view of the advantages enjoyed by the trial court, in seeing and hearing the witnesses, and in being steeped in the atmosphere of the trial, an Appeal Court is, in general, reluctant to disturb the findings of a trial court on questions of fact.”

In the present case, I can find no reason for disturbing the findings of fact made by the Labour Court. In my view, the conclusions reached by the Senior President cannot be described as being so outrageous in their defiance of logic that no sensible person applying his mind to the questions to be decided could have arrived at such conclusions.

The plaintiff testified that he was coerced into signing the affidavit during the course of the meeting. When he was asked why he did not report the extortion to the police when he went to his house to pick up the motor vehicle, he realized the inadequacy of his testimony and altered it to allege that he was only threatened after he had brought the vehicle to the defendant' premises.

This is a labour dispute between the parties. A brief history of the matter is as follows:

The appellant (the Corporation) employed the respondent (Mr Moyana) on 20 October 1980 as a Marketing Executive. The contract was a simple one, providing that his functions were to be assigned to him from time to time. His starting salary was specified and it was provided that "salary reviews are carried out in Nedlaw as and when an executive shows himself to have performed well and produced results."

(Nedlaw was the Corporation's holding company).

There was also provision for one month's notice of termination of the contract to be given by either side.

Mr Moyana became a Training Officer in the Training Department in 1981 and a Principal Training Officer on 9 January 1982.

On 27 May 1986, the Group Personnel and Training Director wrote complaining about certain alleged shortcomings in Mr Moyana's work, and Mr Moyana replied rejecting the complaints. He claimed that the problems arose out of shortage of staff, and pointed out that the Training Manager had been transferred and not replaced. He claimed that his request for a salary review had been ignored and asserted that he was entitled to an acting allowance during the absence of the Training Manager.

The Corporation's Chairman then wrote withdrawing the letter of 27 May 1986 and adding "Your reply dated 2 June 1986 therefore falls away."

Mr Moyana at once responded that he did not withdraw his claim to be paid as a Training Manager from the time the actual Training Manager had left. (He did not, at any stage, rely on an actual appointment as Training Manager).

After a certain amount of bickering, which need not be set out, the Corporation suspended Mr Moyana without pay with effect from 16 July 1986 and referred the dispute to a Labour Relations Officer in terms of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (S.I.371 of 1985).

Thereafter, events developed as follows:

1. On 1 October 1986, the Hearing Officer made a determination that Mr. Moyana be reinstated and paid $12,000 in "Back payment in salary."

2. The Corporation appealed to the Regional Hearing Officer, but, meanwhile, on 6 October 1986, reinstated Mr Moyana as directed.

3. On 22 December 1986, the Regional Hearing Officer upheld the Hearing Officer's decision and increased the "back payment" from $12,000 to $15,184.

4. On 25 March 1987, the High Court, in Judgment No. HH168-87, set aside both these determinations on the grounds of procedural irregularity. In doing so, it commented: "It may well be that, in practical terms, the applicant will be obliged to approach the Labour Relations Officer once again for authority to dismiss the second respondent, but, that is not the concern of this court."

5. Ignoring this advice, and after further criticism by the Corporation's senior officers of Mr Moyana's performance, the Chairman wrote to him, on 28 May 1987, formally terminating his contract of employment and giving him a month's pay in lieu of notice.

6. On 8 June 1987, Mr Moyana referred this dismissal and his claim for an acting allowance of $33,750 to a Labour Relations Officer.

7. The matter was referred to the Labour Relations Board in terms of section 109(2)(d) of the Labour Relations Act, 1985.

8. The Labour Relations Board made determination on 8 April 1988. In summary, it ordered:

(a) Payment of an acting allowance for the twenty-four months preceding the date of the order. Page 307 of 1989 (1) ZLR 304 (SC).

(b) Payment of emoluments from the date of illegal termination to date.

(c) Termination of the contract of employment forthwith (ie with effect from 8 April 1988) on the ground of incompatibility.

9. The Corporation appealed against this decision to the Labour Relations Tribunal which, in an undated judgment apparently handed down on 12 October 1988, ordered as follows:

"1. That the termination of Mr Moyana's contract of employment, as per the Corporation's letter of 28 May 1987, was of no force or effort.

2. That Mr Moyana be and is hereby reinstated as the Corporation's Principal Training Officer without loss of salary or other benefit accompanying his post.

3. That the Corporation pay Mr Moyana acting allowance for carrying out the functions of a Training Manager for a period of 24 months extending from 8 July 1987 and dating back to 7 July 1985 at the rate for the job less his salary as Principal Training Officer.

4. That there be no order as to costs."

Against this order, the Corporation appealed to the Supreme Court. It alleged a number of procedural irregularities and sought a reversal of each of the orders made by the Tribunal.

I will deal with them in turn....,.

(B) REINSTATEMENT

It is quite obvious that the Corporation does not want to take Mr Moyana back.

For his part, Mr Moyana has tended to blow hot and cold. On the one hand he accepted his terminal benefits, including a refund of his pension contributions, after he was "dismissed" in May 1987. At times, in his argument, which is not always easy to follow, he seemed to accept that the termination of his employment was inevitable and acceptable to him. Thus, at p51 of the transcript of the submissions before the Tribunal (although it is headed "Labour Regulations Board" it is clearly the proceedings before the Tribunal) he is recorded as saying:

"In the final analysis also, the termination of the…, I think it was very fair. Secondly, the fact that they are saying: 'why did you not contest', whereas, in all honesty, in management, you would not want to be seen to be forcing yourself on people when it has become obvious the sun has set. All I can ask through your office, My Lord, is that they should desist from following me up. We should be allowed to part amicably…,."

A little later, he seems to go back on that statement and says categorically:

"I would like to be reinstated. "

Overall, however, one gains the very strong impression that he sees reinstatement as a bargaining counter. He wants to establish his claim to have been wrongfully dismissed, and it is in that sense, really, that he speaks of reinstatement. What he wants is to have the dismissal set aside, to have his financial rights determined, and then to part company with the Corporation.

Under cross-examination, Evis Monica Mutodi confirmed that when they visited the property in question no work had commenced on it. However, with further probing she appeared uncertain of what the exact position of the property was….,.

Evis Monica Mutodi's evidence was characterized by unmistakable prevarication.

In her evidence in chief she said the initial instruction to sell the property in question was given to her by Ms Elizabeth Chidavaenzi. When questioned by the plaintiff's counsel in what form the instruction came, she said it was Ms Chidavaenzi's practice to put instructions on an agreement of sale for Fingold Real Estate.

Probed further, she said such instructions had been given to her over the telephone.

When that averment was further tested under cross-examination she changed and said the instructions were in fact given to Mrs Alec over the telephone in her presence but conveniently claimed not to have heard everything that was said.

In one breadth she said she was given the instructions in agreement form and that she had herself taken that initial instruction to the defendant's lawyers. When further probed she changed her story and said that those initial instructions to sell the property were in fact given to Fingold Real Estate typists.

The record of proceedings, particularly where this witness was cross-examined, will reveal a sorry state because at the end of her evidence she had presented a hopelessly confusing piece of evidence.

It must be remembered that this witness was very critical to the defendant's case in that she was supposed to provide the nexus between the original instructions to Fingold Real Estate by Ms Elizabeth Chidavaenzi leading to the alleged contractual agreement with the defendant.

That nexus was heavily compromised by the prevarication which characterized Ms Mutodi's evidence.

Against that prevarication is the clear and concise evidence of Ms Chidavaenzi which was to the effect that she did not authorize or mandate Fingold Real Estate, or anyone for that matter, to dispose of the property in issue.

The two defence witnesses also contradicted each other on when the money was paid. 

Tedius Kagande averred that it was paid at the plaintiff's home. The defendant prevaricated. In his evidence in chief he averred that it was paid at the plaintiff's home while under cross examination he alleged that it was paid after the affidavit had been compiled.

In her pleadings, the plaintiff's position was that the two immovable properties be shared equally between the parties. In her evidence she then altered her position, suggesting that Stand 1865 Uplands, Waterfalls be awarded to the defendant and that she be awarded the other property.

In his plea, the defendant..., suggested that the Mainway Meadows property be shared in the proportions 10% to the plaintiff and 90% to himself. At the trial, his stance was that the plaintiff be awarded 30% in the Mainway Meadows property and 70% be awarded to him.

It will be seen that whereas in her pleadings the plaintiff had claimed a 50% share in the value of the Parklands house, when she testified, she shifted from this position and sought to claim the whole house.

The court could not accept that position, for, by doing so, the plaintiff was demonstrating an element of greed or a desperate effort to claim what the disallowed amendment was designed to achieve.

Naran was an unreliable witness who was not worth to be believed....,. He sought to distance himself from his pleadings...,.

The plaintiff gave her evidence in an honest and forthright manner. Her demeanor was good, and, although she was subjected to a lengthy and detailed cross examination she did not get angry or lose patience. She stuck to her story and answered questions put to her politely. She was candid with the court and made concessions which were against her interests. For instance, she admitted that Tafadzwa's grades at some point were very low and that was because their living conditions were not good. When testifying about the distribution of the property she conceded that the defendant deserved a greater share as he had contributed more. I have no difficulty in accepting her evidence over that of the defendant's wherever there is a material conflict.

It was apparent to the court that the defendant was not being honest with the court. The truth had to be forcibly prised out of him. For instance, he insisted that Yolanda Madondo was his wife and denied that he was committing adultery when he was quite aware that he was married in terms of a law which only allowed him to have one wife. He denied that he had been convicted of an assault on Diana until the plaintiff produced the admission of guilt fine receipt which he paid at the police station. He was also asked if the plaintiff was a director and shareholder of Mainland Business Merchant and he denied this only to change his story when the counsel for the plaintiff referred him to the relevant exhibits which show that she was indeed a director and shareholder of the company. He further stated that the matrimonial home was purchased in 1991 and yet he could not explain why during that period he moved his family on no less than three occasions going into rented accommodation when he owned the house. At some stage he even rented the property next door to the matrimonial home.

In her pleadings the defendant claimed fifty percent (50%) of the value of the immovable property. At the settlement conference she placed her claim at forty percent (40%) of the value of the property. At trial she said that she was entitled to seventy percent (70%) of the value of the property.

The plaintiff issued summons on 23 July 2007 claiming the following relief:

“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the 1st defendant, a descendent of the Rushangwe/Vusangwe family, has no title or claim to the Mapanzure chieftainship;

(c) An order removing the 1st defendant from his position as Chief Mapanzure;

(d) An order declaring the 8th to the 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) acted contrary to custom when they recommended the appointment of 1st defendant as Chief Mapanzure; and

(e) An order of costs against any of the defendants who may oppose this application.”

On 12 October 2009, the plaintiff amended his prayer by the deletion of the first three claims.

Therefore, the only main issue for determination is whether or not the recommendation for the appointment of the current chief, the first defendant, was in compliance with the customs of the Mapanzure people.

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

The plaintiff produced, as part of his exhibits, a copy of an extract of a report prepared on the chieftainship in 1965. It is not clear who the author of the report was.

The first defendant produced a copy of minutes of a meeting held in the District Commissioner's office on 5 December 1973. The then District Commissioner, who chaired the meeting, was one W.E.J. Henson. Present at the meeting from the Mapanzure people were Mangwande from the Chihava House, Mutubuki and Tafunda from the Chatikobo House, Mbombe from the Mutukwa House, Rawasindadi from the Zingoni House, Manyoka (Acting Chief) and Mazorodze from the Gwenhamo House.

Both documents contain the genealogy of the Mapanzure chieftainship.

The parties were in agreement that the genealogy reflected the chieftainship. They both relied extensively on the documents in support of their respective positions.

The following history of the Mapanzure chieftainship, which is explained in these two documents, appears to be common cause.

The great-great-grandfather of the chieftainship was Mutuna. After him came Muravu (2nd generation), then Mapanzure (third generation) and then Mazorodze and Mavhengere (4th generation). Upon the death of Mapanzure, Mazorodze became the chief. It is not in issue that Mavhengere did not succeed to the chieftainship because he pre-deceased Mapanzure.

Mazorodze had more than 30 sons falling under the 5th generation. These sons constitute what is referred to as “Houses” in this judgment. However, only thirty (30) sons appear in the genealogy. It is necessary to list these sons according to their seniority as they appear in the genealogy. These were:

1. Mupandasekwa 16. Rutoro

2. Chimbuya          17. Kuvengashe

3. Kufandada          18. Rima

4. Zingoni                19. Mutukwa

5. Chatikobo            20. Gowo

6. Musinazano         21. Chirudumwa

7. Chihava               22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema              24. Wushe

10. Magwirokona    25. Bgwango

11. Tsungirai             27. Vushangwe/Rushangwe

12. Zishiri                 26. Tirivahera

13. Mutodzaniso        28. Gwenhamo

14. Hapanyengwi       29. Chivendera

15. Tavareva              30. Taiziziva

The names in bold are the names of Mazorodze's that the plaintiff allege were selected by Mazorodze for eligibility to succeed to the chieftainship. These are also some of Mazorodze's sons who succeeded to the chieftainship.

The eldest of Mazorodze's sons was Mupandasekwa followed by Chimbuya.

Upon Mazorodze's death, the next chief was Chimbuya because Mupandasekwa had pre-deceased Mazorodze. The last chief among Mazorodze's sons was Gwenhamo who died in 1973. The next chief was Masimba Shumbayawonda. He was Mazorodze's grandson and of the sixth generation. Masimba Shumbayawonda died on 8 June 1987. In 1995, the first defendant was appointed the chief. He, like Masimba Shumbayawonda, falls under the 6th generation. The plaintiff is Mazorodze's great grandson. He is the son of Chitana, Mazorodze's grandchild. Chitana was Chimbuya's son. Chitana was of the 6th generation. The plaintiff, being Chitana's son, therefore falls under the 7th generation.

Plaintiff's case

The plaintiff testified that he was 69 years old. He resided in Waterfalls, Harare. He was a member of the Chimbuya House. The customs of the Mapanzure people was that chieftainship revolved according to the order of House. There were only seven houses out of more than 30 houses that were eligible for chieftainship. Mazorodze, his great-grandfather, had several wives and he gave instructions that the chieftainship would revolve among the sons of his first wife. The seven royal Houses were those of Chimbuya, Chatikobo Magwirokona, Zishiri, Bwangundoga, Shumbayaonda and Gwenhamo.

Upon the demise of an entire generation of the royal Houses, the chieftainship would move to the next generation and rotate again within those royal houses. He disputed that chieftainship was on the basis of seniority within a given generation of the Mapanzure family as a whole.

His evidence was that even where the next household had a young son or a daughter, the son or daughter would be eligible to the chieftainship despite the fact that there may have been an elderly person within the Mapanzure family. The house would not be passed over on the basis that the next chief in that house was young.

He testified that the last chief, Masimba, was from the Shumbayaonda family. Had the 8th to 10th defendants (the District Administrator, the Provincial Administrator, and the Minister of Local Government, Public Works and National Housing respectively) observed the proper custom of the Mapanzure people, the chieftainship should have gone to the Chimbuya House and not to the Vushangwe house from which the first defendant hailed. The Vushangwe house was not a royal house.

It was his evidence that he was supposed to have been eligible for selection as the next chief instead of the first defendant because he was from a royal house.

He also stated that the proper procedure had not been adopted when Masimba Shumbayaonda was appointed chief following the death of Gwenhamo. The chieftainship should have gone to the Chimbuya House.

He further explained, that, according to their custom, upon the death of a chief, a meeting would be convened to select the next chief. Initially, the meeting was confined to the seven royal Houses. After the meeting had selected a chief, the other members of the clan would then be involved. The District Administrator (8th defendant) would only be advised of the selection after the meetings of the royal Houses and the clan.

This traditional meeting of the royal Houses was not convened and the first defendant was not selected by the royal Houses.

He frequently goes to the village (at least once or twice per month) and would have known if such a meeting had been held. He only became aware of the appointment of the first defendant sometime between 2003 and 2005 through rumours when he had gone to attend a funeral. It was his evidence that the appointment of the first defendant was with the collusion of a councillor called Manyoka, without any reference to the Mapanzure people. Manyoka had grown up together with the first defendant and he may have thought that if the first defendant were to die he would be the next chief.

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

Luckson Jayadhara Chimbuya testified that he was 66 years old and also hails from the Chimbuya House. He had resided in the Mapanzure rural area for all his life. There were seven houses which were eligible for chieftainship. In terms of their custom, the Mapanzure chieftainship would rotate within the seven houses and among the “fathers” of those houses in their order of seniority.

Upon the death of Mazorodze, the chieftainship went to Chimbuya and not to Mupandasekwa's house because Mupandasekwa's children were still too young. When Chimbuya died, the chieftainship was supposed to go to Kufandada. The appointment of Masimba Shumbayaonda as chief, after Gwenhamo, was not in accordance with their custom. The chieftainship should have come to the Chimbuya house.

However, under cross-examination, he testified that the chieftainship had rotated the line of Mazorodze's sons and it was the turn of Mazorodze's grandchildren. When Masimba was appointed as chief, the elders had realised that he was the eldest grandchild.

He testified that the traditional meeting to select a chief, after the death of Masimba and before the appointment of the first defendant, was never convened. He would have known of this meeting as he resided in the rural areas. He only became aware that the first defendant was a chief well after his appointment.

First Defendant's case

The first witness for the first defendant was Pesanai Herbert Gosho Chatikobo. He testified that he was 71 years old and was from the Chatikobo house. He has resided in the Mapanzure rural area all his entire life. Mazorodze was his grandfather. Chimbuya and Chatikobo were brothers. Chimbuya was from Mazorodze's senior wife and Chatikobo from a junior wife.

In terms of their custom, chieftainship revolved according to seniority of the “fathers” within a generation. He narrated the history of the Mapanzure chieftainship up to the appointment of the first defendant. He disputed the plaintiff's evidence that only seven sons had been chosen by Mazorodze to succeed to the chieftainship. He further disputed that the chieftainship revolved according to those seven houses as suggested by the plaintiff. His evidence was that all the Mapanzure houses were eligible to succeed to the chieftainship. The houses are considered as one and the same house and chieftainship therefore follows the eldest surviving “father” in a given generation irrespective of the house from which he hails.

His evidence was that Gwenhamo was the last surviving “father”, being Mazorodze's son. Upon his death, the chieftainship went to the next generation of “fathers”. Masimba Shumbayawonda was appointed chief because he was the eldest surviving “father” within his generation.

When Masimba Shumbayawonda died, a meeting of the houses was convened by the then acting Chief Masimba to select the next chief. The meeting was held at the homestead of the late Chief Masimba. He could not remember if representatives of the Chimbuya family attended the meeting. The houses had initially selected Mavhengere, from the Chatikobo house, as the next chief. The houses also agreed, at that meeting, that the first defendant was the next eldest surviving “father” after Mavhengere. Mavhengere however died before his appointment hence the appointment of the first defendant as the next chief. The appointment of the first defendant was therefore in accordance with the custom of the Mapanzure people.

The first defendant took the stand.

However, it became apparent that he could not follow the proceedings and recall past events due to his advanced age. He therefore did not testify.

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

He acted as an advisor to the first defendant. He testified that the selection to chieftainship was based not according to houses but according to the seniority of the surviving “fathers”. When Mazorodze died, his first son, Mupandasekwa, had pre-deceased him. Chimbuya was the second son and therefore next in line. Chimbuya had not been living among the Mapanzure people. He had to be recalled to take up the chieftainship because, according to their custom, young brothers could not take chieftainship if there was a surviving elder brother. As a result, it was possible for people from the same house to succeed each other if they were the eldest surviving brothers in that generation. He explained that this was the reason why other houses had not ascended to the Mapanzure chieftainship over the years.

When Gwenhamo died, the sons of Mupandasekwa, Chimbuya, Kufandada and Zingoni would have been older than Masimba Shumbayawonda who succeeded him. However, Gwenhamo ruled for a very long time and these sons had predeceased Gwenhamo. Masimba Shumbayawonda was then found to have been the eldest among Mazorodze's grandchildren hence his selection and appointment as chief.

He disputed, under cross examination, the suggestions by the plaintiff's counsel that collateral succession means succession according to houses.

The witness conceded that he had not attended any meeting to choose the first defendant as the next chief. He however testified that the first defendant was residing in Rushinga, Mount Darwin when he was selected as chief. The Mapanzure people invited him, as they had invited Chimbuya, to come and take up the chieftainship. He disputed that the first defendant had connived with the councillor, Manyoka, that he be selected Chief Mapanzure.

Assessment of Evidence

The plaintiff appeared not to be sure of the custom of the Mapanzure people on the appointment of chief Mapanzure. This confusion is aptly captured by counsel for the plaintiff in paragraph 6 of the plaintiff's closing submissions. It is necessary to quote the entire paragraph of the submissions. Counsel for the plaintiff stated as follows:

“The witness indicated that the last chief was Shumbayaonda, and that after the death of Shumbayaonda, the next house in line was that of Chimbuya. However, the witness could not explain how this succession would dovetail with the custom abovementioned. The witness was keen to show that the house of Vushangwe was not eligible at all to ascend to the Mapanzure chieftainship.

The witness explained that Mapanzure often took two wives from the same family. However, only the first son from the first wife would become eligible for chieftainship.

Under cross-examination, the witness did not convincingly expound on how this mode of succession actually worked. This became clearer when cross examination was made with the assistance of pages 1-6 of Exhibit 2. The witness then altered his stance and maintained that, assuming the first defendant was eligible for chieftainship, he could not assume the Mapanzure chieftainship because his turn had not yet arrived.

In this vein, the witness contended that if the last chief had come from Shumbayawonda, the next house to provide a chief would be Chizema, followed by Magwirokona; first defendant's house would be number 18 in the line of precedence if houses of chieftainship, as shown on pages 3-6 of Exhibit 2, were followed. The witness dismissed as untrue the contention by the first defendant that chieftainship would go by seniority.”

The concession by counsel for the plaintiff, that the plaintiff was confused, was, in my view, proper. I commend him for making the concession.

The plaintiff could not identify Mazorodze's children from the first wife. He also did not know if the houses that he had identified as the royal houses were from the first wife.

This explains the difficulty that he experienced in explaining how succession by Mazorodze's sons from the first wife actually worked. This mode of succession was not supported by the fact that Chatikobo, who was Mazorodze's son from a younger wife, and not the first wife, ascended to the chieftainship.

In any event, the plaintiff's evidence was further confused and confusing in that the first wife would only have one first son.

The plaintiff's evidence, that Mazorodze selected his first wife's eldest son to form a royal house, begs the question as to how many first wives Mazorodze had who gave birth to all the chiefs in the 5th generation.

The plaintiff further testified that chieftainship revolved according to houses such that even a young child in that house, or a woman, would ascend to chieftainship if it was the turn of that house. The plaintiff testified that Mupandasekwa is one of the royal houses. He conceded that although Mupandasekwa pre-deceased Chimbuya, he had young children when Mazorodze died. He could not however explain why these children did not ascend to the chieftainship upon the death of Mazorodze if succession was according to houses regardless of the age of the children in that house.

The following is the plaintiff's evidence, under re-examination, on that issue:

“Q: On page 3 of exhibit 2, under cross-examination, it was stated that those are Mazorodze's sons starting with Mupandasekwa. Mupandasekwa died whilst his father was alive. When a father died the chieftainship went to whom?

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

A: These are the fathers who were supposed to take up chieftainship.

Q: Read out the names of the first five fathers (Mazorodze's sons).

A: (plaintiff read out the names)

Q: You said Mupandasekwa had two children. If Mupandasekwa dies would chieftainship go to Makatu (Mupandasekwa's son)?

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

A: After the line of fathers had died, the chieftainship would then go to the children.

Q: Defendant says if Shumbayawonda dies there would be a meeting to find the oldest of the surviving fathers and that person becomes chief.

A: That is not correct. In the event that Shumbayawonda died, the next house would be Chizema.

Q: I put it to you that the eldest surviving child becomes the chief. If the chieftainship is in the line of brothers, the eldest brother becomes chief. If all the brothers die, then the eldest son of those brothers becomes chief.

A: That is correct. The eldest surviving brother takes up the chieftainship; if no brothers, then the eldest son.

Q: You seem to be contradicting yourself. I thought you said that chieftainship follows houses, even the smallest; now you are saying it's the brothers first.

A: It might be that you misquoted me. I said if Chimbuya house was supposed to take up chieftainship, and there are no old children, then the youngest in the family succeeds.”

The plaintiff's answers are inconsistent with his claim, that the only the royal houses succeeded to the chieftainship and that it was not on the basis of seniority.

The applicant seeks a declarator that it is the lawfully registered holder of mining claims called Kapata 11, registered number 11769BM held by certificate of registration number T30249.

All the respondents have opposed the application mainly on the ground, that, the applicant's said claims overpeg already existing and registered claims of the third respondent.

Sometime in 2001, Kapata Syndicate hired an approved prospector, Mr Mguni, to conduct investigations and carry out due diligence search with a view to establish if it was appropriate to prospect, peg, and register three (3) special base metal block claims in the area. Mr Mguni duly carried out the work which cleared the area for pegging resulting in the three (3) claims being registered and registration certificates number 11768BM, 11769BM and 11770BM being issued to Kapata Syndicate by the Mining Commissioner, Bulawayo.

The claims are located in the Dete area of Hwange.

Work on the area commenced thereafter to develop it resulting in boreholes being sunk and equipped, road networks were opened, geological exploration, mining engineering work, metallurgical plant designs and so on were done.

In 2002, the claims were transferred from Kapata Syndicate to the applicant.

The applicant maintained, and paid for, the claims throughout in accordance with the provisions of the Mines and Minerals Act [Chapter 21:05] ('the Act').

By letter dated 9 July 2009, Zimbabwe Mining Development Corporation ('ZMDC') complained to the first respondent that the applicant's claims over-pegged extant claims belonging to the third respondent. The locus stand in judicio of Zimbabwe Mining Development Corporation (ZMDC) having been questioned at the hearing, counsel for the third respondent submitted that this entity owns the third respondent 100%.

It turns out, that, in 1977 and 1979, the third respondent had pegged and registered certain Kapata claims some of which may have been encroached by the applicant's claim number 11769BM. The position is not clear, but, what is pretty obvious is that a pegging dispute has therefore arisen. Both the applicant and the third respondent appear to hold title to conflicting claims.

In response to the complaint made by the third respondent, the first respondent addressed a letter to the Secretary for Mines, dated 19 August 2009, in which she stated, that, a survey conducted by the Regional Survey Department had shown that the applicant's claims encroached onto the third respondent's claims and should thus be relocated.

Clearly, therefore, the first respondent determined that the applicant should relocate to those of its claims which did not overpeg the third respondent's claims. This was confirmed by the Chief Mining Commissioner who said the applicant's claims must be cancelled.

It is pertinent that the first and second respondents have proceeded on the premise that the applicant's claims have been cancelled and that the first respondent's decision to cancel was based on a survey by the Regional Survey Department whose officials she says state that the third respondent's beacons were in place and that the applicant went to peg its own claims despite the existence of beacons.

This conclusion is in sharp contrast with what the Regional Mining Surveyor says in his letter of 8 December 2009 addressed to the Regional Mining Engineer which reads as follows:

''Re: Survey of dispute between Kamativi Tin Mines and BMG Mining claims

This minute is a reply to your request of the need to see the survey report of the beacons mentioned by the Mining Commissioner concerning the above issue. It is alleged, that, the Regional Survey office carried out a survey in the area and it was one of the fact (sic) that the Mining Commissioner used to determine the results of the dispute. The dispute was never ever brought to the attention of the Regional Mining Engineer's Department – Bulawayo.

I categorically state, that, there was no survey work carried out in connection with the dispute, that is the survey that helps the Mining Commissioner in reaching the conclusions in the determination of the dispute concerning the blocks of claims.

Mr Alex Saurombe, on or about 20 February 2008, approached the Survey office requesting for a GPS Survey to be carried out in his three special blocks of base metal claims (Kapata 1, Kapata 11 and Kapata 111) for the purpose of producing a general Surface Plan.

Before the survey was done, the Survey office checked the status of the blocks of claims to verify whether they were current or not, and, whether the blocks of claims are marked on the claims plan of the state to a scale of 1:25,000 that is under the custody of the Mining Commissioner.

The BGM claims were found to be in order and marked clearly on the claims plan and there were no Kamativi blocks of claims appearing on the claims plan or plans kept by the Mining Commissioner. The Survey office was satisfied with the search.

Therefore, the Mine Surveyors went out into the field with the full knowledge that they were stepping on and carrying out the requested survey work on BMG Mining claims only.

Denis Eshmael Katema, REGIONAL MINING SURVEYOR''…,.

It is therefore unlikely, that, the findings of the first respondent, regarding the conflicting claims, were informed by a survey conducted by the Survey office as alleged.

Having been disowned by the Regional Mining Surveyor, the first respondent then prevaricated in her opposing affidavit where, at paragraph 8, she says:

“(a) Applicant is now the registered owner of the claim and it is immaterial who did the pegging.

(b) It was an administrative error that Kapata Syndicate was allowed to register claims over current mining locations.

(c) The survey was carried out at the instance of the applicant. Officials from the Regional Survey Department informed the first respondent that Kamativi beacons were in place. Contents of Annexure 'L' are factually incorrect and were not relied on in reaching the decision to cancel the said claims.”

This, coming from a person who earlier on said she relied upon the same survey, is difficult to understand.

The first respondent is definitely not credible in this aspect and it remains a mystery on what basis she decided to cancel the applicant's claims.

What is more, this puts into issue the question whether any beacons belonging to the third respondent existed.

It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings. He cannot have it both ways: S v Marutsi 199 (2) ZLR 370 (S)….,.

The plaintiff's cause cannot be rescued because having denied the mortgage bond, it cannot, at the same time rely on it on the merits.

The plaintiff cannot approbate and reprobate at the same time. That principle is to the effect that a person cannot on the one hand state that a transaction is invalid and then turn round on the other to state that it is valid for purposes of securing some other advantage:

It would be recalled that before they faced litigation, the respondents admitted that Jolie Obert was part of the firm. 

It was only as an afterthought that they sought to distance themselves from her. If there was any merit in their denial of her they would have maintained it from the very beginning.

Where a person has two courses of action open to him and he unequivocally elects to take one of them, he cannot turn round afterwards and take the other course of action. This is because a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings:

In casu, in one breath, the appellant admits giving consent to judgment and in another breath denies consenting to judgment.

Furthermore, the matter was not helped by the appellant's own inconsistent submissions. For example, in his heads of argument the appellant, in one paragraph, maintains that what was placed before the court below was an appeal and the court grossly erred in treating it as a review, but, in the very next paragraph claims that his papers were manipulated to turn his intended appeal into a review.

Hlatshwayo v Mare & Deas 1912 AD 243..., proscribes approbation and reprobation or the taking of two positions that are inconsistent with each other....,.

In the words of DE VILLIERS JP in Hlatshwayo v Mare & Deas 1912 AD 242..., dealing with a similar principle of pre-emption:

“At bottom, the doctrine is based upon the application of the principle that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate.”

In the letter of 3 December 2013, and in the proceedings in the court a quo, the respondents contended that for the appellant to import the components as base stations, the components had to be moved in bond. They have since changed their position and now state that that earlier position had been suggested for the ease or convenience of the appellant and not as a strict rule of law....,.

Counsel for the respondent's earlier submission that all the components had to be imported at once for the components to be taxed as a base station and not disparately at different times was thus effectively retracted.

The appellant did not have a single document to show how the purchase price had been paid. Initially she claimed that the deposit had been paid by bank cheque. The copy of that bank cheque was not produced. She then changed her story and stated it was in fact a bank transfer. She was not able to produce proof of that either.

The following questions were asked by the Board Chairman (TC) and answers thereto were given by the appellant's legal practitioner (MN) at the Appeals Committee hearing:

“TC: Can I continue to ask? We were talking about the anonymous emails and letters. You said you were to agree with you on the issues. (sic) He is agreeing that he circulated the emails?

MN: Yes.

TC: Ok, and with all its contents. It was not tampered.

MN: We don't know the information that was contained. Those emails were never availed to us.”…,.

Further, the following exchanges also took place between the appellant's legal practitioner, MN, and Board members, JN and NM:

“TC: I want to work with the numbers there. Can I have the email he sent talking about the release of blood. The circulation of the anonymous mail which talks of the release of blood. (sic)

NM: NBSZ Bulawayo branch sold an estimated 200 units of blood…,.

NM: Well, I can tell you that from the other matter that I have for him he has clearly distanced himself from that particular email.

JN: Mr Chairman, I am really confused. At one time you saying he did say that there was…, now you are saying he is distancing himself from this email.

MN: He never mentioned quantities in his correspondence so whoever put the quantities is something different. (sic)

JN: You are querying the quantity and not the contents?”

Subsequently, the following exchange ensued:

“TC: Any other questions? I was putting down my questions. I just want to find out so that when we make a decision we have enough complete information. Does he agree he is the author of emails? (sic)

MN: There are some contents that we are disputing honestly.

NM: Did he circulate some emails?

MN: He did circulate some emails but there are others that he did not circulate he is alleged. You know what Mr Chairman the difficulty we have is if we give the blanket an unqualified response (sic) you may interpret it otherwise we need to qualify our response. Specifically he never mentioned the quantities…,.

NM: Does he have the emails he circulated? So that we can at least have the basis of saying these are the ones I circulated and these I did not.

MN: Unfortunately we do not have the emails. The other computer crashed. Some of the emails were wanted by these guys when they instituted some mysterious criminal prosecution so his two laptops are actually captured as exhibits as we speak right now. There is a possibility that maybe or maybe not they may be on the hard drive of those captured computers. …,.

MN:…,. What we are saying is that there are some infractions into his emails some people were employed to hack into his emails so he had to clean up his email accounts and discontinue some of them.

TC: Who were employed?

MN: By people whose names we are going to reserve.”

Without quoting the whole text of the ensuing exchanges, suffice to quote the following answer given by the appellant's legal representative to a question from a Board member:

“…, all these acts of misconduct he was being victimised because he raised a red flag and the audit report confirmed the issues.” (sic)

In light of this exchange, on a balance of probabilities, the appellant admitted, through his legal practitioner, that he is the one who published the emails in issue. He seems to prevaricate and avoid giving simple or straight forward answers. He also purports to take issue with some of the content of the e-mails and seeks to create an impression that his email accounts were hacked and the hackers added some content relating to quantities, into emails that he authored, which content was not authored by him thereby producing the objectionable overall content. At the same time, the appellant also seems to justify his authoring of the emails on the basis that the content thereof or the issues raised therein are, after all, true.

In his evidence, the defendant changed his position and said Belgravia House is not owned by Stircrazy Investments (Pvt) Ltd, as per his plea, but by a company called The Right Investments (Pvt) Ltd. The defendant was not able to explain this contradiction in his evidence….,.

The defendant had alleged (as per the cross examination of the plaintiff) that George Nyashanu was a shareholder in Stircrazy Investments (Pvt) Ltd only to somersault later in his evidence alleging that one Bret Lang and his sister, Debra Banks, are the shareholders.

In my view, the application was completely devoid of merit.

No wonder during the proceedings the applicant shifted ground and sought to rely on facts that had not formed part of the application.

It is difficult to follow what exactly the first defendant's position is in this case.

The ambivalence nature of paragraph two of its plea casts doubt on the bona fides of its plea. In one breadth it makes an averment that there was no agreement and in another it then says if such an agreement existed, it must have been breached by the plaintiff….,.

The first defendant must not be allowed to approbate and reprobate at the same time.