Jurisdiction re: Judicial Deference iro Assessment of Prospects on Appeal, Review or Main Proceedings

SSC99-21 : JAISON ZHUWAKI vs THE STATE
Ruled By: CHITAKUNYE AJA

On 9 April 2021, I struck off this matter from the roll and gave reasons extempore. The applicant has requested for written reason for my decision. These are the reasons.

In this application, the applicant seeks to challenge the decision of the High Court handed down on 3 May 2018 dismissing his application for condonation and leave to appeal in person. The application was purportedly filed in terms of Rule 21 of the Supreme Court Rules 2018.

The applicant seeks an order in the following terms:

“1. The application against refusal for condonation for the late filing of an appeal be and is hereby granted.

2. The appellant is hereby granted leave to prosecute an appeal in person to the High Court.

3. The appellant shall file his notice of appeal by the Registrar of the High Court.”

BACKGROUND

The applicant was convicted for contravening section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9.23] and sentenced to 20 years imprisonment of which 2 years were suspended on condition of future good behaviour on 19 November 2013 by a Regional Magistrate at Chinhoyi Regional Court.

He did not appeal against both conviction and sentence within the requisite period.

On 21 March 2017, the applicant applied for condonation of late filing of an appeal and leave to appeal in person with the High Court.

That application was dismissed by CHATUKUTA J on 3 May 2018 under case number CON 61/17.

On 29 May 2018, the applicant filed a similar application before the same court.

It is pertinent to note, that, in this second application, the applicant did not disclose the fact that he had a similar application dismissed on 3 May 2018 by the same court.

The respondent did not file any response to that second application.

This second application was heard and granted by MUNANGATI-MANONGWA J on 22 July 2019 under case number CON 142/18.

The applicant did not, however, proceed to file the appeal despite the granting of that order.

Instead, on 13 August 2020, the applicant filed another application, in case number CON 308/20, for extension of time within which to file the appeal. This application sought an extension of time within which to comply with the order granted in CON 142/18.

In response to this latest application, the respondent contended, that, in case number CON 142/18 the applicant did not disclose to the court that his initial application had been dismissed in CON 61/17 on 3 May 2018. The respondent thus contended, that, the order in case number CON 142/18 was a nullity as the court was functus officio.

As a consequence, TAGU J dismissed the application to extend the order in CON 142/18 on 3 November 2020.

The applicant, having considered and conceded that both orders by MUNANGATI-MANONGWA J and TAGU J were invalid at law, decided to approach this Court in a bid to challenge the order of 3 May 2018.

In that case (CON 61/17) the Judge had found that the period of delay of 2 and a half years (it was in fact 3 and a half years) was inordinate, and that the reasons for the delay were also contradictory and were not reasonable in the circumstances.

The Judge a quo also held, that, there were no prospects of success on appeal against both conviction and sentence, as such, the application was dismissed in toto.

It is that determination that the applicant seeks to challenge but he is out of time hence this application titled 'application against refusal of condonation and leave to prosecute his appeal in person in terms of Rule 21 of the Supreme Court Rules 2018.'

This application was filed on 23 December 2020 - some two years and seven months after the determination in question. The delay is certainly inordinate.

In his submissions, the applicant averred, that, he was in fact appealing against the court a quo's determination of 3 May 2018. It was in this regard that he indicated that this application was in terms of Rule 21 of the Supreme Court Rules 2018 as he had not appealed in time.

ISSUES FOR DETERMINATION

1. Whether or not there is a proper application before this Court.

2. Whether or not the applicant has established a good cause for the granting of the application....,.

It is trite that the intended appeal must be against the decision of the court a quo.

The grounds of appeal in the draft notice of appeal filed with the application must relate to the findings by the court a quo in dismissing his application for condonation and leave to appeal in person. It is from such grounds that the court will assess whether there is an arguable case for appeal warranting a hearing of the appeal.

It is only upon a favorable result that an appeal will be before this Court in terms of the filed draft notice of appeal.

It is imperative to note, that, the draft notice of appeal filed with this application is a draft notice of appeal to the High Court and not an appeal to the Supreme Court.

It pertains to findings by the Regional Magistrate.

In short, the notice of appeal is against the Regional Court's judgment and not the determination by the High Court.

The prospects of success I am enjoined to consider must relate to the judgment of the court a quo on the application that had been placed before it.

The applicant's failure to appreciate the matter before me is epitomized by the nature of the relief he sought.

The relief, in effect, is for the setting aside of the court a quo's judgment and substituting it with an order granting leave to note his appeal in the High Court out of time and leave to prosecute the appeal in person.

Such a relief is incompetent as this is not an appeal but ought to be an application to note an appeal to the Supreme Court out of time. It is not the appeal itself....,.

As the applicant was a self-actor the nature of the relief to eventually grant would have been within my discretion had he properly set out a case for extension of time within which to appeal.

However, the failure to proffer any acceptable explanation or justification for steps taken after the dismissal of the initial application, and the lack of any grounds of appeal attacking the court a quo's judgment, make it clear that there is no proper application for extension of time within which to note an appeal in terms of Rule 21 of the Supreme Court Rules 2018.

The applicant was, for all intents and purposes, seeking to be granted what the court a quo denied him without filing a proper appeal.

Accordingly, the matter was struck off the roll.

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

The appellant is a clergyman of the Prophetic Healing and Deliverance Ministries, commonly known as the PHD Ministries.

The respondent is the Zimbabwe Gender Commission (“the Commission”), an independent commission provided for in accordance with section 245 of the Constitution and established as a body corporate in terms of section 2 of the Zimbabwe Gender Commission Act [Chapter 10:31] (the “Act”).

Its functions are set out in section 246 of the Constitution as being:

“(a) To monitor issues concerning gender equality to ensure gender equality as provided in this Constitution;

(b) To investigate possible violations of rights relating to gender;

(c) To receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate;

(d) To conduct research into issues relating to gender and social justice, and to recommend changes to laws and practices which lead to discrimination based on gender;

(e) To advise public and private institutions on steps to be taken to ensure gender equality;

(f) To recommend affirmative action programmes to achieve gender equality;

(g) To recommend prosecution for criminal violations of rights relating to gender;

(h) To secure appropriate redress where rights relating to gender have been violated; and

(i) To do everything necessary to promote gender equality.”

On 23 August 2019, the Zimbabwe Gender Commission (Commission) issued General Notice 1444 of 2019 which it published in the Government Gazette. The General Notice authorized the respondent to conduct an investigation into complaints of sexual abuse, generally, made against the appellant.

In response, on 3 September 2019, the appellant filed an application with the High Court for a review of the decision by the respondent to launch the investigation pursuant to the General Notice.

He followed this up with an urgent chamber application in which he sought, by way of interim relief, an interdict against the conduct of the investigation by the respondent.

On 22 October 2019, the High Court dismissed the urgent chamber application with costs. This appeal is against that judgment.

PROCEEDINGS IN THE COURT A QUO

In seeking relief before the High Court, the appellant attached a draft order in which he sought the following:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms;

1. General Notice No.1444 of 2019 published in the Gazette of 23 August 2019 be hereby declared null and void and of no force and effect.

2. That the intended investigations of the applicant, for sexual abuse by the Respondent, in terms of General Notice No.1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby permanently stayed.

3. Costs will be costs in the cause.

TERMS OF THE INTERIM RELIEF GRANTED

1. Pending the determination of this matter on the return day, the intended investigations of the Applicant, for sexual abuse by the Respondent, in terms of General Notice No. 1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby stayed.”

In his application for an interdict, the appellant averred that he had sought the review of the decision to cause an investigation against him on allegations of sexual abuse arising from complaints laid against him.

He contended, that, in the review, he sought to challenge the jurisdiction of the Zimbabwe Gender Commission (Commission) in respect of the General Notice as well as the intended investigation into the alleged complaints of sexual abuse.

He averred, that, the contemplated investigations were imminent, and that, by his reckoning, were due to commence, at the earliest, by 12 September 2019, by which date his application for review would not have been determined, and, that, the mere pendency of the application would not stop the Zimbabwe Gender Commission (Commission) from proceeding with the investigation of the alleged complaints of sexual abuse.

He contended, that, he had good prospects of succeeding on the review and that his rights from the review process would be rendered nugatory if the investigations were not halted pending the review.

His stance was that neither the Constitution nor the Zimbabwe Gender Commission Act [Chapter 10:31] afforded the Zimbabwe Gender Commission (Commission) the authority to conduct the contemplated investigation. To that extent, any investigation by the Commission constituted an illegality.

He contended further, that, what the Commission intended from the published notice was outside its statutory mandate, and, as a result, the appellant was entitled to the protection of the law which he was seeking from the court. Thus, it was only right that the court issue an interdict against the Zimbabwe Gender Commission (Commission).

Over and above the averments referred to in the aforegoing, the appellant contended, that, even if the Zimbabwe Gender Commission (Commission) had the authority to conduct an investigation, the methodology it had employed violated his constitutional rights and legal principles and rules governing evidence such as that which the Commission wished to gather. The methods adopted would lead to a compromised result which would cause him to suffer irreversible harm.

He averred that the balance of convenience was in his favour, and that, if he was not granted the relief sought, he would suffer unconscionable irreparable harm in that he would 'be put out of pocket and suffer permanent impairment of his personal dignity which no other process could remedy.' He did not have any other remedy that he could employ to stop the process which he considered illegal.

He opined, that, the Zimbabwe Gender Commission (Commission), on the other hand, would not suffer any prejudice if its intended investigation were halted.

The Zimbabwe Gender Commission (Commission) opposed the application.

It maintained, that, it had investigative functions in terms of the Constitution and its enabling Act. It contended, that, under the provisions of section 5 of the Zimbabwe Gender Commission Act [Chapter 10:31], an investigation is preceded by the promulgation of a notice in the Government Gazette and the publishing of such notice in one or more national newspapers informing the public of its intention to investigate a systemic barrier as provided in the Zimbabwe Gender Commission Act.

The Zimbabwe Gender Commission (Commission) contended, that, the notice it issued was lawful and provided for by law.

It averred, that, it had received numerous complaints of alleged sexual abuse from numerous quarters against the appellant which necessitated the issuance of the notice to facilitate the conduct of investigations into the said complaints.

It denied suggestions by the appellant that it had neither the mandate nor the authority to proceed as intended.

In so far as the prospects of success were concerned, the Zimbabwe Gender Commission argued that there were none.

It pointed to the averment by the appellant, that, there were numerous complaints against him, some of which were the subject of police investigations. The Commission averred, that, an investigation under section 5 of the Zimbabwe Gender Commission Act can only be possible where complainants and witnesses have come forward with allegations pointing to the possibility of the existence of alleged violations.

DETERMINATION BY THE COURT A QUO

The court a quo decided the application on the sole issue of whether or not the applicant's rights were likely to be violated. It said the following:

“I do not see how the applicant's rights may be violated by the investigation. He has a right to legal representation. The investigation itself is not of a criminal nature, in the sense that the respondent is not endowed with any power to impose any sanction consequent to an investigation.”

The court a quo concluded, that, the Zimbabwe Gender Commission (Commission), had, under section 7 of the Zimbabwe Gender Commission Act, the power to conduct an investigation, and, where the investigation reveals systemic barriers prejudicial to gender equality, etc, after informing the Minister, make a report to Parliament on its findings.

The court a quo found, that, there was no immediate impact on the appellant from the investigation as contemplated by the Zimbabwe Gender Commission.

THE APPEAL

The grounds of appeal are framed as follows:

“1. The court a quo misdirected itself in totally misconstruing the application before it as one for the setting aside of investigations and so erred when consideration is given to the fact that the application was actually meant to interdict the holding of unlawful investigations.

2. The court further erred in concluding, that, protection against harm to fama cannot, at law, be sought through urgent interdictory relief and so erred in arriving at a finding which is contrary to established and well-regarded authority.

3. Having found that respondent had instituted an investigation in terms of section 5 of the Gender Commission Act [Chapter 10:31] and having concluded that the issues it sought to investigate were outside the remit of the powers contained in that provision, the court a quo erred in not concluding that appellant had prospects of success in the review application and was consequently due the remedy of an interdict.

4. A fortiori, the court a quo erred in failing to appreciate that the principle of legality requires that when challenged, the exercise of public power must be justified on the basis upon which it has been specifically exercised, and that, for that reason, the notice impugned not having been properly given in terms of section 5 of the Act could not be held valid on the basis of constitutional provisions.

5. Having come to the conclusion that the process which had been instituted by the respondent was pointless and abortive, the court a quo erred in not concluding that appellant's rights were imperilled by having to be required to go through a sham and that he was consequently entitled to protection since the balance of convenience was in his favour.”

ARGUMENTS ON APPEAL

Counsel for the appellant commenced his argument by challenging the jurisdiction of the Zimbabwe Gender Commission (Commission) to conduct the investigation as set out in the General Notice.

He submitted that the General Notice had not been issued in terms of the Zimbabwe Gender Commission Act [Chapter 10:31].

He added, that, the court a quo had itself queried the necessity by the Commission to publish the General Notice, which it said was inconsistent with the Zimbabwe Gender Commission Act, and suggested that the court a quo had implied that section 5 of the Zimbabwe Gender Commission Act was inappropriately relied upon by the Commission.

Counsel for the appellant argued, that, before the court a quo, the appellant was called upon to establish a prima facie case.

He stated that the Zimbabwe Gender Commission (Commission) did not have jurisdiction to issue the General Notice.

He highlighted to this court, that, once the judge a quo made a finding that the investigation sought to be conducted by the respondent was not a section 5 process, it automatically followed that the court ought to have granted the relief sought by the appellant.

The court engaged counsel for the appellant to shed light on what he understood a General Notice to be.

To his credit, counsel accepted that a General Notice is in the nature of a statutory instrument and has the force of law.

The court also enquired from counsel whether it was possible, at law, for a court to grant an interdict the effect of which was to suspend the operation of a law that has legal force and effect.

In addition, the court directed counsel for the appellant, premised on the relief sought in the court a quo wherein the final order sought was the permanent stay of the investigations, and enquired of him whether the application for review was not a superfluous process given that the final order sought by the appellant was a permanent stay of the investigations.

Once granted by the court, in terms of the final order prayed for, the order would render the review application inconsequential.

Counsel for the appellant contended otherwise.

Per contra, counsel for the respondent submitted, that, owing to the exchange between counsel for the appellant and the court, the issue which arose for determination was whether or not a law can be set aside through an application for an interdict.

Counsel for the respondent contended, that, in view of the promulgation of the General Notice as a law, anything done pursuant thereto must be presumed to be valid.

She argued further, that, a court cannot interdict lawful conduct.

For this contention, she sought reliance on ZIMRA v Packers International SC28-16 and Mayor Logistics v ZIMRA CC07-14, which, according to her submissions, both underscored the principle that a challenge to law cannot be made in terms of an interdict.

She proceeded to argue that the Zimbabwe Gender Commission (Commission) had acted within the ambit of its powers as prescribed in terms of section 5 of the Zimbabwe Gender Commission Act in that systemic barrier to gender equality can emanate from the conduct of one person. In this regard, she argued, the appellant, being an influential leader of a great movement, it is that stature and influence that he seeks to protect.

Counsel went on to argue, that, the Constitution, in section 246, gave the Commission the mandate to carry out such investigations. She conceded, that, the functions stated in section 246 of the Constitution are not restated in the Zimbabwe Gender Commission Act but that this did not take away the Commission's authority to act in the manner that it did because the purpose of the Zimbabwe Gender Commission Act is not to restate what is in the Constitution but to augment the contents thereof.

Counsel for the respondent submitted, that, section 246 paragraphs (b) and (c) of the Constitution set out the investigative functions of the Zimbabwe Gender Commission (Commission). She also referred the court to section 2 of the Zimbabwe Gender Commission Act which defines “systemic barriers” and added that a reading of section 2 showed that the definition therein was not exhaustive, and, for that reason, the Commission took the view that organised worship is a sphere of activity as contemplated in the Zimbabwe Gender Commission Act.

In any event, counsel for the respondent argued, the Commission had decided not to proceed with the investigations and decided to await the outcome of the review application.

In response, counsel for the appellant indicated to the court, that, the authorities cited by counsel for the Commission were irrelevant and distinguishable to the present matter.

He argued, that, the General Notice was inconsistent with the Zimbabwe Gender Commission Act and this should have automatically translated to a prima facie case for the appellant enabling him to obtain relief from the court a quo.

He submitted, that, section 5 of the Zimbabwe Gender Commission Act does not allow the Commission to exercise the powers it purported to have exercised in terms of the General Notice.

He argued, that, there was no systemic barrier involved in casu that prejudiced gender equality or gender equity.

Also, the Commission was said to have failed to indicate the section of society that was to be investigated as envisaged by section 2(1) of the Zimbabwe Gender Commission Act.

In closing his submissions, counsel for the appellant stated, that, the methodology employed by the Commission was inappropriate and not in conformity with relevant provisions of the Zimbabwe Gender Commission Act.

Having said that, he prayed that the appeal be allowed and the decision of the court a quo be set aside.

ISSUE FOR DETERMINATION

The facts of the matter are not in dispute and the appeal falls for determination on the basis of the ratio decidendi of the court a quo.

Although the appellant raised numerous grounds of appeal, there is only one issue that arises for determination and is capable of disposing of this whole appeal.

The only issue is whether or not the court a quo was wrong in refusing the application for an interdict.

STATUS OF THE GENERAL NOTICE

The Zimbabwe Gender Commission (Commission) is imbued with an investigative mandate, both in terms of the Constitution and the enabling Act. It issued a General Notice, and the appellant seeks to challenge the decision to publish the Notice through the review that he has filed.

What is a General Notice?

A General Notice is a public notice published in the Government Gazette. A General Notice is in the same category as a statutory instrument. It is subsidiary legislation. It, therefore, has the force and effect of law.

It can also be viewed as a document that has legislative character, and, like any other law, it has legal force and effect.

It is an essential element of due process, and, therefore, once it is issued it must be complied with unless set aside. As a consequence, until and unless it has been set aside, anything done under or pursuant to such General Notice is lawful.

It is not necessary in this appeal to determine whether or not the Zimbabwe Gender Commission (Commission) exceeded its powers in issuing the General Notice. Whether or not the Notice is in accordance with the powers bestowed on the Commission is for the court hearing the application for review to decide.

SSC111-21 : MUNYARADZI KEREKE vs THE STATE and FRANCIS MARAMWIDZE
Ruled By: MWAYERA JA

On 4 August 2021, after considering all documents filed of record and having been orally addressed by counsel, I issued an order admitting the applicant to bail, and indicated that I would avail written reasons for my disposition. The reasons are captioned herein.THE PARTIESThe applicant was convicted by the Regional ...

THE PARTIES

The applicant was convicted by the Regional Magistrates for rape of an 11 year old complainant. He approached this Court, legally represented by counsel of record, seeking bail pending appeal.

The first respondent is the State represented by counsel of record.

The second respondent is the legal guardian of the complainant represented by counsel of record who instituted a private prosecution culminating in the conviction and sentence of the applicant.

Worth noting is the fact that counsel for the State submitted, on behalf of the State, that, the latter would be bound by the court's decision.

He initially sought to be excused but conceded that the State was properly cited as an interested party even though the matter arose from private prosecution.

The criminal matter squarely falls in the domain of the State for not only prosecution but enforcement and/or discharge of the order as occurred in this case.

It was submitted by counsel for the State, that, the State had no meaningful submissions to make for and against the application but that there was no prejudice in the citation of the State as a party to the proceedings.

FACTUAL BACKGROUND

The applicant was, at the instigation of a private prosecution, arraigned before the Regional Magistrates Court on one count of indecent assault and one count of rape. The applicant was acquitted of the indecent assault charge and convicted of rape. The applicant was duly sentenced to 14 years imprisonment of which 4 years imprisonment were suspended on the usual conditions of good behaviour.

Dissatisfied with the Regional Magistrate's decision, the applicant lodged an appeal against both sentence and conviction in the High Court.

The High Court upheld the Regional Magistrate's finding that the applicant raped the complainant. He armed with a pistol; used threats to sexually violate the 11-year old niece of his wife. The High Court, like the Regional Magistrate, held that the complainant and other State witnesses evidence, inclusive of the medical evidence, clearly proved that the applicant had raped the complainant in violation of section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In short, the High Court, in dismissing the applicant's appeal, found nothing amiss with the manner in which the trial court handled the matter.

It held that the conviction was anchored on the evidence adduced and the sentence imposed was in sync with sentences in cases of a similar nature.

The applicant was not deterred by the dismissal of his appeal. He applied for leave to appeal. The application was dismissed by the High Court on 10 December 2020. He, thereafter, approached this court with an application for leave to appeal which application was granted on 8 July 2021, culminating in the present application for bail pending appeal.

SUBMISSION BY PARTIES

The applicant's counsel submitted, that, the applicant is a family man with heavy responsibilities since he has more than one wife and twenty children. He submitted that this background, when viewed in conjunction with the fact, that, at the time of filing of the application, the applicant had served the larger part of the sentence and was only left with twenty months, minimises the temptation to abscond. It was further submitted, that, since the application was being made at the tail end of the sentence there is no inducement to abscond and that the interest of justice will not be prejudiced by granting the applicant the chance to prosecute his appeal while out of custody.

On the issue of prospects of success, it was submitted, on behalf of the applicant, that, he enjoyed reasonable prospects of success on appeal. The applicant's counsel submitted that the court a quo, in upholding the conviction of the applicant by the Magistrate Court, paid no attention to the totality of the circumstances and evidence.

Counsel for the applicant further drew attention of the court to the defence of alibi he raised before the trial court as not having been properly assessed.

He further raised concern in the inconsistencies in the complainant's evidence on how the sexual violation occurred.

The applicant also took issue with the finding of the trial court that defence witnesses had been coached because their statements were commissioned by the same lawyer. There was no evidence of how the witnesses were coached and whether the act of commissioning statements by the same lawyer conclusively meant witnesses were coached.

Counsel for the applicant submitted, that, the applicant was not at the alleged scene of crime at the relevant time and led evidence in support of his defence of alibi.

The defence witnesses were consistent that the applicant could not have committed the offence of rape since he was not at the scene of the crime.

He contended, that, considering the totality of the State and defence evidence, the applicant enjoyed reasonable prospects of success on appeal and thus the applicant ought to be admitted to bail.

It was further submitted, that, this Court, in granting the applicant leave to appeal in SC86-21, had traversed the question of whether or not there are prospects of success and concluded that the appeal has good prospects of success.

The respondent's counsel submitted, that, the application for bail pending appeal should be dismissed because the applicant did not meet the requirements.

He contended, that, the applicant, by virtue of having many wives and having given various addresses in the High Court bail applications, should be viewed as a person with no permanent residence. This factor would mean, that, if he is admitted to bail, chances of absconding are high.

Counsel for the respondent submitted, further, that, even without a passport, the applicant could take advantage of the porous nature of our borders and evade justice.

He submitted that the applicant, having experienced the rigours of prison, was likely to abscond.

The respondent argued that the 20 months left of his sentence is not a short time such that if the applicant is released on bail his chances of returning to prison voluntarily are remote.

Counsel for the respondent also raised concern that the applicant wields influence which would enable him to roam out freely without completing his prison term. He was said to have influence on the prison system as he had been allowed to personally interact with his family and had caused three senior prison officers to offend against the law. To buttress the alleged influence on the system, counsel for the respondent highlighted that it took a private prosecution for the applicant to be brought to book as he used his influence to manipulate the system and public officials, including the police, to frustrate the complainant's case.

Counsel for the respondent further submitted, that, although this Court, in SC86-21, in granting leave to appeal, considered prospects of success, there are outstanding factors which militate against admission of the applicant to bail pending appeal.

He stressed, that, there was no certainty as regards the applicant's residence and that there is no explanation of how the new property he offers as security came into existence.

He submitted that there were no prospects of success on appeal as the defence of alibi was rebutted and it was found that the witnesses were coached.

He however acknowledged the fact, that, prospects of success on appeal is a factor considered in granting leave to appeal and that the court, in granting leave to appeal, made a finding that the evidence of the witnesses who are alleged to have been coached has to be tested.

THE LAW

The factors that fall for consideration in an application of this nature are fairly settled and can be summarised as follows:

1. Prospects of success on appeal.

2. The likely delay in hearing the appeal.

3. The likelihood of abscondment.

4. The interest of administration of justice.

In an application of this nature, it is important to note that the bail is being sought after conviction. It is essentially different from an application for bail pending trial in which the presumption of innocence operates in favour of the applicant.

Bail in the latter scenario, is a matter of right and is only denied where there are compelling reasons warranting deprivation of liberty.

In bail pending appeal, the applicant is a convict, and, as such, has the onus to show positive grounds for his admission to bail. The position was ably stated by Patel J…, in S v Dzvairo 2006 (1) ZLR 45 H…,:

“Where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be granted bail. The proper approach is not that bail will be granted in the absence of positive grounds for refusal but that in the absence of positive grounds for granting bail, it will be refused. First and foremost, the applicant must show that there is a reasonable prospect of success on appeal.”

See also S v Tengende 1981 ZLR 445 (S)…,.

It is important to note, that, the burden of proof in bail pending appeal lies on the applicant who has to show that the interests of justice will not be frustrated by his admission to bail. Section 115(C)(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] is instructive on the issue of onus. It states, in subsection (2):

“Where an accused person who is in custody in respect of an offence applies to be admitted to bail…, (b) after he or she has been convicted of the offence, he or she shall bear the burden of showing, on a balance of probabilities, that it is in the interest of justice for him or her to be released on bail.”

It is apparent, that, in exercising its discretion whether or not to admit the applicant to bail pending appeal the court has to consider all the factors, cumulatively, in order to come up with a just decision.

The applicant has already been convicted. He must tip the scale in his favour by demonstrating that there are reasonable prospects of success on appeal and that his release on bail will not jeopardise the interest of the administration of justice.

The applicant has to demonstrate, that, in the event of him not prosecuting the appeal successfully he will not abscond but avail himself to fulfil the societal interest of having matters finalised to their logical conclusion.

APPLICATION OF THE LAW TO THE FACTS

In the present case, the applicant is seeking to be admitted to bail pending appeal on the basis that there are reasonable prospects of success on appeal. He contends that the test for reasonable prospects of success was ably and appropriately discussed and accepted by this court when leave to appeal was granted.

I do not propose to revisit the finding of this Court on the issue of reasonable prospects of success on appeal. Suffice to mention, that, the applicant ably demonstrated that there are realistic prospects and not remote prospects of success.

The unsatisfactory aspects of evidence in the record a quo, such as the unclear circumstances under which the offence was committed; inconsistencies in the complainant's description of how and where the rape occurred; the defence of alibi raised; and the dismissal of the defence witnesses version, without testing their veracity, on the basis that the statements were commissioned by the same Commissioner of Oaths, all point to an appeal with some substance.

It is my considered view, that, there are reasonable prospects of success on appeal in this case.

The reasonable prospects of success on appeal, when viewed in conjunction with the other factors which fall for consideration in applications of this nature, go a long way in showing that it is in the interests of justice that the applicant be considered for bail.

The applicant has served a considerably large period of the sentence pursuant to conviction and sentence. At the time of lodging the application, he can safely be said to be at the tail end of the sentence. Left with only 20 months of the sentence, the applicant, having been granted leave to appeal on the basis that the appeal is reasonably arguable with real and reasonable possibility of success on appeal, has little incentive to abscond.

I am alive to the fact that the applicant has tasted the rigours of prison and that he appreciates prison life, but, considering he is left with just some months of imprisonment, there is minimal inducement to abscond.

The applicant is a family man of fixed abode. That he has several properties and wives is not an indication that he is likely to abscond and evade justice. In fact, the circumstances of the matter are such that the applicant has more to lose by absconding.

The proposed bail consideration, and the sureties that have been offered, go a long way in allaying the fears of absconding, moreso considering that the applicant has reasonable prospects of success on appeal and that he has served more than 70 per cent of the sentence imposed.

It is common cause that there is considerably long delay in hearing of appeals.

A number of factors, including the current backlog escalated by the COVID 19 pandemic, contribute to the delay.

Considering the possible delay, in the event of the applicant prosecuting the appeal with success, if he is not admitted to bail, the appeal will be finalised after he would have completed serving his term of imprisonment. The appeal will purely be academic much to the detriment of the administration of justice.

The second respondent's counsel argued, extensively, that the applicant has influence on the justice delivery system.

However, the facts of the case do not buttress the existence of such influence.

If he had influence of such magnitude, as sought to be portrayed, then, one wonders how the applicant served more than seventy percent of the prison term imposed.

The feared influence, considering the successful prosecution and sentence already served, is not real and does not constitute a threat to the administration of justice.

Upon considering the circumstances of this matter, bail pending appeal requirements, and the proposed stringent bail conditions, the scale tilts in favour of the applicant being admitted to bail.

It is apparent that the applicant enjoys reasonable prospect of success on appeal. The sentence left is a short imprisonment term, which, when viewed with the totality of the circumstances, minimises chances of abscondment. The interests of the administration of justice will not be prejudiced by admission of the applicant to bail.

Accordingly, it is on the basis of these considerations that the applicant is admitted to bail on the following terms:

IT IS ORDERED THAT:

1. The Applicant be and is hereby admitted to bail pending appeal on the following conditions:

1.1 The Applicant is ordered to pay an amount of ZWL$500,000 (five hundred thousand dollars) to the Registrar of the High Court.

1.2 The Applicant is ordered to report once every Friday between 0800hrs and 1700hrs at Borrowdale Police Station in Harare.

1.3 The applicant is ordered to reside at Number 5 Lealous Gardens, Glen Lorne, Harare until his appeal is finalised.

1.4 The applicant shall surrender, as surety for due performance of his bail conditions, the title deeds of the following properties:

1.4.1 Title Deed number 0003366/20 for an undivided 10 percent share number 5 in a certain piece of land situate in the District of Salisbury called Stand 4056 Glen Lorne Township of Stand 3084, Glen Lorne Township measuring 4,315 square metres. The property is owned by Nineteen Twelve Family Trust.

1.4.2 Title Deed Number 0008161/2008 for a piece of land situate in the district of Salisbury called Stand 151 Carrick Greagh Township of Carrick Greagh of Section 4 of Borrowdale Estate measuring 4,000 square metres. The title deed is registered in the name of Property Leaders Contractors (Private) Limited.

1.5 The Applicant shall deposit, contemporaneously with the original title deeds, duly executed consents to stand as the applicant's surety from Trustee of Nineteen Twelve Family Trust and Property Leaders Contractors (Pvt) Ltd pending the conclusion of the Appeal in SC259/21. The applicant, and by consent, the applicant waives his right to obtain a passport and shall not apply for a new passport with the Registrar General's Offices Zimbabwe.

2.0 The Registrar of this Court is directed to transmit this order to the Registrar General on the date of issuance of this order.

SC112-21 : OLIVER BWITITI vs STANLEY FARMS (PRIVATE) (LIMITED) and OTHERS
Ruled By: MWAYERA JA

This is an opposed chamber application for condonation and extension of time within which to note an appeal in terms of Rule 43 of the Supreme Court Rules 2018. The applicant intends to appeal against the whole judgment of the High Court handed down on 7 July 2017.FACTUAL BACKGROUNDThe brief ...

FACTUAL BACKGROUND

The brief background of the matter has to be put into perspective.

In December 2015, the first respondent (Stanley Farms (Pvt) Ltd) sought an order of ejectment and an interdict against the applicant and the second to the twenty-first respondents from Dorithmore and Stanley Farms. The applicant and second to twenty-first respondents unsuccessfully opposed the application which was granted by the High Court.

The first respondent is, by virtue of an offer letter from the relevant ministry, the lessee of Dorithmore Farm measuring 3149.506 hectares in extent and Stanley Farm measuring 5631.007 hectares in extent.

The applicant and second to twenty first respondents were held to be illegally occupying the first respondent's farms since they did not have any offer letters, permits, or lease agreements authorising them to occupy the land in question.

The twenty-first respondent, Mr Livingston Nyamadzawo, was the only respondent with an offer letter. The offer letter, however, related to a different piece of land and not the first respondent's farms. The said offer letter issued to the twenty first respondent was in respect of subdivision 1 of Clinton Farm measuring 46.88 hectares and was subsequently withdrawn.

Thus, nothing entitled the applicant, the twenty-first respondent (Livingstone Nyamadzawo), and the second to twentieth respondents to occupy the first respondent's farms.

The court a quo made a finding, that, the reliance on the withdrawn offer letter, which related to a different piece of land other than that of the first respondent, was not tenable.

The applicant and second to twenty first respondents had no offer letters, or permits, or lease agreements entitling them to remain in occupation of Stanley Farm.

The court a quo thus held the applicant and second to twenty-first respondents to be unlawfully encroaching and occupying the first respondent's property.

The court a quo, on that premise, granted the application for ejectment and interdicted the applicant and second to twenty first respondents, and all those claiming occupation through them, from entering the first respondent's farms.

The applicant was irked by the decision of the court a quo and thus instructed his erstwhile legal practitioners to note an appeal on his behalf.

The appeal was not noted, and, upon realising the anomaly that no appeal had been lodged timeously, the applicant filed the present application for condonation of non-compliance with the Rules and extension of time within which to note an appeal....,.

APPLICANT'S SUBMISSIONS

Counsel for the applicant submitted, that, although the applicant was about four (4) years late in noting his appeal he should be condoned as he met all the requirements for condonation.

Counsel argued, that, the delay was not deliberate but occasioned by the fact that Mr Mutebere, the applicant's erstwhile legal practitioner who had been instructed to note an appeal, did not do so.

The applicant subsequently lodged a complaint to the Law Society of Zimbabwe registering his concerns on Mr Mutebere's conduct.

According to the applicant, Mr Mutebere had ditched him at the last minute resulting in proceedings a quo being conducted with the applicant as a self-actor.

The applicant, upon losing the case, instructed Mr Mutebere to note an appeal and was unaware that his instructions, for an appeal to be noted, had not been pursued and only became aware at the time of eviction.

Further, in argument, the applicant's counsel submitted, that, the explanation for the delay was reasonable considering that it was not of the applicant's own making but rather the negligence of his then legal practitioner.

He also submitted, that, the application should be granted as the applicant has prospects of success on appeal.

Counsel for the first respondent contended that the delay of four (4) years was inordinate. He pointed out that the applicant's explanation was not genuine. The applicant was aware of the decision of the court a quo but did not note an appeal. Even if he had instructed his erstwhile counsel to note the appeal, and same did not pursue the client's instruction, he had thereafter become aware that no appeal had been noted as far back as June 2017 when eviction was effected by the Sheriff.

When the applicant and others re-invaded the farms, contempt of court proceedings were instituted and the applicant instructed new legal practitioners, Messrs Chambati, Mataka and Makonese.

All these events, he submitted, were a clear indication that no appeal had been lodged against the judgment a quo and that judgment was not suspended.

The first respondent's counsel, in short, submitted that it follows that the applicant was aware that no appeal had been lodged. In the circumstance, hiding behind the fact that Mr Mutebere was later deregistered by the Law Society cannot be a reasonable explanation for non-compliance with the Rules.

Counsel further argued, on behalf of the first respondent, that, the applicant enjoyed no prospects of success at all on appeal. He further submitted that from the factual background, it is clear that the applicant and second to twenty-first respondents have no legal basis to be on the respondent's farms or to interfere with the farms. The first respondent has an offer letter confirming entitlement to the farms in question whereas the applicant has no offer letter, permit, or lease agreement justifying occupation of the first respondent's farms.

The first respondent's argument, that the applicant enjoys no prospects of success on appeal, was thus anchored on the factual background as chronicled by the court a quo in its judgment ejecting the applicant, the second to twenty first respondents and others claiming occupation through them from the farms.

The Issue

The issue that falls for determination in this application is whether or not the applicant has met the requirements for the granting of condonation and extension of time within which to appeal. Put differently, the question really is whether or not the applicant has established sufficient cause warranting this Court to grant the order sought.

APPLICATION OF THE LAW TO THE FACTS

In considering whether or not to grant the indulgence sought, the court has to consider the following established factors cumulatively:

1. The extent of the delay.

2. The reasonableness of the explanation for the delay.

3. The prospects of success.

4. The interests of administration of justice.

These factors are clearly set out in a number of cases in this jurisdiction. In Mzite v Damafalls Investments (Pvt) Ltd and Anor SC21-18 BHUNU JA echoed the same requirements as outlined in Kombayi v Berkhout 1988 (1) ZLR 53 (S).

HERBSTEIN and Van WINSEN, in The Civil Practice of The Supreme Court of South Africa, 4th ed by Van Winsen, Cilliers and Loots…, set out the requirements as follows:

“Condonation of non-observance of rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance….,.

The Court's power to grant relief should not be exercised arbitrarily and upon mere asking but proper judicial discretion and upon sufficient and satisfactory grounds being shown by the applicant.…,.

In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judiciously upon consideration of all the facts, and, in essence, it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interest of justice.

The factors usually weighed by the court in considering applications for condonation include;

(i) The degree of non-compliance;

(ii) The explanation for it;

(iii) The importance of the case;

(iv) The respondent's interests in the finality if its judgment;

(v) The convenience of the court; and

(vi) Avoidance of unnecessary delay in the administration of justice.”

Having spelt out the relevant considerations in an application for condonation, what remains is for me to relate the requirements to the facts of the matter at hand....,.

2. PROSPECTS OF SUCCESS ON APPEAL

It is settled in applications for condonation that the delay, explanation thereof, and prospects of success on appeal should be holistically considered by the court exercising discretion whether or not to grant the indulgence.

Prospects of success entail that there is a reasonably arguable case depicted from the grounds of appeal. The prospects of success on appeal have to be realistic and not remote. Once there is a sound and rational basis that the case is arguable on appeal, then, there are prospects of success warranting the indulgence to be granted.

In casu, the main issue for determination is whether or not the court a quo erred in issuing an order of ejectment and an interdict against the applicant and those claiming occupation through him.

It is apparent, from the factual background of the matter, that, the applicant has no basis for being on the first respondent's farms. The applicant has no offer letter, lease agreement, or permit entitling him to the applicant's farms.

It is clear that the applicant sought to ride on an affidavit by the twenty-first respondent, Livingstone Nyamadzawo, whose offer letter related to a different piece of land and had been withdrawn as at the time of hearing in the court a quo.

The applicant simply has no legal basis to cling on to and interfere with the first respondent's farms.

The court a quo rightly, and correctly, found no reason not to grant ejectment.

Considering the circumstances of the matter, the applicant does not enjoy any prospects of success on appeal.

SSC117-21 : TAKUNDA MADAMOMBE vs THE STATE
Ruled By: BHUNU JA

In the case of Essop v S (2016) ZASCA 114, the court, in defining the term 'prospects of success' held that;“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably conclude different to ...

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.

The second respondent did not file a notice of opposition, and, as a result, the court took it that he will abide by the decision rendered.

The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review.

Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction Number 4, under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives.

Let me hasten to say, that, this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent chamber application.

The first to the third applicants are, respectively, sister, father, and sister of one Genius Kadungure who passed away on the 8th of November 2020 (hereinafter the deceased).

The factual background to the application can be summarised as follows:

The deceased was a well to do person who had business interests in Zimbabwe, Botswana, and South Africa. The first respondent approached the family of the applicants, at the funeral, with a document that she purported was a Will of the deceased though it was not signed. Using undue influence, the applicants accepted the document as the last will and testament of the deceased and recommended the appointment of the first respondent as the executrix of the estate of the deceased.

The first respondent dissuaded the applicants from seeking legal advice indicating that she was also their lawyer.

The second respondent accepted the document as the last Will and testament of the deceased in terms of the Wills Act and also appointed the first respondent as the executor. This was followed by the issuance of Letters of Administration to the first respondent dated the first of December 2020.

The applicants reluctantly worked with the first respondent though they had questions over the will - a copy of which was never furnished to them.

After seeking legal advice, they approached the first respondent who refused to furnish them with a copy of the Will and minutes of a meeting held on the 25th of November 2020. They only managed to obtain copies from the second respondent.

To note is that the Will, which was drafted by the first respondent, confers executorship on her.

She, during the lock down period, attended to disposal of the deceased's Lamborghini motor vehicle in what they term 'hazy' circumstances. This was despite the fact, that, there was no detailed inventory and there was no confirmed distribution account.

FNB Bank in Botswana, where the deceased held an account for his company called Quick Gases (Pvt) Ltd, had extended a loan that had been unpaid since the demise of the deceased. He also left assets in South Africa, in the form of trucks, that were in danger of disappearing if the issues of executorship remained unresolved.

The first respondent had, on the 5th of February 2021, advertised an interim distribution account stating, falsely, that such was lying for inspection at the offices of the second respondent. The latter admonished the first respondent over her false claim.

There is litigation in Botswana over the legitimacy of the first respondent's executorship.

The applicants seek an interim interdict prohibiting any administration of the deceased's estate pending the return date upon which a review of the second respondent's decision to appoint the first applicant as the executrix, and to accept the document in question, will be sought.

The grounds for review are framed as illegality/absence of jurisdiction; fraud; speculation; malpractice; and gross irregularity.

The applicants are further concerned by the following acts which cast the authenticity of the Will in doubt:

(i) The haste with which the first respondent seeks to dispose of the Lamborghini without following due process;

(ii) The invitation by the first respondent for members of the public to inspect an estate account when she has already authorised disposal of the said vehicle;

(iii) The Will makes reference to some persons without stating their actual identities;

(iv) The vehicle arrived in Zimbabwe around the 30th of September 2020, and, its inconceivable that the deceased would have a Will drafted bequeathing it to a third party 23 days after its arrival;

(v) The deceased had a large fleet of vehicles and it is surprising that only the Lamborghini was mentioned in the will;

(vi) The first respondent falsely claimed that she is an attorney and she never wanted to avail the Will to the applicants.

The Will is therefore fake and the estate of the deceased should proceed under intestacy.

The matter is urgent and cannot wait because the applicants are the surviving blood relatives of the deceased and have a prima facie right to protect their interests.

The acceptance of the Will is a legal nullity and there is need to stop the first respondent in her tracks. She is already in the process of disposing of some assets of the deceased estate during the lock down period, more specifically, a Lamborghini motor vehicle, using a distribution account that was never availed nor approved by the second respondent.

Quick Gases (Pvt) Ltd, in which the deceased was the sole director, is in danger of being liquidated after F.N.B Bank in Botswana froze the company's bank account.

The applicants have been given up to the 31st of March 2021 to attend to issues relating to the appointment of the first applicant as executrix.

The first applicant is dissipating the deceased's estate to the permanent and irreparable harm of the applicants in circumstances when her appointment as executrix is a nullity; she has not furnished security to the second respondent for due administration of the estate; and she has not furnished the second respondent with a comprehensive inventory.

Waiting to prosecute a review application during the lockdown period without knowing when it will end will prejudice the applicants who are at risk of losing many assets.

The first respondent continues to take the law into her own hands to the detriment of the applicants.

There is no other alternative remedy to protect the rights of the applicants.

There is real risk that the first respondent, in the absence of a court order, will continue to alienate and dispose of the deceased's assets, and, accordingly, only an interdict will protect the rights of the applicants pending the return date.

The second and third applicants deposed to supporting affidavits in support of the first applicant's averments.

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The application is hereby granted.

2. The provisional order granted in this matter is hereby confirmed.

3. It be and is hereby declared that:

3.1 The document registered with the 2nd respondent on 25 November 2020 under DR. No.1771/20 as the will of the later Genius Kadungure ('the deceased') (who died on 8 November 2020) is null and void; and

3.2 The deceased died intestate.

4. The decision of the 2nd respondent, to register and accept the aforesaid document as the last will for purposes of administration of the estate of the deceased in terms of section 8(5) of the Wills Act (6:06) be and is hereby set aside.

5. The 2nd respondent's appointment of the 1st respondent, on 2 December 2020, as the testamentary executrix of the estate of the deceased, and all acts done by the 1st respondent (personally or by other persons at her direction) under and by virtue of such appointment be and are hereby declared null and void.

6. The letters of administration issued by the 2nd respondent, on 2 December 2020, in favour of the 1st respondent, under DR No.1771/20, appointing her as testamentary executrix, be and are hereby revoked.

7. The 2nd respondent shall convene another meeting to appoint an executor of the estate of the deceased which meeting shall be presided over by an official other than the official who presided over the meeting of the 25th of November 2020 or any of the officials who previously dealt with the estate of the deceased; and

8. The 1st respondent shall bear costs of suit on attorney-client scale (in the event that she opposes the application).

INTERIM RELIEF GRANTED

Pending the return date, the applicants are hereby granted the following interim relief:

1. Pending the return date, the 1st respondent is hereby interdicted from, in any way, administering, or dealing in the estate of Genius Kadungure ('the deceased') in Zimbabwe, Botswana or South Africa; and

2. The 2nd respondent, or any other person acting on his behalf, be and is hereby interdicted from (without the leave of this court) accepting for filing any document by, or acceding to any request from, the 1st respondent under DR. No.1771/20 save and except for the purposes of relinquishing the letters of administration issued hereunder.”

The first respondent strenuously opposes the application and raises several points in limine as follows:

(1) The matter is not urgent because the facts complained of have existed for 4 months and 8 days. The applicants voluntarily consented to the decision by the second respondent to accept a document that did not meet all the formalities of a will on the 25th of November 2020. In terms of the Wills Act, they had 30 days within which to appeal against the decision.

(2) The applicants are seeking to interdict conduct outside this court's jurisdiction specifically in Botswana and South Africa.

(3) The interim relief sought is incompetent because the Letters of Administration remain valid and the appointment of the first respondent, as executor, is valid as she has not been removed through an elaborate process set out in the Administration of Estates Act.

(4) The requirements of an interim interdict have not been met; and

(5) There is no competent cause of action.

In my view, points 3, 4 and 5 touch on the merits of the case...,.

On the merits, the first respondent made the following submissions:

The applicants participated fully and were legally represented in the process leading up to the meeting of the 25th of November 2020. They accepted the document freely and voluntarily. They worked well with the first respondent who has thus far managed to compile a comprehensive inventory as well as compiling a second interim liquidation and distribution account. The belated challenge to the Will is to evade or delay payment of estate liabilities.

She denied refusing to give a copy of the Will to the applicants as alleged.

The will was drafted as per the deceased's instructions and he only delayed in signing it. Unfortunately, he met his demise before he could sign.

The Lamborghini motor vehicle has not been disposed of.

Messrs Shomwe-Nyakuedzwa had requested release of the vehicle to their client and were advised to pay the estate liabilities for this particular bequest. This was complied with.

The first respondent initially approved release of the vehicle, but, upon realising that she had not advertised the interim account, she withdrew her consent to the release of the vehicle telephonically. The motor vehicle remains parked at the deceased's residence in Domboshava.

The first respondent explained, at length, the situation prevailing in Botswana including litigation commenced on her behalf - ostensibly to safeguard the interests of the deceased's estate. Contrary to the assertions by the applicants, she is recognised as the executrix in that country.

The applicants have various remedies at their disposal.

They have failed to meet the requirements of the granting of an interim interdict and the application should be dismissed with costs.

In their heads of arguments, the applicants made the following submissions:

The applicants have met all the requirements of an interim interdict. They have a substantial and real interest in the matter. The first respondent did not furnish the second respondent with monetary security for due administration of the estate. She unlawfully has accepted payment of liabilities for the estate based on an unconfirmed estate account. She has invited people to view an estate account in instances where she has not lodged any distribution account with the second respondent. The Will does not mention the name of Nomatter Zinyengere to whom the Lamborghini was bequeathed. The deceased's company, Quick Gases (Pvt) Ltd, in Botswana, is losing its market value.

The balance of convenience favours the applicants.

The second respondent admonished the first respondent over her behaviour but she has not done anything, especially in relation to the motor vehicle and the advertisements of the estate account in the Government Gazette and a newspaper. The law does not permit the first respondent to benefit from the estate, through appointment as an executor, in instances where she authored the Will.

The first respondent made the following submissions on the merits in her heads of argument:

The applicants have failed to meet the requirements for the granting of an interim interdict. The first respondent was lawfully appointed as executor with the consent of the applicants. The applicants did not appeal against the decision of the second respondent in accepting the unsigned document as a Will. There is no irreparable harm suffered because the Lamborghini motor vehicle is safely parked in Domboshava where the deceased used to reside. There is no evidence that the first respondent is disposing of assets of the estate. The applicants have not made a formal complaint to the second respondent that would trigger a process to have her removed as executor.

The balance of convenience favours the first respondent who has made significant progress in administering the estate both in Zimbabwe and Botswana.

The applicants have failed to exhaust their domestic remedies.

The well settled requirements for an interim interdict are as follows (see Setlogelo v Setlogelo 1914 AD 221…, which this jurisdiction has religiously followed):

(a) A prima facie right, though open to doubt;

(b) That there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing the right;

(c) The balance of convenience favours the granting of interim relief; and

(d) That the applicant has no other satisfactory remedy.

See also Cool v Minister of Justice 1955 (2) SA 682 (C)…,..

I find myself in a dilemma that courts often face in dealing with interim interdict applications. I am referring here to the danger of touching on the merits of a case that may unduly influence the outcome of the final order proceedings should the provisional order be granted.

I find comfort, however, in the fact that the right referred to is prima facie only.

I also take a cue from the decision in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) 240 (H) in which MAKARAU J…, stated as follows:

“Without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications. It is therefore inevitable that the merits of the final order sought be considered.

It is my considered view, that, the basis of the whole matter revolves around the crucial issue of the acceptance of a document that did not meet all the formalities as specified in section 8(1)(a-d) of the Wills Act as the will of the deceased. These are writing, signing, and attestation.

Section 8(5) therefore becomes an exception to the norm in that it gives the 2nd respondent, the power to accept a document that does not meet some of the formalities.

That section, in my view, seeks to create a balance between being overly rigorous to the extent that it may prejudice beneficiaries in instances where it is clear that indeed the deceased wanted their estate to be dealt with in a particular manner but failed to comply fully with section 8(1) AND potential fraudulent documents being touted as wills: see Janda v Janda 1995 (1) ZLR 375 (S) and Mhango v Gunda HH147-2000.

Section 11 of the Administration of Estates Act [Chapter 6:01] allows the transmission of a purported will or codicil or other testamentary instrument to the second respondent or their assistant. That is why it is critical to conduct the two rung inquiry before accepting a document that does not meet all the formalities as a last will and testament: see Mujuru N.O. and Ors v The Master and Others HH112-08.”

The applicants have outlined the basis upon which they believe that the document presented is fake and should be nullified. They cannot be said to lack a cause of action. They have explained the circumstances that led them to go along with the document. The first respondent has also explained, in detail, circumstances surrounding the preparation and presentation of the document.

The acceptance of any document that does not meet all the requirements is not a walk in the park.

In my view, there are prima facie red flags in the document itself, processes, and manner leading to the acceptance of the document as a will that may result in a court sitting on review making a finding in favour of the applicants.

This is what I would refer to as 'live' issues that need to be considered.

The applicants, in other words, have a reasonably arguable case, prima facie, on review.

The question on review, in my view, must revolve around the circumstances leading to the writing of the document and whether or not a proper inquiry was conducted and the authenticity of the document. This must, of necessity, include the contents of the document itself.

The whole basis of the inquiry is to arrive at the truth and rule out fraud.

If the court, on the return date, finds in favour of the applicants, it follows that the deceased's estate must be wound up on the basis of intestate succession. If not, the document will continue standing as a Will of the deceased.

The first respondent, by her own admission, jumped the gun in authorising release of a Lamborghini in the absence of a proper liquidation and distribution account. In paragraph 13.2 of her opposing affidavit she takes full responsibility for her error.

The immediate question that arises is: what is the urgency that warrants dealing with the estate in a piecemeal manner - especially in the absence of a confirmed distribution account?

What influenced the first respondent to initially, as she claims, authorise the release of the vehicle and then turn around and say, without providing proof, that she then changed her mind?

The second respondent also took her to task over the manner in which she was administering the estate – see page 36 of the first applicant's founding affidavit being a letter from the second respondent. Part of the letter reads as follows;

“having gone through the file, we wish to advise that we have no interim account in the deceased estate record. Neither have we issued any document authorizing distribution of the estate to any individual at this stage.”

And yet, the first respondent went on to advertise the estate account as lying for inspection.

According to the applicants, the estate has liabilities, and, it is trite that an estate consists of assets and liabilities. A beneficiary only has a mere hope that the liabilities do not outweigh assets since they are supposed to be paid off first. That is why the law allows beneficiaries, in a co-ordinated manner, to contribute toward liabilities should they wish to preserve the value of the estate. This is in instances where liabilities outweigh assets.

In my view, the applicants cannot be faulted for holding the view that irreparable harm may result from the conduct of the first respondent.

Their apprehension in the face of the first respondent's admitted conduct is valid.

The unfiled second interim and distribution account and the un-filed executor's inventory reveals that there are many assets as well as liabilities in the estate.

Although, at law, a company is a separate legal persona, a deceased's shareholding in a company constitutes an asset.

Nothing is said in the two documents attached as annexure INV 4, by the first respondent, to her opposing affidavit relating to the companies or the trucks that are said to be in South Africa.

The estate of the deceased spans across three countries and there are different laws and processes in relation to the administration of deceased estates of a foreigner. That, by itself, may entail external conflict of laws.

The balance of convenience, in my view, favours the applicants who are beneficiaries.

Even if the court finds, on the return date, that, the document should be taken as a Will, their rights must be protected.

Contrary to the assertions by the first respondent, that the applicants should have appealed, the conduct complained of can only be addressed though a review and not an appeal.

The applicants have, therefore, in my view, satisfied the requirements for the granting of an interim interdict.

On costs, I do not see anything warranting the award of costs at this interim stage.

I am also mindful of the fact that a provisional order can be varied as long as it does not depart from the gist of the application.

The applicants have stated, that, they have been given up to the 31st of March 2021 by FNB Botswana to sort out the issues in relation to the first respondent's executorship. As stated already there is pending litigation in Botswana, by the first respondent, seeking, inter alia, that she be declared the legally nominated executor in the estate of the deceased.

This may entail having the return date expedited.

For the avoidance of doubt, the provisional order is granted with the interim relief varied as follows:

1. The first respondent be and is hereby interdicted from administering the estate of the late Genius Kadungure under DR No.1771/20.

2. The second respondent be and is hereby interdicted from accepting any process in relation to the administration of the estate of the late Genius Kadungure under DR No.1771/20 filed by or on behalf of the first respondent.

3. The first respondent be and is hereby interdicted from presenting the Letters of Administration issued to her in Zimbabwe under DR No.1771/20 to the Master of the High Court in the Republic of South Africa for purposes of the administration of the deceased's estate in relation to assets in that country.

4. The Registrar of the High Court of Zimbabwe at Harare is directed to expedite the return date hearing. The Registrar is directed to bring this judgment to the attention of the second respondent.

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD
Ruled By: CHIKOWERO J

After hearing argument by counsel, I granted an order in terms of the draft order attached to the application.

These are my reasons. I undertook to furnish them.

This is an application for amendment of the plea filed in the main matter, HC6655/15. That matter had actually been enrolled on the continuous roll for trial.

On 24 January 2018, my sister DUBE J granted an order removing the main matter from the roll. Paragraph 2 of her order went further to provide, that, the applicant was to make an application to withdraw admissions and then to enroll the matter. The applicant was also ordered to pay the wasted costs.

The applicant was the defendant in the main matter. It had pleaded that the respondent (plaintiff in the main matter) had performed all its obligations in terms of the four contracts entered into between the parties at the time the applicant wrote to the respondent. In that letter, the applicant instructed the respondent to stop any further contractual work.

The plea was therefore an admission.

The admission was repeated subsequent thereto - including in the Joint Pre-Trial Conference Minute. The pretrial conference was presided over by a judge of this court. So, the admission was repeated before that judge.

The applicant's plea was actually that the amounts claimed were no longer recoverable by dint of the prescription of the cause of action.

That special plea was withdrawn on the same date that the applicant indicated that the admissions were made in error and the applicant wanted to amend its plea.

The amendment sought was simply that the respondent had not yet completed carrying out the work that had been agreed to in terms of the contract when the applicant wrote to it to stop any further work. Consequently, so the applicant wants to aver, the respondent is not entitled to any further payment beyond the amounts already paid.

As preliminary point one, the respondent says this application should have been brought as a court application and not a chamber application.

There is sufficient evidence in the Rules, statutes, and decided cases, that, it is competent to institute a chamber application for amendment of pleadings.

The application can also be made as a court application, and, in my view, viva voce in court without being predicated on any written application.

Firstly, Order 20 of the High Court Rules 1971 deals with amendment of pleadings and matters arising pending action. It is so headed.

Rule 132 of the High Court Rules reads:

“132. Court may allow amendment of pleading

Subject to Rule 134 and Rule 151, failing consent by all parties, the court or a judge may, at any stage of the proceedings, allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.”…,.

Secondly, Rule 189 of the High Court Rules 1971 reads:

“189 Withdrawal of Admission

The court may, at any time, allow any party to amend or withdraw any admission so made on such terms as may be just.”…,.

Thirdly, the proviso to section 36 of the Civil Evidence Act [Chapter 8:01] is relevant. I will set out section 36(1), (3) and that proviso. They provide as follows:

“An admission as to any fact in issue in civil proceedings made by or on behalf of a party to the proceedings shall be admissible as proof of that fact, whether the admission was made orally or in writing or otherwise.

(2)…,.

(3) It shall not be necessary for any party to civil proceedings to disprove any fact admitted on the record of proceedings:
Provided that this subsection shall not prevent any such admission being withdrawn with leave of the court….,.”

Further, Order 1 of the High Court Rules 1971 deals with application of the Rules and interpretation of some of the terms used therein. In the definition section, the following is found;

“3. Definitions

In these rules – 'Judge' means a judge of the court, sitting otherwise that in open court.”

When one reads this definition of a judge in tandem with Order 20 Rule 132, it is clear that there is nothing unprocedural in seeking amendment of pleadings through a chamber application.

It is unnecessary that l go on to quote Rule 226(2)(c) of the Rules.

It is sufficient that l record that l agree with counsel for the applicant, that, an application for leave to amend pleadings seeks procedural relief. It is precisely the remedy which should be sought through a chamber application as provided for in Rule 226(2)(c) of the High Court Rules.

There is nothing substantive in an order allowing or dismissing an application for amendment of a pleading. Needless to say, the determination which is substantive is that which ensues at the trial. That relates to the main matter.

I do not think that legal practitioners should raise, let alone argue, a procedural issue such as this. It is evidently without merit. It simply contributes to clogging up the High Court roll.

Indeed, even if it were incorrect for the applicant to have filed a chamber application instead of a court application, I was still not going to dismiss the application on that basis in light of the provisions of Rule 229C of the Rules of this court.

Dealing with the proper procedure of amending pleadings after issue of summons, GILLESPIE J stated. in ZFC v Taylor 1999 (1) ZLR 308 (H)…,:

“Failing consent, then, it is necessary to make application for amendment, either to court or a judge in chambers, depending upon the criteria set out in Rule 226. The application must be served upon the opposing party; be supported by affidavit showing good cause; and must be accompanied by a draft order…,.”

I do not wish to unduly lengthen this judgment by embarking upon an analysis of all the provisions of the Rules that l have quoted, section 36 of the Civil Evidence Act [Chapter 8:01] and ZFC v Taylor 1999 (1) ZLR 308 (H).

It is clear that amendments to pleadings, in the absence of consent, can be sought via a chamber or court application. It can also be sought, through the mouth of the legal practitioner, in the absence of any written application, depending on the magnitude of the amendment sought.

I thus dismissed the first preliminary point....,.

I now turn to the merits.

The legal principles applicable in determining an application for amendment of pleadings are settled.

They are set out and analysed in HERBSTEIN and Van WINSEN in the Civil Practice of the High Courts of South Africa 5ed, Vol. 1…,. It is therein acknowledged, that, there is a somewhat different approach where the amendment sought amounts to withdrawal of an admission.

Such an amendment is more difficult to achieve because it involves a change of front by the party seeking the amendment.

A full explanation has to be given to convince the court of the circumstances that led the party to make the admission sought to be withdrawn and substituted with a different position, and why the application for amendment is being made at the stage it is being made and not earlier.

In other words, the court or judge must be satisfied, that, what is before it or him is a bona fide application for amendment.

The court also considers whether the other party is likely to be prejudiced were the amendment applied for granted.

If there is likely to be such prejudice, the court considers whether it is such as cannot be cured by an appropriate order of costs or postponement.

The court has the widest possible discretion in dealing with applications for amendment. This is so, because, the underlying purpose of pleadings is to place before a court such pleadings as will facilitate determination of the real question in controversy between the parties.

These principles represent the legal position in our jurisdiction.

I refer in this regard to the following matters, namely, DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (SC); Jayesh Shah v Kingdom Merchant Bank Limited SC04-17; Chimutanda Motor Spares (Pvt) Ltd v Musare and Anor 1994 (1) ZLR 310 (H); and Wayne Parham and Credfin (Private) Limited v Jan Fredrick Kotze HH312-18.

In the present matter, the explanation tendered for having made the admission already referred to was this:

The applicant did not have sufficient documents relating to work carried out in terms of the four contracts at the time that instructions were given to its legal practitioners to draw up the plea and subsequent court process in the main matter.

This was occasioned by the fact, that, summons was issued twelve years after the contracts were entered into.

Employees with knowledge of the facts of the matter had left the employ of the applicant at the time that litigation commenced.

These included the applicant's key witness, Engineer Innocent Masunungure. He had relocated to South Africa.

Annexures 'A' and 'B' to the founding affidavit are letters written by the applicant's legal practitioners to the applicants.

They reveal, that, indeed, the applicant was battling to furnish its legal practitioners with full instructions.

The result was that incorrect instructions were given to the applicant's legal practitioners. On the basis of those incorrect instructions, the plea was drafted and filed. It contained the erroneous admission that the respondent had completed carrying out its obligations in terms of the four contracts at the time that the applicant wrote to it instructing that the respondent stops further work.

This error was discovered after the pre-trial conference was held hence the application for amendment being made at the trial stage.

I was satisfied with that explanation.

I was satisfied with the bona fides of the application for amendment.

I was satisfied that no injustice or prejudice would be visited upon the respondent by my granting of the application.

This was so because my reading of the opposing papers clearly shows, that, the respondent had all the evidence it believed would refute the applicant's position in the event that the application for amendment were granted.

The opposing papers clearly replicated, in anticipation, to the applicant's draft amended plea. That draft was attached to the draft order.

The opposing papers did not end there.

An interpretation was attached to correspondence entered into between the parties. The letters were attached to the founding affidavit.

I was asked to find, that, the correspondence meant that the respondent had finished carrying out the work in terms of the four contracts by the time that the letter to stop further work was written to the respondent.

Further documents were attached to the opposing affidavits.

On the basis of all the documents, I was invited to find, as a fact, that, the respondent had indeed finished carrying out all the work in terms of the four contracts at the time the letter to stop further work was written.

In the answering affidavit, the applicant contended, that, the documents confirmed the applicant's position that the work had not been completed when the written instruction was given to stop further work.

The work in question is technical.

Because I was not presiding over the main matter, it was unjust for me to find, without the benefit of a trial, that the defendant's admission was the truth and that the draft amended plea contained falsehoods.

I did not consider it correct that I should decide this application on the basis of credibility. Put differently, I did not consider it correct that I should conduct a “trial on affidavits.” The merits of the main matter were debated in the affidavits.

I declined the invitation to, in effect, usurp the functions of the trial court.

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

This is an application for condonation and extension of time within which to note an appeal in terms of Rule 31(3) of the Supreme Court Rules 1964.

The applicant is the widow of the late Chemayi Joseph Mtize. She is the duly appointed executrix dative of his deceased estate.

The first respondent, Damafalls (Pvt) Ltd, is a duly registered company in terms of the laws of Zimbabwe, whereas the second respondent, the Master of the High Court, is cited in his official capacity. He is responsible for the administration of deceased estates.

The first respondent sued the applicant in the High Court alleging that during his life time the deceased sold Stand Number 2699, Gwelo Township to it. In consequence whereof, it sought the following relief against his deceased estate:

1. An order for the setting aside by the second defendant of the distribution of Stand 2699 Gwelo Township to the beneficiaries of the estate late Chemayi Joseph Mtize.

2. An order for the transfer of Stand 2699 Gwelo Township from the estate of the Late Chemayi Joseph Mtize to the plaintiff, failing which the Deputy Sheriff Gweru be authorised to sign the transfer documents.

3. An order for the eviction of the first defendant from Stand 2699 Gwelo Township.

4. An order for payment of US$2,800 together with a sum of US$400 per month from 1 December 2014 to date of eviction of first defendant and all those claiming occupation in her name; or, alternatively, an order for payment to the plaintiff by the first defendant of the value of the said property currently US$60,000.

5. An order for payment of legal costs on an attorney client scale.

The applicant unsuccessfully defended the respondent's suit in the court a quo with judgment being given against her on 23 December 2015.

If she intended to appeal against that judgment she had 15 days from the date of judgment to note her appeal in terms of Rule 30 of the Supreme Court Rules 1964.

She however only approached this court on 26 February 2016 with this application for condonation of late noting of appeal and extension of time to file the appeal. By then, she was 26 days out of time excluding weekends and public holidays.

The requirements for the application of this nature to succeed are well known as outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S). These are:

1. The extent of the delay;

2. The reasonableness of the explanation for the delay; and

3. The prospects of success on appeal.

I now proceed to consider the three requirements in sequence....,.

Prospects of success on Appeal

The plaintiff relied on the evidence of four witnesses in the court a quo, comprising Martin Mataranyika, Edmore Samson, Priscilla Marume, and Ravheti Kaseke.

Martin Mataranyika was the main witness for the plaintiff.

It was his testimony, that, he was a business consultant with a company called Millennial Insurance Company. The first respondent was the principal shareholder whereas, the late Joseph Chemayi Mtize was one of the executive Directors.

Sometime in 2005 there was need to inject more capital in the company. He then advised the executive directors to top up their nominal shareholding in a Board meeting to avoid their shareholding being diluted to zero by the envisaged increase in capital.

The late Chemayi Mtize, who had no money, offered to sell the disputed property to the first respondent to raise funds to purchase more shares.

He is not privy to the contract of sale but he knows that the late Chemayi Mtize travelled to Gweru with a representative of the respondent company to view the property. Following the trip to Gweru, the late Mtize later bought more shares from Millenial Insurance Company.

Edmore Samson is the first respondent's Managing Director and a shareholder in Millenial Insurance Company.

He confirmed Martin Mataranyika's evidence, that, in 2015, there arose need to raise Millenial Insurance Company's share capital. It then became necessary for shareholders to increase their shareholding by purchasing more shares in the company. He corroborated Mataranyika's evidence to the effect that the late Mtize, who had no money, offered to sell his house to the first respondent.

It was his testimony, that, the first respondent then bought house Number 5 Cooper Road Southdowns, being the disputed property. The property was bought for $Z300,000,000 (three hundred million Zimbabwean Dollars) payable in instalments from May 2005 to August 2005.

The Agreement of Sale was reduced to writing and signed by both parties.

The written Agreement of Sale has since been misplaced and the first respondent's officials are still looking for it.

When the purchase price was paid in full, the late Mtize handed over the title deeds of the disputed property to the first respondent. He then took a copy of the title deeds saying he was taking it to ZIMRA for capital gains exemption since he was above the age of 60.

It is common cause, that, the first respondent had possession of the original title deeds of the disputed property which were produced in evidence at the trial in the court a quo.

It is also not in dispute that the first respondent took peaceful and undisturbed occupation of the property way back in 2005 soon after payment of the purchase price in full as alleged.

Mrs Mtize, the executrix dative of the late Mtize's deceased estate, alleged, without proof, that, the first respondent stole the title deeds from the late Mtize's office while he was ill.

This unfounded allegation was denied by both witnesses for the first respondent, saying that Mtize's office was kept under lock and key during the duration of his illness.

Despite those serious allegations of theft of property of immense value, Mrs Mtize did not bother to report the theft to the police.

Edmore Samson testified, that, Mrs Mtize only emerged about nine (9) years later when she invaded the property, forcibly took the keys and occupation of the property.

Priscilla Marume testified, that, at the material time, she was employed as the first respondent's Accountant. It was her testimony, that, she signed the Agreement of Sale as a witness in the presence of the late Mtize and Edmore Samson. She was responsible for paying the purchase price in full to the late Mtize.

It was her evidence that she paid him the full purchase price starting from 13 May 2005 to 22 August 2005.

Each time she paid him he would sign on a petty cash voucher to acknowledge receipt. She produced three (3) cash voucher receipts duly signed by the late Mtize. The amounts on the three (3) petty vouchers add up to a total of $Z300,000,000 (three hundred million Zimbabwean dollars).

She denied that the first respondent ever managed the property on behalf of the late Mtize as alleged by Mrs Mutize.

It is common cause, that, Mrs Mtize, in her first and final distribution account in the estate of her late husband, Chemayi Mtize, deliberately left out the disputed property from the inventory.

According to Edmore Samson's evidence, when he approached Mrs Mtize seeking transfer of the disputed property, she was surprised that the property had not yet been transferred to the first respondent's name.

Upon realising that the property was still registered in her husband's name, she refused to effect transfer and filed a supplementary distribution account in which she included the disputed property in the distribution inventory. The supplementary account was advertised in the newspapers.

The first respondent did not object because it did not see the advertisement.

In her evidence, Mrs Mtize confirmed having deliberately left out the disputed property from the first and final distribution account.

She also confirmed having included it in the supplementary account upon realising that it was still registered in her late husband's name.

She explained that she initially left out the property from the initial distribution account because she wanted to investigate whether indeed the first respondent had purchased the disputed property as alleged.

The evidence on record, however, establishes, that, she carried out no such investigations.

She only decided to claim the property after being approached for transfer and realizing that it was still registered in her late husband's name.

It is only then that she started to question the validity of the sale.

She alleged, without proof, that, the first respondent was merely administering the property on her late husband's behalf.

She did not know the terms of that arrangement or the commission her husband was paying to the first respondent. She first said Z$325, after contradicting herself under cross-examination, she ended up saying that she did not know.

Faced with the totality of the evidence placed before her, the learned judge in the court a quo weighed the credibility of witnesses and made material findings of fact: She had this to say:

“Looking at the evidence led before the court, I am inclined to find in favour of the plaintiff that there was indeed a sale agreement involving the late Mr Mtize's property in Gweru between the plaintiff and Mr Mtize. I am convinced because the plaintiff's witnesses gave their evidence very well and impressed the court as credible witnesses. They were truthful and did not exaggerate their testimonies.”

The learned judge in the court a quo's summation of evidence and analysis of the credibility of witnesses is beyond reproach.

The evidence clearly exposes Mrs Mtize as a desperate widow trying to pounce on the delay in effecting transfer to hang onto property which her husband sold during his lifetime.

The late Mtize, having validly sold his property during his life time, it cannot form part of his deceased estate.

For the foregoing reasons, I consider that the judgment the applicant seeks to appeal against is water tight and unassailable. As such, there are no reasonable prospects of success on appeal.

Although the first respondent has asked for costs at the punitive scale, these are not warranted. The first respondent was, in a way, to blame by delaying in seeking transfer.

It is accordingly ordered:

1. That, the application for condonation of late noting of appeal and extension of time within which to appeal to the Supreme Court be and is hereby dismissed.

2. That, the applicant shall pay costs of this application at the ordinary scale.

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.The appeal is opposed by the first respondent....,.BRIEF BACKGROUND OF THE CASEThe first respondent ...

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.

The appeal is opposed by the first respondent....,.

BRIEF BACKGROUND OF THE CASE

The first respondent is a duly registered trade union representing the interests of employees in the Engineering, Iron and Steel sector (hereinafter referred to as “the Union”). The Union opened and maintains a Bank Account Number 6327897 with the second respondent Bank.

On the other hand, the first and second appellants were employed by the Union as its President and Secretary General, respectively, whereas the third appellant was its Trustee.

At the inception of the Bank account, the three appellants were appointed by Union resolution, dated 15 February 2019, as signatories to the said Bank account in their respective capacities as Union officials. The union then sought to remove the appellants from the panel of signatories to its Bank account on the basis that they had ceased to be union officials.

In its founding affidavit, deposed to by Ben Mambara, the Union averred, that, the first and second appellants were dismissed from employment following disciplinary proceedings on 22 April 2019 and 14 June 2019, respectively. The third appellant's trusteeship had expired through the effluxion of time.

The Union provided documentary evidence of the appellants dismissal from office.

The appellants however resisted their removals from being Bank account signatories on the basis that they were still Union officials.

They also challenged the authenticity of the Union resolution that authorised their removal as signatories to the Union bank account.

They challenged the legitimacy of Ben Mambara as the incumbent President of the Union and deponent to its founding affidavit.

In that vein, they refused to relinquish their respective mandates as signatories to the Union's bank accounts hence the application for their removal as Bank signatories in the court a quo.

The case has been the subject of various conflicting judgments in the court a quo which are now pending in this court on appeal.

On 23 January 2020, MUSHORE J issued a lengthy order in favour of the appellants under case number HC8111/19. The order basically declared that the three appellants were the legitimate office holders entitled to run the affairs of the first respondent without let or hindrance. On the other hand, the order declared Ben Mambara to be an illegitimate President of the first respondent.

In short, the judgment restored the status quo ante prior to the appellants dismissal from office.

The judgment is now a subject of appeal and it triggered a series of other appeals under appeal case numbers SC27/2020, SC32/2020, and SC34/2020.

Following the restoration of the status quo ante by MUSHORE J's order the respondents were aggrieved by the manner in which the appellants were handling the first respondent's funds.

Resultantly, the first respondent, represented by Ben Mambara, approached the court a quo under case number HC6844/19 seeking their removal from office as signatories of its Bank account.

The first respondent was successful in this respect.

The current appeal challenges the judgment on the basis that MUSHORE J's order had barred Ben Mambara and six others from acting as the Union's officers. The appellants claim to have been declared the legitimate signatories to the Bank account by the judgment which is still extant.

Notwithstanding the appeal, the first respondent sought leave of the court a quo to execute the order removing the appellants from being signatories to its Bank account under case number HC444/20.

CHIKOWERO J dismissed the application.

Another application, for the re-activation of the Union's bank account was dismissed by MUSITU J on 15 September 2020.

DETERMINATION OF THE COURT A QUO

The court a quo found, that, Ben Mambara had the requisite authority to represent the Union.

In coming to that conclusion, the learned judge a quo reasoned that the Union, being a legal persona, could only be represented by a natural person duly authorised thereto by a valid Union resolution.

Consequently, upon the removal of the first appellant from office as Union President, the Union, by resolution, dated 15 February 2019, replaced the first appellant with Ben Mambara. The resolution also conferred him with authority to represent the respondent in these proceedings.

The resolution reads in part:

“IT WAS RESOLVED:

2. That the President, Ben Mambara, shall sign documents and represent the Union and at NEC level.

SIGNED AT BULAWAYO this 15th February 2019.

Signed
……………………………………
(SECRETARY).”

Having found that Ben Mambara was properly appointed as the Union President and Union representative, the learned judge a quo proceeded to hold, that, the appellants were no longer Union officials. That being the case, they could no longer continue to be signatories to the Union's bank account.

On the basis of such finding, he proceeded to issue the following order:

“IT IS ORDERED THAT:

1. The first respondent be and is hereby ordered to delete or remove Shepard Mashingaidze, Wise Garira, and Bayayi Bayayi from being signatories of applicant's Account No.6327897 held with the 1st respondent.

2. The 2nd to 4th Respondents jointly and severally one paying the others to be absolved, pay costs at the legal practitioner and client scale.”

Counsel for the first respondent has not, however, sought to sustain and enforce the above order.

She has, in fact, implored the court to exercise its review jurisdiction under section 25 of the Supreme Court Act [Chapter 7:13] on account of perceived irregularity.

Wherefore she prayed for an order in the following terms:

“Having utilised the powers granted to it under section 25 of the Supreme Court Act [7:13], the following is ordered:

(a) Appeals under S-27-2020, S–32–2020, S–34-2020 and S222-20 be and are hereby set consolidated.

(b) The judgment of the High Court under HC8111/2019 granted by MUSHORE J on 23rd January 2020 be and is hereby set aside.

(c) The judgment of the High Court under HC6844/20 by TAGU J on 20th May 2020 be and is hereby set aside.

(d) The judgment of the High Court under HC444/20 granted by CHIKOWERO J on 8th July 2020 be and is hereby set aside.

(e) The judgment of the High Court under HC594/20 by MUSITHU J on 15th September 200 be and is hereby set aside.

(f) HC8111/19 is remitted back to the High Court for a hearing de novo before a different judge.

(g) Pending the determination of HC8111/19, 2nd Plaintiff, third plaintiff, 3rd-9th Defendants Plaintiff shall not take any steps that will interfere with the operations of the 1st Defendant.…,.

2. It is thus prayed.”

It is plain that the above relief sought is premised on the ill-conceived assumption that the court would grant the request for consolidation.

Paragraph 'g' of the draft order, however, seems to have some merits because it seeks to protect the Bank account from abuse by persons who are, for the time being, no longer its officials pending the final determination of the parties competing rights.

The Court, having dismissed the prayer for consolidation, paragraphs (a) to (f) of the first respondent's prayer cannot stand as they are premised on the envisaged consolidation which never materialised.

For that reason, the Court cannot interfere with appeals which are not before it.

I will therefore focus on the instant appeal before this Court.

No application for review can be brought in terms of section 25 of the Supreme Court Act. The court acts mero motu. Thus, counsel for the first respondent was merely raising the court's attention to exercise its discretion in this regard....,.

Paragraph (g) of the first respondent's prayer seeks to downgrade the order granted by the court a quo in HC8111/20 to a temporary interdict pending the determination of the main dispute on appeal.

There is need to interrogate that proposal on the merits.

It is common cause that the first and second appellants were employed by the Union. They were dismissed from employment following disciplinary proceedings. They have since appealed against their dismissal.

That much is not in dispute.

In terms of section 92E(2) of the Labour Act [Chapter 28:01] an appeal shall not suspend the decision appealed against.

In interpreting the section, in CFI Retail (Pvt) Ltd v Manyika SC08-16…, MALABA DCJ…, observed that:

“Section 92E(2) provides, that, the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against.

The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision.

The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of an appeal.”

The same applies to appeals against the judgments or decisions of the Labour Court.

This is because there is no statutory provision for the suspension of its judgments or decisions pending appeal. The common law rule, that an appeal suspends the decision appealed against, only applies to superior courts of inherent jurisdiction.

In Founders Building Society v Mazula 2000 (1) ZLR 529 the court held that:

“The rule that an appeal suspends the operation of the decision appealed against applies only to superior courts. It does not apply to other tribunals unless the relevant statute so provides.”

In the absence of statutory authorisation, the common law rule that an appeal suspends the judgment or decision appealed against does not apply to any appeals in terms of the Labour Act.

Had the appellants wanted to remain in office, despite their dismissal from employment, they should have successfully applied for an interim order staying execution pending appeal in terms of section 92E(3) of the Labour Act: see Greenland v Zimbabwe Community Health Intervention Research Project (ZICHIRE) HH93-13.

This they did not do.

What this means is that whether or not they have appealed against their dismissals in terms of the Labour Act, it does not matter whether or not the dismissals were correct at law. It is therefore an exercise in futility for both appellants, at this stage, to impugn or cast aspersions on the decision of the inferior tribunal that dismissed them from employment.

They stand dismissed from employment until their respective appeals have been reversed on appeal.

As regards the third appellant, it is common cause that he was appointed as Trustee by Union resolution and was removed from office by Union resolution on account of the expiration of his term of office.

Following his removal from office, he is de facto out of office.

The net result is that all the three appellants are de facto out of office as Union officials.

Although they have appealed against their removal from office, in the interim, the balance of convenience favours the respondents.

It is highly undesirable, and a recipe for disaster and irreparable harm, that a person dismissed from office, whether rightly or wrongly, continues to be a signatory to his/her principal's Bank account pending appeal.

Having come to the unassailable conclusion, that, the appellants are currently no longer officials of the first respondent, the court a quo cannot be faulted for holding, that, the appellants are unsuited to be signatories to the first respondent's Bank account as things stand.

The court a quo, however, fell into error in making a final order before the parties competing rights have been conclusively determined on appeal.

The mere fact that there were numerous conflicting decisions on the same matter emanating from the same court on various aspects of the matter meant that there was uncertainty on the appellants prospects of success on appeal.

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.BACKGROUNDAlthough the facts of this matter are mainly common cause, it is necessary to set them out ...

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.

BACKGROUND

Although the facts of this matter are mainly common cause, it is necessary to set them out in some detail in order to determine whether the court a quo exercised its discretion judicially.

The appellant was employed by the respondent as a Creditor's Clerk. He was charged under the relevant Code of Conduct with the offence of “any conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract of employment and willful disobedience to a lawful order.”

It was alleged, that, the appellant failed to comply with written and verbal instructions given to him on 24 May 2001 regarding the checking of daily banking.

Following a disciplinary hearing, he was found guilty and dismissed on 15 August 2002.

He appealed against the decision to the internal Appeals Committee which upheld the decision of the disciplinary hearing on 4 September 2002.

About five months later, the appellant alleged, that, he filed a notice of appeal with the Labour Relations Tribunal Court on 26 February 2003. The respondent asserted, that, they were not served with the notice of appeal and there is no proof in the record that they were served.

The matter was never prosecuted.

The appellant states, in his founding affidavit, that, he made several inquiries with his legal practitioners about the appeal but did not get a satisfactory response. On 5 July 2006, he retrieved his file from his erstwhile legal practitioners and instructed new counsel. His new legal practitioners wrote a letter to the Registrar of the Labour Tribunal enquiring about the appeal. As they did not have a reference number, they did not receive a response.

Through his new counsel, the appellant then filed a chamber application for condonation of late noting of appeal and extension of time at the Labour Court in November of 2006.

This application, for some unknown reason, was only served upon the respondent in October 2012.

Perturbed by his new lawyers seeming ineptitude, the appellant wrote a letter of complaint to the Secretary of the Law Society of Zimbabwe in October of 2010 complaining against the legal practitioners. His legal practitioners then renounced agency.

He then enlisted the services of another lawyer.

Following the application for condonation made in 2006, the appellant then filed heads of argument in December of 2012.

The Labour Court dismissed the application for condonation of late noting of appeal and extension of time on 12 March 2013.

After a further five months, on 26 August 2013, the appellant filed for condonation for late filing of an application for leave to appeal to the Supreme Court.

This application was dismissed by the court a quo. He subsequently filed another application for leave to appeal which was eventually granted.

The appellant then filed his appeal with the Supreme Court on 19 November 2014.

The appellant has appealed to this court on four grounds which he set out as follows:

“1. The Court a quo misdirected itself by dismissing an application on the basis of the extent of delays occasioned to the appellant by members of this honorable court and their resultant failure to proffer reasonable explanation for the professional ineptitude.

2. The court a quo erred in failing to place importance of the case to the public at large which protection should only be seen to be given by this honorable court exclusively as one of the main purposes of the act.

3. The court a quo misdirected itself by upholding the need to put finality to litigation at the expense of justice thereby ignoring the record that clearly showed seriousness of purpose displayed by the now self-acting appellant throughout his case as a court of equality.

4. The court a quo erred by conditioning the glaring misrepresentation by a legal practitioner who forged appellants signature of an affidavit after inheriting the case from another lawyer who had also inadvertently and unjustifiably delayed to note an appeal as required by the hallowed rules of the Labour Court as provided for in Statutory Instrument SI59 of 2006.”

As can be seen from the grounds of appeal, the appellant is dissatisfied with the manner in which the court a quo dealt with his application for condonation of the late noting of an appeal.

It is therefore necessary to ascertain whether the court a quo complied with the requirements of the law in respect to such applications.

REQUIREMENTS FOR AN APPLICATION FOR CONDONATION

In the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (S), GUBBAY CJ sets out factors to be considered in such an application. These are as follows:

(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(c) That the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.

See also Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co (Pvt) Ltd & Anor HH667-15....,.

KORSAH JA, in Kombayi v Berkout 1988 (1) ZLR 53 (SC), stated thus:

“The broad principles the Court will follow in determining whether to condone the late noting of an appeal are:

(i) The extent of the delay;

(ii) The reasonableness of the explanation for the delay; and

(iii) The prospects of success.

If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”...,.

With regards to the prospects of success, the appellant has not shown that he has any prospects of success on appeal.

His complaint was merely that the case had never been heard on the merits.

This is not sufficient.

He must allege facts, which, if proved, would show that he had prospects of success.

To grant condonation in respect of an appeal with little to no prospects of success only serves to clog the judicial system.

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

This is an opposed application for condonation of late noting of an appeal and extension of time within which to file a notice of appeal. The applicant brings the application in terms of Rule 43 of the Rules of Court 2018.THE PARTIESThe first applicant is a former employee of the ...

THE PARTIES

The first applicant is a former employee of the third respondent (the company). He was employed as its Chief Executive Officer. He was dismissed from employment sometime in 2015 following disciplinary proceedings.

The first applicant claimed to own 30% shares in the third respondent through the agency of the second applicant, a duly incorporated company, and, to that extent, a juristic person.

His claim to the directorship of the company is in dispute. He claims to be duly authorised to represent the second applicant, a factor which is also disputed by the respondents.

The first and second respondents are natural persons bearing the same surname of 'Chingwena'.

The third to ninth respondents are duly incorporated companies.

The 10th, 11th, 15th-22nd, 29th, 33rd respondents are also duly incorporated companies clothed with juristic personality.

The remaining parties, though cited, did not appear to oppose the appeal.

The 4th to 38th respondents are companies in which the first appellant alleges the company has investments liable to his 30% claim of the shares allegedly held by the third respondent therein.

THE LAW

The law relating to applications of this nature is well known such that it cannot be the subject of any controversy. The requirements for the application to succeed were spelt out in Kombayi v Berckout 1988 (1) ZLR 53 (S). These are:

(a) The extent of the delay;

(b) The reasonableness of the delay; and

(c) The prospects of success on appeal....,.

BRIEF SUMMARY OF THE CASE

The first applicant approached the court a quo in terms of section 196(1) as read with section 198 of the Companies Act [Chapter 24:03] complaining that the affairs of the company, Croco Holdings (Private) Limited are being, or have been, conducted in a manner that is oppressive or unfairly prejudicial to the interests of some part of the members including himself. The section provides as follows:

“196 Order on Application of Member

A member of a company may apply to the court for an order in terms of section one hundred and ninety-eight on the ground, that, the company's affairs are being, or have been, conducted in a manner which is oppressive or unfairly prejudicial to the interests of some part of the members, including himself, or that any actual or proposed act or omission of the company, including an act or omission on its behalf, is or would be so oppressive or prejudicial.”

The first applicant deposed to the founding affidavit wherein he averred, that, he owns 30% shares in the company whereas the first respondent owns the remaining 70%.

His complaint is that the first respondent has been, and is, abusing his position as the majority shareholder.

He alleged that the first respondent was conducting the company's affairs in an oppressive and prejudicial manner to its members including him.

He averred, that, the first respondent and he were the promoters and founding directors of the company. The first respondent had, however, fraudulently removed his name from the company's register of directors.

He proffered some documentary evidence tending to show that he was an initial subscriber of shares and Director of the company. To that end, he submitted, that, all the essential company records showed that he owned 30% of the shares in the company. He contended that he subscribed for the shares in terms of a shareholding agreement he signed on 27 May 2006.

The first applicant cast aspersions on the first respondent alleging that since 2014 he had conducted himself contrary to the Shareholders Agreement. He further accused the first respondent of making decisions outside the forum of the Board of Directors.

It was his averment, that, in frustration, he offered to sell his shares to the first respondent but he was evasive and non-committal. Eventually, the first respondent turned the tables against him and began to dispute his shareholding in the company. They, however, subsequently met and agreed that the shares be evaluated before disposal. Despite having ordered that evaluation of the shares be carried out, the first respondent, again, made an about turn and denied ever having entered into such an agreement with him.

Having failed to resolve their differences amicably, the first applicant alleged that the first respondent proceeded to suspend him from work leading to his dismissal from employment. He has since challenged his dismissal in the courts.

On that score, he complained, that, the first respondent had violated his rights as a shareholder which rights are protected by the Companies Act. Consequently, he implored the court a quo to provide him with the following relief:

“WHEREUPON after reading documents filed of record and hearing counsel;

IT BE AND IS HEREBY ORDERED THAT:

1. A forensic audit and valuation of the 3rd respondent and its investments in the 4th to 38th respondent be and is hereby ordered to be conducted by an accounting firm registered in terms of the Public Accounts and Auditors Act [Chapter 27:12] to be appointed by the 39th respondent within 5 days of granting this order, all fees and costs of the evaluation being paid by the 3rd respondent.

2. 3rd respondent be and is hereby ordered to pay the applicants the full value of thirty percent (30%) of its total issued ordinary shares and 30% of its investments in the 4th to the 38th respondents within 5 days of completion of the forensic audit and valuation; such value having been established in terms of paragraph 1 above.

3. 3rd respondent be and is hereby directed to reduce 3rd respondent's share capital once the full amount of its thirty percent (30%) issued ordinary shares have been paid by 3rd respondent.

4. The Sheriff of the High Court and/or his lawful deputies be and are hereby ordered to execute terms of paragraph 2 above.

5. The 1st respondent pays the costs of suit on a legal practitioner and client scale.”

The respondents opposed the application, arguing that the first applicant was never a shareholder of the company.

They accused him of relying on forged fraudulent documents and challenged him to prove how he had acquired the alleged company shares.

Riding on that challenge, they raised a point in limine disputing his locus standi.

They submitted, that, only a member of a company, in the form of a shareholder, can bring an application in terms section 196 as read with section 198 of the Companies Act. The first applicant, not being a shareholder of the company, was not a member of the company, and, therefore, not qualified to bring the application before the court a quo.

As a second point in limine, the respondents challenged the first applicant's authority to represent the second applicant.

FACTUAL FINDINGS OF THE COURT A QUO

The court a quo found, that, the application was founded on material falsehoods based on fraudulent documents. Both the Shareholders Agreement and the share transfer documents were adjudged to be fraudulent documents. It also found, that, in relation to the point in limine, the applicant was unable to explain two conflicting CR2 documents.

Thus, the court a quo upheld both points in limine.

Ultimately, the learned judge a quo upheld the two preliminary points, and, in the process, found, that, the application was bad at law in that it did not meet the requirements of section 95 as read with section 196 of the Companies Act.

In the result, he dismissed the application with costs.

PROSPECT OF SUCCESS ON APPEAL

The onus of proof lies squarely on the first applicant to prove, that, if granted the court's indulgence, he has reasonable prospects of success on appeal.

The case of Essop v S [2020] ZASCA 114…, provides guidance on what is required of the applicant to discharge the onus of proof. In that case, the court had occasion to remark that:

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the applicant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success; that the case is arguable on appeal; or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

The applicants contention is that they have bright prospects of success on appeal because the court a quo ignored uncontested evidence which proved that the first applicant was indeed a shareholder in the third respondent. The first applicant further argued, that, the court a quo erred in holding that the Shareholders Agreement, and the share certificates, were fraudulent documents.

As we have already seen, the respondents challenged the first applicant's locus standi and invited him to prove what he alleged.

The respondent did not have to do more than to simply challenge the first appellant to bring forth credible evidence that would reasonably persuade the Appeal Court to come to a different decision from that of the court a quo.

The cardinal factual issue for determination in the court a quo was whether the first applicant was a shareholder of the company.

It is settled law in our jurisdiction that an Appeal Court will not easily interfere with factual findings made by a lower court. To that extent, case law has set the test for discrediting and upsetting factual findings by a lower court so high that they cannot easily be overturned on appeal.

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01 this Court held that:

“An appeal to this court is based on the record. If it is to be related to the facts there must be an allegation that there has been misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision; and a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

In this case, the court considered all the evidence placed before it and came to the conclusion that the documents relied upon by the first applicant were forged, fraudulent documents.

The applicant's contention is that the Shareholders Agreement, and the share certificate, are authentic and valid because they were prepared and signed by Gwatidzo, the auditor. He accuses the court a quo of ignoring evidence he proffered to the effect that Gwatidzo admitted that he prepared the documents.

As evidence of the alleged admission, he filed a transcript of a long telephone conversation that he had with Gwatidzo…,.

That transcript does not support his assertion that Gwatidzo admitted preparing the disputed documents.

This is what Gwatidzo said at p16 of the transcript:

“A. MR GWATIDZO: I actually do not remember preparing the shareholders agreement. Did I prepare the shareholders' agreement?

…,.

Q. FARAI: In all honest did you not prepare the transfer of shares?

A. MR GWATIDZO: No it was done by Bekker Tilly.”

It is axiomatic that the authenticity of the questioned document was premised on them having been prepared and signed by the auditor Gwatidzo.

Gwatidzo's denial that he is the author of the questioned documents was fatal to the applicant's case. It destroyed the whole foundation and basis of his case.

In his opposing affidavit, the first respondent averred, that, the first applicant forged the Shareholders Agreement document by super-imposing his genuine signature on a copy of the agreement and then photocopying it.

The first applicant did not lead any evidence to rebut the allegation.

Failure to rebut the allegation of forgery of the material document was fatal to the applicants case.

To make matters worse, the first applicant filed two conflicting CR2 Forms.

The first one showed that the company owned all the shares in the second respondent, Moses Tonderai Chingwena Family Trust. Upon realising that the first CR2 Form was fatal to his case, the first applicant filed another CR2 Form with his answering affidavit contradicting the first CR2 which asserted that the third respondent owned all the shares in the second respondent.

These examples of the first applicant's shenanigans portray him as a dishonest, devious person who is prepared to twist the truth in order to advance his nefarious cause.

In light of his deceitful character, the learned judge a quo cannot be faulted for holding, that, the first applicant's cause was founded on lies and fraudulent documents.

That finding is amply supported by the evidence on record.

For that reason, the learned judge a quo's reliance on the dictum of NDOU J in Leader Tread Zimbabwe (Pvt) Ltd v Smith HH131-03 is apt. In that case, the learned judge observed that:

“It is trite, that, if a litigant has given false evidence his story will be discarded and the same adverse inference may be drawn as if he has not given evidence at all: see Tumahole Bereng v R [1949] AC 253 and South African Law of Evidence IH HOFFMAN and DT ZEFFERT (3rd ed) at page 472.

If he lies about a particular incident, the court may infer that there is something about it which he wishes to hide.”

This should really be the end of the matter as the first applicant has proven to be an unworthy, dishonest litigant.

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED
Ruled By: BHUNU JA

This is an application for condonation of late noting of appeal and extension of time within which to note the appeal in terms of Rule 43 of the Supreme Court Rules 2018.

The application is opposed.

The matter was argued on 24 November 2020. At the conclusion of argument the parties were granted the opportunity to canvas the possibility of an amicable settlement. The matter was then postponed sine die pending settlement, failure of which the court would proceed to determine the application.

The parties did not, however, come back to the court within a reasonable time to advise it of the outcome of their negotiations.

Prompted by the inordinate delay, on 1 June 2021, I asked the Registrar to write to the parties enquiring about the outcome of the envisaged settlement.

The enquiry elicit no response.

Having received no response, I directed that the matter be set down for 11 October 2021.

At that hearing, the parties, again, agreed to a further two weeks postponement to canvas settlement. The matter was then postponed to 18 October 2021 by consent of the parties.

At the resumed hearing, on 18 October 2021, the applicant was in default. Counsel for the respondent, however, advised that the parties had failed to settle their dispute thereby paving the way for me to determine the application.

I now proceed to determine the application on the merits.

FACTUAL BACKGROUND

The applicant is a Trust duly registered in terms of the laws of Zimbabwe whereas the respondent (the company) is a duly registered juristic person in accordance with the laws of Zimbabwe.

It is common cause, that, the applicant owns 50 per cent shares in the respondent.

On 19 February 2019, the applicant made an application in the High Court (the court a quo) for the liquidation of the respondent company. It sought liquidation of the company on the basis that the directors had irretrievable differences as they were deadlocked on the management of the company.

The respondent opposed the application, raising a counterclaim coupled with a point in limine in the process.

It is convenient to deal with the point in limine first before delving into the merits of the application.

THE POINT IN LIMINE

The point in limine raised by the company is procedural in nature.

Counsel for the company submitted, that, the application before the court a quo was fatally defective for failure to comply with the mandatory provisions of section 5(4)(a) and (b) of the Insolvency Act [Chapter 6:07].

The court a quo upheld the point in limine hence the appeal.

The section provides as follows:

“5. Application by debtor for the liquidation of a trust, company, private business, corporation, co-operative or other debtor other than a natural person or partnership

(1)…,.

(b) By the company, or one or more directors or by one or more members for an order to wind up the company on the grounds that –

(i) The directors are deadlocked in the management of the company, and the members are unable to break the deadlock; and

A. Irreparable harm is resulting or may result from the deadlock; or

B. The company business cannot be conducted to the advantage of members, generally, as a result of the deadlock: or

(ii) The members are deadlocked in voting power, and have failed, for a period that includes at least two financial years, to elect successors to directors whose terms have expired; or

(iii) It is just and equitable for the company to be liquidated.

…,.

(4) Every application to the court referred to in subsection (1) except an application by the registrar of companies in terms of subsection 1(e) and the Master in terms of paragraph (h) of that subsection must be accompanied by -…,.

(a) A statement of affairs of the debtor corresponding substantially with Form A of the First Schedule; and

(b) A certificate of the Master, not issued more than four days before the date on which the application is to be heard by the Court, that sufficient security has been given for the payment of all costs in respect of the application that might be awarded against the applicant.”

It is common cause that the applicant did not comply with the mandatory provisions set out in section 5(4)(a) and (b) of the Insolvency Act in so far as the application was not accompanied by a statement of affairs of the debtor corresponding substantially with Form A of the First Schedule. That omission was in contravention of paragraph (a) above.

Secondly, there was no Master's certificate as is required by paragraph (b).

In paragraph 5.9 of its heads of argument, the applicant concedes that the application before the court a quo was in fact a nullity where it says:

“In casu, the application a quo was fatally defective and same should have been struck off the roll and not determined on the merits.”

On that score, counsel for the applicant argues, that, the court a quo committed a gross irregularity by proceeding to deal with the merits of proceedings which were a nullity at law.

It is correct to say, that, the learned judge a quo found that the applicant failed to comply with the strict mandatory provisions of the law, and that, therefore, the application before him was a nullity.

At page 5 of his cyclostyled judgment, the learned judge properly relied on the dictum in Air Duct Fabricators (Pvt) Ltd v A M Machado & Sons (Pvt) Ltd HH54-16.

That case is authority for the proposition, that, failure to comply with a mandatory course of action invalidates the thing done.

Having correctly articulated the law, the learned judge a quo appreciated that he ought to have struck the application off the roll as a nullity for want of compliance with the law. He however did not strike off the application but went on to consider the company's counter application.

In his own words, this is what he had to say at page 5 of HH606-20:

“So much for the preliminary point which the entity raised. It is not without merit. But, for the need on my part to consider the application as a whole, the same would have been struck off the roll with costs. I remain alive to the fact that the parties placed before me an application and a counter-application. It is therefore necessary for me to consider both and make a determination, which, in my view, serves the interests of the parties.”

Having said that, the learned judge a quo went on to consider the merits of the counter application and issued the following order at page 17 of HH606-20:

“I have considered all the circumstances of this case. I remain alive to the fact that the counter-application in favour of the entity in terms of paragraph (d) of subsection (2) of section 197 of the Companies Act. I am satisfied that the requirements which are mentioned in section 196 of the Companies Act are met.

It is in the result ordered that:

(a) The main application be and is hereby dismissed with costs.

(b) The main order in the draft of the counter application be and is hereby granted.”

Thus, the learned judge a quo determined both the main application and the counter-application notwithstanding the fact that he had previously observed that the proper course of action to take was to strike off the main application for want of compliance with the mandatory provisions of the law.

ANALYSIS OF THE FACTS AND THE LAW

On the facts before him, the learned judge was undoubtedly correct in his view, that, the main application ought to be struck off for none-compliance with the law. The applicant's failure to comply with the mandatory procedural requirements of the law meant that the application was not properly before the court a quo.

The proper order in that regard is to strike off the proceedings as a nullity.

In Chirosva Minerals (Pvt) Ltd v Minister of Mines and Ors 2011 (2) ZLR 274, the court held, that, the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.

What this means is that the main application that was launched in the court a quo, without the statement of affairs of the debtor and the Master's certificate, as required by law, was void, and, to that extent, a legal nullity.

The leading case on the effect and import of void proceedings is Mcfoy v United Africa Co Ltd [1961] 3 ALL ER 1169…,. In that case, LORD DENNING observed that:

“If an act is void, then, it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad. You cannot put something on nothing and expect it to stay there. It will collapse.”…,.

On the basis of the law, as articulated through the cases, once the learned judge had taken the correct view that the main application upon which the counter application was founded was a nullity, he ought to have declared the application a nullity and stop there.

Since the counterclaim was founded on a nullity, it had no independent existence of its own. It would therefore have collapsed together with the main application as it was riding on the back of the main application.

Faced with the same situation in Care International Zimbabwe v ZIMRA & Ors HH373–15…,.; 2015 (1) 567…, MTSHIYA J, sitting in the same court, had this to say:

“I agree with the first respondent, that, there is no valid application before the court, and, accordingly, the rest of the issues raised by the respondents cannot be delved into. The finding estops me from going any further.”

MTSHIYA J was undoubtedly correct that once an application is found to be fatally defective the court cannot go on to determine any other issues based on the defective application.

In light of established precedent, it is plain that the learned judge a quo strayed into the morass of irregularity when he proceeded to determine both the main application and the counter application in circumstances where it was clear to him that the main application was a nullity.

There is, therefore, merit in the applicant's complaint, that, the court a quo could have misdirected itself by failure to strike off the main application, and, by extension, the counter-application.

DISPOSITION

For the foregoing reasons, I find that the applicant has bright prospects of success on appeal. It is accordingly ordered that:

1. The application for condonation of late noting of appeal and extension of time within which to note the appeal be and is hereby granted.

2. The notice of appeal shall be filed and served within five (5) days of this order.

3. There shall be no order as to costs.

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

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

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

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

The dies induciae expired on 18 July 2014.

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

The applicant did not enter appearance to defend.

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

The respondents opposed that application hence this opposed application.

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

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

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

Regarding the merits, the applicant, in paragraph 8 of his founding affidavit gives this explanation:

“8. Further, there are prospects of success on the merits. The amount being claimed by the respondent is disputed as there was an agreement between the parties for the reduction of the rentals. For the months of February and March the rent was reduced from the original US$2,500 to US$1,250, but, surprisingly, in their claim, the respondents are still claiming US$2,500 for the above mentioned months.”

There are no facts which the applicant has set out upon which he relies for the alleged defence to enable the court to form some opinion of its merits or bona fides as is required by the law.

Clause 26 of the lease agreement provides, in clear and unambiguous language, what should happen in the event of any variations to the lease agreement in these words:

“26. Whole Agreement

This agreement constitutes the whole agreement between the parties and no variations, alterations, or collateral agreements shall be of any force or effect unless and until recorded in writing in a document signed by the parties.”

Such a document, satisfying the requirements stipulated in clause 26 above, was not produced, neither was there even the slightest allusion to its existence save the applicant's mere allegation that there was an agreement pertaining to a reduction of rentals for February and March.

So, where are the prospects of success vaunted by the applicant in paragraph 8 of his founding affidavit?

Clearly, the applicant has no defence no matter how reluctant the court may be to reach a decision that would result in giving leeway to a judgment against a person without him being heard in spite of his protestations that he has a valid defence.

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

The respondent filed an application for Directions in terms of Order 23 of the High Court Rules 1971.

On 26 November 2014, I directed that the Urgent Application for Stay of Execution, filed under case number HC2009/14, be set down for argument during the first term of 2015. The matter was set down for argument on 20 February 2015.

This judgment deals with the confirmation or discharge of the Provisional Order granted by this court on 28 August 2014.

Background

The factual background to this matter is as follows:

On 28 August 2014, the respondent (as plaintiff) obtained a judgment in the Magistrates Court for the cancellation of the lease agreement between the parties signed and concluded on 30 July 2012. The Applicant (as defendant) was also ordered to pay arrear rentals in the sum of $2,500 per month with effect from January 2013. The applicants were ejected from Shop Number 2, 79A Jason Moyo, Bulawayo and were ordered to pay collection commission together with interest at the prescribed rate and costs of suit.

Aggrieved by the judgment of the Magistrates Court, the applicants filed a Notice of Appeal and such appeal is pending before this court under case number HCA92/14.

Armed with the Notice of Appeal, the applicants approached this court, under cover of case number HC2009/14 on an urgent basis and obtained a provisional order whose interim provides that:

“Pending the finalization of this matter, execution of the magistrates court judgment under case number 732/13 is stayed.”

The respondents sought to set the matter for hearing, a move resisted by the applicants.

This prompted the filing of the application for directions.

I directed the parties to file their heads of argument and present argument on whether the application for Stay of Execution should be confirmed or discharged.

The first issue I must determine is whether the Notice of Appeal filed by the applicants is valid and complies with the rules.

Rule 29 of the Supreme Court Rules 1964 (which Rule applies to appeals to the High Court), provides that:

“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state:

(a) The date on which, and the court by which the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 3;

(e) The exact nature of the relief sought;

(f) The address of service of the appellant or his legal practitioner.”

In this matter, the Notice of Appeal does not state whether the appeal is against both liability for arrears and ejectment from the rented property.

This is far short from the peremptory requirements for the Rules.

Furthermore, to merely state, that, the appellants pray that their appeal be allowed with costs is grossly inadequate and not in compliance with the rules of the court.

The Notice of Appeal, is, in my view, fatally defective to the extent that it is a nullity.

There has been no attempt to seek to amend the Notice of Appeal in spite of the fact that the issue was raised way back in October 2014.

What this boils down to is whether the applicants can hold on to an Order for Stay of Execution obtained pursuant to a defective Notice of Appeal.

I am of the firm view, that, once it is established that the Notice of Appeal is defective and a nullity, the applicant's order for stay of execution cannot be allowed to stand.

In the case of Jensen v Acavalos 1993 (1) ZLR 216, KORSHA JA…, stated the position as follows:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

I set HC6264/21 down for hearing. The hearing was scheduled for 20 June 2022. At the hearing, the applicant, which was the respondent in the case, raised a preliminary point. It did so through counsel.

Its in limine matter was that the first respondent (“the respondent”) which was the applicant in the court a quo did not file its Heads within the dies which TSANGA J issued to the parties on 4 February 2022. It insisted that the respondent was barred and could not, therefore, be heard until it unbarred itself.

The respondent opposed the preliminary point which the applicant raised.

It admitted that it did not file its Heads within the dies. It claimed that it had agreed with the applicant, that, both parties would file their respective Heads outside the order which the court issued to them.

It unsuccessfully applied to uplift the bar.

Following the submissions of the parties, I remained of the view, that, both of them flouted the order of TSANGA J.

I decided that they were both barred and were, therefore, improperly before me. I, accordingly, struck HC6264/21 off the roll and ordered that each party meets its own costs.

The decision which I made constitutes the applicant's cause of action. It filed this application for leave to appeal the same.

It attached to the application its draft notice and grounds of appeal. It remains of the view, that, I should not have made a finding which was/is to the effect that it was barred. It insists, that, it could not file its Heads without the respondent having filed its Heads first. It claims, that, once the respondent was barred, it no longer had any obligation to file Heads or any further pleading other than to apply that default judgment be entered against the respondent.

It, accordingly, moves me to grant leave to it to appeal.

The respondent opposes the application for leave to appeal. It insists, that, the appeal has no merit, and, therefore, has no reasonable prospects of success.

It alleges, that, both the applicant and it were improperly before the court. Both parties, it asserts, were in contempt of court by virtue of not obeying the court order which directed them to file their respective Heads within certain time-frames.

It argued, through counsel, that, Part XVI of the High Court Rules 2021 deals with such applications as the one which the applicant placed before me. It placed reliance on Rule 94(8) as read with sub-rules (1) and (2) of the same Rule of court which subrules it claims are peremptory.

It asserts, that, the application for leave, which, according to it, does not comply with the mandatory rules of court, is fatally defective and must therefore be dismissed with costs.

An application for leave to appeal places the judge before whom it is placed in an invidious position.

The applicant, it would appear, will be inviting the judge to review his own decision.

The judge who takes the position of reviewing his own work falls into an unfortunate situation where, at the hearing, he is tempted to make common cause with the respondent.

He should make every effort not to be tempted to agree with the respondent at the detriment of the applicant. He should, at all times, endeavor to be as objective as he humanly can.

His guiding rod in the determination of such an application as the present one is whether or not the applicant has reasonable prospects of success on appeal: Pichanic N.O. v Paterson 1993 (2) ZLR 163 (H); Afrikaanse Pers Beperk v Oliver 1949 (2) SA 890.

Whether or not the application is defective on the alleged ground, which is to the effect that the applicant did not comply with Rule 94 of the rules of court, will unfold itself upon an analysis of the said Rule as well as on a proper interpretation of the same.

Sub-rule (8) of Rule 94 of the rules of court is relevant.

Its import is, that, where leave to appeal is necessary in respect of a judgment given in a civil court, sub-rules 1–7 of the Rule shall apply to an application for leave to appeal…, as if the words 'Prosecutor-General' there were substituted the word 'respondent'.

Sub-rule (1) of Rule 94 of the High Court Rule stipulates, that, where leave to appeal is sought, the applicant:

(a) May apply, orally, immediately after judgment has been entered against it: and

(b) Should state his grounds for the application.

Sub-rule (2) of Rule 94 is to the effect, that, where the applicant has not made an oral application in terms of sub-rule (1), he may file with the Registrar a written application within twelve days of the date of the judgment. The written application must, according to the proviso which is in the sub-rule, state the reasons why the application was not made in terms of sub-rule (1) of Rule 94 of the rules of court.

It is on the strength of the abovementioned sub-rules of Rule 94 of the High Court Rules 2021 that the respondent argued that the application was/is defective.

It submitted, that, the applicant violated sub-rules (1) and (2) as well as the proviso to sub-rule (2) of Rule 94. It insists, that, both sub-rules are peremptory and should, therefore, have been complied with to the letter and spirit.

The respondent's contention, it has been observed, is that the application for leave is defective.

I disagree.

Whilst it is agreed that Rule 94 of the High Court Rules relates to applications for leave to appeal, the Rule is not peremptory as the respondent would have me believe. It is optional or discretionary. Its use of the word 'may' in each subrule says it all.

It only becomes peremptory in paragraph (b) of sub-rule (1).

It becomes mandatory in the sense, that, once the applicant has taken the option to apply orally for leave to appeal, he is enjoined by the Rule to state, as well as record, his grounds of the application as part of the record. The net effect of paragraph (a) of sub rule (1) of Rule 94 of the High Court Rules is that he is at liberty to apply or not to apply orally for leave to appeal.

Equally of importance to the applicant is the discretion which sub-rule (2) of Rule 94 confers upon him.

He may, or may not, file a written application with the Registrar where he has not exercised his right to apply for leave to appeal under sub-rule (1) of Rule 94 of the rules of court. However, where he chooses to exercise his right in terms of Rule 94(2), the proviso to the Rule imposes upon him certain conditions which he must comply with. He must, for instance, state the reason why he refrained from exercising his option in terms of sub-rule (1) of Rule 94. He must also state the proposed grounds upon which he contends that leave to appeal should be granted to him.

What is evident, from a reading of sub-rules (1) and (2) of Rule 94 of the rules of court is that the applicant has a choice to pursue his options under either of the subrules - but not both. What is also clear is that, the moment he takes the one or the other sub-rule, his performance under his chosen sub-rule becomes peremptory leaving him with no choice but to act in accordance with the route which he has taken.

The Rule remains silent where he does not pursue his rights in terms of either sub-rule (1) or sub-rule (2).

It follows, in my view, that, he can choose not to follow the one or the other of the two sub-rules, as the applicant did in casu, and still be able to apply for leave to appeal under the common law.

The question which begs the answer is: can the application which he filed outside Rule 94 of the rules of court be suggested to be defective?

I think cannot.

The application remains as valid as the one which an applicant files under Rule 94 of the High Court Rules 2021. This application cannot, therefore, be said to be defective. It is within the law, so to speak.

For the applicant to succeed in its application for leave to appeal, it must demonstrate that it has reasonable prospects of success on appeal.

In laying down the test of reasonable prospects of success, the authorities were only stating the obvious. The obvious is, that, it would be a waste of the time of the court, and that of the respondent, if the applicant were to appeal just for the fun of it. An appeal which is filed without the applicant's serious intention to test the correctness or otherwise of the decision of the court a quo is frivolous and vexatious. No court will sanction an application which relates to such an appeal.

The context of this application is relevant.

The context is that, on 4 February 2022, TSANGA J, before whom the parties appeared, set specific time-lines within which they were to file their respective papers in preparation for the hearing of the matter. This was scheduled to take place at 10am of 28 March 2022. The learned judge directed, among other directions, that:

(a)…,.

(b)…,.

(c) The applicant a quo shall file its Heads on 16 February 2022; and

(d) The respondent a quo (applicant in casu) shall file its Heads on 2 March 2022.

That both parties filed their respective Heads outside the above-mentioned timelines requires little, if any, debate.

In deciding as I did, I remained alive to the fact, that, the directions of TSANGA J are, no doubt, an order of court which the parties had no choice but to obey.

I was further persuaded by case authority which discussed the issue which the parties had placed before me.

It is, for instance, trite, that, when a court order provides a time limit within which to do something…, such time limits ought to be followed. Failure to comply with such time limits leads to lapsing of the rights conferred therein: The Sheriff of the High Court of Zimbabwe v Madziro & Ors HH670-15.

It is a plain and unqualified obligation of every person against, or in respect of whom the order is made by the court of competent jurisdiction to obey it, unless and until that order is discharged; and, as is known, two consequences flow from that obligation:

(i) The first one is that anyone who disobeys an order of court is in contempt and may be punished by committal or attachment or otherwise.

(ii) The second is that no application to court by such person will be entertained unless he has purged himself of his contempt: Artiknson v Artkinson (1952) 2 All ER 567 (CA).

By not complying with the order of TSANGA J, both the applicant and the respondent were, no doubt, in contempt of the court order.

None of them could therefore be heard unless it purged itself of the contempt.

I found the applicant's finger-pointing at the respondent to have been made without any serious intention on its part. This was a fortiori the case given that it did not, on its part, make any effort to live within the four corners of the court order which the learned judge issued to the respondent and it.

The applicant premised the preliminary point which it raised on the order of TSANGA J. It did not rest it on the rules of court as it seems to suggest in its Heads. It submitted, that, the respondent did not comply with the order of TSANGA J.

Its reliance on Rule 59(21) of the rules of court is, therefore, misplaced.

Because it referred me to the order of the learned judge, the decision which I made was not premised on the rules of court. It rested on the order of the court.

The specific time-lines which the learned judge dished out to the parties aimed, in my view, at preparing them for the hearing which had been scheduled for 28 March 2022 at 10am. Their belated filing of Heads had an adverse effect on the hearing of the application. It was only fortuitous that it was not heard on the date to which it had been set down.

I found the conduct of the parties, both of whom were/are ably legally represented, to be wanting in the extreme sense of the word.

The applicant's reference to Rule 59(21) of the rules of court imports a new dimension into the equation of the decision which I made in June 2022.

The dimension centers on what parties to a case should comply with between an order which the court, properly constituted, issues to them, and the law as stipulated in the rules of court. Which of the two laws, in other words, must give way to the other.

The dimension raises jurisprudential issues which only the superior court can clarify for the benefit, not only of the court, but also of litigants.

It is on the mentioned score that I remained persuaded to grant leave to the applicant to prosecute its appeal. The prosecution of the same will, no doubt, enhance the development of the law and the court's appreciation of the same.

The application is, in the premise, granted as prayed.

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

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

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

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

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

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

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

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

“MEMORANDUM OF AGREEMENT

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

Plaintiff and her legal practitioner Mr G. Nyoni

Defendant and his legal practitioner Mr S.S. Mazibisa

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

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

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

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

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

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

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

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

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

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

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

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

“RE: M. NCUBE vs SIPIWO NKOMO

The above matter refers and to our previous conversation.

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

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

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

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

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

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

The above matter refers and to the attached court order.

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

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

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

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

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

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

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

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

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

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

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

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

(c) The third and last point raised by the respondent, viz that the applicant's actions of retaining the deposit paid and the motor vehicle is not worthy considering at this stage.

Those merits should be ventilated in a different forum if it is found, that, the agreement concluded by the parties does not put the dispute between them to rest.

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Supreme Court Rules.

This is an application filed in terms of Rule 31(2) of the Supreme Court Rules.

On 9 of December 2013, and upon reading documents filed of record, I dismissed the application with no order as to costs. No opposing papers were filed by the respondent.

The applicant has requested that I furnish him with reasons for the judgment, and these are provided herein.

The applicant filed an application in the High Court, on a certificate of urgency. The court a quo, on 26 June 2013, issued the following decision:

“There is no urgency in this matter warranting this matter to be allowed to jump the queue. The applicant has had all the time in the world to take the initiative to clear his name. I decline to treat this matter as urgent.”

Upon a request from the applicant, the court a quo provided written reasons for the decision not to hear the matter on an urgent basis.

The court a quo, in this respect, relied on the case of Kuvarega v Registrar-General and Anor 1998 (1) ZLR 188 (H)…, in which the following principle was set out:

“What constitutes urgency is not only the imminent arrival of the day of reckoning: a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.”

The learned Judge's assessment of the evidence before him indicated, that, the genesis of the applicant's problems with the respondent dated back to 2003, spilled over to 2007, and then to 2009 and thereafter.

The Judge found, that, the applicant had been fully aware of the conduct of the respondent towards him and that he had always had the opportunity to take the initiative to clear his name. He had chosen not to do so and had only rushed to court, on an urgent basis, on 24 June 2013.

The court concluded, that, the applicant's conduct, in this respect, was not what the whole concept of urgent applications contemplated.

The applicant, on 16 September 2013, then sought the leave of the court a quo to appeal to this court against the decision declining to hear his matter on an urgent basis.

The court a quo having dismissed that application, the applicant then filed the present application before me.

It is essentially an application where the applicant is seeking my leave to appeal to this court, against the decision of the judge a quo that his matter before that court was not urgent.

To properly determine this matter, I consider it pertinent to consider two main issues. These are:

(i) Firstly, the reasoning of the court a quo which led to the decision that it reached: and

(ii) Secondly, the question of whether or not the intended appeal has any prospects of success.

It is my view, that, the requirement for the applicant to file a copy of his Notice and Grounds of Appeal together with an application of this nature, is to enable this court to make a proper assessment of the applicant's prospects of success on appeal.

Having considered the papers before me, which included the reasoned judgment of the court a quo as well as the applicant's affidavits, I find myself in full agreement with the judge's reasoning and determination.

I find, more to the point, that, the applicant did not place before the court a quo, nor before me, any evidence to show that there was, in his application, the type of urgency that would have merited a hearing on an urgent basis.

In other words, he failed to show, that, at the time the need to act arose, the matter could not wait.

I would therefore have dismissed the application to hear the matter on an urgent basis, in the same manner that the court a quo did, and for the same reasons.

As already indicated, I proceeded to do the same in casu.

The applicant properly filed a copy of his notice and grounds of appeal. A synopsis of his grounds of appeal shows that he intends to premise his appeal on two main grounds, both essentially factual:

(i) Firstly, the applicant seems to argue that the court a quo improperly interposed and considered together, two cases that had different HC numbers and were therefore unrelated.

This was in reference to the fact, that, the urgent chamber application was given the number HC4997/13 while the chamber application for leave to appeal was given the number 5794/13.

A perusal of the latter shows that both numbers are, properly, in my view, endorsed on the right hand corner of the document entitled “Chamber Application for Leave to Appeal” clearly showing that the two cases were related.

Apart from this ground of appeal, indicating what seems to me to be a mis-appreciation, by the applicant, of the HC numbering system and its implications in related cases, it is evident that the issue has no bearing on the merits of whether or not the case merited an urgent hearing a quo.

I find, therefore, that, there is little, if any, prospect of success on appeal based on this ground.

The applicant alleges, in his other main ground of appeal, that, there was evidence on record to show, that, contrary to the finding by the court a quo, he had in fact timeously made the effort to clear his name over the period stretching from 2003.

I have already associated myself with the reasoning of the judge a quo and his assessment of the evidence that led to the decision that he reached on this point and will therefore not repeat my reasons for doing so.

This ground of appeal, in my view, lacks merit and carries with it no prospects of success on appeal.

It was for these reasons that I dismissed the application, on the papers, and with no order as to costs.

It should be noted, however, that, the dispute between the applicant and the respondent is still pending before the High Court. It will take its place in the “queue” of ordinary court applications and be set down for hearing when its turn comes.

It occurs to me, that, by pursuing the course of action that he has in casu, the applicant might possibly have delayed, or may delay progress in the finalization of the matter.

HB60-15 : JABULANI NCUBE vs INNOCENT NYATHI
Ruled By: MOYO J

This is an application for condonation of the late filing of an application for rescission of judgment.

The parties have been engaged in protracted litigation dating far back as 2006.

The parties, in 2006, entered into a loan agreement. Part of the terms of the loan agreement were that:

“That the loanee offers his house, being Stand 32699 Bulawayo Township of Bulawayo Township Lands as security.”

Clause 10 of the loan agreement also provides as follows:

“In the event the loanee breaches any content of this agreement, the house that he has given as security to the loaner shall hold him to this agreement (sic) and claim transfer of the pledged stand number 32699 Entumbane area (above-named).”

In this matter, the applicant was the loanee and the respondent was the loaner.

The applicant did make some payments towards the loan, although it looks like they were not made timeously. It is also not clear as to whether the loan was paid up or not.

In such applications, what is central are the following principles:

“It is well established, that, in considering application for condonation, the court has a discretion to be exercised judicially upon a consideration of all the facts, and that, in essence, it is a question of fairness to both sides.

In this enquiry, relevant considerations may include the degree of success…, (agreements); the importance of the case; the respondent's interest in the finality of his judgment; and the avoidance of an unnecessary delay in the administration of justice.

The list is not exhaustive.

These factors are not individually decisive but are inter-related and must be weighed one against the other; thus, a slight delay and a good explanation, may help compensate for prospects of success which are not strong.”

Per the case of United Plant Hire (Pvt) Ltd v Hills & Ors 1976 (1) SA 717 (A)…,.

Our Supreme Court also listed the considerations relevant to the determination of such an application in the case of KM Auctions (Pvt) Ltd v Adanesh Samuel & Anor SC15-12.

In this case, they were listed as:

(i) The degree of non-compliance.

(ii) The explanation for it.

(iii) The importance of the case.

(iv) The prospects of success.

(v) The respondent's interest in the finality of the case.

(vi) The convenience of the court.

(vii) The avoidance of unnecessary delay in the administration of justice.

Apparently, the delay in this matter has been quite lengthy; initially, a default judgment against the applicant was rescinded in 2008, the applicant did nothing, prompting the respondent to seek directions on how to proceed.

Eventually, default judgment awarding the respondent Stand 32699 Entumbane Township was granted on 10 November 2011.

The applicant states, in his founding affidavit, that, he learnt of the default judgement in February 2012, when the respondent intended to evict him from the said property. He states, that, his legal practitioner relocated and went to Botswana and that he never was aware that the legal practitioner had relocated and that there were court proceedings against him. He then approached another firm of lawyers who filed an urgent application for stay of execution that was eventually dismissed.

He says he then had financial problems and could not approach lawyers for assistance.

He then approached his current legal practitioners who advised him, that, condonation had to be sought in order to file an application for rescission of judgment.

The applicant has not gone into much detail as to the specific times he approached these different firms of lawyers. His explanation lacks information and is very slippery. He does not volunteer much information on the delay of more than two (2) years counting from February 2012 to October 2014 when this application was filed.

He tries to blame the departure of his legal practitioner from Zimbabwe to Botswana.

However, he had a duty to check on his matter and not wait until when he hears from the Deputy Sheriff upon execution of the order. A diligent litigant does not wait for his lawyer to communicate with him - especially when the lawyer becomes silent. The litigant is duty bound to enquire from his legal practitioner the status of his case.

In any event, the legal practitioner in question was no longer in the picture from February 2012 when the applicant became aware of the judgment against him.

In this regard, STEYN CJ, in the case of Salajee & Anor NNO v Minister of Community Development 1965 (2) SA 135…, said:

“A litigant…, is not entitled to hand over a matter to his attorneys and then wash his hands of it. If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney…,.”

I accordingly make a finding that:

The applicant was negligent in the prosecution of his own case. He has difficulty explaining the delay. What he has attempted to throw in as an explanation for the delay does not hold any water.

Having found, that, the delay has not been explained to the satisfaction of the court, I therefore move on to find if there are any other factors that could find favour in the applicant's situation, for, the enquiry does not end with the reasonableness or otherwise of the explanation for the delay.

It goes beyond that.

In the case of Mahachi v Barclays Bank of Zimbabwe SC06-06, it was held, that, in a case where no acceptable explanation for non-compliance with the Rules has been given, the applicant must show very good prospects of success.

In the case of Melane v Santana Insurance Co. Ltd 1962 (4) SA 531 (A)…, it was stated thus:

“In deciding whether sufficient cause has been shown, the basic principle is, that, the court has a discretion, to be exercised judicially upon a consideration of all the facts, and, in essence, it is a matter of fairness to both sides.

Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily, these facts are interrelated, they are compatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation.

An attempt to formulate a rule of thumb would only save to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts.

Thus, a slight delay and a good explanation may help to compensate for prospects of success which are not strong or the importance of the issue may tend to compensate for a long delay. And the respondent's interest in finality must not be overlooked.”…,.

I now turn to assess the merits.

In this case, the parties entered into a loan agreement, on the face of it which strikes as an agreement that has certain terms, like clause 10, that may be found to be unlawful.

Clause 10 of the agreement, in my view, is a pactum commissorium.

A pactum commissorium is defined, in the case of Chimutanda Motor Spares (Pvt) Ltd v Musare & Anor 1994 ZLR 310 (H), as:

“A pact by which the parties agree, that, if the debtor does not, within a certain time, release the thing given in pledge by paying the entire debt, after the lapse of the time fixed, the full property in the thing will irrevocably pass to the creditor in payment of the debt.”

WILLES, Principles of South African Law, 8th Edition…, established, that, a valid pledge merely confers the right to retain possession of the thing pledged as security by the pledgor as long as the debt remains unpaid - it does not confer the right of ownership. The pledger retains ownership of the pledged property.

It would appear, that, from the afore-stated authorities, there is a well grounded contention, prima facie, that the agreement between the parties, and the subsequent transfer of the property to the respondent, was in fact premised on an illegality.

There is also a problem raised by a reading of the two (2) letters written by both the applicant's former legal practitioner to the respondent's legal practitioner and the respondent's legal practitioner's response thereto.

These are annexure C on page 28 and the unmarked annexure on page 29 of the bound record.

Annexure C is a letter written by the applicant's former legal practitioner to the respondent's legal practitioner. It is dated 21 March 2007. It reads as follows:

“Re: Jabulani Ncube vs Innocent Nyathi

The above matter refers.

Please find attached the sum of $630,000 (Zim Dollars) being the full and final payment of ours indebtedness to yours.

We accordingly await receipt of your notice of withdrawal.”

On 26 March 2007, the respondent's legal practitioners responded in the following manner:

“Re: Jabulani Ncube & Innocent Nyathi

Your letter of 21st instant refers.

We have receipted your client's payment and wish to quickly indicate that:

There is the issue of costs which your client has to settle, and these, on a comprise, are, $370,000 +15% VAT = $425,000.

There is the issue of inflation, as discussed by clients, which, however, is not part of the summons.

Therefore, if your client pays ours within 7 days of the date of this letter we shall withdraw the matter.

Your client's payment is not full and final bill (sic).”

It is important to note, that, these letters give an impression that the debt was paid up save for costs.

The interest referred to in the letter from the respondent's lawyers, is, by their own admission, not part of the summons.

The immediate question that arises therefore is: what then was the cause of the transfer of the house from the applicant to the respondent when the debt was seemingly paid up save for costs?

Is there not a danger that the respondent was paid the debt in cash and also took the immovable property?

Even if a balance could be found to have been owing on the loan, would it equate to the appropriation of the immovable property whose value was not even established for purposes of settlement of the loan?

I am of the considered view, that, the applicant has a good case on the merits.

I am of the considered view, that, despite the undue delay in seeking to protect his rights, the applicant has, nonetheless, showed good and sufficient cause warranting this court to intervene in his favour.

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

This is an application for direct access to the Constitutional Court made in terms of section 167(5)(a) of the Constitution of Zimbabwe. The allegation is that the conduct of the respondents violated the applicant's fundamental rights as enshrined in sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.The BackgroundThe brief ...

The Background

The brief facts of the matter are as follows:

In 2017, the applicant was arraigned before the magistrates court at Harare facing charges of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Three separate trials were held before the first, second, and third respondents and he was convicted and sentenced to three separate terms of imprisonment.

It is the applicant's allegation, that, during the conduct of the trial proceedings, the first and second respondents violated his right to legal representation because they did not advise him of that right at the commencement of the trial.

This is alleged to be a violation of section 70(1)(d), (e) and (f) of the Constitution.

In the same respect, it is also alleged, that, the first and second respondents “failed to take heed to the laws governing the commencement of criminal trials” and therefore violated section 163A(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act).

It is further alleged, that, such conduct infringed the applicant's right to a fair trial as entrenched in section 69(1) of the Constitution.

As regards the third respondent, it is averred, that, the magistrate did advise the applicant of his right to legal representation in terms of section 191 of the Criminal Procedure and Evidence Act, but, then failed to make an enquiry as to whether or not the applicant had understood those provisions.

This is said to have led to unfair proceedings in violation of sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

Allegations are also made against the fourth respondent in that it failed to assist the applicant in protecting his fundamental rights as aforementioned.

Consequent to these alleged violations, the applicant has approached this Court for relief.

The application is opposed by the fourth respondent.

It contends, that, the applicant has not demonstrated, that, it is in the interests of justice that he be granted direct access to the court. It is also argued, that, the mere reference to constitutional provisions does not mean that a constitutional matter has been raised.

It is important to note, that, the fourth respondent concedes that the proceedings before the first, second, and third respondents were irregular, but, nevertheless, avers that competent relief could have been granted by the High Court or the Supreme Court thus obviating the need to approach the court directly.

In fact, it is alleged that the applicant has since approached the High Court for relief under Case No. HC7066/20.

It is prayed that the application be dismissed as it is without merit....,.

Whether the matter is properly before the court

In casu, the circumstances of the case demand, that, an analysis of whether the matter is properly before the Court ought to be made before any enquiry into the merits.

In his founding affidavit, the applicant purports to bring the present application before the court in terms of section 167(5)(a) of the Constitution.

This is clearly irregular as such an application cannot be brought before the court in terms of that provision.

Section 167(5)a) of the Constitution provides as follows:

“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —

(a) To bring a constitutional matter directly to the Constitutional Court;”

The above provision clearly makes reference to the Rules of the Constitutional Court in terms of which a litigant must approach the court. Section 167(5)(a) of the Constitution cannot be read as a standalone provision independent of other constitutional provisions and the Rules that it mentions.

As pointed out by GWAUNZA JCC in Prosecutor General, Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC) at 425H:

“…,. Section 167 does not elaborate as to who, on what conditions, or how a party may approach the court for it to exercise the jurisdiction conferred upon it by that provision.”

The Court went further to explain the true status of the provision, at 426A:

“In order to give full effect to section 167(1), in relation to any constitutional matter sought to be brought before the court, the provision must be read in conjunction with the various provisions that do confer a right to approach the Constitutional Court, directly or indirectly, through another process.”

Whilst the above remarks were made in relation to section 167(1) of the Constitution, they apply with equal force to the circumstances in casu.

Section 167(5)(a) of the Constitution, in terms of which the applicant seeks to approach this Court, must be read together with other provisions of the Constitution and the Rules which were enacted to give effect to that provision.

In that regard, section 85(1) of the Constitution and Rule 21 of the Constitutional Court Rules are pertinent.

Section 85(1) of the Constitution provides as follows:

“85(1) Any of the following persons, namely -

(a) Any person acting in their own interests;

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

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

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

Having regard to the above provision, it is apparent that the applicant ought to have approached the Court in terms of section 85(1) of the Constitution, claiming the vindication of his fundamental rights.

Section 167(5)(a) of the Constitution, in se, does not confer upon anyone the right to approach the Constitutional Court directly - even where there is a constitutional matter for determination.

It is also necessary to point out, that, the applicant has not attached a draft of the substantive application which he intends to place before the Constitutional Court should direct access be granted.

This is a requirement in terms of Rule 21(4) of the Constitutional Court Rules which provides as follows:

“(4) The applicant shall attach to the application a draft of the substantive application he or she seeks to file with the court.”

It is trite, that, generally speaking, the use of the word “shall” is indicative of the legislature's intention to make the provision under scrutiny peremptory or imperative rather than merely directory or permissive: see Shumba & Anor v The Zimbabwe Electoral Commission & Anor 2008 (2) ZLR 65 (S)…,.

The consequences of a failure to comply with a mandatory provision are explained by FRANCIS BENNION: Statutory Interpretation…, as follows:

“Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory, the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound).”

The applicant's failure to attach a draft of the substantive application that he intends to file with the court, should direct access be granted, is a clear violation of Rule 21(4) of the Rules.

In the absence of such a draft application, the court is severely hamstrung as regards the assessment of the merits of this application.

A determination of whether or not it is in the interests of justice to grant direct access is made impossible without the court having sight of that draft application.

Furthermore, and finally, the applicant's founding affidavit, in contravention of the peremptory provisions of Rule 21(3)(c) of the Constitutional Court Rules, does not indicate whether the matter can be dealt with by the court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved....,.

Disposition

Having considered the totality of the aforementioned circumstances apropos the present application itself, the inescapable conclusion is that it is fraught with fundamental irregularities and is therefore not properly before the court. The gravity of the irregularities marring the application precludes and obviates the need to assess and determine the merits thereof.

It is accordingly ordered, that, the application, being improperly before the court, be and is hereby struck off the roll with no order as to costs.

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

This is an application for leave for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution (“the Constitution”), as read with Rule 21(2) and (3) of the Constitutional Court Rules 2016 (“the Rules”).The application is opposed.FACTUAL BACKGROUNDThe applicant and the respondent were involved in ...

FACTUAL BACKGROUND

The applicant and the respondent were involved in a labour dispute which ultimately found its way before the Supreme Court. The Supreme Court found in favour of the applicant and ordered the respondent to pay the applicant an amount of USD41,161=30 as damages for unlawful dismissal.

Pursuant to the order, the applicant caused a writ of execution to be issued out for the attachment of the movable property of the respondent in satisfaction of the judgment. She instructed the second respondent to execute the writ.

Upon service of the writ, on 15 January 2020, the first respondent paid through RTGS the sum of 43,495=37.

Notwithstanding such payment, the applicant caused the seizure of the respondent's movable property which prompted the latter to seek a provisional order to stay the execution of the writ.

The applicant was undeterred.

On 7 July 2020, she caused the issuance of an additional writ, this time against the movable and immovable property of the respondent.

On 28 July 2020, an immovable property of the first respondent was attached in execution pursuant to the second writ. The second respondent was instructed to sell the property. The sale was scheduled to take place on 2 October 2020.

The first respondent reacted.

It filed an urgent court application seeking the setting aside of the second writ of execution and the consequential attachment of the immovable property. The applicant was given five days to respond to the application.

Due to an error, the matter was treated as an urgent chamber application instead of a court application and referred to a judge in chambers.

The applicant had not, at that stage, filed any papers in response.

There was also no proof on record that the first respondent had served the court application on the applicant as required by the rules of court.

At the time, the dies induciae stated on the application had not expired and the matter was removed from the roll for urgent chamber applications.

After correspondence from the first respondent, to the High Court, pointing out the errors, was received, the error was rectified and the parties filed their papers in accordance with the Rules.

The applicant had grievances on how papers of the application were served on her.

She filed several letters in the record raising issues on how the matter was being dealt with by the first respondent and the conduct of the matter by court officials.

The first respondent also requested audience with the judge to whom the matter had been assigned. The learned judge acceded and set a date for the parties to appear before her.

On 28 September 2020, the parties appeared before a judge of the High Court, in chambers, for a case management meeting to prepare a road map for the disposal of the matter.

During the meeting, the first respondent requested that the applicant agree to a postponement of the judicial sale of the immovable property. The applicant would not agree, resulting in the former making an oral application for the suspension of the sale in execution.

Pursuant to that meeting, an order in the following terms, was issued:

“IT IS ORDERED THAT:

1. First respondent to be served with applicant's answering affidavit and heads of argument forthwith.

2. The first respondent shall, if she so wishes, file her heads of argument on or before 5 October 2020.

3. The matter HC4380/20 be set down on 8 October 2020.

4. The writ of execution in SC119/19 be suspended pending the decision of the court in HC4380/20.

5. Costs of the stay in execution incurred by the second respondent pending the decision of the court in HC4380/20 shall be borne by the applicant.”

On 7 October 2020, the applicant filed this application for direct access to the Court.

She attached a copy of the main application she wishes to file under section 85(1) of the Constitution in which she alleges that her rights had been violated by the order granted by the court a quo....,.

WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT DIRECT ACCESS BE GRANTED

The Constitutional Court is a specialised court, and, in terms of section 167(1)(b) of the Constitution, decides only constitutional matters and issues connected with decisions on constitutional matters.

It thus exercises jurisdiction as a court of first instance and an appeal court.

In view of the limited jurisdiction of this Court, direct access to the court, for the exercise of its jurisdiction for the vindication of a fundamental right premised on section 85 of the Constitution, as a court of first instance, is granted to a litigant who is able to show, that, it is in the interests of justice for direct access to the court to be granted to such litigant.

The import of the principle for the requirement that an applicant for direct access show that it is in the interest of justice that the application be granted ought not to be minimized.

The requirement was explained by I CURRIE and J De WAAL in 'The Bill of Rights Handbook' 6ed…, as follows:

“Direct access is an extraordinary procedure that has been granted by the Constitutional Court in only a handful of cases….,.

If constitutional matters could be brought directly to it, as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction.

Moreover…, it is not ordinarily in the interest of justice for a court to sit as a court of first instance in which matters are decided without there being any possibility of appealing against the decision given.”

A court that sits to decide whether or not it is in the interests of justice that direct access be granted may take into account a number of factors for consideration. Those factors are set out in Rule 21(8) of the Constitutional Court Rules as follows:

“(8) In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account —

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

Within this jurisdiction, the requirement that an applicant shows prospects of success as regards the main application, as provided for in Rule 21(8) of the Constitutional Court Rules, was settled in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, wherein the court made the following remarks:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied:

(i) The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

(ii) The second factor is that the applicant must set out in the founding affidavit facts or grounds that show that the main application has prospects of success should direct access be granted.”…,.

In casu, it is common cause, that, the decision that the applicant alleges to be in violation of her rights is an interlocutory one.

It was the decision to suspend the sale of the first respondent's immovable property pending the determination of the matter on the substance. The suspension of the sale did not determine any rights of the respective parties. The decision served to preserve the rights of the parties until a decision on the merits had been made. The court reasoned thus:

“This Court is required to decide, on 8 October 2020, whether the payment by the applicant (first respondent herein), of $43,495=37, to the Deputy Sheriff, on 14 January 2020, sufficiently discharged its indebtedness to first respondent thus warranting a stay of execution and the setting aside of the writ issued on 7 July 2020. While first respondent is a self-actor she ought to understand, that, it is improper to insist on a sale in execution and thus render the decision of the court a brutum fulmen, particularly where the date of disposal of the matter has been agreed.

In any event, she suffers no prejudice as the property remains under attachment with costs for the suspension of the sale being to the charge of the applicant.

If she succeeds in opposing the application for stay of execution, she can continue with the execution, which is merely being suspended, and not set aside. However, if execution is allowed to continue and it transpires that the applicant had indeed settled the judgment debt in full, then, the harm to it would be irreparable as its property would have been sold to an innocent third party.

While it is understandable that the first respondent is frustrated at the delay in obtaining just satisfaction for the applicant, it cannot be reasonable to insist on the sale in execution as that makes the whole process an exercise in futility. Therefore, the balance of convenience favours the applicant.”

A consideration of the reasons by the learned judge in the lower court shows, that, the real dispute between the parties has not even been heard. Thus, the rationale for the applicant to insist on execution of the writ of 7 July 2020 has not yet been ventilated. There are issues of fact and law that have yet to be determined.

Indeed, if the applicant had not mounted these proceedings, the main dispute, which was scheduled for hearing on 8 October 2020, would have been decided by the High Court by now.

This means, that, there is not even an issue of the applicant not having exhausted her domestic remedies as there were no domestic remedies to resort to.

As explained by her ladyship in the judgment, the suspension of the sale was a reasonable intervention that would serve to achieve justice between the parties.

The court had to decide whether or not the first respondent had satisfied the judgment debt, and, in the interim, to ensure that the judgment would not be a brutum fulmen, the sale had to be suspended.

No prejudice ensued against either party; as the applicant, would, if successful, be able to have the sale continue and recover from the sale whatever the court would have decided was still owed.

As a consequence, the court is disabled from considering the first factor mentioned in the Rules, that of prospects of success. There is nothing to consider and determine due to the fact, that, the real dispute between the parties is pending before the court a quo.

The correct position is that proceedings between the parties are still pending in the High Court.

This, therefore, means that the application is ill-conceived and this court has, in several cases, pronounced on the imprudence of an applicant adopting this course of action.

The dicta in Chihava v Provincial Magistrate Mapfumo N.O. & Anor 2015 (2) ZLR 31…, are apposite. GWAUNZA JCC…, remarked:

“I, therefore, entertain no doubt, that, the certainty referred to above would be completely eroded were the courts to operate based on a literal and grammatical interpretation of section 85(1). This circumstance is not only highly undesirable, but it would also constitute an affront to the time-honoured common law principle, that, a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances. This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A);

…,. A superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but, would do so in rare cases where grave injustice might otherwise result or where justice might not by other means be attained.”

See also Mushapaidze v St Anne's Hospital & Ors CC18-17.

The above remarks are apposite in this case.

The High Court is seized with a very critical issue between the parties, viz: whether or not the first respondent has met its obligations in terms of the judgment obtained by the applicant.

The court a quo is not aware of these proceedings, or the fact that its directive is being impugned by the applicant.

A perusal of the founding affidavit to the main application will tend to show, that, the applicant is aggrieved by the grant of the stay of execution concerning the sale scheduled for 2 October 2020.

I do not read, from the substance of the affidavit, an allegation that the court a quo conducted itself in a manner that could be considered a violation of the applicant's rights to a fair hearing.

The complaints emanating from the affidavit focus on procedural and substantive issues regarding the order suspending the sale in execution.

In Bruce v Fleecytex Johannesburg CC 1998 (2) SA 1143 (CC) [4], the Constitutional Court of South Africa, in considering an application for direct access, made the following remarks:

“…,. If Bruce is entitled to any relief, she can obtain it from the High Court. In effect, what she is now seeking to do through the application for direct access is to appeal against the decision of Wunsh J on an issue that was not raised in the proceedings before him, and to avoid the normal appeal procedure by launching proceedings for direct access to this Court.

[22] KENTRIDGE AJ made it clear in his judgment in S v Zuma and Others [26] that applications for direct access are to be entertained in exceptional circumstances and not merely to avoid the consequences of incorrect procedures that have been followed. If, notwithstanding the pending appeal, Bruce is entitled to raise the constitutionality of section 180(3) of the Insolvency Act in separate proceedings, she can initiate such proceedings in the High Court; but, if she is not entitled to do so, she cannot avoid the consequences of her earlier omission by applying to this court for relief.

[23] I am satisfied, that, grounds for direct access have not been established and that this is not a proper case for the granting of such relief.”

There is a suggestion, that, the learned judge had indicated that the matter was not urgent.

This does not appear to be supported by the learned judge's reasons for its removal from the roll.

In any event, it is of no moment as the matter was filed as an urgent court application and not an urgent chamber application.

There is a difference in the manner of treatment of the two by the Registrar and the court itself.

An urgent chamber application must be placed before the judge in chambers upon its filing; whereas, an urgent court application must comply with the dies induciae as stated on the face of the application. It must be placed on the roll after the respondent or respondents, as the case may be, have been availed an opportunity to file papers in opposition.

DISPOSITION

I do not find it necessary to consider whether or not the applicant has established whether or not there is no other remedy available or if the matter cannot be dealt with without the calling of evidence.

The application seeks to challenge interlocutory proceedings, and, this is not permissible in the light of the authorities referred to above.

From the aforegoing, the applicant has not established, that, it is in the interests of justice that the application be granted.

The application must fail.

The first respondent has prayed that the applicant be mulcted with an order for costs.

In constitutional matters, it is not the norm that costs be awarded against the unsuccessful litigant. The first respondent has not suggested that the applicant is guilty of vexatious conduct or an abuse of court process. Nor has it been suggested that the application is frivolous. In the premises, it is my view that an order for costs is not warranted.

Accordingly, it is ordered, that, the application be and is hereby is dismissed with no order as to costs.

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

This is an application for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicants intend to approach the Constitutional Court in terms of section 85(1) of the Constitution, seeking an order, that, the fundamental right of every person to form and join trade unions and employer-employee organisations of their choice and to participate in the lawful activities of those organisations, enshrined in section 65(2) of the Constitution of Zimbabwe 2013, has been and is being infringed by employers in respect of employees who are duly elected or appointed workers representatives and trade union leaders to the extent, that, the employers in question are permitted, by law, to dismiss such employees for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The court finds, that, it is not in the interests of justice that direct access be granted in this matter. The reasons for so finding appear hereunder.

FACTUAL BACKGROUND

This application is borne of the Supreme Court judgment in ZB Bank Ltd v Marimo SC21-20. The background to that decision is set out hereunder.

The second applicant was employed by the third respondent as an Administrative Clerk and was also the chairperson of the workers committee. The management of the third respondent and the workers committee were engaged in a dispute over employees salary increments. The dispute was referred to a conciliator who was unable to get the parties to reach a consensus and issued a Certificate of No Settlement. Thereafter, between 8 and 15 September 2010, the second applicant sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees salaries. He also stated that the workers committee had decided to embark on a collective job action to press their interests.

Pursuant to that conduct, the third respondent charged the second applicant with misconduct for contravening section 11(1) of SI 273 of 2000 (“the Code”). The allegations against him were that he had acted in a manner that was inconsistent with the fulfilment of the express or implied conditions of his contract. The premise to the charge was that the second applicant had generated offensive emails to a group of staff members contrary to the third respondent's standing policy contained in its Information Security Management Policy Document ('IT Policy Document'). It was also alleged, that, the contents of the e-mails were inflammatory and contained confidential information. The second applicant was found guilty of the misconduct and dismissed from employment.

He noted an appeal to the NEC Appeals Board, which held that the conduct complained of did not constitute an offence.

The Appeals Board further found, that, the third respondent had not substantiated the allegations relating to the charge preferred against the second applicant. Accordingly, it held that the charge preferred against the second applicant was inappropriate.

It stated, further, that, although the second applicant exceeded the limit of the number of emails allowed by the third respondent's IT Policy Document, thereby breaching the appellant's standing policy, the emails were neither inflammatory nor offensive, and that confidentiality had not been breached.

It also stressed, that, the second applicant's conduct was in pursuit of a right to represent workers and that the emails were meant to result in a call for collective job action or, at least, put pressure on the appellant to accede to the workers wage demands. The NEC Appeals Board consequently ordered the reinstatement of the second applicant.

Aggrieved by that decision, the third respondent appealed to the Labour Court.

It averred, that, the Appeals Board erred in failing to find that the second applicant had been properly charged and dismissed from employment, and, further, that the Appeals Board had erred in failing to afford to the third respondent an alternative to the reinstatement of the second applicant.

The Labour Court found, that, as the employees were considering going on strike over the wage dispute, the second applicant acted within the bounds of his official duties, as the chairperson of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court, however, stated, that, although the second applicant may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal. Consequently, the third respondent's appeal was dismissed.

The third respondent subsequently noted an appeal to the court a quo.

Although three issues stood for determination, the relevant issue germane to the disposal of the present application was couched as follows:

“Whether the court a quo erred in failing to appreciate that the respondent's conduct in violating the standing regulations was a breach of his privileges as the representative of the workers committee and could therefore not be excused.”

It had been the third respondent's argument, that, in exercising his entitlement to champion employees rights, the second applicant did not have the right to breach the law - in this case, the standing policy in question.

It was the court a quo's finding that there was merit in that contention.

The court further held, that, the right to champion workers rights is not exercised in a vacuum but should be exercised within the confines of the law as dictated, in this case, by the relevant Code of Conduct.

Adherence to the law within the Code of Conduct would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It was further held, that, the second applicant would not be able to hide behind his position as the chairperson of the workers committee should the conduct alleged against him be proved. The court a quo further held, that, the second applicant had indeed violated the third respondent's IT Policy Document by disclosing confidential information. The appeal was consequently allowed.

Aggrieved by that finding, the applicants filed the present application on 1 April 2021.

At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.

Thereafter, the Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.

APPLICANTS SUBMISSIONS BEFORE THIS COURT

The applicants make the following argument.

Every person enjoys a fundamental right to form and join trade unions and employee or employers organizations of their choice and to participate in the lawful activities of those unions or organisations. They contend further, that, this right has been and is being infringed by employers in respect of those employees who, as duly elected or appointed workers representatives and trade union leaders, are charged with misconduct and dismissed from employment under a Code of Conduct for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The contention is also put forward, that, in having a law that permits an employer to dismiss from employment an employee for acts performed under the aforementioned circumstances, the State is infringing the fundamental right protected by section 65(2) of the Constitution.

Lastly, the allegation is made, that, the current Labour Law, as interpreted by the court a quo, as was done in the judgment a quo and others, is inconsistent with section 65(2) of the Constitution.

The applicants argued, that, two questions arose for determination and these related to:

(i) Whether or not the applicants were raising a constitutional matter; and

(ii) Whether or not it was in the interests of justice to grant direct access.

Counsel for the applicants further submitted, that, there was no doubt that the applicants sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because it was not desirable that they approach the High Court in order to impugn the decision of the Supreme Court with regards to trade union immunity.

They further submitted, that, the matter involved a critique of a Supreme Court decision, and, as such, it was not desirable for it to go before the High Court for determination.

The applicants also submitted, that, they had a prima facie or arguable case as the Supreme Court did not apply its mind to the long standing position on trade unions enjoying their immunity in terms of section 101 of the Labour Act [Chapter 28:01] (“the Labour Act”).

They argued, that, within the workplace, employers were regulating the way union leaders conduct themselves and that this was improper conduct on the part of employers generally.

In this light, the applicants submitted, that, there were prospects of success in that the Supreme Court's decision went too far in protecting the employer at the expense of the employee which aspect should be dealt with by a full bench of this Court.

THIRD RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

The application was opposed by the third respondent.

In limine, it averred, that, the intended application is a disguised appeal against a final judgment of the court a quo. It was also contended, that, not having been a party to the proceedings a quo, the first applicant has no right to question the correctness of that judgment.

The submission is also made, that, the applicants are not clear as to the law which they seek to challenge.

The third respondent further submitted, that, the application is out of time because it was made ten months after the judgment a quo was handed down and that the applicants ought to have made an application for condonation.

On the merits, it was argued, that, section 65(2) of the Constitution did not support the applicants contention and that, further to the above, an employee has a duty to comply with the terms of their employment contract and that an employees representative must carry out their duties in a lawful manner.

The third respondent further queried the rationale behind its joinder to the present proceedings.

The third respondent also argued, that, the applicants were not challenging the validity of section 101 of the Labour Act but were actually challenging the common law. It submitted, that, the Supreme Court did not, anywhere in its judgment, refer to the Labour Act, but, rather, dealt with a position of the law embodied in the Code of Conduct.

Thus, argued the third respondent, there was no constitutional matter for adjudication before the Constitutional Court, and, that, the Constitutional Court, in terms of its jurisdiction, is restricted to determine constitutional issues only.

The third respondent, further to the above, also argued, that, an employee cannot hide behind a trade union and be free of the employer's disciplinary tentacles for breaching a Code of Conduct. This would lead to a situation wherein every employee would then want to be ascribed to the union in an effort to evade disciplinary proceedings for acts of misconduct. In this light, the third respondent stated that it had acted within its powers.

Consequently, it was submitted, that, the matter did not give rise to a constitutional matter. It was a matter that the High Court could deal with taking into account its original jurisdiction.

For that reason, it was contended, that, it was not in the interests of justice to grant direct access. It moved that the application be dismissed with costs....,.

WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT DIRECT ACCESS BE GRANTED

The Constitutional Court is a specialised court with limited jurisdiction. It only determines constitutional matters. As a result, direct access to the Court is an extraordinary procedure that is availed only in deserving cases that meet the requirements prescribed by the Constitution and the rules of the Constitutional Court.

Section 167(5) of the Constitution provides:

“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —

(a) To bring a constitutional matter directly to the Constitutional Court;

(b) To appeal directly to the Constitutional Court from any other court;

(c) To appear as a friend of the court.”

In turn, Rule 21(3) of the Constitutional Court Rules prescribes what ought to be contained in an application for direct access. It reads as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Rule 21(8) of the Constitutional Court Rules goes on to provide:

“(8) In determining whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account —

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

The primary task, therefore, is to determine whether it is in the interests of justice for direct access to be granted.

The main argument by the applicants is that the law that permits an employer to discipline an employee for acts done bona fide in the exercise by that employee of his or her duties and obligations as a worker or union representative violates a fundamental right and is an infringement of section 65(2) of the Constitution.

This section provides as follows:

“(2) Except for members of the security services, every person has the right to form and join trade unions and employee or employers organisations of their choice, and to participate in the lawful activities of those unions and organisations.”…,.

The applicants argue, that, the above section protects, in unequivocal terms, the actions of an employee in pursuit of the rights of the employees where such employee commits acts of misconduct bona fide in the pursuit of the rights of those he represents in the workplace. Therefore, so goes the argument, any law contained in codes of conduct that permits an employer to discipline an employee who acts bona fide and contrary to his contract of employment is an infringement of the right contained in section 65(2) of the Constitution above.

The applicants have not identified, with any specificity, the law that they intend to challenge.

In one breath they aver that they allege an infringement of section 65(2) of the Constitution by the law emerging from the interpretation by the Supreme Court of section 101 of the Labour Act. They contend, that, at the stage of the application for access to the Constitutional Court, the merits of the intended application are irrelevant.

They contend, that, by merely alleging an infringement of a constitutional right, they have shown that they are raising a constitutional matter for jurisdictional purposes.

They are mistaken.

It is now settled in this jurisdiction, that, in view of the position of the Constitutional Court as a specialized court, an applicant must show that it is in the interests of justice that access to the court be granted. One of the factors that a court may take into account is whether or not the application has prospects of success.

The locus classicus is Lytton Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another CC11-18, where the Constitutional Court stated:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied:

(i) The first is that the applicant must state facts or grounds in the founding affidavit, the consideration of which would lead to the finding, that, it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction.

(ii) The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

The court holds, that, the applicants have failed to show that the application has prospects of success. The reasons for so holding are the following:

The application does not raise a constitutional matter for determination by the Constitutional Court. The relief being sought in the draft order is set out to be the following:

“1. That, it be and is hereby declared that it is an infringement of the fundamental right protected by section 65(2) of the Constitution of Zimbabwe 2013 for an employment code of conduct registered in terms of section 101 of the Labour Act [Chapter 28:01] to permit an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader.

2. That, for the avoidance of doubt, and arising from the order in para 1, it is declared that the current labour law of Zimbabwe, contained in section 101 of the Labour Act [Chapter 28:01], and as interpreted by the Supreme Court of Zimbabwe in judgments such as ZB Bank Limited v Tirivanhu Marimo (Judgment No. SC21-20), namely, that, an employer may be permitted by a registered code of conduct to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader, is inconsistent with the aforesaid section 65(2) of the Constitution and therefore invalid, null and void and of no force or effect.

ACCORDINGLY, IT IS ORDERED:

1. That, section 101 of the Labour Act [Chapter 28:01] must be interpreted in a way that makes it not contemplate (sic) a registered code of conduct that permits an employer to dismiss from employment an employee for acts performed bona fide and exclusively as that employee's duties and responsibilities as a duly elected or appointed workers representative and trade union leader....,.

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

An analysis of the draft order does not lead to an order invalidating any law. The order sought seeks to create immunity for employees from disciplinary action within the workplace.

The Code of Conduct which, in this case, would be the offending law, has not been challenged.

It was conceded by the applicants counsel, that, the majority of codes of conduct are the product of negotiated collective bargaining agreements drawn up by the employers organisations and the employee organizations of the sector in respect of which the collective bargaining agreement relates to.

In my view, it is in the collective bargaining agreement that any immunity, if it is to be granted, must be provided for.

The contention by the applicants is that in a series of judgments, the last of which is ZB Bank Limited v Tirivanhu Marimo SC21-20, the Supreme Court has found that a union representative who commits an act of misconduct at his workplace, in an endeavour to further the interests of the membership of the union, is not immune from disciplinary proceedings. The applicants further contend, that, this position violates the right provided for in section 65(2) of the Constitution.

The right in the section is available to a person to participate in the lawful activities of a union.

My reading of the subsection does not suggest, by any stretch of the imagination, that employees are given carte blanche by the Constitution to breach their contracts of employment and provisions contained in codes of conduct and thus create havoc or anarchy within the workplace under the guise of furthering the interests of workers and the union.

The contention, that, the Supreme Court judgement cannot be subjected to scrutiny by the High Court is evidence of the argument by the third respondent that the intended application does not raise any constitutional issues and is, in point of fact, a disguised appeal.

In order to participate in the activities of a union, a person must be a member of such union.

The Constitution of the first applicant provides that “membership of the union shall be open to all employees in the financial services industry.”

It stands to reason, therefore, that one's route to union membership is firmly hinged on one's employment status. One must be an employee, but one must also be an employee in the relevant or appropriate employment sector. If one is not an employee one cannot be involved in union duties nor can one lawfully represent other employees in relation to labour rights.

Thus, the employer-employee relationship is the glue that connects an employee, on the one hand, and his capacity to act for a union within the industry, on the other.

The employer-employee relationship is sacrosanct and based on trust. The employee is therefore obliged to act in good faith and in a manner that is consistent with the interests of his or her employer.

The fact that an employee is a member of a trade union or is a workers representative does not sever the employment relationship. It does not qualify any of the obligations and duties that each owes the other under the contract of employment. The terms of the contract of employment define the ambit of the parties relationship. To place the employee's status as a union member or workers representative above that of the employment contract would be to subsume the contract of employment under such membership.

That cannot be a correct position of the law as it pertains to employment contracts.

Section 65(2) of the Constitution, upon which the applicants seek reliance for the alleged violation of the fundamental rights of employees in the workplace, does indeed protect the right of every person to form, join, and participate in the activities of a trade union or employer organisation.

The rider to the right is that such participation must be clothed with legality.

The applicants counsel was pressed on this issue and was constrained to concede that the activities protected under section 65(2) of the Constitution must be lawful.

It was pertinent to note, that, the applicants counsel admitted, that, the participation of the second applicant, or his colleagues, in an illegal strike would not be the lawful activities contemplated by the section for protection.

In my view, the concessions from counsel establish that the application does not enjoy prospects of success.

The employment relationship is a voluntary one and the employee is duty bound to honour it if he or she wishes to remain in the relationship.

Inherent in the contract of employment is the employer's right to discipline an employee for perceived acts of misconduct.

The applicants accept, that, codes of conduct that are registrable under section 101 of the Labour Act provide for disciplinary measures for misconduct in the workplace.

Thus, the Labour Act itself limits the right to engage in trade union activities unless such activities are lawful. The activities must be consistent with the law and the employer's interests.

The contention by the respondents, which contention finds favour with me, is that the applicants have not identified which law they seek to challenge.

They accept that disciplinary measures in the workplace are permitted in terms of section 101 of the Labour Act which not only provides for the registration of codes of conduct but sets out what a code of conduct may provide for.

They are not seeking to impugn this section.

What they suggest is that the proposition by the Supreme Court, to hold that an employee may be disciplined for those acts of misconduct done by an employee as a worker representative is in violation of section 65(2) of the Constitution.

The Constitution gives every person the right to participate in the “lawful activities” of a trade union. It does not give licence to members to breach the law. The right does not exist in a vacuum and the right must be balanced against the interests of the employer and taking into consideration the obligations that an employee owes his or her employer.

An argument raised by the third respondent, as a preliminary point, was to the effect, that, the intended application is a disguised appeal against the judgment of the Supreme Court, and that, for that reason, the application was not properly before the Court.

The argument by the applicants is that the Supreme Court is the highest court in relation to matters that do not raise a constitutional issue and no appeal lies against a decision of that court.

The additional argument made is that the order being sought is evidence of the nature of the application that they seek to bring.

It is correct, as contended by the third respondent, that, the Supreme Court is the highest court in this jurisdiction and that no appeal lies against its decisions unless the decision is on a constitutional matter.

However, it is settled that the law allows an attack against a judgment of the Supreme Court where certain requisites have been met on the premise of the attack.

In Denhere v Denhere CC09-19, the Constitutional Court set out the principle for an attack on a Supreme Court judgement in the following terms:

“In Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the Court noted at pp6-11 of the cyclostyled judgment that:

'Consideration of the relevant constitutional provisions supports the view, that, the validity of a decision of the Supreme Court, in proceedings involving non-constitutional matters, may be challenged on the ground that it has infringed a fundamental right or freedom enshrined in Chapter 4 of the Constitution. The basis of the right of a party to the proceedings to challenge the validity of a decision of the Supreme Court, in the circumstances, is the Constitution itself. The right given to a litigant under section 85(1) of the Constitution, to approach the Court for appropriate relief on the allegation stated, is correlative to the constitutional obligation imposed on the Supreme Court as a body exercising public authority....,.

The scope of the right to approach the Court for appropriate relief under section 85(1) of the Constitution is not limited by specific objects against which the allegations of infringement of a fundamental right or freedom can be made. A constitutional complaint provided for under section 85(1) of the Constitution can be lodged against any act of public authority. A decision of the Supreme Court, in a case involving a non-constitutional issue, would fall within the category of acts, the constitutional validity of which may be challenged on the grounds prescribed under section 85(1) of the Constitution.'”

That the applicants enjoy the right described above is not in doubt.

The test for challenging a judgment of the Supreme Court was established in the case of Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18 as follows:

“The facts must show, that, there is a real likelihood of the Court finding that the Supreme Court infringed the applicant's right to judicial protection. The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination. The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue.

The theory of constitutional review of a decision of the Supreme Court, in a case involving a non-constitutional matter, is based on the principle of loss of rights in such proceedings because of the court's failure to act in terms of the law, thereby producing an irrational decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have produced an arbitrary decision.

Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under section 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.”

In the averments made by the applicants in this matter, there is no allegation that the Supreme Court failed to comply with the law.

Its compliance with the law is not only conceded - it is accepted.

It is in fact accused of complying with and upholding the provisions of codes of conduct in the workplace. There is thus no suggestion of arbitrariness on the part of the Supreme Court.

Further, there is no suggestion in the application itself that the decision of the Supreme Court is in any way inconsistent with the law thus justifying an attack on the decision on the basis that it has violated a fundamental right.

As stated by the Constitutional Court in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18, the remedy under section 85 of the Constitution is not for the protection of fundamental rights in the abstract. An applicant must show the breach of the fundamental right.

As contended by the third respondent, correctly in my view, the applicants have brought to the Constitutional Court an application that is, to all intent and purposes, a disguised appeal against the judgment of the Supreme Court in ZB Bank Limited v Tirivanhu Marimo SC21-20.

A selective comparison may be drawn from South Africa where section 14(4) of the Labour Relations Act 66 of 1995 provides, that, a trade union representative has the right to perform various functions at the request of an employee in the workplace. Furthermore, item 4(2) of Schedule 8 of the Labour Relations Act 66 of 1995, as amended, also provides, that, discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.

In that context, the Labour Appeal Court said the following in BIFAWU & Another v Mutual & Federal Insurance Co Ltd (2006) 27 ILJ 600 (LAC)...,:

“That an employee, even when he or she is representing a fellow employee at a disciplinary enquiry or arbitration hearing, owes certain duties to an employer cannot be doubted. Among these is the duty to act honestly....,. After all, when an employee represents a fellow employee at a disciplinary enquiry or arbitration hearing, he or she does so precisely in that capacity, of being a fellow employee.

The fellowship does not transubstantiate the continuing employment relationship between the employer and the representing employee.

…,. The right and duty to represent a fellow employee to the best of one's ability is not an unbridled licence; it is constrained by the duty to do so honestly. Without honesty on the part of the representatives of the parties, the system would be unviable.”

It is the Court's view, that, a workers representative's actions, bona fide or mala fide, and whether carried out in furtherance of his or her duties as a trade unionist or employees representative, ought not to undermine the employer/employee relationship.

This is because the employment relationship is intrinsically both co-operative and antagonistic.

It is cooperative in as much as employers and employees are mutually dependent on one another to secure their goals. At the same time, it is antagonistic because of the different interests that the parties may hold....,.

The Court holds, that, the applicants have failed to demonstrate, that, it is in the interests of justice to grant leave for direct access. This is because the right to participate in the activities of a trade union, or act as a workers representative, cannot be exercised to undermine the employer/employee relationship.

DISPOSITION

In the result, the application be and is hereby dismissed with no order as to costs.

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

This is an application for leave for direct access to the Constitutional Court brought in terms of section 167(5)(a) of the Constitution as read with Rule 21 of the Rules of the Constitutional Court 2016.

The applicants are a group of persons residing on a piece of land over which the second respondent claims ownership. They intend to approach the Constitutional Court, under section 24 of the Constitutional Court Act 2021, for the rescission of a judgment of the Constitutional Court issued under CC43-15.

BACKGROUND FACTS

The applicants are residents on a piece of land described as a certain piece of land situated in Hartley District, being Kingsdale of Johannesburg, measuring 161,8238 hectares.

In 2001, the State gazetted the land described above, and, through that process, compulsorily acquired it under the land reform programme. In support, the applicants have attached to their papers an Extraordinary Government Gazette dated 22 June 2001 confirming the acquisition. The applicants contend, that, consequently, title to the land is vested in the Government of Zimbabwe.

Further, the applicants claim, that, they were allocated stands on the piece of land under the programme. However, they have not produced any documents to the Court to sustain their claim.

The applicants claim, that, unbeknown to them, the first to ninth respondents (Minister of Agriculture, Lands, Water and Rural Resettlement, Maparahwe Properties (Pvt) Ltd, Kingsdale Housing Co-operative Society Ltd, Executor, Estate of Late Pieter Nicholas Nel, Hardwork Chiminya, Givemore Dube, Pretty Kurera, Spiwe Matambo and Executor, Estate of Late Sibangani Kokera) obtained an order by consent under CC43-15.

The second respondent (Maparahwe Properties (Pvt) Ltd) was permitted, in terms of that order, to obtain necessary permits have the land surveyed and to sell any Stands to any other party or parties. They allege, that, as a result of this, and contrary to their wishes, they entered into agreements of sale in respect of their individual Stands. Thus, the second respondent erroneously continues to hold itself as the owner of the piece of land to their prejudice.

The parties are agreed that the following facts are common cause.

In 2001, the piece of land described above was gazetted for acquisition under the land reform programme. It is common cause that the Administrative Court set aside the acquisition in 2003.

On 2 October 2013, this Court set aside the acquisition of the piece of land following its further gazetting in 2005. This order was followed by an order obtained by consent under CC43-15, the causa for the application in casu. This order, issued on 18 November 2015, was in the following terms:

“IT IS ORDERED BY CONSENT THAT:

1. Kingsdale Housing Cooperative Society Limited be and is hereby joined to these proceedings as the second respondent.

2. It is declared, that, the applicants right under section 68(1) of the Constitution of Zimbabwe to fair, just, and prompt administrative action has been violated.

3. It is declared, that, Kingsdale of Johannesburg, measuring 161,8238 hectares in the District of Hartley, is private land.

4. Consequently, it is ordered that:

4.1 The first respondent be and is hereby ordered to withdraw its acquisition of land aforesaid and shall cause the publication of such withdrawal in the Government Gazette and the Herald Newspaper within fourteen (14) days of this order.

4.2 The land aforesaid vests in the first applicant who shall proceed with urban development of the said land up to the issuance of title surveys in accordance with permits issued or to be issued by the relevant town planning authority.

4.3 Any agreement of sale between first applicant and any other person, as of 26 February 2015 (the date of purported acquisition), remains valid and enforceable.

4.4 All persons, with the exception of the second respondent's registered members as at 12 November 2013, in illegal occupation or possession of any portion of the said land forthwith vacate the land failing which the Sheriff of Zimbabwe or his lawful Deputy be and is hereby authorised to eject them.

4.5 The first applicant hereby donates to the Government of Zimbabwe twenty–one (21) hectares of land in the area covered by Garikai/Hlalani Kuhle Housing Scheme and ZESA Servitudes.

4.6 The first applicant shall develop the land in terms of para 4.2 above, and the members of the second respondent and persons referred to in para 4.3 above shall compensate the first applicant for the remaining land measuring 140 hectares at US$5 per square metre in accordance with the terms of a Deed of Settlement to be signed by the parties and incorporated into the order of the Administrative Court.

5. Each party to bear its own costs.”

It is common cause, that, the applicants have entered into separate agreements of sale in respect of the individual Stands that each applicant occupies.

The applicants contend, that, the judgment issued under CC43-15 should be set aside.

They place reliance for this contention on section 24 of the Constitutional Court Act [Chapter 7:22] (“the Act”). They allege that the judgment was granted in their absence. They allege that the judgment was granted in error as the land is State land following its acquisition in 2001.

They further allege, that, they were forced, by circumstances, into purchasing from the second respondent the Stands allocated to them under the land reform programme pursuant to the judgment.

They contend that they have been, and continue to be, prejudiced by the erroneous order in CC43-15.

On the premises stated above, the applicants approach the Constitutional Court for leave to have the judgment under CC43-15 rescinded.

Rescission is sought on the basis, that, the judgment was erroneously sought or granted.

The applicants aver, that, the land in question was State land and remains State land under section 72(4)(a) of the Constitution due to its listing in Schedule 7 of the former Constitution in 2005. The parties erred in not bringing this fact to the attention of the Constitutional Court at the hearing.

The applicants contend, that, the judgment is unconstitutional as it is contrary to section 72(4)(a) of the Constitution.

They argue, that, none of them was party to the consent order under CC43-15.

THE REQUIREMENTS FOR LEAVE FOR DIRECT ACCESS

The Constitutional Court is a specialised court with jurisdiction to hear only deserving cases. Direct access to the Court is an extraordinary procedure granted in deserving cases that meet the requirements set out in the rules of the Court.

Rule 21(3) of the Rules of the Constitutional Court 2016 requires that an applicant for leave for direct access to the Constitutional Court must show that it is in the interests of justice for access to be granted by the Court. Thus, Rule 21(3) of the Constitutional Court Rules provides as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Rule 21(8) of the Constitutional Court Rules provides:

“(8) In determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account —

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

In Zimbabwe Development Party & Anor v The President & Ors 2018 ZLR 485 (CC)…, MALABA CJ commented thus:

“In order for direct access to be granted, the applicants had to show that they had prospects of success in the main matter. In Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (12) BCLR 1573, 1997 (2) SA 621 (CC) at para [46], the Constitutional Court of South Africa said in part:

'[46] The applicant has failed to establish that this is a case in which the ordinary procedures ought not to have been followed. There are important issues which are within the jurisdiction of the Supreme Court and which need to be resolved by it before this Court is approached for relief. As far as the other issues are concerned, there is neither the urgency nor the prospects of success necessary to justify direct access to this Court. The application for direct access must therefore be dismissed.'”…,.

In Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 (CC)…, CHAKALSON P remarked:

“[7] Whilst the prospects of success are clearly relevant to applications for direct access to this Court; there are other considerations which are at least of equal importance. This Court is the highest Court on all constitutional matters.

The correct approach in dealing with an application for an order of direct access to the Court is one that accepts the principle that all relevant factors required to be taken into account must be made available for consideration. The Court or Judge must consider all the relevant factors in deciding the question whether the interests of justice would be served by an order granting direct access to the Court. The weight placed on the different factors in the process of decision making will depend on the circumstances of each case and the broader interests of a society governed by the rule of law.”…,.

It is common cause that the applicants are in occupation of individual Stands on the land, which is the subject of the dispute, under agreements of sale concluded between them and the second respondent. It is also common cause that the contracts of sale have not been cancelled in respect of some of the applicants.

The record shows, that, the second respondent obtained a judgment for the eviction of the first applicant from the Stand.

However, none of the applicants are claiming a right of occupation through the agreements of sale. Rather, their alleged right to occupation is premised on the allegation that they were allocated Stands under the land reform programme.

If granted access, the applicants seek an order in the following terms:

“1. That, it be and is hereby ordered that the judgment by this Court in CC43-15, handed down as an order on 18 November 2015, is rescinded for the reason that it was granted in error.

2. That, for the avoidance of doubt, and arising from the order in para 1, in the exercise of the Court's inherent powers under section 176 of the Constitution as read with section 175(6)(b) of the same Constitution, it is declared that certain piece of land known as Kingsdale of Johannesburg, in the district of Hartley, measuring 161,8238 hectares, is State land under section 72(4) of the Constitution of Zimbabwe.

3. The respondents (if they oppose this order) shall pay the costs of this application jointly and severally, the one paying the others being absolved.”

SUBMISSIONS BEFORE THE COURT

Submissions in relation to the two issues went as follows:

Counsel for the applicants contended, that, the High Court Rules are inapplicable in casu, and that the matter may be brought to the Constitutional Court by way of section 24 of the Constitutional Court Act. To that end, he argued, that, there was no question of delay in bringing the application for rescission as section 24 of the Constitutional Court Act did not make provision for a timeframe for filing the application.

He contended further, that, there were no time limits placed on alleged violation of the Constitution.

In so far it related to the locus standi of the applicants, counsel for the applicants argued, that, the applicants had an interest to protect. He further contended, that, they were absent from the process when the judgment was issued and have, therefore, the requisite locus standi in judicio.

Counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) was of a contrary view.

He argued, that, whilst section 24 of the Constitutional Court Act restates the substantive power of the Constitutional Court, the procedural aspects are provided for in section 26 of the Constitutional Act.

In his view, section 24 of the Constitutional Court Act restates the substantive power of the Court. The procedural aspects of the exercise of that power are set out in section 26 of the Constitutional Court Act where the Chief Justice is empowered to promulgate rules of court to provide for the procedure the Constitutional Court is to follow.

He contended, that, the failure by the applicants to adhere to the rules of the Court was fatal to the application.

He suggested that the application was in fact a nullity.

Coming to the question of locus standi, counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) submitted, that, the applicants had not established, on the papers, that they had locus standi to apply for the rescission of the judgment. They had not established that they had an interest that required protection through the setting aside of the judgement in question. He reiterated that interest, in the context of locus standi, must be personal as relates to the person seeking relief.

Counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel), on the other hand, made the following submissions:

He argued, that, it was not in the interests of justice for the application to be granted. The applicants had become aware, as early as July 2017, of the existence of the judgment. The application was filed after a period of four years and there was no attempt to explain the delay in bringing it to the Constitutional Court.

He contended, that, Rule 29 of the Rules of the High Court applied in casu, and, on the premises of the rule, the applicants were not entitled to the relief they were seeking.

There were no submissions on the question of locus standi by the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel).

I propose to consider the two issues ad seriatim.

In Liziwe Museredza & 385 Others v Minister of Agriculture, Lands, Water & Rural Resettlement & Ors CC11-21, the applicants approached the Constitutional Court for substantially the same relief as sought in the main application attached to this application. In the matter above, they approached the Constitutional Court under Rule 449 of the High Court Rules 1971 (now repealed). The Court considered the matter in terms of Rule 449 which provided in relevant part:

“449 Correction, variation and rescission of judgments and orders

(1) The Court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The Court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

In that matter, the contention of the applicants was to the effect, that, an application under Rule 449 of the High Court Rules did not require leave as provided for in Rule 21 of the Constitutional Court Rules 2016.

Writing for the Constitutional Court, MAKARAU JCC commented as follows…,:

“As discussed above, an application to this Court in terms of Rule 449 of the High Court Rules as read with Rule 45 of the Rules is in the exclusive jurisdiction of this Court by operation of the law of practice and procedure. This is so because only this Court can correct or vary its own order sought or given in error and in the absence of a party adversely affected by the order.

Such an application is sui generis in a number of respects.

Whilst it is brought to set aside an extant order of the Court, it in essence seeks to bring before the court new facts or fresh legal argument for consideration. This is so because the applicants have perforce to allege that a material fact or law was not brought to the attention of the Court and was therefore not considered by it before it made the order that is under challenge.

In casu, evidence of the 'new' fact was sought to be led through the founding affidavit in the form of the Government Notice that listed the land in dispute. The new matter that the applicants wish the Court to determine is therefore the effect of this new evidence on the ownership of the land in dispute.

Secondly, the application is not between the same parties who were before the Court in the matter that resulted in the extant order. It is brought by applicants who, again, perforce have to allege that they were not before the Court when the order was granted.

It therefore introduces not only a new matter but new parties….,.

The practice of this Court, therefore, is that, where a litigant wishes to bring a new and fresh cause and the matter is not listed in Rule 21 as one for which leave is not required, then leave must be sought even if the matter is in the exclusive jurisdiction of the Court. The practice is based on and highlights the gate-keeping function of an application for leave.”

Pursuant to that judgment, the applicants have filed an application for leave for direct access.

Undoubtedly, the applicants require the leave of court to approach the Constitutional Court for relief. The intended application for rescission of judgment does not fall within the applications that are exempted from leave in terms of Rule 21(1) of the rules of the Constitutional Court.

Rule 21(1) of the Constitutional Court Rules provides:

“(1) The following matters shall not require leave of the Court —

(a) Disputes concerning an election to the office of President or Vice-President;

(b) Disputes relating to whether or not a person is qualified to hold the office of President or Vice-President;

(c) Referrals from a court of lesser jurisdiction;

(d) Determinations on whether Parliament or the President has failed to fulfil a constitutional obligation;

(e) Appeals in terms of section 175(3) of the Constitution against an order concerning the constitutional validity or invalidity of any law;

(f) Where the liberty of an individual is at stake;

(g) Challenges to the validity of a declaration of a State of Public Emergency or an extension of a State of Public Emergency.”

The significance of Court Rules in the adjudication process

The law should be and the procedure for applying the law must work efficiently, inexpensively and effectively. This principle of fairness is provided for in the Constitution and the right of access to the Constitutional Court is a fundamental right. The Constitution of Zimbabwe 2013 has provided for access to the Constitutional Court in section 69(2) and (3) for the adjudication of civil rights. It provides:

“69 Right to a Fair Hearing

(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy, and public hearing within a reasonable time before an independent and impartial court, tribunal, or other forum established by law.

(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”

However, the right of access to courts does not give a litigant the licence to unilaterally decide on the procedure for accessing the court. The procedure applicable is as a consequence rooted in fairness and this is concretised by the power of the Court to enact rules that delineate procedural requirements.

This Court has, in a plethora of authorities, emphasised the obligation of litigants to adhere to the law and adopt the process set out in rules.

In Kombayi v Berkout 1988 (1) ZLR 53 (S)…, the court in that matter emphasised the obligation by litigants and their legal practitioners to observe the rules of the respective courts wherein relief is sought.

The court said:

“Although this court is reluctant to visit the errors of a legal practitioner on his client, to whom no blame attaches, so as to deprive him of a re-hearing, error on the part of a legal practitioner is not by itself a sufficient reason for condonation of a delay in all cases. As STEYN CJ observed in Saloojee & Anor NNO v Minister of Community Development 1952 (2) SA 135 (A) at 141C:

'There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the Court. Considerations ad misericordium should not be allowed to become an invitation to laxity.'

A duty is cast upon a legal practitioner, who is instructed to prosecute an appeal, to acquaint himself with the procedure prescribed by the Rules of the Court to which a matter is being taken on appeal. That no effort has been made to comply with the Rules of Court in the instant case is further exemplified by the failure of the applicant's attorney to satisfy the requirement of Rule 31(1) of the Supreme Court Rules: that an application for extension of time within which to appeal 'shall be accompanied by a copy of the judgment against which it is sought to appeal.'

The Notice of Appeal itself is defective, in that it does not comply with the mandatory provisions of Rule 29, sub-rules (a), (c) and (e) which require: (i) that the court by which the judgment appealed against was given be stated; (ii) that there be some indication as to whether the whole or part only of the judgment is appealed against; and (iii) that the exact nature of the relief sought be stipulated. There is almost a total disregard of the Rules.”

It is trite therefore, that, the rules form the backdrop of procedure, and that this serves to buttress the rules of natural justice that there be an equal playing field where every party is afforded a right to be heard in their cause: see Metsole v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (S).

The roles that the Rules play was explained in Makaruse v Hide & Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S)…, as being:

“By virtue of the power conferred on this court by Rule 4 to condone any non-compliance with the rules, none of the provisions of the rules are strictly peremptory.

'The rules are, however, there to regulate the practice and procedure of the Court in general terms and strong grounds would have to be advanced, in my view, to persuade a court to act outside the powers provided for specifically in the Rules.' Per BOTHA J (as he then was) in Moulded Components v Coucourakis & Anor 1999 (2) SA 457 (W) at p462-3.

Thus, the inherent power to prevent abuse of the machinery of the court is a power which has to be exercised with great caution, and only in a clear case: Hudson v Hudson supra at 268.

Non-compliance of the rules will only be condoned upon good cause shown by the applicant.

There must be a reasonable and acceptable explanation for the failure to comply with the Rules, and the applicant for condonation must also show reasonable prospects of success: see General Accident Insurance Co. SA Ltd v Zampelli 1988 (4) SA 407 (C) at 411C-D.”

Rules of court are put in place to facilitate the expeditious and fair dispatch of cases.

The courts have an inherent power to regulate and protect their processes. This was reiterated in Mukaddam v Pioneer Foods (Pty) Ltd; Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC)…,

The Court made the following observations:

“[28] …,. Our Constitution guarantees everyone the right of access to courts which are independent of other arms of Government. But, the guarantee in section 34 of the Constitution does not include the choice of procedure or forum in which access to courts is to be exercised. This omission is in line with the recognition that courts have an inherent power to protect and regulate their own process in terms of section 173 of the Constitution, to which I shall turn in a moment.

[31] However, a litigant who wishes to exercise the right of access to courts is required to follow certain defined procedures to enable the court to adjudicate a dispute. In the main, these procedures are contained in the rules of each court. The Uniform Rules regulate form and process of the high courts. The Supreme Court of Appeal, and this court, have their own rules. These rules confer procedural rights on litigants and help in creating certainty in procedures to be followed if relief of a particular kind is sought.

[32] It is important that the rules of courts are used as tools to facilitate access to courts rather than hindering it. Hence, rules are made for courts and not that the courts are established for rules. Therefore, the primary function of the rules of courts is the attainment of justice. But, sometimes, circumstances arise which are not provided for in the rules. The proper course in those circumstances is to approach the court itself for guidance. After all, in terms of section 173, each superior court is the master of its process.

[42]…,. The language of the section suggests that each court is responsible and controls the process through which cases are presented to it for adjudication. The reason for this is that a court before which a case is brought is better placed to regulate and manage the procedure to be followed in each case so as to achieve a just outcome. For a proper adjudication to take place, it is not unusual for the fact of a particular case to require a procedure different from the one normally followed. When this happens, it is the court in which the case is instituted that decides whether a specific procedure should be permitted.”…,.

It goes without saying, that, rules of court serve an important purpose.

They must not, and, cannot be disregarded unless the court has been persuaded, on very strong grounds, to do so.

This is why a litigant who wishes to exercise the right to access the court is required to follow certain and specified procedures. In this context, rules of court not only ensure certainty of the processes of court proceedings, the litigants are also provided with a fair playing ground for the adjudication of disputes.

It is fair to state, that, the rules ensure that the interests of justice are served.

WHETHER THE APPLICATION HAS PROSPECTS OF SUCCESS ON THE MERITS

The Court holds, that, it is not in the interests of justice that the applicants be granted leave for direct access in this matter. The view of the Court is that, upon considering the matter, the applicants have not established that the application has prospects of success on the merits. The reasons for so finding are on two bases:

(i) The first is that the applicants have not made an application for the rescission in terms of the rules that entitle them to apply for rescission of the impugned judgment by the Constitutional Court in the exercise of its powers under the Constitutional Court Act. They have, instead, purported to rely on section 24 of the Constitutional Court Act, which provision does not provide for such an application....,.

The Court will proceed on the basis, that, this application is one in terms of section 24 of the Constitutional Court Act 5/2021 (“the Act”), which provides as follows:

“24 Correction, variation, and rescission of judgments or orders

(1) The Court may, in addition to any other power it may have, on its own initiative or upon the application of any party affected, correct, rescind or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The Court shall not make any order correcting, rescinding, or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

In turn, section 26(1) of the Constitutional Court Act [Chapter 7:22] provides as follows in relevant part:

“26 Rules of Court

(1) Subject to subsections (2) and (3), the Chief Justice, after consultation with a
committee appointed by him or her, may make rules relating to any of the following matters —

(a) The manner and form of procedure before the Court; and

(b)…,.

(c)…,.

(d)…,.

(e)…,.

(f)…,.

(g)…,.

(h)…,.

(i) The time within which any requirement of the rules is to be complied with and the extension of such time; and

(j)…,.

(k)…,.

(l)…,.

(m)…,.

(n)…,.

(o)…,.

(p)…,.

(q)…,.

(r)…,.

(s) Generally, to give effect to the jurisdiction conferred upon the Court by any enactment; and

(t)…,.

(2) Rules shall have not effect until they have been approved by the Minister and published in a statutory instrument.

(3) The Constitutional Court Rules, 2016 published in Statutory Instrument 61 of 2016, shall continue to be in force until they have been repealed or amended.”

In casu, the applicants contend, that, the judgment was not only granted in error; additionally, it adversely affected their right to occupy the Stands as beneficiaries under the land reform programme.

In terms of section 24(1)(a) of the Constitutional Court Act, the Constitutional Court has the power to correct, rescind or vary any judgment that was erroneously granted in the absence of a party affected thereby.

On a proper construction of the provisions set out above, the Court's jurisdiction is invoked 'upon the application of a party affected'.

I do not understand the provisions to mean that a party may apply to court absent reference to a particular rule of court.

Section 24 of the Constitutional Court Act spells out the Court's substantive power once seized with an application. Section 24 of the Constitutional Court Act is not the procedural route one takes to make an application. It gives the Constitutional Court the jurisdiction to entertain such an application.

To enable a court to determine the application, an applicant must place reliance on the Rules of the Court promulgated to regulate access to that court.

The need for the adherence to Rules is a requirement even where the dispute sought to be adjudicated is rooted in Constitutional Law.

In Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs & Ors CC07-21, the Court observed:

“Additionally, it is necessary to underscore the point, that, access to this Court, or any subordinate court, under section 85 is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates, that, rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other subordinate court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.”

Evidently, contrary to the argument by the applicants, the procedural aspects of approaching the Constitutional Court find expression in section 26 of the Constitutional Court Act which provides for the promulgation of rules of Court to regulate the processes of the Constitutional Court.

In subsection (1), provision is made for the manner and form of procedure before the Court as well as the time within which any requirement of the rules is to be complied with and the extension of such time.

It is trite that rules of court provide for the form, manner, and time frame for the bringing of litigation before a court. This is because courts have inherent jurisdiction to control their processes.

Rescission of judgments is one of the procedures that rules of court make specific provision for.

The applicants cannot seek a rescission merely on the premise of the power exercisable by the Court to set aside the judgment in issue. The Court must be requested to exercise its discretion as provided for in the rules.

That has not been done in this case.

It is a trite principle of the law of interpretation, that, statutory provisions in an Act of Parliament must be construed as a whole as opposed to individually. They must be read together. It stands to reason, therefore, that while section 24 of the Constitutional Court Act spells out the Court's power to correct, vary or rescind its judgments or orders, the procedural aspect of the exercise of that power can only be done in compliance with section 26 of the Constitutional Court Act. The rules of the Court have to prescribe the procedure for such exercise.

In terms of Rule 45 of the Rules of the Constitutional Court 2016, in any matter not dealt with in terms of the rules, the practice and procedure of the Court shall follow, as near as may be, the practice and procedure of the Supreme Court, or where the rules of the Supreme Court are silent, the High Court become the default rules.

It is trite, that, the rules of the Supreme Court do not provide for the rescission, correction, or variation of judgments but the High Court Rules so provide.

The High Court Rules, 2021 were promulgated on 23 July 2021.

Rule 29 of the High Court Rules, which provides for the variation and rescission of judgments, reads:

“(1) The court or a judge may, in addition to any other powers it or he or she may have, on its own initiative or upon the application of any affected party, correct, rescind or vary -

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) An order or a judgment in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) An order or judgment granted as a result of a mistake common to both parties.

(2) Any party desiring any relief under this rule may make a court application, on notice to all parties whose interests may be affected by any variation sought, within one month after becoming aware of the existence of the order or judgment.”

Whilst the Constitutional Court Act makes provision for the invocation of its jurisdiction, the Rules provide for the procedure under which the Court exercises its jurisdiction.

The applicants have not, however, invoked the rules of court for an order for the rescission of the impugned judgment. They have sought reliance on section 24 of the Constitutional Court Act.

The Rules of the High Court have prescribed the procedure to be followed and are apposite in casu.

The applicants have not made an application in terms of the rules of court.

I am not persuaded that the Constitutional Court Act gives the applicant the right to approach the court for redress. Section 24 of the Constitutional Court Act spells out the power that a court may exercise upon the application of a party. The rules comprise procedural law and must form the premise of a litigant's approach to an appropriate court.

It is trite that courts insist on parties compliance with the rules and that where this has not been done, or is impossible, condonation for failure to adhere to the rules be sought and obtained.

Rule 449, in terms of which relief was sought in Liziwe Museredza & 385 Others v Minister of Agriculture, Lands, Water & Rural Resettlement & Ors CC11-21 is no longer in force.

Reliance should have been placed on Rule 29 of the High Court Rules 2021.

Rule 29(2) of the High Court Rules requires that an application under the rules be brought to Court within a month from the date that the applicant has knowledge of the judgment.

The first applicant, who has assumed a leading role in the litigation surrounding the dispute which is the subject matter of this application, has not stated in categorical terms when she became aware of the judgment. However, there is on record an affidavit deposed to by her on 27 July 2017 in which she makes reference to the judgment sought to be set aside.

This application was only filed on 25 August 2021, a period in excess of four years from when the record reveals the applicants would be taken as having had knowledge of the judgment.

According to Rule 29(2) of the Rules of the High Court 2021, which were promulgated on 23 July 2021, the applicants are out of time.

Even if the matter were to be considered in terms of Rule 449 of the High Court Rules, the applicants would still be out of Court.

It cannot be gainsaid that the applicants have not been vigilant in pursuing relief in casu. The application was not brought expeditiously.

I am fortified in this view by the remarks of GUBBAY CJ in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361…, to the following effect:

“It was said by the appellants, that, they only became aware that the judgment had been erroneously granted when they received advice of that fact on 25 July 1997, some five years and six months later.

Such length of time, whatever the reason thereof, is unreasonable.

But, what made the appellants wholly undeserving of the Court's indulgence was that after being advised that aggregate interest had been awarded, they allowed a further ten weeks to pass before filing their application. And even when informed by the respondent's legal practitioners, on 27 August 1997, that it was not accepted that the judgment was in any way erroneous, it was five weeks before the necessary relief was sought.

I have, therefore, no hesitation in agreeing with the learned judge that the bringing of the application amounted to an abuse of the process of the Court and was not to be sanctioned.”

I believe that the remarks of the learned jurist are more than apposite in casu.

At the very least, the appellants in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 attempted to explain the delay. In the instant case, the applicants have not found it necessary to advise the Court when they became aware of the judgment. This becomes necessary since what was sought is the Court's indulgence.

In the exercise of its discretion, the Court must weigh all the factors that require that an applicant act expeditiously. Unfortunately, the applicants have decided not to be candid with the Court and take it into their confidence.

The delay under Rule 29 of the High Court Rules 2021 or Rule 449 of the repealed rules is inordinate.

The delay, being obvious, condonation for their failure to adhere to the rules ought to have been applied for.

No condonation was sought. They were clearly mistaken in taking that position.

The applicants have failed to adhere to the rules of the Court. They have been unable to bring the application timeously, or, in any event, within the time limits prescribed by Rule 29(2) of the High Court Rules.

In the absence of an order of Court condoning the failure to abide by the rules means, that, the applicants are non-suited.

The court is of the view, that, in the absence of condonation, there is no valid application before the Court. Therefore, there are no prospects of success on the merits due to the failure to adhere to procedural precepts in casu.

I turn to the second issue for determination, that of locus standi in judicio.

For the Court to invoke its jurisdiction to exercise power granted under section 24 of the Constitutional Court Act, the applicants must establish that they are parties affected by the judgment.

It cannot be set aside on a mere whim.

The applicants have to show that some right has been prejudiced by the issuance of the judgment in question. Since they allege that the land is State land, it is incumbent that they establish locus standi in judicio to invoke the jurisdiction of the Court to exercise its power in their favour.

“In law, standing or locus standi, is a condition that a party seeking a legal remedy must show that they have by demonstrating to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.”…,.

In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC49-18, HLATSHWAYO JA considered the principle of locus standi and stated the following:

“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point, that, to establish locus standi, a party must show a direct and substantial interest in the matter: see United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415A-C and Matambanadzo v Goven SC23-04.

In casu, it is common cause, that, the respondent is a branch of the parent church. However, the respondent is endowed with the power to sue and be sued in its own name. It is further common cause that the respondent is under the leadership appointed by the parent church. The Constitution of the respondent is approved by the mother church. The first appellant has been in control of the respondent's assets on the basis of being an overseer appointed by the mother church. The main allegation a quo was that the appellants were no longer members of the respondent and hence should cease to control the assets of the respondent.

The respondent, as a branch of the mother church, had an unfettered direct interest in the matter in that the first appellant purported to act on the respondent's behalf when he was on suspension. The first appellant had been divested of the power to act on behalf of the respondent. It is common cause that the first appellant was on suspension when he caused the letter of 3 February 2012 to be drafted. He purported to communicate to the mother church an incorrect position that the respondent was also the author of the letter in question. The respondent, who had not authored the letter in question, surely has a direct interest in a matter where its previous leader purports to act on its behalf without its authority. Therefore, the respondent's locus standi in the Court a quo cannot be gainsaid.”

It is settled, that, the principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Thus, a party needs to show that they have a direct, personal, and substantial interest in the matter in contention.

In Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC56-07, MALABA JA..., said:

“The common law position on locus standi in judicio of a party instituting proceedings in a court of law is, that, to justify participation in the action, the party must show that he or she has a direct and substantial interest in the right which is the subject matter of the proceedings and the relief sought.”

The above authorities speak to the legal position as pertains to locus standi generally.

As this application is concerned with an alleged violation of the Constitution, it is only appropriate that the Court considers the issue of locus standi in the light of decided authority on constitutional matters.

This Court, in the case of Mawarire v R G Mugabe & Ors CC01-13, accepting the applicant's right to access the court stated:

“Even under the pre-2009 requirements, it appears to me, that, the applicant is entitled to approach this Court for relief. Certainly, this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”

This decision was followed by a long line of authorities that established a trend in which the Courts sought to broaden the principle that locus standi should not be strictly construed in constitutional matters. To otherwise and apply too strict a construction would result in deserving cases failing to see the light of day further prejudicing an applicant deserving protection in pursuit of a fundamental right properly protected under the Constitution.

The position is settled, that, the new Constitution has expanded the locus standi of persons seeking to approach the Constitutional Court for the enforcement of an alleged breach of a fundamental right. Accordingly, in Meda v Matsvimbo Sibanda & Ors CC10-16, MALABA CJ made the following pertinent remarks:

“It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to the courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.”

See also the dicta in Chirambwe v Parliament of Zimbabwe & Ors CC04-20 and Gonese & Anor v President of Zimbabwe & Ors CC10-18.

The applicants claim that they are beneficiaries to State land under the land reform programme.

While the acquisition of the land is provided for in the Constitution, the right to occupy gazetted land is provided for in the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Thus, any right of occupation on the part of the applicants must be consistent with the rights set out in the relevant legislation, in this instance, the Gazetted Lands Act. In addition, a person claiming such right must show that he or she has lawful authority to occupy the land claimed.

Section 3(1) of the Gazetted Land (Consequential Provisions) Act reads:

“3 Occupation of Gazetted land without lawful authority

(1) Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority.”

What is lawful authority?

The Gazetted Land (Consequential Provisions) Act sets out several categories of documents under which lawful authority may be granted. The Gazetted Land (Consequential Provisions) Act defines lawful authority as follows:

“'lawful authority' means —

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease; and 'lawfully authorised' shall be construed accordingly;

'offer letter' means a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter;

'permit' when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;

'resettlement land' means land identified as resettlement land under the Rural District Councils Act [Chapter 29:13].

(2) Any word or expression to which a meaning has been assigned in the Land Acquisition Act [Chapter 20:10] shall have the same meaning when used in this Act.”

In addition, the Gazetted Land (Consequential Provisions) Act provides for land settlement leases described in the following terms:

“'land settlement lease' means a lease of any Gazetted land, or a portion of Gazetted land, issued by the State to any person, whether in terms of the Rural Land Act [Chapter 20:18] or the Agricultural Land Settlement Act [Chapter 20:01] or otherwise;”

The applicants needed to establish a real and substantial interest in the rescission of the judgment. They had to show that the judgment in issue directly affected their rights, interests, or potential rights or interests. They needed to show that the interests of justice favoured a finding of locus standi in judicio in their favour. Alternatively, they needed to establish a connection to and harm from the judgment sought to be rescinded.

They did not.

Apart from a bald statement in the founding affidavit that the applicants were beneficiaries under the land reform programme, no one has attached any document as proof of the claim.

To claim a right of occupation to Gazetted land under the programme, a person must exhibit any of the documents described as constituting lawful authority.

Neither the first applicant nor her cohorts have even alluded to having such lawful authority. Instead, what is before the Court are copies of agreements of sale between the applicants and the second respondent.

The agreements of sale are not the lawful authority contemplated under the Gazetted Land (Consequential Provisions) Act.

Any person claiming lawful authority to occupy or use State land must produce an offer letter, permit, or lease relating to the agricultural land in question: see Taylor-Freeme v The Senior Magistrate, Chinhoyi CC10-14; Zinyemba v The Minister of Lands & Rural Resettlement & Anor CC03-16.

The Constitutional Court has already settled what constitutes lawful authority under the Gazetted Land (Consequential Provisions) Act. In Taylor-Freeme v The Senior Magistrate, Chinhoyi CC10-14, the Court defined lawful authority as follows:

“'Lawful authority' means an offer letter, a permit and a land settlement lease. The documents attached to the defence outline are not offer letters, permits, or land settlement leases issued by the acquiring authority. They do not constitute 'lawful authority' providing a defence to the charge the applicant is facing.”

The Constitutional Court is of the view, that, the applicants lack the necessary locus standi to bring an application for the rescission of the judgment in CC43-15. They have failed to establish their claim to be beneficiaries under the land reform programme with lawful authority to occupy the land in question which they assert remains vested in the State. It follows, that, they cannot claim to be parties affected by the judgment that they seek to rescind within the meaning of section 24(1)(a) of the Constitutional Court Act.

The absence of locus standi, in this case, leaves the applicants without a paddle. It means that the application they intend to bring in the main matter has no prospects of success.

In the premises, for this additional reason, it is only appropriate that the Court makes a finding, that, it is not in the interests of justice for the applicants to be granted direct access to the Court.

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.The applicant craves ...

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.

The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.

The applicant craves the grant of his application, with no order as to costs.

Background

The two parties involved in this matter are a formerly married couple in terms of the Marriages Act [Chapter 5:11].

Following an irretrievable breakdown in their relationship, the respondent sought a decree of divorce in the High Court. The order sought in the court a quo also regulated the distribution of their perceived matrimonial property.

During the course of those proceedings, the applicant contested the distribution of an immovable property known as House Number 114 Lomagundi Road, Harare. His chief argument was, that, there was no direct contribution towards the purchase of the property by the respondent and hence she was disentitled from any claim to the property as part of their divorce proceeds.

This proposition was countered by the respondent who insisted that she had been the primary caregiver to their family and had remitted the various monies she had earned to the applicant during the subsistence of their marriage.

The applicant's purported former second wife also testified to the same effect on behalf of the respondent. She submitted, that, the respondent had raised various amounts of income that she submitted to the applicant during their marriage.

In the event, the court a quo found in favour of the respondent and granted her a fifty percent share in the property.

Irked by the High Court's determination, the applicant launched a subsequent appeal to the Supreme Court.

From the submitted grounds of appeal, the sole issue that arose for determination was whether the court a quo had erred in awarding the respondent a fifty percent share in the contested immovable property.

It was submitted, on behalf of the applicant, that, the court a quo had adopted a narrow construction of the principle of equality as the respondent had not contributed towards the purchase of the immovable property. It was contended, that, the judgment by the court a quo upset the established jurisprudence regarding the primary considerations for equitable distribution of matrimonial property.

Per contra, the respondent submitted that the court a quo had exercised its wide discretion under section 7 of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes Act”). It was contended, that, the High Court, in arriving at its determination, was guided by the Constitution as well as established precedent.

The respondent submitted, that, taking into consideration the circumstances of the case, the court a quo's determination could not be faulted.

Once seized with the matter, the Supreme Court proceeded to first correct the order of the court a quo, that had omitted to grant a decree of divorce before distributing the parties matrimonial property.

On the merits, it re-affirmed the respondent's position, that, section 26(c) and (d) the Constitution, as well as international law, mandated a fair and equitable distribution of matrimonial property. The Supreme Court upheld the court a quo's determination on the basis, that, the court a quo had properly exercised its discretion under the Matrimonial Causes Act.

The Supreme Court also noted, that, the applicant's moral turpitude was a critical factor in the decision of the High Court. The applicant's conduct, in trying to frustrate the equitable distribution of matrimonial property, was held to justify the order granted by the High Court.

Thus, the appeal was held to be meritless and dismissed.

Thereafter, the applicant failed to note an application for leave to appeal against the Supreme Court's decision within the allotted timeframe stipulated by the Constitutional Court Rules, 2016.

Based on the foregoing, the applicant filed the instant application before this Court on 22 March 2022.

The judgment of the Supreme Court was handed down on 29 June 2020 and the Rules of this Court provide fifteen days from the date of judgment to apply for leave to note an appeal against the judgment.

The applicant was evidently barred from noting his application for leave to appeal against the Supreme Court's decision and hence he has filed the present application for condonation.

In his founding papers filed of record, the applicant averred that his application for condonation ought to be granted as the intended application for leave to note an appeal enjoyed prospects of success.

It was contended, that, the applicant enjoyed a right to petition the Constitutional Court under section 69(3) of the Constitution, and, in the present instance, such access hinged on the existence of a constitutional matter in the subordinate court. He averred, that, the Supreme Court over-extended the import of the notion of “equality” when interpreting the provisions of the Matrimonial Causes Act.

It is on the basis of the foregoing, that, the applicant submitted that he had a justiciable right to equality, under section 56 of the Constitution, that ought to be protected by this Court.

He averred, that, section 56(3) of the Constitution, in particular, prohibited every person, including judicial officers, from discriminating against litigants based on their culture.

He asserted, that, the High Court's determination was primarily influenced by his cultural practice of taking another spouse during the subsistence of his marriage to the respondent.

The applicant advanced the position, that, the Supreme Court consequently failed to protect his right to equality. This constituted a flagrant violation of his fundamental right which ought to be redressed by this judicial forum.

Regarding the extensive delay in applying for leave to note an appeal, the applicant pleaded that he had limited financial liquidity to afford legal consultation and was oblivious of the prescribed period to access this Court.

He also averred, that, the Covid-19 pandemic militated against the filing of the present application due to onerous lockdown restrictions.

The applicant conceded, that, the extent of the delay in filing the application was inordinate but countered this concession by reasoning that, at any rate, the respondent was not prejudiced by the delay due to the peculiar circumstances of the matter.

The application was strenuously opposed by the respondent.

She averred, that, the Supreme Court was not seized with a constitutional matter and did not determine any constitutional issues in rendering its verdict. The respondent submitted, that, the draft grounds of appeal filed by the applicant related to general points of law.

It was contended, that, the judgement of the Supreme Court did not stray from the established legal precepts governing the distribution of matrimonial property in determining the rights of the parties.

The application was deemed to be an abuse of court process due to the obvious absence of any constitutional issue in the Supreme Court's judgment.

Submissions by Counsel

Counsel for the applicant, conceded that there was an extensive delay in filing the present application and that such delay was inordinate. She countered her concession by arguing, that, the applicant had been pondering his available remedies due to the complexity of the matter. It was submitted, that, the applicant sought legal advice from counsel, a process that extended the delay in filing the present application.

When it was pointed out that the founding affidavit on record contradicted her submissions, counsel admitted that the applicant had not been candid with the Court.

She then submitted, that, the applicant's precarious financial position had prevented him from engaging legal counsel timeously.

Upon further inquisition by the Court, it was conceded that the applicant's explanation for the delay was unreasonable.

Addressing the Court on the balance of convenience between the parties, counsel for the applicant submitted, that, the respondent would not suffer any financial prejudice if leave to appeal were to be granted.

She insisted, that, the filing of the matter was not predicated on the election of the respondent to exercise her right to liquidate her fifty percent holding in the disputed immovable property. It was advanced that other measures could be employed to alleviate any possible prejudice suffered by the respondent as a result of the petition to this Court.

To buttress her submissions, counsel for the applicant submitted, that, the applicant would provide for the respondent's financial needs whilst this Court dealt with the substance of the parties dispute.

As regards the existence of a constitutional matter, counsel for the applicant submitted, that, the Supreme Court amended the law by awarding the respondent a fifty percent share in the property.

When pressed on the exact constitutional issue determined a quo, counsel conceded that the Supreme Court did not explicitly deal with any constitutional matter. Rather, it was the import of its determination that raised a constitutional issue.

She submitted, that, the court a quo legislated over and above what was provided for in the Matrimonial Causes Act.

In essence, it was argued that the Supreme Court failed to properly apply the principles set out in the Matrimonial Causes Act.

Counsel for the applicant submitted, that, the applicant was punished for conducting his marital affairs in a polygamous manner. She indicated that the judgment reprimanded the applicant for indulging in a potentially polygamous marriage during his union with the respondent.

In any event, counsel for the applicant was unable to pinpoint specific portions of the Supreme Court's judgment that admonished the applicant's polygamous conduct.

In a bid to lend credence to her submission on this aspect, she argued that the issue was addressed in the proceedings before the High Court.

However, the High Court judgment was not made part of the record before this Court.

Nonetheless, counsel for the applicant persisted with her argument, that, the Supreme Court discriminated against the applicant on the grounds of custom and culture and that this raised a constitutional matter.

Per contra, counsel for the respondent submitted, that, the applicant had conceded that the delay in filing the instant application was inordinate and urged the Court to disregard the reasons proffered in explaining the delay.

She referred to correspondence on record between the parties that highlighted their concurrence in implementing the order of the High Court that had been upheld on appeal. It was submitted, that, the applicant initially did not highlight any dissatisfaction or intent to appeal against the Supreme Court's determination.

Thus, counsel for the respondent argued, that, the present proceedings were only prompted by the respondent's election to sell and liquidate her fifty percent share in the disputed property.

As regards the balance of convenience, counsel for the respondent highlighted that the respondent was advanced in age, well beyond 65, and that the protracted legal dispute threatened her already precarious financial position.

She submitted that her client needed the judgment of the High Court to be executed so that she could access the financial proceeds from the sale of the immovable property.

Counsel for the respondent also noted that the applicant had not contested the respondent's submissions through an answering affidavit and that therefore her averments were to be deemed uncontested.

Counsel for the respondent vehemently rebutted the notion that the Supreme Court dealt with a constitutional question in its judgment.

She submitted, that, reference was made to section 26 of the Constitution in its judgment to highlight that the Supreme Court was alive to the application of the principle of equality in determining the rights of the parties in terms of the Matrimonial Causes Act.

It was contended, at any rate, that, the Supreme Court's application of the aforementioned section 26 of the Constitution was not an intended ground of appeal as formulated in the draft notice of appeal. She argued, that, the applicant's objection was against the application of the Matrimonial Causes Act. Thus, the prospective appeal was doomed to fail on the grounds advanced by the applicant.

It was submitted that this Court could not exercise its discretion in a non-constitutional matter.

Counsel for the respondent concluded, that, the application amounted to an abuse of process due to the absence of any prospects of success....,.

Existence of a Constitutional Matter

The Constitutional Court is a specialised court whose jurisdiction is limited to strictly constitutional matters, as outlined in section 167(1)(b) of the Constitution.

This emphasis, on the existence of a constitutional question, is reinforced in the rules that govern access to this Court. The relevant rules in this regard are Rule 35, which governs applications for condonation and extension of time, and Rule 32 which deals with the substance of the prospective application for leave to note an appeal should the Court accede to the request for condonation.

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:

“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

The requirement of the existence of a constitutional matter, as an imperative, is further highlighted by the succeeding Rule 32(3) of the Constitutional Court Rules which mandates that an application for leave to appeal to this Court must contain or have attached to it a statement setting out clearly and concisely the constitutional matter raised in the decision sought to be appealed against.

In addition, the founding affidavit supporting the application must verify the fact, that, the cause of action arises from a decision of the subordinate court premised on a constitutional matter.

Therefore, it is axiomatic, that, where the subordinate court has not determined a constitutional issue, a litigant has no right of appeal to this Court.

Access to the jurisdiction of this Court unavoidably hinges upon the existence of this juridical fact.

It is unarguably the sine qua non of any approach to the specialised forum of the Constitutional Court.

The applicant's counsel pinpointed section 26(c) of the Constitution, which was referred to in the impugned judgment, as establishing a basis for petitioning this Court.

Counsel for the applicant submitted, that, the Supreme Court violated the import of equality in respect of the rights of the parties at the dissolution of their marriage in applying the principles enunciated in the Matrimonial Causes Act.

This position was countered by counsel for the respondent who insisted, that, the Supreme Court disposed of the matter on a non-constitutional basis.

She cited the case of Chiite & Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust 2017 (1) ZLR 603 (CC) to support the contention, that, a prospective appeal to this Court ought to be premised on a constitutional question that was determined by the lower court. She pointed to the prospective grounds of appeal as being devoid of any meaningful constitutional challenge.

It is an established position in our jurisprudence, that, mere reference to the Constitution by a subordinate court does not establish a constitutional issue.

In casu, the application for condonation, and the attached draft application for leave, fail to meet the essential requirement of a constitutional matter as obligated by the Constitution and the Rules.

The applicant's founding affidavit does not set out the constitutional matter that was determined by the Supreme Court.

The applicant seems keenly aware of this fact as evidenced by the poverty of his flimsy reference to section 56 of the Constitution in his papers in seeking to establish a basis for invoking the jurisdiction of this Court.

Furthermore, the attempt to latch onto section 26(c) of the Constitution, in the course of submissions by counsel for the applicant, is irreconcilable with the applicant's pleadings.

The founding affidavit and the draft application for leave are patently devoid of any mention of the specific manner in which the Supreme Court is alleged to have violated the rights protected under that constitutional provision.

This Court, in The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC), clarified the parameters of a constitutional matter as follows:

“The mere reference to the Constitution did not make what was said a constitutional matter. Reference by the Supreme Court to section 176 of the Constitution was an obiter dictum. The Constitution was referred to after the ratio decidendi had been arrived at and declared by the court. The effect of what the Court said in relation to section 176 of the Constitution was that its reasoning was not inconsistent with the provisions of that section. That is different from saying the decision on the issues before the court were based on the interpretation and application of section 176 of the Constitution.

It follows, that, where a subordinate court did not take a view of the case that required it to interpret and apply a constitutional provision to determine the issue raised, the matter does not pass for a constitutional matter.

Application for leave to appeal will be dismissed as the subordinate court will have rested its decision on an independent non-constitutional ground.”…,.

The above position was reiterated in Madyavanhu v Saruchera & Ors 2019 (1) ZLR 434 (CC)…, wherein the following was observed regarding the right of appeal to this Court:

“A person has a right to appeal against a decision of a subordinate court on a constitutional matter only. A decision of a subordinate court on a non-constitutional issue is unappealable because the Court has no jurisdiction to review such a decision. The purpose of the procedure of an application for leave to appeal, provided for in Rule 32(2) of the Rules, is to show that the Court has jurisdiction, as provided for in the Constitution, to hear and determine the appeal. In other words, the purpose of the procedure is to ensure that the applicant has a right of appeal to the Court against the decision of the subordinate court.”

From the above-cited authorities, it is evident that an application for leave to note an appeal against the determination of a lower court in the Constitutional Court hinges upon the existence of a constitutional matter.

The present application for condonation and extension of time cannot be granted as the prospective application for leave to appeal fails to satisfy the threshold for accessing the jurisdiction of this Court. The reference, by the court a quo, to the concept of equality, enshrined in section 26(c) of the Constitution, was purely tangential and not in any way dispositive of the main non-constitutional issues determined by that court.

Thus, the absence of a constitutional matter critically undermines the validity of the instant application....,.

The most pertinent factor in the disposition of this matter is the absence of a constitutional matter.

It is evident that the Supreme Court did not determine any constitutional issue in deciding the questions before it. Consequently, the applicant has no discernible prospects of success on appeal should leave to appeal against the judgment of that court be granted....,.

The application be dismissed with no order as to costs.

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

Regarding prospects of success, the practice has been to look for more than an arguable case.Prospects of success are established if, on appeal, this Court is likely to reverse the finding of the lower court or to materially change the order a quo....,.A prima facie case, or an interesting or ...

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

The trial of the applicant commenced.

Whilst it was underway, the applicant approached the High Court, under section 85(1) of the Constitution, once again seeking a permanent stay of the criminal proceedings against him on the basis that his rights and freedoms had been infringed as detailed above.

At the hearing of the matter before the High Court, the issue of the jurisdiction of that court to determine the matter during the pendency of the criminal trial before the Magistrates Court arose.

The High Court dismissed the contention that it did not have the requisite jurisdiction to determine the matter.

It nevertheless went on to dismiss the matter on the basis, that, the torture of the applicant was for no apparent reason in that it had not elicited any evidence or confession from the applicant. Being gratuitous, the torture of the applicant by the military was, at law, not a sound basis for permanently staying the criminal proceedings against him, the High Court went on to rule.

Dissatisfied with the dismissal of his application by the High Court, the applicant noted an appeal to the Supreme Court. It is not necessary that I set out the grounds of the appeal. This is so, because, in its decision, the Supreme Court neither determined nor adverted to these grounds.

It is however pertinent to record, that, the finding by the High Court, that it had jurisdiction in the matter, was not appealed or cross-appealed against.

Mero motu, the Supreme Court raised the issue.

It thereafter properly invited the parties to make additional submissions addressing the legal position governing the jurisdiction of the High Court in the matter.

It was the view of the Supreme Court, and correctly so, that, the provisions of section 175(4) of the Constitution were integral to the appeal that was before it, and, in particular, on the issue it had raised with the parties.

This is the provision that details the procedure to be adopted when a constitutional matter arises during any court proceedings.

The Supreme Court was keenly alive to the pending criminal proceedings before the Magistrate's Court, and during which proceedings the constitutional question of the legal redress of the applicant's unlawful arrest and torture had arisen.

Consequently, the Supreme Court found, that, by approaching the High Court during the pendency of the proceedings before the Magistrates Courts, the applicant had contradicted the precepts of certainty of process as articulated by this Court in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC).

I advert to this point in greater detail below.

In the final analysis, the Supreme Court held, that, the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) applied in full force to the facts before it. It also made the following four observations:

1. That, the Magistrates Court had vantage over the High Court in that it had heard evidence on the matter whereas the High Court was relying on an affidavit;

2. That, the Magistrates Court had jurisdiction in the matter;

3. That, the proceedings before the High Court had the potential to disrupt the proceedings in the Magistrates Court; and

4. That, the approach to the High Court was novel and was not supported by an elaborate procedure as the one set out in the rules of the Constitutional Court.

As a result, the decision by the High Court was found, rather euphemistically, to have been made on no sound jurisdictional basis and was accordingly set aside. In short, the Supreme Court held, that, the High Court had no jurisdiction in the matter.

The Intended Appeal

In the event that he is successful in the application for leave, the applicant intends to appeal against the decision of the Supreme Court on the following three grounds:

“1. The court a quo misdirected itself in not finding, that, the fact that the High Court is a 'superior court of record' under section 170 of the Constitution prohibited the Supreme Court from regarding the High Court as one of the 'inferior courts of justice' referred to in section 25 of the Supreme Court Act [Chapter 7.13].

2. The court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the magistrates court.

3. The court a quo erred and misdirected itself in not finding, that, once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

The broad issue that falls for determination in this application is whether it is in the interests of justice that the applicant be granted leave to appeal to this Court against the order of the Supreme Court.

The narrow and more specific issue is whether the decision of the Supreme Court was on a constitutional issue that was clearly articulated, and, additionally, whether the intended appeal enjoys prospects of success.

I define the issues narrowly in this fashion following the requirements of the law governing the determination of applications for leave to appeal to this Court....,.

The first ground of appeal raises the issue of the review jurisdiction of the Supreme Court over the proceedings and decisions of the High Court.

It is the appellant's contention, that, the High Court is a “superior court of record” under section 170 of the Constitution and that this in turn prohibits the Supreme Court from regarding it as one of the “inferior courts of justice” referred to in section 25 of the Supreme Court Act [Chapter 7.13].

As correctly noted by the applicant, section 170 of the Constitution provides that the High Court is a superior court of record.

The term “superior court of record” is however not defined in the Constitution.

Counsel for the applicant relied on the remarks by the Supreme Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) where the court held, that, the High Court was not an inferior court as contemplated by section 25 of the Supreme Court of Zimbabwe Act.

Whilst this decision has not been specifically overruled subsequently, it has been studiously and routinely ignored by the Supreme Court itself.

Quite apart from the fact that the Supreme Court is not bound by its own decisions, this is one decision that is well known in the jurisdiction for the fact that it has been ignored more times than it has been applied.

For the purposes of determining this application, it is not necessary that I debate and determine the stare decisis effect of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) generally or seek to reconcile it with the numerous later decisions of the Supreme Court that have clearly gone against it.

This is so because it is my considered view, that, this application, and the intended appeal, turn and fall by the way side on the basis of the second issue raised by the applicant.

In the second ground of the intended appeal, the applicant contends that “the court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor…, to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the Magistrates Court.”

I cite in the contention the first ground of the intended appeal in full.

That the decision of the Supreme Court was squarely based on the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is not in dispute.

The ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), correctly understood, has a fairly broad and far-reaching impact on the right of persons to access a court in terms of section 85(1) of the Constitution for the enforcement of fundamental rights and freedoms in circumstances where section 175(4) of the Constitution can also, and should, consequently apply.

I understand the ratio decidendi of the case to lay down the legal proposition, unequivocally and without exception, that, any person who is appearing before any court and intending to raise and rely on any alleged violation of their fundamental rights or freedoms for any relief, must invoke the provisions of section 175(4) of the Constitution or forever lose their right to claim relief for such violations.

Put differently, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) holds, that, the right of any person to access a court, in terms of section 85(1) of the Constitution, if that person is already a party to proceedings before another court, is completely negated and the constitutional jurisdiction of all other courts is ousted.

I pause to note, that, this negation of the right to access other courts or the complete ouster of the jurisdiction of other courts, other than the court wherein the proceedings are underway, is not a mere rule of practice and procedure which, in the interests of justice, may be departed from.

It is an interpretation of the Constitution by this Court.

It therefore forms part of the body of the Constitutional Law of this jurisdiction on access to the courts to enforce a fundamental right or freedom.

In consequence of the above, the broad position of the law then becomes, that, where a person is already before a court in any proceedings, an approach to any other court, in terms of section 85(1) of the Constitution, for the enforcement of a fundamental right or freedom, outside the provisions of section 175(4) of the Constitution, is legally incompetent.

It begets a nullity for want of jurisdiction.

The other court so approached is stripped of its constitutional jurisdiction under section 85(1) by the availability of the procedure under section 175(4).

The above interpretation of the Constitution, by implication, rightly or wrongly, also supersedes and overrules the common law position that grants the High Court inherent jurisdiction over all persons and all matters.

It would appear that the legal position that I have outlined above, unduly restrictive on the right to access courts for the enforcement of fundamental rights and freedoms as it seems to be, is the position that obtained under the repealed Constitution.

It was the settled position under that Constitution, that, any constitutional issues arising in a lower court, during the course of any proceedings, had to be referred to this Court in terms of section 24(2) and could not be brought, pursuant to section 24(3), as a fresh cause of action under section 24(1): see Jesse v Attorney-General 1999 (1) ZLR 121 (S)…,.

Notwithstanding the adoption of the current Constitution, the position of the law remains unchanged.

Section 175(4) of the Constitution is the equivalent of section 24(2) of the repealed Constitution whilst section 85(1) is the current version of section 24(1), albeit improved.

That, the two provisions are located in different chapters of the Constitution detracts not from their effect and import as interpreted by this Court.

If I have correctly understood its ratio decidendi, then, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is authority for the simple proposition, that, where any person is before any court on any non-constitutional matter, but intends to seek redress for the alleged breach of his or her fundamental rights and/or freedoms arising in connection with that matter, he or she must raise the alleged breach before that court and invoke the provisions of section 175(4) of the Constitution if he or she intends to have the matter determined by this Court.

The party may also petition that court directly for any appropriate relief.

The net effect of this position is, that, any purported approach to another court, in terms of section 85(1) of the Constitution, under the circumstances, is not only impermissible but is a nullity as the constitutional jurisdiction of all other courts, the High Court included, is not only arrested but is lost by operation of law.

The import of the decision in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is thus not only to render section 175(4) of the Constitution as regulating access to the Constitutional Court on issues arising during proceedings before any court, as argued by counsel for the applicant, but to render section 85(1) of the Constitution redundant and of no force and effect where proceedings involving the applicant are pending before a court.

On the basis of the above, I must reject the argument by counsel for the applicant, that, section 85(1) of the Constitution creates unimpeded access to the High Court.

It does not always do so.

It only does so where there are no pending proceedings before any other court to which the applicant is a party.

In casu, the applicant was appearing before the Magistrates Court where he correctly raised the allegations of the breach of his fundamental rights. By the mere fact that he was appearing before the Magistrate's Court where he was obliged to raise such allegations, the constitutional jurisdiction of all other courts, under section 85(1) of the Constitution, the High Court, and this Court included, was thereby extinguished and lost.

This is the import of the ratio in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) which the Supreme Court correctly applied.

The ratio of Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), however, does not extinguish the right of the applicant to access this Court under section 85(1) of the Constitution, alleging that a lower court has wrongfully refused a request for a referral made under section 175(4) of the Constitution.

The cause of action in that matter will be the refusal by the lower court to refer the matter to this Court and not the alleged violation of the fundamental rights or freedoms giving rise to the referral.

It is therefore my finding, that, the applicant enjoys no prospects of success on the second ground of the intended appeal. It is most unlikely that this Court will reverse the order of the Supreme Court and find, instead, that, the High Court enjoyed jurisdiction, inherent or otherwise, in the matter.

By parity of reasoning, the third ground of the intended appeal falls by the wayside.

The assumption of jurisdiction by the High Court, in the circumstances of this matter, was erroneous and grievously so. It begot nothing that can be salvaged. Once it is accepted that the High Court did not have any jurisdiction in the matter that concludes the inquiry. Its proceedings fall away automatically by operation of law.

There is thus no possibility, in the circumstances of this matter, that, this court will find, as contended by the applicant, that “the court a quo erred and misdirected itself in not finding that once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

Disposition

The applicant has no prospect of success on its main contention that the High Court had jurisdiction in the matter that was placed before it. Accordingly, his application for leave to appeal cannot succeed.

Regarding costs, I see no justification for making an award of costs in this matter.

In the result, I make the following order:

The application is dismissed with no order as to costs.

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court dismissing, with costs on a legal practitioner and client scale, an application for condonation of the failure to apply for the rescission of a default judgment granted in Case No. HC2424/17 within the time stipulated by the High Court Rules 1971.

The appellant had simultaneously filed an application for the rescission of the default judgment. However, this part of the application was abandoned following strenuous opposition by the respondents and with the concurrence of the court a quo.

Background

The respondents issued summons against the appellant on 21 March 2017, in Case No. HC2424/17, for the payment of $98,979=, together with interest, in respect of sums allegedly misappropriated by the appellant from the second respondent.

The appellant disputed the claim and denied owing any monies as alleged.

A pre-trial conference was set down for 9 October 2017 and was postponed to 26 October 2017. The appellant failed to appear at the pretrial conference because he was unaware that he was required to be present. His legal practitioner also did not appear himself but was represented by his colleague who was unable to explain the appellant's absence.

A default judgement in favour of the respondents was entered against the appellant who consequently filed the dual application for condonation and rescission referred to above through a different firm of legal practitioners.

As was noted by the court a quo, none of the appellant's erstwhile lawyers had filed any supporting affidavits explaining their conduct and the appellant's absence from the pre-trial conference. Furthermore, there was no supporting affidavit from the employee in that firm of lawyers who was said by the appellant to have called him belatedly on the day of the pretrial conference.

In his founding papers, the appellant lamented the “gross negligence” on the part of his erstwhile lawyers and the “great disservice” occasioned to him by their conduct.

Judgment Appealed Against

The court a quo found, that, in view of the above evidentiary deficiencies, the appellant's averments remained unsubstantiated.

In the court's view, this was a typical case where the dereliction of professional duty, imputed by the appellant to his legal practitioners of choice, should be held against him personally.

The court observed that the pre-trial conference was postponed and that the appellant must have been aware of the postponement. There was therefore no reason why he did not attend the pretrial conference since any diligent litigant would attend unless excused from so doing.

Additionally, the fact that the appellant had accepted the wrong legal advice from his lawyers, in noting an appeal against the default judgement, did not justify his subsequent attempt to follow the correct procedure because, if he were allowed to do so, there would be no finality to litigation.

As regards the appellant's prospects of success, the learned judge a quo found, that, the appellant had not shown that the intended application for rescission had any merit. This was due to the fact that his defence to the claim instituted by the respondents was not articulated in his application.

As for costs, the learned judge took the view, that, the appellant had persisted with the application even though he knew that it had no merit. Consequently, the respondents had been unnecessarily put out of pocket for the costs of attendance by an advocate on two different days when the matter could have been argued in less than an hour.

In the event, the application for condonation of the failure to timeously apply for rescission of the default judgment was dismissed with costs on a punitive scale.

Grounds of Appeal

The grounds of appeal in this matter, as grammatically corrected, are as follows:

(1) The court a quo erred at law in finding, that, the appellant did not articulate his defence to the claim despite such defence being addressed in the application for condonation and the heads of argument. The failure to properly deal with prospects of success amounts to a failure to determine the matter according to law.

(2) The court a quo erred in not making a cumulative assessment on whether all the requirements had been satisfied as required by law. A court is bound, at law, to consider and evaluate all the requirements in conjunction with each other and not to place too much emphasis on the requirements individually.

(3) The court a quo grossly misdirected itself in extending the sins of the appellant's erstwhile legal practitioners to the appellant. The peculiar circumstances of the matter were that the appellant could not make an independent assessment or give a considered instruction on the remedies adopted, and, therefore, non-compliance should not have been extended to him.

(4) The court grossly erred at law in failing to find that the appellant had high prospects of success and in failing to exercise its discretion to grant condonation in the interests of justice.

Criteria for Condonation of Non-compliance

The factors to be considered in an application for the condonation of any failure to comply with the rules of court are well-established. They are amply expounded in several decisions of this Court in which the salient criteria are identified. They include the following:

(a) The extent of the delay involved or non-compliance in question.

(b) The reasonableness of the explanation for the delay or non-compliance.

(c) The prospects of success should the application be granted.

(d) The possible prejudice to the other party.

(e) The need for finality in litigation.

(f) The importance of the case.

(g) The convenience of the court.

(h) The avoidance of unnecessary delays in the administration of justice.

See Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Maheya v Independent African Church SC58-07; Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

As was observed in the latter case, the factors listed above are not exhaustive.

Whether Defence to Claim was Articulated

In its judgment, the court a quo found that “the applicant has not shown that the intended application for rescission has merits [because] the applicant's defence to the claim is not articulated in this application.”

Having regard to the contents of the applicant's founding affidavit a quo, the above finding is patently erroneous.

In that affidavit, the appellant not only attacks the order sought to be rescinded but also categorically articulates his defence to the main claim, to wit, that the alleged payments of salary were not made by the second respondent but by a different company run by the first respondent and that, therefore, the respondents had no cause of action against him.

In their opposing papers, the respondents did not challenge the appellant's averments as to his defence.

What this shows is that there was a dispute between the parties which required a determination on the merits.

The court a quo did not find that the appellant's defence was spurious or unsustainable. It simply declared that there was no defence whatsoever.

It is relatively clear, therefore, that, the court a quo failed to take into account the appellant's averments, and, consequently, made findings that were entirely inconsistent with the affidavits filed by the parties.

In this regard, it obviously erred and misdirected itself in the exercise of its discretion on the facts that were placed before it, by not dealing properly with the appellant's defence and his prospects of success.

Which Prospects of Success

An interesting point of law that arose in the course of submissions by counsel relates to the following question: which prospects of success must a court assess in considering an application for condonation of the failure to apply timeously for the rescission of a default judgment?

Is it the prospects of success in the application for rescission or the prospects of success in the main matter in which the default judgment was granted?

Counsel for the respondents insists, that, it is the former only, while counsel for the appellant contends that it is either the latter or both, the former and the latter.

In this context, the cases relied upon by both counsel do not afford any definitive answer to the question raised.

In Maheya v Independent African Church SC58-07, the Court was seized with an application for the reinstatement of an appeal. MALABA JA…, held…, that, the appellant could not escape the consequences of the lack of diligence on the part of her legal practitioners and that this, coupled with the absence of prospects of success on appeal, justified the dismissal of the application for reinstatement of the appeal.

In Chomurema & Anor v Telone SC86-14, the applicants sought leave to file a belated appeal against their dismissal from employment.

GWAUNZA JA…, noted…, that, there was nothing to prevent the Labour Court, in the interests of finality to litigation, from hearing a composite application for condonation of the late filing of an application for leave to appeal together with an application for leave to appeal to the Supreme Court.

Finally, the case of Hove v Zimphos Ltd & Ors SC08-18 concerned an application for condonation of the late noting of an application for the rescission of a default judgment.

ZIYAMBI AJA…, found that the applicant had to establish that the intended application for rescission enjoyed prospects of success. The learned judge then proceeded to find that it had not been shown that there were prospects of success on appeal on the grounds of appeal raised or that there was any impropriety in the manner in which the Labour Court exercised its discretion to dismiss the application for condonation. For these combined reasons, the instant application for condonation was dismissed with costs.

As I have already intimated, these decisions, rendered in chamber applications, do not decisively answer the question posed.

My tentative and obiter view is that it is the merits of the main matter and the prospects of success therein that the court is enjoined to consider in an application for the condonation of the late noting of an application for the rescission of a default judgement.

I take this view on the basis, that, it is necessary for the court seized with either application to grapple with the merits of the main matter in order to properly address the gravamen of the real dispute between the parties involved. Any other approach would tend to militate against the need for finality in litigation as well as the interests of justice.

In any event, my view on this question is rendered somewhat superfluous by the fact that the court a quo did not address any prospects of success whatsoever in disposing of the application before it.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

This is an application for rescission of a judgment of this court entered in default in favour of the first respondent on 26 June 2008 in terms of which the eviction of the applicant and those claiming occupation through him from premises known as 1495 Chiwaridzo Township Bindura was ordered together with costs of suit.

On 4 February 2008, the first respondent issued summons out of this court in case number HC642/08 alleging that the house in question had been leased to the applicant by written lease agreement signed by the parties on 20 December 2003, which lease could be terminated by the first respondent in the event that the applicant left employment with the first respondent.

The first respondent further averred, that, the applicant's employment having been terminated on 31 March 2007, a point which is now hotly disputed by the applicant who claims having retired from the first respondent's employ in October 2005, the lease had been terminated.

The first respondent then sought an order for eviction as a consequence of the applicant's failure to vacate the house following such termination.

According to the Deputy Sheriff's (second respondent herein) return of service filed of record in that matter, the summons was “served on defendant Enock Govha” on 29 February 2008.

On 12 May 2008, the first respondent submitted an application for default judgement which was granted on 26 June 2008 aforesaid. In due course, a writ of ejectment was issued and the applicant's eviction was sought.

It is that default judgment which the applicant seeks to have rescinded arguing that he was not in wilful default as he was never served with the summons.

The applicant has cited the Deputy Sheriff in this application as second respondent and attacked his return of service as being “false and misleading” given that on the day the second respondent alleges he served the summons personally upon him, he (the applicant), was enjoying the fruits of his retirement in his communal home, he having relocated there in January 2006 following his retirement either in October or December 2005.

It is not clear when, as he mentions two (2) different months in 2005 as his retirement date.

It is not clear whether this application was served upon the second respondent as no proof of such service was filed.

What is clear though is that the second respondent has not challenged the serious allegations made against him regarding service of the summons. His failure to do so may be due to the fact that he did not have notice of the application.

The applicant states, in his founding affidavit, that, he only became aware of the existence of the default judgment when the second respondent sought to evict his daughter from the house on 1 November 2008.

He goes on to say, that, he should be allowed to contest the eviction because he bought the house from the first respondent and he paid the full purchase price.

In support of that claim, he has filed documents showing that the first respondent, as employer, offered houses to its employees, including the applicant. Those documents also show that the housing units were valued, their values determined and what each employee was expected to pay as the purchase price assessed and agreed.

The applicant also submitted his payslip showing that deductions were made by the first respondent from his salary under the caption “rent to buy”. The same payslip also reflects the balance after each deduction of the said 'rent to buy' showing that the amount charged was being progressively reduced. In addition, he filed receipts issued by the first respondent for further lump sum payments marked “payment of House 1495.”

For that reason, the applicant is of the firm view, that, having paid the full purchase price for the house, he cannot be evicted from it and has prospects of success on the merits.

The first respondent strongly opposes the application on the basis that the applicant has not shown good and sufficient reasons for the rescission of the judgment entered in default.

It has been argued on behalf of the first respondent, that, as the owner of the house, with title, it is entitled to vindicate against the applicant and that there was never an agreement of sale between the parties involving the house in question.

Counsel for the first respondent insisted that the relationship between the parties was governed by the written lease agreement signed in December 2003, which document the applicant says only recorded the financial arrangement between the parties for the conveyance, to the first respondent, of the purchase price. He vehemently argued, that, in terms of that lease agreement, the applicant would only be eligible for consideration to purchase the house at the expiration of 60 months from the date of the signing of that lease agreement.

Regrettably, counsel for the first respondent did not explain what governed the relationship between the parties before the lease agreement of 29 December 2003 was signed.

He took the view, that, as the applicant retired in March 2007, before the 60 month period had expired, he was not eligible to purchase the house and the first respondent was entitled to reclaim it.

There is a dispute as to when the applicant retired and two (2) different letters purporting to inform him of his resignation have been produced.

The first respondent produced a letter dated 14 November 2007 recording the applicant as having resigned on 31 March 2007.

Counsel for the applicant insists that letter is a recent fabrication by the first respondent, and has produced a letter written by the applicant's Human Resources Manager, M. Nyamadzawo, on 22 June 2005, giving the applicant notice of his retirement on 31 December 2005.

The first respondent has not explained the circumstances under which that letter was written if the applicant had not resigned.

Rule 63 of the High Court of Zimbabwe Rules 1971 provides:

“(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Subrule (2) of Rule 63 was interpreted succinctly in the seminal case of Stockill v Griffiths 1992 (1) ZLR 172 (S)…, as follows:

“The factors which a court will take into account in determining whether an applicant for rescission has discharged the onus of proving 'good and sufficient cause' as required to be shown by Rule 63 of the High Court of Zimbabwe Rules 1971 are well established. They have been discussed and applied in many decided cases in this country: see, for instance, Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not yet reported); Roland and Anor v Donnell 1986 (2) ZLR 216 (S) at 226E-H. Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They are:

(i) The reasonableness of the applicant's explanation for the default.

(ii) The bona fides of the application to rescind the judgment; and

(iii) The bona fides of the defence on the merits of the case which carries some prospects of success.

These factors must be considered not only individually but in conjunction with one another and with the application as a whole.”…,.

The explanation given by the applicant, for failure to respond to the summons, is not
convincing, especially as it does not appear that the second respondent, who claims to have served the summons personally on the applicant, has been served for him to responded to the accusations levelled against him.

I agree with counsel for the first respondent, who relies on the authority of Gundani v Kanyemba 1988 (1) ZLR 226 (S), that, the second respondent's return of service is prima facie proof of service and can only be rebutted by concrete evidence being placed before the court.

However, that is not the only factor to be considered in deciding whether the applicant for rescission of judgement has discharge the onus of showing “good and sufficient cause” for the rescission.

I had occasion, in Mazuva v Simbi and Ors HB155-11, a matter in which an applicant for rescission had not given a good explanation for failure to act, to comment…, that, even in such a situation such applicant can still discharge the onus if all the factors are taken together. In that matter, I stated:

“While the explanation for the first respondent's failure to respond to the application in HC905/10 is what MAKARAU JP (as she then was) referred to in Mwanyisa v Jumbo & Ors HH03-10 as 'a dog's breakfast' if the factors to be taken into account in deciding a rescission of judgment application, as set out in Stockill v Griffiths (supra), are taken in conjunction with one another, the applicant has discharged the onus of proving 'good and sufficient cause' for the rescission of the judgment entered on 1 July 2010. It simply cannot stand.”

Here is a company which avails to its employees an opportunity to purchase houses they are leasing from it. It signs an understanding with the employees representatives which has, appended to it, a list of beneficiaries which list sets out the value of each housing unit and the monthly instalment to be paid by each beneficiary - the applicant included. It goes on to deduct the equivalent of such instalment from the applicant's salary clearly stating that it is rent to buy the house and to also show the balance outstanding after such deduction.

The same instalment is reflected on a written lease agreement.

It must be understood, that, in an application of this nature, the applicant is not required to prove his case but merely to show a bona fide defence carrying prospects of success.

Counsel for the first respondent referred me to the case of Ashanti Goldfields Zimbabwe Ltd v Clement Kovi SC07-09 (unreported) in which the Supreme Court ruled, that, the agreement signed between the first respondent and its employees, on 1 December 2003, which the applicant relies upon, was not a sale.

That issue was considered by MAKARAU JP…, in: 1. Antonio v Ashanti Goldfields Zimbabwe Ltd & Anor; 2. Mujati v Ashanti Goldfields Zimbabwe Ltd & Anor; 3. Ashanti Goldfields Zimbabwe Ltd v Bonde 2009 (2) ZLR 371 (H); which matters involved the same arguments as in casu.

She distinguished that case and concluded…, as follows:

“I am bound by all decisions of the Supreme Court on points of law. Where, however, the facts that were placed before the Supreme Court are different from the facts before me, I believe I am at liberty to interpret those facts in light of the law handed down by the Supreme Court. The doctrine of stare decisis applies to points of law and not to factual disputes.”

I find myself in agreement with that postulation.

I am not aware if that judgment has been challenged, but, until such time that it is overturned, I am entitled to use it as I am persuaded by it.

Following the guidance given in Stockill v Griffiths 1992 (1) ZLR 172 (S), to consider the factors not only individually but in conjunction with one another and with the application as a whole, I am of the view, that, the applicant has discharged the onus resting on him to show 'good and sufficient cause' for the rescission of the default judgment.

Justice demands that the issues raised ought to be interrogated fully in a trial and that the applicant should not be shut out, as it were, on the technicality of default judgment.

In the result, I make the following order; that

1. The default judgement entered on 26 June 2008 be and is hereby rescinded.

2. The applicant should file his notice of appearance to defend in HC642/08 within ten (10) days of the date of this order.

3. The costs of this application shall be costs in the main action.

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD
Ruled By: TSANGA J

This is an opposed application for rescission of judgment which has its genesis in the dismissal of the applicant, Patricia Mapini, from employment by the respondent, Omni Africa.

The applicant was engaged as a Sage Pastel Sales Executive by the respondent.

The working relationship soured when the respondent terminated the applicant's contract of employment on the basis of certain allegations it made against her.

Aggrieved by what she considered to be unfair dismissal, the applicant sought resolution of the matter through compulsory arbitration.

She obtained a default judgment for the sum of US$36,064 on 29 June 2012.

The present application, for rescission, has its foundations in this initial default judgment obtained by the applicant.

Since two different sets of default judgements, one at the instance of the present applicant, and the other at the instance of the respondent, inflame this dispute, it is important to capture the details of both.

Furthermore, in resolving disputes, the devil is often in the factual details ultimately examined against whatever the law provides.

The first default judgement, that resulted in the granting of the arbitral award, was spawned by two postponements of the arbitrator's hearing.

Initially set for hearing on 9 February, the matter could not take place as the arbitrator was away on that day. Further postponed to 15 February, it again still failed to take off on that day: this time, the respondent's lawyer, Mr Mazhande, was unable to attend due to the need to attend a funeral. He, however, requested a representative from another law firm to inform the arbitrator. The evidence on file suggests that this was duly done.

The papers filed of record further reveal, that, the arbitrator, after receiving word from the emissary, dutifully postponed the matter to 21 February. This was by written notice to both the applicant and the respondent.

The information in the papers placed before the court, in addition, confirms that the respondent's receptionist signed and received the notification of this new date, on 16 February.

Nonetheless, on the re-appointed day, February 21, the respondent did not show up which resulted in the granting of a default judgement by the arbitrator in favour of the applicant.

This judgement was subsequently finalised on 29 June.

The evidence, placed before the Honourable Court, also shows, that, in carrying out the necessary processes for the finalisation of the award, the respondent was accordingly notified at every stage. The applicant proceeded to register the arbitration award on 6 July 2012. The registration was granted on 4 December 2012.

It is against this order that the High Court issued a writ of execution on 29 January 2013.

This has also spawned yet a pending matter of stay of execution.

Parallel to the above processes, the respondent, who had not been present at the hearing on 21 February, filed an application, on 1 October 2012, in terms of Article 34 of the Arbitration Act [Chapter 7:15] seeking the setting aside of the arbitral award which was granted on 29 June 2012.

The respondent's primary argument was that the award made by the arbitrator, in its absence, violated the dictates of natural justice in that it had not been granted a hearing.

The respondent succeeded in setting aside the arbitral award.

This was not on the basis of consideration of any merits, but, as a result of a default judgement granted in an unopposed matter.

It appears that the applicant did respond to the application on the 18th of October (also confirmed by stamped documents in file HC/11439/12) attaching documents challenging the respondent's averment of lack of notification.

However, she sent her documents to the respondent's previous lawyers, Muchandibaya and Associates.

These lawyers had indeed, at some stage, as evidenced by correspondence, represented the respondent in the matter.

There is some dispute as to when exactly they assumed agency. No record was on file regarding this aspect.

They were, however, no longer acting for the respondent at the time of the application for rescission as the application was issued by Mawere and Sibanda Legal Practitioners.

A default judgment was granted on 21 November 2012.

It is this default judgement that the applicant seeks to rescind.

The applicant states, that, she only got to know of the default judgement on 15 July 2013. This was after she was served with an urgent chamber application for stay of execution. She filed her application for rescission on 23 July 2013.

She avers, in support of her application for rescission, that, she was unaware, at the time, that, the respondent had since changed practitioners.

She also disputes, that, the respondent was not aware of the arbitration award until its registration on the basis, that, the evidence from process shows, that, the respondent was informed at all times and generally chose to ignore correspondence.

The applicant also challenges the setting aside of the arbitral award on the grounds that the High Court lacked the necessary jurisdiction to hear this matter.

She maintains, that, the setting aside of an arbitral award is the exclusive jurisdiction of the Labour Court in terms of the Labour Act [Chapter 28:01].

Reference was made to several judgements which I will canvass more fully later in this judgement in addressing this issue.

The respondent opposes the application for rescission on the basis that none of the acceptable grounds for rescission are met by the applicant.

These include:
(i) A reasonable explanation for the default;
(ii) The bona fides of the application to rescind; and
(iii) The bona fides of the defence to the claim, which must have some prospect of success at the trial.

Cases referred to include Stockhill v Griffiths 1992 (1) ZLR 172 (S); Rolland and Anor v Donell 1986 (2) ZLR 216 (S); Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 201 (S); and Barclays Bank of Zimbabwe v CC International (Pvt) Ltd SC16-86.

Counsel for the respondent also argued, that, the applicant has to bear responsibility for not being vigilant: see Ndebele v Ncube 1992 (1) ZLR 288 (S).

The applicant's reasons for her default HC/11439/12 are credible.

Order 2 Rule 5(2) of the High Court Rules requires a party who has changed legal practitioners to file a Notice of Change with the Registrar and to advise all other parties to the proceedings of the change.

It is unreasonable, and most certainly irregular, to simply expect that the applicant should have picked the change of address from the fact that the application came from Mawere and Sibanda Legal Practitioners.

There is nothing on record that shows that the applicant was advised of the sea of changes in practitioners representing the respondent at various turns - these include the take over from Mr Mazhande who is said to have been unable to attend the hearing on 15 February by Muchandibaya and Associates who subsequently came into the picture sometime thereafter.

Then, there is the notification of the takeover by Mawere and Sibanda from Muchandibaya and Associates, the respondent's current practitioners, that is also not on file.

In the result, the applicant assumed, albeit, erroneously, that, Muchandibaya and Associates were still handling the matter.

Her opposition did not find its way to Mawere and Sibanda and the matter was heard as unopposed.

Once she got knowledge of the judgement, she acted swiftly to seek its rescission.

I find that the default was not wilful and that the applicant is bona fide in her application to rescind.

On the bona fides of the applicant's defence to the claim, and whether it has some prospects of success if the matter is rescinded, again, I find that the weight of the evidence appears to favour her claim.

The basis of the respondent's application against which rescission is sought, was that it had not been accorded a right to be heard.

As I have earlier remarked, this is not supported by the papers placed before the court since the arbitrator put the postponement in writing. The notice was received and signed for at the respondent's offices.

The applicant, in my view, has some prospects of success in challenging the respondent's claim.

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

This is an urgent chamber application for stay of execution pending the determination of an application for rescission of judgment.

The certificate of urgency was signed by Mr. Takunda Samuel Gumbo, who stated that the applicants property had been attached by the second respondent, at the instance of the first respondent, and that, the applicants stood to be irreparably prejudiced if the relief sought was not granted.

Goods were attached on 29 June 2015 and the application was filed a day later. Execution was due on the 2nd of July 2015.

The applicants had applied for the rescission of the default judgment obtained against them by the first respondent under case number HC6111/15.

It was submitted, that, a normal court application would render the outcome of the application for rescission of judgment irrelevant - a brutum fulmen.

Mr. George Marere, a director of the first applicant, deposed to the founding affidavit in which he averred the following:

(i) Firstly, on urgency: that the relief sought renders this matter 'inherently urgent'.

(ii) Execution of the writ would cause irreparable harm to the applicants.

(iii) There is no cause of action against the applicants in the main matter so the application for rescission of judgment has good prospects of success.

(iv) The first respondent fraudulently inflated the principal sum claimed and that is a triable issue which can only be resolved by the adducing of evidence.

(v) The first respondent is not entitled to the amount it is claiming, in that, it is charging usurious interest, amongst other things.

(vi) If the default judgment is executed, the applicants stand to lose their livelihood.

Mr. Thomas Tsvangirai Gambiza deposed to the opposing affidavit on behalf of the first respondent.

He averred, that, this matter was not urgent because no evidence was adduced to buttress the requirements of urgency. A matter is not rendered urgent simply because an application for rescission of judgment has been filed and is pending resolution.

He attached a letter dated 3 December 2014, addressed to the applicants legal practitioners, which was a warning to them that default judgment was about to be obtained because the appearance to defend was defective as it was filed out of time. He submitted, that, the application for rescission of judgment has no prospects of success....,.

In regards to the merits, it was submitted, that, on the 8th of October 2014, the first respondent, a duly registered Commercial Bank, issued summons against the first and second applicants for payment of the sum of USD$2,745,092=72 being monies loaned and advanced to the first applicant through a written overdraft facility dated 17 February 2011, provided to finance the first applicant's working capital requirements, in the sum of two million United States dollars.

According to the declaration to the summons, the second respondent is a surety and co-principal debtor.

The applicants entered appearance to defend on 20 October 2014 and requested for further particulars on 12 November 2014.

They heard nothing further until the property was attached, on 29 June 2015, on the basis of judgment obtained in default on 16 December 2014.

The applicants did not fail to file appearance to defend them, which was the basis of the default judgment. The judgment was accordingly obtained irregularly, it was erroneously sought.

The first respondent, on the merits, submitted, that, there was nothing to stop execution taking place even though it was imminent. Summons was served on the applicants on 8 October 2014 and appearance to defend was filed on 20 October 2014 - out of the prescribed time period. The applicants failed to serve the same on the first respondent within the prescribed period contrary to the Rules of this court.

When the notice of entry of appearance to defend was finally served, on 2 December 2014, by that date, default judgment had been applied for on 3 November 2014.

It was denied that the default judgement against the applicants was 'snatched' or that the judgment was erroneously sought or granted on 16 December 2014.

It was submitted, that, the applicants do not have a bona fide defence to the main claim set out in the summons, and that, consequently, the application for rescission of judgment did not have prospects of success.

According to the learned authors, HERBSTEIN & Van WINSEN, The Practice of the High Courts of South Africa, it is an exercise of inherent jurisdiction to prevent abuse of process which reposes in superior courts to stay proceedings.

The principles that govern an application for stay of execution were set out in the case of Mupini v Makoni 1993 (1) ZLR 80 (SC) as follows:

“Execution of a judgment is a process of the court, and, the court has an inherent power to control its own processes and procedures, subject to such Rules as are in force. In the exercise of a wide discretion, the court may set aside or suspend a writ of execution or cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay of execution to satisfy the court that special circumstances exist. Such special circumstances can be more readily found where the judgment is for ejectment or the transfer of property, because the carrying into operation of the judgment could make restitution of the original position difficult.”

The court went on to say that:

“The general rule is that a party who has obtained an order against another is entitled to execute upon it. Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for, in such instances, the carrying of it into operation could render the restitution of the original position difficult: see Cohen v Cohen (1) 1979 ZLR 184 at 187C; Santam Ins Co Ltd v Paget (2) 1981 ZLR 132 (G) at 134G-135B; Chibanda v King 1983 (1) ZLR 116 (H) at 119C-H; Strime v Strime 1983 (4) SA 850 (C) at 852A.”

In Santam Ins Co. Ltd v Paget (2) 1981 ZLR 132 (G) the court stated that:

“A person who seeks a stay of execution of a judgment must satisfy the court, that, if the judgment be not stayed, injustice will be caused to him or that he may suffer irreparable harm or prejudice; this onus is not easy to discharge where the judgment it is sought to suspend sounds in money; and, in such cases, execution will, as a general rule, be allowed to issue.”

In the case of Geffen v Strand Motors (Private) Limited 1962 (3) SA 62 SR…, it was held that:

“I have already stressed, that, as a general rule, execution will be allowed to issue where the judgment is for the payment of money; but, the court will, of course, exercise its discretion according to the circumstances of each particular case.”

From the above cases, the following principles emerge:

1. This court has jurisdiction to stay execution where real and substantial justice so demands.

2. The onus rests on the party seeking a stay of execution to satisfy the court that special circumstances exist.

3. Where the judgment sounds in money, and restitution is possible, in those circumstances, special circumstances may not exist.

4. Generally, where the judgment is for the payment of money, execution will be allowed.

5. Where irreparable harm or prejudice would result, execution may not be allowed.

This court must determine whether it would be unjust, in the circumstances of this case, to refuse to order a stay of execution of a judgment sounding in money, pending determination of an application for rescission of default judgment.

In doing so, the court must decide whether granting a stay of execution will be in the interest of real and substantial justice, and whether the applicants have discharged the onus of showing that such special circumstances exist.

In general, courts are guided by the principle, that, where the judgment is for the payment of money, execution should be allowed.

But, in the circumstances of this case, where the judgment was one given in default, and the issues raised in defence by the applicants not taken into consideration, should this general rule be allowed to stand?

Is it not a special circumstance such as one that would lead to irreparable harm or prejudice?

The court's discretion depends on the circumstances.

A consideration of the prospects of success of the application for rescission of judgment might assist in shedding some light on the question of whether the refusal to stay execution would fly in the face of real and substantial justice.

An application for rescission of judgment is premised on the provisions of Order 9 Rule 63 of the rules of this court which provides that:

“63. Court may set aside judgment given in default

(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of subrule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned….,.”

It was submitted, on behalf of the applicants, that, they became aware of the judgment on the date of the attachment of their property, 29 June 2015. A day later, this application was filed.

This would appear to satisfy the time limit prescribed by Order 9 Rule 63(1) of the High Court Rules of one month within the acquisition of knowledge of the judgment.

However, a consideration of the letter dated 3 December 2014, addressed to the applicant's legal practitioners of record by the first respondent's legal practitioners of record at the relevant time, which appears at record pp11-12 of the opposing papers, might open this up to some doubt.

The letter suggests, that, as at 3 December 2014, the applicants knew that default judgment had been applied for.

We can surmise from the contents of the letter that the applicants ought to have known, that, without an application to uplift the automatic bar on their part, judgment would be entered against them as prayed for. It has been said that;

“…, where the judgment sought to be rescinded was given in default; no question of a final judgment having been given on the merits can arise. Hence, no considerations of functus officio or res judicata apply to thwart an application for rescission. In such a case, even at common law, it is recognised that the court has a very broad discretion to rescind (on sufficient cause shown) a judgment given by default.”

See Harare Sports Club & Anor v United Bottlers Limited 2000 (1) ZLR 264.

The court found, that, even where judgment is given in the presence of the parties, and where the merits of the cause are considered, the court still retains a power to rescind that judgment.

The power, in this, case would be more sparingly exercised since final judgment would be res judicata as between the parties and would appear to be a complete discharge of the court's office.

The discretion of the court, in this case, is accordingly broader since judgment was given in default.

Is this a special circumstance that the court can rely on and not follow the general rule, that, where restitution is possible, execution ought not to be stayed? Is it good and sufficient cause on which to rescind judgment?

In considering whether good and sufficient cause exists, the basis of setting aside default judgment, the court was not satisfied by the averment made on behalf of the applicants, that, they only became aware of the default judgement on the date of attachment of their goods.

No explanation was given as to why the letter of 3 December 2014 was not replied to or acted upon. No explanation was given as to why no application for the upliftment of the automatic bar was made.

'Good and sufficient cause' has been interpreted to mean:

“…, a wide discretion, and it is not possible to provide an exhaustive definition of what constitutes sufficient cause to justify the grant of indulgence. Even where there has been wilful default, there may still sometimes be good and sufficient cause for granting rescission. The good and sufficient cause, for instance, might arise from the motive behind the default.”

See Deweras Farm (Private) Limited & Ors v Zimbabwe Banking Corporation (Private) Limited 1988 (1) ZLR 368 (SC).

The court in Deweras Farm (Private) Limited & Ors v Zimbabwe Banking Corporation (Private) Limited 1988 (1) ZLR 368 (SC) relied on the dicta in the case of Cairns A Executors v Gaarn 1912 AD 181…, where that court said:

“It would be quite impossible to frame an exhaustive definition of what would constitute sufficient cause to justify the grant of indulgence. Any attempt to do so would merely hamper the exercise of a discretion which the Rules have purposely made very extensive and which it is highly desirable not to abridge.”

McNALLY JA said, that, in Deweras Farm (Private) Limited & Ors v Zimbabwe Banking Corporation (Private) Limited 1988 (1) ZLR 368 (SC), had the applicants put forward an authoritative affidavit explaining detailed errors in calculation by the Bank, accompanied by a fresh calculation showing the “correct” amount due; and had they then consented to judgment in the admitted amount and asked simply that the issue of the disputed amount go to trial, he, like the learned trial judge 'would have been hard put to refuse their request, despite what might well be described as their wilful default'.

It is my considered view, that, the facts of this case are on all fours with the facts of the matter under consideration, and that the conclusion reached is equally applicable to this case.

It is highly improbable that the application for rescission of judgment will succeed.

In light of its poor prospects of success, this court may not exercise its discretion and stay execution.

“Real and substantial' justice will not be offended if an application for stay of execution is dismissed in circumstances where the judgment sounds in money because the first respondent can always restitute them.

The case law suggests, that, where the default was occasioned through carelessness or fault on the part of the applicants, they are precluded from crying wolf if they do not present sufficient evidence on which the court can rely to conclude that there was an error in calculating the amount due.

The applicants could have attached an accountant's affidavit to their application for rescission of default judgment as suggested by the Supreme Court in Deweras Farm (Private) Limited & Ors v Zimbabwe Banking Corporation (Private) Limited 1988 (1) ZLR 368 (SC) supra.

They chose not to, and made bald averments of errors in calculation. This rendered their application an exercise in futility and an abuse of this court's process, which the court took a dim view of and made an appropriate order as to costs.

The applicants do not deny total liability. They admit to being given an overdraft by the first respondent.

In order to justify an order for stay of execution, the applicants ought to have attached a schedule in which they show the capital amount and the interest calculations that they accede to. They ought to have shown, on a prima facie basis, evidence that the first respondent had inflated its claim, and charged usurious interest.

They ought to have tendered the amount that they admit to owing. Then, the court would have been at liberty to determine whether special circumstances exist.

As it is, the paucity or evidence in the papers filed of record is a constraint which militates against the exercise of discretion in the applicants favor. The probabilities are balanced in favour of the first respondent. There is insufficient cause to justify the indulgence of stay of execution. The applicants have failed to discharge the onus on them to show that special circumstances exist.

In the result, and for the reasons stated above, the urgent chamber application to stop execution and to bar the respondents from proceeding with removal and execution of the applicants property in terms of the default judgment in HC8835/14 be and is hereby dismissed with costs on a legal practitioner and client scale.

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

At the hearing of this matter, I granted the application for registration of an arbitral award with costs on an ordinary scale.

I gave brief reasons for the judgment, being of the view, that, the law that governs the question of whether the noting of an appeal against an arbitral award suspends the operation of the award is settled and that there was no evidence that the respondent could successfully rely on to challenge the registration applied for.

I have now been asked to provide detailed reasons for judgment. These are they.

The applicant sought the registration of a Labour arbitral award handed down in compulsory arbitration proceedings on 23 November 2012, by Ms E. Maganyani.

In terms of section 98(14) and (15) of the Labour Act, any party to whom an arbitral award relates may submit it for registration to a court of corresponding monetary jurisdiction.

The applicant was awarded various sums of money totalling US$19,125 plus interest thereon at the prescribed sum, calculated from the date of the arbitral award to the date of payment in full.

In his founding affidavit, he averred, that, as at the date of his application for registration of the arbitral award, 7 December 2012, the respondent had failed, refused or neglected to pay this sum. Registration of the arbitral award was sought for purposes of enforcement. The application was served on the respondent on 10 December 2012.

The respondent filed a notice of opposition on 19 December 2012. The grounds of opposition were;

(i) Firstly, that the applicant was never its employee, but a mere contractor;

(ii) Secondly, that there was need for oral evidence from both parties;

(iii) Thirdly, that no quantification was done by both parties.

(iv) The last reason for opposing the registration of the arbitral award was that the respondent had since appealed to the Labour Court against the decision of the arbitrator, on points of law.

The details of the appeal were attached to the notice of opposition.

The applicant filed his answering affidavit on 16 April 2013. He attached copies of both parties written submissions which had been submitted to the arbitrator, to counter the allegation by the respondent that it had been denied an opportunity to be heard by the arbitrator. He denied having been a contract worker, and reiterated that he fitted the statutory definition of employee, as set out in the Labour Act.

He averred, that, the respondent had deliberately chosen not to attend the date of the hearing by the arbitrator, despite being notified of it. He reiterated that the arbitrator was asked to determine the matter on the basis of the papers filed of record when the respondent failed to respond to the notice of set down of the hearing.

He alleged, that, the respondent's appeal to the Labour Court was fatally defective, being filed out of time, and alleged that the opposition to the registration of the arbitral award was an attempt by the respondent to frustrate him and delay in paying him his dues.

At the hearing of the matter, both parties abided by their heads of argument and had nothing of value to add.

The applicant submitted, that, the issue that the court ought to determine was whether the arbitral award, made on 23 November 2012, can be registered as an order of this court for purposes of enforcement.

I agree with that submission, and note, that, the issue is purely one of law....,.

In regards to the merits of the matter, the applicant contended, that, an arbitral award which has not been set aside, or in respect of which execution has not been stayed, must be registered as a matter of course.

He relied on the case of Greenland v Zimbabwe Community Health International Research Project HH93-13 as authority for that proposition where the court stated that…,:

“Where an award is not stayed or suspended, in terms of section 92E(3) of the Labour Act, the court will, as a matter of principle, register the award unless there are grounds, as provided for in Article 36 of the Model Law contained in the Arbitration Act [Chapter 7:15].

Article 36 of the Model Law, a schedule to the Arbitration Act [Cap 7;15] provides the grounds on which challenges to the registration of arbitral awards may be mounted.

Article 35 provides that arbitral awards shall be recognized as binding and shall be enforced subject to its provisions and to the provisions of Article 36.”

The respondent challenged the registration of the arbitral award on the basis that it was denied an opportunity to be heard, which falls under Article 36(1)(a)(ii) of the Model Law: that is:

“(1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only at the request of the party against whom it is invoked, if that party furnishes to the court, where recognition or enforcement is sought, proof that —

(i)…,.

(ii) The party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or”…,.

And/or Article 36(3) of the Model Law which provides that:

“(3) For the avoidance of doubt, and without limiting the generality of paragraph (1)(b)(ii) of this article, it is declared, that, the recognition or enforcement of an award would be contrary to the public policy of Zimbabwe if the making of the award was induced or effected by fraud or corruption; or a breach of the rules of natural justice occurred in connection with the making of the award.”

In my view, it was open to the respondent to argue, that, the registration of the arbitral award was contrary to public policy because there was a breach in the rules of natural justice in the making of the award: see Article 36(3)(b) of the Model Law.

The respondent, unfortunately, did not make specific reference to Article 36.

The respondent contended, that, it was not afforded an opportunity to present oral evidence on the quantification of the entitlements awarded, in clear breach of the rules of natural justice, rendering the decision making process unprocedural.

This implies, that, the respondent was invoking the provisions of Article 36(1)(a)(ii) of the Model Law.

It is trite, that, the onus of proving that inadequate notice of the hearing was not given is on the respondent.

The respondent is required to furnish the court with proof that it was not given adequate notice of the set down of the arbitration proceedings, resulting in an inability to present its case. The onus was on the respondent to furnish the court with proof, that, the arbitrator breached the rules of natural justice.

In my view, the respondent failed to provide any such proof in its papers filed of record.

There was no averment made in the opposing affidavit, that, the arbitrator proceeded without affording the respondent an opportunity to be heard.

In paragraph 3, Leipeng Wang, the deponent to the opposing affidavit, states that:

“The arbitrator erred in her finding; the quantification was not done by both parties, besides, the fact that there is need for viva voce evidence from both sides…,.”

This is the only averment made which remotely resembles the allegation that the arbitrator proceeded contrary to the rules of natural justice.

In my view, this bald assertion is insufficient and does not even amount to prima facie evidence that the rules of natural justice were breached.

No attempt is made to explain why the arbitrator proceeded on the basis of the parties written submissions, or to refute the allegation that the respondent failed to attend two scheduled hearings before the arbitrator and did not provide any explanation as to why they failed to attend.

The applicant filed a Statement of Claim, a copy of which is attached to the papers filed of record, dated October 2011, and which contains a breakdown of its claim. On 12 October 2011, the respondent filed written submissions with the arbitrator. The applicant, then the claimant, filed his written submissions in August 2012. The applicant wrote a letter to the arbitrator, dated 11 October 2012, confirming that the arbitration had been determined on the 28th of September 2012, in default of appearance by the respondent.

Paragraph 2 of that letter stated that:

“I confirm that you have informed us that respondent's legal practitioner wrote a letter on the same day of hearing requesting for a postponement, but, it was received by yourself after the day of the hearing. I therefore request you, honorable, that this matter be determined on written submissions. This request is made in view of the fact, that, respondent has made requests to postpone the matter twice now and to avoid these postponements which I view as delaying tactics, if you may give them time to file their written submissions….,.”

The letter was copied to the respondent's legal practitioners of record, and served on them on 11 October 2012.

The applicant wrote to the respondent and attached a copy of the arbitral award on 27 November 2012.

The respondent appealed against the arbitral award on 15 January 2013.

The dilemma that arises in this case is that the respondent did not place any evidence before the court which it could rely on to determine the veracity of its contention that it was denied an opportunity to be heard.

The applicant averred, that, the respondent deliberately failed to attend two hearings set down before the arbitrator, resulting in the applicant and the arbitrator agreeing that the matter simply be disposed of on the basis of the papers filed of record.

This averment, unfortunately, was not denied by the respondent in its opposing papers.

The respondent was not heard orally, but, it had placed its written submissions before the arbitrator. The applicant was also not heard, orally, on the merits of the matter.

Article 19 of the Model Law provides that:

“ARTICLE 19 Determination of Rules of Procedure

(1) Subject to the provisions of this Model Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Model Law, conduct the arbitration in such manner as it considers appropriate.

The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality, and weight of any evidence.”

Based on the provisions of Article 19 of the Model Law, I find, that, it was entirely proper and permissible for the arbitrator and the applicant to agree on the procedure to be followed.

The arbitrator was even at liberty to conduct the arbitration in such manner as it considered appropriate if the parties failed to agree on which procedure could be used (Article 19(2)).

The power conferred on the tribunal included the power to: “determine the admissibility, relevance, materiality, and weight of any evidence.”

There is nothing in the papers filed of record which suggests that the arbitrator did not have these powers.

A reading of the arbitral award will show, that, the arbitration proceeded by way of written submissions. The reason why this happened is clearly endorsed on page 2 thereof. The basis of the claim is clearly set out, as well as details of the entitlements and the calculation of dues. The arbitrator considered the question of whether the applicant was an employee of the respondent, and, if so, the extent of what he was entitled to.

If the arbitrator erred in any way in these findings and calculations, the Labour Court will determine that on appeal.

The High Court does not concern itself with the merits or otherwise of the appeal.

It will register the arbitration award unless a defense, in terms of Articles 35 and 36 of the Model Law is pleaded and proved, or the arbitral award is suspended by the Labour Court, or stay of execution has been granted by the Labour Court.

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).

The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.

According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.

What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.

What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.

The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.

With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.

Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.

To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.

Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.

Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.

An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.

Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.

The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:

“Paragraph 7

For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”

The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.

The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.

In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.

However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.

Spoliation per se is denied.

The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.

They too, essentially, deny despoiling Mbada Diamonds [Private] Limited....,.

I turn now to the merits.

The merits against the backdrop of facts I have already outlined, the bulk of counsel for the first respondent's submission were on the competing rights to the ore stemming from the non-renewal of the mining grants.

This, indeed, was of no relevance to an application for spoliation since its purpose is: “not the protection and vindication of rights in general, but, rather, the restoration of the status quo ante where the spoliatus has been unlawfully deprived of a thing, a movable or immovable, that he had been in possession or quasi-possession of:” see Zulu v Minister of Works, KwaZulu and Others 1992 (1) SA 181 (T).

Key to the remedy is the need to stop and reverse self-help in the resolution of disputes between parties.

Furthermore, as explained in Yeko v Qana 1973 (4) SA 735 (A)…, drawing in Voet 41.2.16:

“…, the injustice of the possession of the person despoiled is irrelevant as he is entitled to a spoliation order even if he is a thief or a robber. The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliatus has to prove is possession of the kind which warrants protection of the remedy and that he was unlawfully ousted.”

An applicant in spoliation proceedings has to establish that they were in peaceful and undisturbed possession of the thing in question at the time they were deprived of possession.

As stated in the case of Gondo NO v Gondo 2001 (1) ZLR 376…,:

“In order to obtain a spoliation order, an applicant needs to prove no more than that -

(a) He was, at the time of the act of spoliation, in peaceful and undisturbed possession of the property; and

(b) He was forcibly or wrongfully, and against his consent, deprived of possession.”

Therefore, what is of relevance here is whether an act of spoliation has taken place entitling the return of possessory right to Mbada Diamonds [Private] Limited.

Fundamentally, also as observed in the case of Chikodzi & Anor v Mashonaland Tobacco (Pvt) Limited & Anor HH392-15, self help itself materially runs against the grain of rule of law as articulated in section 3(1)(a) and (b) of the Constitution of Zimbabwe Amendment Act (No.20) Act 2013 which states in section 3 in its founding values and principles that:

“Zimbabwe is founded on respect of the following values and principles –

(a) Supremacy of the Constitution.

(b) The rule of law.”

Self-help is inimical to a society in which the rule of law prevails as observed in the case of Chief Lesapo v Northwest Agricultural Bank 2000 (1) SA 409.

Notably, this dispute pits a joint venture entity with its foreign investor against a State-created entity.

It is as such important to bear in mind the broader picture.

Among the multitude of factors that have a bearing on investment anywhere in the world is observance of the rule of law in the settlement of disputes. It matters not that one of the parties feels contractually short-changed or thereby entitled to its actions. The rule of law ought to be the guiding principle and it is the duty of the courts to fearlessly foster dispute resolution through the proper channels at all times.

Disregard for the rule of law ultimately does nothing towards fostering a climate of trust for productive investment.

Much of the focus by counsel for the first respondent addressed the question of rights.

The dispute, in so far as this aspect is concerned, is under appeal.

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

The applicant approached this court seeking rescission of default judgment entered against him in Case No. HC9544/15 on 8 March 2016.

The background to the matter is that the applicant, as plaintiff, sued the respondent, then the defendant, in the Magistrates Court. The particulars of claim were not clear and concise but they referred to some breach of contract by the respondent; a delictual claim based on the mental suffering that the applicant suffered as a result of the breach of contract.

The magistrate granted absolution from the instance at the close of the applicant, then the plaintiff's case.

The applicant appealed against the decision, in CIV “A” 457/14.

On the day of the hearing, the appeal was dismissed because the applicant defaulted by not appearing.

The applicant, in Case No. HC9542/15, applied for rescission of the default judgment.

Again, at the hearing of Case No. HC9542/15 the applicant was in default and the case was dismissed.

The applicant now seeks rescission of the judgment in terms of Rule 63 of the High Court Rules 1971 (Rules).

In terms of Rule 63, the court may set aside a judgment if there is good and sufficient cause to do so.

Good and sufficient cause has been defined, in a number of jurisdictions, as:

(i) A reasonable explanation for the default;

(ii) Where there is a bona fide defence to the main claim; and

(iii) Where the application for rescission is itself bona fide.

See Chivhayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007 (2) 89 (S).

The applicant avers, that, the matter was set down in Court “M”. On the day of hearing, the matters were moved to Court “O”. By the time he realized that the matters had been moved, and by the time he managed to get to Court “O” his matter had been dismissed.

The explanation given by the applicant has not been controverted. It sounds probable. I will take that that is what transpired. The detail that he gives regarding the notice that was affixed at the courtroom door has some ring of truth.

The next issue is whether the applicant has a bona fide claim in HC9542/15.

He is seeking rescission of the judgment through which his appeal was dismissed.

The proper procedure would have been for the applicant to apply for reinstatement of the appeal. The applicant has adopted the wrong procedure.

His application, thus, has no prospects of success and it is likely to be dismissed.

In the result, the applicant has not satisfied the requirement that he show good and sufficient cause to have the default judgment rescinded....,.

1. The application is dismissed.

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details....,.

(c) The Relief Sought

The applicant's draft order was couched thus:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief:

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

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Law Portal
Zimbabwe

Jurisdiction re: Judicial Deference iro Assessment of Prospects on Appeal, Review or Main Proceedings

SSC99-21 : JAISON ZHUWAKI vs THE STATE
Ruled By: CHITAKUNYE AJA

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

SSC111-21 : MUNYARADZI KEREKE vs THE STATE and FRANCIS MARAMWIDZE
Ruled By: MWAYERA JA

SC112-21 : OLIVER BWITITI vs STANLEY FARMS (PRIVATE) (LIMITED) and OTHERS
Ruled By: MWAYERA JA

SSC117-21 : TAKUNDA MADAMOMBE vs THE STATE
Ruled By: BHUNU JA

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD
Ruled By: CHIKOWERO J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED
Ruled By: BHUNU JA

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

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

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

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

HB60-15 : JABULANI NCUBE vs INNOCENT NYATHI
Ruled By: MOYO J

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

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

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD
Ruled By: TSANGA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

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Law Portal Zimbabwe

Jurisdiction re: Judicial Deference iro Assessment of Prospects on Appeal, Review or Main Proceedings

SSC99-21 : JAISON ZHUWAKI vs THE STATE Ruled By: CHITAKUNYE AJA

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION Ruled By: GOWORA JA, PATEL JA and UCHENA JA

SSC111-21 : MUNYARADZI KEREKE vs THE STATE and FRANCIS MARAMWIDZE Ruled By: MWAYERA JA

SC112-21 : OLIVER BWITITI vs STANLEY FARMS (PRIVATE) (LIMITED) and OTHERS Ruled By: MWAYERA JA

SSC117-21 : TAKUNDA MADAMOMBE vs THE STATE Ruled By: BHUNU JA

View Appeal HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.) Ruled By: CHIRAWU-MUGOMBA J

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD Ruled By: CHIKOWERO J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT Ruled By: BHUNU JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS Ruled By: BHUNU JA

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED Ruled By: BHUNU JA

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

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT Ruled By: MAKONESE J

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O. Ruled By: MANGOTA J

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

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU Ruled By: GWAUNZA JA

HB60-15 : JABULANI NCUBE vs INNOCENT NYATHI Ruled By: MOYO J

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

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

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR Ruled By: MATHONSI J

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD Ruled By: TSANGA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O. Ruled By: CHIGUMBA J

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD Ruled By: TSANGA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC Ruled By: MAKONI J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL Ruled By: MAFUSIRE J

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Law Portal
Zimbabwe

SSC99-21 : JAISON ZHUWAKI vs THE STATE
Ruled By: CHITAKUNYE AJA

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

SSC111-21 : MUNYARADZI KEREKE vs THE STATE and FRANCIS MARAMWIDZE
Ruled By: MWAYERA JA

SC112-21 : OLIVER BWITITI vs STANLEY FARMS (PRIVATE) (LIMITED) and OTHERS
Ruled By: MWAYERA JA

SSC117-21 : TAKUNDA MADAMOMBE vs THE STATE
Ruled By: BHUNU JA

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD
Ruled By: CHIKOWERO J

SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED
Ruled By: BHUNU JA

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

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

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

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

HB60-15 : JABULANI NCUBE vs INNOCENT NYATHI
Ruled By: MOYO J

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

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

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HH48-12 : ENOCK GOVHA vs ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE and ANOR
Ruled By: MATHONSI J

HH494-13 : PATRICIA MAPINI vs OMNI AFRICA (PVT) LTD
Ruled By: TSANGA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J