This matter was placed before me through the Chamber Book on 25 January 2012.

After I perused the papers, I directed that the matter be set down for hearing the next day.

On this day, the parties addressed me on the issue of urgency. I found the matter to be urgent and the respondents asked for more time to prepare and file their opposing papers which indulgence was granted.

The hearing was postponed to 31 January 2012.

The applicant seeks the following interim relief;

“INTERIM RELIEF

Pending the determination by this Honourable Court of the issues referred to above, it is ordered that:

1. The First to Fourth Respondent be and are hereby interdicted from disposing of the immovable property in the name of the First Respondent to any third party, registered under Deed of Transfer Number 1598/11, pending confirmation of this order.

SERVICE OF PROVISIONAL ORDER

Copies of this Provisional Order shall be served upon the Respondents by the applicant's legal practitioners.”

In its founding affidavit, the applicant's director makes the following averments:

The applicant bought 50% shareholding in the first respondent on or about 9 June 2009 under a Sale of Shares agreement for US$600,000 under certain terms and conditions. This sum, it is contended, has been paid in full. The first respondent is resisting the transfer of shares in favour of the applicant. As a result, the applicant has instituted proceedings in this Court compelling transfer.

In the meantime, the applicant has learnt that the respondents are seeking to dispose of the only immovable asset owned by the first respondent, being a business premises.

The applicant's director confirms that people in the oil industry have visited the service station to inspect the premises. The applicant fears that if this asset is sold, it will suffer irreparable harm as it is the only asset in the first respondent's books. The applicant states that it has no other remedy besides seeking the present relief.

On the other hand, the third respondent, as director of the first respondent, stated the following;

The agreement of sale was concluded in August 2009. The full purchase price was to be paid by 1 November 2009. The applicant failed to pay the full purchase price by that date. As a result, the agreement of sale was duly cancelled and a refund of the payment made towards the purchase price tendered to the applicant's legal practitioners.

The applicant has not made any effort to supply its bank account details to the respondents to facilitate transfer of the said payments.

Because the sale was cancelled, the first and second and third respondents believes the applicant has no right to be at the premises.

The third respondent states that the second respondent, who is his mother, is entitled to sell her shares in the first respondent but does not wish to do so at this point in time.

The third respondent avers that the premises are owned by three shareholders. He states that he is entitled to sell his shares since they are not subject to any legal dispute, and, in any event, even if the applicant were to succeed in the matters before the courts, all the applicant will be entitled to is only 50% share of the premises and not the entire property. He confirms that he is seeking to sell his 40% share but goes on to assure the court that since the second respondent does not wish to sell her shares till the matter pending before this court is resolved, there is no prejudice to the applicant's interests should he succeed in selling his assets.

According to the third respondent, the applicant seeks to interdict the sale of immovable property wherein it has no prima facie right, and, therefore, not entitled to the title deeds.

Counsel for the applicant pointed out that there is a matter pending before this court in HC1589/12. The issue for decision in that matter is whether the sale of shares agreement entered into by the parties is liable to be cancelled or whether the applicant is entitled to take transfer of the shares in the first respondent.

The first respondent is the registered owner of the immovable property, a petrol station, subject of this application. The third respondent holds the other 40% and there have been attempts to sell this shareholding. The fourth respondent confirms this in his affidavit.

Should the applicant succeed in HC4208/12, then, it would be entitled to the 50% shareholding in the first respondent, which translate to a right to claim 50% share of the immovable asset subject of these proceedings.

By Article 5(b) of the first respondent's Articles of Association, the applicant will be entitled to a right of pre-emption of the remaining 50% shareholding in the first respondent which the third respondent has attempted to sell. Such sale, in the present situation, would result in irreparable harm to the applicant.

On the facts admitted by the respondent, counsel for the applicant agreed, the applicant is entitled to the relief it seeks.

Counsel for the respondents argued, that, on these facts, the applicant is not entitled to the remedy of an interim interdict since, to start with, the sale which would have entitled the applicant some prima facie right to the immovable property was cancelled.

In short, according to this argument, the applicant has failed on its first hurdle.

Second, there has to be an actual or reasonably apprehended injury.

As the applicant's rights were extinguished by the cancellation of the sale, the applicant could not possibly reasonably entertain such fear of injury to non-existent rights.

In any event, even if the court held that the applicant has some right capable of injury, since any sale of property under administration by the executor is a nullity, the applicant could easily seek the setting aside of the sale with ease. As such, there are other remedies should the applicant's rights suffer any harm at the hands of the respondents.

Counsel for the respondents argued that the application before this court related to immovable property whereas the conduct giving rise to the urgency was the third respondent's dealings with his shares in the first respondent.

If I understood her correctly, which I am sure I did, her argument is that the present application seeks to interdict the sale of the immovable property. As there is no application being made against the third respondent's dealing with his shareholding in the first respondent, then, the application, in its present form, cannot succeed.

I need not show to counsel the effect of the order sought but it seems necessary to do so.

The claim by the applicant is that the third respondent seeks to sell his shares in the first respondent. This entails a share transfer. Such sale of shares is, in effect, sale of the immovable property in question because share transfer arises where the property is owned by a company as its sole asset. Instead of transferring the property from the company to the purchaser, the company retains ownership of the property and the shares in the company are sold to the purchasers.

It seems to me, seeking to interdict the sale of immovable property by the respondents will achieve the same result which an interdict against share transfer would achieve.

I agree with counsel for the applicant, that, the applicant has established a prima facie right to some share in the immovable property owned by the first respondent. 

The validity of this share is subject of the litigation in HC4208/12.

This is a Chamber application in which the applicant, the Zimbabwe Open University (hereinafter referred to as "the University"), seeks the following relief –

(a) An order that the appeal, SC25-12, be heard on an urgent basis; and

(b) A stay of the sale in execution of the University's property, attached in pursuance of an arbitration award it has appealed against.

The first respondent is Gideon Magaramombe (hereinafter referred to as "Magaramombe"). The second respondent is the Deputy Sheriff of Harare.

Magaramombe was formerly employed by the University as a lecturer. The University terminated Magaramombe's contract of employment. Magaramombe now disputes the termination of employment and contends it was unlawful. The disputed termination was referred to an arbitrator for determination. The dispute was determined in favour of Magaramombe and the arbitrator ordered that Magaramombe be reinstated or that alternatively he be paid damages in lieu of reinstatement.

The University appealed to the Labour Court against the arbitrator's decision in terms of section 98(10) of the Labour Act [Chapter 28:01] (hereinafter referred to as "the Act"). The University also applied to the Labour Court for an order suspending the arbitral award pending the hearing of the appeal.

That application was made in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act.

Magaramombe elected to be paid damages in lieu of reinstatement and requested the arbitrator to quantify the damages due to him.

During the quantification proceedings, the University unsuccessfully applied for the stay of proceedings, on the grounds that it had applied to the Labour Court for the suspension of the arbitral award pending the appeal.

The application for the stay of proceedings was turned down by the arbitrator, on the ground that an appeal against an arbitral award and an application for interim relief do not have the effect of suspending an arbitral award.

The arbitrator thereafter awarded Magaramombe the sum of $77,302 as damages.

On 26 September 2011, the University appealed against the award of damages and also applied for a review of the award.

On 27 September 2011, Magaramombe applied to the High Court for registration of the arbitral award.

The University did not oppose the application for registration, as it was of the view that there was no need to oppose the application for registration since it had already applied for the suspension of the award to the Labour Court.

The University assumed that the execution of the award was dependent on the outcome of the application to the Labour Court.

The Labour Court granted the University a stay of execution of the arbitral award pending the hearing of the appeal on 3 November 2011.

The High Court registered the arbitral award on or about 14 November 2011.

After the registration of the arbitral award with the High Court, Magaramombe sought to execute the award despite the suspension of the award by the Labour Court.

The University launched an urgent application to stay the execution to the High Court. The basis of the University's urgent application was that the arbitral award that was executed had been suspended by the Labour Court pending the hearing of an appeal against that award by the Labour Court.

The High Court dismissed the Chamber application.

The University noted an appeal against the dismissal.

The University now applies, in Chambers, for the appeal to be set down on an urgent basis and for an order staying execution pending the determination of that appeal.

In dismissing the urgent application, the learned Judge had this to say at pp4-5 of the cyclostyled judgment (HH61-12):

"The last preliminary point was that the matter was not urgent.

…,. Ms Mberi submitted that the applicant sat on its laurels and only acted when the day of reckoning was at hand. She contended that the applicant should have acted on 27 November 2011 when it was served with the notice of registration of the award.

Mr Mpofu made contradictory submissions on the failure to oppose registration.

The first was that the noting of (the) appeal in the Labour Court against the arbitral award automatically suspended the award. The second was that it was hopeless to oppose without first obtaining interim relief from the Labour Court stopping the implementation of the arbitral award.

If the applicant believed that it was on (a) firm footing on the first ground, then all the more reason for it to oppose registration on that point.

But, as events that transpired after it obtained interim relief shows (sic), the applicant believed that implementation could only be stayed by obtaining relief from the Labour Court.

Mr Mpofu did not dispute Ms Mberi's submission that the applicant was aware of the judgment of Dhlodhlo supra, that the Labour Court judgment could not stop a High Court order because the latter is a court of superior jurisdiction.

…,. I agree with Ms Mberi, that, at the very least, with this foreknowledge, the applicant, knowing that the first respondent was seeking registration of the arbitral award, should have diligently searched for the outcome of the application especially after it received the interim relief it sought in order to forestall it.

It was aware that the purpose of seeking registration was to execute.

Armed with the interim order, the applicant was duty bound to either oppose the registration, which was granted on 15 November 2011, or to file an application such as the present one soon thereafter.

I find that it waited until the day of reckoning precipitated by the attachment of 26 January 2011 (2012?) to stay the execution. It did not act with diligence. It sat on its laurels and did not act when the time to act presented itself."

My understanding of the above excerpts of the judgment is that the court a quo made the following two determinations –

(a) The matter was not urgent; and

(b) The execution of the arbitral award could not be stayed because the award had become a High Court judgment whose execution cannot be suspended by the Labour Court.

In this Chamber application, counsel for the University essentially argued that execution of the award of the arbitrator was suspended by the Labour Court, which preceded the registration of the award in the High Court. Consequently, Magaramombe could not execute the award despite its registration with the High Court as the execution of the award had been suspended by the Labour Court by the time it was registered.

In other words, the award that was registered was a suspended award which could not be executed.

Counsel for Magaramombe, on the other hand, initially raised two preliminary points:

She submitted that the Supreme Court had no jurisdiction to hear the Chamber application because there was no valid appeal before the Supreme Court. She argued that the court a quo simply ruled that the matter was not urgent and such ruling was interlocutory. She contended that the University had not obtained the leave of the court a quo to appeal. Leave to appeal not having been sought and granted, there can be no valid appeal before the Supreme Court.

It was also counsel for Magaramombe's submission, that, on the authority of Dhlodhlo v The Deputy Sheriff for Marondera and Three Ors HH76-11, even if the order issued by the Labour Court had stayed execution of the award, such an order was of no force and effect because the award had since been registered with the High Court and thus became a High Court order which cannot be suspended by an order of an inferior court, namely, the Labour Court.

The learned Judge in the court a quo was probably correct in concluding that the University had authored the urgency of the matter before him by delaying the launching of the urgent application until the last minute.

I also accept the submission of counsel for Magaramombe that a determination of whether or not a matter is urgent is interlocutory.

An appeal against such a determination would certainly require the leave of the court a quo. If such leave were granted, the superior court can only interfere with such a ruling on the basis of a misdirection or gross unreasonableness.

In casu, as I have already stated, the learned Judge went beyond ruling on the urgency or otherwise of the matter. The court a quo determined that the execution of the arbitral award could not be stayed on the basis of a suspension order issued by the Labour Court.

The learned Judge reasoned that the Labour Court was inferior to the High Court; consequently, the Labour Court could not suspend a judgment of the High Court. He concluded that once a judgment is registered in the High Court it becomes a judgment of the High Court and cannot be interfered with by the Labour Court.

This determination by the court a quo is not interlocutory. It is a definitive and final determination and therefore appealable by the University without the need for leave of the court a quo.

On this basis, I am satisfied that the Supreme Court is properly seized with the matter and that the relief sought in this Chamber application relates to a matter with which the Supreme Court is properly seized.

In this Chamber application, as I have already stated, the University seeks the relief that the appeal be set down on an urgent basis and that the execution of the arbitral award be stayed pending the hearing of the appeal.

Two issues fall for determination in this Chamber application –

(1) Whether or not this matter should be set down on an urgent basis; and

(2) Whether or not the University is entitled to the interim relief of a stay of execution of the arbitral award pending the determination of the appeal.

I will deal with the second issue first, namely, the entitlement of the University to the interim relief of a stay of execution.

The factors to be taken into account in considering the grant of interim relief are now well settled. These are –

(1) Whether or not the party seeking the relief has a prima facie right: in casu, whether the University has a prima facie right to stay the execution of the sale of the attached property pending the determination of the appeal;

(2) Whether or not the applicant, in this case the University, will suffer irreparable harm if execution of the arbitral award is not stayed and the appeal succeeds; and

(3) The balance of convenience.

Dealing first with the issue of whether or not the University has a prima facie right to the stay of execution pending the determination of the appeal; in effect, the University is appealing against the court a quo's determination that the Labour Court's order suspending execution of the arbitral award is ultra vires because the Labour Court cannot interfere with the process of a superior court.

Whether or not the court a quo was correct in this conclusion is a matter that the Appeal Court will have to determine.

In the event of the Supreme Court determining that issue in favour of the University, the University will have a clear right or entitlement to a stay of execution of the arbitral award pending the hearing of the appeal by the Labour Court.

On this basis alone, the University has established a prima facie case.

In my view, the University has not only established a prima facie case but has very good prospects of success on appeal for the following reasons;

The University appealed against the arbitral award in terms of section 98(10) of the Labour Act [Chapter 28:01]. Section 98(10) of the Labour Act provides as follows:

"98 Effect of reference to compulsory arbitration under Parts XI and XII

(10) An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section."

Section 98 of the Labour Act confers on the University the right of appeal against the determination of the arbitrator on a question of law.

Having noted an appeal against the arbitral award, the University also applied to the Labour Court in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act for the stay of execution of the arbitral award.

Section 93E(3) as read with section 89(1)(a) of the Labour Act provides as follows:

"92E Appeals to the Labour Court generally

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires."

And:

"89 Functions, powers and jurisdiction of Labour Court

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

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment….,."

Quite clearly, the Labour Act conferred on the University the right to apply for the suspension pending appeal of the arbitral award in terms of the above section.

On 3 November 2011, the Labour Court granted the University a stay of execution of the arbitral award. The Labour Court, in doing so, was intra vires the above cited provisions of the Labour Act.

On 14 November 2011, the High Court, upon application by Magaramombe, registered the arbitral award. Upon the registration of the arbitral award, the award became a judgment of the High Court: see section 92B(3) and (4) of the Labour Act.

I entertain serious doubts as to whether the mere registration of the arbitral award with the High Court has the effect of erasing or rendering null and void the prior order of the Labour Court suspending execution of the arbitral award.

That, however, is an issue that will be determined by the Appeal Court.

On the papers before me, it has been established that, in the event of the University being successful on appeal, Magaramombe will not be able to restore the status quo ante.

On this basis, I am satisfied that the University will suffer irreparable harm if interim relief is not granted.

The filing of the appeal was done within the time stipulated by the Rules governing the appeal process. The notice of appeal was subsequently served on the Registrar of the High Court. Despite the noting of the appeal in the Supreme Court, the first respondent proceeded with execution, prompting the applicant to lodge the instant application for a stay of execution.

The first respondent argued that by failing to serve the notice of appeal on the first respondent, the applicant had not complied with the peremptory requirements of Rule 29(2) of the Supreme Court Rules, which requires that once filed or noted, the notice must be served, inter alia, on the respondent..,.

I have no hesitation in accepting it as fact that the notice of appeal filed in the Supreme Court..., was indeed not served on the first respondent. I also accept it as properly established by the first respondent that the failure to serve the notice of appeal amounted to non-compliance with the peremptory requirements of Rule 29(2) of the Supreme Court Rules, 1964.

It is doubtful in my mind if it should be the function of this court to try and deal with the merits or demerits of an appeal which for all intent and purposes is not before it but intended for the Supreme Court. I say so because in terms of our Supreme Court Rules, as currently framed, the Supreme Court has a wide discretion in dealing with the matter placed before it. For good and sufficient cause shown, the Supreme Court may decide to condone non-compliance with its own Rules. See section 4 of the Supreme Court Rules. I find support in the headnote of the case of Hubert Davies Employees Trust (Pvt) Ltd & Ors v Croco Holdings (Pvt) Ltd 2009 (2) ZLR (S)..., where it is stated:

"A notice of appeal which does not comply with the requirements of r29 of the Supreme Court Rules, 1964 is fatally defective. Unless the Court is prepared to grant an application for an extension of time within which to comply with the relevant rule and allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs."

It occurs to me that the process of granting indulgence falls within the province of the Supreme Court and not the High Court, which at this stage is functus officio. The High Court cannot sit as a court and start speculating on what the Supreme Court may or may not do without taking the risk of abusing the court in the appeal process itself. In this regard, I am more inclined to follow the reasoning of the learned Judge GOWORA J when she stated as follows:

"It is also pertinent to note that the appeal is before the Supreme Court and it is my view that it is the Supreme Court which should state whether or not the appeal is null and void for want of compliance with the rules. In the absence of such a declaration, it is not open to this court to find that the appeal is null and void." Mydale International Marketing (Pvt) Ltd v Dr. Rob Kelly and Hammer and Tongues (Pvt) Ltd HH04-10.

In this Chamber application, the applicant seeks an order to depart from the Supreme Court Rules in regard to the set down of a Constitutional Court application made in terms of section 24(1) of the Constitution of Zimbabwe (hereinafter referred to as “the Constitution”).

In other words, this is an application for the hearing of the Court application on an urgent basis.

Both counsel agree the matter is urgent.

I accept that the matter is urgent. I, however, do not accept that the matter should be set down because the Constitutional Court application is fatally defective in that it does not comply with section 24 of the Constitution.

Section 24 of the Constitution is peremptory.

This Court has no discretion to condone a departure from compliance with section 24 of the Constitution. Consequently, failure to comply with the procedure set out in section 24 of the Constitution is fatal to any Court application made in terms thereof.

Although the Court application does not, as it should, state explicitly that it is being made in terms of section 24(1) of the Constitution, it is quite clear from the papers that it is being made in terms of that subsection.

In my view, the applicant cannot proceed in terms of section 24(1) of the Constitution.

The Court application arises from proceedings in the Magistrate's Court and the applicant should have proceeded in terms of section 24(2) of the Constitution. Put differently, the Court application should have come to the Supreme Court by way of referral in terms of section 24(2) as opposed to a direct application in terms of section 24(1) of the Constitution.

The relevant part of section 24 of the Constitution provides as follows:

“24 Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being, or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress.

(2) If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall refer the question to the Supreme Court, unless, in his opinion, the raising of the question is merely frivolous or vexatious.

(3) Where, in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court, then, without prejudice to the right to raise that question on any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).

(4) The Supreme Court shall have original jurisdiction -

(a) To hear and determine any application made by any person pursuant to subsection (1) or to determine without a hearing any such application which, in its opinion, is merely frivolous or vexatious; and

(b) To determine any question arising in the case of any person which is referred to it pursuant to subsection (2); and may make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights:

Provided that the Supreme Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are/or have been available to the person concerned under other provisions of this Constitution or under any other law.”

Thus, section 24 of the Constitution is very explicit in the following two respects -

(1) A party alleging violation of a guaranteed Constitutional right can approach the Supreme Court directly in terms of section 24(1); and

(2) If the alleged violation of the guaranteed right has arisen in any proceedings in the High Court or in any court subordinate to the High Court, the Supreme Court can only adjudicate on the matter upon referral by the lower court in terms of section 24(2).

Thus, when a matter is before the High Court, or any court subordinate to the High Court, such as the Magistrate's Court as in this case, the question of the contravention of the guaranteed right should be referred to the Supreme Court by the court mero motu or at the instance of any one of the parties to the proceedings. That Constitutional question cannot be brought to the Supreme Court by way of an application in terms of section 24(1) of the Constitution.

Section 24(3) of the Constitution expressly prohibits that.

If the lower court fails to act mero motu, or refuses, upon application, to refer the matter to the Supreme Court for reasons other than those permitted under section 24 of the Constitution, an applicant is then entitled to approach the Supreme Court in terms of section 24(1) of the Constitution: see Martin v Attorney-General 1993 (1) ZLR 153 (S).

Section 24(3) of the Constitution specifically prohibits the making of an application in terms of section 24(1) in respect of matters arising in any proceedings in the High Court or in any court subordinate to the High Court.

This Court has drawn the attention of legal practitioners to this provision in a number of cases.

MALABA JA…, dealt with this issue in some detail in the case of Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05. The learned JUDGE OF APPEAL had this to say at pp10-12 of the cyclostyled judgment:

“There are, however, two separate procedures prescribed in sections 24(1) and 24(2) of the Constitution by which redress of a contravention of the Declaration of Rights may be sought from the Supreme Court.

In this case, the question is whether the applicant ought to have used the procedure prescribed in terms of section 24(2) for the enforcement of the protection of the rights he claimed were contravened in relation to him.

In Mandirwhe v Minister of State 1986 (1) ZLR 1 BARON JA said that compliance with the procedure prescribed in section 24(2) of the Constitution was mandatory where there was litigation in progress and the determination of the question as to the contravention of the Declaration of Rights by the Supreme Court had a bearing on the decision by the High Court or the court subordinate to it on the matter in dispute in the proceedings in that court.

The learned JUDGE OF APPEAL said at 7F-8D:

'The purpose of section 24 is to provide, in a proper case, speedy access to the final court in the land. The issue will always be whether there has been an infringement of an individual's fundamental rights or freedoms, and frequently will involve the liberty of the individual; constitutional issues of this kind usually find their way to this Court, but a favourable judgment obtained at the conclusion of the normal, and sometimes very lengthy, judicial process could well be of little value. And, even where speed is not of the essence, there are obvious advantages to the litigants and to the public to have an important constitutional issue decided directly by the Appellate Division [now the Supreme Court] without protracted litigation.

Subsection (1) contemplates the situation in which it is clear from the outset that the existence of a remedy depends on whether there has been (or is likely to be) a contravention of the Declaration of Rights, when the person alleging to be aggrieved is given the right to go direct to the Appellate Division.

Subsection (2) deals with a different situation; it contemplates that proceedings have been commenced in the General Division [now the High Court] or in a subordinate court in circumstances in which it was not anticipated that the question of a contravention of the Declaration of Rights would necessarily arise, since otherwise one expects subsection (1) to be invoked. The question having arisen, the subsection provides a speedy procedure for the determination, by the Appellate Division, of, in effect, a constitutional point of law without the necessity first to conclude the trial in the court of first instance and to come to this Court by way of appeal.

When the question is referred to this Court, the proceedings are merely interrupted; this Court answers the question but the matter must be concluded in the court a quo. The subsection does not authorise the proceedings to be transferred to this Court.'

Section 24(2) of the Constitution only applies when there is a question arising in the proceedings in the High Court or in the court subordinate to the High Court.”

The learned JUDGE OF APPEAL went on to explain, in some detail, what constitutes a question arising in proceedings. The following is what he said at pp12-13 of the judgment:

“The question is whether there were proceedings in the High Court at the time that (the) question as to a contravention of the Declaration of Rights arose.

My view of the facts is that I must answer the question in the affirmative.

The words 'in any proceedings in the High Court' mean proceedings that have come to or have been instituted in the High Court. They are proceedings that have found existence in the High Court, in the sense, that, that court has been called upon, through a method prescribed by law, to exercise the judicial functions of the State over the matter in dispute between the parties and it is in control of the conduct and progress of the proceedings.

The word 'proceedings' has a wider meaning in section 24(2) of the Constitution than 'goings-on' in court. There are no proceedings without an action or case. Proceedings ordinarily progress in steps. The word is, therefore, a general term, referring to the action or application itself and the formal and significant steps taken by the parties in compliance with procedures laid down by the law for the purpose of arriving at a final judgment on the matter in dispute.

There are proceedings in being in the High Court from the moment an action is commenced or an application made until termination of the matter in dispute or withdrawal of the action or application: see Re Appleton French & Scrafton Ltd [1905] 1 Ch.D 749 at 753; Mundy v the Butterley Co Ltd [1932] 2 Ch.D 227 at 233; Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at 219.

There is, therefore, no need to limit the very general words of section 24(2) of the Constitution and say that the question as to the contravention of the Declaration of Rights arises only when the court is actually sitting.

The words 'if in any proceedings in the High Court any question arises as to the contravention of the Declaration of Rights' imply that proceedings may take place in the High Court without any such question arising.”

The judgment in Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 was followed in Dr Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor SC11-08, where, after referring to the above passage of MALABA JA, I had this to say…,:

“Thus, it would appear, from Tsvangirai's case supra, that, once proceedings are commenced in the High Court or any subordinate court, and a constitutional point arises from the pleadings or circumstances of the case, the constitutional point has arisen from proceedings in that court.”

The facts of this case are that the applicant was placed on remand by the fifth respondent. The Court takes judicial notice of what constitutes a remand.

It is the first formal procedure by a court to commence a criminal trial. There has to be a sufficient legal basis for a court to place an accused person on remand.

The applicant contends, that, there was no legal basis to place her on remand.

She makes the following averment in paragraph 6 of the founding affidavit:

“(The fifth) respondent is Mishrod Guvamombe, the Provincial Magistrate at Rotten Row Magistrates Court who is cited herein in his official capacity as the magistrate who I believe unlawfully purported to remand me in custody without considering the unlawful circumstances that led to my appearance before him. His address for service is care of Rotten Row Magistrates Court, Harare.”

The applicant cites the fifth respondent in his official capacity as the person who presided in proceedings as a result of which the applicant was remanded in custody. The applicant contends that remanding her in custody was unlawful and violated her constitutionally guaranteed right.

On these facts, clearly, the question of the alleged violation of the applicant's constitutional guaranteed rights, in particular the allegation of unlawful remand, arises from the proceedings in the Magistrate's Court before the fifth respondent.

The argument by the applicant's counsel, that the issue of the contravention of the Declaration of Rights was not specifically raised during those proceedings is simply untenable. Indeed, a similar argument was raised in Morgan Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 and was dismissed by this Court.

Thus, quite clearly, the Constitutional application should have been brought to this court by way of referral in terms of section 24(2) of the Constitution and failure to do so is fatal to the application.

As I have already stated, the parties are in agreement that this matter is urgent. Counsel for the respondents had indicated, that, while he accepted that the matter was urgent, he had intended to raise the issue of non-compliance with section 24 of the Constitution at the actual hearing of the Constitutional Court application.

The applicant's counsel indicated that they would prefer the matter to be set down before the full Constitutional Court and the issue of the non-compliance with section 24 of the Constitution be determined then.

In my view, following that course would not be in the best interest of the applicant as that would lead to further unnecessary delay in the determination of the issues that she raises.

The previous decisions of this Court on this point are very clear and setting this application down before a full Constitutional Court is an exercise in futility.

Justice will not be served by following a road that leads nowhere.

Indeed, I would have considered setting down the matter in the Constitutional Court for determination of the issue if the applicant's counsel had wished to argue that both Tsvangirai v Robert Gabriel Mugabe and Anor SC84-05 and Dr Daniel Shumba and Anor v The Zimbabwe Electoral Commission and Anor SC11-08 were wrongly decided.

However, that is not his stance.

The applicant's counsel admitted that he has not read the above judgments. He did not ask for an opportunity to familiarise himself with those judgments and then reconsider his position.

Given this attitude, setting this matter down for argument before the full Constitutional Court will be, as I have already stated, an exercise in futility and will cause a further delay in the finalisation of the applicant's search for a determination by this Court.

If the applicant wishes this matter to be determined by the Supreme Court she should proceed in terms of section 24(2) and not section 24(1) of the Constitution.

It is a matter of regret that an opportunity to determine this application on an urgent basis has been squandered by the crass incompetence and sheer ineptitude of the applicant's legal practitioners, who do not appear to have taken the trouble to peruse the provisions of section 24 of the Constitution before committing pen to paper and drafted this application.

In my view, the best way forward is to dismiss this Chamber application, and, hopefully, the applicant's legal practitioners will familiarise themselves with the provisions of section 24 of the Constitution and the judgments of this Court before advising the applicant on the best course to follow....,.

The Chamber application is dismissed.

The applicant should comply with the provisions of section 24 of the Constitution before this matter can be set down as a Constitutional application.

There will be no order as to costs.

The applicant herein is the registered owner of an immovable property commonly known as 425 Dandaro Village. The applicant has owned the property since April 2004. In this matter, the applicant is seeking the eviction of the respondent from the premises.

The respondent is opposed to the granting of the relief being sought.

The respondent, in seeking to oppose the order being sought has raised a point in limine. He avers that there are many disputes of fact on the papers which cannot be disposed of without the hearing of oral evidence. He alleges that he occupies the property with the consent of one Margaret Kathleen Matthew and her husband. He said that these two had sold the property to him in February 2004 and that this alleged sale was an issue before this court in case number HC1454/05.

This court, on 4 October 2006, did, under that case number, issue out a judgment in terms of which the respondent was evicted from the premises. This judgment is however the subject of an appeal to the Supreme Court. 

I will therefore not comment on the findings by the learned judge in that matter.

The applicants were arraigned for trial before the first respondent, a Regional Magistrate sitting at Harare Magistrate's Court. The first respondent will, in this judgment, be referred to as the “magistrate”. The second respondent is the Attorney General of Zimbabwe. He is the prosecuting authority whose officer is prosecuting in the applicants' trial.

The applicants were, on 27 April 2010, arraigned before the magistrate to answer charges of contravening section 185(1)(b) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. They are alleged to have attempted to escape from Chikurubi Prison.

The case did not take off at the scheduled time. It was adjourned to 11:30am.

When it resumed, at 11:30am, counsel for the first, fourth, fifth, and sixth applicants, who had been in attendance when the case was adjourned to 11:30am, was now not in attendance. The first applicant sought a postponement because their legal practitioner was not in court.

The magistrate turned down the application, and ordered the first applicant to give his Defence Outline.

The fourth, fifth, and sixth applicants also applied for a postponement, on the grounds that their legal practitioner was not in attendance, and that they were staying in a cell without sufficient light and had not been able, for that reason, to prepare their Defence Outlines. They also alleged that prison officers had taken their court documents and only returned some of them.

Their applications for a postponement were, again, not granted. The magistrate ordered the applicants, who were all now not represented, to give their Defence Outlines.

Counsel representing the first, fourth, fifth, and sixth applicants, arrived when the first applicant was giving his Defence Outline.

He applied for the recusal of the magistrate because he had presided in the cases of S v Donald Tapera Gwekwerere and S v Assan Chikwanda, who were participants in the applicants' alleged attempted escape from prison. They pleaded guilty and were convicted by the magistrate who sentenced them to terms of imprisonment.

He submitted, that, the applicants reasonably believe that the magistrate's knowledge of their case, gained from his presiding over the Gwekwerere and Chikwanda cases, will make it impossible for him to impartially assess their evidence in view of the fact that Gwekwerere and Chikwanda will testify for the State in the applicants' trial.

The magistrate dismissed the applicants' application for recusal and ordered that the trial should proceed.

The applicants then filed this urgent application, seeking an order staying the proceedings before the magistrate pending their review by this court.

Generally, this court does not encourage the bringing of unterminated proceedings for review.

There are, however, circumstances which may justify the reviewing of un-terminated proceedings. This means, this court will not lightly stay proceedings pending review.

An application of this nature can only succeed if the application for review has prospects of success....,.

The success of the application for review depends on whether or not the application for recusal was one which the magistrate should have granted.

The applicant is a Detective Assistant Inspector in the Zimbabwe Republic Police. He was charged and convicted for bringing disrepute to the Zimbabwe Republic Police in contravention of section 35 of the Police Act [Chapter 11:10] (hereinafter called the Police Act).

He was sentenced to twelve days imprisonment.

The first respondent is the Commissioner General of the Zimbabwe Republic Police, who is being sued in his official capacity as the Head of the Zimbabwe Republic Police.

The second respondents are the Co-Ministers of Home Affairs, being sued in their capacity as the Ministers responsible for the Zimbabwe Republic Police.

The third respondent is the officer in charge of Chikurubi Detention Barracks, where the applicant will be lodged for twelve days if he is to serve the sentence imposed on him by the fourth respondent.

The fourth respondent is the officer who tried, convicted, and sentenced the applicant to twelve days imprisonment.

The applicant was convicted by the fourth respondent on allegations that he had sought and obtained a bribe of US$500, and stolen a plasma television from a suspect he had arrested and was about to lodge in police cells. He was charged under section 35 of the schedule to the Police Act, which provides as follows:

“Acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force.”

He was convicted and sentenced to twelve days imprisonment.

The suspect, and another witness, gave evidence at the trial leading to the conviction of the applicant.

In this application, the applicant alleges that the fourth respondent did not warn himself about the dangers of convicting on the evidence of accomplice witnesses. He also alleged, that, the fourth respondent did not warn the accomplices before they testified.

He further alleges that he is being exposed to double jeopardy as he is also being charged for the same acts under the Magistrate's Court.

He further complains that the sentence imposed by the fourth respondent induces a sense of shock.

Counsel for the applicant submitted that section 35(1) of the Police Act [Chapter 11:10] requires the trial under the Police Act to closely comply with the procedure followed in the courts of Zimbabwe. It provides as follows:

“(1) The proceedings before or at any trial by a board of officers or an officer in terms of this Act, shall, as near as may be, be the same as those prescribed for criminal cases in the courts of Zimbabwe.”

The intention of the legislature is clear.

The tribunal or trial officer must, as nearly as is possible, comply with the rules of evidence and procedure as is done in the courts of Zimbabwe. Where the tribunal or trial officer significantly departs from the procedure set for criminal proceedings in the courts of Zimbabwe the proceedings may be set aside on review.

The test applied on reviewing proceedings is whether or not the proceedings are in accordance with real and substantial justice.

That may be satisfied if a record reveals statements made by the accused admitting having done what is alleged or other things tending to support the conviction. In other words, errors, on the part of the prosecuting authority, may, if they do not go to the root of the proceedings, affect its being held to be in accordance with real and substantial justice.

A stay of sentence must therefore only be granted if the record shows prospects of success, which can only be properly assessed from the totality of the proceedings.

In this case, the applicant has not placed the record of proceedings before the court. In fact, the applicant said nothing about it in his founding affidavit.

Counsel for the applicant tried to explain from the bar, but, an application must stand or fall on the papers filed.

The applicant's failure to place the record before this court makes it impossible for this court to assess the applicant's prospects of success on review as the standard of assessment on review must comply with the proviso to section 34(3) of the Police Act, which provides as follows:

“Provided that no conviction or sentence shall be quashed or set aside by reason of any irregularity or defect in the record or proceedings unless the Commissioner considers that a miscarriage of justice has actually occurred.”

The alleged irregularities cannot, therefore, in the absence of information from the record showing that a miscarriage of justice actually occurred, persuade the court to stay the execution of sentence. The standard of review, set by the legislature for the Commissioner, must be applicable to the review of those proceedings by this court....,.

The record of proceedings has not been placed before the court. The sentence cannot be stayed without assessing the applicant's prospects of success on review.

As regards the res judicata issue, it is my view that a determination by this court on these issues may entail this court making findings that purport to impact on the application now pending before the Supreme Court. In any event, the relief sought by the applicant in casu is for the interim only while the parties await the Supreme Court's determination of the applicant's application for condonation and for the reinstatement of its appeal.

It appears to me that it is only proper for this court to defer to the higher court and not to purport to pre-empt the higher court's determination of the matter before it.

The second reason why I am not persuaded by counsel for the applicant's argument relates to the practical problems this court would encounter if it were to adopt his so-called robust approach and deal with the merits of this application on the basis that the first (main) appeal is valid and that real and substantial justice enjoins this court to grant the provisional order.

As to the contention by the plaintiff that there was intent to amend the claim for damages, the defendant has contended that the plaintiff wishes to amend its claim to reflect United Stated Dollars when the loss was suffered in Zimbabwe dollars.

The issue of whether the respondent has the necessary locus standi in judicio to sue the applicant as an occupier is before the Supreme Court in SC31/08 and SC163/08.

The respondent is before me attempting to raise a defence against the decision of the Rent Board. That is no longer before me as it was determined by the Rent Board that the applicant had shown good cause for her ejectment from the premises. Apart from registering the certificate as an order of court, this court cannot enquire into the propriety of the determination by the Rent Board as that is function of the Administrative Court when considering the appeal.

The third point is that he has a matter pending appeal before this court.

The respondents have argued that the application for review is likely to fail.

Well, they may well be correct in their stance on the basis of whatever arguments. However, this court is not seized with that matter and is yet to be determined. What this court is concerned with is the damage which may occur later and whether or not the applicant will have any other alternative remedy. If the applicant succeeds in his review application he will indeed suffer irreparable harm in the circumstances.

In my mind, I hold that the applicant's argument is plausible.

Counsel for the first respondent attacked the notice of appeal submitting that it was fatally defective for a number of reasons including that it does state not which part of the judgment of the Magistrates Court is being appealed against in breach of Rule 29(1)(c) of the Supreme Court Rules; it does not contain the nature of the relief sought in breach of Rule 29(1)(e); and does not state the appellant's address for service in breach of Rule 29(1)(f) and Rule 10(1)….,.

However I do not consider it necessary at this stage to decide the fate of that appeal as it is not before me.

Appeal or Review

The applicant also submitted that he had substantial prospects of success in his appeal against the decision of the magistrate in which he was convicted for occupying gazetted land without authority and sentenced, inter alia, to be evicted from the farm. 

At the time of hearing the present application the State had lodged an application with the magistrate for leave to execute that eviction pending appeal.

This is a matter in which I stayed my decision pending the determination of an appeal in case number CA197/07. The appeal was determined on 5 October 2011 but the respondent in this case promptly noted an appeal with the Supreme Court against the judgment of HLATSHWAYO J. The parties submitted that the determination of the matter again be stayed pending the decision of the Supreme Court.  By letter dated 29 October 2012 the parties advised that the appeal before the Supreme Court had been removed from the roll by consent of both parties.

The reasons which prompted the applicants to refer the dispute which exists between the first respondent and them to the Labour Office is not the business of this court.  The relevant authority will deal with the issues which pertain to that matter. It is, accordingly, sufficient to state that:

(i) The authority in question is seized with the applicants' case against the first respondent; and

(ii) The authority will go into the merits of the matter upon, or before, 15 October 2013.

The applicant has also attacked the merits of the special plea.

That is an issue to be determined when the matter is argued. It cannot be raised by a separate chamber application. Heads of argument have been filed and an application for a set down date made. The matter should therefore be set down on the opposed roll and disposed of that way.

Dibden Services (Pvt) Ltd also averred that the applicant had no prospects of success in the applications for joinder and rescission but those applications were not before this court yet.

I must make it clear that the matter before me does not require that I go into the merits and de-merits of the appeal against the arbitral award. Further, I may not go into the merits of the matter before the Labour Court and the appeal in that matter. 

That is for that court to decide. 

What I am primarily concerned with is whether the applicant managed to establish that this matter before me deserved to be heard as an urgent matter.

The respondents further contend that there was no breach of the contract as the parties agreed to suspend the contract. Further, that the contract was novated by virtue of an agreement to new terms by the parties.The applicant claims that it carried out some work on behalf of the respondent before the contract was terminated and it has not been paid for such work.

Based on the facts before the court, it is clear that the applicant is entitled to payment for work performed. It has merit with regards that part of the claim.

Whether the contract was novated is a dispute that the trial court will be required to enquire into.

Even if the court finds against the applicant over the novation issue, I am satisfied that the applicant has an arguable case over its claim for work performed.

The court has considered, cumulatively, all the circumstances of this case as well as the legal requirements or factors to be considered in an application such as this. I am satisfied that the applicant has shown good cause for rescission of the order granted in default.

In the result, it is ordered as follows:

1. Default judgement entered in case No HC7150\50 on 30 November 2012 be and is hereby rescinded.

Paragraph (a) of the notices which the respondent issued to the applicants is pertinent.

The paragraph makes reference to the manner in which the applicants proceeded to acquire possession and ownership of the vehicles. The respondent said that possession and ownership were done unlawfully. The applicants' assertion on that point is to the contrary. 

The court remains of the firm view that the vindicatory action which the respondent instituted will resolve that dispute…..,.

Counsel for the first repondent further submitted that the issue of whether there was a cause of action or not is still to be determined by the Magistrates Court and this court cannot interfere with those proceedings by making pronouncements on that issue….,.

The respondent had raised some points in limine wherein it was suggested that the matter was not urgent but my brother judge who dealt with the matter felt that it was. 

In addition, whether or not the sums had been arrived at arbitrarily was a dispute properly placed before the Fiscal Appeals Court as an appeal.

With regard to ground 5, the issue of the magnitude of the claim is a matter for determination by the court before which the matter is placed on the unopposed roll.

It cannot, on its own, constitute good and sufficient cause for setting aside the judgment entered in default.

In the result no good grounds have been established for interference by this Court with the judgment of the court a quo.

Accordingly, the appeal is dismissed with costs.

In light of the fact that the appeal is set down for 17 March 2014, I was of the view that the issue of the interdict be and is hereby referred to the Supreme Court for determination in the event that the Supreme Court reserves its judgment. 

I am persuaded by the further contention that, in any case, the factual position of the dispute as well as its merits or demerits will ultimately be a matter for the trial court. At this stage, all that has been granted is leave for the respondent to commence proceedings against SMM Holdings (Private) Limited, and possibly the appellant as well, for the redress that it wishes to secure.

Counsel for the applicants submitted that ordinarily this court would not be asked to consider the validity or otherwise of an appeal that lies at the Supreme Court. That would be the function of the Supreme Court….,.

But whilst I could express my own views about the the respondent's appeal to the Supreme Court, it was not my place to pronounce on its validity or otherwise.

Submissions were made by the first defendant to the effect that the Agreement of Sale that the plaintiff is relying on is fraudulent.

It must be noted that the court order of 27 October 2014 only nullified the transfers of ownership which were allegedly done fraudulently but it did not cancel the purported Agreement of Sale of 2002.

I must point out that I am not here to decide on the authenticity or otherwise of the Agreement of Sale but the special plea of prescription. So I will not delve into that issue. It is an issue which should be determined by the court which will deal with the issue of transfer of ownership of the properties from the first defendant to the plaintiff.

As indicated earlier, the substantive correctness of the decision of the court a quo in HC4641/13 is not for this Court to determine in these proceedings. It is the propriety of the application of Rule 449 in HC154/14 that is.

The appellant is the pastor of his own church based in Marlborough, Harare. He was convicted by the Harare Magistrates Court on 3 February 2014 of four counts of rape and one count of contravening section 26 of the Censorship and Entertainment Control Act [Chapter 10:04] i.e. possession of pornographic material.

He was sentenced to a term of 50 years imprisonment with 10 years suspended on condition of good behaviour. He has since appealed to the High Court against his conviction and sentence.

That appeal is pending.

The appellant also applied to the High Court, as a court of first instance, for bail pending appeal. His application was dismissed. He now appeals against that decision in terms of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The court a quo found that the evidence of the complainants, in relation to three of the four counts of rape, was credible in material respects. The court also found that the complainants' reports of the alleged rapes were voluntarily made and that, although the delays in making those reports were lengthy, the reasons given for those delays were plausible. Moreover, the sentences imposed by the magistrate, in respect of the rape counts, were appropriate.

As regards the censorship offence, the court a quo found that the evidence adduced as to the possession of obscene material was sound and that the appellant had no lawful excuse for his possession of that material. However, the sentence imposed for that offence was probably defective as the magistrate had advanced no reasons for sentence on that count.

In the event, the court a quo held that the appellant generally had no prospects of success on appeal and dismissed his application for bail. The court also held that there had been no violation of his constitutional rights to liberty and a fair trial.

The principal ground of appeal herein is that the Magistrates Court did not properly analyse the evidence before it and that, therefore, the case, on appeal, was arguable. Moreover, this cursory analysis of the evidence violated the appellant's constitutional rights.

Additionally, the High Court erred in disregarding the effect of the magistrate's mistaken references to cases dealing with mentally defective victims of rape. The High Court also erred in finding plausible explanations for the inordinate delays in reporting the alleged offences. Again, the reports were made in circumstances showing a likelihood of their having been made in response to leading, inducing, or intimidating questions.

Having regard to all of the foregoing, the central issue for determination in this matter is whether the court a quo erred or misdirected itself in finding that there were no prospects of success on appeal from the decision of the Magistrates Court.

The test to be applied in this regard is relatively uncomplicated: Is the appeal “reasonably arguable and not manifestly doomed to failure?” See State v Hudson 1996 (1) SACR 431 (W).

The main point taken by counsel for the appellant is that the learned magistrate did not evaluate the evidence and assess the credibility of witnesses on the rape charges (Counts 3, 7, 8 and 9). He thereby erred in accepting the evidence of a single witness without adequate analysis in respect of each Count.

Count 3 relates to Precious Kapfumvuti (Precious).

Her evidence was that she was raped on several occasions during the period stretching from 2007 to 2013, having succumbed to the appellant's exercise of authority rather than physical force.

It is submitted, for the appellant, that, her assertion of having been subjected to indoctrination cannot be sustained. She understood the nature of the sexual acts that she engaged in and the appellant's influence could not have deprived her of the capacity to give her informed consent. Moreover, her explanation for having reported the alleged rapes at a late stage is totally unreasonable. She could have reported the matter to various people over the years and after she left the appellant's premises in 2013. It is further submitted that her misrepresentation of certain biblical passages that she relied upon while giving evidence in court rendered her veracity questionable.

In short, she willingly subjected herself, sexually, to the appellant as an integral part of worshipping him and then later changed her position after talking to others.

Counsel for the respondent submits that the appellant stood in the position of being a guardian over Precious Kapfumvuti. She received counselling and religious teachings from him, including the notion that a master could do as he willed with his servant. The subjective effect was that she believed what she was told by the appellant about his authority and that differences between them should not be taken to court for fear of her being placed in the hands of Satan. It is further pointed out that she did report her first rape to a fellow congregant but no assistance was forthcoming. Thereafter, she was always accompanied or guarded either by the appellant's principal wife or by his brothers. She therefore remained silent out of fear and eventually escaped after realizing that what the appellant was doing to her was wrong.

Count 7 pertains to Winnie Sakahuhwa (Winnie).

Counsel for the appellant submits that she was aware of the appellant's reputation before she went to stay with him in December 2011. Nevertheless, she allowed herself to be sexually intimate with him. In effect, she consented to sexual intercourse because of his authority and understood sex with him as being necessary to create a bond between them. Moreover, her account of one of their sexual encounters is physically improbable in terms of their respective bodily positions. She admits to having denied any sexual assault when queried by at least three other people and did not even confide in her mother after police investigations had commenced. Additionally, her mother's evidence does not corroborate that of Winnie Sakahuhwa and the former could not explain why the latter did not confide in her. Again, Winnie did not make any report to the representatives of Child Line who attended her school for counselling.

For the State, it is submitted that Winnie Sakahuhwa was warned by the appellant not to make any report because she would then be placed in the hands of Satan. She genuinely believed his teachings. She did not tell her mother anything about her sexual assaults because her mother suffered from hypertension and she did not want her to be over-stressed. Furthermore, she did not report her predicament to anyone else because the appellant claimed that the police belonged to him. She only reported the matter to the police after learning of his arrest and realising that he was not invincible.

Counts 8 and 9 relate to Hazvinei Samanyanga (Hazvinei).

As is correctly pointed out by counsel for the appellant, the court a quo entertained considerable doubt as to the propriety of the appellant's conviction on Count 9.

The learned judge found that it was possible that she may have been raped on the first occasion (Count 8) as her evidence was credible on that score. However, she appears to have acquiesced to sexual intercourse on the subsequent occasions (Count 9), having voluntarily returned to the appellant's residence during weekends.

Moreover, she spent several months in South Africa before reporting the matter to the police when they contacted her in connection with Precious Kapfumvuti.

These are matters that were not adequately interrogated by the Magistrates Court.

Counsel for the respondent submits that Hazvinei Samanyanga's evidence, on Count 8, shows that she was forcibly raped on the first occasion and that the appellant was correctly convicted on that Count. He concedes, however, that her conduct in respect of Count 9 was inconsistent with the absence of consent, particularly as she continually returned to the appellant's residence of her own accord.

Count 10 pertains to the appellant's unlawful possession of two obscene DVDs.

There is no doubt that the appellant was properly convicted on this Count.

At the hearing of this appeal, counsel for the appellant quite correctly abandoned the technical point raised in his heads of argument as to the propriety of inspecting the material in question after the appellant was arrested.

As regards the concurrent sentence of four (4) months imprisonment imposed by the learned magistrate, the court a quo highlighted the obvious misdirection of the magistrate in failing to provide any reasons for sentence.

In any event, as was accepted by counsel for the appellant, this misdirection has been rendered academic and irrelevant by the fact that the appellant has already served four (4) months in prison following his conviction on 31 January 2014.

As regards the credibility of witnesses, the general rule is that an Appellate Court should ordinarily be loathe to disturb findings which depend on credibility.

However, as was observed in Santam BPK v Biddulph (2004) 2 ALL SA 23 (SCA), a court of appeal will interfere where such findings are plainly wrong.

Thus, the advantages which a trial court enjoys should not be over-emphasised. Moreover, findings of credibility must be considered in the light of proven facts and probabilities.

In the instant case, the learned magistrate convicted the appellant on four out of the total nine counts of rape. He rejected the testimony of three complainants and acquitted the appellant in respect of the five counts pertaining to them.

With respect to the three complainants presently under consideration, his assessment of their credibility is not as detailed as might have been expected.

Nevertheless, I am not persuaded that any of his critical findings of credibility can be said to be manifestly wrong in light of the proven facts and probabilities of this case.

I am inclined to agree with the State that he correctly analysed the subjective effect of the appellant's behaviour and teachings on the complainants.

Admittedly, in so doing, he erroneously cited case authorities revolving around victims of rape who are mentally disordered or incapacitated and their capacity to consent to overtures and acts of sexual intercourse. However, as was correctly noted by the court a quo, the magistrate's reference to these cases was designed to show that the complainants were not freely consenting individuals.

His misquotation did not go to the root of the convictions and does not, in my view, constitute a fatal misdirection.

In the court a quo, the learned judge elaborated “the subjective nature of religious dogma” in more cogent terms.

To paraphrase and summarise his findings, the complainants were subjected to frequent indoctrination in the notions of total separation and submission to authority. They were not allowed to fraternise with their relatives and were conditioned to believe that matters of church should not be discussed with outsiders. The appellant displayed a pattern of predatory behaviour, characterised by rampant sexual perversion, manipulating and luring the complainants to accept and endure his deceptively benign patriarchal authority.

As was eloquently observed by Justice DOUGLAS in United States v Ballard 322 US 78 (1944), quoted by both of the courts below, religious doctrines and beliefs cannot be subjected to the rigours of legal proof.

I would take this sentiment further to opine, in the circumstances presented by this case, that the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to the point where it operates to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters.

Taking a broad conspectus of the facts and probabilities in casu, it appears to me that the complainants, having been enmeshed within the overpowering cocoon woven by the appellant, unwittingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.

To sum up, it must be accepted that there are certain deficiencies in the State case.

Nevertheless, I take the view that none of the grounds of appeal raised in this case is entirely sustainable.

Apart from the conviction on the second charge pertaining to Hazvinei Samanyanga (Count 9) and the sentence imposed in respect of the possession of obscene materials (Count 10), I am satisfied that the appellant has no prospects of success on appeal and that his appeal is doomed to failure.

In that event, he will remain subject to a prison term totalling 40 years, with a period to be determined suspended on condition of good behaviour.

The above conclusion does not necessarily end the matter.

An issue that was raised in the court a quo, but not addressed in its judgment, is the possibility of the appellant absconding in the event of being granted bail. I think it appropriate to deal with this aspect for the sake of completeness.

Counsel for the appellant submits that the appellant is unlikely to abscond because he has huge family responsibilities. Moreover, he is prepared to offer his main residence as security for bail.

Counsel for the respondent counters that the appellant will be induced to abscond by the presence of another charge of rape that is pending against him and because of the 40 years sentence imposed in respect of Counts 3, 7, 8 and 10.

I note that the pending charge arises from the same period but was deferred because the complainant in that matter had fallen pregnant. In any event, the appellant has denied that charge.

As was highlighted in Manyange v The State HH01-03, there is a clear distinction between the principles governing the grant of bail pending trial and those relating to bail pending appeal.

In the former situation, the presumption of innocence, which resides within the constitutionally guaranteed right to liberty, operates in favour of granting bail unless there are positive reasons for refusal.

In the latter situation, on the other hand, the presumption of innocence is inoperative because the accused is a convicted and sentenced offender. The accused must go further than showing that he has prospects of success on appeal. He must establish that there are positive grounds for granting bail and that the grant will not endanger the interests of justice.

In this regard, the public perception is an integral factor to be taken into account. Where the grant of bail would result in a public outcry, the courts should be slow to grant bail in order to safeguard the integrity of the justice delivery system: see Gardner v The State HH60-08.

The possibility of public outrage is something that I am not in a position to assess without any compelling evidence in that regard.

What is more significant in casu is that the appellant has not proffered any positive grounds for allowing him to proceed on bail.

The existence of a huge familial entourage, comprising 11 wives and 32 children, is a condition of his own making and does not really advance his claim to bail.

Moreover, he has failed to satisfactorily demonstrate his prospects of success on appeal.

Apart from this, there is nothing else to commend his right to liberty.

In my view, the prospect of a protracted prison term, coupled with his fresh experience of post-trial incarceration, affords abundant incentive for him to abscond.

In all the circumstances, I am amply satisfied that the appellant is not a good candidate for bail.

For all of the foregoing reasons, the appeal must fail and it is accordingly dismissed.

Section 171 of the Constitution of Zimbabwe states that:

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

Given the Constitutional provision, it means that no other Act of parliament can oust the jurisdiction of the High Court in all civil matters in Zimbabwe. Accordingly, except for cases expressly reserved for the Constitutional and Supreme Courts, the High Court can, in terms of our law, deal with all civil matters, notwithstanding the fact that they may be statutorily reserved for the Labour Court or any other lower court (i.e. concurrent jurisdiction exists). It would, in my view, be unconstitutional for the High Court to close its doors to litigants with respect to any civil matters.

The first respondent also argues that it is immune from suits for “anything done in good faith and without negligence.” It argues that the applicants must prove “beyond reasonable doubt” that it acted in bad faith and negligently….,.

The issue of whether the first respondent is excused from liability on the ground that it acted in good faith and without negligence is for determination by the Court when it enquires into the merits of the claim by the applicant against the first respondent.

If that is the first respondent's defence to the claim then it must be properly pleaded and established by evidence at the trial. For the purpose of this application the applicant need only satisfy the requirements of Rule 93.

The applicant has discharged its onus in that respect.

It cannot be said that the applicant's prospects of success in the merits of the main case are not reasonable. All what the applicant has to show is that they have an arguable case on appeal or a fighting chance. It matters not if the applicant is subsequently knocked out in the last rounds of the fight. The question really is whether the appeal is simply a hopeless one, not whether the applicant has an unassailable case on appeal.

This court is mindful of the fact that it is not sitting as an Appeal Court. I should therefore simply have a glancing view of the grounds of appeal to assess the applicant's prospects of success on appeal....,.

I..., hold the view that the applicant has an arguable case on the other grounds of appeal which relate to the inadequacy of evidence adduced and assessment of such evidence. Those issues are food for the Appeal Court to chew and digest not this court.

In assessing the prospects of success, it is pertinent to analyze the draft Notice of Appeal that was attached to this application.

It was contended, on behalf of the first respondent, that the applicant's prospects of success on appeal are not bright.

In considering this factor I am aware that another court is yet to consider the same prospects of success on appeal when it determines the application for condonation of late filing of the appeal and extension of time within which to file the appeal.

I am however comforted by the fact that my findings herein are not binding on that other court.

The applicant, in its founding affidavit, alleged that the application was for stay of execution pending the appeal noted under case number SC255/14.

There is an apparent defect on the notice of appeal. It does not state the court which gave the judgment appealed against. This is a fatal defect incapable of amendment. The authorities are clear on this. The attempt by the applicant's counsel to file an amendment is, at best, regrettable. This does, however, create an insurmountable problem for the applicant. The application is predicated on the validity of that Notice of Appeal. The notice of appeal, defective as it is, makes it difficult for the applicant to move its application because it has no founding basis at all. The application can be disposed of on this point…,.

This is an application for leave to execute pending appeal....,.

An application for leave to execute is available because, by operation of the law, an appeal automatically suspends the decision appealed against and so it cannot be carried into execution. But if despite the appeal the successful party wants to execute the judgment in the interim, he has to seek the leave of the court that granted the judgment.

The application is premised on the principle that the court has an inherent power to control its own process. The overriding principle is the need to achieve real and substantial justice: see Santam Insurance Company Ltd v Paget [2] 1981 ZLR 132…,. In such an application, the court is guided by the following factors, which it considers cumulatively:

(i) The preponderance of equities: that is to say, the potentiality of irreparable harm and prejudice to the applicant if leave to execute is granted, or the potentiality of irreparable harm and prejudice to the respondent, on appeal, if leave to execute is refused.

(ii) The prospects of success of the appeal: that is to say, whether the appeal is frivolous or vexatious or has been noted, not with the genuine intention of correcting a perceived wrong, but merely in order to buy time;

(iii) If the competing interests are equal, then the balance of hardship to either party;...,.

Invariably, the decision whether or not to grant an application for leave to execute turns on the relative strength or weakness of the appeal. 

This necessarily entails ploughing substantially the same field as done at the original hearing. It also entails the court peeking into an appeal that is pending before the superior court, and, in some way, pronouncing a verdict on it. 

That is one of the shortcomings of this type of application.

Counsel for the first respondent argues that this, in fact, amounts to a usurpation of the functions of the superior court. That seems true, but to a very limited extent.

In an application for leave to execute it is necessary to weigh the relative strength or weakness of an appeal to guard against frivolous and vexatious appeals that are noted purely to buy time and not for any genuine intention to correct a wrong by the lower court. Each case depends on its own facts. Some factors relevant to the determination of this type of application may assume greater or lesser importance in some cases than do others in other cases.

This was an application for leave to execute pending appeal....,. 

At the hearing, the parties advised that the Supreme Court had since set down the appeal for hearing on 23 May 2017. That was exactly a month away. For that reason, the respondent pressed for the removal of the application from the roll to avoid inconveniencing not only the parties, but also the two courts as well.

Counsel for the applicant said he had no instructions to do otherwise than press on with the application. He argued, inter alia, that given the general trend at the Supreme Court where many a notice of appeal are dismissed for failure to scrupulously adhere to the procedural requirements, there was no guarantee that the respondent's notice and grounds of appeal would withstand stringent scrutiny. The appeal might not be heard on the merits.

Furthermore, counsel for the applicant's argument continued, even if the appeal was heard on the merits, it was more than likely that judgment would be reserved for months on end. As such, the balance of convenience favoured that the application for leave to execute pending appeal be proceeded with and be determined because the applicant had been kept out of its money since 2010.

Counsel for the respondent countered by saying counsel for the applicant's argument was mere conjecture. It was not unusual for the Supreme Court to deliver an order and/or its judgment ex tempore....,.

An application for leave to execute pending appeal is necessitated by the fact that an appeal automatically suspends the execution of the judgment or decision appealed against: see Chematron Products [Pvt] Ltd v Tenda Transport [Pvt] Ltd & Anor 2013 [2] ZLR 365 [H]. This is a common-law rule of practice. Its rationale is to prevent an irreparable damage being caused to an appellant.

But, in my view, an irreparable damage can equally be caused to the successful party by the noting of the appeal and the concomitant automatic stay of execution. Among other things, he cannot immediately enjoy the fruits of his success in the court of first instance. The rule has received some criticism and has prompted calls for its reversal: see Econet [Pvt] Ltd v Telecel Zimbabwe [Pvt] Ltd 1998 [1] ZLR 149 [H]; and Chematron Products [Pvt] Ltd v Tenda Transport [Pvt] Ltd & Anor 2013 [2] ZLR 365 [H].

The application for leave to execute pending appeal is premised on the principle that the court has an inherent power to control its own process. Thus, in the exercise of its wide discretion, it can order a stay of execution of its judgment. But it can also direct that the judgment be carried into execution. The overriding principle is real and substantial justice: see Santam Insurance Company Limited v Paget [2] 1981 ZLR 132…,.

Invariably, the decision whether or not to grant the application turns on the relative strength or weakness of the appeal.

In this case, much energy was expended in weighing the respondent's prospects of success on appeal. That necessarily entailed ploughing substantially the same field as done at the trial.

However, given that the appeal is set to be argued only in a month's time, I have considered it more prudent, and more expedient, and more practical to allow the appeal to be heard without upsetting the status quo. This will avoid a potentially embarrassing situation where, for example, being satisfied that the respondent's appeal is un-meritorious, and therefore doomed to fail, I could grant the leave to execute, only for my judgment in the trial to be overturned in a month's time.

One of counsel for the applicant's arguments was that even after the Supreme Court has heard the appeal, it might well reserve judgment for months on end, resulting in the applicant continuing to suffer prejudice in spite of its success at the trial.

But there are two answers to this.

This was mere speculation. The Supreme Court could well pronounce its ruling ex tempore. Furthermore, an application for leave to execute pending appeal is concerned with the interim period between the noting of the appeal and the hearing of it. The application is largely informed by the inordinate delays that are often associated with getting an appeal heard.

As counsel for the respondent argued, once the appeal is set down and heard, it is now the Supreme Court, not this court, that is seized with the matter. Otherwise, the logical extension of counsel for the applicant's argument would be that an application of this nature could be mounted even after the Supreme Court has heard the appeal for as long as its judgment remains outstanding.

I do not think that this can be done....,.

In the premises, the matter is removed from the roll with each party to bear their own costs.

This is an application for a joinder. The draft order attached to the application reads as follows:-

“1. The 6^th Respondent be and is hereby joined as the 6^th Respondent in Case No. HC1393/08.

2. The 6^th Respondent shall, if he wishes to defend the 1^st and 2^nd Applicants' claim, file a Notice of Opposition within (10) ten days of service of the pleadings in Case No. HC1393/08 on him.

3. The rest of the pleadings shall be dealt with in accordance with the rules of the Court.

4. There shall be no order as to costs.”

I give, here-below, a brief background to the relief sought.

On 7 March 2008 the applicants filed an application under case number HC1393/08 (the main matter) for the following relief:-

“IT IS ORDERED THAT:

1. The 1^st Respondent [the plaintiff herein] is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Harare, also known as a certain piece of land situate in District of Salisbury Township Lands measuring 3,066 square metres under Deed of Transfer 39/76 to anyone except the 1^st and 2^nd Applicants.

2. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd Respondent [Sandra Muir] is directed to sign all the necessary documents to finalise the transfer within 10 days of the Order.

3. Should the 2^nd Respondent fail or refuse to sign the necessary documents to effect transfer, the 4^th or 5^th Respondent [Sheriff and Deputy Sheriff respectively] are hereby directed to sign all the necessary documents to effect the transfer by the 3^rd Respondent [Registrar of Deeds] to 1^st and 2^nd Applicants.

4. The 1^st and 2^nd Respondents shall bear all the costs of this application on attorney-client scale jointly and severally one paying the other to be absolved.”

On 21 May 2008, I granted the above order in default.

On 22 August 2008, the sixth respondent, in his capacity as the Managing Director of the first respondent, filed an application, under case number HC4211/08, for the rescission of the default judgment granted in favour of the applicant on 21 May 2008. I must mention that when the rescission application was filed, the default order had already been executed/enforced.

In paragraph 14 of the founding affidavit in the rescission application filed on 22 August 2008 in HC4211/08, the sixth respondent averred as follows:-

“14. I humbly submit that the Applicant has got a prima facie right and a bona fide defence to the 1^st and 2^nd Respondents claim. Applicant bought all the shares from the 3^rd Respondent, through its Managing Director, and took transfer of the shares well before the 16^th of June 2008 when the 1^st and 2^nd Respondents took transfer of the immovable property. In fact, the Order granted by this Honourable Court, see Annexure “I”, was granted in error. The alleged Agreement of Sale between 1^st, 2^nd and 3^rd Respondents was not for the sale of the immovable property but for the sale of shares. In fact, it is quite doubtful that the same could have been granted if the 1^st and 2^nd Respondents' Legal Practitioners had been candid with this Honourable Court and included Annexure “H” which is the Notice of Opposition to the Court Application. As it is, 1^st and 2^nd Respondents Legal Practitioners saw it fit to cherry pick the information and omitted to mention or attach the Opposing Affidavit to Case No. HC6660/07. In a nutshell, the transfer of the immovable property to the 1^st and 2^nd Respondents is null and void as the company shares in the Applicant were bought and transferred to JOHN LEGGETT, who, in his capacity as the sole shareholder, became the owner of all assets owned by the Applicant well before it purported to take transfer of the immovable property on the 16^th of June, 2008.”…,.

The first and the second respondents referred to in the above passage are the first and the second applicants herein. The third respondent is the second respondent in this matter. John Leggett, referred to in the above passage, is the sixth respondent that the applicant herein seeks to join in the main matter (HC1393/08).

The contents of the above passage are further reinforced in the answering affidavit filed by the sixth respondent on 25 September 2008 in HC4211/08 on behalf of the applicant therein. In paragraphs 6 and 7 of the answering affidavit, the sixth respondent states as follows:

“6. Annexures “B1” and “B2” clearly show that 3^rd Respondent transferred her shareholding to John Leggett. I also attach hereto, as Annexure “A” a Share Certificate which clearly shows that John Leggett is the owner of 100 fully paid ordinary shares in the Applicant. It is true that the Applicant was the owner of all its assets, including the immovable property in dispute, and the same (Applicant) was owned by the 3^rd Respondent hence her power to sell and transfer the shares to John Leggett who became the owner of the Applicant. Simple logic testifies that the purpose of purchasing shares is to own and control that company and how 'the deponent did not become the owner of the Applicant's property by acquiring shares in it' is confusing (for want of a better word).

Is it being suggested that Applicant's shareholder (John Leggett) elected to buy the name of the company and did not want to become owner of Applicant's property by acquiring shares in it?

The averments in this paragraph by the 1^st and 2^nd Respondents is, with respect, confusing. Initially, it is alleged that “3^rd Respondent did not transfer any shares to the Applicant. Then a few lines down it is alleged that 'the deponent did not become owner of the Applicant's Property by acquiring shares in it.'

The issue is not who entered into an Agreement with 3^rd Respondent first. The issue is simply, who took transfer of the shares first.

As at 28^th May 2008, John Leggett was the new shareholder and owner of the Applicant.

Annexure “A”, attached hereto, clearly shows that the Share Certificate was issued to John Leggett on the 5^th of June 2008 and 1^st and 2^nd Respondents took transfer improperly of the immovable property on the 16^th of June 2008. The 1^st and 2^nd Respondents either deliberately or through a genuine error on their party overlooked the fact that the Applicant has a new shareholder who took transfer of the Shares from 3^rd Respondent, and, as such, has got a vested interest in the matter. The Applicant is the owner of the immovable property and other movable property and if it cannot be the Applicant who deposes to the Founding Affidavit who should then be?

7. The Applicant had new Shareholders who should have been cited by the respondents. The law is quite clear.”…,.

As per his own averments, the sixth respondent was actually the new sole shareholder of the first respondent in casu. The foregoing brings to the fore the sixth respondent's vested interest in the main matter. Clearly, the relief sought in paragraph 2 of the draft order in the main matter (HC1393/08) would adversely impact on the vested interest of the sixth respondent. That position requires no argument and would indeed form the legal basis upon which a joinder is being sought.

When the rescission application was placed before PATEL J…, he directed that, because of the disputes of fact in the matter, it should go to trial.

The matter eventually went to trial before MAFUSIRE J who granted the rescission on 19 March 2014. The rescission meant that the main matter, (HC1393/08), should now be heard in terms of the rules of this court. However, before the hearing of the matter, the applicants correctly deemed it necessary to join the sixth respondent who was not cited in the main matter.

Curiously, the application for joinder is opposed by the sixth respondent. This is despite the fact that, according to him, he is now the Managing Director and sole shareholder of the first respondent. Ownership of the property, which is really at the center of the dispute between the parties, is said to vest in the first respondent, whose total shares the sixth respondent now claims to own.

In his founding affidavit, in casu, the first applicant explains, in part, as follows:

“8. On the 7^th of March 2008, I together with 2^nd Applicant filed a Court Application before this Honourable Court, seeking an order for specific performance against the 1^st and 2^nd Respondents, among other things. The order was granted in default and has since been rescinded by this Honourable Court. Parties are back to the previous status quo.

I beg leave to refer to the pleadings in 1393/08 as if specifically traversed herein. At the time of the issuing of the said application the 2^nd Respondent had in her possession on the Share Certificates reflecting her as the sole shareholder of the 1^st Respondent, the Company owning Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare. I together with 2^nd Applicant, entered into an agreement to buy the said shares to facilitate ownership and control of Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare.

However, it subsequently came out that the 2^nd Respondent had later purported to issue and sell the same shares in the 1^st Respondent to the 6^th Respondent, John Legett, without our knowledge. Therefore, the said John Legett clearly has an interest in the outcome of the Case No. HC1398/08 which seeks to have us declared the true shareholder of the 1^st Respondent and subsequently, the process of Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare at 6^th Respondent's expense.

9. The 2^nd Applicant and I insist that we are the rightful shareholders in 1^st Respondent and believe that the purported transfer to John Legett was improper and a legal nullity.

We would want the court to rule that purported sale of the shares to John Legett be deemed null and void and it is only proper that the 6^th Defendant/Respondent be given an opportunity to give his side of the story.

10. Therefore, it is necessary that the 6^th Respondent, John Legett, be joined in this case to enable us to enforce the order we are seeking before this Honourable Court. In fact, the Court can properly determine the issue of the purported sale of shares to the 6^th Respondent by the 1^st and 2^nd Respondents as all the interested parties would be before it.”

Indeed, the relief sought in the main matter is the one reproduced in full at page 2 of this judgment. In the main, the applicants pray for the transfer of the property in dispute to themselves.

In the main matter, (HC1393/08), the opposing affidavit sworn to by the sixth respondent states, in part, as follows:-

“(a)…,.

(b) The 2^nd Respondent's interest in this matter ceased on the 28^th of May 2008 when 2^nd Respondent sold and transferred to me her two shares in the 1^st Respondent. I must mention that by this date I already held 98 shares in the 1^st Respondent.

(c) As from 11 December 2007 I had been the majority shareholder in the 1^st Respondent as I had ninety eight shares. Following the agreement of 28 May 2008 I had then assumed 100% shares of the 1^st Respondent.

(d)…,.”

The above is consistent with other averments made in the rescission application (HC4211/08) and already quoted in this judgment.

Notwithstanding the sixth respondent's clear interest in the main matter, (HC1393/08), he remains opposed to the joinder.

In his opposing affidavit in the main matter the sixth respondent states as follows:-

“4. The First Applicant has deliberately misrepresented the relevant facts of this matter which facts are well known to him. Undoubtedly, he has chosen to adopt a course based on incorrect and incomplete facts in order to justify this extremely belated application for joinder.

5. It is correct that on 7 March 2008 the Applicants instituted a Court Application in Case No. HC1393/2008. I was not cited as a party in that application. In that matter, the Applicants sought an order, without any factual or legal basis, for the transfer of the property in Churchill Avenue from the name of the First Respondent into their personal names. There had not been any proper service of the papers in the matter on the First Respondent, but, notwithstanding, a judgment in default was granted.

6. As soon as I learnt to the default judgment, I caused an application for rescission of that default judgment to be made on behalf the First Respondent, which was Case No. HC4211/2008. It was an application brought, in the main, by the First Respondent, for the rescission of the judgment obtained without notice or proper service and without any basis for the transfer to the Applicants of the property belonging to the First Respondent.

7. However, that application was referred to trial by the Honourable Mr Justice Patel on 24 September 2009 and the parties were directed to file pleadings. Among the pleadings filed was one termed “1^st and 2^nd Defendants' Counterclaim', filed on behalf of the present Applicants on 2 November 2009. In the so-called Counter-claim I was cited as the Second Defendant, and the relief sought in that Counterclaim was, in essence, precisely the same relief as is now being sought through the application for joinder. I attach a copy of that so-called Counter claim as Annexure “A” for the benefit of this Honourable Court.

Objection was taken to the attempt to join me as a party as none of the original papers had been served on me, and the legal practitioners representing the present Applicants thereafter withdrew the so-called Counterclaim. When the trial took place earlier this year before the Honourable Mr Justice Mafusire there was no claim made by the present Applicants against me in my personal capacity.

8. The result of that trial, handed down on 19 March 2014, was that the judgment given in default was set aside. Subsequent thereto, on 2 April 2014, I caused to be filed on behalf of the First Respondent the necessary opposing papers to the application brought in Case No. HC1393/2008, together with a counter-application for the eviction of the Applicants from the property belonging to the First Respondent.

The response thereto, on behalf of the Applicants, was to file, on 8 May 2014, the Applicants filed an opposing affidavit to the counter-application. The delay in filing that opposing affidavit had been the subject of correspondence between Gill, Godlonton & Gerrans and Sawyer & Mkushi. As agreement had been reached to allow the late filing of the Opposing Affidavit I make nothing of that delay.

10. On 30 May 2014, Heads of Argument for the Applicants were filed in Case No. HC1393/2008. I am advised that these Heads of Argument were filed out of time and that issue will be raised at the hearing of the application. Some five business day later the present application for joinder was filed and served.

12. The papers in Case No HC1393/2008 are now closed and the matter ready for hearing, rendering it inappropriate to reopen all those papers simply because the Applicants have eventually decided to bring an application for joinder. Most certainly, the Applicants have had since 19 March 2014 to make any such application, but have delayed, I would suggest, deliberately, until 6 June 2014 to bring that application in order to extend their unlawful occupation of the house in Churchill Avenue. It is also intended to interfere with the administration of justice and the proper determination of the issues raised in Case No. HC1393/2008.

11.3 Furthermore, more than three years have elapsed since the Applicants knew that I had entered into two agreements relating to the shares of the First Respondent. Those details had been set out in the founding papers which I caused to be filed on behalf the First Respondent in Case No. HC1393/2008 as long ago as 22 August 2008. I am therefore advised that the claim purported to be brought by way of the joinder application is prescribed and cannot be pursued.”

I take note of the withdrawal of the counter-claim wherein the sixth respondent had been cited.

In addition to the above objections, which I have, for the purpose of clarity, quoted at length, during the hearing of this application the sixth respondent raised another issue. It was an issue of law and the submission was:-

“19. The Form 29 used to institute this present application for joinder specifically states that the application is made in terms of Order 13 Rule 85 of the High Court Rules 1971. This reads:

'85. Subject to Rule 86 two or more persons may be joined together in one action as plaintiffs or defendants whether in convention or in reconvention where -

(a) If separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

(b) All rights to relief claimed in the action, whether they are joint, several or alternative, are in respect of or arise out of the same transaction or series of transactions.

The Rule clearly applies solely to actions and not to applications. It is submitted that there has been no extension of this Rule in the procedure relating to applications. Therefore, the attempt to make an application in terms of Rule 85 in the present circumstances was ill-founded.

21. This is not to say that in application procedures and Order 32 the Court cannot order the joinder of an interested party. But it does mean that any such joinder cannot be to permit substantive relief different to that sought in the founding application to be claimed.”

I find myself in a situation where the party to be joined is clearly an interested party, and, to me, that is the major issue in this case.

The sixth respondent has indeed loudly pronounced his interest in the matter. However, for the detailed reasons given above, the interested party (i.e. the sixth respondent) does not want to be joined. To the extent that my finding, based on his own statements, is that he is indeed an interested party, it becomes difficult to accept the issue of delay as militating against the joinder. The main matter is yet to be set down and heard.

I also believe that the issue of prescription is a matter to be determined during the hearing of the main matter. The same applies to whether or not, because of disputes of fact, the matter should have been by way of action. That, in my view, is an issue to be determined by the judge who will deal with the main matter. It will be his/her prerogative to either dismiss the matter or give directions as happened in the first respondent's application for rescission (i.e. HC4211/08).

A company is a person. It is a juristic person, or, in legal parlance, a legal persona, but all the same a person. It has an identity separate from that of its members. It can own property independently of, and separately from, its members. Thus, a company's assets are not the members' assets.

These cardinal principles seem to have been purposefully ignored or inadvertently overlooked in this matter. The result has been prolonged litigation for over five (5) years.

The facts were largely common cause.

The plaintiff was a duly registered private company. At all relevant times, prior to 16 June 2008, its major asset was an immovable property situate Stand 12896 Salisbury Township, measuring 3,066 square metres, held under Deed of Transfer No.39/76 and otherwise known as 98 Churchill Avenue, Gunhill, Harare (hereafter referred to as “the property”). Its principal officer, in the sense of being the majority shareholder and director, was the third defendant (hereafter referred to as “Sandra Muir”).

On 21 May 2008, this court, MTSHIYA J, granted a default judgment in HC1393/08. This followed an application by the first and second defendants herein who therein were the first and second applicants respectively. Hereafter, I shall refer to the first and second defendants as “Mr and Mrs Gurupira” or “the Gurupiras”. The default judgment effectively directed the plaintiff herein, the first respondent therein, to transfer the property to the Gurupiras. Sandra Muir, the second respondent therein, was ordered to sign the necessary papers within 10 days of the order failing which the Sheriff, who is the fourth defendant herein, or the Deputy Sheriff, who is the fifth defendant herein and was also the fifth respondent therein, would sign the transfer papers in place of Sandra Muir. The order by MTSHIYA J read as follows:

“IT IS ORDERED THAT;

1. The 1^st Respondent [the plaintiff herein] is hereby interdicted from transferring the property known as No.98 Churchill Avenue, Harare, also known as a certain piece of land situate in District of Salisbury Township Lands measuring 3,066 square metres under Deed of Transfer 39/76 to anyone except the 1^st and 2^nd Applicants.

2. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd Respondent [Sandra Muir] is directed to sign all the necessary documents to finalise the transfer within 10 days of the Order.

3. Should the 2^nd Respondent fail or refuse to sign the necessary documents to effect transfer the 4^th or 5^th Respondent [Sheriff and Deputy Sheriff respectively] are hereby directed to sign all the necessary documents to effect the transfer by the 3^rd Respondent [Registrar of Deeds] to 1^st and 2^nd Applicants.

4. The 1^st and 2^nd Respondents shall bear all the costs of this application on attorney-client scale jointly and severally one paying the other to be absolved.”

The order was granted in default of appearance by the plaintiff and Sandra Muir.

Through their erstwhile lawyers, Manase and Manase, the Gurupiras said they had served their application in HC1393/08 in a letter-box at the property.

Following that default judgment, the property was transferred to the Gurupiras on 16 June 2008 under Deed of Transfer No. 4778/2008. The then Deputy Sheriff for Harare had signed the transfer papers. Manase and Manase had been the conveyancers. After that, Manase and Manase had applied for, and had obtained, ex parte, an order of eviction from the Magistrate's Court.

Meanwhile, the plaintiff had changed hands.

One John Legget had become the majority shareholder. This had followed a series of agreements with Sandra Muir. She, on her part, had by then emigrated to Israel. One Diniwe Chinyani (“Diniwe”) had been staying at the property. She had been Sandra Muir's employee of 10 years and more. With the change of ownership of the plaintiff, Diniwe's continued stay on the property, as an employee of the plaintiff, had been through an arrangement with John Legget. As the Messenger of Court was executing the ex parte order of eviction from the Magistrate's Court Diniwe Chinyani raised alarm. It did not help. She and her family were evicted. After that, the Gurupiras took occupation and moved in.

The plaintiff, through John Legget, filed an urgent chamber application for rescission of judgment. However, the matter was adjudged to be not urgent. The plaintiff then filed an ordinary court application for rescission of judgment. It also sought the reversal of the transfer of the property from the Gurupiras back to the plaintiff. Finally, it also sought the eviction of the Gurupiras. The application was filed under the reference no HC4211/08. The application was said to have been brought in terms of both Order 9 Rule 63 and Order 49 Rule 449.

The Gurupiras, through Manase and Manase, opposed the application.

The matter came before PATEL J…, The learned judge felt that there were serious and irreconcilable disputes of facts. On 24 September 2009 he referred the matter to trial. The application would stand as a summons. The parties would file further pleadings in accordance with the rules of court. That was done.

The trial came before me on 10 February 2014....,.

The plaintiff called seven (7) witnesses. The first was one Paradzayi Matambanadzo, a technician from Net One Cellular, a cellular network provider. His evidence was that without a special device, which Net One Cellular did not have, it was not possible for it to decrypt a short message service (sms) transmitted through its platform by one user to the other. This evidence was led to deal with one of the issues in the matter. That issue was whether or not Sandra Muir had transmitted to the Gurupiras an sms advising them of the Zimbabwean dollar balance due by them to her in respect of the sale of shares. It was in issue whether the purchase price would be paid in Zimbabwean dollars or in foreign currency. These transactions had been entered into before the advent of the multi-currency system adopted by this country in February 2009.

The second witness called by the plaintiff was one Leonard Nhari, a forensic scientist. One of the issues was whether or not Sandra Muir had acknowledged receipt of certain payments made by the Gurupiras. Mr Nhari's evidence was that after he had examined Sandra Muir's purported signatures on the questioned documents it was his conclusion that the signatures were not hers but forgeries or imitations.

The third witness called by the plaintiff was John Legget himself. His evidence was that at the time the Gurupiras had taken transfer of the property, through a court order that they had obtained in default, he had already become the owner of the plaintiff through an initial allotment of 98 of the un-issued shares and a subsequent buy out of the remaining two (2) shares still held by Sandra Muir.

John Legget said that neither he nor the plaintiff had been aware of the court application by the Gurupiras. Until the time of eviction he had never heard of the Gurupiras, let alone of their interest in the property. If their application had been served through the letter box at the property then Diniwe Chinyani ought to have seen it. She stayed permanently on the property. She would bring him all mail that concerned Sandra Muir or the plaintiff. John Legget questioned why Manase and Manase had chosen to serve the court application meant for the plaintiff and Sandra Muir through a letter box when they were, at all relevant times, duly represented by legal practitioners, Thompson Stevenson & Associates. At that time there was already litigation pending between the Gurupiras and Sandra Muir under HC6660/07. That was an application by the Gurupiras to compel Sandra Muir to furnish them with her local Bank account details allegedly to enable them to deposit the balance of the purchase price.

The fourth witness called by the plaintiff was Thompson David Stevenson. He had, at all relevant times, been Sandra Muir's attorney. No application had been served on him. He found it strange that Manase and Manase had not directed that the court application in HC4211/08 be served on him. He was at that time still seized of Sandra Muir's mandate in HC6660/07 in which she was vigorously contesting the Gurupiras' claims. Mr Stevenson also said that nobody had approached him for the original title deed for the property. It was strange that Manase and Manase had resorted to applying for a replacement copy in order to register the transfer of the property to the Gurupiras.

The fifth witness called by the plaintiff was Washington Meda. His firm, Admew Management Services, had provided secretarial services to the plaintiff. It had, among other things, registered the transfer of shares in favour of John Legget and had drawn up the share certificates for him.

The sixth witness for the plaintiff was Diniwe Chinyani. She explained that she checked the mail box everyday. She had seen no application. Although at the particular time the application is alleged to have been served Sandra Muir was now in Mozambique on her way to Israel, her home country, she would remit all her mail or that of the plaintiff to John Legget.

The seventh and last witness for the plaintiff was one Anthony Neil Purkis (“Mr Purkis”). He was a chartered secretary in real estate. His evidence was that it was him that had fixed the sale of shares agreement between Sandra Muir and John Legget. Initially, a Mr Stephen Lennox Attwell had offered to buy Sandra Muir's shareholding in the plaintiff. The agreed price had been around US$220,000. However, Mr Attwell had only paid a deposit of $30,000 and had defaulted afterwards. The sale had been cancelled. Mr Purkis had subsequently closed another deal with John Legget. That agreement had been consummated. Out of the proceeds from John Legget, $30,000 would be kept in trust for Mr Attwell. Mr Purkis said he had not heard of the Gurupiras prior to the agreement with John Legget. It was only much later that he had heard of them from Sandra Muir. He had heard that other than a trifle US$17,000, the Gurupiras had failed to pay the sum required on the plaintiff's shares.

For the defence, only Mr Gurupira gave evidence.

Basically, his evidence was that following an advert in one of the local newspapers they had learnt that the property was on sale. The property was owned by the plaintiff. They had been advised that in order to get the property they had to buy Sandra Muir's shares in the plaintiff. Although they were not really interested in the plaintiff they had signed an agreement for the purchase of those shares. This was the only way to get the property. The agreed purchase price had been ZW$7 billion payable over 6 months in local currency. They had fully paid the purchase price; partly in foreign currency, partly in local currency, and partly in kind.

Towards the end, when the balance owing was ZW$6 billion, Sandra Muir had started to prevaricate and it was becoming difficult to remit payments to her. In November 2008, which was the deadline for payment in terms of the agreement, they had had to apply to court for an order to compel her to disclose details of her local Bank account to enable them to make the last payment. This had been the application under HC6660/07. However, that application had not been proceed with. Sandra Muir had agreed to accept cash. She had received and had signed for it on 13 November 2008. The date on the acknowledgement of receipt had incorrectly been entered as 14 November. He had altered it in long hand to read 13 November.

Mr Gurupira denied that they had breached the agreement of sale. He confirmed that Manase and Manase had applied on their behalf to compel the plaintiff and Sandra Muir to transfer the property to him and Mrs Gurupira. The actual registration of transfer had been in terms of the court order.

The defence closed its case after the evidence of Mr Gurupira.

Having heard all the evidence and having read the voluminous record I was left in no doubt that Manase and Manase had snatched a judgment for the Gurupiras who, through their new attorneys, Sawyer and Mkushi, were improperly clinging onto it. The words of McNALLY JA in Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) have kept playing in my mind. At p402E the learned judge of appeal made the following terse remarks (KORSAH JA and MUCHECHETERE JA agreeing):

“Here there was a mistake. It was clearly a mistake. Zimbank had no possible reason to allow the claim against it…, to go by default. No-one, and in that term I include My Moyo of Chikumbirike and Associates, who acted for Masendeke, could have reasonably have thought otherwise.”

The facts of Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) (the Zimbank case) were far removed from those of the instant case.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the respondent's suit had been preceded by a letter of demand. The letter had been acknowledged and had been said to have been under consideration. In the present case, apart from HC6660/07 which Sandra Muir was defending to the hilt, there was no prior demand for the transfer of the property prior to the application under HC421/08 being filed.

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been served and had been acknowledged on behalf of the applicant. It had been served on the accountant of one of the branches of the applicant. The accountant had referred it to the applicant's Head Office where it had reached the office of the General Manager. In the present matter, the summons had been served in a letter box, notwithstanding that Sandra Muir was, at that time, duly represented by Mr Stevenson. The court application in HC4211/07 had actually cited the earlier application under HC6660/07 as a reference matter.

In one of Mr Gurupiras affidavit in opposition to the application for rescission of judgment it was claimed that it was not competent to have served the application on the legal practitioners in the absence of evidence that they had the mandate to represent Sandra Muir in that particular application.

Without doubt, this was a self-serving subterfuge. If no confirmation had been sought how could it be given?

In Zimbabwe Banking Corporation Ltd v Masendeke 1995 (2) ZLR 400 (S) the summons had been inexplicably filed away. The General Manager had not seen it. Default judgment had been sought without any further communication when no appearance to defend had been entered. The judgment was easily rescinded. The respondent's lawyers, who had unreasonably opposed the application for rescission of judgment, just as in this case, narrowly escaped an order of costs de bonis propriis.

In this matter, it is unbelievable that given the surreptitious manner in which Manase and Manase obtained the default judgment and the order of eviction from the Magistrates Court, ex parte, they had the audacity, not only to seek costs, and not only to seek such costs on the higher scale of attorney and client against the plaintiff and John Legget for having applied for rescission of judgment, but also they sought costs de bonis propriis against the plaintiff's attorneys, then, Matimba and Muchengeti.

In this mater, to allow the default judgment to stand would make justice turn on its head. See Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,.; and Pamire & Ors v Dumbutshena NO & Anor 2001 (1) ZLR 123 (H)…,.

What Manase and Manase were doing offends against all notions of justice even though the return of service by the Deputy Sheriff, on the application to compel transfer, stated that the application had been served through the letter box,

I am sceptical that such a huge bundle of documents, which, from its index, was 56 pages long, could be shoved into a standard letter box and fit. The return did not even say that this had been done after a diligent search for someone responsible to receive the papers. Diniwe Chinyani and her children stayed at the property. None of them saw the papers. This lends credence to John Legget's rejection that any such documents had been placed in the letter box. Manase and Manase deliberately avoided service on Sandra Muir's attorneys. It obviously meant that the application was intended not to be served on the plaintiff or on Sandra Muir.

Furthermore, it was manifestly reprehensible for Manase and Manase to rush an ex parte application for eviction through the Magistrate's Court. It was clearly an abuse of the court process. The main matter was playing out in the High Court. It is doubtful that the Magistrate's Court had jurisdiction over such a matter. The High Court was avoided deliberately because evidently no judge of this court would have countenanced an application for such profound and life-changing relief as eviction to be determined ex parte.

The application for an order to compel transfer was itself replete with patent falsehoods. It was claimed that Sandra Muir was the Managing Director of the plaintiff; that she owned 32,000 shares allegedly being the entire share capital of the plaintiff and that Sandra Muir was the sole beneficial owner of the property.

That was false.

Sandra Muir did not own 32,000 of the plaintiff's shares. To the knowledge of the Gurupiras and their lawyers, Manase and Manase, because this was manifest in the agreement of sale, Sandra Muir owned only 2 shares. That was all that had been issued at that time. 32,000 shares was the authorised share capital. Sandra Muir was not the beneficial owner of the property. She may have enjoyed a right of occupation but ownership of the property was vested in the plaintiff.

It was further alleged in Mr Gurupira's affidavit that on 25^th day of some undisclosed month, but in the year 2007, Sandra Muir had sold to him and Mrs Gurupira her entire shareholding in the plaintiff and that those shares had entitled the holders thereof to an exclusive right of ownership, occupation and use of the property. The reference to Sandra Muir's “entire shareholding” could only have been to the 32,000 shares that Sandra Muir was alleged to own. This was calculated to mislead. Sandra Muir had sold to the Gurupiras' only 2 shares. Whilst this was her “entire shareholding” the reference in the preceding paragraph to her owning 32,000 was evidently calculated to give the impression that Sandra Muir had sold Mr and Mrs Gurupira the entire 32,000 shares.

Furthermore, it was false to claim that the shares in the plaintiff gave the holder an exclusive right of ownership of the property. The order by MTSHIYA J directed that the property be transferred to the Gurupiras. Clearly, that relief was sought erroneously. Clearly, it was granted erroneously. Clearly, it was granted in the absence of the plaintiff. There had been no proper service of the papers. Therefore, under Rule 449, the order was liable to be set aside.

I am also satisfied that under Rule 63 the plaintiff has established good and sufficient cause why the order should be set aside. In order to show good and sufficient cause under Rule 63 the applicant has to give a reasonable explanation for the default, the bona fides of the application for rescission of judgment, and the prospects of success on the merits: see Roland & Anor v McDonnell 1986 (2) ZLR 216 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S); Stockill v Griffiths 1992 (1) ZLR 172 (S); and Enock Govha v Ashanti Goldfields Zimbabwe Limited & Anor HH48-12.

These aspects are considered cumulatively and not individually: Stockill v Griffiths 1992 (1) ZLR 172 (S)…,.

I have already considered that the plaintiff was not in wilful default. Regarding the bona fides of the application for rescission; it is quite clear that the plaintiff, without due process, was deprived of its only major asset. Section 183(1)(b) of the Company's Act [Chapter 24:03] prohibits the disposal of the whole or the greater part of the assets of a company without the approval of the company in a general meeting.

This was not done in this case.

The property was just about the only asset of significance owned by the plaintiff. The evidence placed before me showed that the Gurupiras never took transfer of the shares of the plaintiff. All that they were ever interested in was the property even though their agreement was for the purchase of the shares in the company, not the purchase of its assets. The evidence also showed that by the time that the Gurupiras took transfer John Legget had already become the majority shareholder and the Managing Director of the plaintiff. Thus, transfer of the property to the Gurupiras was a nullity. The plaintiff did not sanction it. 

Regarding the prospects of success, I have decided to leave this aspect for determination at the hearing of the main matter under HC1393/08.

Procedurally, once I set aside the order by MTSHIYA J, as I must, the application under HC1393/08 becomes alive again even though I have already heard viva voce evidence on it. In the end, this court shall have to pronounce the fate of the plaintiff and the fate of the assets owned by it. In my view, and without in any way being prescriptive or pre-emptive, some of the issues to be determined in the main application includes the question of whether or not there had been a double sale in the true sense; whether or not the Gurupiras breached the agreement of sale with Sandra Muir by failing to pay the purchase price either timeously or in full; and whether or not that agreement had automatically lapsed.

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15.

The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot be deprived of his property against his will means that he is entitled to recover it from any person who retains possession of it without his consent; SILBERBERG and SCHOEMAN, Law of Property, 3ed…,.

A common thread runs through the above cited dicta. It is that no person is allowed, at law, to retain the property of another against the latter's will. Put differently, the law allows the owner to recover his property from whoever is holding the same against the owner's will. The only exception which the law recognizes is where the possessor has some enforceable right against the owner.

The generally accepted position which is enunciated in the first paragraph of this judgment constitutes the applicant's cause of action. Its contention is that gold claim number 45464, Makaha [“Makaha”] belongs to it. Makaha is in Mudzi which is under Mutoko District. It states that:

(a) Makaha was granted to it in 2012 by the fourteenth respondent (Minister of Mines and Mining Development); and

(b) In an ownership dispute of Makaha which ensued between the fourth respondent and it in October 2016, the Acting Provincial Mining Director for Mashonaland East Province, who works under the purview of the fourteenth respondent (Minister of Mines and Mining Development), decided the dispute in its favour.

It alleges that the first to thirteenth respondents' continued occupation of, and mining at, Makaha adversely affects its interests as well as its mining rights. It, therefore, moves the court to evict the respondents from Makaha.

All the respondents oppose the application.

The second to the thirteenth respondents are a syndicate which is known as Tabatana Mining Syndicate, the first respondent in casu. The fourteenth respondent is the Minister of Mines and Mining Development.

(i) They own Makaha through the fifth respondent; and

(ii) They appealed the decision of the Acting Provincial Mining Director to the fourteenth respondent who is yet to decide the appeal.

They allege that the application for their eviction was prematurely filed. They contend that the parties should await the decision of the fourteenth respondent.

They state that there is a dispute of ownership of Makaha in terms of which the applicant and them are both in possession of certificates of registration. They aver that there is a material dispute of fact which cannot be resolved on the papers. The matter, they insist, should be properly ventilated and determined by way of an action. They aver that it requires viva voce evidence for its resolution.

They challenge the applicant's certificate of registration. They say it is not authentic but a fraud.

They deny that there was ever any forfeiture of Makaha which was made against them or against the fifth respondent. The forfeiture, they state, was improperly done and is, therefore, invalid. They insist that their mining activities at Makaha are within the law. They state that their appeal suspends the decision of the Acting Provincial Mining Director. They aver that all the processes are suspended pending the determination of the appeal. They deny having ever despoiled the applicant of Makaha. They move the court to dismiss the application with costs on a higher scale.

The fourteenth respondent's affidavit (Minister of Mines and Mining Development) aims at clarifying issues, he says. He acknowledges that the respondents' appeal is before him for his consideration. He states that he set up what he terms the Disputes Committee which he mandated to hear, deliberate and make recommendations on the parties' dispute to him. He confirms that the Disputes Committee is seized with the parties' case.

As proof of its ownership of Makaha, the applicant attached to its application Annexure C. The annexure is a certificate of registration which the fourteenth respondent issued to it on 9 September 2014. It shows that it is the registered owner of Makaha.

The applicant's statement, which is to the effect that it acquired mining rights of Makaha in 2012, cannot possibly be correct. The date of registration which appears on the certificate does not support that allegation. Mineral rights are not acquired through any form other than by way of the annexure which bears 9 September 2014 as the date that the fourteenth respondent granted mining rights of Makaha to the applicant.

It is common cause that the respondents, less the fourteenth respondent (Minister of Mines and Mining Development), showed some activity at Makaha in 2016. Their activity created the dispute between the applicant and them. The same was referred to the Acting Provincial Mining Director (“the Director”) for Mashonaland East Province for resolution. The Director works under the supervision of the fourteenth respondent. The dispute which, in earnest, was between the applicant and the fourth respondent was decided in the applicant's favour.

The Director's ruling, which is dated 25 October 2016, reads, in part, as follows:

“Please be advised that Earthrow Investments (Pvt) Ltd has no legal right over mining claims registered in favour of Prosper Machekera even though he might be a Director in the company. Earthrow Investments and Prosper Machekera should sign an official tribute agreement and/or transfer title from Machekera P.

Basing on the above observations it is concluded that Earthrow Investments (Pvt) Ltd does not have a claim in the areas under dispute….,. Milmath Securities should be allowed to work…,.”…,.

It is the statement of the applicant that the decision of the Director constitutes its second reason for claiming title in Makaha. It submits that it should be allowed to continue its mining operations at Makaha without any interference from the respondents. It avers that these despoiled it of Makaha. It therefore moves the court for their eviction from the same.

The decision of the Director should, in my view, be read in its proper context.

An effortless reading of the same shows that the Director acknowledged the fifth respondent's title in Makaha. What he is disagreeing with is the allegation that the fourth respondent has title in the same. He, in all probability, must have examined the records which are in his office. Those must have revealed to him that the fifth (Proper Machekera), and not the fourth (Earthrow Investments) respondent has title in Makaha.

It is for the mentioned reason, if for no other, that he stated that the fourth respondent (Earthrow Investments) has no legal right over mining claims which are registered in favour of the fifth respondent (Proper Machekera).

He acknowledged, as late as October 2016, that Makaha was registered in the name of the fifth respondent. He acknowledges, further, that the fifth respondent may be a director of the fourth respondent. He states the correct position of the law which is that the only occasion when the fourth respondent can have title of Makaha occurs when the registered owner of Makaha (i.e. the fifth respondent) signs an official tribute agreement with, and/or transfers title in Makaha to, the fourth respondent.

According to the Director's records, therefore, two persons have title in Makaha. These are the applicant and the fifth respondent (Proper Machekera). The fourth respondent (Earthrow Investments) does not.

It was by way of comparative analysis that he remained of the view that when the fourth respondent's case is compared with that of the applicant, the latter entity, which has title in Makaha, was better placed than the fourth respondent to continue its mining operations at Makaha. That is the context in which the Director's decision should be understood.

The applicant makes every effort to discredit the appeal which the first to the thirteenth respondents filed with the fourteenth respondent (Minister of Mines and Mining Development) against the Director's decision. It states that the appeal is defective for lack of locus standi on the part of the twelfth respondent who filed the same. He, it says, was not authorized by the fourth respondent which was involved in the dispute with it to appeal as he did. He, it alleges further, is not a director or an employee of the fourth respondent. He, it concludes, does not have the authority to appeal as he did....,. 

The respondents' contrary statement is that their appeal is properly before the fourteenth respondent....,.

Whether or not the appeal is defective, as the applicant would have me believe, is not for me to decide. I am not seized with the appeal. The fourteenth respondent (the Minister of Mines and Mining Development) remains seized with the same. He will decide that at his own time. 

The applicant's submission on the propriety or otherwise of the appeal is, therefore, misplaced.