Locus Standi re: Factual or Evidential Averments or Pleadings Competently Available to Another Party

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

The two respondents…, sought to oppose the application on the basis that the contract of sale has been cancelled…,. It is contended, on behalf of both respondents, both in the opposing affidavits and in the supplementary heads of argument requested by myself, that not only had the City of Harare cancelled the Agreement of Sale, it had commenced ...

The two respondents…, sought to oppose the application on the basis that the contract of sale has been cancelled…,.

It is contended, on behalf of both respondents, both in the opposing affidavits and in the supplementary heads of argument requested by myself, that not only had the City of Harare cancelled the Agreement of Sale, it had commenced the process of re-transfer in terms of clause 12 of the Agreement of Sale. Both make reference to two letters allegedly sent to Agro Chem by the City of Harare; the letters are dated 26 February and 20 June 2008 respectively….,.

I turn now to consider the opposition mounted by Gomo against the claim for eviction.

It seems to me that the strength of his defence to the claim is wholly dependant on how successful the local authority is in defending its own position in this dispute. The basis of the defence was that the agreement had been cancelled and I have found that there was no cancellation as by the time the local authority sought to cancel the agreement transfer had been effected the result of which was to vest dominium in the Stand in Agro Chem.

It was contended, on behalf of Gomo, that an aggrieved party to a contract of sale has the option of not only cancelling an agreement of sale but also claim cancellation and restitution of what he has paid over or transferred under the contract.

In casu, cancellation was communicated more than twelve years after default occurred and there has been no effort on the part of the seller to claim re-transfer in the Stand. Apart from an excerpt from KERR, I was not referred to any authority to bolster the contention that after the transfer of real rights to it, Agro Chem could be compelled to re-transfer the Stand on the basis of a breach which occurred prior to the registration of real rights in its name.

In the supplementary heads of argument filed on his behalf, Gomo contends that the reversal of transfer was in terms of clause 12(a) of the Agreement of Sale between Agro Chem and City of Harare.

Unfortunately for Gomo there has been no process filed to have the transfer set aside and Agro Chem therefore remains the registered owner of the Stand.

It is a correct statement of the law that a seller has an option to cancel and to claim restitution of the merx, even where there has been delivery. The question I posed to counsel for the first respondent was whether in fact a seller, after having transferred land and authorized its registration in the name of the purchaser can cancel the contract and obtain re-transfer. I have not been pointed to any authorities on the issue in point. The only authorities I have had occasion to read are those where either movables were the subject of the sale, or, if an immovable was the subject matter, then cancellation would be before transfer of rights to the purchaser.

In this regard, I have been invited to look at the conditions of the agreement by Gomo, which conditions he contends were not performed by Agro Chem. It was contended, further, that the court in casu could not ignore the Agreement of Sale as it recorded the intention of the parties vis-à-vis the transfer. It is further contended that the election to claim rescission of a contract and the return of the thing sold is available to a seller where the contract contains a clause (a lex commissoria) providing for rescission in the circumstances in question.

Indeed, the agreement which gave rise to this application does contain a clause for rescission, but the local authority, apart from the letters I have mentioned above, has not sought to have the sale set aside and the property re-transferred to itself.

The arguments being presented by Gomo would be more properly and appropriately made if they were being presented on behalf of the local authority. As he was not a party to the agreement I cannot accept that Gomo has even a modicum of standing to make submissions in relation to the dilatoriness on the part of Agro Chem in the performance of its obligations under the agreement.

I also find that the suggestion that the court look at the intention of the parties to the contract is ill-conceived. A party who was not privy to a contract which is the subject matter of a dispute cannot make submissions in relation to the intention of the parties to the contract with any conviction. Any suggestion of what the parties thereto may have intended can, at best, be described as conjecture. Only the parties to the contract can speak to the terms and conditions thereof and whether or not such terms accord with the intentions of the parties at the time the contract was concluded.

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

These are twelve cases, which were consolidated into two matters, which were heard at the same time.

For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita Maseko.

The other matter involved what may be called the National Housing Fund (“NHF”) houses ((seven (7) defendants under HC2225/08). The seven defendants being Loida Nyathi, Everson Ndebele, Collen Ndebele, Phindile Ncube, Sihlobo Sibanda, Shadreck Ndlovu and Stephen Ndlovu.

The trial lasted twelve days, which is understandable, considering that there were two witnesses for the plaintiff and twelve (12) witnesses for the defendants i.e. all the defendants.

Two of the defendants had died by the time the trial commenced, and they were substituted by the executrix of their estates.

There was a bundle of documents with slightly over four hundred (400) pages as well as some more documents which were later introduced during the course of the trial. However, a closer analysis will show that the issues are fairly simple, and are similar in the seven National Housing Fund (NHF) houses and the five ZimSun houses.

Basically, it boils down to this:

(a) Is the plaintiff the owner of the twelve houses in question, or are the defendants the owners?

(b) If the plaintiff is the owner, then the plaintiff is entitled to an order for:-

(i) Evicting the defendants.

(ii) Damages.

(iii) Costs of suit.

(c) If the defendants are the owners, then they are entitled to transfer of these houses into their names with an order for costs against the plaintiff.

In essence, the defendants have to prove that there were valid contracts of purchase in respect of each of the houses in dispute. The houses concerned are the following:

Loida Nyathi - House 4251
Everson Ndebele - House 4255
Collen Ndebele - House 4247
Phindile Ncube - House 4242
Sihlobo Sibanda - House 4246
Shadreck Ndlovu - House 4241
Stephen Mpofu - House 4244
Alice Ndlovu - House 4403
Sivumo Ndlovu - House 4401
Smolita Maseko - House 4408
Kambashu Zex Raura - House 4407
Fred Khumalo - House 4400

All these properties are at Chinotimba, Victoria Falls.

Cut to the bone, in all instances, the plaintiff claims that these are pool houses for use by plaintiff employees. The plaintiff contends that the defendants were given these pool houses by virtue of their employment with the plaintiff. It further being contended that upon termination of such employment, each individual defendant will cease to occupy the property in issue.

This position does not apply to one of the defendants, Stephen Mpofu, who was never employed by the plaintiff. His case is different but the bottom line is that he was granted occupation through a lease.

Of the twelve defendants, only two, namely, Sihlobo Sibanda and Smolita Maseko are still in the employ of the plaintiff.

As alluded to above, the defendants' counter claim is for an order directing the plaintiff to take all necessary steps to transfer the various stands to each defendant on the basis that the defendants purchased the Stands on a rent-to-buy scheme.

This is denied by the plaintiff.

It is beyond dispute that these properties in issue are registered in the name of the plaintiff. The plaintiff is the registered owner of these twelve Stands. This point is admitted in paragraph 2.3 of each of the defendants' plea under HC2225/08 and paragraph 2.5 in each defendants' plea under HC2224/08.

There are documents from the Ministry of Local Government (“Ministry”) dated 20 July 2000 (pages 45 and 55 of the bundle of documents) which evince the transfer from the Ministry to the plaintiff.

This creates a problem for the defendants who contend the Stands still belong to the Ministry.

They, however, did not take any legal action against the Ministry to prevent the transfer of the Stands from the Ministry to the plaintiff. Be that as it may, I propose to consider the evidence adduced by the parties in turn.

Phillip Ndlovu

He testified on behalf of the plaintiff. He evinced that he has been the Chamber Secretary of the plaintiff since 2006. Whilst he was not employed by the plaintiff in the 1980s or 1990–1992, when most of the events occurred, from the official records available to him, and from his own investigations, the plaintiff was the legitimate owner of the houses in dispute.

He said that the defendants obtained the houses in question from the plaintiff, because of their employment with the plaintiff or because they were quasi-employees of the plaintiff such as Government teachers working at the plaintiff's schools.

In the case of Stephen Mpofu, he obtained the house because the plaintiff had previously made available accommodation to him. It is his testimony that there was a shortage of houses in Victoria Falls during the 1980s, 1990s and to date. This is evinced by documents like the minute from the parent Ministry dated 15 September 1997 produced as evidence. There are various Council deliberations and resolutions captured in the minutes filed of record which confirm the shortage. Such deliberations and resolutions centered around the necessity to provide the plaintiff's employees with accommodation.

There is a memorandum which goes further to explain that some employees were living in toilets on account of the shortage of houses. The National Housing Policy Frameworks for Zimbabwe: A Review of the Policies and Strategies, confirms the shortage.

The defendants also confirm the shortage and concede that they had to wait for some years before they were allocated the houses.

He said there must have been a connection between the defendants' employment with the plaintiff and the allocation of the houses.

This is an independent witness who spoke of matters which related to his professional responsibilities. He was expounding to the court what he knew and observed from the official records. He has no personal interest to pursue and no hidden agenda.

This is in stark contrast to the defendants who had an obvious massive financial interest in the outcome of this case, namely, to retain the houses which they had been informed, as early as 1993, were not theirs, but were in fact pool houses of the plaintiff.

This witness confirmed that all these disputed houses were registered in the name of the plaintiff. This is important as such registration is matter of substance and not form.

He explained that there were attempts to assist the plaintiff employees to acquire houses through CABS finance. These initiatives came to naught because they required the plaintiff to pay cash deposits on behalf of its employees. As the plaintiff is a creature of the Urban Councils Act, section 148 of the Act made such initiatives impossible.

The plaintiff could only act as a guarantor to the employees and not pay cash deposits on their behalf. In such an event, the plaintiff would still require ministerial approval. There is no record of such approval.

He also significantly testified that none of the defendants has written agreement evincing that they have become owners of these houses.

According to the plaintiff's record, there is nothing that shows that ownership of the houses was passed to the defendants. The defendants paid security deposits and monthly rentals and allied charges but not purchase prices for the houses.

The records clearly show that these are pool houses for use by those in the plaintiff's employ.

All the defendants were given notice to vacate these pool houses after they were allocated residential Stands of their own and they refused to do so. They have defiantly remained in occupation of the plaintiff's houses even when most of them have left the plaintiff's employ save for the two defendants still in the plaintiff's employ. They have not exhibited any contract of sale to the plaintiff.

In brief, they have not shown the legal basis upon which they claim the plaintiff sold them the houses. There is no record produced by the defendants that they acquired the houses on rent-to-buy contracts.

He also indicated that other plaintiff employees did not claim these pool houses and moved out.

This witness was subjected to lengthy, tactful, and determined cross-examination. At the end of the day I find that he is a credible witness. He made several concessions favourable to the defendants' case. He is a truthful witness.

Thembinkosi Khumalo

He has been employed by the plaintiff for nineteen (19) years. He is the acting Town Treasurer for the plaintiff. He started in the plaintiff's employ as a Senior Accounting Officer in the Treasury Department.

He mainly corroborated what the first witness said in a material way.

As far as the ZimSun houses are concerned, he said, in 1992, ZimSun had built 160 houses for its staff. These houses were built at the time when the plaintiff was facing acute shortage of accommodation for its staff. The plaintiff approached ZimSun who offered them twelve (12) houses including the five (5) subject of these proceedings as stated above. The plaintiff paid for these houses using Stands on which ZimSun built their staff houses plus an additional amount of Z$68,000.

After acquiring these ZimSun houses, they put in the plaintiff staff and quasi-plaintiff staff.

He confirmed that there were initiatives to sell these houses to staff through CABS, but, as stated by the previous witness, all these came to naught on account of the low salaries of staff and statutory limitations as the plaintiff is a local government.

He said some of the defendants stopped paying rentals in 2007 whereas two, who are still plaintiff employees, have continued paying. These two defendants, who are still plaintiff employees, are Smolita Maseko and Sihlobo Sibanda.

He evinced that if council property is being sold, Treasury Department would be served with an Agreement of Sale. The Agreement of Sale must state the tenure of the loan (if it is not a cash sale), the instalment payable by the beneficiary, and the interest on the loan amount.

He categorically stated that none of the defendants had any Agreement of Sale with the plaintiff.

He said that the Z$500 paid by each defendant was Z$250 for rent and Z$250 for security deposit (good tenancy deposit). He also said when the plaintiff's employees wanted to carry out repairs in these houses, such repairs must first be certified as necessary by the Town Engineer. This is a pre-condition of reimbursement of the tenant by the plaintiff.

As far as defendant Steven Mpofu is concerned, he was not employed by the plaintiff. He was employed by ZimSun. He was renting the plaintiff's guest house. They decided to accommodate him in one of the pool houses on a lease basis.

He was adamant that the plaintiff made a decision to allocate these houses to its employees to attract and retain them. The houses were, however, to remain as pool houses.

He further stated that when houses were allocated by the plaintiff to individuals, whether employees or not, the plaintiff ensured that there were documents which showed the various costs centres such as for the sewer, education levy, etc. This is reflected in receipts such as on pages 250, 251 and 356 of the bundle of documents. This was because the houses in question were being rented.

The defendants had rent cards where credits were entered when payments were made and the payments credited to the appropriate costs centres.

He said Treasury had agreements of sale (rent-to-buy) for other properties allocated to the defendants, but did not have that in respect of the twelve (12) houses in issue. What the defendants had, even on their own admissions, were rent cards. He said a rent card is self-evident and cannot be stretched to mean rent-to-buy.

As far as the letter written by a Mr Lucas M M Sibanda, the former Chief Executive Officer of the plaintiff, he said this individual was dismissed by the plaintiff on account of documented acts of misconduct. He said his letter of support of the defendants is untrustworthy and devious.

On the question of damages, he said rentals for the houses in question were US$150 per month at the lowest rate to US$200 per month for the more expensive ones. He said damages in the sum of US$150 per month in respect of each of the defendants would be appropriate.

This witness was extensively cross-examined by the defendants' counsel. I am satisfied that he gave his evidence well. I find that he is a credible witness. He is very familiar with the financial operations of the plaintiff, and, in particular, he is very familiar with the acquisition of the houses in issue and how the defendants ended up in occupation.

Coming to the defendants' case, I also propose to consider the evidence adduced in turn.

Phindile Ncube

He was employed by the plaintiff between 11 May 1987 and February 2009. He had joined the plaintiff as Revenue Clerk responsible for housing. In 1988 he was elevated to the position of Senior Housing Clerk responsible for the supervision of housing clerks and the computation of the home ownership scheme. He gave a detailed account of the Government Housing policy.

Most of the evidence is not relevant for the determination of the legal issues before me. I will only focus on the relevant part of the testimony.

In relation to the house in dispute, between him and the plaintiff, he says he placed his name on the Housing Waiting List as he was staying with his parents at the time at 3133 Chinotimba. He was allocated the disputed Stand number 4242 Chinotimba. After the allocation, he made improvements on the property as evidence that he considered that the plaintiff allocated the property to him on a rent-to-buy basis. Such improvements comprise of installing burglar bars, fencing of the property, and sharing of the walling costs with the neighbour.

He conceded that he has another property, being Stand 4222 Chinotimba allocated to him by the plaintiff. He said that he, like the other defendants, was sold Stand 4242 because he was on the waiting list. He, however, did not have a single document to prove the purported sale.

Despite the fact that he alleged that he was virtually running the Housing Department of the plaintiff at the relevant time, he could not produce any document to prove his claim. All he had is a rent card.

It is quite clear that the rent card is a tenant's card, not a card to prove ownership. Even his erstwhile legal practitioners conceded this fact on pages 94-95 of the bundle of documents.

He could not explain why he and the other defendants did not sue the Minister responsible for National Housing to transfer the houses in dispute to them, but adopted an attitude of supine indifference, when the said Minister transferred the said houses into the plaintiff's name.

He tried to suggest that during the early 1990s there were no rent-to-buy agreements, and that is why he and other defendants had no documents to support their version of events.

Unfortunately for him, the documents from pages 279 to 415 on the bundle of documents proved otherwise.

In pages 279–285 is a rent-to-buy entered into in 1994 in respect of Stand 5053 Chinotimba. On page 299, the sale agreement was entered into in 1997. His own Agreement of Sale, in respect of Stand 4222, supra, was entered into around 1994. He said that the document by Mr Sibindi, on page 76 of the bundle of documents, was the source of all the defendants' problems.

This is patently untrue because the document was authored in 2007 and yet, at least 14 years earlier, the plaintiff had already said that the houses in question were pool houses and belonged to it.

The plaintiff even has the support of the Workers' Committee in this regard.

This witness held himself out as an expert and the spokesperson for all the twelve defendants. He confidently described himself as a “local government practitioner”. He did this to try to speak with an authoritative voice that brooked no contradiction.

Regrettably, he failed dismally in this endeavour. He was an extremely poor witness. He was not credible as alluded to above. Further, he was a witness with an interest, not only in retaining Stand 4242 Chinotimba, but also because he had obviously misled the other defendants and given them the impression that he was the authoritative voice in respect of the twelve houses in question.

There was the difficulty in that as early as 1991, 1992 and 1993 onwards, the plaintiff had made it clear that the twelve in question belonged to the plaintiff and the plaintiff wanted them back. This is clear in the letters from legal practitioners and also minutes of the seven National Housing Fund houses.

He tried to assert that Central Government gave directives to Councils, such as the plaintiff and thus the plaintiff was obliged to obey these directives which had the force of law. In other words, the local authorities were only agents, or implementing arms of the Central Government.

This assertion was clearly flawed.

The witness was unable to point to any such legislation which made suggestions by Central Government law binding upon Council.

It is clear that the National Housing policies were guidelines. In fact, on page 208 of the bundle of documents, it is made clear that these were guidelines. In any event, the Central Government transferred these houses into the plaintiff's name.

The defendants did not challenge the said transfer before the court.

When he was cross-examined, and asked how it was that all twelve defendants had other Stands in breach of the Central Government policy which he appeared to champion so enthusiastically because it was convenient to him, he made a volte face and said that this policy on the prohibition against multiple ownership of houses in the high density suburbs, was relaxed by the plaintiff.

However, he was unable to provide documentary evidence of such relaxation of the policy. He was unable to do so because he was misleading this court.

Further, he was unable to give the agreed purchase price for the house in dispute. The purchase price is an essential element of the agreement of sale.

He tried to get around by stating that he expected to pay rentals for the house over thirty (30) years and after that the house would be his. He then changed and said that he had fully paid for the house in issue because of inflation.

He ran into great difficulty when he referred to the ZimSun houses, where, again, he tried in vain to hold himself out as an authority on these houses.

He said the purchase price of these houses was $35,000. This figure is not supported by any documentation.

He went on to say that these houses were supposed to be paid for over twenty-five (25) years. But, $35,000 divided by 25 years, then by twelve months to arrive at the monthly payments, gives a figure of $116,67 which is nowhere near the $25,977 purchase price referred to on page 9 of the bundle of documents.

To compound his already difficult situation, he then changed and said that initially the ZimSun houses were paid for by way of a deposit of $250, the monthly rentals of $250 for 25 years.

Simple mathematics shows that the purchase price at $250x12 months x 25 years =$75,000. This figure had no relation to what he was talking about.

He then said that the plaintiff decided to reduce the purchase price to $180.

Still $180x12 months x 25 years = $54,000. This is so because he said the deduction from employees' salaries to pay for the house should not exceed 27% of the employee's salary.

This again was not supported by any documentation.

He further explained that of the $180, $20 would be utilized for service charges and $160 towards the purchase price, still the figure would be almost double the purchase price stated above.

There was no explanation forthcoming from him when the policy to reduce the price from $250 to $180 monthly was effected.

All along, it was the defendants' case that in respect of the ZimSun houses, they had paid a deposit of $250 and monthly instalments of $250. They had paid the full purchase price for the houses in question.

This was their case in their pleadings and synopsis of evidence.

There is no mention in the pleadings of the change to $180 per months or $160 plus $20 service charges per month.

It is highly improbable that if the defendants' erstwhile legal practitioners had been given instructions, they would not have mentioned it in both the pleas and synopsis of evidence.

This was something which was crucial to their case, as it relates to the alleged purchase price.

The fact that this was never mentioned in the pleadings shows that this witness made it up.

These contradictions and changes simply demonstrate a desperate witness who could not tell the truth.

In any event, the issue of the alleged change in the monthly instalments was never put in cross-examination to Mr Khumalo. This shows that it is an after-thought by the witness.

The only inference to be drawn is that the witness was untruthful, and so to the other defendants who supported him in making this assertion....,.

Osina Nyathi testified on behalf of her late mother who was the original defendant. She tried as much as possible to give the impression that she knew how the house in question was allocated to her late mother. She sadly failed to do so....,.

Whereas Phindile Ncube wanted to be the spokesman in respect of all the twelve houses, Alice Ndlovu attempted to be the spokesperson for the defendants relating to the ZimSun houses....,.

She was generally an untruthful witness.

She tried to give the impression that she had no connection with Stand 5048 and that that Stand was her husband's. The application papers, on page 405 of the bundle of documents, clearly show that both her and her husband applied for Stand 5044 and correspondence was copied to both of them. She could not give a purchase price. She associated herself with the explanation given by Phindile Ncube in this regard.

She said a lot but failed to give a credible account of the alleged purchase of the Stand in dispute.

HH33-12 : BRIAN JUSTICE ENTERPRISES PL vs H.E.R. (PVT) LTD and NITSA OLYMPIOS and PARIS OLYMPIOS and CHRISTOS VENTURAS and REGISTRAR OF DEEDS
Ruled By: HUNGWE J

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

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

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

The hearing was postponed to 31 January 2012.

The applicant seeks the following interim relief;

“INTERIM RELIEF

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

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

SERVICE OF PROVISIONAL ORDER

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

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

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

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

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

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

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

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

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

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

The third respondent says that the second respondent, his mother, has no intention of selling her shares till the final determination of the matter which is pending in this court. However, he alleges that he has every right to sell his shares in the first respondent as they are not subject to any legal dispute.

The fact that one of the respondents, such as he, commands control in the first respondent company should give the applicant grounds for some apprehension that the third respondent intends to sell the whole immovable property for his own advantage.

I say this because the second respondent is now beyond the court's jurisdiction. The executor who holds a power of attorney for the mother confirms these attempts at sale.

Clearly, nothing will prevent the third respondent putting himself in a position where he could dispose of it without the concurrence or knowledge of the executor.

SC24-11 : MARY NYAMUTATA vs JOHN CHIKOMO and ARIMANDO BREAD and EPWORTH LOCAL BOARD
Ruled By: MALABA DCJ, ZIYAMBI JA and CHEDA AJA

The second respondent, who entered appearance to defend, raised the question of prescription alleging that the period of prescription had run against the appellant's claim against the first respondent….,.In our view, only the first respondent would have had the right to raise the defence of prescription against the appellant in respect of the claim relating to ...

SC17-09 : ELIZABETH MUTIZHE vs LOVENESS GANDA and THE REGISTRAR OF DEEDS and FANNIE MUTIZHE
Ruled By: MALABA DCJ

In Chambers in terms of Rule 31 of the Rules of the Supreme Court (“the Rules”).This is an application for an extension of time in which to note an appeal against the whole judgment of the High Court given on 27 February 2008.The applicant and the third respondent were married ...

In Chambers in terms of Rule 31 of the Rules of the Supreme Court (“the Rules”).

This is an application for an extension of time in which to note an appeal against the whole judgment of the High Court given on 27 February 2008.

The applicant and the third respondent were married to each other until the High Court granted him a decree of divorce on 22 February 2005 in case no. HC8877/03. The High Court made an order with regard to the division of the assets of the spouses.

Of relevance to the determination of this application is the fact that the third respondent was awarded 80% of the market value of the matrimonial house situated at Stand No.2711 Mahogany Circle, New Marlborough, Harare (“the property”). The applicant was awarded 20% of the market value of the matrimonial house.

The order further directed that:

“5. If the parties cannot agree on the value of the matrimonial home within ten (10) days of the date of this order, the property is to be evaluated within 30 days thereafter by a registered firm of Estate Agency agreed upon by the parties legal practitioners or failing such agreement by an Estate Agent nominated by the Registrar of this Court.

6. The cost of evaluation are to be borne by both parties in equal shares.

7. The plaintiff shall pay to the defendant on or before the 1st of November 2005, 20% of the net value of the property.

8. Failing compliance with the provisions of clause 7 above, the matrimonial home shall be sold on the open market to the best advantage and the net proceeds therefrom to be shared between the parties as set out in the paragraph above.”

On 16 June 2004, the applicant had obtained, from the High Court, an interdict prohibiting the second respondent from registering transfer of the property without her prior written consent.

On 11 August 2005, the first respondent entered into an agreement of sale with the third respondent in terms of which he sold and she purchased the property for $750,000,000. She paid the purchase price to the third respondent's conveyancers.

At the time she entered into the agreement of sale, the first respondent was not aware of the court order awarding the applicant 20% of the value of the property.

When she subsequently got to know of the order, she raised the question of its possible effects on the sale of the property. The third respondent assured her that the order would not affect transfer of the property into her name provided the applicant was paid the 20% share of the value of the property.

Upon request by the third respondent, she authorized the release of $150,000,000, which was 20% of the purchase price, into his bank account for payment to the applicant.

The applicant confirmed, in the founding affidavit, that an amount of $149,000,000 was paid into her bank account.

After the payment of the purchase price by the first respondent, the applicant instituted an appeal against the order of the High Court.

A perusal of the record in case no. HC8877/03 shows that the appeal had been noted out of time.

It appears that there was an application for an extension of time in which to note the appeal which was granted.

The Notice of Appeal, however, remained fatally defective for non-compliance with Rule 29(1)(d) of the Supreme Court Rules. Under the heading 'Grounds of Appeal' it is stated as follows:

“1. With new evidence before the court, the court a quo's apportionment of shares in the matrimonial house called House No.2711 Mahogany Circle, New Marlborough, Harare is amendable.

2. Without all evidence, the court a quo failed to award Stand 6839 Borrowdale.”

By no stretch of imagination can it be said that what is stated constitutes grounds of appeal against the order given by the court a quo on 22 February 2005 in case no. HC8877/03?

In light of the appeal which the applicant had purported to institute, the third respondent sought to cancel the Agreement of Sale.

The first respondent rejected the cancellation and commenced action in case HC1545/06 claiming an order against the third respondent of specific performance of his obligation to transfer the property into her name. She also claimed an order of upliftment of the caveat of 16 June 2004 and eviction of the applicant and all those claiming the right of occupation of the property through her.

The third respondent did not appear at the trial to oppose the claim. A default judgment was entered against him. That had the effect of confirming the third respondent's right to transfer of the property.

The court a quo found that the first respondent had adduced sufficient evidence to establish her entitlement to an order of upliftment of the bar. It granted the order. The decision took into account the fact that the applicant had not adduced evidence in opposition of the granting of the order.

The applicant had defended the claim on the ground that the order of 22 February 2005 gave her a real right in the property.

The court held that her right was to have 20% of the proceeds of the sale of the house. It held that the right was enforceable against the third respondent and could not operate to defeat the transfer of the property to the first respondent in terms of the Agreement of Sale.

The judgment was given on 27 February 2008.

The Registrar had given notice to the parties, through the roll of the court relating to unopposed matters for that day, that the judgment was to be handed down.

Whilst the legal representative of the first respondent attended court to note the handing down of the judgment; neither the applicant nor her legal practitioner attended.

No appeal was instituted against the judgment within fifteen (15) days as is required by Rule 30(a) of the Supreme Court Rules.

The applicant averred, in the founding affidavit, that she had knowledge of the judgment for the first time on 22 August 2008 when a copy of it was served on her by the Deputy Sheriff.

On 26 August she filed a notice of appeal with the Registrar. The document contained all the formalities required by Rule 29 of the Supreme Court Rules to be stated in a Notice of Appeal.

Strict compliance with the mandatory requirements of the provision of Rule 29 suggests that the applicant had read the relevant Rules before noting the appeal.

The Notice of Appeal was, however, fatally defective because it was filed six months after the date the judgment appealed against was given.

Rule 30(a) of the Supreme Court Rules had not been complied with.

No application for condonation of failure to institute the appeal within fifteen (15) days of the date the judgment was given and extension of time in which to appeal was made in terms of Rule 31 of the Supreme Court Rules.

The explanation given by the applicant for non-compliance with the Rules was that she was a self-actor. She said she did not know that she was required to make an application for condonation of non-compliance with Rule 30(a) of the Supreme Court Rules and extension of time in which to appeal.

She said she did not know that the Notice of Appeal was defective.

On 13 November 2008, the first respondent's legal practitioners wrote to the Registrar drawing her attention to the defective Notice of Appeal. The letter was copied to the applicant.

Notwithstanding the fact that the letter made it clear that the effect of the defective Notice was that there was no appeal against the judgment, the applicant did not act to regularize the situation.

On 25 November 2008, the Registrar wrote to the first respondent's legal practitioners accepting the contention that there was no appeal against the judgment of the High Court given on 27 February 2008. The letter was copied to the applicant.

She did not act immediately to secure compliance with the Rules of Court. It was sixteen (16) days later that the applicant made an application for extension of time in which to appeal.

The explanation for failure to act, after having been made aware of the defective Notice of Appeal and consequences thereof was again that the applicant was a self actor. She pleaded ignorance of the requirements of Rule 31 of the Supreme Court Rules.

The factors a court has to consider in the determination of an application for condonation and extension of time in which to appeal have been stated in numerous decisions of this Court and the High Court.

In Maheya v Independent African Church SC58-07, it is stated…, that:

“In considering application for condonation of non-compliance with its Rules, the court has a discretion, which it has to exercise judicially, in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are:

(i) The degree of non-compliance;

(ii) The explanation therefor;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) Avoidance of unnecessary delays in the administration of justice.”

See De Kuszab Dabrowski Uxor v Steel N.O. 1966 RLR 60 (A)…,; Bishi v Secretary for Education 1989 (2) ZLR 240 (H)…,; Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S).

The period of time marking the delay by the applicant in taking steps to note a valid appeal is nine months. The right to appeal is now dependent on the exercise of the court's discretion.

The application was made on 8 December 2008. The inordinate delay may be divided into three parts:

(i) The first part extended from 27 February to 26 August 2008.

(ii) The second extended from 27 August to 25 November.

(iii) The last part extended from 26 November to 7 December 2008.

The applicant gave different explanations for her inaction during each of the three periods of delay:

(i) In relation to the first period of delay, she said that she had no knowledge that the judgment had been given on 27 February.

(ii) In respect of her inaction in the second part of the period of delay, she said, as a self-actor, she was not aware of the requirements of Rule 30(a) of the Supreme Court Rules. She said she was also not aware of the provisions of Rule 31 of the Supreme Court Rules providing a remedy to a party who would have failed to exercise the right to appeal against a judgment of the High Court timeously.

(iii) She had no explanation for her inaction during the last part of the period of delay.

Is the explanation of the delay reasonable?...,.

In Director of Civil Aviation v Hall 1990 (2) ZLR 354 (S)…, GUBBAY CJ cited with approval from Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) where…, MULLER JA said:

“Where there has been a flagrant breach of the Rules of this Court in more than one respect, and where, in addition, there is no reasonable explanation for some periods of delay, and, indeed, in respect of other periods of delay, no explanation at all, the application should not be granted whatever the prospects of success may be.”

As I am unable, in this case, to go so far as to hold that the applicant was in flagrant breach of the Rules of this Court, I have considered the question whether there are good prospects of the appeal succeeding despite the finding that there is no reasonable explanation for the inordinate delay in making the application for extension of time in which to appeal.

The grounds of appeal were stated as being that:

“1. The court a quo erred at law and in fact in failing to uphold that the appellant's appeal in HC8877/03 had an effect of suspending the whole judgment of the High Court in the divorce proceedings.

2. The court a quo erred in fact and at law by holding that the appellant had no real rights over the disputed property known as Stand 2711 Marlborough Township of Stand 2575 Marlborough Township.

3. The court a quo misdirected itself by failing to regard the appellant's evidence that the interdict obtained by the appellant on 16 June 2004 had an effect of interdicting any transfer of the disputed property pending the determination of the appeal in case no. HC8877/03.

4. The court a quo erred in fact and at law by failing to uphold that the cancellation of the agreement of sale by the third respondent was valid and lawful.”

One looks at the founding affidavit for evidence of the facts stated as grounds of appeal....,.

Nothing of substance was said in the founding affidavit on Ground No.4..

Cancellation of a contract is lawful when it is in accordance with the terms and conditions of the contract between the parties.

It is also lawful where there has been a repudiation of the contract which is accepted by the innocent party as a breach relieving him from future performance of his obligations, otherwise the innocent party has a right to elect to accept or reject the unilateral act by the other party to try and bring a contract to an end. If he rejects the repudiation as a breach of contract, the innocent party can hold the other party to his side of the bargain provided he discharges his own obligations under the contract.

The court a quo found that the third respondent had not shown that the cancellation was in terms of the Agreement of Sale. It accepted the evidence of the fact that the first respondent had elected to reject the cancellation of the contract by the third respondent as a breach. The first respondent was found to have held the third respondent to his side of the bargain.

The applicant did not place before me facts on the basis of which a determination could be made to the effect that there were good prospects of Ground No.4 succeeding on appeal.

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”

The second respondent's opposition to the application is, in my view, somewhat curious.

The second respondent is the alleged sub-lessee and it objects to the continuation of the lease agreement between the applicant and the first respondent. While admitting, as contended by the applicant, that it took occupation of the premises in anticipation of a joint venture between itself and the applicant, the second respondent does not proffer any defence as to why it should not be evicted from the premises at the instance of the applicant.

Instead, and curiously so as I have observed above, it adopts and pleads the case of the first respondent that the applicant was in breach of the lease agreement, indeed, epitomizing the proverbial stranger who mourns louder than the bereaved.

HH104-09 : BSKY ENERGY (PVT) LTD vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ANOTHER
Ruled By: BHUNU J

The first respondent also sought to argue that as a Government Minister he placed the embargo on the diesel in the public interest because it constituted a harmful substance in terms of the Environment Management Act [Chapter 20:27] as read with the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007. In other words, the ...

HB46-09 : HERBERT SIKHOSANA vs ESTATE LATE A MTSANA and SHOWLAST NCUBE and NAPFUTALI SIBANDA and ZANELE NCUBE and NOKUTHULA MTHETHWA and ORS
Ruled By: NDOU J

The applicant is seeking an order in a draft in the following terms: “It is ordered that: (1) Upon tendering of the balance of the purchase price by the applicant, first to fifth respondents be and are hereby directed to take all reasonable steps necessary to effect transfer of Stand 3553 Emganwini, Bulawayo, into applicant's name. (2) In the event ...

The applicant is seeking an order in a draft in the following terms:

“It is ordered that:

(1) Upon tendering of the balance of the purchase price by the applicant, first to fifth respondents be and are hereby directed to take all reasonable steps necessary to effect transfer of Stand 3553 Emganwini, Bulawayo, into applicant's name.

(2) In the event that first to fifth respondents refuse to accept payment, the Deputy Sheriff be and is hereby authorized to accept the money on their behalf and proceed to sign all the necessary documents at 7^th and 8^th respondents' offices to effect transfer of Stand Number 3553 Emganwini, Bulawayo, into applicant's name.

(3) The 7^th and 8^th respondents be and are hereby directed to transfer Stand Number 3553 Emganwini, Bulawayo into applicant's name.

(4) First to fifth respondents are to pay the costs of this suit on an attorney-client scale.”

The salient facts of the matter are the following.

The first respondent is the estate of the late A Mtsana. The second, third, fourth and fifth respondents are the late A Mtsana's children.

During her lifetime, the late A Mtsana entered into an agreement with the applicant for the sale of a Stand yet to be identified by the late at a total cost of $18 million to be paid in fixed monthly installments. Only the second respondent was privy to this agreement, the third to fifth respondents were not.

As per the agreement, the first respondent secured Stand Number 3553 Emganwini, Bulawayo for the applicant. It is apparent from the annexures filed by the applicant that both the applicant and the late A Mtsana signed the agreement which stipulates that the price was varied to $100 million and that the Stand was then identified as 3553 Emganwini. The annexures A-C contain the agreement between the late A Mtsana and the applicant and it is in the following terms:

“27 September 2004

UHebert Mabunu Sikosana I.D. 08-282566 N 73 ubhadale i$2,000,000 eyestand. Cost $18,000,000. Balance $16,000,000.

S Ncube (signed)

A Mtsana (signed)

H Sikhosana (signed)

5 October 2004

Paid $3,000,000

Balance $13,000,000

S Ncube (signed)

H Sikhosana (signed)

A Mtsana (signed)

24 October 2004

Paid $2,000,000

Balanace $11,000,000

S Ncube (signed)

A Mtsana (signed)

7 November 2004

Paid $2,000,000

S Ncube (signed)

Balance $9,000,000

A Mtsana (signed)

Herbert (signed)

20/11/04

Paid $1,000,000

Balance $8,000,000

S Ncube (signed)

A Mtsana (signed)

11/12/04

Paid $1,500,000

Balance $6,500,000

A Mtsana (signed)

S Ncube (signed)

New Year 2005

19/01/05 Mr H Sikhosana

Paid $3,000,000

Balance $3,500,000

S Ncube (signed)

A Mtsana (signed)

8-03-05

Paid $2,000,000

Balance $1,500,000

S Ncube (signed)

A Mtsana (signed)

H Sikhosana (signed)

Sale of Stand No. 3553

Continued from 27 September 2004

$100,000,000

$16,500,000

Balance $83,500,000

S Ncube (signed)

A Mtsana (signed)

H Sikhosana (signed).”

It is beyond dispute that the late Mtsana and the second respondent signed against each payment that the applicant made. It is beyond dispute, from the foregoing, that the applicant and the late Mtsana signed for the variation. The only term varied is the purchase price which was increased from the initial $18 million to $100 million.

The late A Mtsana died in April 2005 when the agreement between the parties was still valid and effective. It was after the deceased's death, when the applicant went to make his payment, when the second to fifth respondents refused to accept the money and advised the applicant that they were now cancelling the contract prompting the applicant to seek redress in this court via this application.

In opposing this application, the third respondent then filed an opposing affidavit allegedly on behalf of the first to fifth respondents.

The opposing papers raised the following issues:

(a) The applicant has used the wrong procedure as he should have proceeded by way of summons;

(b) That the applicant has nothing against the respondents since he did not know the property he was purchasing at the time of contracting;

(d) That a new term of the contract was introduced at the time of the variation in terms of which the applicant was required to pay $40 million immediately upon signing the agreement and that he failed to fulfill this obligation....,.

In my view, the essential issues in casu are common cause or at least beyond dispute between the parties, and, further, the outstanding disputed issues can easily be resolved on the papers even without adopting a robust approach. In the circumstance, the application procedure was the proper method of bringing this dispute before this court.

It is common cause, as evinced by the above written agreement, that the applicant and the late A Mtsana, who was assisted by the second respondent throughout, entered into an agreement of sale of a Stand yet to be identified by the said A Mtsana at a total cost of $18 million to be paid in monthly instalments. The applicant was substantially complying with his obligations though at times he failed to pay the full installment. The late A Mtsana and the second respondent would receive these instalment amounts including those payments less than the full installment and acknowledge payments by signing on the above-mentioned document together with the applicant.

It is beyond dispute that the deceased eventually offered Stand Number 3553 Emganwini to the applicant and the latter accepted the offer. As highlighted above, the applicant and the late A Mtsana, upon finally agreeing on the actual Stand, varied the terms of the contract by increasing the purchase price from $18 million to $100 million.

This new agreement was also reduced into writing in March 2005.

It is also beyond dispute that annexures A to C, whose contents have been articulated above, are genuine documents done by the applicant and the late A Mtsana and witnessed by the second respondent. In particular, the authenticity of these documents is not disputed in the opposing papers of the respondents. The only disputed factual issue is the allegation by the third respondent that when the agreement was varied, the applicant was supposed to pay $40 million immediately upon signing the agreement and that the agreement fell away after the applicant failed to pay the said amount. This is the only contentious issue in this matter. This issue does not warrant the hearing of oral evidence for a variety of reasons that follow.

First, it is common cause that the third respondent was at no point involved in the dealings between the applicant and the late A Mtsana. Both the initial and varied agreements were executed only in the presence of the second respondent. As the second respondent had the personal knowledge of the facts deposed to, she was supposed to file an affidavit on this issue. She did not.

Second, the parties, throughout their dealings in respect of this agreement, reduced every step into writing. Nowhere in the agreement was it recorded that the applicant was to pay $40 million instantly. This issue is absent from the written agreement because it was never part thereof and it is a mere creature of the third respondent.

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of ...

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.

In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of House Number 360 Makusha Township, Shurugwi.

The plaintiff was the purchaser and D. Katerere was the seller.

In pursuance of that agreement, D. Katerere and himself attended at the offices of the second defendant and caused all rights, title and interest D. Katerere had in the property in dispute to be formally transferred and registered in the plaintiff's name. Thereafter, the plaintiff took occupation of the house as the new holder of such rights and interests in the house.

In 1986 he vacated the house to take occupation of a plot he had just bought in the same town. He left some people in occupation of the house. The proprietor of Popular Bakery, Mr Gokwe, who was his brother in-law, requested him to let some of his employees occupy the house. He acquiesced to this request.

Amongst the Popular Bakery employees who took occupation was Raphias Jokonoko, the first defendant's elder brother. They took occupation in 1986 when the plaintiff left. When, later on, the first defendant was employed by Popular Bakery, he also took occupation in the house together with his elder brother.

It was only in about January to June 2000 that the plaintiff said he discovered that the second defendant had formally transferred and registered his rights and interest in the property in the name of the first defendant.

Upon this discovery, he demanded that such transfer be reversed and that the house be transferred back into his names as the lawful holder of rights, title and interest in the house.

Both the first and second defendants did not accede to this demand hence this suit filed on 15 May 2002.

In this suit, the plaintiff's claim is for an order:

(a) Declaring him to be the lawful holder of all the rights, title, and interest in House Number 360 Makusha Township;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interests in House Number 360 Makusha Township, Shurugwi in the name of the plaintiff; and

(c) Costs of suit jointly and severally against the first and second defendant with one paying the other to be absolved.

The first and second defendants filed a joint plea in which they disputed the plaintiff's claim and entitlement to have the house transferred and registered in his name.

In their plea, the defendants denied that:

1. Dickson Katerere's rights, title, and interest in the property were ceded or transferred to and registered in the plaintiff's name.

2. The property in dispute was ceded by the second defendant to the first defendant.

3. The house in question is or ever was on home ownership scheme contending that Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

4. That the plaintiff acquired any title to the house in question.

The issues for determination were identified as:

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute;

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred or ceded to and registered in the plaintiff's name; and

3. Whether or not the plaintiff is entitled, at law, to the relief that he seeks.

The plaintiff gave evidence and called two witnesses, namely, Gertrude Nhendereko and Thomas Mandiamba. He also tendered into evidence a bundle of documents he relied on in his evidence.

The first defendant, thereafter, gave evidence. He also tendered a bundle of documents in support of his case.

From the evidence adduced in court, it was apparent that the house in question was, at one time, registered in the name of Dickson Katerere. It was also apparent that the nature of the lease that the plaintiff alleged D. Katerere had was not an outright purchase.

The plaintiff's evidence was to the effect that D. Katerere had a lease to buy agreement and it is this agreement that he took over.

On taking over, he filled in cession forms and lease to buy agreement forms at the second defendant's office. This was in 1981. The lease to buy forms he filled in were similar to the lease to buy agreement that the first defendant had as part of his bundle of documents titled “purchase/sale agreement conversion of rental accommodation into homeownership.” This form has three parties to it, being Shurugwi Town Council, as owner of the house, the Government, as the owner of the land onto which the house is built, and the purchaser.

In Hundah v Murauro 1993 (2) ZLR 403 (S)…, the court alluded to the fact that:

“Land in the high density suburbs belonged to the local authorities, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the 4th category of lodgers or dependants). They are:

1. Simple tenants under a lease agreement with the local authority or central government;

2. Tenants to buy under an agreement which permitted them to take title once the property was surveyed and the full price paid; and

3. Owners who graduated from category two in the fullness of time.”

In casu the plaintiff claimed that the house in question was under Category Two whilst the first defendant contended that it was under Category One.

It is pertinent to point out, at this stage, that, at the time the two defendants filed their joint plea up to the close of pleadings, they were represented by the same law firm.

On 6 October 2008, that law firm renounced agency in respect of both defendants. On 20 April 2009, a new law firm assumed agency on behalf of the first defendant.

This was after the defendants had both been served with the notice of set down for a pre-trial conference, and, in fact, this pretrial conference had been held on 31 March 2009. Only the first defendant was present at the pre-trial conference. The second defendant defaulted, or, at least, was not present. Equally, at trial, the second defendant was not represented.

Counsel for the plaintiff indicated, that, the second defendant indeed defaulted at the pre-trial conference and has not appeared to contest the plaintiff's claim since then.

The record before me is however silent on what happened when the second defendant defaulted at the pre-trial conference despite having been served with the notice of set down.

I now turn to the issues at hand.

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute

The plaintiff's evidence on the issue was to the effect, that, on 20 August 1981 he entered into an agreement of sale with Dickson Katerere in respect of House Number 360 Makusha Township, Shurugwi. The house was in D. Katerere's name and it was in a homeownership scheme. In that regard he referred to p2 of the bundle of documents, as the agreement of sale. The document is an uncertified photocopy. It reflects the parties to the agreement as CG Musoni and Dickson Katerere. It is dated 29 August 1981.

The main body of the document states that:

“C Musoni Matambo has paid Mr D. Katerere the sum of four hundred and forty eight dollars for house number 360 in Makusha, up easy Stereo Radiogram, two speakers $360. Total paid for the lot $808.”

The plaintiff confirmed that it was only him who appended his signature to the document.

As proof that the house in question was on the second defendant's homeownership scheme, the plaintiff referred to p1 of his bundle of document exh 5. This is a document containing a list of houses he contended were on the second defendant's home-ownership scheme. The house in question is number 6 on that list.

Apart from the house number, other details pertaining to this house included;

(i) Type - Up easy;

(ii) Purchaser - Dickson Katerere;

(iii) Date - 1 April 1980;

(iv) Purchase price - $980=25;

(v) Period of purchase - 5 years;

(vi) Monthly rent - $18=68;

(vii) Land value - $125=00; and

(viii) Monthly rent, service electricity - $33=06.

The heading/title of the list is hardly legible.

It was the plaintiff's evidence, that, after paying D. Katerere a total of $448 the two of them approached the second defendant with the intention of effecting cession. They indicated to the second defendant's officials that he had bought D. Katerere's rights and interests in the house so can the house now be registered in the plaintiff's name.

The second defendant's officials did not deny that the house was in D. Katerere's name. Their only query was that they should have approached the second defendant before entering into the purchase agreement so that D. Katerere's lease is cancelled first and the plaintiff would then enter into a fresh lease to buy agreement with the second defendant. The plaintiff said the second defendant's official he dealt with was one named Mr Nhubu. At no time was it ever said that D. Katerere was a mere tenant with no rights or interest to sell in the house.

Gertrude Nhendereko gave evidence next on this issue.

She indicated, that, as a resident of Shurugwi, she knew that the house in dispute was amongst houses that were for home ownership. She confirmed that exhibit 1(a) is indeed from the second defendant and it does confirm that the house in question was on the home-ownership scheme. She knew this as a resident of Shurugwi, and, later, as a councillor.

It was her evidence that she had known the plaintiff for a long time as a fellow resident of Shurugwi. At one time they lived in the same neighbourhood before the plaintiff moved into the house in question in 1981.

Apart from the above, most of this witness's evidence was based on reports she received from the plaintiff which is of no probative value.

The first time she came to know that there was now a problem with the house in question was in 2000 when the plaintiff came to the second defendant complaining about the manner in which the house in question had been registered in the first defendant's name when he had infact bought it from D. Katerere and had had it ceded to him at the second defendant's offices in 1981.

Gertrude Nhendereko said she got to know this as she was now a councillor with the second defendant and she was in the committee that was tasked with looking into such complaints and cases of double allocations.

As far as the nature of lease D. Katerere had, Gertrude Nhendereko could not be of much use as she had not seen the lease agreement between D. Katerere and the second defendant. The most she could do was to confirm, that, to her knowledge, the houses in question were for homeownership from inception. She also confirmed that most of the documents tendered by the first defendant were in the file pertaining to the house in question when this dispute came to light.

Further support of the nature of lease D. Katerere had, is gannered from the first defendant's documents.

For instance, on p15 of the first defendant's bundle of documents is a letter dated 7 June 1982. The letter is addressed to Dickson Katerere and was authored by JMN Nhubu. This JMN Nhubu was the second respondent's Township Superintendent. The letter reads in part:

“RE: HOUSE NUMBER 360 MAKUSHA BREACH OF CONTRACT

It came to the notice of council, late 1981, that you are no longer staying at the above house and that you have allocated the house to someone without council authority. Any efforts to get in touch with you have failed as we gather you had gone to Malawi.

I now say that you have breached the contract you entered into on 8 April 1980 to purchase the above house for homeownership purposes for over a period of five years. In pursuing my explanations, therefore, I quote para nine of the home ownership forms:

'Until title to the property has been granted to the lessee by government, the lesser shall not, without written consent of the council, let property or any portion thereof to any person nor without such consent shall any person other than the lease or his dependants occupy the same or any portion thereof.'”

Mr Nhubu made it clear the contract D. Katerera had entered with the second defendant, on 8 April 1980, was for the purchase of the property in question over a period of five years. The scheme was for home ownership and not mere tenancy.

Further correspondence between the second defendant and the Ministry of Local Government over this house and others further confirm that this was a lease to buy agreement on what is termed home-ownership scheme.

I am satisfied, beyond reasonable doubt, that, Dickson Katerere occupied this house on a lease to buy agreement. Such agreements, by their very nature, do not confer title or ownership to the lessee till the lessee has complied with all the terms of the contract or in the fullness of time.

In casu, there is no denying that D. Katerere had not met all the requirements.

The rentals towards the purchase price had not been paid in full.

The plaintiff confirmed, that, as at the time he bought the property, D. Katerere had not paid in full. The plaintiff was to take over payment of the rentals.

Title had therefore not passed to D. Katerere.

By virtue of entering into the lease to buy agreement D. Katerere had acquired certain personal rights and interests in the property but not title or ownership.

The concept of ownership entails that one has full title to the property. This was not so with D. Katerere.

It may also be noted, that, the evidence adduced, and the documents tendered into evidence, show that D. Katerere was not a mere tenant. As already alluded to, he had entered into a lease to buy agreement with the second defendant. That agreement gave him certain rights and interests that he purported to sell to the plaintiff.

He had no title to pass to the plaintiff.

One would say the sale was conditional on the second defendant granting its consent and accepting the plaintiff to step into the shoes of D. Katerere.

This brings me to the second issue, namely:

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred to and registered in the plaintiff's name

The plaintiff's evidence was to the effect, that, pursuant to the agreement of sale, D. Katerere and himself attended at the second defendant's offices with the intention of having D. Katerere's rights and interests ceded to him.

On their first visit, they met resistance from Mr Nhubu who indicated that they should have come to the second defendant before entering into the agreement. The second defendant would then have cancelled D. Katerere's lease before entering into a new lease with the plaintiff.

They left without filling in the necessary forms for cession.

He sought ministerial guidance as he believed Mr Nhubu's point of view was incorrect. Later, D. Katerere and himself were called back to the second defendant's offices. On this occasion, he was made to fill in and sign cession forms together with lease to buy agreement forms. He was given a copy of the cession forms. On the lease, he was told, that, those forms would be sent to the Ministry of Local Government for execution by ministry officials on behalf of the Government.

He was further advised that the process would take three to four years for the forms to be executed and returned.

He thus waited to no avail.

He nevertheless took occupation and continued paying the lease to buy rentals as per the agreement.

When asked to produce a copy of the cession forms, the plaintiff said he could not produce this copy as it was being kept by his late wife. Efforts to locate the forms since his wife's death have yielded nothing.

As regards payments towards the lease to buy agreement, the plaintiff produced some receipts showing some payments he made to the second defendant in respect of this house. He could not produce a lot of such receipts due to lapse of time and the fact “that the receipts were being kept by his late wife.” As with the cession form, he could not locate more of the receipts. Those that he produced do show that he indeed made some payment.

It was his further evidence that he continued making the payments till the five years period was up. He also remained in occupation of the house till 1986 when he moved to a plot he had bought within the same town. At the time he moved out he had made the full payment for the house.

Though the plaintiff could not produce most of the receipts and the cession forms due to the reasons he advanced, his evidence that he signed the cession form and the second defendant thus consented to him taking over from D. Katerere was largely unchallenged.

The second defendant, as the other party to the cession and lease to buy agreement, could easily have rebutted that evidence had it not been true. Equally, if the plaintiff had not paid the sums of money he claimed, the second defendant was better placed to rebut that.

The second defendant's default meant that the plaintiff's evidence in that regard went unchallenged.

The first defendant could not sustainably challenge the plaintiff's evidence or assertion as he was not privy to the agreement and was not even in the picture during the period in question.

The first defendant's contention, that the plaintiff's failure to assert his rights over the property for a long time while the first defendant occupied it casts doubts to the credibility of the plaintiff's version, is without merit.

If the first defendant seriously believed the plaintiff's version was not the truth, he could easily have called witnesses from the second defendant who were alleged to have dealt with the plaintiff during the period in question. These would have been better placed to rebut the plaintiff's evidence.

The first defendant also attempted to rebut the plaintiff's evidence by referring to events that occurred after the date of the agreement of sale and cession. In this regard, he referred to the second defendant's purported cancellation of D. Katerera's lease in 1982.

As already alluded to, that letter, of 7 June 1982, contradicts the defendants plea in which they contended that D. Katerere was a mere tenant and the house in question was never on a home ownership scheme. That letter confirms to the contrary.

In any case, by 7 June 1982, the plaintiff said he had already signed cession forms and the agreement of lease to buy at the second defendant's offices.

So, for all intents and purposes, at the time that letter was written, the house had been ceded to the plaintiff and no longer in D. Katerere's name. The second defendant did not avail itself to rebut the plaintiff's evidence in that regard.

I am of the view that the probabilities are that D. Katerera's rights and interest were transferred to and registered in the plaintiff's name.

The third issue is:

3. Whether or not the plaintiff is entitled to the relief that he seeks?

The plaintiff's claim was for an order:

(a) Declaring him to be the lawful holder of all rights, title, and interest in House Number 360 Makusha Township, Shurugwi;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interest in House Number 360 Makusha Township, Shurugwi; and

(c) Costs of suit.

The plaintiff's evidence was to the effect, that, he discovered that the property had been unlawfully registered in the first defendant's name in the year 2000 when he went to the second defendant's offices to inquire about the price for the land as he had long paid up for the house.

From his own words, therefore, he had not paid for the land, or, at least, he was not certain that he had paid for the land hence the inquiry.

The standard lease to buy agreement, which he said is similar to the one he signed, states the parties to the agreements as three: Shurugwi Town Council, as the first part and owner of the dwelling; the Government of Zimbabwe, as the second part and owner of the land on which the dwelling is built. The dwelling and the State land together are referred to as the “property”: the third part is the purchaser.

The first defendant contended that the non-joinder of the State, through the Minister responsible for Local Government and National Housing, in this suit is fatal to the plaintiff's relief.

The plaintiff only cited two parties with a contractual interest in the property but left out the owner of the property who has real rights. The relief seeking a transfer of the rights, title and interests to the property is not competent if it does not compel the owner of the property. In support of this posture, the first defendant's counsel cited the case of Rose v Arnold & Ors 1995 (2) ZLR 17 (H).

The plaintiff, on the other hand, argued, that, failure to cite the Minister responsible for Local Government and National Housing was not fatal to the plaintiff's claim.

The plaintiff's counsel argued that the second defendant is a form of decentralized government which was established under the Rural Districts Councils Act [Chapter 29:13] with powers to sue and be sued in its own name: see section 12 of the Rural Districts Councils Act.

Section 71(2) of the Rural Districts Councils Act provides for the derogation of administrative functions.

In this regard, counsel cited the case of Reddy v Town Council for the Borough of Kloof 1964 (3) SA 280 wherein the court held, that, once authority has been delegated, it is a misjoinder to cite the superior controlling body as the delegated officer is responsible for the exercise of the delegated authority on its own.

The plaintiff's counsel argued that, in casu, the second defendant was endowed with delegated authority by the Minister of Local Government and National Housing to handle the allocations, leases, sales and transfers of the houses and stands within its area.

Further, the second defendant is the authority that is actually responsible for the transfer and registration of rights, title, and interest in the houses within its area.

The relief being sought is therefore capable of being granted and effectively enforced as against the second defendant alone.

Whilst the plaintiff's argument was forceful, counsel could not cite any authority or piece of legislation where the Minister granted the second defendant authority to pass title on the land.

A reading of the Standard lease to buy agreement that was tendered by the first defendant shows that the second defendant owned the dwelling whereas Government owned the land on which the dwelling was built.

In its administration of its area, the second defendant took upon itself certain responsibilities when entering into the lease to buy agreement. The second defendant can be ordered to fulfil those responsibilities.

Whilst the lease agreement cites three (3) parties, the second defendant and Government are, in fact, joint sellers in as far as the second defendant owns the house whilst Government owns the land.

The second defendant was given overall responsibility in the leasing out and selling of the house and the land on which the house is built. The house is leased/sold on the second defendant's own behalf whilst the land is sold on Government's behalf. It is the second defendant that must account to Government for the State land. The Government's side seems to be a mere formality of granting title when Council has fulfilled its part and made such a request in favour of its lessee or purchaser.

This is apparent from the fact that the consent required for one to obtain.cession or to deal with the property in any other way is that of the second defendant. No where does the standard agreement refer to the need for consent by Government.

For instance, clauses 11 and 20 make it clear that the consent is that of the second defendant.

Clause 11 states that:-

“Until title to the property has been granted to the purchaser by the government the purchaser shall not, without the prior written consent of the council, let the property or any portion thereof to any person nor without such consent shall any person other than the purchaser or his dependants occupy the same or any portion thereof.”

Clause 20 states that:-

“The purchaser shall not part with the possession of the property or any part thereof nor cede nor assign nor hypothecate this Agreement or any rights hereunder to any person without the previous consent in writing of the council.”

In terms of the agreement, the term property is used to mean the dwelling owned by Council and stand (land) owned by Government.

It is apparent, therefore, that, in granting consent over the property, Council will be granting consent over State land as well. That is as Council was empowered by Government.

The Government's role, as reflected in clause 18, is that it 'agreed to grant title in accordance with the provisions of clauses 16 and 17.'

These two clauses deal with the purchaser paying agreed sums to Council or satisfying Council that payment has been guaranteed.

Clause 16 states that:-

“The purchaser may, on payment of any principal outstanding and any other charges payable in terms of this agreement to the Council, including the charges referred to in clause 18 hereof, which charges may be paid in instalments in such amounts as maybe agreed to be Council, and, on payment by the Council to the government of the sum of…, due to it for the land and the sums due in terms of clause 18 hereof receive title to the land.”

Clause 17 states that:-

“Notwithstanding the provisions of Clause 16 hereof title to the property may be granted to the purchaser in terms of this clause provided the purchaser satisfies Council that:-

(i) He has been granted a loan to be secured by mortgage bond over the property; and

(ii) The principal and interest outstanding, and any other charges payable in terms of this agreement, have been paid or guaranteed to the satisfaction of the Council against issue of the title.”

Clearly, though two parties are cited as sellers, it is Council that is saddled or clothed with all the administrative functions. Council virtually exercises all the functions of the seller after which Government grants title as a formality. It is Council that passes the purchaser as deserving of title and Government merely caps the purchaser.

The first defendant also contended, that, the plaintiff did not obtain prior written consent of the second defendant before entering into a sale agreement with D. Katerere and so such agreement is void ab initio.

The issue of absence of written consent at the time parties enter agreement of sale has been a subject of a number of court decisions. The point is now settled.

In Mukarati v Mkumbu 1996 (1) ZLR 212 (S), when faced with such a scenario, the court held that:-

“…, the agreement between the parties was not exactly void. The seller could validly contract to sell but could not pass title without the Council's approval. This made the contract a conditional one with an implied term that the sale was subject to the consent of the Council.

This cast an enforceable duty on the seller to seek the Council's approval. If the approval were given, transfer could take place. If it were refused, the contract would be unenforceable until such time as the seller was in a position to pass title. The buyer would then have to elect either to seek restitution or to wait until the property was no longer encumbered and transfer could be effected without the Council's consent.”

In David Tobaiwa v Clemence Kaseke and 2 Ors HH74-06 MAKARAU JP…, after quoting EBRAHIM JA in Mukarati v Mkumbu 1996 (1) ZLR 212 (S)…, went on to say that:

“I would venture to suggest, at this stage, and following the remarks of EBRAHIM JA, that, it appears to me legally possible for a person in the position of the first respondent to enter into a contract of sale not only of the property itself as suggested by EBRAHIM JA, but, of the rights, title and interest that he has under the suspensive agreement of sale and which rights will, in due course, mature into real rights in respect of the property. Thus, it is my view that those personal rights that are conferred by the suspensive agreement of sale are capable of being sold and bought without the prior consent of the local authority concerned.“

In casu, D. Katerere could validly sell his rights and interests in the property to the plaintiff conditional on obtaining Council's consent.

The plaintiff's evidence was to the effect, that, such consent was later obtained as Council approved of the cession of the property and had it registered in his name and he was made to sign the lease to buy agreement forms that he was made to believe would be sent to the Ministry of Local Government.

This occurrence was not challenged by the second defendant.

If that took place, albeit after initial resistance by Mr Nhubu, it means the property was ceded to the plaintiff and the plaintiff acquired all the rights and interests that D. Katerere had in the property in 1981.

The first defendant's challenge of this evidence was without foundation.

The plaintiff's claim, and basis thereof, were brought to the attention of the second defendant as the other party to the cession documents. Despite filing a joint plea with the first defendant, the second defendant defaulted and has not sought to further challenge the plaintiff's claim.

The plaintiff's evidence was thus unchallenged.

The first defendant sought to rely very much on the absence of documents in the file pertaining to this house on the agreement between D. Katerere and Council and also the absence of documents showing that the second defendant approved cession to the plaintiff.

Unfortunately for the first defendant, the keeper of those documents who would have testified to the existence or non-existence of such documents at any time in the past, decided not to come to testify against the plaintiff.

The plaintiff clearly indicated that he completed and signed all the necessary documents at the second defendant's offices.

Gertrude Nhendereko also alluded to the absence of such documents in the file but proceeded to say that there were a lot of double allocations of houses, and, in some instances, documents were missing from the files. She attributed the double allocation and the missing documents to corruption within the second defendant.

It may also be noted, that, from the first defendant's own evidence, there was something amiss on this house. It was the first defendant's evidence that his elder brother and himself moved into this house in about March 1987. They found the house vacant. It is also evident, from a letter dated 7 June 1982…, that, as of June 1982, Mr D. Katerere was no longer in that house. D. Katerere, had, instead, put someone else whom Council wanted moved out.

There is an unexplained vacuum in the occupation and registration of this house in the period from when D. Katerere moved out to 1987 when the first defendant said he took occupation with his brother.

The vacuum is in the file pertaining to this house and kept by Council. No explanation was offered by the first and the second defendants for the vacuum.

The plaintiff, on the other hand, testified that there was never a vacuum as he took occupation from D. Katerere in 1981 soon after obtaining cession. He remained in occupation of the house till 1986. In 1986 he moved to a plot he had bought in the same town. On moving out, he left some people who included the first defendant's elder brother Raphius Jokonoko. Raphius Jokonoko was, at the time, employed by Popular Bakery.

The proprietor of Popular Bakery, Mr Gogwe, who was the plaintiff's brother in law, had requested the plaintiff to allow his employees to occupy the house.

Being related to Mr Gogwe, and since he had paid in full, the plaintiff said he did not demand rent from Mr Gogwe or his employees but that they pay service charges.

It was whilst Raphius Jokonoko, and another employee of Popular Bakery, were in occupation of the house that the first defendant joined them when he started working for Popular Bakery.

As far as the plaintiff was concerned, the house was occupied by employees of Popular Bakery at the request of Mr Gogwe.

Mr Thomas Mandiamba gave evidence on this aspect.

He was, at the time, employed by Popular Bakery. He confirmed the plaintiff's version on how Raphius Jokonoko and other employees of Popular Bakery came to occupy the house in question. Mr Mandiamba indicated that he was the one sent by Mr Gogwe to the plaintiff with a request for accommodation for Popular Bakery employees.

As a result of the discussion between Mr Gogwe and the plaintiff, two bakery employees, who included Raphius Jokonoko, were given occupation of the house with Popular Bakery paying service charges.

That version was, as with the plaintiff's evidence, virtually unchallenged.

If, therefore, the plaintiff acquired rights and interests in the property from D. Katerere and thereafter had the house ceded to him, it is clear the plaintiff has a claim against the second defendant.

Council, as owner of the dwelling, can be ordered and directed to register the dwelling in the name of the plaintiff as the lawful holder of rights and interests in the dwelling.

Council, as administrator of State land, can be ordered and directed to do/take such steps as are provided for in the lease to buy agreement to ensure that Government is appraised of the plaintiff's status as the holder of rights and interests in the dwelling built on Stand 360 Makusha Township and thus entitled to be granted title per Government's undertaking in terms of clause 18 of the lease to buy agreement. It will then be up to Government to grant title.

In a bid to stave off the plaintiff's claim, the first defendant contended that he has better title to the property and so the plaintiff should not succeed.

In that regard, he referred to a lease to buy agreement that he entered into on 17 December 2002. He also referred to several payments he made in furtherance of that agreement.

That agreement is titled “PURCHASE/SALE AGREEMENT CONVERSION OF RENTED ACCOMMODATION INTO HOME OWNERSHIP: MEMORANDUM OF AGREEMENT.”

It is common cause, that, as at the time the plaintiff's summons were issued, the first defendant claimed he occupied the house as a mere tenant.

In paragraphs 1-3 and 1-4 of their plea, the defendants denied that the house was ever on home-ownership scheme and challenged the plaintiff's to prove that:

“1.3 That the house in question is or ever was on home ownership scheme. Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

1.4 That the plaintiff acquired any title to the house in question from Dickson Katerere who was a mere tenant.”

After having pleaded in that manner, the first defendant said he was offered the property for home ownership in November 2002 and the lease to buy agreement was entered into on 17 December 2002.

The first defendant's attempt to raise a new defence of better title acquired after summons has its own hurdles to overcome.

Order 20 Rule 135(3) of the High Court rules states that:

“Where any ground of defence arises after the defendant has delivered a plea, the defendant may, within twelve days after such ground of defence has arisen, or at any subsequent time, by leave of the court, file a further plea setting forth the same.”

When the further ground of defence arose, the first defendant should have amended his plea to encompass the new ground.

In Chiviya v Chiviya 1995 (1) ZLR 201 (H)…, ROBINSON J had this to say about such failure to amend:-

“Accordingly, before setting down his application for a decree of divorce, the applicant should have attended to amend his declaration in this respect since it is not competent to lead evidence on a material matter which has not been pleaded.”…,.

The plaintiff's counsel properly submitted, that, with the closure of pleadings and joinder of issues, on 17 June 2002, the matter became litis contestatio.

Litis contestatio occurs when pleadings in a matter are closed: see Government of South Africa v Ngubane 1972 (2) SA 601 (A)…, and Jankowiak & Anor v Parity Insurance Co. Ltd 1963 (2) SA 286 (W)…,.

When litis contestatio is reached, the property in dispute becomes res litigiosa, and cannot be alienated: see Exparte Deputy Sheriff, Salisbury; Inre Doyle v Salgo 1957 R & N 530 (SR Scholtens (1958) 75 SALJ…,.

In casu, it is clear, that, although the second defendant, had, in their joint pleas, said that the first defendant was a mere tenant in respect of the property in dispute, the second defendant went on to execute a Purchase/Sale Agreement with the first defendant on 17 December 2002 in respect of the same property.

When the defendants entered into the agreement they were fully aware these proceedings had reached litis contestatio and the property had become res litigiosa.

Accordingly, the defence of better title based on non-pleaded defence and events after the closure of pleadings cannot avail the first defendant.

The first defendant's contention that the matter was not litis contestatio because the lease to buy was entered with the State is no saviour.

It is the second defendant, that, according to the first defendant, invited him to enter into the agreement. Clearly, in my view, both defendants intended to defeat the plaintiff's case.

They cannot be allowed to succeed in this regard.

The issue as to who had better title must be decided as at the time summons were issued and pleadings were closed.

After a careful analyses of the evidence, and the nature of the relief sought, it is my view, that, the second defendant cannot pass title. The standard lease to buy agreement clearly shows it is Government that grants title upon the second defendant confirming it is satisfied with payment or arrangements for payment by lessee.

In the same vein, the second defendant can be ordered to do that which is in its power to enable title to be granted. This includes registering the property in the plaintiff's name pending the issuance of title by Government and confirming with Government that the plaintiff has met the conditions of the lease to buy agreement.

Accordingly, judgment is hereby entered for the plaintiff's as follows:

1. The plaintiff is hereby declared to be the lawful holder of all rights and interests in House No.360 Makusha Township, Shurungwi.

2. The second defendant is hereby ordered and directed to formally register all rights and interests in House No.360 Makusha Township, Shurungwi in the name of the plaintiff.

3. The second defendant is hereby ordered and directed to do all such things and sign all such documents as are necessary to cause rights, title, and interest in Stand 360 Makusha Township, Shurungwi to be transferred to the plaintiff.

4. The first and second defendants to pay the plaintiff costs of suit jointly and severally with one paying the other to be absolved.

HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

The first respondent was served with the application through service upon one Violet Tanda at the disputed property. It is not indicated on the certificate of service who Violet Tanda is and in what capacity she accepted service of the court application on behalf of the first respondent as it is common cause that the first respondent ...

The first respondent was served with the application through service upon one Violet Tanda at the disputed property.

It is not indicated on the certificate of service who Violet Tanda is and in what capacity she accepted service of the court application on behalf of the first respondent as it is common cause that the first respondent left the country immediately after selling the property to the applicant and that the families of the late Samuel Mushaninga and the late Salome Kudzai Chisvo are the ones in occupation of the property.

Not surprisingly, the first respondent did not oppose the application.

I have considered, but have not decided, on the issue whether the purported service on the first respondent in this matter is proper. In view of the conclusion that I reach in this matter, it is not necessary that I determine the issue. I simply raise it to highlight that, in another forum, the issue will have to be determined before an order can be made against the first respondent.

The second and third respondents did oppose the application.

Of material importance in the opposing affidavits filed by the second and third respondents is a narration of how the Late Mushaninga and the Late Chisvo purchased the property from the first respondent and paid the full purchase price. The respondents also sought to argue that the applicant was in breach of the contract between himself and the first respondent, prompting the applicant to challenge their locus standi to make such allegations….,.

As stated above, at the hearing of the matter, the applicant took the point in limine that the second and third respondents had no locus standi in the matter to challenge the validity of the contract between the applicant and the first respondent.

In this regard, the use of the term “locus standi” was, in my view, misplaced.

Locus relates to the standing of the party before the court. It does not relate to the weight that should attach to the evidence of a party that was not close to the transaction and who has no personal knowledge of such. The issue of locus standi does not arise in this matter as the second and third respondents have each an interest to protect in the property in dispute. In any event, the applicant cited the second and third respondents in this application and it cannot lie in his mouth to deny them locus standi after he has dragged them to court.

It appears to me that what the applicant intended to do was to urge the court not to attach any weight to the averments of the respondents regarding the alleged breach of the sale agreement by the applicant as they were not close to the transaction. As will emerge from this judgment, the breach of the agreement by the applicant is, in my view, self-confessed.

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

After the application for joinder to be filed and served, the second defendant filed a special plea alleging that the plaintiff's claim had prescribed. The issue that has exercised my mind in this matter is whether the same facts that can sustain a plea of prescription against the first respondent can be relied upon by ...

After the application for joinder to be filed and served, the second defendant filed a special plea alleging that the plaintiff's claim had prescribed.

The issue that has exercised my mind in this matter is whether the same facts that can sustain a plea of prescription against the first respondent can be relied upon by the second defendant.

It is common cause that the second defendant has been cited as a defendant before me as the successor-in-title to the first defendant. No culpability is alleged against the second defendant, which has been joined in the proceedings merely to enable the plaintiff, if successful, to obtain satisfaction of its judgment against the assets of the second defendant, formerly owned by the first defendant.

It appears to me that, ordinarily, the defences that are available to the first defendant are also available to the second defendant. In fact, it appears to me that on the merits of the matter, the second defendant has no independent defence to offer as it did not transact with the plaintiff prior to its taking over of the first defendant's assets and businesses in 2006. It also appears to me quite clear that had the first respondent successfully raised the issue of prescription this would have equally shielded the second defendant.

It is the reverse of the situation that I need to determine in this matter.

It appears to me that the second defendant cannot rely on the facts that would have sustained a plea of prescription against the first defendant as the causes of action that the plaintiff has against each defendant, whilst the same, arose on different dates. Whilst it may be correct that the plaintiff's cause of action against the first defendant arose in or about December 2001 when the last invoice was made out between the parties, as submitted by counsel for the defendant, the same is not true or correct with regards to the second defendant. As was observed by LEWIS JP in Street v Evans 1977 (3) SA 950 (RA)..., -

“When dealing with the question of prescription, one has to ask oneself; what is it that is being prescribed. What is being prescribed is one's right to sue. The right to sue depends on having a cause of action which has accrued to one....,.”

It presents itself clearly to me that the plaintiff's right to sue the second defendant only accrued in March 2009 during the trial of the matter between the plaintiff and the first defendant when the disposal of assets to the second defendant was revealed. Prior to that revelation, the plaintiff had no cause of action against the second defendant as it was unaware of its identity and of the facts that would make the second defendant liable for the debts of the first defendant. Prescription against the second defendant can only have commenced running from the date of the disclosure. It was then successfully interrupted by the joinder of the second defendant to these proceedings.

On the basis of the foregoing, I would dismiss the plea of prescription as against the second defendant.

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

The second respondent has argued that the first respondent took occupation of Plot 7 in 2007. The first respondent is not before me so I cannot comment on the manner in which he took occupation.

Appealed
SC03-13 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

This is an appeal against the judgment of the High Court in which the appellant's claim for the replacement value of a Mercedes Benz motor vehicle, and damages arising from a road traffic accident, was dismissed with costs.

The facts of this matter are that on 10 September 2008, at 7:30pm, the appellant was driving a Mercedes Benz E200 Compressor motor vehicle from Gweru to Harare. At the 49 kilometre peg, just before reaching Norton, he drove into the back of a trailer. The trailer was being towed by a tractor driven by the first respondent during the course and scope of his employment with the second respondent. Both the trailer and the tractor belonged to the second respondent.

The appellant issued summons against both respondents on 25 February 2009. He sought US$30,000 being the replacement value of the Mercedes Benz motor vehicle together with interest thereon at the rate of 30% per annum from the date of the accident to the date of payment in full and damages for hiring a vehicle for his use at the rate of US$2,000 a month from the date of the accident to the date of payment (sic).

He further sought general damages for pain and suffering in the sum of US$10,000 together with interest at the rate of 30% per annum from the date of the accident to the date of payment in full.

In his declaration, the appellant averred that the accident was caused by the negligence of the first respondent and the un-roadworthiness of both the tractor and the trailer. He particularised the negligence thus:

(a) The tractor driver was not licensed to drive.

(b) The trailer, which had 30 passengers, had no rear lights despite the fact that it was around 7:30pm.

(c) The driver was driving in the middle of the road instead of the extreme left of the road.

(d) The driver drove without due care and attention and failed to avoid an accident when it was imminent.

(e) The rear lights of the tractor, even if they were on, would have been obstructed to trailing traffic by the width of the trailer, its height, and overcrowded workers inside the trailer.

(f) The vehicles were not licensed to carry workers on public roads.

He further averred that the second respondent was negligent in using an unlicensed and under-age driver to drive an unregistered and un-insured tractor and trailer to carry workers on a public highway - and especially at night.

In their joint plea, the respondents denied liability and disputed the particulars of negligence that were raised against them.

They averred that the accident was caused as a result of the negligence of the appellant who drove at an excessive speed, failed to keep a proper lookout, and attempted to overtake the tractor and trailer when it was not safe for him to do so.

HH36-11 : GENESIS VENTURES (PRIVATE) LIMITED vs ROLMAY TRADING (PRIVATE) LIMITED and LARDFAIR TRADING (PRIVATE) LIMITED
Ruled By: BERE J

There are aspects of Mr Mahuni's testimony which I have already commended on which cast serious doubt on the credibility of this witness's testimony. The witness's strout effort to try and defend the Agreement that was entered into between the plaintiff and Muswere Haulage Dynamic, in the witness's absence, did not impress the court. ...

There are aspects of Mr Mahuni's testimony which I have already commended on which cast serious doubt on the credibility of this witness's testimony.

The witness's strout effort to try and defend the Agreement that was entered into between the plaintiff and Muswere Haulage Dynamic, in the witness's absence, did not impress the court. The witness strenuously conducted his defence as if he was a legal practitioner paid to represent Muswere Haulage Dynamic. The whole record of proceedings will show that the witness came out in full force to support and protect Muswere Haulage Dynamic - even in circumstances where he was not invited to do so. Not only this, but even in circumstances where his evidence differed materially from the evidence of Mr Muswere as I will demonstrate hereunder.

Throughout Mr Mahuni's testimony, when he was being led by his counsel, he gave the impression that he still had in his possession the 20,000 litres of diesel in his custody. Under cross-examination by the plaintiff's counsel, he revealed, for the first time, that he had given Muswere Haulage Dynamic the diesel in question starting with the first 100 litres followed by the remaining quantity. The witness conceded that, in doing so, he had acted in complete violation of the plaintiff's specific instructions in releasing that diesel. The following questions and answers in his cross examination demonstrate the limping nature of the witness's testimony.

“Q. Did you release this fuel to Muswere Haulage Dynamic?

A. Yes.

Q. When was this?

A. I am not sure but he wanted to buy an ERF truck and he asked for 100 litres of fuel for Muswere Haulage Dynamic.

Q. Did you advise the plaintiff of that development?

A. No.

Q. Why?

A. I did not see any reason to advise the plaintiff….,.

Q. All in all how many litres of diesel did you release to Muswere Haulage Dynamic?

A. I believe at the end of the day Muswere Haulage Dynamic accessed the whole facility during the time this matter became the subject of this litigation.

Q. Did you seek any written prior authority from the plaintiff?

A. No.”

To appreciate the fallacy of the position taken by Mr Mahuni one needs to look at the evidence of Mr Muswere on the same issue of the alleged release of the fuel to Muswere Haulage Dynamic. Mr Muswere was categoric that not a single drop of the diesel was released to him by Mr Mahuni and this is what Mr Muswere had to say in this regard:

“Q. Do you know whether Rolmay (first defendant) has delivered the fuel to plaintiff?

A. I am not aware.

Q. Did they not deliver the fuel?

A. No.

Q. Mr Mahuni told this court that he delivered all the fuel to you in October - November after you had indicated your property had been used to secure the fuel; was he lying?

A. Exhibit 10 is self-explanatory. He never delivered the fuel to us. If he said so the facts will not be true.”

In the court's assessment of the conflicting evidence given by the two witnesses, the court is more inclined to believe the evidence of Mr Muswere as it was consistent with the evidence of the plaintiff, especially on the ownership of the fuel and the manner in which the drawdown of that fuel was supposed to be made.

I make a specific finding that Mr Mahuni must not be believed when he alleged he had released the fuel in issue to Muswere Haulage Dynamic. The conduct of Mr Mahuni makes the court doubt if at all he had the fuel in issue at the time his company was paid by the plaintiff.

HH37-11 : STANSILOUS K MTIZIRA vs EPWORTH LOCAL BOARD and MAPANZURE and ELPHAS UTETE and ZACHARIOUS GODI
Ruled By: CHATUKUTA J

The first issue is whether or not the first respondent acted fairly, and therefore lawfully, in summarily cancelling the lease agreement without affording the applicant a chance to respond to the allegations that he was in breach of the agreement. The applicant submitted that the first respondent was obliged, at law, to give him an opportunity ...

HH54-13 : OX MINING (PRIVATE) LIMITED and GOLD RECOVERY GROUP (PRIVATE) LIMITED vs OX DRILLING LLC and SIDNEY STEYN and DIRK BENADE and THE COMMISSIONER-GENERAL
Ruled By: MAKONI J

Going back to the points in limine raised by the respondents. My view is that the third respondent cannot take those points in limine. Those points emanate from the relationship between the applicants and the first respondent. To the extent that the court has made a finding that the third respondent cannot represent the first respondent, the ...

HH80-11 : CAIRO MHANDU vs JORDAN MUSHORE and RONALD MUSHORE and SAKALA CHOKOTO and FAITH DZAWO and DEPUTY SHERIFF
Ruled By: BHUNU J

During the course of the hearing, it was conceded that the applicant has locus standi in that he is the holder of an offer letter to the disputed land. During the course of the hearing, it emerged that the dispute boils down to a boundary dispute. On the face of it, it appears to ...

HH140-11 : 59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME vs HARARE MUNICIPAL WORKERS UNION and CITY OF HARARE and OTHERS
Ruled By: MTSHIYA J

The applicants allege that following negotiations between Valley Lane Investments (Pvt) Ltd and the second respondent, the second respondent waived its right to cancel the agreement. The applicants then proceeded to start developments on the Stands.

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD
Ruled By: MATHONSI J

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

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

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

The claims are located in the Dete area of Hwange.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Both the first and second respondents claim that the applicant's claim was cancelled but they are silent as to when and how the cancellation was affected.

In her submissions, counsel for the first and second respondents stated, that, the “claims were cancelled in line with section 50 of the Mines and Minerals Act, Chapter 21:05, which provides for cancellation of such certificates of registration notwithstanding the provisions of section 58 of the same Act.”

The issue which then arises is whether such cancellation was done in accordance with the provisions of the Mines and Minerals Act [Chapter 21:05].

The applicant has vehemently argued that it was not and, that, because there was no compliance, it remains the lawful holder of claim number 11769BM. The applicant asks for a declaratory order to that effect.

If a cancellation is done by the first respondent in breach of the Mines and Minerals Act, such cancellation is void ab initio because anything done by an official in excess of the powers conferred upon him or without following the procedure for such cancellation is null and void: Musara v Zinatha 1992 (1) ZLR 9 (H)…,.

In that case, ROBINSON J went on to state…, that, an interested person should be at liberty and entitled, at any time, to approach this court for an order declaring the act in question to be null and void and that the court should be slow to turn a party away where it seeks a declaratory order about its status. At 13F the learned judge concluded that:

“I consider that the same approach should be adopted by the court in a civil case where, on the papers before it, the moreso where those papers seek a declaratory order, an act of glaring invalidity is, as in this matter, staring the court straight in the face: for the court to refuse, save in exceptional circumstances justifying such refusal, to declare the act in question null and void ab initio on some technical ground would, I agree, be to ignore the courts fundamental duty to see that justice is done which, after all, is the duty which the layman expects the courts to discharge.”

Accordingly, I do not agree with counsel for the third respondent that the application for a declaratory order should not be entertained as it amounts to the court usurping the power of the first respondent to adjudicate and cancel the registration certificate.

To deny the applicant audience in the face of glaring inconsistencies on the part of the first respondent's conduct, and clear violations of the provisions of the Mines and Minerals Act, amounts to an abdication of duty.

The first respondent claimed to be acting in terms of section 50 of the Mines and Minerals Act [Chapter 21:05] in cancelling the claims. That section provides:

“(1) Subject to subsection (2) the Mining Commissioner may, notwithstanding subsection (1) of section 58, at any time cancel a certificate of registration issued in respect of a block or site if he is satisfied that;

(a) At the time when such block or site was pegged, it was situated on ground reserved against prospecting and pegging under section 31 or 35 on ground not open to pegging in terms of subsection (3) of section 258; or

(b) Provisions of this Act relating to the method of pegging a block or site were not substantially complied with in respect of such block or site.”

In a case which falls under subsection (1), the first respondent is required to act in terms of subsections (2) and (3) which provide;

“(2) At least thirty days before cancelling a certificate of registration under sub-section (1) the mining commissioner shall give notice to the holder of the block or site of his intention to cancel such certificate and of the grounds for such cancellation and of the proposed date of such cancellation, and shall at the same time inform the holder that he may, at any time before that date, appeal in writing to the Minister against such cancellation.

(3) Such notice shall be given by registered letter addressed to the holder of the block or site at the postal address recorded in the office of the mining commissioner, or, if no such address is recorded, by publication thereof in the Gazette.”

There has been a signal failure to comply with any of these provisions relating to cancellation of the registration certificate.

What the first respondent has done is merely to announce the cancellation without more.

So, even assuming that section 50 of the Mines and Minerals Act applied to this case, which is unlikely given that the area was not reserved against prospecting and pegging under sections 31 or 35 and section 258(3) has no bearing, and the pegging method has not been questioned, the first respondent has not complied with the procedure for cancellation set out in subsections (2) and (3) of section 50 of the Mines and Minerals Act.

This therefore means, that, her actions not only offended the audi alteram partem principle but also that failure to comply with the mandatory procedural requirements renders her decision ultra vires section 50 of the Mines and Minerals Act: see Cluff Mineral Exploration (Zimbabwe) Ltd v Union Carbide Management Services (Pvt) Ltd & Ors 1989 (3) ZLR 338 (S)…,.

It was half–heartedly argued, by counsel for the third respondent, that, the first respondent has not yet cancelled the registration certificate, and, as such, due process must be allowed to take its course.

Unfortunately, that argument directly contradicts the submissions made by counsel for the first and second respondents.

Counsel for the first and second respondents unequivocally submitted, that, the applicants “claims were cancelled in line with section 50 of the Mines and Minerals Act [Chapter 21:05]” in paragraph 6 of her heads of argument and maintained that position during the hearing.

Accordingly, the cancellation was effected, and, in view of the violations referred to above, it cannot be allowed to stand.

SC12-17 : JOHN CONRADIE TRUST vs THE FEDERATION OF KUSHANDA PRE-SCHOOLS TRUST and MUNICIPALITY OF MARONDERA and UNITED METHODIST CHURCH (MARONDERA INNER CITY) and REGISTRAR OF DEEDS N.O.
Ruled By: BHUNU JA

In determining the applicant's prospects of success on appeal, it is necessary to recap the facts pertaining to the cause of action.The first respondent, that is to say, The Federation of Kushanda Pre-Schools, is the registered owner of Stand 1894 Marondera Township (the Stand) held under Deed of Transfer 2910/2006. The third respondent ...

In determining the applicant's prospects of success on appeal, it is necessary to recap the facts pertaining to the cause of action.

The first respondent, that is to say, The Federation of Kushanda Pre-Schools, is the registered owner of Stand 1894 Marondera Township (the Stand) held under Deed of Transfer 2910/2006. The third respondent bought and took occupation of the Stand from the first respondent sometime in September 2007. The applicant, unsuccessfully, sued the respondents in the High Court from which it had sought the following relief:

1. To be declared the lawful owner of the Stand;

2. Cancellation of the 1^st respondent's title deeds;

3. Registration of the Stand in its own name; and

4. Eviction of the 3^rd respondent and all those claiming occupation through it from the Stand.

At the hearing in the court a quo, the first respondent consented to judgment. The second respondent did not oppose the application. The third respondent, however, opposed the application and took a special plea contending that the applicant's cause of action had prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11]. That section provides as follows:

“15 Periods of prescription of debts

The period of prescription of a debt shall be -

(a) Thirty years, in the case of -

(i) A debt secured by mortgage bond;

(ii) A judgment debt;

(iii) A debt in respect of taxation imposed or levied by or under any enactment;

(iv) A debt owed to the State in respect of any tax, royalty, tribute, share of the profits or other similar charge or consideration payable in connection with the exploitation of or the right to win minerals or other substances;

(b) Fifteen years, in the case of a debt owed to the State and arising out of an advance or loan of money or a sale or lease of land by the State to the debtor unless a longer period applies in respect of the debt concerned in terms of paragraph (a);

(i) A debt arising from a Bill of Exchange or other negotiable instrument or from a notarial contract;

(ii) A debt owed to the State;

unless a longer period applies in respect of the debt concerned in terms of paragraph (a) or (b).

(d) Except where any enactment provides otherwise, three years, in the case of any other debt.”

The learned judge in the court a quo upheld the special plea with costs, hence this appeal.

For the applicant to succeed, it must show, on a balance of probabilities, that it has reasonable prospects of success on appeal. In doing so, it must point to some fault, misdirection, irregularity or impropriety in the judgment it seeks to impugn. In short, it must show, on a balance of probabilities, that it has an arguable case on appeal.

It is now incumbent upon me to determine whether the applicant has discharged that onus on a balance of probabilities.

The learned judge in the court a quo made a specific finding of fact…, that counsel for the applicant had made an unequivocal concession that the applicant's cause of action had in fact prescribed. This is what the learned judge had to say:

“Mr Mharapara, for the plaintiff (applicant), conceded that the running of prescription commenced in September 2007 when the third defendant (3^rd respondent) purchased the Stand and took occupation. He conceded that the prescriptive period of 3 years has run its course.”

Having made that clear concession, Mr Mharapara nevertheless argued that prescription was not a remedy available to the third respondent in the circumstances of this case. Strange arguments were advanced, both in the court a quo and before me in chambers, as to why the third respondent should be precluded from raising prescription as a defence.

It was argued that third parties are precluded from raising prescription as a defence if they have no real right or real interest in the disputed property.

Apparently relying on the well-known common law principle that the owner of property can vindicate it at any time wherever he might find it, it was argued that prescription does not apply where the owner seeks to vindicate its property from a third party. It was further argued that the third respondent could not raise prescription as a defence because vindication was not a claim for a debt.

No authority was cited for the strange proposition of law barring third parties from raising prescription as a defence.

The applicant's proposition has no foundation at law.

A perusal of the Prescription Act [Chapter 8:11] shows that nowhere does it prohibit or exclude third parties from raising prescription as a defence. What prescribes is the debt and not any of the parties concerned. It is therefore open to third parties to raise the defence of prescription, in appropriate cases, once prescription has run its course.

As we have already seen above, the circumstances under which prescription may be raised as a defence are clearly spelt out under section 15(d) of the Prescription Act [Chapter 8:11] which provides that a debt, except where statute provides otherwise, shall prescribe after three (3) years.

Section 2 of the Prescription Act [Chapter 8:11] goes on to define a debt as:

“2 (1) In this Act –

'debt', without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”…,.

The phrase, “anything which may be sued for” gives the term 'debt' a very wide meaning synonymous with cause of action as observed by GREENLAND J in Denton v Director of Customs & Excise 1989 (3) ZLR 41…,. In that case, the learned judge had occasion to remark that:

“Note that the word 'debt' used in this Act (Prescription Act) and the words 'cause thereof' used in s 178 (4) of the Customs and Excise Act mean the same thing. This is because of the wide meaning of 'debt' set out in the former.”

Since the applicant is suing the third respondent for vindication, its suit falls squarely within the ambit of 'anything which may be sued for.' What this means is that a claim for vindication of property amounts to a claim for a debt in terms of the Prescription Act [Chapter 8:11].

It therefore follows, as a matter of common sense, that the applicant's suit, being a claim for vindication, in legal parlance, it is a debt which is subject to prescription in terms of the Prescription Act [Chapter 8:11]. For that reason, the learned judge in the court a quo cannot be faulted at all for determining that the applicant's claim against the third respondent had prescribed.

The mere fact that the first respondent was consenting to the applicant's claim is an irrelevant consideration which does not interrupt the running of or defeat the defence of prescription in terms of the Act….,.

The learned trial judge, having correctly found that the applicant's claim had prescribed, I accordingly find that he has forfeited his right to vindicate the disputed property from the applicant whether or not he has a valid claim against it.

It is for the foregoing reasons that I dismissed the applicant's application at the close of argument in chambers.

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

In correspondence and affidavits deposed to on his behalf, the Minister of Lands and Rural Resettlement avers that TBIC Investments (Private) Limited had made considerable investment on the portion of the original property sold to it. However, TBIC Investments (Private) Limited itself does not say anything in this regard….,. TBIC Investments (Private) Limited's argument that the ...

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS
Ruled By: MALABA CJ

According to the applicants, the resignation from office by the former President was a direct result of the military action of 14 November 2017 known as “Operation Restore Legacy.” The applicants allege that it was the presence of military vehicles in the streets of Harare, between 14 and 21 November 2017, that caused the former President ...

Their contention was that the resignation was not a result of exercise of free will….,.

At the hearing of the application, counsel for the fourth respondent invited the Court to consider the applicants' conduct in the case. He argued that the application was frivolous and vexatious. The applicants must have realised the futility of founding the relief sought in the main application on the allegation that the former President signed the written notice of resignation from office under duress. Without supporting evidence from the latter, the applicants must have known that they would not be able to prove the allegation. He said that the applicants “abused court process for political reasons.”…,.

One does not ordinarily append one's signature to a document the contents of which do not represent one's interests. The signature is in itself evidence, in the absence of anything of stronger probative value to the contrary, of the fact that the contents of the document express the true intention of the signatory. In the circumstances, the author of the written notice of resignation would carry the evidential burden of proving that he or she signed the written notice under duress.

The applicants seek to impugn the constitutionality of the former President's resignation by alleging, without any evidence, that he resigned under duress. However, the fact that the former President freely and voluntarily chose to act constitutionally in bringing his presidency to an end, thereby ensuring a smooth and peaceful transfer of power, attests to an application of the mind to the consequences of his action.

In the absence of any allegation and evidence by the signatory of having signed the document under duress, a court would not even find it necessary to enquire into the credibility or otherwise of allegations of the document having been signed under duress being made by a third party who was not present at the time the document was signed.

View Appeal
SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

The first appellant…, raised the issue of change of land….,. The issue of State ownership of the acquired land is really an issue between Cecil Michel Reimer and the acquiring authority. Cecil Michael Reimer has, however, chosen not to be a party to this matter…,.

HH485-13 : LOVENESS KUDZANGA vs GODFREY KUDZANGA and THE REGISTRAR OF DEEDS and DEPUTY SHERIFF HARARE
Ruled By: MAWADZE J

According to the first defendant, the plaintiff is now separated from her husband, Dickson Kudzanga, who is not even part of these proceedings. The defendant further states that the plaintiff cannot purport to sue for a benefit allegedly due to Dickson Kudzanga who is not claiming the same in his own capacity….,. What is surprising is that the ...

HH517-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS PL t/a CORE SOLUTIONS and SHERIFF OF ZIMBABWE and STANBIC BANK LIMITED and REGISTRAR OF COMPANIES
Ruled By: ZHOU J

There is also a complaint made equivocally in the applicant's papers that some of the attached shares do not belong to the applicant but to third parties. Apart from the fact that the applicant has no locus standi to represent those unnamed other parties, no detail is given as to which of the attached shares do not ...

HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

The second defendant said that the cottage that the plaintiffs claimed to have built on the property had not been approved by the local authority.

HH140-15 : CHIEF SUPERINTENDENT MOYO and PROSECUTOR GENERAL vs OMEGA CHATYOKA
Ruled By: MTSHIYA J

Paragraph 11 of the founding affidavit filed by the first applicant reads as follows: “11. The defence has good prospects of success on the merits. The respondent had no legal right to claim the motor vehicle as the legal owner of the motor vehicle, a Toyota Suquoia, is Farai Auxullia Chindoori.” Clearly, it is Farai Auxuilia Chidoori who has ...

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

The other point to note is that some of the evidence the applicant alluded to as justification for joinder of estates occurred before Anita June Bruk-Jackson became mentally incapacitated. Such aspects as the rebuilding of the Emerald Hill house after its purchase and the opening of the deceased's offshore Bank account using money from Anita's account. It is my view ...

HH05-18 : MOVEMENT FOR DEMOCRATIC CHANGE (T) and MOVEMENT FOR DEMOCRATIC CHANGE (N) and SARAH KACHINGWE vs ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL N.O. and OTHERS
Ruled By: MUNANGATI-MANONGWA J

The only independent fact raised by the first respondent is that allowing the relief sought to prevail creates an unfair advantage for persons in the class of the third applicant as against the rest of the citizenry. This is premised on the fact that no other classes of citizens will be allowed to register to vote outside ...

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

It is trite, at law, that a party has to motivate their own defence.

HH203-14 : CALEB DENGU and WILSON TENDAI NYABANDA vs ZIMBABWE ALLIED BANKING GROUP LIMITED
Ruled By: MATANDA-MOYO J

Sureties are persons who pledge security with a creditor to cover the indebtedness of another. The defendants herein engaged with the plaintiff to be answerable, in the second degree, for the default of Onclass Investments (Pvt) Ltd. The defendants' liability in this matter, therefore, follows that of the principle debtor. It follows, therefore, that the defences available to ...

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me. The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares ...

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i) Firstly, whether the judgment by MAFUSIRE J gave Muir leave to defend the matter.

(ii) Secondly, whether the affidavit by Mr Stevenson is properly before me. In other words, is there a Notice of Opposition on behalf of Muir?

In dealing with the first point, it is important to determine whether Muir was served with the court application. There is a Return of Service which was rendered by the Deputy Sheriff which reflects that the court application was served at No. 98 Churchill Avenue, Gunhill, Harare. It was served by placing in a letter-box. The service was on behalf of the first respondent, the company and the second respondent - Muir. In terms of clause 9 of the agreement between Muir and the Gurupiras, Muir chose that address as her domicilium citandi.

It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (10) ZLR 226 (SC).

In casu, Muir has not placed any facts before this court, either in the application for rescission on in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect. All that Mr Stevenson could say was that he wondered why the application was not served on his law firm. The answer is to be found in clause 9 of the agreement. Service of the process other than as stipulated in the agreement would have fallen foul of that clause.

Having been served, and after the expiry of 10 days, Muir was therefore barred. This is provided for in Rule 233(2) of the High Court Rules, 1971. She did not approach the court to seek upliftment of the bar.

The fact that the company successfully sought rescission of the judgment does not assist her.

MAFUSIRE J was clear in his order. He gave the company leave to file its opposing papers. He did not relate to the position of Muir as she had not made an application for the order to be set aside. She cannot therefore cling to the judgment made in favour of the company and allege that it paved the way for her to file her papers in opposition. MAFUSIRE J could not grant what had not been prayed for.

Coming to the second angle, Muir did not file an affidavit neither has one been filed by a party authorised by her.

In terms of Rule 227(2)(b), every written Notice of Opposition shall be signed by the respondent or by his legal practitioner. In terms of Rule 227(4)(a) an affidavit shall be made by the respondent or by a person who can swear to the facts or averments set out therein.

It is trite that where the Notice of Opposition or affidavit is to be signed by a person other than the respondent, that person must show that he is authorised to do so. The authors HERBSTEIN & Van WINSEN - The Civil Practice of the High Courts of South Africa, 5^th Ed…, put it this way;

“Where an application is made by an agent on behalf of a principal, an averment of the agent's authority is essential, unless it appears from the affidavits filed in the application that the principal is aware of and ratified the proceedings. A statement that the applicant is acting in the capacity of agent for the principal in question is a sufficient allegation of authority to make the application.”

In casu, Mr Stevenson filed an affidavit. It is not clear whether it is an opposing or supporting affidavit. In it he avers that he renounced agency after being asked by Muir to hand over her files to some other legal practitioners. In paragraph 7 he asserts;

“I have been prevailed upon by interested parties to the instant matter to act on behalf of the second respondent in the absence…,.”

It is a telling assertion. He filed the “affidavit” without a mandate from Muir but did so due to some pressure from interested parties.

After the matter had been postponed, Mr Moyo, for Leggatte, filed a supplementary affidavit whereby he asserted that he had discovered a letter from Muirs's son authorising Mr Stevenson to act for Muir.

It is clear that this is an attempt to validate the actions of Mr Stevenson.

Mr Stevenson does not depose to the supplementary affidavit to explain why he was quite categoric in his affidavit that “he had been prevailed upon”. This does not explain why he filed the affidavit in his name without an averment that he had been authorised by Muir to defend the proceedings and to depose to the opposing affidavit.

If the interested parties thought that his evidence would assist them, then he should have deposed to an affidavit which they would attach to their own papers.

In any event, Mr Stevenson does not have personal knowledge about some of the critical matters in this case. He has no independent knowledge of whether the Gurupiras discharged their obligations or not in terms of the agreement. He does not know whether Muir cancelled the agreement, and, if so, how.

Mr Stevenson is either mistaken on the facts or he did not tell the truth in his affidavit. In paragraph 12 of his affidavit he states;

“The agreement signed by the second respondent and her husband, Ramon Charles Muir, on 27 May 2008 with John Leggatte, who signed on 28 May 2008…,.”

It is common cause that the agreement with Leggatte was entered into by Sandra Muir only. By the time of that agreement, her husband was late. She owned the two issued shares in the company with her husband's share having been transferred to her in 2006. Whatever information that he placed before the court is hearsay and it is inadmissible - and such information does not constitute Muir's opposition.

In view of the above there is no opposition filed by Muir and the matter will be related to on that basis.

This leaves the court with the Gurupira's position and that of Leggatte in the main and the counter-application.

Mr De Bourboun contented that, at best, the Gurupiras own two shares of the 100 issued shares in the company. That right is in dispute as they failed to pay the purchase price and the agreement terminated in terms of clause 13. Leggatte owns the remaining 98 issued shares. The Gurupiras have no proof in the form of certificates that they own the two shares. There is no entry in the share register.

The other issues that he addressed, relating to the transfer of the company property to the Gurupiras, were taken care of by the amendment to the draft order.

It was further submitted that you cannot give any relief which impacts on Muir in her absence.

In respect of the counter-application, Mr De Borboun contended that the Gurupiras are in unlawful occupation of the property that belongs to the company in which Leggatte was the majority shareholder. There is no arrangement, contractual or otherwise, in terms of which the Gurupiras can claim a right to reside in or occupy the property.

The Gurupira's position is that they discharged their obligation in terms of the agreement. The agreement still subsists. It makes the agreement with Leggatte a double sale.

It was further submitted that once Muir had sold the two shares, she lost rights to deal with those two shares. She could not do the allotment of the other shares as that is done by directors and not shareholders. She would need a quorum of two (2) directors as provided for in terms of section 169(v) of the Companies Act [Chapter 24:03].

The Gurupira's position can only be responded to by Muir who is not before the court. The position of law is settled on this point. In Fawcett Security Operations (Pvt) Ltd v Director of Customs & Excise & Ors 1993 (2) ZLR 121 (SC) it has stated:

“The simple rule of the law is that what is not denied in affidavits must be taken to be admitted.”

In casu, no evidence has been placed before the court to controvert the Gurupira's assertion that they complied with their obligations. There is also no evidence that the agreement was cancelled. As it is, nothing stands in the way of the grant of the order as sought by the Gurupiras.

In my view, the applicants have not established a legal basis for the property to be transferred into their names. The property is the sole asset of the company. The applicants will be the shareholders of the company. They will have to deal with the property in terms of the Companies Act. Any reference to transfer of the property in the draft order will therefore be deleted.

In view of the findings I made above, Leggatte's counter application cannot succeed.

In the result, I will make the following order;

IT IS ORDERED THAT:

1. An order declaring the first and second applicants to be the lawful shareholders of the entire shares in the first respondent (the company) and that any purported transfer or appointment of directors by the sixth respondent to the first respondent be deemed null and void.

2. An order that the second respondent be directed to sign all necessary documents to effect transfer of the abovementioned shares.

3. Should the second respondent fail to sign the necessary documents to effect transfer of the shares, the fourth respondent is hereby directed to sign all necessary documents to effect transfer of the shares to the first and second applicants.

4. The first and sixth respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.

View Appeal
SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

This is an appeal against a judgment of the High Court handed down on 18 May 2016. BACKGROUND FACTS The facts which gave rise to this appeal are somewhat convoluted. Earthmoving Construction Company (Private) Limited, the second appellant (hereinafter referred to as “the Company”), is a private limited company duly registered as such under the laws of Zimbabwe. The Company ...

This is an appeal against a judgment of the High Court handed down on 18 May 2016.

BACKGROUND FACTS

The facts which gave rise to this appeal are somewhat convoluted. Earthmoving & Construction Company (Private) Limited, the second appellant (hereinafter referred to as “the Company”), is a private limited company duly registered as such under the laws of Zimbabwe.

The Company had, at the time of incorporation, an authorized share capital of $32, divided into 32,000 ordinary shares with a nominal value of $0.001 each. Of those shares, only two had been issued. and were, at the time that these events evolved, owned by one Sandra Maureen Muir (“Mrs Muir”). This, in effect, gave 100 percent ownership of the issued shares to Mrs Muir.

In turn, the Company is the registered owner of an immovable piece of land, situate in Harare, identified as a certain piece of land situate in the district of SALISBURY TOWN LANDS measuring 3,066 square metres (also known as 98 Churchill Avenue, Gunhill, Harare). This property is the sole asset of the company.

On 27 May 2007, Mrs Muir concluded a written agreement of sale with Mr and Mrs Gurupira, in terms of which Mrs Muir sold to them the two shares in the Company. In terms of the agreement between the parties, the shares purchased by the Gurupiras' would entitle them to the “exclusive right of use and occupation” of the immovable property owned by the company. The purchase price for the shares was recorded as ZW$7,000,000,000= (seven billion dollars), payable as to a deposit of ZW$3,300,000= which was acknowledged as having been paid at the time of signing of the agreement. The balance of ZW$3,370,000,000= was to be paid within six (6) months from the date of the agreement. The rate at which the outstanding balance was to be paid as well as the frequency thereof were left to the discretion of the parties.

Although the purchase price was quoted in the local currency, it is common cause that the Gurupiras made sporadic payments sometimes in fuel, sometimes in US Dollars, and sometimes in Zimbabwe Dollars.

Up until the end of June 2007, the Gurupiras had made payment on eight occasions, with payment being made as described above. The total amount paid to Mrs Muir under this arrangement is in dispute between the parties.

On 4 August 2007, the Gurupiras addressed a letter to Mrs Muir indicating that they were encountering challenges raising the balance of the purchase price and sought an extension of the time to make payment but did not specify an exact date of expected payment. The last date for payment under the agreement was 25 November 2007.

A dispute ensued on the manner of payment, the currency of payment, and the place at which payment should be effected.

The Gurupiras alleged that at some point Mrs Muir started refusing payment in the local currency and demanded that the balance be paid in foreign currency. Mr Gurupira advised Mrs Muir that he could only pay foreign currency if he was able to access it and that he was not always in a position to obtain it. On 12 November 2007, Mr Gurupira instructed his legal practitioners to write to Mrs Muir to provide an account into which payment of the outstanding balance of the purchase price could be deposited. There was no response.

On 23 November 2007, the Gurupiras filed an application in the High Court seeking an order for Mrs Muir to provide a Bank account into which payment of the outstanding balance of the purchase price could be paid. In addition, they sought an order for specific performance by Mrs Muir for the transfer of shares in the company to themselves against a tender of payment of the balance of the purchase price.

This application never saw the light of day having been withdrawn before it could be set down.

The record shows that on 6 September 2007, the Gurupiras made a payment through wire transfer directly to Israel where Mrs Muir was now residing. Also on record is a cheque payment, in February 2008, into a Standard Chartered Bank account bearing Mrs Muir's name.

It is common cause that during the period following the filing of the above mentioned application Mrs Muir concluded a series of agreements with the first appellant, (“Leggett”).

On 11 December 2007, Mrs Muir and Leggett concluded an agreement in terms of which the latter would subscribe to 98 ordinary shares in the company. Subsequently, on 27 May 2008, Leggett concluded an agreement with Mrs Muir in terms of which the former purchased the entire shareholding in the company from Mrs Muir. Just as in the case of the Gurupiras, the purchase entitled him to “exclusive use and occupation” of the immovable property which is the subject matter of this appeal.

Subsequent to the conclusion of the first agreement, the Gurupiras became aware that Mrs Muir had placed advertisements for the sale of the immovable property. As a consequence, on 7 March 2008, under Case No. HC1393/08, the Gurupiras filed an application with the High Court in which they sought, variously, as against the company, interlocutory relief prohibiting the transfer of the immovable property, and, as against Mrs Muir, an order for specific performance in respect of the immovable property. The Registrar of Deeds, the Sheriff for Zimbabwe and his Deputy were also cited as third, fourth and fifth respondents respectively.

On 21 May 2018, the High Court granted an order in favour of the Gurupiras, in default of appearance from Mrs Muir and the company, as claimed in the draft order.

On 16 June 2008 the property was transferred to the Gurupiras under Deed of Transfer No. 4778/08. They proceeded to evict the occupant, one Diniwe Chinyani. She informed Leggett.

An urgent application for rescission of the default judgment was filed on behalf of the company. It was adjudged not urgent and was finally set down for hearing as an opposed matter. However, the matter was referred to trial on the premise that there existed material disputes of fact.

Pending the determination of the application for rescission, the company filed a counter application in which it sought an order for the eviction of the Gurupiras on the premise that it was the owner of the property in question.

On 19 March 2014, after a full trial, the High Court gave an order in terms of which the default judgment was set aside with leave being granted for “the respondent” in the main application to file opposing papers.

The main application was heard by the High Court on 21 May and 18 June 2015. By this time, pursuant to an application by the Gurupiras, Leggett had been joined as sixth respondent by order of the court. An issue arose as to whether Mrs Muir was before the court. The Gurupiras argued that she had not applied for the rescission of the default judgment in the sense that only the company had sought such rescission. It also transpired that Mr Stevenson, who purported to represent her on the day of the hearing, had not filed papers on her behalf nor did he appear to have the mandate to represent her.

On 18 May 2016 the High Court handed down its judgment and issued an order:

1. Declaring that the Gurupiras to be the lawful shareholders of the entire shareholding in the first respondent (the company) and that any purported transfer or appointment of directors by the sixth respondent (Leggett) be deemed to be null and void. (sic)

2. Directing the second respondent to sign all necessary documents to effect transfer of the above-mentioned shares. (sic)

3. That should the second respondent fail to sign the necessary documents to effect transfer of the shares, the Sheriff of the High Court be directed to sign all necessary documents to effect transfer of the shares to the Gurupiras.

4. The first and sixth respondents shall bear the costs of this application on an attorney and client scale jointly and severally each causing the other to be absolved. (sic)

5. Dismissing the sixth respondent's counter-application.

It is this decision that Leggett has brought on appeal...,.

ISSUES FOR DETERMINATION ON APPEAL

Although the Gurupiras obtained an order for specific performance against Mrs Muir, which is the main issue in contention in this appeal, the starting point revolves around the issue of rescission of the default judgment of 21 May 2018.

1. In this appeal, the court has to determine the effect of the order for rescission given by MAFUSIRE J.

2. Consequent thereto is the issue as to whether Mrs Muir, following upon the rescission of the default judgment, was before the court a quo for the determination of the main application.

3. Additionally, there should be a determination as to whether the court a quo was correct in finding that the Gurupiras were entitled to specific performance. For the proper determination of this aspect on the merits, it stands to reason that Leggett and the company could only appeal if Mrs Muir was a party to the proceedings. Her absence militates against their contentions in that regard.

4. Lastly, the court had to decide whether Leggett was entitled to relief in respect of the shareholding transferred to him by Mrs Muir....,.

AD GROUND 3 - WHETHER THE COURT A QUO ERRED IN FINDING THAT THE GURUPIRAS HAD ESTABLISHED AN ENTITLEMENT TO THE TRANSFER OF SHARES

Counsel for the appellants contended that the Gurupiras had not established an entitlement to the transfer of shares in their names.

In my view, this submission could only be made on behalf of Mrs Muir and not the two appellants.

Although Mrs Muir was adjudged not to be before the court a quo, a critical examination of the submissions, both in the High Court and this Court, will tend to show that almost all the points being raised related to Mrs Muir and her relationship with the Gurupiras. I can only say that this is an unfortunate development in the sense that, whatever the relationship between Leggett and Mrs Muir was, it was clear on the papers that counsel for the appellants appeared on behalf of the two appellants, Leggget and the company - and not Mrs Muir.

Leggett was not, and could not claim to be privy to the transaction between Mrs Muir and the Gurupiras. He concedes as much in all the affidavits deposed to by him. On that score, he is not in a position, nor would I find that he was, authorized to speak to it.

When the High Court granted the application for rescission of the default judgment, it set aside the interdict and the order for the transfer of the property to the Gurupiras. The learned judge however also ordered that the following pertinent issues be determined in the main application:

“3. The following residual issues shall be determined in the main application in HC1393/08:

3.2 Whether or not the transfer of shares in the plaintiff company (Private) Limited, by the third defendant to one John Leggett, should be set aside;

3.3 Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare;

4 The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order and thereafter the filing of any further documents shall be in accordance with the Rules.”

Pursuant to this, on 2 November 2009, the Gurupiras filed a counterclaim in which they sought an order for the setting aside of the transfer of shares in the company from Mrs Muir to Leggett. Concomitant with that prayer was a prayer for the transfer of those shares to the Gurupiras.

I note that at the commencement of the hearing in the court a quo counsel for the respondents moved an application for the amendment of the draft order on behalf of the Gurupiras.

The court a quo recorded that the application was granted with the consent of both counsel for the appellants and Stevenson. This is what the court said:

“On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr de Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted.”

The granting of the application to amend the draft order disposed of the point taken by the company and Leggett regarding the competency of the order sought by the Gurupiras.

The coming into the picture of Leggett did not, in my view, change the substance of the agreement between Mrs Muir and the Gurupiras. The latter purchased the two issued shares that Mrs Muir had in the company. The purchase of those shares bestowed rights upon them. According to the agreement, they were entitled to certain rights in the immovable property owned by the company. The pertinent paragraphs of the agreement are set out hereunder and read:

“C. The authorized share capital of the Company is divided into 32,000 (thirty-two thousand) ordinary shares of $1.00 each, of which authorized share capital 2 (two) ordinary shares (the shares) have been issued as follows:

SANDRA MAUREEN MUIR 2 CERTIFICATE No 1 & 3. She being the sole beneficial owner thereof;

D. The said shares confer on the holders thereof an exclusive right of occupation and use of the property;

E. The parties warrant that at the date of execution hereof and at the date of payment in terms of clause 2 of this agreement they are and they will be residents of Zimbabwe;

F. The purchaser warrants that he is using Zimbabwe dollars;

G. The seller is desirous of selling the shares, which shares confer on the holder hereof the exclusive right of use and occupation of the property and the improvements thereupon;”

From a perusal of these pertinent clauses in the agreement, the purchase by the Gurupiras of the two issued shares at the time of the sale entitled them to the exclusive use and occupation of the immovable property owned by the company. There was no novation of the agreement. There was no evidence that the agreement was ever cancelled. If it was, Mrs Muir did not choose to establish such fact before the court a quo. This she was obliged to do in order to oppose the claim for specific performance brought against her by the Gurupiras.

As matters stand, that application was unopposed.

In disposing of this issue, the court a quo stated that no evidence had been placed before it to controvert the assertion by the Gurupiras that they had complied with their obligations in terms of the agreement. Also, the learned judge in the court a quo found, as a fact, that no evidence had been placed before the court that the agreement had been cancelled.

I have to agree.

It is also pertinent to note that there was no appeal against these findings of fact which are themselves critical as to the determination of the respective rights of Mrs Muir and the Gurupiras in the claim for specific performance. Instead, the appellants placed reliance on findings of fact made during the application for rescission of judgment. Those findings of fact, which did not include evidence from Mrs Muir, cannot be binding in this instance.

In the initial application filed under Case No. HC1393/08, the Gurupiras sought an order for the transfer of the immovable property to themselves. An order for the transfer of the immovable property to the Gurupiras affected the rights of the company in the immovable property and the company was within its right in approaching the court for the reversal of that order. Leggett called witnesses to testify and they could only testify on behalf of the company - but not on Mrs Muir's behalf. In everything he did, Leggett purported to act for the company. The substantive relief, premised on the sale of shares, contained in the draft order, was against Mrs Muir, the Registrar of Deeds and the Sheriff. Clearly, in the circumstances, they had no business testifying on matters not within their personal knowledge.

This ground has no merit and is accordingly dismissed....,.

The absence of Mrs Muir from the proceedings left Leggett in a quagmire. The agreement of sale gave the purchasers the exclusive use and occupation of the immovable property. The agreement was not cancelled. The Gurupiras produced documents showing payments. Mrs Muir acknowledged having received some of the payments. However, she did not herself participate in the proceedings and the parties called to court were not there as her witnesses but for the company.

In the absence of a challenge to the contention by the Gurupiras that they complied with their obligations under the agreement, the court a quo had no option but to grant specific relief as prayed....,.

The last ground, ground number 7, speaks to disputes of fact.

Only Mrs Muir could make this argument. Neither the company nor Leggett, not having been privy to the agreement between the parties, could claim that there were disputes of fact. Once it was found that Mrs Muir was not properly before it, the court a quo could not be enjoined to find that any material disputes of fact existed.

Appealed
SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE
Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

This is an appeal against the whole judgment of the High Court declaring the Agreement of Sale between the appellant and the respondents valid and binding on the basis that the appellant had the requisite mental capacity to contract and granting the consequential relief of eviction of the appellant.FACTUAL BACKGROUNDPrior ...

FACTUAL BACKGROUND

Prior to 26 January 2006, the appellant had rights and interest in a property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare (“the property”). She instructed Fingold Real Estate (Fingold) to sell the property on her behalf. An advertisement of the sale of the property was published in the Herald newspaper by Fingold, prompting one Abel Murape, the first respondent's father, who acted as the respondents' agent, to engage with Fingold regarding the sale.

The respondents are husband and wife.

The engagement resulted in an Agreement of Sale between the appellant and the respondents, wherein the appellant sold her rights and interest in the property to the respondents. The Agreement of Sale was reduced to writing and duly signed by the appellant and Abel Murape before the estate agent and two witnesses on 26 January 2006.

It is not in dispute that the full purchase price of ($1,950,000,000) one billion nine hundred and fifty million Zimbabwean dollars was paid in full on the date of signature of the agreement. It was paid through Fingold Real Estate, and, of that amount, the appellant withdrew fifty million ($50,000,000).

Thereafter, the appellant, together with Abel Murape, proceeded to the Ministry of Local Government and National Housing (The Ministry) for confirmation that the purchase price had been paid in full. As the property had no title deeds, the parties proceeded to the City of Harare offices to effect cession from the appellant into the respondents' names.

A few days later, on 30 January 2006, and before the respondents had taken occupation, the appellant wrote a letter to Fingold Real Estate cancelling the Agreement of Sale. The appellant indicated that the money paid towards the purchase price was of no use to her. This was done notwithstanding the fact that the appellant had already withdrawn part of the money that had been paid for the property for her own use.

The respondents, on 5 March 2006, instituted proceedings in the court a quo seeking a declaratur that the agreement entered into between the parties was valid, the eviction of the appellant from the property, and costs of suit.

The appellant resisted the claim on the basis that, at the material time that she entered into the Agreement of Sale, she did not have the requisite mental capacity to contract. She pleaded in the following terms;

“1. At the material time, the Defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.”

Thereafter, the matter was referred to trial.

PROCEEDINGS IN THE COURT A QUO

One of the issues for determination at trial was whether or not the appellant had capacity to enter into a valid contract.

The appellant adduced evidence from two witnesses. The first witness was one Bothwell Tawanda Chinenguo (Bothwell), son to the appellant...,.,

Bothwell Tawanda Chinenguo gave the following evidence;

He was appointed curator ad litem of the appellant on 22 September 2016. The appellant was mentally ill and he would occasionally take her for treatment. It was because of the mental illness that the appellant left her employment around 2001. He claimed that the respondents took advantage of the appellant's mental condition in buying the property at a value below the market price as the property was sold at a time when the country was facing hyperinflation.

He could not comment on the appellant's state of mind at the time of the sale as he was at a boarding school....,.

The respondents' case was led by two witnesses, namely, the first respondent and Abel Murape. The first respondent was not directly involved in the transaction thus he could not comment on the mental state of the appellant as the contract was concluded by his father on his and his wife's behalf.

Abel Murape, who interacted with the appellant and with whom the appellant concluded the Agreement of Sale, gave..., evidence....,.

The court a quo found as insufficient the evidence of the appellant's son who testified that the appellant was mentally ill at the time of contracting. Its reasoning was that when the property was sold, the son was away at a boarding school and could not therefore comment, with certainty, on the mental state of the appellant at the material time....,.

It is only the persons who transacted or interacted with the appellant who could have observed the appellant's behaviour at the material time to determine whether or not the appellant was mentally capable of transacting at that time.

View Appeal
HH339-18 : KUDAKWASHE MURAPE and MABLE MURAPE vs MUCHANETA CHATAMBUDZA
Ruled By: CHIKOWERO J

The crisp issue for determination is whether, at the material time, the defendant did not have the mental capacity to enter into the Agreement of Sale by reason of insanity.

If the answer is in the affirmative, the Agreement of Sale entered into between the plaintiffs and the defendant, on 26 January 2006, would be null and void.

The following facts are common cause;

On 26 January 2006, and at Harare, the defendant sold all her rights, title and interest in an immovable property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare to the plaintiffs. The purchase price was one billion nine hundred and fifty million dollars (Zim $1,950,000,000).

The plaintiffs were represented by Abel Murape, the first plaintiff's father. The plaintiffs are spouses.

Abel Murape had seen an advertisement in the Herald newspaper reflecting that the property was for sale.

That advertisement had been flighted by Fingold Real Estate on the instructions of the defendant.

Abel Murape appeared at the offices of Fingold Real Estate. This led to the signing of the Agreement of Sale by Abel Murape on behalf of the plaintiffs, the defendant, two witnesses, and Violet Aleck, the registered estate agent.

The Agreement of Sale was drawn up by Fingold Real Estate on its stationery. It reflects them as Property Managers, Estate Agents, Valuers and Auctioneers. Their physical address, email address, website, postal address, mobile and landline numbers are reflected on the Agreement of Sale. That document was produced as exhibit 1 by consent.

The purchase price was paid in full on the date of signature of the Agreement of Sale. The same was paid through Fingold Real Estate, the defendant's agent in the transaction.

The defendant withdrew fifty million dollars (Zim $50,000,000) from the estate agent for her personal use.

She then accompanied Abel Murape to the offices of the Ministry of Local Government and Housing for confirmation that the property was fully paid for.

Because there was no title deed on the property, the defendant and Abel Murape also proceeded to City of Harare offices where cession was effected in favour of the plaintiffs.

Before the plaintiffs could take occupation, the defendant wrote to her estate agents cancelling the Agreement of Sale. The reason given in the letter is that the money was of no use to her. This was in reference to the purchase price paid. The handwritten letter, dated 30th January 2006, was copied to the Ministry of Local Government and Housing. It is exhibit 3.

The defendant resists the plaintiffs' claim on the basis of insanity....,.

The first plaintiff, who gave evidence for the second plaintiff and himself, fairly conceded that he could not comment on the defendant's mental capacity at the material time because he neither interacted with nor saw her. He was out of the country.

Abel Murape, who interacted with the defendant at the material time, testified that the defendant did not exhibit signs of mental illness....,.

I was not impressed by Bothwell Chenguwo. He is both the defendant's curator ad litem and son.

He was attending school in Magunje when the transaction occurred. He was appointed as curator on 29 June 2016. This was way after the Agreement of Sale was entered into. He did not prepare a report on the circumstances surrounding the engagement of Fingold Real Estate and the sale of the property in question. His evidence traversed the genesis of his mother's mental illness and events post the sale.

He was not present when the Agreement of Sale was entered into. Yet, this is the crux of the matter. His evidence missed the mark.

Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.BACKGROUND FACTSThe following facts are common cause;The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car ...

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.

BACKGROUND FACTS

The following facts are common cause;

The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car Rental Services (Private) Limited (“Car Rental Services”), in October 2015. In terms of the agreement, he was issued with a motor vehicle, a Ford Everest, and was expected to make payments as per the vehicle hire agreement. He failed to do so until the motor vehicle was withdrawn from him.

The first respondent sought the services of the police for the second respondent to return the motor vehicle by laying criminal charges against him.

The appellant, sister to the second respondent, offered to settle the debt and the criminal charges were withdrawn. She signed an acknowledgement of debt and a payment plan. In due course, she withdrew the offer to settle the debt. The first respondent thereafter caused summons to be issued against the appellant and Bernard, jointly and severally, claiming the sum of US$13,868=90.

The appellant applied for the appointment of a curator ad litem on behalf of Bernard on the grounds that he was not of sound mind. On 17 March 2017, a provisional order was granted and a curator ad litem was appointed.

The matter was not prosecuted further.

As a result of the provisional appointment of a curator ad litem, the first respondent withdrew its claim against Bernard and proceeded against the appellant.

PROCEEDINGS BEFORE THE COURT A QUO

Car Rental Services sued the appellant, and Bernard, jointly and severally, for the payment of US13,868=90 for the rental charges due to it. The basis for the claim, in respect of Bernard, was that he had entered into an agreement with Car Rental Services for the hire of a motor vehicle and had failed to pay in terms of the agreement.

In respect of the appellant, it was averred that she had agreed “to take over the debt due by the first defendant (Bernard) and had assumed full responsibility of it which undertaking the plaintiff (Car Rental Services) agreed and accepted (sic).”

In their joint plea the appellant and Bernard disputed liability.

Bernard pleaded that he did not have the requisite mental capacity to enter into a contract. The appellant put in issue the validity of the acknowledgement of debt she signed on the basis that the initial agreement, which gave rise to the acknowledgement of debt, was void ab initio.

TWO ISSUES WERE REFERRED TO TRIAL, NAMELY:

1. Whether or not the agreement entered into between Bernard and Car Rental Services was valid.

2. Whether the obligation assumed by the appellant, in an acknowledgement of debt and payment plan, dated 2 March 2016, is valid and binding.

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

I heard this matter on 20 November 2015 and reserved judgment. The preparation of my judgment has taken longer than expected on account of my deployment to the Criminal Division of this court in January 2016.

The delay in compiling this judgement is therefore attributable to the sheer volume of work which I have had to contend with in the Criminal Division. I have also had to peruse reference records, Case No's HC1589/13, HC617/15, 9849/13 and HC10625/13 which are quite voluminous as these cases bear on the determination of this application.

Turning to the matter itself, this is an application in which the applicant seeks the following relief as set out in his draft order;

“1. Application for rescission in terms of common law of the judgement by her Ladyship Tsanga J HC1589/13 (HH424-13) given in favour of the 4th respondent is hereby granted.

2. Alternatively, application for rescission in terms of Rule 449(1) of the High Court Rules, of the judgment by Ladyship Tsanga J in HC1589/13 (HH424-13) is hereby granted.

3. The respondent's (sic) be and hereby ordered to pay costs of suit on attorney client scale.”

The gravamen of the application is to be gleaned from paragraph 14 of the applicant's founding affidavit in which he stated as follows:

“14. That, this is an application for rescission of judgment in terms of the Common Law in case no. HC1589/13 (HH424/13) on the basis that the original order was obtained by fraud perpetrated by the 4th respondent. Alternatively, this an application for rescission in terms of Rule 449(1) of High Court Rules.”

The applicant's allegations of the fraud allegedly committed by the fourth respondent (Terence Corben Rhodes) are set out in paragraph 15 of the founding affidavit in the following wording;

“15. That, the application for rescission of the judgement in HC1589/19 (HC424-13), in terms of common law, is being sought because the applicant believes that the 4th respondent fraudulently misled the court into believing that the late Brian Jones Rhodes transferred shares of the two companies Beverly East Properties Pvt Ltd and Karoi Properties Pvt Ltd into Phoenix Trust, a fact which is not true.”

It is therefore necessary, in determining this matter, to set out the background to the dispute.

In Case No. HC1589/13, which was disposed of by TSANGA J, the applicant in the application before me was not a party.

The fourth respondent in casu (Terence Rhodes) was the second respondent in HC1589/13.

It is convenient to briefly set out the issues which fell for determination by TSANGA J.

In the said application, the applicant was a firm of legal practitioners, Honey & Blackenberg. The legal firm held a sum of US$70,000 in its trust account. The money had accrued on account of monies collected by that firm as rentals due to two companies, namely, Beverley East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The companies own certain immovable property which was being managed by Robert Root & Company Estate Agents. Robert Root & Company Estate Agents, in turn, engaged Honey & Blackenberg to be its legal practitioners for purposes of collecting rentals accruing on the properties from various tenants leasing them.

Robert Root & Company terminated its agency for the companies. Honey & Blackenberg, however, remained accepting into their trust account payments made by some of the tenants.

It is the accumulated payment, which totalled US$70,000, which led Honey & Blackenberg to petition this court for a declaratory order as to whom the money should be paid.

The legal firm was faced with claims from nine (9) persons who lay claim to the money. The nine (9) claimants who were cited by Honey & Blackenberg in its application for the declaratory order granted by TSANGA J were the first (Gideon Hwemende) and third-tenth (Lourence Erasmus Vermaak, Terence Corben Rhodes, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) respondents in casu.

TSANGA J, in the application for the declaratory order or interpleader, granted an order in the following terms on 20 November 2013:

1. That the second respondent, Terence Cobden Rhodes as claimant in his capacity as Trustee of Phoenix Trust in whom the companies are held, is the lawful shareholder of the two companies.

2. That the second respondent, upon lodging with this court a valid Trust document effected by the deceased during his lifetime transferring the properties to the Trust, shall be entitled to require the Registrar of this Honourable Court to release to the Trust, the sum of $70,000 deposited with him in terms of Rule 206(1) of the High Court Rules, 1971.

3. That the third to the ninth respondents shall pay the costs of the applicant and the first and second respondents.

The above stated order is the one which the applicant prays that it be rescinded on the grounds of it having been obtained through fraud committed by the second respondents as referred to in TSANGA J's order.

If not falling for rescission on the basis of fraud, then it should be rescinded on the basis of Rule 449(1) of the High Court Rules, so the applicant prays in the alternative.

It is common cause that the two companies at the centre of the dispute were established by one Brian James Rhodes who passed on at Harare on 29 July 2006. The applicant in the application before me is the executor dative of the estate of the said late Brian James Rhodes (hereinafter called “deceased”).

As I have already indicated, the applicant was not a party in case No. HC1589/13 determined by TSANGA J.

The learned judge dismissed claims to ownership of the companies in issue by the third respondent Gideon Hwemende. This respondent is the first respondent in casu. The first respondent had purported to appoint the fifth-tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) as directors in one or other of the two companies to protect his interests.

With the dismissal of his claim, any claims which the fifth-tenth respondents may have sought to assert similarly fell through or suffered the same fate.

TSANGA J ruled that the lawful shareholder of the two companies was deemed to be Phoenix Trust whose assets included the corporate stock of those companies.

Her ladyship also found that the fourth respondent herein (Terence Corben Rhodes) was a Trustee in Phoenix Trust and a director in both companies owned by the Trust.

She further adjudged that the fourth respondent (Terence Rhodes), in his capacity as Trustee of Phoenix Trust, had legal title to the Trust property and that since the Trust was the holder of corporate stock in the two companies, any benefits accruing to the companies, in turn, accrued to the Trust as shareholder.

In concluding her analysis of the facts, TSANGA J stated as follows;

“Since the Trustee purports that the companies were transferred to the Trust some years ago by the late Brian James Rhodes, there must be in existence evidence which can be produced in support of this claim. Such Trust document was not part of the annexures in this application. As such; before the monies being held can be released, evidence of the Trust legally owning the companies must be furnished to this court through the Registrar of the High Court.”

The learned judge then made the order which I have quoted (supra).

This application is hotly contested and pits the applicant against the fourth respondent (Terence Rhodes).

The applicant's contentions, from a reading of his affidavit, can be summarized as follows in substance;

(a) That the fourth respondent (Terence Rhodes), as trustee of Phoenix Trust (hereinafter called the Trust), had, in the application before TSANGA J “fraudulently alleged that the late Brian James Rhodes during his lifetime had transferred the entire shareholding of the two companies (Beverley East Properties and Karoi Properties) into the Trust.”

(b) That he knew such fact to be untrue.

(c) That the court had relied upon the fourth respondents' fraudulent allegation to hold that the fourth respondent, as Trustee of the Trust, was the lawful shareholder in the two companies and further ordering that “upon lodging with Registrar of the High Court, a valid Trust Deed effected by the deceased, the late Brian James Rhodes, during his life time transferring ownership of the two companies to the Trust, he shall be entitled to the sum of $70,000.”

(d) That the fourth respondent knew that the Trust was not given any shareholding in the companies but only loan accounts as shown on the schedule of assets to the Trust Deed.

(e) That there is no documentary proof of any transfer of shares in terms of the Deed of Trust.

(f) That the fourth respondent deliberately misled the court and perpetuated a fraud because he knew that the two companies belonged to the deceased, and, consequently, to his estate. He thus led false testimony which made TSANGA J rule that the said fourth respondent was entitled to the rentals from the two properties.

(g) That the estate had a vested interest in the case determined by TSANGA J as it was the one entitled to the rentals.

(h) That TSANGA J's judgement has the effect of dissipating a portion of the deceased's estate and affected its winding up and final distribution.

(i) That, further, TSANGA J would not have granted the judgment she gave had she not been misled by the fourth respondent.

As such, the applicant therefore claimed rescission of that judgment at common law or in terms of Rule 449(1) of the High Court Rules....,.

Apart from my findings for dismissing the application as set out above, I would still have dismissed the application on the merits.

The applicants' case is grounded in the common law right of an affected party to seek rescission of judgment granted in default and the corresponding power of this court to rescind its judgment.

Alternatively, the applicant seeks to rely on Rule 449(1); the Rule reads as follows, in 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)…,.

(c)…,.”

The Supreme Court judgment, in Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, provides guidance on the interpretation and purport of the Rule. The learned judge, GARWE JA, stated as follows…,:

“It is the general principle of our law that once a final order is made, correctly reflecting the true intention of the court, that order cannot be altered by that court.

Rule 449 is an exception to that principle and allows a court to revisit a decision it has previously made - but only in a restricted sense.

Where a court is empowered to revisit its previous decision, it is not, generally speaking, confined to the record of proceedings in deciding whether a judgment was erroneously granted.

The specific reference in Rule 449 to a judgment or order granted in the absence of any party affected thereby envisages a situation where such a party may be able to place facts, before the latter court, which facts would not have been before the court that granted the order in the first place: see Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) at 364 H-365 A-D.

Further, it is also established that once a court holds that a judgment was erroneously granted in the absence of a party affected, it may correct, rescind, or vary such without further inquiry.

There is no requirement that an applicant seeking relief under Rule 449 must show 'good cause': Grantully (Pvt) Ltd & Anor v UDC Ltd supra at 365; Banda v Pitluck 1993 (2) ZLR 60 H at 64 F-H; Mutebwa v Mutekwa & Anor 2001 (2) SA 193 (TK) at 1991–J and 200 A-B.”

The learned judge, drawing on and adopting the remarks of JAFA J in Mutebwa v Mutebwa & Anor 2001 (2) SA 193 (TK), proceeded to point out that a distinction had to be made between the approach to be adopted by the court in instances where the court or judge revisits its or his judgment mero motu to correct, vary, or rescind it in terms of Rule 449 and where the judgment is revisited on application of an affected party who was absent when the judgment or order was made.

Where the court or judge revisits the judgment mero motu, the court or judge is limited to the four corners of the record of proceedings.

Where, however, the Rule has been invoked upon the application of an affected party who was absent when the judgment or order being revisited was made, the court or judge is not bound to the four corners of the record. The court is enjoined to take into account the facts set forth in the affidavits filed with the application. The error, in such a case, does not necessarily have to appear ex facie the record.

It therefore is clear, in my reading of the authorities cited above, that in either case, that is whether the court acts mero motu or an application, there should exist an error to be corrected.

It is this error which must be established by the applicant.

The next issue is to define what amounts to an error.

In Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, the learned GARWE JA stated that:

“What amounts to an error has also been the subject of a number of decisions.”

He then gave examples of Banda v Pitluck 1993 (2) ZLR 60 H wherein a default judgment had been granted against a defendant who had entered appearance to defend. The appearance to defend had not been brought to the attention of the judge meaning that had the existence of the appearance to defend been brought to the attention of the judge, he would not have granted judgment in default of appearance to defend.

In Mutebwa v Mutekwa & Anor 2001 (2) SA 193 (TK), a false return of service purporting that the Deputy Sheriff had effected personal service was used to obtain judgment.

In Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, there was a discrepancy between the sale agreement which had been attached to the summons and declaration with respect to the parties identifications and the alleged witnesses. GARWE JA held that the discrepancies were such that had the judge who granted judgment been made aware, he would not have granted judgment against a witness to the sale agreement.

The question as to what amounts to an error was not addressed directly by the Supreme Court in Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291.

The learned judge in fact gave examples of errors which would pass to satisfy the requirements for correcting, rescinding, or varying a judgment.

An error is a mistake.

A judgment granted in error, or erroneously, would mean that the court or judge committed a mistake or mistakenly granted the judgment. Put in another way, the enquiry should be that the applicant needs to establish the existence of a fact or material which influenced or moved the court to grant judgment. It must be shown that the court would otherwise not have granted judgment but for that fact or material that becomes the error.

Rule 449(1)(a), as quoted above, comes into play where the judgment sought to be revisited was either erroneously sought or erroneously granted: see Machoto v Mudimu & Anor HH443-13.

A judgment, in my view, is erroneously or mistakenly sought by a party who seeks a judgement whilst labouring under a mistaken belief that he can properly seek judgment.

A simple example is like the one given by GARWE JA in Austin Munyimi v Elizabeth Tauro SC41-13 whereby he quoted the case of Banda v Pitluck 1993 (2) ZLR 60 H. If the plaintiff or the applicant applies for default judgement oblivious of the fact that appearance to defend or notice of opposition has been filed, such application will have been erroneously made, and, if the court grants the application, it will have granted it in error too.

I do not find that TSANGA J granted the application in case No. HC1589/13 in error as envisaged in Rule 449(1).

What was the error if one may ask?

The parties presented argument and the learned judge considered the papers filed before her and the arguments put forward in support thereof. The learned judge then delivered her judgment with reasons for the order which she made.

It is noted that none of the losing claimants or respondents appealed against the judgment.

The applicant avers that the judgment in question was granted after the court had been fraudulently misled into believing that the deceased had transferred shares into his two companies into Phoenix Trust.

A fraud and an error are two different legal concepts.

I believe that within the context of Rule 449(1)(a), the state of affairs, as argued by the applicant, cannot ground a setting aside of the judgment under that Rule.

I agree and endorse the remarks made by MAKARAU J…, in Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…, that:

“Rule 449 is a step to correct an obviously wrong judgment or an order.

The power given the court under the Rule is discretionary, and, like all such powers, must be exercised judiciously…,.

A review of the authorities would appear to suggest that the Rule is designed to correct errors made by the court itself and not an omnibus through which new issues and new parties are brought before the court for trial.”

The applicant, in this case, is clearly seeking to bring in new issues which were not before TSANGA J.

He seeks to argue that the deceased never transferred any shares in the two companies to the Trust.

TSANGA J's judgment is clear in that she had to determine competing claims made to Honey and Blackenberg by various parties, to rental monies from the two properties as earlier described.

She made a determination that the Trust, represented by the fourth respondent herein (Terence Rhodes) was the lawful shareholder in the two companies. The judge then issued a conditional order that the fourth respondent herein was required to lodge a valid Trust document and evidence of proof of transfer of the properties to the Trust with the Registrar before the US$70,000 could be released to him.

There was clearly no error committed as envisaged in Rule 449(1).

The applicant seeks to demonstrate that no shares were ever transferred by the deceased.

The court did not grant a judgment in error because TSANGA J directed that proof be furnished.

The order sought by the applicant, in terms of Rule 449(1), must fail.

It leaves me to deal with the other ground for seeking the rescission of the court judgment in issue.

The applicant seeks to rely on the powers of the court to rescind its judgment under the common law.

The applicant avers that the fourth respondent (Terence Rhodes) fraudulently alleged that the late deceased, during his lifetime, transferred the entire shareholding of the two companies to the Trust represented by the fourth respondent. The applicant, in support of his claim to the alleged fraudulent misrepresentation by the fourth respondent, relied, as outlined in paragraph 19 of his affidavit, on a copy of the Trust Deed which lists the schedule of assets to be received by the Trust as two loan accounts as detailed therein.

The applicant alleged, in paragraph 20 of his founding affidavit, that “there is no documentary proof of any transfer of shares in terms of which the Trust obtained ownership or control of the properties held by the two companies.”

The fourth respondent has denied the allegations of fraudulent misrepresentation of facts and attached to his opposing affidavit copies of share certificates, resolutions by the companies, the share registers, and statutory returns which show the shareholding of the said two companies as being Phoenix Trust.

The applicant, in the answering affidavit, questions the authenticity of the documents.

He alleges that the documents are fraudulent and intended to defraud the Estate which he represents.

He however makes a startling allegation that the proof of the fraud lies in that the records of the two companies have disappeared from the Companies Office - a Government department.

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

The BackgroundThe applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.According to the applicant's affidavit, the companies in question are ...

The Background

The applicant, Honey and Blanckenberg, instituted interpleader, in terms of Rule 30 of the High Court Rules, for the court to declare to whom it should pay an amount of $70,000 currently held in trust as rentals for certain companies.

According to the applicant's affidavit, the companies in question are being laid claim to by nine different respondents (Lourence Erasmus Vermaak, Terence Cobden Rhodes, Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai).

The tenth respondent (the Registrar of Companies) was cited to throw light on the question of ownership by virtue of certain statutory returns that have been filed with it.

Despite the assistance that the court would indeed have obtained from the tenth respondent's comments, none were availed as the tenth respondent (the Registrar of Companies) did not participate at all in these proceedings.

The companies in question, namely, Beverly East Properties and Karoi Properties (the companies) were established by the late Brian James Rhodes who died on 29 July 2006.

At least this much is not in dispute.

The companies own commercial premises described as 184 Mutare Rd; 186 Mutare Rd; 188 Mutare Rd; 194 Mutare Road, all in Msasa.

These premises are leased.

Until October 2011, the rentals were being collected by an estate agent, namely, Robert Root and Company. They discontinued agency and accounted to the applicants for rentals held by them.

Certain tenants have continued paying rentals to the applicants.

The applicant averred, in its affidavit, that, it is currently holding $70,000 in trust by way of accumulated rentals from these tenants.

In its affidavit, the applicant lays out the conflicting claims that it has been saddled with as emanating from triple sources:

(i) The first set of claimants for the rentals is a Trust called Phoenix Trust which the deceased is said to have established in 1998. The first and second respondents (Lourence Erasmus Vermaak and Terence Cobden Rhodes) are identified by the applicants as Trustees asserting that the Trust is the lawful owner of the entire share capital in the companies and to whom the applicants should account for the rentals held as representatives of the companies.

(ii) The second claimant, also laying claim to the rentals is said to be Gideon Hwemende, the third respondent (a former employee of the deceased) whom the applicant indicates in its affidavit as having made diverse claims to shareholdings in the companies ranging from 40%, to 60%, as well as to the entire ownership of the companies.

(iii) The third set of claimants are the fourth to ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai), who, in their capacity as Directors appointed by the third respondent (Gideon Hwemende), lay claim to interests in the companies.

The affidavits and various annexures filed by the different claimants bear the hallmarks of a dramatic 'corporate soap opera' characterised by intrigue; alleged chicanery; resultant grievance.

It is necessary to set out the facts somewhat fully from the papers filed of record as they have a bearing in determining in whose favour the balance emerges in terms of this interpleader application.

The Facts

Mr Lourence Vermaak, the first respondent, initially submitted an opposing affidavit on 12 March 2013 which was later withdrawn and expunged from the record by court order obtained as a result of a default judgement.

From the correspondence on file, the reason for the seeking that this initial opposing affidavit be withdrawn was because it had been obtained through coercion.

However, by the time of its withdrawal, the third to ninth respondents had filed their own opposing affidavits in which they drew heavily, in asserting their claims, on this initial affidavit. Even after the first and second respondents had filed their new affidavits, the third to the ninth respondents appear to have ignored the fact that this document was obliterated by an order of this court.

Whilst bearing in mind that the document was wiped out, it is necessary to set out, briefly, its contents in order to give some context to the election by the third to ninth respondents to hang on its every word despite the court order stating that it is expunged from the record.

In the expunged affidavit, the first respondent averred that he had resigned as Trustee of Phoenix Trust and Director of Beverley East Properties - which is not in dispute.

He denied having laid claim to owning or representing the companies.

He asserted that he had appointed himself as Director when he saw that the companies were lying idle. He also swore that the second respondent, Terence Cobden Rhodes, had been appointed fraudulently by him (with one Kenny Regan) without his knowledge and that the second respondent was not even aware that he is a director or was a director.

In a dramatic twist to the applicant claim of a dispute, the first respondent refuted that the shareholdings in the companies were in dispute in any way. He also stated that the third (Gideon Hwemende) and the ninth (Calisto Vengesai) respondents are current directors and shareholders of Beverly East Properties and that he had no problems with this nor did he have any interest in the matter.

Attached as annexures were letters of withdrawal as Director of Beverly East Properties.

The eighth respondent, Farai Mutizwa, in his purported capacity as Director of Beverly East Properties, deposed to an affidavit in which he essentially embraced the first respondent's affidavit as embodying the correct position. He confirmed that the first and second respondents had resigned and had not laid any interest in the companies as they had resigned as both directors and company secretaries. He also stated that ownership and control are in the hands of the remaining respondents and that there are no contradictory or competing interests.

He also said that the third respondent (Gideon Hwemende) is a director in the company.

He referred to the only dispute as that pertaining to Directorship of Karoi Properties, a case which he said they were making frantic efforts to resolve.

In that case, which I will allude to later, JUSTICE ZHOU ordered tenants of Karoi Properties to deposit rentals into the account of the Registrar until the matter of ownership is resolved.

The fourth, fifth, sixth, seventh, and ninth respondents submitted affidavits in support of the eighth respondent's averments.

The third respondent (Gideon Hwemende), who was separately represented, initially deposed to his own affidavit on 18 March 2013. He withdrew, through a letter from his legal practitioners to the Registrar of the High Court, two days after its submission on 20 March.

In its place, he submitted an affidavit stating that he too was embracing the affidavit deposed to by the eight respondent.

It is necessary to state, briefly, the contents of this affidavit as its contents have a bearing on why it was withdrawn.

In addition, its contents also have some bearing on the first respondent's later affidavit.

In his initial affidavit, he gave a totally different picture of the share ownership pertaining to the company compared to that deposed to by the first respondent. He did not assert full ownership, but, instead, claimed that he had acquired 60% of the shareholding, with the remaining 40% belonging to the estate of the late Brian James Rhodes. He sought to shed light on how he came to own what he asserted as 60% of the company.

In essence, his claim was that he had been employed as clerk by Brian James Rhodes in 1990 who was the sole shareholder of the companies. He was elevated to controlling all the accounts for the companies in 1992 which included mining companies. He said that when Brian James Rhodes became old, he proposed that he buy shares in Beverly East Properties in 1999 so that he could become the majority shareholder. His claim was that the deceased said he would work out a plan since the third respondent did not have money.

He asserted, that, in 2002, the said Brian Rhodes indicated that he was handing him 60% of the company and drew up shareholding agreements. He also gave him the title deeds of three properties Lorely, Beverly East, and Karoi Properties.

He further averred, that, by 2006, had paid up for the 60% shareholding in each of the two companies, and that, at the time of his death, Brian Rhodes owned 40% of the company. He further submitted that he himself had fallen ill, and, for seven years, and could not control the two companies.

It was during this time, he said, that the companies had been left with no Directors and that the first and second respondents had illegally appointed themselves.

He alleged that there is no record of how Phoenix Trust came to own 80% or 100% of the shareholding in the two companies.

He had submitted documents to support his claim in the form of receipts from a petty cash book to show purchase. He also attached annexures of the Share Agreements in Beverly East and Karoi Properties.

Also among the annexures was a copy of a letter, purportedly by Brain James Rhodes, offering the third respondent the properties in 2002.

Also included was a company resolution, also from 2002, appointing the estate agents as managers of the property.

Turning back to the first respondent, he withdrew his initial opposing affidavit on 27 May 2013.

Having the court's blessing to breathe freely again and file new papers on the basis of a court order granted by JUSTICE MATHONSI, under case No. HC3889/13, he filed a new opposing affidavit on 12 July 2013.

Equally unfettered by the first respondent's initial affidavit, the second respondent (Terence Cobden Rhodes) also filed his own opposing affidavit.

In his new opposing affidavit, the first respondent disputed the third respondent's (Gideon Hwemende) claim to shareholding on a number of grounds:

He asserted, that, from the evidence produced by the third respondent, he could not be owner as he had failed to produce proof of actually paying for the shares, neither had he shown any proof of paying any capital gains tax on the shares as required by the Capital Gains Tax Act [Cap 23:01]. He also stated that no such share transfers were ever processed by the first respondent's company that was at the time managing the two companies as company secretaries.

In addition, he attached a number of annexures which included a document examiners report disputing the signatures to the Share Agreements that had been produced by the third respondent.

The examiner opined that the signatures could have been forged but that he required to see the originals.

What clearly does not help the third respondent's claims is that also included were a proven forged letter in which he had claimed 100% ownership, from 40%, through indigenisation.

The first respondent also questioned why the company needed to be indigenised, if, as claimed by the third respondent in the affidavit he had initially filed, he already owned 60% which would mean the company was already compliant with indigenisation.

The second respondent, Terence Cobden Rhodes, submitted an affidavit as Trustee of Phoenix Trust.

He asserted that he has never resigned as Trustee of Phoenix Trust or Director of Beverly East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. He insisted, in his affidavit, that the entire shareholding of the two companies is with Phoenix Trust.

He refuted the claim by the third respondent, Gideon Hwemende, that he owns 60% of shareholding of either company.

The Issues

Having brought the application as an interpleader, the applicant made it clear that it is a disinterested party in the proceeding and will abide by the decision of this court.

Counsel for the first and second respondents (Lourence Erasmus Vermaak and Terence Cobden Rhodes) argued, in limine, that, the fourth-ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai) have no locus standi as the Directors in their personal capacity.

Owing to the distinct legal persona of a company which is separate and distinct from its members and shareholders, he argued that they cannot arrogate to themselves to sue what can only be legally suffered by Beverly East Properties and Karoi Properties.

Where wrong is done to a company the proper complainant is the company itself.

The following cases were cited in support of these averments: Salomon v Salomon & Co Ltd [1897] AC 22; Dadoo Ltd & Others v Krugersdorp Municipal Council 1920 AD 530; Foss v Harbottle (1893) 67 ER 169; Wallersteiner v Moir (No.2) [1975] 1 All ER (CA) 849.

He also argued, that, the claim for the fourth-ninth respondents must fail on the basis that they do have a direct and substantial interest in the matters as they are not even shareholders.

He further submitted that their appointment as Directors rests on a person whose ownership is disputed and that one cannot appoint directors to a company to which one has been unable to prove ownership.

He argued, that, the third respondent had failed to show ownership of the property and had merely managed to put forward a series of inconsistent claims.

The third respondent did not file any heads of argument neither did he appear in court on the appointed day. He was therefore in default and was barred.

Counsel for the fourth to ninth respondents argued that there was no dispute of fact as regards ownership on the basis of the first respondent's initial affidavit - despite the fact that this had been legally withdrawn and substituted.

She insisted that both the first and second respondents had resigned from the company.

She argued that the Directors were properly before the court as it is their duty to manage the company as agents of the company.

Turning to these arguments.

The rule is indeed well established that a company is a separate legal persona capable of suing and being sued in its own name. As such, shareholders have passive role especially where a company can use its corporate character to obtain redress for the alleged wrong.

Where the wrong doers are the directors themselves, there are obvious challenges in that they cannot bring a claim against themselves. Thus, under the exception to the rule in Foss v Harbottle (1893) 67 ER 169, a shareholder can bring a derivative action as a corporate shareholder to address a wrong done to the corporation.

It seems to me, that, a practical approach to addressing the issue of the Directors locus standi in this case, is an analysis of the relationship between shareholders and directors and the roles attendant upon each.

A person who has acquired shares in a company, and can produce irrefutable proof of such ownership, has a right to play a central role in the governance of such company. Among such roles that a shareholder is entitled to play include the appointment and removal of directors and addressing issues of their remuneration.

The appointment and removal of auditors, as well as issues to do with their remuneration, is another such role.

Dealing with issues of management and business of the company and also any issues to do with the company's constitution is yet another.

Directors so appointed by a legitimate shareholder have the right to commence litigation in the company's name; to buy and sell property; to employ people; and to conduct the business of the company, among some of their rights.

The difficulty on the case before me is that the Directors have been appointed by a person whose very claim to ownership is strongly challenged.

The Directors, in the persons of the fourth to the ninth respondents (Valentine Mushore, Alfred Chademana, Joel Tandera, Oliver Chibage, Farai Mutizwa and Calisto Vengesai), do not deny that they were appointed by the third respondent in his capacity as shareholder.

As conceded by counsel for the fourth to ninth respondents, none of them are shareholders.

The annexures that were included in this application, by the first respondent, indeed reveal that the third respondent's claim to share ownership rests on quick sand.

As stated by the first respondent, there is no evidence of the requisite tax having been paid for the shares as required by the law; neither is there actual proof of payment for those shares.

Whilst admittedly not conclusive, the forensic report suggests that the signatures to the Share Agreements may have been forged.

What clearly does not help the third respondent's claim to share ownership is the annexure of a court case involving him which details proven submission of a forged document in claim of 100% ownership to one of the properties in this case.

In the matter of South Mark Trading (there were 12 other companies cited in that matter) v Karoi Properties & Lorna Kruger & Retired Major Chademana & Gedion Hwemende & National Indigenisation Board HH52-13, which this court takes cognisance of, the tenants of Karoi Properties sought the guidance of the court as to whom to pay their rentals.

Mr Hwemende (the third respondent in the current matter) claimed rentals on the basis of 100% share ownership of the Karoi company. He based his claim on a letter from the National Indigenisation & Economic Empowerment Board (NIEEB) dated 30 September 2011.

That letter, which turned out to be forged, stated that Mr Hwemende, who previously owned 40%, now owned 100% shares in the company.

The National Indigenisation & Economic Empowerment Board (NIEEB) had written, on January 20, 2012 denying Mr Hwemende's claims and emphasising that the indigenisation process in the above-mentioned properties is yet to be finalised.

JUSTICE ZHOU made the following remarks regarding the forged letter and the very tenor underlying the claim:

“The biblical aphorism: 'Whatever a man sows he will also reap' has lost its meaning in our society. This matter presents a sordid picture of a culture of wanting to reap where persons did not sow….,.

The fourth respondent was aware that he could not just wake up to find himself as the holder of all the shares in a company for free. He would know, too, that, the indigenisation legislation does not operate in the manner that he sought to portray to justify his claim to a 100% shareholding in the first respondent.”

In this particular matter, the third respondent initially claimed 60% before throwing his lot with the 100% claim.

The third respondent has undeniably made claims that have ranged from 40% to 60% to 100%.

What is before the court is evidence of claims to ownership which swing like a yoyo.

It is evident, that, from the papers filed of record, that, the assertions of ownership lack veracity and consistency and merely lend credence to the proverb that liars should have good memories.

As this claim has been lodged in interpleader proceedings, what the claimant must allege is succinctly stated in the case of Bruce NO v Josiah Parkes and Sons (Rhodesia) (Pvt) Ltd and Another 1972 (1) SA 68 (R) where GOLDIN J…, stated as follows:

“In my view, in proceedings of this nature, the claimant must set out such facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.”…,.

The test whether a claimant has discharged the onus of proving his ownership is whether the probabilities are balanced in his favour.

The case of Corlett Drive Estates v Boland Bank BPK and Another 1979 (1) SA 863…, elucidates the purpose of setting out particulars of claim as follows:

“The purpose, inter alia, of the setting out of the claimant's particulars of claim is to acquaint his opponent of the tenor of his case, so that the latter can be put in the position of deciding whether to oppose his claim or not.”

I do not see any real dispute of fact, on the basis of this inter-pleader, that ought to be referred to trial as, in my view, the third respondent (Gideon Hwemende) has not shown this court that he has any real basis for his assertion of ownership.

The third respondent (Gideon Hwemende) did not file heads or make an appearance.

Notably, the third respondent did not challenge the first respondent's application to withdraw his opposing affidavit which he said had been obtained by coercion.

In inter pleader proceedings, where a claimant does not deliver any details of his claim nor appear in support of a possible claim, the court can exercise discretion and order the claim lapsed: see Free State Consolidated Gold Mines Operations BPK v Sam Flanges 1997 (4) SA 644 (O)…,..

If the third respondent had full confidence in his claim, he would have made every effort to defend it to its logical conclusion.

Instead, he withdrew his affidavit in which he had purported to shed light on how he came to acquire the shares. In addition to the withdrawal, he chose to assert his claim on the foundation of the first respondent's affidavit which has been withdrawn and allowed to be substituted by the court. Thereafter, the third respondent could not thereafter be bothered to file his heads of argument or appear in court to file for upliftment of a bar.

Given these realities, the court is entitled to draw the adverse inference, that, in the third respondent's own view, his claim had collapsed, or, for that matter, that a guilty conscience needs no accuser.

Taking all the above into account, I do not think the evidence before this court shows that the third respondent has a valid claim as a share owner.

Accordingly the claim by the fourth to the ninth respondents cannot stand as the third respondent, who appointed them, has failed to prove that he is indeed a share-owner.

I therefore uphold the point in limine raised by counsel for the first and second respondents regarding the lack of locus standi by the fourth to ninth respondents and their claim is accordingly dismissed.

Appealed
SC08-21 : WELLI-WELL (PVT) LTD vs MALVERN IMBAYAGO and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

In the process of executing a judgment of the High Court against B.M. Graphics (the judgment debtor), the Sheriff placed under judicial attachment certain movable property found at Stand No. 499 Goodwin Road, Willowvale, Harare.

The appellant lay a claim to that property resulting in interpleader proceedings being instituted.

In a judgment delivered on 20 November 2019, the High Court dismissed the appellant's claim to the property in question and declared it executable. The appellant appealed against the whole judgment of the High Court to this Court. After hearing argument, we dismissed the appeal and stated that the reasons would follow. These are the reasons.

THE JUDGMENT

The facts of the matter are clearly set out in the judgment a quo. They are that a consent order was granted by the court a quo on 21 August 2017 in terms of which the judgment debtor was required to pay to the first respondent (the judgment creditor), the value of 2,000 square metres of Stand No. 449 Goodwin Road, Willowvale, Harare together with improvements thereon. On his part, the first respondent would vacate the Stand in question, which he was occupying, within a given period of time.

Following valuation of the property in terms of the order of the court, the judgment debtor failed to pay. The sheriff attached an assortment of property found at Stand No. 499 Goodwin Road, Willowvale, Harare which he believed belonged to the judgment debtor.

The property was claimed by the appellant as its own.

The High Court correctly found, that, in inter pleader proceedings, the onus was on the claimant to prove ownership of the property in dispute on a balance of probabilities.

The claimant does so by setting out facts which establish ownership of the property in question on a balance of probabilities.

The court a quo noted, that, the basis of the appellant's claim to the property was that it owned the Stand where the property was found by virtue of being the sole shareholder of a company known as Jon's Engineering (Private) Limited. It is the latter company which is said to be the registered owner of Stand No. 499.

The court a quo observed that the judgment debtor was initially the holder of two ordinary paid up shares in Jon's Engineering (Private) Limited. It then sold its shares to the appellant.

The argument before the court a quo was that given the fact that the property in dispute was attached in execution as an immovable property owned by a company wholly owned by the appellant, that property belonged to the appellant and the onus was on the first respondent, as judgment creditor, to prove that it belonged to the judgment debtor.

The appellant's claim was rejected by the court a quo which found discrepancies in the purported sale agreements involving the immovable property. The court a quo found, that, despite the two agreements allegedly signed by the appellant and the judgment debtor, initially on 30 October 2015, and a second one signed on 28 October 2016, the judgment debtor had consented to the court order being executed. It was the reasoning of the court a quo that the judgment debtor would not have consented to a court order on 21 August 2017, in terms of which an immovable property it had already sold was to be valued and its value paid to the judgment creditor.

The court a quo concluded from those facts, that, the agreement of sale was a most recent fabrication, an afterthought meant to stem the appellant's claim that it had purchased the entire shareholding in Jon's Engineering (Private) Limited. The claim by the appellant, that it bought the immovable property from the judgment debtor and took occupation as far back as 28 October 2016 was rejected because the evidence before the court showed that the judgment debtor had in fact been in occupation of same at the time of the consent order on 21 August 2017.

The court a quo further found that the appellant's claim could not succeed for yet another reason.

It is that the appellant is not the owner of the Stand at which the movable property was attached for sale in execution. The Stand is owned by Jon's Engineering (Private) Limited, a separate legal entity from the appellant.

There was no suggestion before the court a quo that Jon's Engineering (Private) Limited was a subsidiary of the appellant.

By virtue of the separate legal persona principle, that, once a company is incorporated, it exists independently and separately from its members, the appellant could not possibly claim ownership of property belonging to a separate registered company.

The court a quo found that the appellant had failed to discharge the onus resting on it to prove ownership of the movable property placed under attachment. It found that not a single piece of evidence was submitted by the appellant to show that it owned the property in question. That way, the appellant's claim was dismissed.

THE APPEAL

The appeal was motivated on three grounds speaking to the same issue. They are that:

1. The court a quo grossly misdirected itself when it found that the property attached by the Sheriff did not belong to the appellant despite the evidence presented.

2. The court a quo misdirected itself in finding that the agreement of sale between the judgment debtor and the appellant was not authentic.

3. The court a quo erred at law when it concluded, that, the appellant did not have possession of the attached goods at the time.

From these grounds of appeal, there can only be one issue for determination on appeal. It is:

Whether the court a quo erred in finding that the appellant had failed to prove ownership of the goods placed under attachment....,.

The concept of separate legal personality of a company is the cornerstone of our company law. It has its parentage in the case of Salomon v Salomon & Co Limited [1897] AC 22.

The concept of corporate personality is that a company, once it is registered, acquires a personality of its own quite distinct from its members or shareholders.

Courts of law will not lightly disregard a company's separate legal personality except in very limited circumstances where fraud, dishonesty, or other improper use of a company's personality are found to exist. Before a court of law can disregard the veil of incorporation or lift the veil, a case for doing so must be made....,.

On appeal, it was argued, for the appellant, that, the finding by the court a quo, that the appellant did not own the attached goods was faulty because it owns the entire shareholding in Jon's Engineering (Private) Limited. The court a quo, so the argument goes, should have found that the appellant is the beneficial owner of the property owned by Jon's Engineering (Private) Limited.

That argument should not detain this Court.

To begin with, it is not clear why, if indeed the property belongs to Jon's Engineering (Private) Limited, the latter did not lay a claim to it.

In advancing the argument, counsel for the appellant relied on authorities in which remarks were made that courts have a general tendency to ignore the separate legal entities of various companies within a Group and regard them as one economic entity where the parent company owns all the shares of the subsidiaries: see DHN Food Distributors Limited v London Borough of Tower Hamlets [1976] 3 ALL ER 462 (CA)…,.

The court a quo's finding, that the appellant had not shown that Jon's Engineering (Private) Limited was its subsidiary, cannot be faulted.

In this case, the appellant is a distinct entity from Jon's Engineering (Private) Limited which owns the Stand on which the property was attached. The subsidiaries argument is not available to the appellant.

More importantly, the court a quo made a factual finding that the agreement of sale relating to the shares in Jon's Engineering (Private) Limited was a façade.

I have stated that there is no legal basis for interfering with that finding.

Either way, the appellant cannot ride on Jon's Engineering (Private) Limited in laying a claim to the property that was attached.

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

Our courts have held that a husband and wife hold a uniquely special relationship and that they normally have a common interest and household: see Warren Park Trust v Antony Ernest Pahwaringira and Others HH39-09 and Masiyiwa Cleopas Gonye v Stella Mavis Gonye SC15-09.

HH521-18 : DEPUTY SHERIFF MARONDERA vs ESTHER HOMBARUME and VIOLET MUNJARANJI and EPHISON NDAHWI and SHAKI MUSEVE and NOMUHLE BANGANI and COOPER SMIT and TIANZE TOBACCO PL and LAWRENCE KATSIRU
Ruled By: CHITAPI J

In this application, the applicant attached in execution certain movable goods listed in annexure B to the application. The goods were attached for execution to satisfy a judgment of this court in the case Tian Ze Tobacco Company (Pvt) Ltd v Lawrence Katsiru Case No. HC2100/14.

The two parties are the judgment creditor and debtor respectively.

In terms thereof, the judgment creditor caused the issue of a writ of execution to recover an amount in excess of $224,003=16 and execution costs. The applicant, in executing on the writ, proceeded to the judgment debtor's farm called Cambridge Farm in Marondera and attached a number of vehicles and machinery on 24 June 2014.

Following the attachment, the applicant received claims to the property by the claimants.

This development culminated in the applicant filing this interpleader application on 4 August 2014. The applicant wishes that the court determines the validity of the claims made; his interest being the recovery of his costs.

The applicant's legal practitioner had no submissions other than to abide by his papers whilst emphasizing that he does not collude with any of the claimants.

Inter pleader proceedings are very common in that following an attachment of property to satisfy a judgment of the court, the Sheriff, or his deputy, receives claims from third parties alleging ownership of attached property and seeking its removal from attachment arguing that they are not party to the proceedings.

In the fluid, lucid and didactic judgment in The Sheriff of the High Court v Munyaradzi Tutini Majoni & 3 Ors HH689-15 MAFUSIRE J explained what inter-pleader proceedings entail, the incidence of proof, and the court's approach.

I embrace what the learned judge indicated therein and note in particular that the claimant bears the onus to prove ownership of the goods which the claimant claims.

I would add that the onus is not limited to proving ownership as such. The position should be stated as that the claimant bears the onus to prove, on a balance of probabilities, that, the attached goods whose removal from execution is sought are not legally susceptible to execution. This could be by reason of ownership by the claimant or such other good and legally recognizable reason why the attached goods should not be executed upon.

In casu, I will briefly detail the individual claimant's claims and the facts advanced to support the exclusion and release from attachment of property as claimed:

1st Claimant – Esther Hombarume

She states, in her affidavit, that, she is the wife of the claimant who is the owner of a motor vehicle, registration AAR 5608, a Honda Accord, attached by the applicant on 24 June 2014. She claims to be the daughter of the judgment debtor and that she left the vehicle at her father's farm for safekeeping as she resides at Little Zim Farm. She attached the vehicle registration book “as proof of ownership of the vehicle.” She claimed to have purchased the vehicle from Japan in 2005.

The judgment creditor opposes the claim on several grounds:

It raises the issue of the claimant's locus standi in that none of her property was attached and that she cannot file a claim on behalf of another.

I note that the vehicle registration book is in the name of Tichaona Hombarume. The claimant states that the registered owner is her husband. There has been no proof of such relationship presented to court and worse still there is no reason given as to why the registered owner did not personally lay claim to the vehicle.

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

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

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

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

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

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

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

Harare, 21st day of August, 2017

Before the Honourable Ms Justice Charewa

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

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

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

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

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

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

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

6. Each party shall bear its own costs.”

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

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

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

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

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

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

The Law and the Facts

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

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

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

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

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

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

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

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

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

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

The claimant is not the owner of the Stand from which the goods were attached by the Sheriff.

The claimant is Welli-Will Industries (Pvt) Ltd and the Stand is owned by Jon's Engineering. These are two different legal entities.

Counsel for the claimant submitted that the claimant is the beneficial owner of the property from which the Sheriff attached the goods.

I do not agree.

He cites the case of Deputy Sheriff, Harare v Trinpac Investments (Private) Limited and Christopher William Barnsley HH121-11 as authority for the proposition that the claimant is the beneficial owner of Stand.

The owner of the Stand is Jon's Engineering.

There has been no allegation that Jon's Engineering is a subsidiary of Welli-Will Industries, the claimant. So, the case of Deputy Sheriff Harare v Trinpac Investments (Private) Limited and Christopher William Barnsley HH121-11 is distinguishable from the case before me.

The fallacy of counsel for the claimant's argument has been laid bare since time immemorial. In Salomon v Salomon and Co. Ltd [1897] AC22 (HL)…, the court held:

“It seems to me impossible to dispute, that, once a company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are…,. A company has legal existence with…, rights and liabilities of its own.”

This is a time-honoured concept of separate legal persona of corporate entities.

At law, a company is a legal entity entirely distinct from its members who compose it. It has neither body parts nor passions, but, it can have rights and duties of its own; and such rights and duties do not attach to the members of the company but to the company itself: see Regina Gumbo v Steelnet (Zimbabwe) and Minister of Higher and Tertiary Education HB84-13.

A company cannot eat or sleep but it can keep a house and do business: De Beers Consolidated Mines Ltd v Howe [1906] CA 455 (HL).

Even if it were to be accepted that the claimant is the sole shareholder of Jon's Engineering, it does not make it the owner of the Stand from which the writ was executed.

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

On 13 July 2011, under Case No HC6750/11, the appellant caused summons to be issued out of the High Court against NZ Industrial and Mining Supplies as defendant to the suit. In the summons he claimed the following relief:

(a) A declaration that the parties did enter into a valid agreement for the harvesting of timber in respect of a portion of an area known as Glen Forest, Gairezi, Nyanga.

(b) Delivery of 1,120m3 of sawn timber to the plaintiff.

(c) Alternatively, payment of USD$392,000 being the equivalent of 1,120m3 of timber at USD$350 per cubic metre.

(d) Payment of USD$4,000 being the balance payable in respect of the agreement.

(e) Interest on the above amounts at the prescribed rate of interest with effect from 1 May 2010 to the date of final payment.

(f) Costs of suit on the scale as between client and legal practitioner.

The second respondent duly entered appearance to defend the suit. It was not legally represented and the first respondent, who was its Managing Director, signed the papers indicating an intention to defend the action. He also filed a plea on the merits of the claim.

Thereafter, the parties were summoned to attend a pre-trial conference before a judge in chambers.

The first respondent was advised by the presiding judge that he could not represent the second respondent in the suit as he was not a registered legal practitioner. It was suggested that he should obtain the services of a legal practitioner to represent the company. He undertook to do so.

The pre-trial conference was postponed sine die.

The first respondent engaged one Kaseke to represent the second respondent in the suit.

Subsequent to this, on a date not stated in the papers, the first respondent's immovable property was attached in execution. An investigation revealed that the legal practitioner engaged to represent the second respondent had defaulted when summoned to appear at a resumed pretrial conference.

The appellant had, as a consequence, obtained a default judgment against the second respondent, and, somehow, the first respondent's name had been added as a defendant together with that of the second respondent.

It transpired that the appellant had filed an amended draft order which reflected the defendant to the suit as Zambe Nyika/Gwasira NZ Industrial & Mining Supplies. The record however shows that the declaration described the defendant, the second respondent herein, as a company duly registered as such in accordance with the laws of Zimbabwe.

The appellant was unable to execute against the writ of execution. He, therefore, filed an application under Case No. HC7244/14 in which he sought the following relief:

“IT IS ORDERED AS FOLLOWS:

1. That the application for a mandament restraining the first respondent from disposing of or otherwise alienating the immovable property be and is hereby granted.

2. That the immovable property known as Stand 13552 Salisbury Township of Salisbury Township lands held by the first respondent under Deed of Transfer Number 5750/94, dated 21 September 1994, be and is hereby declared especially executable.

3. That the first respondent shall pay costs of suit.”

The first respondent opposed the application.

In his opposing papers, he also sought, as a counter-application to the relief sought by the appellant, to have the default judgment rescinded.

The court was of the view that the counter application for rescission had not been brought in accordance with the rules of court.

The first respondent's wife also opposed the application.

She contended that she had a personal interest in the immovable property by virtue of her marriage to the first respondent.

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

The appellants are nine cooperative societies which have been dishing out residential Stands at a piece of land known as Saturday Retreat Estate (the land) for quite some time. The land is held by the first respondent by Deed of Transfer number 4035/86 and was acquired by the Government of Zimbabwe for urban development by Acquisition of Land Order dated 20 March 2014.

Following the acquisition, the second respondent herein, who is the acquiring authority, filed an application against the first respondent in the Administrative Court (the court a quo) for confirmation of the compulsory acquisition order.

The matter was settled between the parties as a result of which a consent order was issued by the court a quo on 13 January 2015.

The consent order confirmed the compulsory acquisition and made provision for compensation due to the first respondent in terms of the agreement of the parties therein.

Almost five years after the consent order was granted in the matter involving the two respondents, the appellants approached the court a quo seeking a rescission of that judgment in terms of Rule 449 of the High Court of Zimbabwe Rules, 1971.

The basis of the rescission of judgment application was that the judgment was granted either in error or fraudulently in the absence of the appellants.

Before the court a quo, the first respondent raised a number of points in limine, namely;

(i) That the application was filed out of time without seeking condonation for the delay;

(ii) That the appellants lacked locus standi in judicio to seek a rescission of an agreement in which they were not a party; and

(iii) That there was no fraudulent misrepresentation in the grant of the consent order.

By judgment delivered on 6 March 2020, the court a quo upheld the preliminary points. This appeal is against that judgment of the court a quo.

This Court finds that the appeal is completely devoid of merit. It ought to be dismissed with costs.

BACKGROUND

By Government Gazette Extraordinary published on 7 September 2001, a preliminary notice in terms of section 5(1) of the Land Acquisition Act [Chapter 20:10], of the intent to acquire the land for resettlement purposes, was issued.

Subsequent to that, the acquisition for resettlement was not pursued, presumably upon a realisation that the land was earmarked for urban settlement.

Notwithstanding that, the appellants later occupied the land and started parcelling out residential Stands to their members. Their case is that they were offered the land for that purpose by the Government as it was by then State land given that a preliminary notice of intent to acquire the land had been published in 2001.

As I have said, it was not until 20 March 2014 that the Government commenced the process of the lawful compulsory acquisition of the land for urban development.

On that date, the second respondent issued an acquisition of land order. As required by law, the second respondent brought an application before the court a quo, under case number LA6/14, for confirmation of the compulsory acquisition and compensation to the first respondent.

The proceedings in the court a quo led to the signing of a settlement between the first and second respondents, on 18 December 2014, which was incorporated in the consent order sought to be rescinded. The Order reads:

“BY CONSENT IT IS ORDERED THAT:

1. The compulsory acquisition of the immovable property, being the remaining extent of Saturday Retreat Estate situated in the District of Salisbury measuring One Thousand and Fifty Seven comma three eight one (1,057,3810) hectares held under Deed of Transfer 4035/1986 (“the Property”) by the respondent be and is hereby confirmed.

2. The respondent is entitled to full compensation for the compulsory acquisition of its urban land.

3. The manner of compensation shall be as set out in the Memorandum of Agreement entered into between the Government of Zimbabwe and the respondent, dated 18 December 2014, a copy of which is annexed to this order as Annexure A.

3.1 The respondent be and is hereby allocated the unoccupied portion of the property measuring 401 hectares.

3.2 The respondent is hereby appointed the sole and exclusive developer of the property defined in the Deed of Settlement measuring 401 hectares.

3.3 The terms and conditions of such appointment shall be governed by the Agreement entered into between Government of Zimbabwe, represented by the Ministry of Local Government and Urban Development, and the respondent, a copy of which is annexed to this order as Annexure A.

4. The Government of Zimbabwe shall sign all such documents, pass all such instruments, give such instructions, and do all things necessary to give effect to this Court order.

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

Following the consent order, the Deed of Transfer, in terms of which the first respondent held the land, was endorsed on 18 December 2015 to the effect that it now vests in the President.

It is common cause that the appellants became aware of the grant of the court order sought to be rescinded as far back as 2015. The application for rescission of judgement was only filed on 13 December 2019, about 4 years later, without seeking condonation.

PROCEEDINGS A QUO

Before the court a quo, the appellants' case was that the court a quo was misled into granting the consent order and therefore granted the order in error.

The error was in the sense that the first respondent was not the owner of the land in question, it having been acquired by the Government in 2001, and, following such acquisition, it was allocated to the appellants.

Further, the appellants have an interest in the land and had to be consulted before the consent order was granted.

In addition, the appellants contended that the consent order was fraudulently obtained in the sense that the first respondent fraudulently misrepresented to the second respondent, and the court, that, it had entered into agreements with them in terms of which the occupants agreed to pay $4 per square metre of land occupied by them. According to the appellants no such agreements were entered into.

The first respondent's case before the court a quo was that the application for rescission of judgment was filed out of time without seeking condonation at the time they had become aware of the consent order and had thus been complicit for years.

Further, the first respondent took the view that the appellants did not have locus standi to contest an agreement entered into in settlement of an application for confirmation of compulsory acquisition of urban land and compensation thereof.

As they lay a claim through the Government, the appellants could not possibly be cited in proceedings brought in the process of acquisition.

Regarding the agreement relating to payment for the land occupied by the appellants' members, the first respondent insisted that indeed it had agreements with individual occupiers. The appellants had been in illegal occupation of the land which was only lawfully acquired in 2014. The first respondent maintained that it had separate arrangements with some of the occupiers who are paying for the land directly to it.

FINDINGS A QUO

The court a quo found that the delay of almost 5 years in bringing the application was too long, and, as such, condonation should have been sought giving an acceptable explanation for failure to act expeditiously.

It found, further, that there was need for relative certainty and finality in litigation.

On the aspect of the alleged fraudulent misrepresentation to obtain the consent order, the court a quo found that none had been proved in court.

Regarding the appellants' locus standi, it was the court a quo's finding that none of the appellants were privy to the agreement entered into between the first and second respondents. As such, they had no legal standing to seek a rescission of an agreement they were not party to.

As I have already stated, the court a quo upheld the points in limine.

THE APPEAL

The appellants were aggrieved by the judgment of the court a quo and noted an appeal to this Court on four grounds of appeal. They are:

1. The learned judge a quo erred at law in failure to dispose of the first point in limine by the first respondent.

2. The learned judge a quo erred at law in holding that the appellants lacked locus standi to apply for rescission of the judgment granted by the court on 13 January 2015.

3. The Honourable Court erred at law, in so far as it may be taken to have upheld the first point in limine, in holding that there was need for the appellants to apply for condonation of the late noting of the application for rescission and that the appellant failed to prove fraud.

4. The honourable lower court erred at law in allowing a judgment obtained through fraudulent means to stand.

The grounds of appeal are inelegantly crafted, they are repetitive and lack clarity and conciseness required by the Rules.

Be that as it may, only two issues for determination on appeal arise from them. They are:

1....,.

2. Whether the appellants had locus standi....,.

WHETHER THE APPELLANTS HAD LOCUS STANDI

The appellants sought rescission of judgment on the basis that it was induced by fraud and that they should have been consulted before any compromise was reached between the Government of Zimbabwe and the first respondent.

Their interest in the land, so they contended, lay in the sense that the land had long been acquired by the State, in 2001, and allocated to them about 2004.

According to the appellants, the first respondent had lost any rights in the land upon its acquisition in 2001, with the rights in the land having been transferred to them by the Government.

They asserted that the first respondent misled both the Government and the court a quo into believing that there existed agreements between it and the appellants when no such agreements were concluded.

A distinction must be drawn between locus standi to seek a rescission of judgment in terms of Rule 449 and the right to overturn a Deed of Settlement concluded between the Government of Zimbabwe and the first respondent.

In my view, the former is a procedural issue which can be determined on the preliminary arguments made before the court a quo. On the other hand, the latter is a substantive issue going to the merits of the case.

I entertain no doubt that any party affected by the judgment of the court, even when not cited in the proceedings, has locus standi to bring an application for the rescission of the judgement granted in its absence.

That is the furthest one can go.

As to whether, having made the application for rescission of judgment, the appellants made a case for such rescission, that is an issue going to the merits of the application and not locus standi to litigate.

In finding that the appellants had no locus standi to rescind the agreement the court a quo was deciding the merits of the case.

It was unnecessary to do so having upheld the other points taken in limine.

Our finding in that regard, however, does not assist the appellants in this appeal given that the upholding of the other points in limine by the court a quo cannot be faulted.

Regarding the question of the acquisition of the land, this court settled the issue of the legal effect of a section 5 Notice not pursued after being gazetted in the case of TBIC Investments (Pvt) Ltd & Anor v Mangenje & Ors SC13-18.

In that case, this Court stated that the effect of section 16B(2)(a) of the former Constitution, providing that all identified agricultural land vested in the State was to revive, resuscitate, and validate the acquisition of all identified agricultural land listed in the 7th Schedule of the then Constitution.

At p7 of the cyclostyled judgment BHUNU JA, writing for the court, stated:

“The language used in section 16(2) of the former Constitution is clear and unambiguous admitting no ambivalent interpretation. The only meaning to be ascribed to the section is that once land is gazetted and listed in Schedule 7 it automatically stands acquired by the State with full title by operation of law. The mere fact that the notice was at one time withdrawn or expired is irrelevant.”

That the land in question was acquired by the State in 2001 does not advance the appellants' appeal in any way. This is because the case was determined on preliminary points raised by the first respondent and not on the merits.

Even the contestation of the agreements allegedly concluded by the first respondent with individual occupiers did not yield any positive results for the appellants.

The first respondent presented evidence, in its opposing affidavit, which the court a quo accepted, to the effect that it had concluded agreements with the individual occupiers of the land for them to pay for it directly to the first respondent.

This may have annoyed the co-operative societies as they would have wanted the money paid to them.

Their annoyance, however, is of no moment in the administration of justice.

The finding made by the court a quo, that no fraud was proved, was a factual one based on its acceptance that indeed agreements had been made with the individual occupiers.

It is well settled that an Appellate Court will only interfere with the factual findings of the lower court where the decision is irrational to the extent that no sensible court could have made it.

That view was repeated in Shuro v Chiuraise SC20-19…, where the following passage appears:

“It is an established tenet of our law that an Appellate Court should be slow in interfering with the factual findings made by a lower court and that this should happen only where it is clear that the decision of the lower court is irrational, in the sense that no sensible court, seized with the same facts, could have reached such a conclusion…,.

In short, an Appellate Court can only interfere with the findings of a lower tribunal where it is convinced that the findings by the lower court are not supported by the evidence or are otherwise irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).”

It has not been shown that the findings of the court a quo are irrational or that they are not supported by evidence.

Quite to the contrary, the court a quo considered the evidence and found no fraud as it certainly was not there. No basis for interference has been established....,.

Clearly, this is a case of disgruntled illegal land occupiers who are frustrated by the decision taken by the Government to intervene and restore order and sanity in the allocation of land for urban settlement.

There is no basis in law for reversing the lawful acquisition of land, and the agreement as to compensation, which resulted in the consent order sought to be impugned.

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be revived.

Upon revival of the prior Deed, the applicant prays for an order that the property conveyanced therein, called Remainder of Subdivision C of Lot 6 of Lot 1890 to 195 (inclusive) measuring 4,377 square metres be transferred, by the third respondent, into the applicant's name.

I must note that the part of the order sought, directing transfer by the third respondent, is incompetent.

The third respondent is the Registrar of Deeds. The Registrar of Deeds does not transfer properties but registers them. A conveyancer, acting under a power of attorney given by the owner of the property or transferor is the one who transfers the property to the transferee. The Registrar of Deeds, as the name clearly denotes, registers the transfer documents subject to all requirements imposed by applicable law being met.

For the benefit of the applicant, the duties of a Registrar are set out in section 5 of the Deeds Registries Act [Chapter 20:05] as read with the Deeds Registries Regulations S.I.236 of 2018.

The court does not create a duty outside what the law permits for the Registrar to perform.

The relief sought, for the court to order the third respondent to transfer the property, assuming that the current holding Deed is cancelled as prayed for is therefore a non sequitur and cannot be granted.

The applicant also prays for costs against the first respondent and any other respondent who opposes the application on the scale of legal practitioner and client.

The basis of the application is succinctly set out in paragraph 8 of the founding affidavit deposed to by the applicant company's Managing Director, Kingstone Hamutendi Munyawarara who stated that he is aware of the facts of the matter. He states as follows in paragraph 8 of the said affidavit:

“8. The application is premised on the fact that the said property was sold to the applicant by the fourth respondent in execution proceedings against the first respondent in HC3331/14. First respondent, whilst aware that the property had already been sold to the applicant by the Sheriff, fourth respondent hereto, purported to sell and transfer the property to the second respondent.”...,.

The applicant's case, as set out in the founding affidavit, was to the following effect:

It averred, that, it was declared the highest bidder at a judicial auction held on 18 September 2017 wherein the first respondent's property, which had been judicially attached, was up for sale to satisfy the judgment in case no. HC3331/14 made in favour of the fifth respondent against the first respondent.

The applicant was declared the highest bidder, having offered US$270,000 for the property.

Following the dismissal of an objection to the confirmation of the sale, filed by the first respondent, the applicant avers that it paid the purchase price of $270,000 to the fourth respondent as confirmed by the letter from the fourth respondent, dated 6 November 2018, addressed to the fifth respondent's legal practitioners as execution creditor.

The applicant paid transfer fees to the fifth respondent's legal practitioners in the sum of US$23,100 on 9 November 2018 as per proforma invoice of the same date prepared by the fifth respondent's legal practitioners.

The applicant attached a copy of judgment no. HH604-18 by MATHONSI J…, wherein the first respondent had, in case no. HC11349/17, challenged the fourth respondent's decision to confirm the sale of the property to the applicant.

Judgment HH604-18 was delivered on 3 October 2018 and the first respondent's challenge to confirmation was dismissed.

Judgment no. HH604-18 also disposed of case no. HC2650/18 brought by the fifth respondent herein as applicant therein. Case no's HC11349/17 and HC2650/18 were consolidated for purposes of hearing.

In case no. HC2650/18, the fifth respondent prayed for a declaratur to be made by the court to the effect that once the Sheriff had confirmed a sale, after dismissal of any objection(s) made in terms of Rule 359(7), then the Sheriff was obliged to pass transfer to the purchaser as provided for in Rule 361 of the High Court Rules (1971).

The court dismissed the application for the declaratur.

In dismissing the application for the declaratur, the learned judge, albeit agreeing that Rule 361 in its wording appeared to support the fifth respondent's interpretation, that, following confirmation of the sale and compliance with sale conditions, the Sheriff was required to transfer the property to the purchaser against payment of the purchase price; it made sense for the Sheriff to await giving transfer to the purchaser until all objection procedures had been exhausted.

The learned judge also held that the court had the discretion to regulate its processes.

In commenting on the provisions of section 14 of the High Court Act [Chapter 7:06] which gives this court jurisdiction to determine existing, future, and contingent rights, the learned judge, after referring to several decided cases, correctly held that the grant of a declaratory order was a discretionary matter for the court.

In my view, there is a further consideration which attaches to the interpretation of Rule 361.

The consideration has to do with rules of statutory interpretation. Rules of court, as with other legislative statutes, are read as a whole and not as a collection of isolated phrases.

Rule 361 should be read together with the rest of the rules regarding execution on immovable property.

Rule 359(8) and (9) provide that the Sheriff's decision to confirm a sale is open to challenge by “any person” who is aggrieved by the Sheriff's decision made in terms of Rule 359(7), that is, to confirm or cancel the sale.

The person challenges the decision by way of court application made within one month of the Sheriff's decision.

In terms of subrule 9 of Rule 359, the court may confirm, vary, or set aside the Sheriff's decision or “make such order as the court considers appropriate in the circumstances.”

It cannot have been the rule maker's intention that the Sheriff should carry out a concomitant transfer of the property upon his or her confirmation of the sale without allowing for the exercise by aggrieved parties of their right to object to court. Such interpretation would render nugatory the rights of objectors aggrieved by the Sheriff's decision.

Therefore, Rule 361 should be read as directing the Sheriff to transfer the property following his or her confirmation of the sale, only after allowing for the objection period of one month to lapse and no aggrieved party has applied to court to set aside the Sheriff's decision, or after all court processes have been exhausted in the event that an aggrieved party has applied to court.

This includes the appeal process which would need to be exhausted where the challenge by an aggrieved person has progressed that far.

It must therefore follow, that, even if l was to cancel the Deed of Transfer in favour of the second respondent, an order of the transfer of the property to the applicant by the fourth respondent can only be made if all court processes have been completed to finality.

In the judgment HH604-18, the learned judge made an order that “this order shall not be suspended by any appeal by either party but shall remain in force not withstanding such appeal.”

The first respondent was dissatisfied with the judgment. He noted an appeal against that judgment.

The notice of appeal was not attached to the papers but it appears common cause that such appeal was noted.

The applicant, in its founding affidavit, did not relate to the appeal nor deny its existence save in the answering affidavit, in paragraph 4, where, in denying that the matter is lis pendens, the applicant contended that an order was made that the noting of an appeal would not suspend the operation of judgment no. HH604-18.

The first respondent, on the other hand, averred that his appeal was also against the order decreeing the judgment to remain operational despite the noting of the appeal.

The applicant also averred that the “purported” appeal did not affect this application.

I cannot agree in view of my interpretation that transfer in terms of Rule 361 cannot be proceeded with until the court challenge processes given in Rules 359(8) and (9) have been finalized.

The applicant also attached the judgment of the HONOURABLE BERE JA delivered under case no. SC843/18 and bearing case citation SC02-19.

In that application, the first respondent filed an urgent application seeking interim relief that transfer of the property be stayed pending the determination of his appeal against the judgment HH604-18.

The learned judge dismissed the application for want of form and for the first respondent's failure to apply for condonation or to give an explanation for not using Form 29 or Form 29B of the rules of court.

The learned judge expressed his displeasure at what he described as “errant conduct” by the first respondent in engaging in endless and hopeless litigation to frustrate full execution on the judgment.

The learned judge's remarks were expressed obiter because the first respondent's application was found lacking or wanting as to form.

What, however, did not escape my attention was that neither MATHONSI J…, nor BERE JA made an order specific that the fourth respondent should transfer the property to the applicant.

The learned judges ruled in favour of the continuation of due process of execution.

The first respondent then purported to correct his defective application, which had been dismissed by BERE JA for want of form, by filing another application on 21 January 2019 seeking the same relief as sought in the dismissed application.

Under case no SC15-19, the Honourable GWAUNZA DCJ struck the application off the roll.

I imagine that since the same application had not been struck off the roll by BERE JA, but dismissed, it was incompetent for the first respondent to file the same application seeking the same relief.

The earlier dismissal had the effect of res judicata on the issue.

The first respondent however indicated that his appeal was still pending - a fact which was not disputed by the applicant.

The applicant referred to the judgment of this court in HH209-19 in case no HC1444/2019 delivered by MANZUNZU J on 14 March 2019.

In that case, the applicant filed an urgent application in which he cited all the other parties in the application before me as respondents. Significantly, the applicant herein was the fifth respondent therein.

The first respondent herein was the first respondent therein, the second respondent herein was also second respondent therein, and the third and fourth respondents herein were therein third and fourth respondents. There was a fifth respondent, namely, the Law Society of Zimbabwe which is not cited in the current application.

In the interim relief, and in particular in paragraph (i) of that application, the fifth respondent, as applicant therein, sought the following relief;

“That Deed of Transfer No.708/19, issued in the name of Tendai Mashayamunda, in respect of a piece of land in the district of Salisbury called the remainder of Subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands Estate of Welmold measuring 4,377 square metres be and is hereby cancelled.”

The rest of the relief sought, in both the interim relief and final relief, concerned prayers for orders of the de-registration of the first respondent herein as a legal practitioner, the placement of his legal firm under curatorship, and incidental relief, including costs.

It is common cause that application HC1444/19 was dismissed with costs by MANZUNZU J.

The case was determined on the merits and the decision by MANZUNZU J was therefore final.

In his judgment, MANZUNZU J made certain observations which l find apposite in so far as the present application is concerned. The learned judge stated as follows on page 3 of the cyclostyled judgment;

“Despite the judicial attachment of Chiutsi's immovable property, and, in fact, with a sale having been confirmed by the Sheriff, against all odds, Chiutsi sold the property and transferred ownership to the second respondent.

The applicant's interest in this application is for him to get his money from Chiutsi. The sale of Chiutsi's immovable property to the fifth respondent, by the Sheriff, had at least guaranteed him of his money. He fears the second respondent may pass title to a third party complicating his chances of recovering his money.

Chiutsi said he has now paid $115,000 to the applicant through his lawyers' trust account.

The payment has been acknowledged though there is a dispute as to whether or not such payment is considered as payment towards the judgment debt because, as Mr Biti argued, it goes towards costs.

As I have already pointed out, the applicant's interest is to get his money, otherwise he cannot be seen fighting a case for the fifth respondent as to whether the sale between fifth respondent and Sheriff should proceed. He has no mandate to do so.“

The above pronouncements hold true in the application before me in so far as the interests of the fifth respondent is concerned. His interest, as the judgment creditor in case no. HC3331/14, is to have the judgment order satisfied and must remain so.

What however happened is that in the case before MANZUNZU J, the fifth respondent prayed for cancellation of the Deed of Transfer no.708/19 in favour of the second respondent and left it at that.

He did not ask for any other relief as would have ensured that he gets payment in terms of the judgment granted in his favour.

The fifth respondent noted an appeal to the Supreme Court against the judgment of MANZUNZU J. The appeal was noted on 15 March 2019. It is pending before the Supreme Court under case no. SC140/19.

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

This is an application for absolution from the instance.

The first defendant contends that at the close of the plaintiff's case the court should find that the first plaintiff has hopelessly failed to place any evidence before the court upon which a reasonable court may find for the first plaintiff.

A joint pre-trial conference memorandum signed and filed by the parties sets out the issues for determination as follows:

1. Whether or not House Number 8566 Pumula East Township, Bulawayo, registered in the names of the late Preece Nhliziyo should be declared as being owned by the estate of the late Harold Nhliziyo.

2. Whether or not Thembelani Adrian Nhliziyo should be declared the only beneficiary in the Estate of the Late Preece Nhliziyo and House Number 8566 Pumula East Township, Bulawayo, must be transferred into his names.

3. Whether or not the first plaintiff, and all those claiming occupation through her, should vacate House Number 8566 Pumula East Township, Bulawayo, fourteen days after the order is served on her.

4 Whether or not the first plaintiff should pay holdover damages (rentals) in the sum of US$250 calculated from the date she issued summons to date of her eviction.

The first plaintiff avers, in her declaration, that she is the Executrix Dative in the estate of the late Harold Nhliziyo in terms of Letters of Administration dated 22 March 2011. The second plaintiff is the estate of the late Harold Nhliziyo who died at Bulawayo on 17 December 2010.

The first defendant is cited in her capacity as the guardian of Thembelani Adrian Nhliziyo, a minor child and beneficiary in the Estate of the Late Preece Nhliziyo (the third defendant).

The first plaintiff further avers that the late Harold Nhliziyo was married to three different women before his demise. His first marriage ended in divorce and his second wife pre-deceased him.

At the time of his death, he was married to the first plaintiff.

It is not in dispute that on 14 February 1986 the late Harold Nhliziyo purchased, from the City of Bulawayo, Stand 8566 Pumula East, Bulawayo. The first plaintiff alleges, in her declaration, that, after his divorce with his first wife the late Harold Nhliziyo transferred Stand 8566 Pumula East, Bulawayo into the names of his late son, Preece Nhliziyo.

She avers, further, that, it was the intention of the former, that, upon his death, the property be inherited by Preece Nhliziyo and his siblings. Preece Nhliziyo died in 2004, before his father died, and his estate was registered in 2007.

It is the first plaintiff's case, that, the late Harold Nhliziyo failed to effect a change of ownership of the property back into his names before he died.

The first plaintiff also contends, that, the first defendant was once married to the late Preece Nhliziyo before she abandoned him when he became critically ill.

It is the plaintiff's case that Preece Nhliziyo was never ordinarily resident at the property in dispute and that the first defendant has no right to the property.

At the heart of the plaintiff's case was the assertion that the house belongs to the estate of the late Harold Nhliziyo and not the estate of the late Preece Nhliziyo.

The property was “provisionally” registered in the name of Preece Nhliziyo to prevent Harold Nhliziyo's first wife from laying a claim in the property in divorce proceedings.

This was the first plaintiff's position. She said her version was largely based on what she was told by Harold Nhliziyo before he died.

The first plaintiff gave evidence.

She largely abandoned her case as set out in the declaration.

It emerged, from her evidence, that, it was not true that Harold Nhliziyo had transferred Stand 8566 Pumula East, Bulawayo into the names of Preece Nhliziyo after his divorce with his first wife. The first plaintiff admitted that that the property was transferred into Preece's names before the divorce.

It was also established that the first plaintiff was only married to Harold Nhliziyo in 2005.

She had two children with the late Harold Nhliziyo, namely, Ashley Nhliziyo (born in 1998) and Andila Nhliziyo (born in 2002).

The house in dispute was registered into the names of Preece Nhliziyo in 1993.

It is therefore not possible for Harold Nhliziyo to have intended the unborn children to benefit from the said property.

In any event, when the house was transferred into the names of Preece Nhliziyo, the late Harold Nhliziyo had not even met the first plaintiff.

Her claim, that her late husband had told her that he was making provision for children who were not born, does not make sense and the plaintiff failed to explain that discrepancy.

Under re-examination by her legal practitioner, she was asked to explain why her husband transferred the house into the names of Preece Nhliziyo. She said her husband had told her that he had a problem pertaining to divorce.

When the first plaintiff led evidence, she gave the impression, that, at the time the property was transferred into Preece Nhliziyo's names, he was a school-going child who had no means of income. This was refuted by the first plaintiff's own witness, Mandleni Nhliziyo, who testified, that, at the material time, Preece Nhliziyo was already in his late twenties.

The first plaintiff's witnesses, Jack Nhliziyo and Mandleni Nhliziyo, were extremely unhelpful to the court.

Their evidence was vague and of little assistance to the plaintiff's case.

Jack Nhliziyo stated that he was a brother to the late Harold Nhliziyo. He informed the court that he was staying in Gwanda at the relevant time. He would visit his brother, in Bulawayo, from time to time. He said his brother told him certain things, but that sometimes he would not. He testified, that, sometime in 1993 he approached the late Harold Nhliziyo at Edgars, Bulawayo where he was employed. His late brother confided that he had a problem with his wife. He indicated that he would use his child, Preece, to protect his property from distribution in a pending divorce.

Jack Nhliziyo said he did not have any further information on the house in dispute save for that discussion he had with his late brother.

The second witness for the first plaintiff was Mandleni Nhliziyo.

The witness told the court that he knew the property being 8566 Pumula East, Bulawayo to belong to the late Harold Nhliziyo. He stated, that, on a certain day, he saw papers at the late Harold Nhliziyo's house bearing the names Preece Nhliziyo. He said upon enquiry with the late Harold Nhliziyo he was advised that the property had been transferred into Preece Nhliziyo's names for the sole purpose of preventing the first wife from claiming a share in the property.

The witness could not explain why the late Harold Nhliziyo had not re-transferred the property into his names after the divorce with his first wife.

In summary, the first plaintiff's evidence was centred on what she said she was told by the late Harold Nhliziyo.

Her oral testimony is not consistent with the averments in her declaration.

An assessment of her evidence clearly shows that she hinged her claims on what she says she was advised by Harold Nhliziyo.

There is a reasonable possibility that she was misled by the late Harold Nhliziyo.

There would be no reason why Harold Nhliziyo would have failed to regularise the ownership of the house from 1993 up to 2011 when he met his death. He had two children with the first plaintiff, in 1998 and 2002, and he would have had ample time to ensure that his two children with the first plaintiff were adequately catered for upon his death.

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

This is an appeal against the whole judgment of the High Court handed down on 23 July 2020 which declared the first respondent the rightful owner of a Cat Caterpillar Dump Truck 769C. The Caterpillar was purchased by the first respondent at a judicial auction conducted by the Sheriff on 18 October 2019 at Devuli Farm in Bikita.

After hearing arguments, we issued the following order:

“1. The appeal be and is hereby dismissed.

2. By consent, the appellant shall pay costs at the ordinary scale.

3. The reasons for judgment will be delivered in due course.”

What follows hereunder are the reasons for judgment.

FACTUAL BACKGROUND

The Zimbabwe Electricity Transmission and Distribution Company (ZETDC) obtained judgment against Nan Jiang Mine (Pvt) Ltd in case number HC564/17. In due course, a writ of execution was issued against its property and the Sheriff was instructed to sell the property in execution of the judgment of the court.

The Cat Caterpillar which now forms the basis of this appeal was one of the properties placed under attachment on the instructions of Chihambakwe, Mutizwa and Partners, the legal practitioners representing the Zimbabwe Electricity Transmission and Distribution Company (ZETDC). The sale of the properties was duly advertised for 18 October 2019. It was to be conducted in situ at Devuli Farm, in Devuli Range, Bikita.

On that date, the first respondent participated at the auction and made a bid for the caterpillar.

He was declared the highest bidder and paid the sum of $141,500 as the purchase price for it.

He could not immediately collect it after the sale as he had to return to his home in Gweru to make arrangements for transport to convey it to his place.

Upon the first respondent's return to the site, on 3 November 2019, he found that the first appellant had removed the Caterpillar and taken it away to an address in Southerton, Harare.

After lodging a criminal complaint with the police, the first respondent filed an application at the High Court in Masvingo for a declaratory order that he was the lawful owner of the Caterpillar.

The first respondent also sought consequential relief that it be transported to his address in Gweru.

The basis of the application was that the first respondent had lawfully purchased the machine at an auction conducted in accordance with the law. The first respondent contended, that, he concluded a valid sale agreement with the Sheriff which had the effect of transferring ownership to him. The conduct of the first appellant, in removing his property to a location in Harare, was unlawful.

In opposing the application, the appellants raised a number of issues not relevant in the determination of this appeal. What was germane to the dispute was their contention, that, after receiving information of the pending auction they made arrangements to settle the judgment debt and the Sheriff's costs.

In that regard, the appellants stated, that, they had paid to the judgment debtors legal practitioners a sum of money which cleared all that was due in terms of the judgment of the court.

They alleged that full payment was made on 18 October 2019 - the very date of the auction sale.

In their view, it was then incumbent upon the Sheriff to immediately stop the sale in execution and release their property from the shackles of attachment.

It was further contended by the appellants, that, proceeding with the sale when the judgement debt, together with the Sheriffs costs, had been liquidated yielded an invalidity. For that reason, the first respondent could not enforce a nullity.

The court a quo found, that, notwithstanding the appellants frantic, but belated, effort to clear the debt, the judgment creditor had accepted the proceeds of the sale from the Sheriff. It found that the judgment creditor had so accepted the proceeds because the appellants had been untruthful. More importantly, the court a quo found, that, the correspondence from the judgment creditor's legal practitioners, purporting to stop the sale, had only been received by the Sheriff on 30 October 2019 - several days after the auction. Accordingly, there had been no attempt to stop the sale by auction.

In light of that, the court a quo concluded that due process had been followed in executing the sale. As such, the court could not interfere with the judicial sale. It granted the application for a declaratory order and consequential relief.

THE APPEAL

The appellants were aggrieved by that turn of events. They noted an appeal on six grounds.

The first three grounds of appeal seek to impugn the court a quo's finding that the first respondent was the rightful owner of the Caterpillar on the basis that the auction sale was invalid. It ought to have been stopped because the debt had been cleared.

The remaining grounds, which seek to attack the judgment a quo on an alleged “serious dispute of facts” and the alleged citation of a non-existent litigant, are clearly extraneous.

This is in light of the court a quo having resolved any perceived disputes on the papers and the fact that the appellants complaint, that the property belonged to Nan Jiang Africa Resources (Pvt) Ltd and not Nan Jiang Mine, was misplaced.

If indeed that was the case, the appellants, or is it Nan Jiang Africa Resources (Pvt) Ltd, had an alternative remedy. It should have made a claim to the property before it was sold. That way, the Sheriff would have instituted interpleader proceedings.

It was not open to the present appellants, not being Nan Jiang Africa Resources (Pvt) Ltd, to use the alleged misjoinder to try and ward off the enforcement of the Sale Agreement.

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

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

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

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

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

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

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

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

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

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

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

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

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

In her plea, the defendant averred as follows:

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

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

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

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

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

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

The admissions were recorded as follows:

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

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

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

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

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

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

The applicant purchased the immovable property known as Stand 4022 Khumalo Township of Stand 4125 Bulawayo (commonly referred to as 36 Ellington Avenue, Khumalo, Bulawayo) at a public auction conducted by the second respondent on 19 July 2013.

The property is registered in the name of Raphael Masuku (the first respondent's husband).

The sale was confirmed by the second respondent on 17 October 2013.

The applicant complied with all the terms and conditions of the sale and duly paid the purchase price.

The transfer of the property cannot, however, be effected into the names of the applicant as the first respondent obtained a Provisional Order against her husband, Raphael Masuku, on 20 September 2000 under case number HC3089/2000. The interim order provides, in paragraph 4, that, pending an order of this court, the third respondent be and is hereby interdicted from transferring the property to a third party.

A caveat was registered against the title deed of the property in terms of that interim order.

The applicant has filed this application seeking an order for the discharge of paragraph 4 of the provisional order under case number 3089/2000 and for the upliftment of caveat number 808/2000 registered in pursuance of the interim order.

This is to enable the third respondent to effect transfer of the property from Raphael Masuku into the applicant's names.

In essence, the relief being sought by the applicant is to give effect to the judicial sale which has been stalled by the terms of the interim order granted by this court on 20 September 2000.

The first respondent has opposed the relief sought by the applicant primarily on the grounds, that, the judgment/order under case number HC1938/12 which led to the attachment and subsequent sale of the property in dispute is being challenged in court by her husband, Raphael Masuku.

In that matter, Raphael Masuku has filed an application for condonation for leave to apply for rescission of judgment under case number HC1938/12 which led to the attachment and auctioning of the property by the second respondent....,.

Background

The first respondent is married to Raphael Masuku and there is a divorce action which is pending under case number 3089/2000. On 20 September 2000, the first respondent obtained, against her husband, interim relief interdicting the sale of the property in dispute to a third party pending an order of this court.

The first respondent duly registered a caveat against the title deed bearing number 808/2000.

The divorce action, instituted some 15 years ago, has not been finalized. No proper explanation for the delay in finalization of this matter has been proffered by the first respondent.

Sometime in May 2012, Raphael Masuku was served with summons under case number HC1645/12.

At that time, Raphael Masuku was at Khami Prison on charges of theft of motor vehicle.

The plaintiff in that matter obtained judgment, and, subsequently, this led to the sale of the property known as 36 Ellington Road, Khumalo, Bulawayo in satisfaction of the judgement debt.

Under case number 1398/12, Raphael Masuku has attempted to seek a rescission of judgment.

Once again, as in the divorce matter, there seems to be no urgency in having that matter brought to finality. No sensible and plausible explanation has been advanced to explain the failure to have the application for condonation, and for rescission of judgement, resolved.

The first respondent and her husband seem content with maintaining the status quo.

It suits the first respondent to cling to the caveat registered in the year 2000. This is so because the property cannot be transferred to the applicant for as long as the caveat is not uplifted. As things stand, the first respondent is not proceeding with the divorce action and Raphael Masuku is not pursuing the application to rescind the default judgment that led to the sale of the immovable property.

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

This was an application for the setting aside of an arbitration award.

The arbitrator, the second responded herein, was a retired Judge of this court.

The basis of the application was that the arbitrator had misconstrued the factual basis of the applicant's claim before him. It was also said, that, the arbitrator's second and final award had contradicted the findings in his first award. This misdirection was said to have led the arbitrator to make an award that was so palpably iniquitous as to be in conflict with the public policy of Zimbabwe, as envisaged by Article 34(2)(b)(ii) of the Model Law, which is incorporated in the Arbitration Act [Chapter 7:15].

The applicant also challenged the arbitrator's order of costs against it on the punitive scale of attorney and client and said, or implied, that, it was irrational, especially in circumstances where not only the arbitrator had given no justification or explanation for it, but also where the first respondent had not asked for such a scale.

Finally, the applicant also challenged the arbitrator's order that his costs be met by the applicant alone. The award of costs in such a manner was cited as another example of the lack of logic in, and the iniquitous nature of the award.

The first respondent opposed the application.

It supported the arbitrator's award and submitted that the applicant had misconstrued the arbitrator's findings in his initial award, which, it was argued, were no more than a re-statement or formulation of the issues for arbitration.

The papers were moderately voluminous. From the onset, I endorse the applicant's self-criticism in its heads of argument, that:

“…,. (T)he arguments in the submissions by the parties are somewhat convoluted, and, in some instances, intended to confuse the real issues.”

Not only that, but, the applicant's affidavits were prolix, repetitive, and argumentative. But, shorn of that, I believe the facts and the issues were simple and straightforward.

They were these:

(a) The Facts

The first respondent was a public cellular telephone operator. It was a private company. The applicant was also a private company. The genesis to the dispute between the two was the relationship that they entered into on 23 February 2009. As at that date, the first respondent was a 60% shareholder in another company called Zellco Cellular [Private] Limited [“Zellco”]. This shareholding had come about following a debt-equity swap.

The arrangement had been induced by Zellco Cellular's failure to remit what had been due by it to the first respondent.

Zellco Cellular's indebtedness to the first respondent had arisen out of a relationship that had existed between it and the first respondent since the year 2001. That relationship had been created in terms of a certain written agreement titled 'Service Provider Agreement' [hereafter referred to as “the SPA”].

In terms of the Service Provider Agreement, Zellco Cellular had been appointed to supply and distribute, inter alia, the first respondent's radio-linked telephone services to Zellco Cellular's own customers whom it would bill, and collect payments from, in connection with those services. In return, Zellco Cellular would be paid a commission by the first respondent. This would be deducted up-front and the net remitted to the first respondent.

The life-span of the Service Provider Agreement had been five years, but had been subject to renewal.

As at 23 February 2009, when the first respondent entered into the aforesaid relationship with the applicant, the Service Provider Agreement (SPA) had been renewed for another five years, from 21 November 2006 to some date in 2011.

Thus, when the applicant and the first respondent started their relationship, on 23 February 2009, the Service Provider Agreement (SPA) had still about two more years to run.

The relationship that the applicant and the first respondent created, on 23 February 2009, as aforesaid, was a straightforward sale of shares agreement. They executed a written document titled “Agreement of Sale of Shares”] [hereafter referred to as “the ASS”].

In substance, the first respondent sold to the applicant its entire shareholding in Zellco, i.e. the aforesaid 60% equity, for a certain sum of money.

It seemed common cause, that, the applicant had paid the purchase price in accordance with the agreement.

The fall-out between the parties was in respect of clause 13 of the Agreement of Sale of Shares.

The dispute was multi-faceted.

As I understood it, and in my own words, the applicant's position was that the first respondent had breached clause 13, and that, as a result, the first respondent had become liable to it in damages.

The first respondent disputed that it had breached the Agreement of Sale of Shares or that the applicant had been entitled to damages. It accused the applicant of purporting to step into the shoes of Zellco, and suing as if it were Zellco, allegedly in violation of basic tenets of Company Law.

The applicant's rejoinder was that it had not purported to step into Zellco's shoes; that, but for it to claim from the respondent, it had necessarily had to compute what Zellco had been owed by the first respondent by way of commissions in terms of the Service Provider Agreement, both as accrued in the past, and as projected in the future; that, the net amount, after deductions for expenses and contingencies, had constituted the value of its investment in Zellco, and that that was what it had lost as a result of the first respondent's breach.

Initially, the quantum of the applicant's claim was $13, 912,700=61. Subsequently, this was revised upwards to $14,962,121=82.

Zellco was not part of the dispute....,.

Clause 13 of the Agreement of Sale of Shares was undoubtedly the only link between the Service Provider Agreement (SPA) and the Agreement of Sale of Shares. As such, it was what connected the applicant to the SPA - an agreement to which it was otherwise not a party....,.

Clause 13 of the Agreement of Sale of Shares, particularly sub-clause 2 thereof, read as follows:

“13 Duration of Agreement and Life of Service Provider Agreement

13.1….,.

13.2 NetOne undertakes to renew the Service Provider Agreement between Zellco Cellular and themselves in order for Farpin to have the opportunity to realise full value on the shares procured by a further five [5] years from the date of expiry of the current agreement between NetOne and Zellco.”

[b] Arbitration

The dispute between the parties, or rather facets of it, was arbitrated upon, twice, by the second respondent.

In the first arbitration, the applicant challenged the jurisdiction of the arbitrator saying that the dispute was not one to be resolved by arbitration.

The arbitrator ruled against it.

In the course of his award, he made reference to the cancellation of the Service Provider Agreement (SPA) by the first respondent as not constituting a breach of the Agreement of Sale of Shares, but, that the effect of the cancellation had given rise to such breach since the respondent could then not comply with the Agreement of Sale of Shares.

From there, the arbitrator directed the parties to file their statements of claim for the second arbitration on the two issues that he had identified.

The first respondent was ordered to meet the costs of that initial award.

The arbitrator conducted a second hearing at which, among other things, the applicant's witness, an accountant, gave viva voce evidence on how the applicant's damages had been computed.

The proceedings did not go to the “defence” case.

The first respondent applied for the discharge of the applicant's claim.

The application was granted with costs on an attorney and client scale.

The arbitrator's findings and conclusions were as follows:

“Having given careful consideration to the submissions made by the legal representatives of the parties, I consider that there is no privity of contract between the parties.

Clause 13.2 of the SPA does not provide a nexus which would entitle the Claimant to claim damages for the loss of commission and profits suffered by Zellco because of the cancellation of the SPA.

The Claimant cannot step into the shoes of Zellco and claim the alleged damages suffered by Zellco.

In clause 7 of its Statement of Claim, as amended, the Claimant submitted, that, as a consequence of the cancellation of the SPA it suffered damages in the sum of $14,962,121=82 which is made up of three elements:

(i) The first being commission amount due to it (not to Zellco) up to April 2011;
(ii) The second being loss of income [from] April to May 2014; and
(iii) The third being projected loss of income [from] June 2014 to November 2016 and then claim that that was the amount of the damages it suffered.

If income in the sum of $6,688,988=96 was lost by Zellco, that does not mean that Zellco did not make a profit of $6,688,988=96 which it would have passed on to its shareholders. It would have incurred expenses which would have had to be paid from the income received.”

After that, the applicant applied to this court for the setting aside of the arbitrator's decision.

[c] Issues

In order for me to arrive at the conclusion whether or not the arbitration award was impeachable by reason of a violation of the public policy of Zimbabwe, as envisaged by Article 34[2][b][ii] of the Model Law, which is incorporated in the Arbitration Act [Chapter 7:15], the issues, as I see them, were these:

[i] What is the approach of the court where an arbitration award is sought to be impeached?

[ii] Did the arbitrator contradict himself in his two awards?

[iii] Did the first respondent breach the Agreement of Sale of Shares; was the applicant entitled to damages?

[iv] Did the arbitrator misdirect himself by awarding the first respondent costs on a higher scale and ordering the applicant to meet the costs of the arbitrator on its own?

I now proceed to consider the law on the point and to determine the issues as I have identified them above.

[i] Approach of the court vis-a-vis impeachment of Arbitral Award

In terms of Article 34 of the Model Law in the Arbitration Act, this court may set aside an arbitral award only on the grounds specified therein. One of those grounds, which the applicant has expressly relied on in these proceedings, was that the arbitration award was in conflict with the public policy of Zimbabwe as envisaged by sub-article [2][b][ii] of Article 34.

Sub-article [5] of Article 34 states:

“(5) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this article, it is declared, that, an award is in conflict with the public policy of Zimbabwe if —

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

Other than paragraph [b] above, none of the other grounds listed by Article 34, on which this court may set aside an arbitral award, applied to the applicant's situation herein.

The definition of “public policy” in sub-article [5] does not limit the generality of that term as used in sub-article [2][b][ii].

The applicant alleged, that, the arbitrator misconstrued the premise upon which his claim had been presented before him, and that, as a result, he had seriously misdirected himself. It was argued, that, such misdirection had led him to come to a wrong conclusion. This was said to constitute a palpable and intolerable inequity that would hurt the conception of justice in fair-minded persons.

The onus lies on the party that seeks to set aside an arbitral award under Article 34 of the Arbitration Act.

In my view, it is an extremely heavy onus.

I believe, that, in the same way as in they exercise their review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion by the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

Dealing with the old Arbitration Act, before it was repealed and replaced by the current one, where the ground for setting aside an arbitral award was misconduct of the proceedings by the arbitrator, or the improper procurement of the arbitrator, or of the award, GUBBAY CJ, in Zimbabwe Electricity Supply Authority v Maposa 1999 [2] ZLR 452 [SC] said, at p462E–H:

“…,. [A] party seeking to set aside an arbitral award could succeed only if able to establish either misconduct on the part of the arbitrator or the fact that the award was improperly procured. The word 'misconduct' was to be understood in the sense of some wrongful, dishonest, or improper conduct; a bona fide mistake, whether of law or of fact, on the part of the arbitrator could not be relied upon as a ground for setting aside the award.”…,.

At p466E, the learned Chief Justice, dealing with the current Arbitration Act, said:

“An arbitral award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or in law. In such a situation, the court would not be justified in setting the award aside. Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision.”…,.

In casu, both parties relied on Zimbabwe Electricity Supply Authority v Maposa 1999 [2] ZLR 452 [SC] above.

In particular, the applicant quoted the passage at 466 above, and evidently found support in what the learned Chief Justice went on further to say at p466F–G:

“Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or correctness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.

The same applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”

I now turn to examine the alleged palpable, far reaching, illogical and outrageous inequity by the arbitrator which fair-minded persons would consider would hurt the conception of justice in Zimbabwe if allowed to stand.

This leads me to consider the rest of the issues as I have identified them above.

[ii] Did the arbitrator contradict himself?

One of applicant's refrain was, that, in his first award, the arbitrator had made a positive finding that the first respondent had breached clause 13.2 of the Agreement of Sale of Shares by having cancelled the Service Provider Agreement and that the effect of that cancellation had given rise to a breach of the Agreement of Sale of Shares.

Having made that finding, it was argued, all that had remained, as indeed the arbitrator himself had gone on to direct, was the filing of the parties statements of claim.

I understood the applicant's argument on this to be that the liability of the first respondent for breach of clause 13.2 of the Agreement of Sale of Shares had already been settled by the first award and that the purpose of the second arbitration had merely been to settle quantum.

On the other hand, the first respondent accused the applicant of having misconstrued the arbitrator's statement in the first award. It disputed that the arbitrator had made a finding that there had been a breach and said that he had merely identified that aspect as being one of the issues for arbitration, otherwise he would not have called on the parties to file their statements of claim.

I find against the applicant on this point.

Regarding the generic statement in question, the applicant was guilty of, firstly, selective quoting; secondly, quoting the statement out of context; and, thirdly, misconstruing it altogether.

The applicant repeatedly quoted [i.e. in the founding affidavit, answering affidavit, and heads of arguments] the arbitrator's statement in the first award as follows:

“In my opinion…, the effect of the cancellation did give rise to a breach of the Agreement because Claimant [sic] did not comply with the provisions of Clause 13.2.”

But, that was not all that the arbitrator had said on the point.

The arbitrator's full statement, relevant to that point, was this [with the words removed by the applicant restored and highlighted, and those directly contradicting it highlighted and underlined]:

“It is clear that the cancellation by Respondent, on May 2011, of the Service Provider Agreement it had entered into with Zellco did not constitute a breach of the Sale Agreement Respondent had entered into with Claimant….,.

In my opinion, although the actual cancellation by Respondent of the Service Provider Agreement did not constitute a breach of the Sale Agreement, and, therefore, could not be subject to arbitration in terms of clause 14, the effect of the cancellation did give rise to a breach of the Agreement because Claimant [sic - obviously Respondent] did not comply with the provisions of Clause 13.2.

Had Respondent renewed the Service Provider Agreement in November 2011 and cancelled it a few months later there would have been no breach of the agreement.

I consider that there are two issues giving rise to a dispute between the Parties.

[a] Under 14.1.3 the respective rights and obligations of the parties under the agreement once clause 13.2 became incapable of performance; and

[b] Under 14.1.4, because Respondent breached the agreement by failing to comply with its undertaking in terms of clause 13.2 to renew the Service Provider Agreement for a further 5 years from November 2011.

The first respondent was right.

In his first award, the arbitrator did not, as it were, settle the question of the first respondent's liability for the alleged breach of clause 13.2 of the Agreement of Sale of Shares. He had merely identified that aspect as being one of two issues to be settled in the second arbitration. As paragraph [a] of his formulation of the issues put it, the second arbitration would determine “…, the respective rights and obligations of the parties under the agreement….,.”

The applicant forgets, that, at that stage, the issue before the arbitrator was whether or not the dispute was one to be settled by arbitration.

The arbitrator said it was. He then went on to identify what the issues were.

The applicant's selective quoting of the arbitrator's statement in this regard, and quoting it out of context for that matter, was a self-serving stratagem which was intended to mislead. Therefore, it is my finding, that, the arbitrator did not contradict himself in his two awards in question.

[iii] Did the first respondent breach the Agreement of Sale of Shares; was the applicant entitled to damages?

Without doubt, there was no privity of contract between the applicant and the first respondent in terms of the Service Provider Agreement.

The Service Provider Agreement was between the first respondent and Zellco. That agreement started and ended with these two parties only.

It seems there had been some stray or loose argument to the effect that both Zellco and the applicant had a common shareholding in some respects.

Certainly, at the relevant time, Zellco's chief executive officer also happened to be the chairman of the applicant. But, this set up could not have had any consequence by itself.

Zellco and the applicant were separate legal personae. A wrong done to one was not necessarily a wrong done to the other.

Before me, the applicant accused the arbitrator of misconstruing the premise of his claim before him when he made a finding, that, by suing the first respondent directly for damages, the applicant was attempting to step into the shoes of Zellco.

The applicant said it never stepped, or ever wanted to step, into Zellco's shoes. It said it was not suing the first respondent on the basis of the Service Provider Agreement, to which it was not a party. It was suing the first respondent only on the basis of its breach of the Agreement of Sale of Shares, to which it was a party.

It is important that I capture, accurately, the gravamen of the applicant's argument on this point. It was the jugular vein.

The applicant put its argument this way…,.:

“Contrary to Respondent's allegations and the basis of the ruling by the Arbitrator on the issue, Applicant did not claim everything Zellco would have earned as its profits….,. Zellco's commission was calculated in terms of the SPA, as a percentage of the total income generated from its clients based on the usage of the Respondent's network.

It therefore is no rocket science that in order to determine the commission Zellco would have earned, Applicant needed to calculate or estimate the said total income. Having determined the commission, Applicant went on…, to deduct from the commission all the operating and administrative expenses Zellco would have incurred in earning such commission.

The result is what Zellco would have earned from the operations as its profit and it is this profit that accrues to the shareholders of Zellco and distributed to them as dividends or retained earnings or some other form.

It is this profit, calculated as such, that Applicant is clearly claiming in its statement of claim and particulars of damages.

To the extent that the arbitrator's ruling failed to appreciate this simple fact, it cannot be based on sound legal principles at all and allowing any finding or ruling based on grossly unsound appreciation of fact and such fundamental legal principles to stand would be such an aberration of justice that would no doubt be contrary to the public policy of Zimbabwe which requires that sound legal principles and justice be upheld in such matters.”

Earlier…, the applicant had put forward the same argument as follows:

“The only way the Claimant could have stepped into the shoes of Zellco and sued Respondent for damages suffered by Zellco as a result of the cancellation of the SPA is by suing Respondent in terms of breach of a specific clause of the SPA. Zellco had no shoes in the SSA (no privity of contract) and by suing Respondent for breach of Clause 13.2 of the SSA, the Claimant could not have been doing so in the shoes of Zellco but its own as it clearly has privity of contract.”

I saw no difference. To me, it was all a question of semantics. The applicant was approbating and reprobating.

Plainly, it purported to step into Zellco's shoes and to sue, under the guise of damages, the respondent for money that allegedly would have been due to Zellco.

I find no fault in the arbitrator's findings. But, I explain the situation in my own way.

In terms of the Service Provider Agreement (SPA), Zellco supplied the first respondent's products to members of the public. The profit belonged to the respondent. All Zellco was due was a commission. The applicant had no stake in that.

As a shareholder in Zellco, it would have had to wait for the declaration of a dividend.

If Zellco was pilfering the first respondent's money, then, that was a breach of the Service Provider Agreement (SPA). Indeed, the first respondent complained that Zellco was pilfering its money.

As a result, it instituted proceeding in HC3507/11 saying it had commissioned a firm of auditors who had discovered that Zellco had diverted an amount in excess of $14 million to its other project which had nothing to do with the first respondent. It said it had obtained summary judgment from this court in respect of that money.

All that the applicant said on this point was that the judgment had not been summary judgement, but merely a default judgment against which an application for rescission had been filed.

But, to me, that was neither here nor there. At the time of arbitration, Zellco had an unfulfilled judgment of over $14 million in respect of the first respondent's money. What was worse, Zellco had filed for bankruptcy.

On these facts, clearly, the first respondent had been entitled to cancel the Service Provider Agreement. It had done so. But, apparently, it had botched the cancellation procedure. For that, it had been ordered, by this court, to reverse the cancellation.

It had also been found guilty of contempt of court and fined for having failed, neglected, or refused to reverse the cancellation as had been ordered.

But, that was not the dispute that the arbitrator had been seized with. This was merely an aspect of, or the background to it.

At any rate, the first respondent contended, that, there had been yet another cancellation subsequent to the one in respect of which the applicant had obtained a provisional order and which the applicant had never challenged.

Of course, the applicant disputed that.

But, in my view, the goings-on between Zellco and the first respondent, which were playing out in this court, could not preclude the arbitrator from holding that there had been no privity of contract between the applicant and the first respondent in terms of the Agreement of Sale of Shares.

I find no fault with that decision, let alone one that could be classified as a palpable iniquity that was so outrageous in its defiance of logic or acceptable moral standards and would therefore be in conflict with the public policy of Zimbabwe.

The applicant fixed its sails to the mast of clause 13.2 of the Agreement of Sale of Shares. That clause obligated the first respondent to renew the Service Provider Agreement for a further five years.

The purpose for the renewal was so that the applicant could have the opportunity to realize full value on the shares that it had acquired from the respondent in terms of the Agreement of Sale of Shares.

Clause 13.2 was the only place in the whole Agreement of Sale of Shares that made reference to the Service Provider Agreement.

The clause did not say what would happen if the respondent did not renew as envisaged.

Notwithstanding that, the applicant claimed it knew what would happen.

In paragraph 8.7 of its founding affidavit, it said logic and equity demanded, that, any claim for damages in such circumstances would be a claim based on the applicant recovering that same value from the Service Provider Agreement that it would have derived had that agreement not been cancelled by the first respondent, which cancellation had resulted in the failure by the first respondent to renew the Service Provider Agreement.

But, there was a problem in the applicant's formulation of its alleged cause of action for damages against the first respondent.

In my view, clause 13.2 of the Agreement of Sale of Shares did not override the entirety of the Service Provider Agreement. It only revised the rights and obligations of the parties under the Service Provider Agreement regarding renewal, and not cancellation.

Those parties were Zellco and the first respondent.

The Service Provider Agreement had provisions relating to the rights and duties of the parties under it regarding cancellation. If Zellco frittered away the first respondent's money and the first respondent moved to cancel the Service Provider Agreement, the applicant could not invoke clause 13.2 of the Agreement of Sale of Shares and seek to block the first respondent from cancelling.

Clause 13.2 of the Agreement of Sale of Shares did not have that effect.

That, in my view, was why the arbitrator, in his first award, had surmised, that, had the first respondent renewed the Service Provider Agreement in November 2011, and cancelled it a few months later, there would have been no breach of the Service Provider Agreement.

There was yet another problem with the applicant's formulation of its damages claim.

Any rights arising out of any breach of the Service Provider Agreement, by the first respondent, would accrue to Zellco - not the applicant.

The applicant may have been the majority shareholder in Zellco, and clause 13.2 of the Agreement of Sale of Shares may have been inserted for its benefit; but, to argue that the value accruing to Zellco was the measure of the applicant's damages under the Agreement of Sale of Shares - never mind Zellco's own breach of the Service Provider Agreement, would, in my view, run counter to basic tenets of Company Law.

The applicant was no more than a shareholder in Zellco.

Zellco's money or assets were not the applicant's money or assets. Zellco's debtors were not the applicant's debtors.

The applicant could only rely on such rights as were conferred by its shares in Zellco.

What is a share? What rights does it confer to the holder?

In Borland's Trustees v Steel Brothers & Co Ltd [1901] 1 Ch 279 the plaintiff suggested, that, a share was a sum of money which would be dealt with in a particular manner by what were called, for the purpose of argument, executory limitations. The suggestion was emphatically rejected by the judge, FARWELL J…,.:

“To my mind, it is nothing of the sort. A share is the interest of a shareholder in the company, measured by a sum of money, for the purpose of liability in the first place, and interest in the second, but, also consisting of a series of mutual covenants entered into by all the shareholders inter se…,. A share is not a sum of money settled in the way suggested, but is an interest measured by a sum of money and made up of various rights contained in the contract [i.e. the articles of association], including the right to a sum of money of a more or less amount…,.”

CILLIERS and BENADE on Company Law, Durban Butterworths…, say:

“The term 'share' as such denotes that the holder thereof has a claim on part of the share capital of the company – and does not refer to a right of ownership in any part of the net assets of the company. A share in a company is not a corporeal object but represents a complex of rights and duties.”…,.

Some of the rights accruing to a shareholder via his shareholding in the company, and depending on the type of shares, are the right to dividends when they are declared, and the right to participate in a distribution on liquidation. There is also the right to vote at meetings, and so on.

For the applicant to have sued the first respondent directly to recover what would have accrued to Zellco, simply by virtue of an alleged breach of clause 13.2 of the Agreement of Sale of Shares, which, in any case, did not provide for such a right, amounted to the applicant assuming some derivative right of action but which it has not explained, let alone link to any tenet of Company Law.

The applicant's claim before the arbitrator was evidently based on numerous assumptions, not least, that Zellco had not been in breach of the Service Provider Agreement – despite the judgment of this court; that Zellco was trading profitably and would have made money, not only for the first respondent, but also for itself via the commissions – despite Zellco filing for voluntary liquidation; that Zellco would have declared dividends in all the succeeding years up to November 2016 when the Service Provider Agreement would expire, if it had been renewed, and so on.

I am satisfied, that, when the arbitrator refused to recognise such a formulation for a damages claim, there was nothing palpably iniquitous in his decision that could be said to be far reaching and outrageous in its defiance of logic that sensible and fair minded persons would consider that the conception of justice would be intolerably hurt.

Therefore, on this ground, again, I find against the applicant.

[iv] Did the arbitrator misdirect himself by awarding the first respondent costs on the higher scale and ordering the applicant to meet the costs of the arbitrator alone?

The applicant's claim before the arbitrator was dismissed with costs on the higher scale of attorney and client. Further, the applicant was ordered to meet the costs of the arbitrator on its own.

It has not been clear to me the basis upon which such scale of costs was ordered, or why the applicant was made to meet the costs of the arbitrator all by itself.

The first respondent did not ask for such a scale.

The arbitration clause in the Agreement of Sale of Shares made no provision for the costs of the arbitration. The only provision relating to costs was clause 15. But, this confined itself to the costs of, or incidental to, the negotiation, preparation and execution of the Agreement of Sale of Shares.

In his award, the arbitrator did not explain why he granted such a scale of costs, or why he ordered that his costs be paid by the applicant alone.

In casu, the applicant has made a frontal challenge on the arbitral award on this point. The first respondent's response has been rather muted or equivocal.

The award of costs is wholly a matter in the discretion of the judicial officer: see Graham v Odendaal 1971 [2] SA 611 [AD]; Kruger Brothers & Wassermen v Ruskin 1918 AD 63 and Rautenbach v Symington 1995 SA 583 [O].

Unless a party is guilty of some misconduct, costs are normally awarded on the ordinary scale. That is my understanding of the general principle in the civil courts. But, I see no reason why, in the absence of an agreement to the contrary, or of some other factors affecting it, the principle should not be extended to other fora or bodies exercising judicial or quasi-judicial functions.

In my view, the arbitrator misdirected himself when he awarded costs on the higher scale.

The applicant's claim may have been misconceived, but, the misconception was not so out of the ordinary as to warrant the applicant being mulcted in costs.

Although, even in these proceedings, the applicant may still be kicking against the legal pricks [see Corderoy v Union Government [Minister of Finance] 1918 AD 512…,.], in my view, it has not so gone out of bounds as to attract an adverse order of costs beyond the ordinary scale.

Regarding the order that the costs of the arbitrator should be borne by the applicant alone; again, I have found no explanation anywhere for this.

In my experience, the costs of the arbitrator are generally met by the parties in equal shares.

In the absence of an explanation for a departure from this practice, the arbitrator's costs have to be shared by the parties equally.

In the circumstances, the order of costs by the arbitrator, against the applicant, is set aside and substituted with one of costs on the ordinary scale, with the costs of the arbitrator being shared equally between the parties.

In casu, the applicant has only been partially successful, i.e. on the question of costs. But, to me, such success has been so infinitesimal as to warrant interference with the general principle that the costs should follow the result. Therefore, I make no special order as to costs.

DISPOSITION

1. The application is hereby dismissed with costs.

2. Paragraph 2 of the arbitration award by the Honourable Justice L. G. Smith [Retired], on 2 December 2014, relating to costs, is hereby set aside and substituted by the following:

2.1 The Claimant shall pay the Respondent's costs.

2.2 The costs of the arbitrator shall be borne by the parties in equal shares.

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Law Portal Zimbabwe

Locus Standi re: Factual or Evidential Averments or Pleadings Competently Available to Another Party

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS Ruled By: GOWORA J

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS Ruled By: NDOU J

HH33-12 : BRIAN JUSTICE ENTERPRISES PL vs H.E.R. (PVT) LTD and NITSA OLYMPIOS and PARIS OLYMPIOS and CHRISTOS VENTURAS and REGISTRAR OF DEEDS Ruled By: HUNGWE J

SC24-11 : MARY NYAMUTATA vs JOHN CHIKOMO and ARIMANDO BREAD and EPWORTH LOCAL BOARD Ruled By: MALABA DCJ, ZIYAMBI JA and CHEDA AJA

SC17-09 : ELIZABETH MUTIZHE vs LOVENESS GANDA and THE REGISTRAR OF DEEDS and FANNIE MUTIZHE Ruled By: MALABA DCJ

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED Ruled By: MAKARAU JP

HH104-09 : BSKY ENERGY (PVT) LTD vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ANOTHER Ruled By: BHUNU J

HB46-09 : HERBERT SIKHOSANA vs ESTATE LATE A MTSANA and SHOWLAST NCUBE and NAPFUTALI SIBANDA and ZANELE NCUBE and NOKUTHULA MTHETHWA and ORS Ruled By: NDOU J

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL Ruled By: CHITAKUNYE J

HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS Ruled By: MAKARAU JP

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD Ruled By: MAKARAU JP

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT Ruled By: GOWORA J

Appealed SC03-13 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PVT) LTD Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH36-11 : GENESIS VENTURES (PRIVATE) LIMITED vs ROLMAY TRADING (PRIVATE) LIMITED and LARDFAIR TRADING (PRIVATE) LIMITED Ruled By: BERE J

HH37-11 : STANSILOUS K MTIZIRA vs EPWORTH LOCAL BOARD and MAPANZURE and ELPHAS UTETE and ZACHARIOUS GODI Ruled By: CHATUKUTA J

HH54-13 : OX MINING (PRIVATE) LIMITED and GOLD RECOVERY GROUP (PRIVATE) LIMITED vs OX DRILLING LLC and SIDNEY STEYN and DIRK BENADE and THE COMMISSIONER-GENERAL Ruled By: MAKONI J

HH80-11 : CAIRO MHANDU vs JORDAN MUSHORE and RONALD MUSHORE and SAKALA CHOKOTO and FAITH DZAWO and DEPUTY SHERIFF Ruled By: BHUNU J

HH140-11 : 59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME vs HARARE MUNICIPAL WORKERS UNION and CITY OF HARARE and OTHERS Ruled By: MTSHIYA J

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD Ruled By: MATHONSI J

SC12-17 : JOHN CONRADIE TRUST vs THE FEDERATION OF KUSHANDA PRE-SCHOOLS TRUST and MUNICIPALITY OF MARONDERA and UNITED METHODIST CHURCH (MARONDERA INNER CITY) and REGISTRAR OF DEEDS N.O. Ruled By: BHUNU JA

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

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View Appeal SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

HH485-13 : LOVENESS KUDZANGA vs GODFREY KUDZANGA and THE REGISTRAR OF DEEDS and DEPUTY SHERIFF HARARE Ruled By: MAWADZE J

HH517-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS PL t/a CORE SOLUTIONS and SHERIFF OF ZIMBABWE and STANBIC BANK LIMITED and REGISTRAR OF COMPANIES Ruled By: ZHOU J

HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS Ruled By: MAFUSIRE J

HH140-15 : CHIEF SUPERINTENDENT MOYO and PROSECUTOR GENERAL vs OMEGA CHATYOKA Ruled By: MTSHIYA J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT Ruled By: CHITAKUNYE J

HH05-18 : MOVEMENT FOR DEMOCRATIC CHANGE (T) and MOVEMENT FOR DEMOCRATIC CHANGE (N) and SARAH KACHINGWE vs ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL N.O. and OTHERS Ruled By: MUNANGATI-MANONGWA J

Appealed SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

HH203-14 : CALEB DENGU and WILSON TENDAI NYABANDA vs ZIMBABWE ALLIED BANKING GROUP LIMITED Ruled By: MATANDA-MOYO J

Appealed HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE Ruled By: MAKONI J

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Appealed SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

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View Appeal HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: CHITAPI J

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS Ruled By: TSANGA J

Appealed SC08-21 : WELLI-WELL (PVT) LTD vs MALVERN IMBAYAGO and THE SHERIFF OF ZIMBABWE Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN Ruled By: DUBE J

HH521-18 : DEPUTY SHERIFF MARONDERA vs ESTHER HOMBARUME and VIOLET MUNJARANJI and EPHISON NDAHWI and SHAKI MUSEVE and NOMUHLE BANGANI and COOPER SMIT and TIANZE TOBACCO PL and LAWRENCE KATSIRU Ruled By: CHITAPI J

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

Appealed SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS Ruled By: CHITAPI J

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO Ruled By: MAKONESE J

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

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

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS Ruled By: MAKONESE J

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR Ruled By: MAFUSIRE J

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HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

HH33-12 : BRIAN JUSTICE ENTERPRISES PL vs H.E.R. (PVT) LTD and NITSA OLYMPIOS and PARIS OLYMPIOS and CHRISTOS VENTURAS and REGISTRAR OF DEEDS
Ruled By: HUNGWE J

SC24-11 : MARY NYAMUTATA vs JOHN CHIKOMO and ARIMANDO BREAD and EPWORTH LOCAL BOARD
Ruled By: MALABA DCJ, ZIYAMBI JA and CHEDA AJA

SC17-09 : ELIZABETH MUTIZHE vs LOVENESS GANDA and THE REGISTRAR OF DEEDS and FANNIE MUTIZHE
Ruled By: MALABA DCJ

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HH104-09 : BSKY ENERGY (PVT) LTD vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ANOTHER
Ruled By: BHUNU J

HB46-09 : HERBERT SIKHOSANA vs ESTATE LATE A MTSANA and SHOWLAST NCUBE and NAPFUTALI SIBANDA and ZANELE NCUBE and NOKUTHULA MTHETHWA and ORS
Ruled By: NDOU J

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

Appealed
SC03-13 : BERNARD VENGAI vs BENJAMIN CHUMA and NEW DONNINGTON FARM (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH36-11 : GENESIS VENTURES (PRIVATE) LIMITED vs ROLMAY TRADING (PRIVATE) LIMITED and LARDFAIR TRADING (PRIVATE) LIMITED
Ruled By: BERE J

HH37-11 : STANSILOUS K MTIZIRA vs EPWORTH LOCAL BOARD and MAPANZURE and ELPHAS UTETE and ZACHARIOUS GODI
Ruled By: CHATUKUTA J

HH54-13 : OX MINING (PRIVATE) LIMITED and GOLD RECOVERY GROUP (PRIVATE) LIMITED vs OX DRILLING LLC and SIDNEY STEYN and DIRK BENADE and THE COMMISSIONER-GENERAL
Ruled By: MAKONI J

HH80-11 : CAIRO MHANDU vs JORDAN MUSHORE and RONALD MUSHORE and SAKALA CHOKOTO and FAITH DZAWO and DEPUTY SHERIFF
Ruled By: BHUNU J

HH140-11 : 59 BENEFICIARIES OF VALLEY LANE HOUSING SCHEME vs HARARE MUNICIPAL WORKERS UNION and CITY OF HARARE and OTHERS
Ruled By: MTSHIYA J

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD
Ruled By: MATHONSI J

SC12-17 : JOHN CONRADIE TRUST vs THE FEDERATION OF KUSHANDA PRE-SCHOOLS TRUST and MUNICIPALITY OF MARONDERA and UNITED METHODIST CHURCH (MARONDERA INNER CITY) and REGISTRAR OF DEEDS N.O.
Ruled By: BHUNU JA

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

CC07-18 : LIBERAL DEMOCRATS and REVOLUTIONARY FREEDOM FIGHTERS and VUSUMUZI SIBANDA and LINDA MASARIRA and BONGANI NYATHI vs PRESIDENT OF THE REPUBLIC OF ZIMBABWE, E.D. MNANGAGWA N.O. and OTHERS
Ruled By: MALABA CJ

View Appeal
SC13-18 : TBIC INVESTMENTS PL and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS and RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

HH485-13 : LOVENESS KUDZANGA vs GODFREY KUDZANGA and THE REGISTRAR OF DEEDS and DEPUTY SHERIFF HARARE
Ruled By: MAWADZE J

HH517-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS PL t/a CORE SOLUTIONS and SHERIFF OF ZIMBABWE and STANBIC BANK LIMITED and REGISTRAR OF COMPANIES
Ruled By: ZHOU J

HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

HH140-15 : CHIEF SUPERINTENDENT MOYO and PROSECUTOR GENERAL vs OMEGA CHATYOKA
Ruled By: MTSHIYA J

HH198-16 : TANIA ROCHE (as Curator Bonis of Anita Bruk-Jackson) vs IAN MIDDLETON (as Testamentary Executor to Estate Late Chester Bruk-Jackson) and THE MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

HH05-18 : MOVEMENT FOR DEMOCRATIC CHANGE (T) and MOVEMENT FOR DEMOCRATIC CHANGE (N) and SARAH KACHINGWE vs ZIMBABWE ELECTORAL COMMISSION and REGISTRAR GENERAL N.O. and OTHERS
Ruled By: MUNANGATI-MANONGWA J

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

HH203-14 : CALEB DENGU and WILSON TENDAI NYABANDA vs ZIMBABWE ALLIED BANKING GROUP LIMITED
Ruled By: MATANDA-MOYO J

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

View Appeal
SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

Appealed
SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE
Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

View Appeal
HH339-18 : KUDAKWASHE MURAPE and MABLE MURAPE vs MUCHANETA CHATAMBUDZA
Ruled By: CHIKOWERO J

Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

HH424-13 : HONEY AND BLANCKENBERG vs LOURENCE ERASMUS VERMAAK and OTHERS
Ruled By: TSANGA J

Appealed
SC08-21 : WELLI-WELL (PVT) LTD vs MALVERN IMBAYAGO and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

HH521-18 : DEPUTY SHERIFF MARONDERA vs ESTHER HOMBARUME and VIOLET MUNJARANJI and EPHISON NDAHWI and SHAKI MUSEVE and NOMUHLE BANGANI and COOPER SMIT and TIANZE TOBACCO PL and LAWRENCE KATSIRU
Ruled By: CHITAPI J

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

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

HB18-15 : JULIET NHLIZIYO (N.O.) and ESTATE LATE HAROLD NHLIZIYO vs NOKUTHULA MOYO and ESTER KELLI (N.O.) and ESTATE LATE PREECE NHLIZIYO and ASSISTANT MASTER (N.O.) and CITY OF BULAWAYO
Ruled By: MAKONESE J

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

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

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J