Findings of Fact re: Witness Testimony iro Candidness with Court, Deceptive, Misleading Evidence & Material Non-Disclosure

View Appeal
HH207-15 : G BANK ZIMBABWE LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The evidence of the Head of Corporate was that all the money was supplied from the offshore related party at the margin and interest rate stated in the facility letter to whom all the capital and interest were remitted.It seems to me that he did not fully disclose the nature ...

SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

On 20 December 2006 the High Court granted a decree of divorce and other ancillary relief in a divorce action in which Mr Beckford was the plaintiff and Mrs Beckford the defendant. Aggrieved by part of the Order, Mr Beckford appealed to this Court. The Notice of Appeal, in relevant part, reads as follows:

“The appellant appeals against paragraphs 2, 3, 9, 10, 12 (only insofar as it relates to the respondent), 14, 15 (insofar as the time for payment by the appellant is required), 16, 17, 18, 19 (only insofar as it imposed upon the appellant the obligation to deliver such property to the respondent at his cost), 22 and 23 of the Order given by the High Court of Zimbabwe.”...,.

The parties were married to each other in Blackpool, Lancashire, England, on 26 November 1994. Two children were born of the marriage. These are Elsbeth Bridie Beckford, born on 7 August 1996, and Theodore Hugh Beckford, born on 9 February 1999. Both children were born in the United Kingdom.

At the pre-trial conference, the issues were identified as follows –

“1. Whether it is in the best interests of the minor children that custody be awarded to (the) plaintiff or (the) defendant, or that an award of joint custody be made.

2. Dependent upon the award of custody, the quantum of maintenance payable in respect of the children.

3. What order should be made in respect of the children's schooling?

4. The quantum of maintenance payable by (the) plaintiff to (the) defendant and the period thereof.

5. What assets constitute the matrimonial estate?

6. The apportionment thereof.

7. Costs.”

After a trial which lasted eight days the learned trial Judge prepared a long judgment in which he carefully considered the issues before him. I now wish to consider those paragraphs of the order of the court a quo which are challenged on appeal, and determine whether the learned trial Judge erred in any way....,.

PARAGRAPHS 16, 17, 18 AND 19

These paragraphs read as follows:

“16. The plaintiff shall transfer, against payment by him of the transfer costs, his rights, title and interest in the property situated at 45 Leinster Avenue, London SW14 7JW, Title Number SGL 67648, to the defendant free of any encumbrances, mortgages or other obligations duly existing or duly registered by law over the property.

17. The plaintiff shall transfer, against payment by him of the transfer costs, his rights, title and interest in the property situated at 390 Sutton Road, Sutton, SM3 9PH, Title Number SGL 637408, held under the name of Glencora Resources Limited to the defendant free of any encumbrances, mortgages or other obligations duly existing or duly registered by law over the property.

18. The defendant shall receive all the funds presently held in a Bank account in the joint names of RBM Davies and Partners, and Fladgate Fielder Solicitors, such funds being the net proceeds of the sale of the property at 265 Lonsdale Road, Barnes, London SW139QL.

19. The defendant be and is hereby awarded all the movable items that were formerly at the Lonsdale Road, Barnes, London, property and it is further directed that they shall be delivered by the plaintiff, at his cost, to such address as may be designated by her in London.”

Paragraph 19 was challenged by Mr Beckford only insofar as it imposed upon him the obligation to deliver the property to Mrs Beckford at his cost.

Thus, in terms of paragraphs 16 to 19 of the order Mrs Beckford was awarded –

(1) The immovable property at 45 Leinster Avenue, London (“the Leinster property”) free from encumbrances and mortgages;

(2) The immovable property at 390 Sutton Road, Sutton (“the Sutton property”) free from encumbrances and mortgages; and

(3) The net proceeds from the sale of the immovable property at 265 Lonsdale Road, Barnes, London, and all the movable items that were formerly at that property.

In arriving at these awards, the learned trial Judge was guided, to a great extent, by his findings of fact in respect of the credibility of Mr Beckford, on the one hand, and the credibility of Mrs Beckford on the other hand.

Commenting on the credibility of Mr Beckford on the issue of his assets, the learned trial Judge said the following…,:

“It seemed to me that the plaintiff was an evasive and dishonest witness. He simply was not prepared to disclose his assets fully. I agree with (the) observations of Mr Andersen that the plaintiff was an utter liar who manipulated the situation and avoided producing documents such as the completion statements. He appeared bent on denying the defendant her entitlement.”

On the other hand, the learned trial Judge commented as follows on the credibility of Mrs Beckford…,.:

“In my estimation, she was an honest and credible witness…,.”

It is significant that these findings were not challenged on appeal. In any event, an Appellate Court would not readily interfere with findings of fact made by a trial Judge. See, for example, Arter v Burt 1922 AD 303…,; National Employers Mutual General Insurance Association v Gany 1931 AD 187…,; and Germani v Herf and Anor 1975 (4) SA 887 (AD)…,.

In my view, there is no basis, in the present case, for interfering with the findings of fact made by the learned trial Judge on the credibility of the parties. No such basis was established by Mr Beckford.

Having rejected Mr Beckford's evidence in respect of the proprietary rights of the parties, the learned trial Judge said the following…,:

“I, however, find that the plaintiff did not disclose all his assets and income, especially after he instituted these proceedings. The consequences of his attitude are summed up in the English Court of Appeal by BUTLER-SLOSS LJ in Baker v Baker ([1995] 2 FLR 829 (CA)) at page 835, in these words:

'Mr Posnansky pointed to an utterly false case and asked us to consider why the husband was lying and what did he have to hide. If the cupboard was bare, it was in his interests to open it and display its meager contents. But, on the contrary, the husband, despite his protestations to the contrary, continued to live the life of an affluent man. I agree with the submissions from Mr Posnansky that if a court finds that the husband has lied about his means, and failed to give full and frank disclosure, it is open to the court to find that beneath the false presentation, and the reasons for it, are undisclosed assets.'

I will use this fact against him in distributing the assets that he disclosed. It is fair, just, and equitable that I award to the defendant all the money that is held in the joint account of their respective English solicitors.

I have agonized over the appropriate order to make concerning the distribution of the immovable properties that the plaintiff disclosed which are registered in England. In making the order that I have come to, I have been influenced, in great measure, by the plaintiff's failure to make full and frank disclosure, the size of the business transactions that were carried out by Coralsands and the concomitant income that must have accrued to him, the benefit that accrued to him from the disposal of 7A Granville Road to Nicky Morris, on 10 November 2005, the concerted programme that he undertook in asset stripping the matrimonial estate to his benefit and to the impoverishment of the defendant of which the registration of a charge in favour of his parents for £67,000 against 390 Sutton Common Road was part of, his financial acumen and resourcefulness, and his apparent disdain for the integrity of the legal process.

I will order that the two disclosed properties be transferred into the defendant's name while the plaintiff shall remain responsible for the discharge of all the encumbrances, such as the mortgages and restrictions registered against them.”

The issue which now arises is whether there is any basis for interfering with the proprietary awards made by the learned trial Judge in favour of Mrs Beckford in terms of paragraphs 16 to 19 of the order.

I do not think there is.

In Baker v Baker ([1995] 2 FLR 829 (CA)) OTTON LJ, who concurred with BUTLER-SLOSS LJ, who prepared the main judgment, said the following at 837:

“Accordingly, the husband cannot complain if the Judge, following authority, explored what was before him and drew inferences which may turn out to be less fortunate than they might have been had he been more frank and disclosed his affairs more fully.

Such inferences must be properly drawn and reasonable.

On appeal, it may be possible for either party to show that the inferences, or the award, were unreasonable in the sense that no Judge faced with the information before him could have drawn the inferences or awarded the figures that he did.

I am satisfied that the appellant has not succeeded in demonstrating that the figures WARD J awarded were in any regard unreasonable or unjustified.”…,.

In the present case, I am not prepared to say that no Judge could have drawn the inferences or made the awards made by the learned trial Judge.

There is, therefore, no basis for interfering with the awards made.

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

The applicant seeks appointment as the sole guardian of the minor child, Roxanne Chantal Van Vuuren, born 1 December 1994. She is the mother of the child.

Her marriage to the girl's father was terminated by consent by order of this Court on 7 August 2002 in case number HC2367/2002. The order adopted the detailed consent paper that was executed by the applicant and her former husband in Harare and Johannesburg, respectively.

This Court assumed jurisdiction on the basis of the additional grounds found in section 3(1)(c) of the Matrimonial Causes Act [Chapter 5:13].

Apparently, as appears in his affidavit of waiver that was executed in Johannesburg, he was not domiciled in Zimbabwe, a country he had left in 1998. She was, inter alia, awarded custody of the minor child.

She launched the present application on 1 April 2008….,.

Paragraphs 11 and 13 of her founding affidavit are the mainstay of her application. I reproduce them hereunder:

“11. It has become necessary that I apply for the minor child's passport and get her a visa so that she can pursue her education outside Zimbabwe and have the benefit of better educational facilities. However, to be able to apply for the minor child's passport and visa, respondent will be required to sign the application forms. This has proved to be extremely difficult as I do not have any contact or communication with him. Without the respondent's signature, the immigration authorities demand that I furnish them with legal documentation to prove that I am the minor child's guardian or to get the respondent to sign up the documents.

13. I submit that it is in the best interest of the minor child if sole guardianship is awarded to me, in that:

13.1. It will be easy to obtain her student permit in the United Kingdom where she can have access to better living and educational facilities and conditions.

13.2 It will remove the barrier of having to trace the respondent's whereabouts so as to make joint decisions regarding the child, a situation that is not expedient in cases of emergency or ordinary course of the child's livelihood. In any event, respondent having deserted the matrimonial home and having shown no indication of seeking to re-establish any connection with the minor child there is doubt that the respondent will be agreeable to make joint decisions with me.

13.3 The respondent has not involved himself, in any way, in any decisions regarding the up-bringing or nurturing of the child and has no contact with the child or myself.

13.4 Notwithstanding the existence of a court order for maintenance respondent never paid maintenance for the minor child.

13.5. At this age, the child cannot identify her father let alone identify with him.

13.6 Respondent has elected to abandon his right of guardianship over the child.”

As framed by the applicant, these two paragraphs seek to cast the burden of proof on the respondent by blaming him for failing to, firstly, communicate with her, and, secondly, exercise his guardianship role.

It also emerges from the other clauses in her founding affidavit that she remarried on 8 March 2003. Further, that the respondent also re-married. Her founding affidavit is silent on the steps that she took to notify the respondent of the need for him to exercise his role as a guardian.

In my view, the application betrayed a failure by the applicant to appreciate the fine distinction between custody and guardianship. Had she done so, her application would have been structured differently.

It is necessary that I set out what the two concepts entail.

Textbook writers have attempted to define both concepts. H R HAHLO, in the South African Law of Husband and Wife, 5th edition…, wrote:

“Custody is but one incident or sector of natural guardianship.

Where, as happens in most cases, custody is awarded to the mother and no order is made as to guardianship, the father is left with guardianship minus custody. The mother, as the custodian parent, is entitled to have the child with her, to control its daily life, to decide all questions relating to its education, training, religious upbringing and to determine what homes or houses the child may or may not enter and with whom it may or may not associate. In cases of urgency, she can supply the necessary consent to a surgical operation on the child.”

See also BOBERG in The Law of Persons and Family, 2nd edition…,.

VAN HEERDEN J in Governing Body, Gene Louw Primary School v Roodtman 2004 (1) SA 45 (C)…, set out the rights and duties of the custodian parent in terms similar to those outlined above by H R HAHLO, in the South African Law of Husband and Wife, 5th edition …, in these terms:

“At common law, a parent (or other person) who has the custody of a minor child is entrusted with the care of the child's person and the decision-making power in respect of the child's day-to-day life, upbringing, and education. A useful description of the position of the custodian parent is given by GUBBAY J in Matthee v MacGregor Auld and Another 1981 (4) SA 637 (Z) at 640D – F:

'(T)he custodian parent has, therefore, the right and duty;

(i) To regulate the life of the child; to choose and establish his residence - Landmann v Mienie 1944 OPD 59 at 65).

(ii) To resolve with whom he should be allowed to associate - Wolfson v Wolfson 1962 (1) SA 34 (SR) at 37C – H).

(iii) To direct the lines on which his secular education should proceed - Simleit v Cunliffe 1940 TPD 67 at 76; Scott v Scott 1946 WLD 399 at 401, including the choice of the school - Martin v Mason 1949 (1) PH B9 (N).

(iv) To devise upon his religious instruction - Ryan v Ryan 1963 R & N 356 (SR) at 368A.

(v) To determine what medical advice, supervision or assistance should be sought in the event of his becoming ill or sustaining an injury - Oosthuizen v Rix 1948 (2) PH B65 (W); Custner v Hughes 1970 (3) SA 622 (W) at 625B.

The…, non-custodian has no right of interference in these matters.'”

H R HAHLO, in the South African Law of Husband and Wife, 5th edition …, further states that:

“At common law, guardianship, in its widest sense, includes custody, and embraces the care and control of the minor's person as well as the administration of his property and business affairs. Where custody and guardianship are separated, the custodian parent has the care and control of the minor's person, while the guardian parent administers his property and business affairs ('guardianship' in the narrower sense).”

The learned author proceeds to define guardianship in the narrower sense…, in these terms:

“By virtue of his guardianship, it is the father's right and duty to take charge of and administer the property of the minor; invest his moneys; pay his debts; and contract on his behalf in business matters. In legal proceedings, the minor must be represented or assisted by the father, unless the mother obtains leave from the court to bring or defend an action on the minor's behalf. The right to alter the child's name, too, vests in the guardian and not in the custodian spouse.

For marriage, the minor requires the consent of both parents, unless one of them has been awarded the sole guardianship of the minor, in which case that parent's consent is necessary and sufficient. For an antenuptial contract, the consent of the father, as guardian, is necessary and sufficient, unless he has been deprived of the guardianship of the minor, or his parental powers have been overridden.”

The factors that the applicant used in her founding affidavit, to portray the respondent as a dis-interested parent, all fall in the category of those that are exercisable by a custodian parent. She was awarded custody and she, alone, has the legal obligation to exercise those rights. She cannot use the non-interference of the respondent in the exercise of her rights as demonstrative of his ineligibility as a guardian.

It seems to me that she bears the onus of proving, on a balance of probabilities, that the respondent, as the guardian, has refused to perform the functions of guardianship or has, in his role as a guardian, been irresponsible and neglectful of the child's interests. See Ryan v Ryan 1963 R & N 356 (SR)…., and NCUBE in Family Law in Zimbabwe…,.

Counsel for the applicant submitted written heads at my instance.

He contended that section 4(1) of the Guardianship of Minors Act [Chapter 5:08] enjoins the High Court, as the upper guardian of all minors, to wrestle guardianship from the father and grant it to the mother where the mother has proved that he has refused or discarded the duties of guardianship.

He correctly submitted that it was not the duty of the Court, in these circumstances, to protect a 'natural' or 'God given' right of guardianship vested in the father. His submission resonates with the sentiments expressed by GIBSON J in Pinto v Benjamin HH292-86…,. The learned judge stated as follows:

“Under the Guardianship of Minors Act, Cap 34, unlike the common law, the father and mother have equal standing, and either is eligible on merits to be considered for guardianship of minor children of the parties. Under this statute, the primary consideration to be borne in mind in determining the issues by the court is what is in the best interests of the minor; the pater familias no longer has that easy ascendancy over the mother, to be displaced only where there is good reason, such as refusal or neglect. This list is not exhaustive.

It is clear from various past authorities that what is in the best interests of a minor can be arrived at after looking at a wide variety of factors, such as the sex, age, and health of the minor child. Apart from that, the ability of either parent to safeguard the moral well-being and financial needs of the child must bear a decisive influence on the entitlement of either parent.”

GIBSON J did not, in her judgment, identify the various past authorities. She may have had in mind the sentiments of SQUIRES J in Van Rensburg v Van Rensburg GS 177/1981…, where it is stated thus:

“Now, although the Guardianship of Minors Act provides that the best interests of a minor is the primary consideration in awarding guardianship of a child to one or other of divorced parents, and, although the wife and mother now occupies a position of equality in such choices as distinct from the common law, in practice, the courts are still reluctant to appoint a mother as the guardian of a minor to the complete exclusion of the father unless there are some good grounds for so doing.

The reason for this, it would seem, is that since guardianship imposes duties as much as, or even more than, it confers rights, it is normally not in the best interests of a minor child to deprive the father of guardianship unless he refuses to perform the function of a guardian or is sufficiently irresponsible or neglectful of the child's interest as to amount to such a refusal; or is physically so far from the child as to be unable to do so, or some circumstances of a similar nature and effect can be identified.”

A full reading of Pinto v Benjamin HH292-86, however, shows that GIBSON J was influenced by the fact that Mr. Benjamin was an incorrigible criminal who relished going in and out of prison and who was serving a three year prison sentence. He had had no contact with the children since his divorce from their mother in 1981, had not exercised his right of access, nor paid maintenance despite her best endeavours to obtain his co-operation in these respects. His explanations were dismissed and it was held that he was both irresponsible and thoroughly neglectful of his duty. It seemed to me that the factors that were listed by GIBSON J fall into the realm of custody rather than guardianship in the narrower sense. To the extent that she was influenced by these custodian factors in her decision to grant Mrs. Pinto sole guardianship of the parties' three minor children, I would respectfully disagree with her decision.

In Van Rensburg v Van Rensburg GS 177/1981, despite the fact that the father had refused to sign documents that would enable the minor to obtain a passport and had an erratic record of maintenance payments, SQUIRES J declined to award sole guardianship to the mother. Rather, he extended her custodian powers to cover those specific areas that the father had refused or neglected to exercise guardianship.

Both Pinto v Benjamin HH292-86 and Van Rensburg v Van Rensburg GS 177/1981 are distinguishable to the present case in one major respect, that is, that the respondents opposed the application.

Again, in Van Rensburg v Van Rensburg GS 177/1981, the mother had made a diligent search for the father.

In the present matter, the respondent did not oppose the application.

He was not personally served with the application which was served by edictal citation through a local newspaper and the Government Gazette. It was not clear to me why the applicant chose to do this when the divorce proceedings showed that the respondent was domiciled outside Zimbabwe since 1998 and lived in Johannesburg. No diligent search for him was ever conducted by the applicant.

Counsel for the applicant intimated, from the bar, that he had been instructed by the applicant that the respondent had, at the time the application was instituted, been residing at a house in Harare.

In my view, even if that instruction was correct, the applicant did not aver what steps she took to bring to the respondent's attention to her decision to remove the child from Zimbabwe to the United Kingdom that appears to have triggered the need for her to obtain a passport some six years after the divorce. She did not state what measures she took to either trace his whereabouts or to enforce the Maintenance Order. She appeared to have been content with his alleged dis-interest in the affairs of his child.

I found her affidavit lacking in candor. In one vein she appeared to be ignorant of the happenings in the respondent's life since his desertion and in another she was aware that he had remarried just as she had done.

I had the distinct impression that she was snatching at sole guardianship.

It was clear from her affidavit that the respondent had not refused to exercise any of his powers of guardianship.

The factor which necessitated the application arose from the applicant's unilateral decision to remove the child from Zimbabwe, which decision she did not communicate to the respondent. When he allegedly came to Zimbabwe, she did not advise him of her intentions. It does not appear to me that he was aware that there was a need for him to exercise his guardianship powers. He is not aware of the application. I do not know whether the allegations of neglect in the general custodian welfare of the child are true. Because he has not had notice of the application, I cannot hold that he has deliberately refused to come to court.

It appears to me that the applicant is snatching at sole guardianship.

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

The plaintiff was..., not an impressive witness in explaining how the house was constructed and the time frame. I do not believe that the plaintiff suffered from some amnesia but he simply was not willing to give dates which will show that the defendant was his 'wife' when extension and ...

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

This was an urgent chamber application for a stay of execution.

It was filed on 6 March 2015. It was brought to my chambers at 17:15 hours three days later, i.e. on 9 March 2015. There were eleven applicants. Their case was that on 6 March 2015, i.e. the date the application was filed, the Sheriff, the second respondent herein, was scheduled to sell a number of properties belonging to applicants two to eleven.

The basis for seeking a stay was that the first respondent, National Social Security Authority (hereafter referred to as “NSSA”), had a judgment against the first applicant, Tetrad Holdings Limited (hereafter referred to as “Tetrad Holdings” or simply “Holdings”). It was said that that judgment had been obtained in error. NSSA's debt was said to be with Tetrad Investment Bank Limited (hereafter referred to as “Tetrad Bank” or simply “the Bank”) and not with Tetrad Holdings.

Apparently, Tetrad Investment Bank Limited was a subsidiary of Tetrad Holdings Limited.

However, in the founding papers, it was stressed that Tetrad Investment Bank Limited and Tetrad Holdings Limited were two distinct and separate entities. As such, it was said that an application for the rescission of the National Social Security Authority's (NSSA) judgment against Tetrad Holdings Limited had already been filed with this court. Thus, it was argued, if the Sheriff's sale went ahead there would be prejudice, not only to the shareholders of the applicants but also to the creditors.

After reading the papers, I agonised over whether or not to set down the matter for hearing.

The application was extremely economic with information. For example, other than describing all the applicants as companies incorporated according to the laws of Zimbabwe, and mentioning that the National Social Security Authority (NSSA) had a judgment against Tetrad Holdings Limited, which judgment was what the Sheriff was executing, the founding papers said nothing about the nature of the relationship between NSSA, as the judgment creditor, and the rest of the applicants. But, the main matter in which the writ of execution had been issued being a debt collection claim, I guessed that respondents two to eleven must have been guarantors or sureties of some sort. As it turned out, indeed they were.

But, that was not all.

The certificate of urgency, signed on 6 March 2015, said the matter was urgent because the sale was scheduled to take place that day; that Tetrad Holdings Limited was not, and had never been, the National Social Security Authority's (NSSA) debtor, but that it was Tetrad Investment Bank Limited that was; that for that reason the application for rescission of judgment had excellent prospects of success, and that, if the matter was not heard on an urgent basis, there was a risk of irreparable prejudice to the applicants' shareholders and creditors.

Only one date was mentioned, namely 6 March 2015 - the date of the sale.

Nothing was said about when the National Social Security Authority (NSSA) had obtained the judgment. It was not mentioned when the applicants had become aware of that judgment. No information was given as to what action, if any, the applicants had taken upon getting to know about that judgment. Neither the date of NSSA's writ nor that of the Sheriff's attachment was given. The property that the Sheriff had attached and was selling was not disclosed. Finally, it was not said when the application for rescission of judgment had been filed.

I turned to the founding affidavit and the rest of the papers. They were essentially an extension of the certificate of urgency.

Only two other dates were mentioned, namely, 8 August 2014 and 16 February 2015. It was said 8 August 2014 was when Tetrad Investment Bank Limited had held a Scheme Meeting with its creditors which the National Social Security Authority (NSSA) had attended, which, allegedly signified NSSA's acceptance that its debt was with the Tetrad Investment Bank Limited not Tetrad Holdings Limited. It was said 16 February 2015 was when the Sheriff had served the notice of sale on Tetrad Investment Bank Limited.

That was about all that the founding affidavit ever disclosed by way of additional information. The rest were basically legal arguments on why the sale had to be stopped....,.

The case number for that rescission application was just left blank!...,.

The urgent chamber application was classically a dog's breakfast. But, in spite of my serious misgivings at that stage, I set it down for hearing on 12 March 2015. I decided to let the applicants have their day in court....,.

On urgency, it was said the National Social Security Authority's (NSSA) judgment had been given on 28 March 2014. That was almost a year ago. NSSA's writ had been served on 15 August 2014 but the applicants had turned the Sheriff away on the basis that execution had been suspended pending an order for leave to convene a Scheme Meeting in terms of the Companies Act [Chapter 24:03]. On 20 August 2014 and 10 October 2014 NSSA had sent the Sheriff back to the applicants with the writ. Movable properties for applicants two to eleven had then been attached.

Thus, the National Social Security Authority (NSSA) argued, the applicants had been aware of the attachment as far back as August 2014 but had chosen to do nothing until the day of the sale - almost seven months later.

On 16 February 2015, the applicants had been served with the Notice of Sale - again they had chosen to do nothing.

Only on 27 February 2015 did they file an ordinary court application for the condonation of the late filing of the application for rescission of judgment. However, they had withdrawn that application on 5 March 2015. They had then proceeded to file the urgent chamber application on the next day, 6 March 2015....,.

Indeed, counsel for the applicants advised that it was no longer necessary to argue the aspect of urgency and waste the court's time.

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

This is a chamber application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”), as read with Rule21(2) of the Constitutional Court Rules S.I.61/2016 (“the Rules”).FACTUAL BACKGROUNDAt the conclusion ...

FACTUAL BACKGROUND

At the conclusion of his trial in the High Court, the applicant was convicted of murder, as defined in section 47(1) of the Criminal Law (Codification and Reform Act) [Chapter 9:23] (“the Criminal Law Code”). The first respondent presided over the trial. The applicant was sentenced to eighteen years imprisonment. He is dissatisfied with the manner in which his case was investigated prior to the trial.

The facts of the case are as follows.

The applicant was the second-in-command of the security forces tasked with the duty of protecting Chiadzwa Diamond Mine. It is averred that on 23 September 2011 four brothers were arrested in one of the “diamond fields”. They were detained in an open wire enclosure under police and army guard while awaiting transportation to the court in Mutare.

At 22:00 hours of the same day one of the brothers (hereinafter referred to as “the deceased”) was found dead, lying face down in the enclosure. As a result, the Zimbabwe Republic Police, Marange Criminal Investigations Department, attended the sudden death scene. Investigations were carried out by the third respondent. The applicant said that the third respondent transported the body of the deceased to the Mutare Hospital mortuary for a post-mortem to be carried out to establish the cause of death.

It is the applicant's case that the Zimbabwe Republic Police sent the “sudden death docket” to the second respondent, who was the prosecutor in the criminal trial, instead of transmitting the same to the resident magistrate for assessment, purportedly in terms of the Inquests Act [Chapter 7:07] (“the Inquests Act”). It is contended that the second respondent, not being authorised to process a sudden death docket, violated the applicant's right to a fair trial. The applicant submits that his prosecution before the High Court was instituted on a defective charge because the inquest proceedings had not been conducted in a manner that complied with the Inquests Act.

The applicant further avers that during the trial the State was afforded the opportunity to lead evidence from thirteen witnesses - yet he was allowed to call only one witness.

It is against this background that the applicant alleges that sections 68(1) and 69(1) of the Constitution were violated.

Section 68(1) of the Constitution provides as follows:

“68 Right to administrative justice

(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.”

Section 69(1) of the Constitution guarantees the right to a fair trial. The section provides:

“69 Right to a fair hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

It is on the basis of the alleged failures by the second, the third, and the fourth respondents to observe pre-trial procedures that the applicant is of the view that the aforementioned constitutional provisions were violated.

The application for an order for direct access was opposed by the second and the fourth respondents (“the respondents”).

The respondents raised a preliminary point, in their opposing affidavit, to the effect that the application was not properly before the Court, as the applicant's affidavit reveals only a narration of a myriad of administrative actions he is aggrieved with. It was further contended that the applicant does not demonstrate how his rights have been infringed.

On the merits, it was contended, by the respondents, that inquests are held only to establish the identity of the deceased and whether he or she died of natural causes or death was a result of an unlawful act perpetrated by another person. It was argued that the provisions of the Inquests Act were not relevant to the proceedings before the trial court. They averred that the alleged irregularities should have been raised with the Supreme Court when the appeal was heard.

Consequently, the respondents prayed that the application be dismissed....,.

The findings by the trial Judge, whether correct or not, do not result in the infringement of any constitutional rights of the applicant.

The Court, in Williams and Another v Msipha N.O. and Others 2010 (2) ZLR 552 (S) put the matter beyond any doubt. It held…, that:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible.

Judicial officers, like all human beings, can commit errors of judgment. It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection. A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision. Where there is no appeal procedure, there cannot be said to be a wrong judicial decision because only an Appeal Court has the right to say that a judicial decision is wrong.”…,.

If the applicant was aggrieved by the admission of, or refusal to admit, any evidence, as reflected by his founding affidavit, he ought to have articulated his grievances through the appeal procedure.

It has not been disputed by the applicant that the irregularities complained of were neither raised in nor dealt with by the Supreme Court.

Strangely, the applicant did not even make mention of the fact that the matter went on appeal to the Supreme Court (Joseph Chani v S SC43-17). It is only through the respondents' opposing papers that the Court was made aware of the fact that the matter was dismissed on appeal.

The fact that the applicant lost the non-constitutional case in the Supreme Court is fatal to the application. The Constitutional Court cannot inquire into the final decision of the Supreme Court.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18…, the Court said:

“A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter. The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

I have no doubt at all that this application is not urgent.

Upon receipt of the application, on 3 July 2018, I perused same and instructed that it be set down for hearing on 5 July 2018 at 9:00am.

The second respondent was not cited. It was not a party to the proceedings at that stage.

This notwithstanding, around 2:30pm, on 3 July 2018, I received copy of letter of the same date wherein the second respondent's legal practitioners expressed, among other things, Ycob Investments (Pvt) Ltd's real and substantial interest in the matter. The letter was addressed to the applicant's legal practitioners and copied to the Registrar. The latter placed the correspondence before me.

Come 5 July 2018, at 9:00am, legal practitioners for all the parties herein appeared before me.

Upon the second respondent's counsel stating that an application for joinder would be filed, I postponed the hearing to the next day to enable such an application to be instituted.

This resulted in the second respondent's joinder, by consent, when the parties and their legal practitioners appeared on 6 July 2018 for the hearing.

The first respondent had filed opposing papers. The second respondent had not, but was ready to make oral submissions.

The first respondent raised a single point in limine. It submitted that the application was not urgent.

I agree that this is a classic case of self-created urgency.

That is not the type of urgency contemplated by the Rules. I refer to a few only of the decided cases on what urgency is: Kuvarega v Registrar General and Another 1998 (1) ZLR 188 (H) and Documents Support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 2323 (H).

In sum, a matter is urgent if, when the need to act arises, the matter cannot wait.

In this matter, the applicant waited from 16 March 2017 to 2 July 2018.

On the former date, it sold its rights, title and interest in Stand 1578 Ardbennie Township measuring 2,0371 hectares held under Deed of Transfer number 5348/2011 to the second respondent. On the latter date it filed the present application.

The applicant seeks an interim order compelling the first respondent to furnish the former with its requirements for cancellation of mortgage bonds registered in its favour in respect of the property concerned and, against payment of the value of the loan, delivery of the title deed.

The first respondent had taken over the applicant's non-performing loan from NMB Bank. It then proceeded to register mortgage bonds against the applicant's immovable property.

The second respondent had seven days, from 16 March 2017, to pay the balance of the purchase price, the transfer fees, and agent's commission. Part of the purchase price was payable upon signing the agreement of sale on 16 March 2017.

Between then and filing of the application there was a lengthy period of inaction by the applicant. Same was punctuated, among other events, by the applicant waking up from its slumber to cancel the agreement of sale (which was contested), entering into another agreement of sale in respect of rights, title and interest in the same property with Nyaradzo Life Assurance Company (Private) Limited (“Nyaradzo”), on 15 June 2018, and the applicant's letter of 27 June 2018 requesting the first respondent to state its bond cancellation requirements.

The urgency is premised on the continued accrual of interest on the loan for as long as the debt is not cleared. It also is based on the fear that Nyaradzo Life Assurance Company (Private) Limited may resile from the agreement of sale if the bond cancellation requirements are not availed urgently to facilitate transfer to this second purchaser.

But, interest has always been running ever since the first respondent took over the applicant's debt on a date not disclosed in the application.

Equally, interest has always been accruing since 16 March 2017 when the agreement of sale between the applicant and the second respondent was entered into.

The matter cannot become urgent now just because the applicant has entered into an agreement of sale with Nyaradzo Life Assurance Company (Private) Limited and is desperate to effect transfer of title to Nyaradzo and not to the second respondent.

I totally agree with both respondents that this application is not urgent but is a clear abuse of court process. It is, I am compelled to remark, a mischievous application.

I therefore uphold the point in limine. The application is clearly not urgent.

For completeness' sake, I wish to make a few remarks on the other two points raised in limine....,.

Finally, the second respondent contended that I should either dismiss the urgent chamber application or decline to hear it on the basis of urgency by reason of material non-disclosure.

In this application, the material non-disclosure relates to the aspect of urgency as well as to the merits of the application.

It is sufficient that I point out that the applicant did not disclose that the second respondent had telephonically communicated, through its legal practitioners, and on 29 June 2018, that it regarded the cancellation of the agreement of sale as invalid and would be filing summons for a declaration of nullity of that cancellation.

That dispute was material.

By not disclosing the existence of the dispute in the founding affidavit, and proceeding to avoid citing the second respondent, the applicant was clearly not being candid with the court; Graspeak Investment (Pvt) Ltd v Delta Ops (Pvt) Ltd and Another 2001 (2) ZLR; Nehanda Housing Co-operative Society and Ors v Simba Moyo and Others HH4169/15; Centra (Pvt) Ltd v Pralene Moyas and Anor HH57-12.

Its application had four annexures relating to the second respondent. They ran from pages 11 to 25 of the application. The non-disclosure was designed to give the court the impression that the second respondent consented to the cancellation of the agreement of sale. It gave the impression that the second respondent was not an interested party.

In so far as the non-disclosure related to urgency, the untrue picture was painted that the first respondent's refusal to avail its cancellation of the mortgage bonds requirements qualified the matter as urgent because it exposed the applicant to continued accrual of interest. No mention was made of the dispute between the second respondent and the applicant over cancellation of the agreement of sale as that would have demonstrated that this application was not only not urgent but calculated to present the second respondent with the fact of transfer before resolution of the dispute between the applicant and the second respondent.

In all the circumstances, therefore, I find that the application is not urgent and accordingly order as follows:

1. The application is removed from the roll of urgent matters.

2. The applicant shall pay the first and second respondent's costs of this application on the legal practitioner and client scale.

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

The applicant applies for an anti-dissipation order to restrain the respondent from removing and disposing of joint venture farm equipment owned by a partnership pending his claim.

The circumstances surrounding this application are as follows:

The applicant was the owner of UNA Farm, Wedza. The farm was subsequently offered to the respondent under the Land Reform Programme and the allocation is subject of disagreement between the parties.

The parties entered into a joint venture agreement in terms of which they would engage in farming activities.

The applicant was, in terms of the agreement, to supply farming equipment - including the farm. The respondent was responsible for the financial aspects of the joint venture as well as supervision of the growing of crops. The parties were to share profits and losses.

The applicant avers that the respondent has failed and refused to pay him his share of profits. The applicant also avers that the joint venture has bought a number of farming equipment which he lays a claim to.

On 23 June 2016, the applicant caused a summons to be issued under HC6415/16 claiming his share of the partnership profits. The applicant's protest is based on the averment that the respondent has started to remove agricultural equipment and other assets purchased from proceeds of the joint venture from the farm. The applicant has the apprehension that the respondent intends to defeat the object of his claim by removing assets from the farm so that there will be no evidence of the assets when he finally obtains judgment.

The applicant seeks an order barring the respondent from removing the joint venture equipment from the farm pending the finalisation of the summons action. The applicant avers that he has no other remedy to stop the respondent from removing and disposing of the agricultural equipment.

The respondent is opposed to the application.

He challenges the urgency of the matter as well as the propriety of this application....,.

The applicant issued summons claiming his share of the proceeds of the partnership on 23 June 2016. The applicant avers that he realized that the respondent was removing partnership equipment from the farm, namely, tractors, on 27 June 2016. The applicant immediately lodged this application on 29 June 2016....,.

The respondent submitted that the applicant filed a similar application in the Magistrates Court on 18 May 2016 seeking to prohibit him from removing any equipment from the farm. The court issued a rule nisi which was suspended on the return date.

He submitted, further, that the applicant has failed to disclose this fact to the court and contended that the applicant is abusing the court by filing a similar application in this court.

In paragraph 8 of the ex parte application filed at the Magistrates Court, the applicant avers that he wants the farm equipment ''thereat'' bonded so that the respondent is interdicted from taking any of the property outside the farm. He also says that he fears that the respondent is misappropriating his property he brought to the joint venture. In addition, he asks the court to stop removal of all the property from the farm.

The application does not deal solely with his personal property.

The applicant is not being candid with the court when he states that this application was prompted by what transpired after the issuance of the summons.

He knew as far back as May that he had a cause of action and did decide to ask the Magistrate Court to intervene. The relief sought is similar to that sought in the Magistrate's Court.

Having chosen to go to the Magistrates Court, the matter could not be filed in this court again. The same application is before me and the applicant is trying to circumvent an order of the Magistrates Court by way of this application.

He ought either to have appealed against that order or sought its review.

The matter is not urgent and is removed from the roll. The applicant is to pay the costs of this application.

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD
Ruled By: UCHENA J

The applicant was the first respondent's tenant at Number 5 Albion House, 74 Harare. She was evicted from the premises without being given 48 hours notice as provided by Rule 4A(1) of Order 26 of the Magistrate's Court (Rules 1980).

She seeks an order of this court reinstating her into the premises pending the hearing of her application for the condonation of her late noting of an appeal against the decision of the magistrate on the strength of which the first respondent evicted her from the property.

The first respondent was the applicant's landlord for eleven (11) years. It sought and obtained an eviction order against the appellant. The order was enforced in the manner already explained above.

The second respondent is the Messenger of Court Harare. He is an officer of the Magistrate's Court entrusted with the responsibility of enforcing that court's orders.

The third respondent is the first respondent's new tenant with whom it entered into a lease agreement after this application had been issued and served on the first respondent. It has not yet taken occupation of the property in dispute.

The applicant was aware of the court's order for her eviction. She was then being represented by her erstwhile legal practitioners whom she instructed to appeal against the magistrate's decision. She, in her founding affidavit, said she was surprised when the Messenger of Court gave her notice and forthwith evicted her. She, on inquiring with her erstwhile legal practitioners, was advised that they had not filed the appeal as instructed as she had not paid them. She has since retrieved her file from them and instructed her current legal practitioners to note the appeal and file an application for condonation of the late noting of the appeal concurrently with this application.

The applicant's property was removed from the premises and is now stored outside her residential property and is exposed to the elements. She therefore filed this urgent application in which she seeks reinstatement mainly on the ground that her ejectment did not comply with Rule 4A(1) of Order 26 of the Magistrates Court Rules.

Counsel for the first respondent submitted that this application is not urgent because the applicant did not immediately act after her ejectment.

Counsel for the applicant submitted that she acted as soon as she could in the circumstances of this case.

She was surprised by the ejectment as she believed her erstwhile legal practitioners had attended to her appeal against the magistrate's decision, though she erroneously believed that the appeal would suspend the magistrate's decision. She was ejected without the requisite 48 hours notice. She had to retrieve her file from her erstwhile legal practitioners, and instruct her current legal practitioners. She had to do this in the circumstances she had been plunged into by the unprocedural eviction.

I am satisfied that the delay between 16 November 2011, when she was ejected, and her filing this urgent application, on 21 November 2011, has been adequately explained.

I am also satisfied her erstwhile legal practitioners failure to note the appeal, and the sudden unprocedural ejectment, justifies the hearing of the applicant's application on an urgent basis.

Her application is strengthened by her having been evicted without being given 48 hours notice.

Rule 4A(1) of Order 26 of the Magistrate's Court (1980) Rules, which provides for the notice, provides as follows;

“(1) Upon receiving —

(a) A warrant of execution against property; or

(b) A warrant of ejectment and execution against property; or

(c) A warrant of delivery and execution against property;
the Messenger shall, within twenty-four hours or as soon as circumstances permit, go to the house or place of business of the execution debtor and deliver to the debtor or leave at the house or place of business, a notice warning the debtor of the date of the proposed execution of the warrant, which date shall not be sooner than forty-eight hours after the notice was so delivered or left:

Provided that the Messenger need not deliver or leave such a notice in any case in which he has reasonable grounds for believing that immediate execution of the warrant is necessary in order to prevent the execution debtor from concealing or disposing of any property in order to avoid its attachment.”

The second respondent did not oppose this application, nor did he file any papers explaining why he executed without giving the requisite 48 hours notice.

Counsel for the first respondent submitted that the Messenger of Court's inadvertent failure to deliver or leave notice to the judgment debtor in terms of subrule (1) shall not invalidate the ejectment.

Counsel for the applicant submitted that the issue in this case is not on failure to deliver or leave the notice but giving inadequate notice contrary to subrule (1). Subrule (2), which the respondent's counsel relied on, provides as follows:

“(2) An inadvertent failure by the Messenger to deliver or leave a notice in terms of subrule (1) shall not invalidate any attachment, sale in execution, or ejectment effected in accordance with a warrant.”

The first respondent's submission cannot be accepted in view of the fact that there is no evidence that there was an inadvertent failure to deliver or leave the notice at the applicant's premises.

The applicant's case is in fact that she was given notice, but was evicted without being given 48 hours after that notice which would have given her time to take legal action against that notice. Her claim is that the second respondent acted unlawfully by not giving her 48 hours during which he should not have ejected her after the delivery of the notice.

That argument is supported by Rule 4A(1) of Order 26 which is couched in peremptory terms and provides exceptions which would justify failure to give 48 hours notice. The Rule requires the Messenger of Court to deliver notice “of the date of ejectment which date shall not be sooner than forty-eight hours after the notice was so delivered or left.”

The exceptions are provided in the proviso to subrule 4A(1) which deals with circumstances when a Messenger can justifiably not deliver or leave notice of ejectment or attachment.

The first respondent's opposing papers do not allege the existence of such circumstances.

The second respondent, who the proviso authorizes to make such a decision, did not file any papers to oppose this application nor did he file any papers supporting the first respondent's opposition of this application.

There is therefore no explanation before this court justifying the immediate ejectment of the applicant.

In the absence of such an explanation, I hold that the applicant was unlawfully ejected from the premises.

Counsel for the first respondent argued that as the horse has already bolted from the stable, the application should be dismissed as the premises have already been occupied by a new tenant.

Counsel for the applicant then applied for the joinder of the third respondent who was alleged to be the new tenant who had taken occupation of the premises.

The application for joinder and postponement was not opposed.

The third respondent and his legal practitioner appeared before the court and confirmed that it had entered into a lease agreement with the first respondent for the premises in dispute. It however told the court that it had not yet taken occupation of the premises, contrary to what the first respondent had told the court.

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

At the conclusion of the trial, I directed that the parties file closing submissions by close of business on 31 October 2008.The plaintiff filed his submissions timeously. Despite numerous reminders to the defendant's counsel, the defendant did not file his submissions.I have therefore proceeded to prepare my judgment without the ...

At the conclusion of the trial, I directed that the parties file closing submissions by close of business on 31 October 2008.

The plaintiff filed his submissions timeously. Despite numerous reminders to the defendant's counsel, the defendant did not file his submissions.

I have therefore proceeded to prepare my judgment without the benefit of his submissions.

Background

The following is the background to the matter:

The plaintiff issued summons on 10 July 2007. The summons were amended on two occasions. The last amendment was by consent at the commencement of the trial. The plaintiff was claiming damages in the sum of:

(a) $1 billion for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life and shortened life expectancy;

(b) US$8,000 for pecuniary loss of a motor vehicle, a Nissan Sunny, and interest thereon at the prescribed rate from the date of summons to the date of payment;

(c) $1 billion and US$5,000 in respect of estimated future medical expenses and interest thereon at the prescribed rate from the date of summons to the date of payment;

(d) $700,576,793=45 and US$4,104 in respect of medical expenses incurred by the plaintiff and interest thereon at the prescribed rate from 6 May 2008.

(e) $10 trillion (old currency) being travelling expenses to and from physiotherapy sessions.

The claim arose from the accident which happened at the intersection of Breach Road and Kingsmead Road, Borrowdale, Harare on 23 July 2006. Both parties were driving. The plaintiff was severely injured.

The plaintiff attributed the cause of the accident to the sole negligence of the defendant which the defendant in turn totally denied.

The plaintiff alleged that the defendant drove at an excessive speed, a vehicle with faulty brakes, and without his lights on. He failed to give way at an intersection controlled by a Give Way sign and failed to stop or act reasonably when an accident seemed imminent.

On the other hand, the defendant attributed the accident to a sudden brake failure....,.

As the defendant had pleaded that the accident was as a result of a sudden brake failure, there was a presumption of negligence.

Although the burden of proving negligence remains with the plaintiff, the defendant was expected to give an explanation which negatives the probability of negligence on his part.

As stated in South African Motor Law, COOPER and BAMFORD, 1st Edition…,:

“In many cases where a mechanical defect is advanced as a defence, the circumstances of the collision raise an inference of negligence, res ipsa loquitur, which calls for an explanation from the defendant.”

The defendant, in addition to showing that the collision resulted from a mechanical defect in his vehicle, was required to show that the defect in question was unknown to him and that through the exercise of reasonable care the defect would not have been discovered: see South African Motor Law, COOPER and BAMFORD, 1st Edition…,.

Defendant's case

Defendant's evidence

The defendant testified first. The following is his evidence:

Prior to the accident he was at home. He lived in the vicinity of the scene of the accident. At about 2210hours, he got into his vehicle to go and drop off his cousin, Dexter, near Sam Levy Village, Borrowdale. He was accompanied by his friend Michael Snape.

The vehicle had been purchased for him two years before the accident for his 16th birthday. He however only got it a year later. He had used it for eight months and it was sent to Fasfit for service. The service included a new gear box, panel beating, and re-spraying. He had used the vehicle for ten days before the accident and had not noticed any problems with the brakes. The person who had repaired the vehicle had relocated to Australia and he could not get a report of the repairs that had been effected on the vehicle during servicing.

There were a lot of potholes on the road, and, as a result, he was driving slowly at a speed of 70km/h. He was driving along Kingsmead Road. The street was not lit; therefore, as he proceeded towards the intersection with Breach Road he put the gear into neutral and started freewheeling when he was between 125 and 150m from the intersection. He was travelling at about 65km/hr.

As he saw the intersection, he knew that he was obliged to give way.

He was about 60 to 50 meters from the intersection when he applied his brakes. He then realized that he was not slowing down. He stamped on the brakes. He thought there might be a leak of the brake fluid. He therefore pumped the brakes in the hope that they would work. The car did not slow down.

He saw the plaintiff's vehicle also entering the intersection. They entered the intersection at the same time. He could not stop as his brakes were no longer working. He then collided with the plaintiff.

Following the impact, the plaintiff's vehicle did a 180 degree spin. His vehicle hit a lamp pole which was 12 to 15 meters from the intersection and faced where he was coming from. His headlights were on. He explained that his vehicle has what are called flat lights. These are lights that fold in when the engine stops running. When the engine is on, the lights open up. The defendant testified that his lights were still facing up after the accident. Both the plaintiff's vehicle and his were extensively damaged.

He testified that he paid a fine for driving a vehicle without brakes. This was at the instance of his aunt and father. However, under cross examination, he testified that he did not have a clear mind at the time when he paid the fine.

I found the defendant did not fare well both in his evidence-in chief and under cross-examination.

He contradicted himself in material respects. He testified in his evidence that he knew that the intersection was controlled by a Give Way sign against him and he was obliged to give way. He said:

“I tried to put on brakes and I saw that they were not working about 50 to 60m before the intersection. I knew that a state of emergency had occurred as I had an obligation to give right of way….,.

As I came closer to the intersection, at about 150m, I took my car out of gear and free-wheeled towards the give way as I could not identify where the intersection was. 60m from the Give Way, I started applying brakes. I noticed that they were not working.”

After a lunch break, the defendant came back with a changed story.

He testified that the plaintiff is the one who was supposed to have given him way.

However, under cross examination, he reverted to the original testimony that he knew that there was a Give Way sign. When he was asked, under cross-examination, whether or not he was familiar with the road signs at the intersection, he stated that:

“I knew that there was a Give Way, but, there were no road markings and the road sign was across the road.”

It is clear from the evidence that the new story, after the lunch break, was a fabrication intended to evade the truth and mislead the court. It is my view that the defendant was therefore not a credible witness.

Michael Mukombami's evidence

The defendant called two witnesses. The first witness was Michael Mukombami.

At the time of hearing, he was the Acting Senior Vehicle Inspector. He had been in the employment of the Vehicle Inspection Department for 13 years since 1985. One of his duties was to examine vehicles involved in road accidents.

He examined the defendant's vehicle following the accident and issued the notice prohibiting use of vehicle in the plaintiff's bundle of documents marked as Exhibit G.

He examined all the systems and the body of the defendant's vehicle to assess the damage and the cause of the accident. It was his finding that the front of the car was extensively damaged. He could not state whether or not the lights were on prior to the accident because of the extent of the damage and because the headlights were crushed.

He found that there was no brake fluid in the master cylinder. The right front brake hose had separated leading to fluid leaking. He concluded that the hose separated as a result of the impact of the accident. This conclusion was based on the fact that the hose was still wet from the leaking oil.

The inspector disputed the assertion, by the defendant, that the brakes had failed before the accident.

He testified, under cross-examination, that the nature of the damage to the defendant's vehicle showed that the vehicle had been travelling at a very high speed.

The witness gave his evidence well. The plaintiff's counsel did not need to cross examine the witness to great lengths. He was an independent and credible witness who corroborated the plaintiff's case…,.

I preferred his evidence to that of the defendant.

I am guided by the decision in Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E) where it was held that expert evidence can be preferred where the direct evidence of eye witness of a collision is not credible.

Michael Snape's evidence

The second witness was Michael Snape. He was seated in the front passenger seat when the accident occurred.

He was talking to Dexter who was seated at the back. He had not been paying attention to what was happening in front as he was leaning over talking to Dexter. He however, at one stage, noticed that the defendant was “stressing and was stamping his foot.” It was apparent to him that the brakes had failed. By the time he turned his head from Dexter, who was seated in the back, the accident had already happened.

He assumed that the vehicle was in neutral because it was not accelerating. He could not confirm if the defendant was indeed in neutral.

He confirmed, under cross examination, that he could not conclusively say that the brakes failed.

This witness's evidence was full of assumptions.

He had not been paying attention to the defendant's manner of driving as his attention was directed at Dexter who was seated in the back. He could not conclusively state that the brakes had failed.

He testified that he noticed that the defendant was having problems with his brakes when they were 200m from the intersection. The defendant put it at 60m. It was not clear how he would have estimated the distance when he was concentrating on Dexter.

Not much credence can therefore be given to most of his evidence.

However, he was conclusive that the plaintiff was already in the intersection when the accident occurred. This contradicted the defendant's evidence that the parties entered the intersection at the same time.

Plaintiff's case

The plaintiff's version of the accident was as follows:

He testified that he had lived in the neighbourhood of the scene of accident for 12 years. He was familiar with the intersection where the accident occurred. He had been travelling along Breach Road in an easterly direction. The road had not been repaired for over five years and was full of potholes. He was therefore driving slowly.

When he got into the intersection with Kingsmead Road, he was suddenly hit on the right driver's side by the defendant's vehicle. The defendant had been driving along Kingsmead in a northerly direction. The impact caused the front wheels of his vehicle to get off the ground. His vehicle rolled twice. He was thrown out of the window. He hit against a durawall. His vehicle hit a ZESA pole some distance away and across Kingsmead Road.

The accident happened so suddenly that he could not react.

The defendant did not have his lights on otherwise he would have noticed him and taken corrective measures. There was a Give Way sign against the defendant.

It was his evidence that the defendant must have been moving very fast to cause his vehicle to roll over as it did and for him to be thrown out of the vehicle. He testified that even if the defendant's vehicle had working brakes, he could still not have stopped the vehicle from hitting into him because of the high speed he was traveling at.

The plaintiff sustained severe injuries....,.

The plaintiff gave his evidence in a clear manner. He withstood cross-examination well. He was a credible witness....,.

Driving without lights on

The evidence of the Acting Senior Vehicle Inspector was also inconsistent with the defendant's evidence that his lights were still on immediately after the accident.

The Acting Senior Vehicle Inspector testified that the headlights were crushed as a result of the accident, and, as a result, he could not determine their state before the accident.

The defendant could not have seen that his lights were on soon after the accident when they had been so crushed that the Inspector could not establish their condition before the accident.

The impression given is that the defendant was not being candid with the court.

I therefore find that the defendant failed to dispel the inference of negligence that the defendant's headlights were not on when the accident occurred.

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:“INTERIM RELIEF GRANTEDPending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;Point A 0187976 ...

This is an urgent chamber application for a provisional order whose interim relief sought is stated as follows:

“INTERIM RELIEF GRANTED

Pending determination of the lawful owner of ANSH NORTH situated on the following map coordinates;

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

The first and second respondents be and are hereby barred and interdicted from carrying out any mining operations on ANSH NORTH and coming within one hundred metres of the coordinates stated above.

SERVICE

Service of this provisional order to be effected by a clerk in the employ of Messrs Chinyama and Partners Legal Practitioners.”

The terms of the final order sought are in the following terms;

“TERMS OF FINAL ORDER SOUGHT

1. The applicant be and is hereby declared the sole and lawful holder of title over six gold reef claims knows as ANSH NORTH situated on the following map coordinates:

Point A 0187976
7820147

Point B 0188251
7820232

Point C 0188307
7820018

Point D 0188139
7820018

2. The first and second respondents be and are hereby barred and interdicted from entering and mining on ANSH NORTH on the map coordinates stated in (1) above.

3. The first and second respondents to pay the cost of suit on a legal practitioner to client scale.”...,.

I turn to the facts of the matter giving rise to this application.

It is common cause that the applicant and the first respondent are registered owners of mining claims in the Midlands Province, being ANSH NORTH 28896 for the applicant, and ANSH BLUE 4 29220 for the first respondent. Both the applicant and the respondent have attached their respective registration licences or certificates.

The applicant's claim was registered on 10 December 2010 and there is also the applicant's inspection certificate indicating that the next inspection is due on 10 December 2012. The first respondent's certificate of registration, of ten (10) good reefs, is dated 7 July 2011. The first respondent has also attached Annexure D to the notice of opposition which shows the map of the first respondent's claim ANSH NORTH BLUE 4.

The map coordinates for the claims for both the applicant and the first respondent are not in issue and can be illustrated as tabulated hereunder;

Applicant 1st Respondent

Point A 0187976 0188899
7820147 7820142

Point B 0188251 01889302
7820232 7820441

Point C 0188307 0189378
7820018 7820263

Point D 0188139 0188957
7820018 7819944

The applicant, in her founding affidavit, stated that she has been carrying out mining operations on her claims since December 2010. According to the applicant, what has led to this urgent application for an interdict is that on or about 20 November 2011 the first and second respondents, both residents of Number 6120 Gwee Street, South Downs, Gweru descended on or invaded the applicant's claim, ANSH NORTH, and started to mine gold ore to the exclusive benefit of the first and second respondents.

According to the applicant, she protested against this blatant disregard of her mining rights and produced her certificates of registration for the six (6) gold reefs ANSH NORTH claim and the inspection certificates to the first and second respondents.

The applicant stated that the first respondent countered this by producing his own certificate of registration dated 7 July 2011 but was unable to produce the map coordinates for their alleged claims.

The second respondent had no certificate of registration.

The applicant alleges, therefore, that the first and second respondents are mining within the applicant's map coordinates illegally.

It is the applicant's contention that the certificates of registration bestows upon her the legal right to be at ANSH NORTH gold claims in terms of the Mines and Minerals Act [Chapter 21:05] (hereinafter the Act).

The applicant avers, in her founding affidavit, that she has been carrying out mining operations lawfully, in a peaceful and undisturbed manner, from December 2010 until about 20 November 2011 when the first and second respondents unlawfully came on to her claims thereby taking the law into their own hands and imposing themselves on the applicant's mining claims.

The basis for the urgent application, according to the applicant, is that the unlawful conduct by the first and second respondents is ongoing and that there is no other remedy available to the applicant as the first and second respondents are not accounting for the gold mined at the applicant's claims hence the applicant would not be able to sue for damages.

It is the applicant's belief that since the injury perpetrated by the first and second respondents is on-going in nature, this matter cannot await the normal court processes to be heard as irreparable harm would be occasioned to the applicant.

It is trite law that the requirements for an interdict are as follows;

(i) A prima facie right even if it is open to doubt;

(ii) An infringement of such right by the respondent or a well-grounded apprehension of such infringement;

(iii) Well-grounded apprehension of irreparable harm to the applicant if the interlocutory interdict should not be granted and if he should ultimately succeed in establishing his right finally;

(iv) The absence of any satisfactory remedy; and

(v) That the balance of convenience favours the granting of an interlocutory interdict.

See Bozimo Trade & Development Company (Pvt) Ltd v First Merchant Bank of Zimbabwe Limited & Ors 2000 (1) ZLR 1 (H)…,.

The applicant's contention is that she meets all the above requirements.

The certificate of registration of her claim, ANSH NORTH, confers upon her a prima facie right. Her view is that the injury caused to her by the first and second respondents is clear as the first and second respondents are infringing upon her right to own the mining claims by extracting gold ore on her claim in quantities unknown to her, illegally, and to the sole benefit of the first and second respondents.

The applicant's view is that her fear of irreparable harm is well grounded as the gold extracted by the first and second respondents is not quantifiable and proceeds thereof remain unaccounted for. This would make it difficult, if not impossible, for the applicant to claim for damages. As a result, the applicant strongly feels that there is no other satisfactory remedy available to her save to seek the protection of the law through the interlocutory interdict.

Lastly, the applicant contends that the balance of convenience favours the granting of an interlocutory interdict on the basis that she was granted the certificate of registration in December 2010 ahead of the first respondent who was granted his certificate of registration in July 2011; that she has been on site earlier than the first and second respondents and is unable to quantify the loss occasioned to her by the first and second respondents even if she would opt to sue for damages.

Counsel for the first and second respondents did not seek to challenge the applicant's perception of the law as already articulated. Instead, the first and second respondents opposed this application on basically two grounds;

(i)...,.

(ii) The second basis upon which the argument by the first and second respondents is premised is that the applicant's request for an interlocutory interdict lacks merit and is based on false allegations of facts.

The first and second respondents averred, in their respective opposing affidavits, that the applicant's founding affidavit is fraught with material omissions which borders on deliberate misrepresentation of facts and falsehoods....,.

I am also inclined to dismiss this application for not only the lack of merit but that the applicant has not been candid with the court.

In the case of Graspeak Investments (Pvt) Ltd v Delta Corporation (Pvt) Ltd & Anor 2001 (2) ZLR 551…, NDOU J dealt with the question of material non-disclosure, mala fides or dishonesty in urgent applications and how this should impact upon the case of the offending litigant.

The learned judge had this to say:

“The courts should, in my view, discourage urgent applications, whether ex parte or not, which are characterised by material non disclosures, mala fides or dishonesty.

Depending on the circumstances of the case, the court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants.

In this case, the applicant attempted to mislead the court by not only withholding material information but also by making untruthful statements in the founding affidavit. The applicant's non-disclosure relates to the question of urgency.

In the circumstances, I find that the application is not urgent and dismiss the application on that basis.”

In casu, the applicant has withheld material information in the founding affidavit both in relation to the question of urgency and the merits of the matter.

Counsel for the applicant could not make meaningful submissions in that regard.

Let me deal with the material non-disclosure by the applicant which only became apparent after the first and second respondents had filed opposing affidavits and relevant annexures.

The applicant did not disclose, that, when this dispute arose, between the applicant and the first and second respondents, she referred the dispute to the Mining Commissioner, Gweru, Midlands possibly in terms of the Mines and Minerals Act [Chapter 21:05] (hereafter the Act).

The Mines and Mineral Act provides various remedies in sections 345, 346, 348, 353 and 354. I find no cause to refer in any detail to these provisions – suffice to state that some of the provisions relate to jurisdiction of the Mining Commissioner to investigate and determine complaints, the judicial powers bestowed upon Mining Commissioners, the procedure in summary hearing of complaints by Mining Commissioners, powers of the Mining Commissioner to deal with disputes relating to encroachment, and the power to grant injunctions in appropriate cases.

The Mines and Minerals Act, therefore, provides various domestic remedies which an aggrieved party may elect to pursue before approaching this court.

The applicant, in a very dishonest manner, has decided to approach both the Mining Commissioner and this court with the same dispute without making/noting that disclosure to this court, a phenomenon generally described as double dipping or forum shopping.

When the Mining Commissioner received the applicant's complaint, a letter was written, by the Mining Commissioner, to the officer in charge CID Minerals Gweru on 2 December 2011 which letter was copied to the applicant and the first respondent. The letter acknowledges the receipt by the Mining Commission of the complaint by the applicant that the first and second respondents were mining gold ore on the applicant's claim, ANSH NORTH, and that the Mining Commissioner was in the process of examining all relevant documents pertaining to the claims owned by the applicant and the first respondent and to also visit the disputed area to ascertain, physically, the location of the claims.

Lastly, the Mining Commissioner requested the police to stop mining operations at the disputed site until the matter is finalised and that anyone claiming the area must approach the Mining Commissioner first for verification and clearance.

All this material information was not disclosed by the applicant and no explanation was proffered for that.

If indeed the Mining Commissioner is seized with the matter, and had stopped mining operations at the disputed site until further notice, what would be the basis for the applicant to seek an interlocutory interdict?

My view is that the applicant decided not to reveal this vital information in order to create the urgency now averred in the application and justify the basis to seek the provisional order.

This letter was written eight days before the applicant approached this court.

The applicant did not even deem it proper to refer to or attach a copy of the complaint she referred to the Mining Commissioner.

The Mining Commissioner, three days later, on 5 December 2011, well before this application, wrote another letter to officer in charge CID Minerals Shurugwi making reference to the letter dated 2 December 2011 written to CID Minerals Gweru. The contents of the letter are self-explanatory and are as follows:

“Be advised that there should be no dispute on these mines at all as according to records in this office 28896 ANSH NORTH is to the east of the Shurugwi-Zvishavane highway and 299220 ANSH BLUE 4 is to the west of the same highway. Whoever is mining on the wrong side of the highway must be stopped.”

This letter is copied to the applicant, the first respondent, and officer in charge, CID Minerals Gweru.

Again, the applicant chose not to refer to this vital information in her founding affidavit. Such disclosure would have compelled the applicant to explain the current situation obtaining on the site.

In a letter dated 14 December 2011, the Mining Commissioner advised the first and second respondents counsel of the coordinates for corner beacons for the first respondent's claim 29220 ANSH BLUE 4 as already explained. The mala fides on the part of the applicant is also apparent in this letter to which a copy of the map of the first respondent's claim was attached. The relevant part reads as follows:

“Loreen Mushangwa (applicant) refused to produce the plan endorsed by this office. However, her 28896 (ANSH NORTH) is approximately 800 metres south west of homestead PL4–Shurugwi and falls east of Shurugwi-Zvishavane highway while Bhadhi (first respondent claim) falls west of the same highway.”

The effect of the non-disclosure of this material information, by the applicant, is that the applicant has not explained, in the founding affidavit, the current nature of the dispute warranting the granting of the relief sought in view of the explicit explanations and orders issued by the Mining Commissioner.

The applicant did not even disclose the outcome of findings, if any, made by the Mining Commissioner.

The urgency referred to by the applicant is therefore perjured and self-created as there is no evidence that the first and second respondents have defied the instructions by the Mining Commissioner and the police.

Further, on the facts before me, there is no basis for the claim or remedy sought.

I am therefore inclined to make an adverse finding in relation to the applicant's cause as a seal of my disapproval of her mala fides, material non-disclosure, and apparent dishonesty.

Lastly, I now deal with the issue of costs.

Counsel for the respondents sought an order for costs on a higher scale and counsel for the applicant was of the view that there is no basis for punitive costs.

My view is that the manner in which the applicant has conducted herself shows a wanton abuse of the court process. This application is not informed by the applicant's genuine desire to enforce her rights but rather to mislead the court and possibly win at all costs.

The relief sought was apparently granted by the third respondent at the behest of the applicant. There is no evidence that the order or directive given by the third respondent is no longer in force. In fact, the applicant chose to conceal all these facts from the court. There is therefore no need for this application besides wasting the court's valuable time and compelling the first and second respondents to defend themselves in this court.

All in all, the applicant has not been open, candid, honest, and sincere with the court.

The decision by the court to set a matter down on an urgent basis is informed, mostly, by the applicant's founding affidavit. In my view, it is high time that litigants should be made aware that they should not abuse this procedure and that such conduct would invariably be visited with a punitive order of costs.

Accordingly, the application is dismissed with costs on a legal practitioner and client scale.

HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

The applicant was employed as Group Engineering Director by the first respondent, which represented itself as a holding company comprising several subsidies with the second respondent as its Chief Executive Officer.The letter of his appointment containing the terms of employment, dated 7 May 2009, was signed by the second respondent ...

The letter of his appointment containing the terms of employment, dated 7 May 2009, was signed by the second respondent in his capacity as the Chief Executive Officer. It reads as follows:

“REF: APPOINTMENT TO THE POSITION OF GROUP ENGINEERING DIRECTOR EFFECTIVE 1 JUNE 2009

Following the initial discussion with me, and the subsequent interview conducted at our Head Office, I wish to confirm your appointment to the above position whose duties include the following:

(i) Management of all Group Engineering Projects and Installations.

(ii) Production process improvements to include automation and plant simplifications.

(iii) Advise and liaison with divisions on safety matters.

(iv) Advise and liaison with divisions on procurement issues.

(v) Developing preventive maintenance programmes for all divisions.

(vi) Building inspections for structured works.

(vii) Introduction to best practices in all manufacturing processes.

As a Director, you will be expected to undertake full executive functions for the Group from time to time at fora and engagements inside and outside the Group.

Your initial package will be as follows:

Basic salary: US$3,000 per month
Education Allowance: US$ 500 per month
Cellphone Allowance: US$ 250 per month

Total ___________

Salaries are reviewed upward periodically in line with Group performance. After your 3 months probation you will be offered participation in the share options; have no doubt that you will be able to make immense contributions given your attitude to work and vast experience and that you will work well with our executive dynamic team that has created a very robust and fast growing organisation.

Yours faithfully

D. Govere
CHIEF EXECUTIVE OFFICER”

The appointment letter, which was copied to the Chief Operations Officer and Chief Finance Officer clearly refers to a “Group” of entities and “divisions” of what was presumably a family of businesses falling under the umbrella of Harambe Holdings.

In addition, an organogram was generated and made available to the applicant showing the structural layout of the group of subsidiaries making up the first respondent holding company.

The applicant remained in employment for 11 months, and, when he did not receive his salary and allowances in accordance with the employment contract, he referred the dispute to arbitration.

An arbitral award was issued in his favour in the sum of US$61,879.

He has been unable to execute against the first respondent's property to recover the judgment debt because each time an attachment of property is made, such property is claimed by a third party.

This has prompted the applicant to make this application seeking an order to compel the respondents to disclose the addresses and places of business of the subsidiaries of the first respondent.

In the event of failure to disclose, he wants the second respondent to be held personally liable for what is owed to him.

The basis of the application is that the respondents represented to him that the first respondent was a holding company or a conglomeration comprising, inter alia, of, The Vinyl Tile Company; Freshbak; Downings; Superbake; Ecoplastics (Pvt) Ltd; Horeca; Household Converters; Intertec (Pvt) Ltd; and Tacoola Beverages (Pvt) Ltd.

By such fraudulent misrepresentation, he was persuaded to take up employment as the Group Engineering Director of these entities - only for the employer to fail to pay him.

In support of that claim, the applicant has submitted, in addition to the organogram I have alluded to, a letter-head and trading brochures of the various entities representing each entity as “a division of Harambe Holdings.” This, according to the applicant, shows that both the first respondent and these other entities have been announcing to the whole world, and, indeed, the applicant, that they are one family.

He would therefore want the veil of incorporation to be lifted to expose them for what they are.

The application is contested by the respondents on the basis that no fraud has been established and therefore there is no basis for lifting the corporate veil. In his opposing affidavit, the second respondent states…, as follows:

“The correct position is that the first respondent holds shares in these companies. I deny that I ever told him that it carries its operations through the subsidies. These companies do their own business, and, like any other shareholder, the first respondent would get a dividend whenever it is declared. This is not the same as operating through other entities or in the name of these entities.”

Significantly, the second respondent does not take the court to his confidence as to the nature of the shareholding and does not even bother to produce the respective share certificates held by the first respondent.

True to his refusal to let out any information relating to the affairs of the businesses, the second respondent states, at paragraph 6, that “silence does not disclose any fraud” and that himself and the first respondent “have no duty to make the disclosures asked for.”...,.

The cardinal principle of our Company Law is that a company enjoys separate legal personality, generally referred to as the legal persona principle. For that reason, its property and its liabilities should be maintained distinct and separate from those of its members.

However, the courts have always readily lifted the corporate veil where the company is used as a vehicle for fraud or to justify wrong.

Counsel for the applicant has strongly argued that the second respondent represented to the applicant and produced an organogram to justify his representation that the entities from which the applicant now seeks relief were the first respondent's subsidiaries. He submitted, further, that, both the first and second respondents stood akimbo as all the entities masqueraded as subsidiaries of the first respondent - even through brochures.

For instance, one of the entities advertised on its brochures as “The Vinyl Tile Company is a subsidiary of Harambe Holdings, a wholly owned Zimbabwean Company.”

Counsel for the applicant insisted that the entities are all vehicles through which Harambe Holdings (Pvt) Ltd fraudulently avoids its obligations - including the payment of the applicant's salary and allowances.

I am persuaded by that argument.

This is particularly so as both the first and second respondents have signally failed to even produce the certificates of incorporation of these entities and their lists of directors. They have simply remained mum on anything to do with the status of both the first respondent and its subsidiaries.

In respect of holding companies, my attention has been drawn to seminal words of LORD DENNING in DHN Food Distributors Ltd v London Borough of Tower Hamlets 1976 (3) ALL ER 462 (CA)…, where that celebrated law Lord said;

“Although the companies in a Group are separate legal entities, the courts have, in the mercantile context, dealt with the Group as an economic entity. This lifting of the corporate veil is indicated especially when a parent company owns all the shares of the subsidiaries so much so that it can control movement of the subsidies.”

I am in total agreement with that pronouncement.

As stated by CORBETT CJ in The Shipping Corp of India Ltd v Evdomon Corp and Anor 1994 (1) SA 550 (A)…, which was quoted with approval by SANDURA JA in Van Nickerk v Van Niekert & Ors 1999 (1) ZLR 421 (S)…,:

“It is of cardinal importance to keep distinct the property rights of a company and those of its shareholders - even where the latter is a single entity; and that the only permissible deviation from this rule known to our law occurs in those (in practice) rare cases where the circumstances justify 'piercing' or 'lifting' the corporate veil.

I do not find it necessary to consider, or attempt to define, the circumstances under which the court will pierce the corporate veil. Suffice it to say, that, they would generally have to include an element of fraud or other improper conduct in the establishment or use of the company or the conduct of its affairs.”

See also Mangwendeza v Mangwendeza 2007 (1) ZLR 216 (H)…, and Manyathela v Manyathela HB44-11.

The second respondent, purporting to be the Chief Executive Officer of the first respondent, engineered the employment of the applicant as Group Engineering Director on the understanding that he would work within a conglomeration of companies all of whom gave themselves out to the whole world as subsidiaries of the first respondent.

Eleven (11) months down the line he had not been sufficiently remunerated, only for the respondents to turn round and deny what they claimed to stand for at the beginning, that is, a Group of companies.

The applicant was made to shift his position to his prejudice on the strength of a representation that he was joining a Group of companies, complete with an organogram to that effect, as the Group's Engineering Director. His duties also traversed all the entities given that the employment contract made reference to “all Group Engineering Projects and Installations”; “advise and liaison with divisions”; “undertake full executive functions for the Group” et al.

In my view, this is a classic case for the lifting of the corporate veil, because, the applicant is alleging the reliance on the legal personality of the first respondent to defeat a lawful claim, to justify wrong, and, indeed, to protect fraud. If this were to be allowed to perpetuate an injustice would occur.

It remains for me to deal with the issue of costs.

The respondents have been extremely un-cooperative: if indeed they were acting in good faith and have nothing to hide, they would have no difficulty with divulging the true status of the businesses and proving that the applicant has no recourse to the entities. They have, however, seen it fit to hedge behind incorporation while at the same time saying nothing that would assist both the court and the applicant to understand the dynamics of the businesses. If anything, the second respondent's declaration that “silence does not disclose any fraud” is arrogance of a very high order.

This conduct has put the applicant unnecessarily out of pocket. He deserves to be compensated, and, in my view, this is a case calling for costs to be awarded on a higher scale.

In the result, I make the following order, that;

1. The first and second respondents should, within 7 days of the date of this order, disclose to the applicant or his legal practitioners, the incorporation status of entities which operated as subsidiaries of the first respondent during the period extending from 1 May 2009 to 30 April 2010, namely, Freshbake, Downings, Superbake, Ecoplastics (Pvt) Ltd, Horeca, The Vinyl Tile Company, Household Converters, Intertec (Pvt) Ltd and Tacoola Beverages (Pvt) Ltd.

2. The first and second respondents should, within 7 days of the date of this order, furnish the applicant or his legal practitioners the addresses and places of businesses of the entities of the first respondent mentioned in paragraph 1 above during the period extending from 1 May 2009 to 30 April 2010.

3. In the event of the first and second respondents' failure to comply with para(s) 1 and 2 above, then the second respondent be and is hereby held personally liable for the judgment debt of the first respondent registered under case number HC6651/10.

4. The first and second respondents shall bear the costs of this application, jointly and severally, on a legal practitioner and client scale.

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.

Proof that the Companies Office lost the documents was not produced.

In short, the applicant does not have and cannot produce records to back his claims.

In my view, this put paid to any claims which the applicant may seek to advance.

How does he claim falsity of documents without producing authentic documents to counter the alleged fraudulent documents?

What the applicant is doing is simply to make allegations which are not backed by any documentary evidence as to what he claims to the court to be the correct shareholding of the companies.

Ownership of companies is evidenced through documents of ownership in the form of share certificates, share registers, accompanying returns, and other such officially recognised documents which collectively or individually prove ownership.

What the applicant is simply saying is that he does not have proof of the existing ownership of the two companies by the deceased. He cannot lay his hands on any of the company records at the Companies Office because the documents are missing.

In his view, and dispute his handicap, he avers that anyone purporting to hold ownership of the companies is doing so fraudulently though he does not have any counter documents.

One wonders on what basis, even if the judgment were to be set aside, the applicant would prove to assert the existing ownership of the companies by the deceased.

The applicant also appears to approbate and reprobate at the same time.

I have considered case records HC10573/13 and HC10625/13 referred to by the fourth respondent in his opposing affidavit.

In case no. HC10573/13, the applicant, as curator bonis, filed an affidavit in which he sought the joinder of the Estate of the deceased, and the Master of the High Court, as 11th and 12th respondents in case no. HC1589/13, being the same case whose judgment he now seeks to have set aside.

He withdrew the application on 18 July 2014.

In his founding affidavit, in paragraphs 4 and 5 thereof, he averred that one Laurence Erasmus Vermark and Terrence Cobden Rhodes (the fourth respondent herein) were Trustees of Phoenix Trust. He described the said Trust as a sham which was not registered and non-existent. He averred that it was purportedly created by the deceased.

The applicant, in the same application, HC10573/13, sought that the estate be joined as a respondent to case no. HC9849/13.

Case No. HC9349/13 was an application by the first respondent in this application (Gideon Hwemende) for rescission of the judgment by TSANGA J in HC1589/13. The first respondent claimed to own 60% of the two companies' shareholding. Case No.9849/13 was dismissed with costs on the higher scale by MATHONSI J on 21 May 2015.

When I further perused the documents in HC10573/13, I noted that one Laurence Erasmus Vermark had deposed to an affidavit on 20 May 2013. He made various allegations of how he had been intimidated and threatened if he did not resign as a director of the two companies.

What attracted my interest as being relevant to this application is that the said deponent to the affidavit confirmed that all the issued share capital in the two companies in issue were held by the Phoenix Trust and that he was a trustee of Phoenix Trust until 25 January 2012 when he resigned. He confirmed that the fourth respondent (Terence Rhodes) was and is a trustee of the said trust together with one Ken Regan. The secretaries of the companies, according to the deponent, were Accounting Executor Services (Pvt) Ltd.

The applicant, in the application before me, does not say anything about this information which he is aware of. He only states that the fourth respondent misrepresented that the Trust owned the shareholding in the companies.

In yet another case, HC10625/13, filed on 10 December 2013, the applicant, as curator bonis of the estate aforesaid, made an urgent application seeking, in the interim, a stay of execution of TSANGA J's judgment and for an order that the Master of the High Court should run the affairs of the two companies pending the determination of the joinder application, which, as has already been noted, he subsequently withdrew.

The applicant, in his affidavit in HC10625/13, alleges that he carried out a forensic audit which revealed that Phoenix Trust was a sham and non-existent. He averred that TSANGA J had granted her judgment in error.

I agree with the submissions made by the fourth respondent's counsel that the applicant seeks to mislead the court by making conflicting depositions in the affidavits in various cases which he has filed in this court.

None of the previously filed cases have seen the light of the day.

The applicant appears to be clutching at straw.

He has no information or documents relating to the two companies to back up his claim. He refers to a forensic audit of the companies having been carried out. The forensic audit has remained a secret document. He did not attach it to the present application nor to the cases to which my attention was drawn and which I have noted in this judgment.

The applicant appears to be on a fishing expedition.

When the Trust Deed for the Trust was produced, he then created another angle to seek the re-opening of TSANGA J's judgment. He changed from his position that he had carried out a forensic audit which showed that Phoenix Trust is a sham.

In my judgment, the applicant is involved in a stalking exercise whereby he waits by the shadows and each time a document pertaining to the two companies comes to his attention, he tries to and devises ways to attack and nullify it. The applicant himself has no contra evidence or documentation to back his position.

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O.
Ruled By: CHITAKUNYE J

Though the applicant, in her founding affidavit, said she had been constantly asserting her rights by visiting the house right up to the late Fred Garikayi Muchenje's demise such was just a bald assertion without any substance.I am inclined to believe she was not being candid at all.

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 argument culminates in that since the writ was executed at the Stand, the property attached was in the possession of the claimant. It is then submitted, that, since the attached property was in the possession of the claimant, the onus is on the judgment creditor to prove, that, notwithstanding possession, the attached property belongs to the judgment debtor.

The judgment creditor argues that the agreement of sale is suspicious.

The agreement of sale was allegedly concluded on 28 October 2016. On 21 August 2017 BM Graphics (Pvt) Ltd consented to a court order whose terms directed the Registrar of this court to appoint a realtor firm to conduct a valuation of the same Stand the claimant says it purchased in 2016. At the time the court order was made, there was no mention that the Stand subject to the court order had already been sold to the claimant.

Counsel for the claimant attempted to answer this query by arguing that the court order only refers to two thousand square meters of the Stand, while the whole Stand is measuring 5,036 square meters.

This argument does not avail the claimant because the agreement of sale between it and BM Graphics (Pvt) Ltd is for the whole piece of land, not only 3,036 square meters.

The claimant produced another copy of an agreement of sale between it and BM Graphics (Pvt) Ltd signed on 30 October 2015. It says this one was cancelled because it was realised that the land belongs to Jon's Engineering, which had to be involved in the sale of the Stand.

Correspondence was also produced in an attempt to show that the agreement of sale is authentic.

The claimant could not explain why BM Graphics (Pvt) Ltd could, in August 2017, consent to a court order which related to a Stand it no longer owned.

In fact, counsel for the claimant represented the judgment debtor in the main case - this does not bolster the claimant's case at all. It in fact gives weight to the allegations of connivance between the claimant and the judgement debtor.

I agree with the judgment creditor's counsel that the agreement of sale is not authentic.

It was drawn as an after-thought to give credence to the alleged sale of shares in Jon's Engineering to the claimant.

BM Graphics (Pvt) Ltd could not have consented to the order of 21 August 2017 when, on the 26 October 2016, it had already sold the shares in Jon's Engineering which owns the Stand.

Further, in the first affidavit that prompted the applicant to institute these proceedings, the claimant says BM Graphics sold the Stand to it; it (BM Graphics) moved out of the Stand, and, to that end, the property that has been attached by the Sheriff belongs not to the judgment debtor but the claimant. In the affidavit filed in opposition to the interpleader application, the claimant says the Stand was purchased by the claimant on 28 October 2016.

The deponent to the affidavit continues and says the premises had nothing to do with the judgment debtor as of 28 October 2016. The deponent continues, in the supplementary affidavit, that, the claimant bought the property from the judgment debtor and took occupation of same upon conclusion of the agreement of sale.

What the claimant conveniently forgets is that BM Graphics, the judgment debtor, was on the premises on 21 August 2017 - well after 28 October 2016.

The story of the sale of the Stand falls on its own like a deck of cards.

My view is that it is a fabricated version calculated to deceive the judgement creditor and this court.

View Appeal
HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST
Ruled By: ZHOU J

It was clear that the second defendant is a dishonest person who was being deliberately untruthful and sought to mislead the court about his involvement in the financial transactions of the first defendant....,.His evidence is unconvincing.

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

The plaintiff initiated proceedings by way of an Urgent Chamber Application under case number HC1580/10 seeking an order interdicting the first and second defendants, or any beneficiaries of the second defendant's estate, from disposing of the property known as Lot 1 A of Gumtree held under Deed of Transfer number 1793/82 and Lot 3 of Gumtree held under Deed of Transfer number 1326/82C (hereinafter referred to as “the property”).

An interim order was granted in this Honourable Court but its confirmation was opposed by the defendants.

A separate court application was launched by the plaintiff, under case number HC1653/10, wherein she sought to be declared the sole surviving spouse of the second defendant's estate.

That court application was also opposed, and, eventually, by court order granted on 6 June 2012 it was ordered as follows:

“1. The two applications pending before this Honourable court under cover of case number HC1580/10 and HC1653/10 consolidated under cover of case number HC150/11 be and are hereby converted into action proceedings.

2. The papers filed of record by the parties stand as pleadings in this matter.

3. The parties file their discovery affidavits, pre-trial conference minutes, and summaries of evidence within 7 days of this order.

4. In the event of any party failing as directed in paragraph (3) above, the party having complied be and is hereby granted leave to set the matter down, without giving notice, on the unopposed roll.

5. Third respondent pay costs only if she opposed this application.”

The parties consolidated the two applications in terms of the aforesaid order and proceeded to set down the matter for trial.

A joint pre-trial conference memorandum of issues filed by the parties reflects the issues for determination as follows:

1. Whether or not plaintiff bought the immovable properties, namely, Lot 1A Gumtree held under Deed of Transfer number 1793/81 and Lot 3 Gumtree and is therefore entitled to them.

2. Whether the third defendant is the surviving spouse and therefore the lawful heir to the estate of the late Jubane James Jack.

It was resolved and agreed, at the pretrial conference, that, the onus on the first issue was on
the plaintiff and the onus on the second issue was on the third defendant.

Plaintiff's Case

The plaintiff gave evidence in support of her case. She testified, that, she is ordinarily resident at 61 Queensbrooks, Slough in the United Kingdom. She is a State Registered Nurse and also qualified as a Mental Health Nurse.

She was customarily married to the late Jubane James Jack who died on 21 February 2006 in the United Kingdom.

Her evidence was that the deceased and herself commenced living together around December 1980 and formalized the union a year later in 1981 when her husband was customarily accepted as a son-in-law by her family. At the same occasion, she was accepted as a daughter in law by members of the late Jubane James Jack's family.

The plaintiff stated, that, at the time of their marriage, the deceased was working for National Railways of Zimbabwe and then based at Hwange. The deceased disclosed to the plaintiff that he was once married to the third defendant and that the marriage had broken down and he was in the process of legally divorcing the third defendant with whom he was married in terms of the then Marriage Act [Chapter 37].

She was also informed, that, the third defendant had one child with the deceased by the name Violet Jack.

At the time the plaintiff met the deceased, the third defendant was not living with him. They were on separation.

The plaintiff stated, that, in or around 1981 she was looking for a property to buy. She was advised that there was a plot for sale just outside the city of Bulawayo. She said that she negotiated for the purchase of the property, being Lot 1 A Gumtree and Lot 3 Gumtree, situate in the District of Umguza.

The property was registered in the names of the late Jubane James Jack because she did not have a payslip and there was need to have a Bond registered against the title deed for the payment of the balance.

She paid an initial deposit of $3,000 and the balance was paid in monthly instalments of $250. Payments were made at the offices of Messrs Ben Baron and Partners. She indicated, that, on certain occasions, the late Jubane James Jack would pay the instalments.

The total purchase price for the property was $15,000.

The second property, being Lot 3 of Gumtree was sold for $10,000. A second bond was registered over the property.

The plaintiff testified, that, she received part of the deposit for the purchase of the second property from a Mr Joshua Malinga.

After the purchase of the two properties, the plaintiff said she left for the United Kingdom in or around February 1999.

The deceased and the plaintiff had three children, namely, Neville Thamsanqa Jack (born on 26 October 1981, Brian Bekithemba Jack (born on 3 October 1985) and Denise Thembeka Jack (born on 18 January 1990).

The deceased and the children relocated to the United Kingdom in December 1999 where they remained until the demise of the deceased in 2006.

It was the plaintiff's evidence, that, problems started in June 2010 when she received a message on Facebook, from Violet Jack (her husband's only child out of his marriage with the third defendant), advising her that she and her mother were going to be the beneficiaries in the estate of the late Jubane James Jack.

In July 2010, the plaintiff travelled to Zimbabwe to attend the funeral of her sister, Faith Mazaiwana. Whilst at the funeral, she was alerted that the property at Gumtree had been put up for sale.

The plaintiff filed an urgent Chamber Application for an order interdicting the executor of the Estate of late Jubane James Jack and the third defendant from disposing of the immovable properties, being Lot 1A of Gumtree and Lot 3 of Gumtree in the District of Umguza.

The Registrar of Deeds and the Master of the High Court were cited, in those proceedings, as nominal respondents.

Upon the granting of the Provisional Order, the confirmation of such order was resisted by the third defendant. A subsequent court application, under case number HC1653/10, was filed by the plaintiff.

Both applications have now been consolidated.

The plaintiff abandoned her claim that she be declared the sole surviving spouse in the Estate Late Jubane James Jack when it became apparent that the third defendant was still legally married to the deceased at the time of his death.

In summary, the plaintiff avers, that, the property in dispute belongs to her for these reasons:

(a) She bought the property using her own funds. She saved the money whilst she was working in the United Kingdom and she was responsible for the repayments on the mortgage bonds.

(b) The deceased did not contribute anything towards the purchase of these properties.

(c) The third defendant never set a foot on these properties and never contributed towards their purchase -, directly or indirectly.

(d) The property never belonged to the Estate Late Jubane James Jack inspite of the property being registered in the names of the deceased.

The plaintiff's evidence is difficult to accept.

The plaintiff was unable to adequately explain why the property was registered in the names of Jubane James Jack and not in their joint names if indeed they had acquired the property together.

It is inconceivable that the deceased who was then employed by the National Railways of Zimbabwe would have contributed nothing whatsoever towards the purchase of the property.

At the time the plaintiff commenced living with the deceased, she was well aware the third defendant was still legally married to him. She was aware that divorce proceedings had not been instituted.

The plaintiff would not have invested all her entire life savings in a property registered in the names of a man married to another woman.

The plaintiff claims that all her documents proving the purchase of the property were lost or destroyed.

The court must, therefore, according to the plaintiff, believe her version of events on her mere say so.

Under cross examination, when a direct question was put to her as to why the property was registered in the names of the deceased, the plaintiff's response was that she was heavily pregnant at the time and she did not possess a payslip.

She could not say for certain who signed the agreement of sale. However, she could not deny that the agreement of sale was signed by the deceased who eventually had his names on the title deed.

The plaintiff conceded, that, at the time of the death of the deceased, the legal owner of the property was reflected on the title deed as Jubane James Jack, although she insisted that she was the financier.

It is my view, that, the evidence of the plaintiff was not convincing. She did not strike as a credible witness.

She failed to produce a single document to prove that the funds used to pay for the property were raised from her savings. Her initial attempt to claim to be the sole surviving spouse of the late Jubane James Jack puts her in very bad light.

There can be no other conclusion except that her intention was to mislead the court.

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

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

FACTUAL BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

APPLICANT'S SUBMISSIONS

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

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

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

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

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

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

Counsel for the first respondent contended that the applicant's explanation was not genuine.

The applicant was aware of the decision of the court a quo but did not note an appeal. Even if he had instructed his erstwhile counsel to note the appeal, and same did not pursue the client's instruction, he had thereafter become aware that no appeal had been noted as far back as June 2017 when eviction was effected by the Sheriff.

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

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

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

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

APPLICATION OF THE LAW TO THE FACTS

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

1. The extent of the delay.

2. The reasonableness of the explanation for the delay.

3. The prospects of success.

4. The interests of administration of justice.

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

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

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

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

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

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

(i) The degree of non-compliance;

(ii) The explanation for it;

(iii) The importance of the case;

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

(v) The convenience of the court; and

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

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

1. THE EXTENT OF THE DELAY AND EXPLANATION THEREOF

The applicant's application for condonation and extension of time was filed on 10 May 2021 - a period of almost four (4) years from the date of judgment.

The explanation profferred by the applicant, that he was not aware that his lawyer had not filed the appeal, is discarded as not being genuine.

It is common cause that the noting of an appeal against the High Court order would have the automatic effect of suspending the order.

The fact that the applicant and the other respondents were ejected, in compliance with the order, and that the applicant further re-invaded the first respondent's farms is a clear indication that there was no appeal noted much to the full knowledge of the applicant.

The re-invasion, after ejectment, was followed by contempt of court proceedings which the applicant contested.

The contempt of court proceedings were actuated by none compliance with the extant court order.

All these factors display that the applicant was not being sincere with the court when he stated that he was not aware that his then legal practitioner had not noted an appeal against the ejectment and interdict order.

In the circumstances, the delay of almost 4 years is certainly inordinate. The applicant has not been candid with the court regarding the four (4) years delay.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

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

1. The application is hereby granted.

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

3. It be and is hereby declared that:

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

3.2 The deceased died intestate.

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

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

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

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

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

INTERIM RELIEF GRANTED

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

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

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

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

In heads of argument filed of record, the first respondent, through her legal practitioner, further raised a preliminary point that there was material non-disclosure.

The applicants did not inform the court that they signed affidavits, under oath, confirming that they had no objections to the unsigned document being taken as the deceased's last will and testament. Reference was made to the oft cited case of Graspeak Investments (Pvt) Ltd v Delta Ops (Pvt) Ltd and Anor 2001 (2) ZLR 551 (H).

The applicants, to the contrary, were very candid with the court that they accepted the document as a Will and recommended the appointment of the first respondent as executor. Their bone of contention is that they were unduly influenced by the first respondent.

The points in limine are therefore dismissed.

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

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

THE PARTIES

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

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

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

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

The third to ninth respondents are duly incorporated companies.

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

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

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

THE LAW

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

(a) The extent of the delay;

(b) The reasonableness of the delay; and

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

BRIEF SUMMARY OF THE CASE

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

“196 Order on Application of Member

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

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

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

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

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

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

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

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

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

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

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

IT BE AND IS HEREBY ORDERED THAT:

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

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

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

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

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

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

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

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

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

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

FACTUAL FINDINGS OF THE COURT A QUO

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

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

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

In the result, he dismissed the application with costs.

PROSPECT OF SUCCESS ON APPEAL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is what Gwatidzo said at p16 of the transcript:

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

…,.

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

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

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

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

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

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

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

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

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

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

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

That finding is amply supported by the evidence on record.

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

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

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

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

HB39-15 : JEMITIOUS GUMBO vs VARAIDZO GUMBO
Ruled By: KAMOCHA J

The plaintiff and defendant got married on 18 September 2007. The plaintiff was a widower and the defendant was a divorcee at the time of the marriage. Each had two children from the previous marriage but they had no children together. They had started cohabiting two years before they got married.

Sadly, two years after solemnizing their marriage, the plaintiff instituted divorce proceedings on 19 November 2009 claiming an order for a decree of divorce and ancillary relief.

He alleged, that, the marriage had irretrievably broken down owing to the following reasons:

(a) The defendant had allegedly verbally abused and ill-treated his children from his former marriage.

(b) That the parties do not live together as husband and wife and they are not sharing conjugal rights which scenario is inconsistent with a normal marriage relationship; and

(c) That the parties quarrel verbally quite often and they have lost all love and affection for each other.

He went on to allege, that, during subsistence of their marriage, the parties only acquired a television set and a bed. It was his suggestion, that, at divorce, the defendant should be awarded the colour television set while he gets the bed.

In her plea, the defendant..., as regards the matrimonial property acquired during the marriage, she alleged that the plaintiff was not being candid with the court and had not made a full disclosure of the matrimonial property.

In addition to the two items that he was prepared to disclose, there was the following property:

(i) 3 and a half tonnes of maize;

(ii) 14 x 50kg bags of rapoko;

(iii) 14 x 50kg bags of shelled ground nuts;

(iv) 4 x 50kg bags of millet;

(v) 7 x 50kg of beans;

(vi) 6 x 50kg bags of sweet potatoes;

(vii) 14 herd of cattle;

(viii) A homestead;

(ix) 2 goats;

(x) 8 chickens;

(xi) Omega radio;

(xii) 2 x sofas;

(xiii) 3 x double beds (one in rural areas and one in town) sic;

(xiv) 1 blanket;

(xv) 2 pairs of bed sheets;

(xvi) 8 x 20 litres empty containers;

(xvii) 4 x 25 litre empty containers;

(xviii) Kitchen utensils;

(xix) 4 tents;

(xx) 2 raincoats;

(xxi) A trunk;

(xxii) 2 x 2 plate stoves;

(xxiii) Fridge;

(xxiv) A radio;

(xxv) 2 x CTV; and

(xxvi) A sewing machine.

It was her contention, that, justice would have been done if the plaintiff were to be awarded a sewing machine; a radio which is in Bulawayo; a fridge; a raincoat; a 2 plate stove; one double bed in Bulawayo and one in the rural home; sofas; and 7 head of cattle while she retained the remaining property as her sole and exclusive property.

The parties appeared before a judge for a pre-trial conference whereat it was agreed that the issues for trial were these:

“(a) Whether or not the breakdown of the marriage was caused by the issues outlined by plaintiff in his declaration or by the issues outlined by the defendant in her plea;

(b) Whether the property listed by the defendant forms part of the matrimonial property or not; and

(c) What is the equitable sharing of the available matrimonial assets.”...,.

Turning now to the matrimonial property, the court finds that the plaintiff had indeed not made a full disclosure of it.

This court takes a very dim view of litigants who are not candid with it.

An award of cost shall be awarded against such party on a punitive scale as a sign of the court's displeasure.

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The appellant acted in a devious manner in regards to management fees. Its conduct amounted to a deliberate act of transfer pricing which was done with intent to avoid tax....,.The Managing Director misled the court that the appellant provided functional analysis input under duress, contrary to his letter of 12 ...

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

The first plaintiff is the National Engineering Workers Union. The second plaintiff is the elected President of the first plaintiff, and the third plaintiff is the Secretary General of the first plaintiff.

The first defendant is the National Employment Council for the Engineering and Iron and Steel Industry. The second defendant is the Engineering Iron and Steel Association of Zimbabwe with the third defendant (Bekezela Mangena) being the second defendants current President. The fourth to ninth defendants (Ben Mamabara, Silas Mkodza, Righton Moyo, Dennis Muchenu, Abel Gumpo and Clement Kausa) are employees in the industry.

The plaintiffs instituted a court action against the defendants in which they sought the following order:

“THAT:

1. It is hereby declared that the 4th to 9th defendants are not legitimate members or holders of any office position in the 1st plaintiff and/or 1st Defendant;

2. It is hereby declared that 2nd to 9th Defendants, or anyone claiming though them, have no locus standi to act for or represent, in any capacity whatsoever, the 1st plaintiff and/or the 1st Defendant or any institution/without the express approval of the 1st Defendant;

3. Defendants are hereby interdicted whatsoever in the management/affairs in the 1st Plaintiff or deciding who should represent the 1st plaintiff or deciding who should represent the 1st Plaintiff in the 1st defendant;

4. It is hereby declared that the 2nd Plaintiff (or any person succeeding him as President of the 1st Plaintiff) be allowed to chair the proceedings/business of the 1st defendant up to the 31st of the month of December that follows the lapse of a period of 12 calendar months from the date of this court's order after which the chairmanship of the 1st Defendant shall proceed on a rotational basis and in terms of 1st Defendant's constitution.

5. The 4th to 9th defendants (or anyone acting through them) are hereby interdicted from entering the 1st plaintiff's property/premises or using the 1st plaintiff's name, letterhead, or logogram.

6. The 1st, 2nd and 3rd defendants (or anyone acting through them) are hereby ordered not to deny the Plaintiffs/1st Plaintiff's officials full and unfettered access to all the premises/property and business of the 1st defendant.

7. In respect of all acts, meetings, negotiations, decisions, resolutions, building contracts, collective bargaining agreements, payments or transactions conducted or executed by the Defendants (or some or one of them) at/or in the name of the 1st Defendant or 1st plaintiff, without the participation and approval of the plaintiffs, from 1st November 2018 to the date of this court's order, be and are hereby declared null and void.

8. The chairing of the meetings/business of the 1st defendant by the 3rd defendant or any person who succeeds him before the grant of this order is hereby declared null and void.

9. The 1st defendant pay to the plaintiff the industrial outreach monetary disbursements computed at 1% of the Engineering Monetary Fund's monthly takings, plus 1% of the defendants monthly takings, with effect from the 1st November 2018 to the date of this court order.

10. Any monetary payments purportedly made to the 1st plaintiff through the defendants or through modes/accounts other than 2nd plaintiff, 3rd plaintiff or the 1st plaintiff's official bank accounts, are hereby declared void.

11. The 2nd to 9th defendants shall bear the costs of this suit on an attorney and client scale.”

The plaintiffs claims were met with a special plea being filed by the defendants on three (3) aspects:

(i) The first aspect being a special plea on a lack of locus standi in judicio by all three plaintiffs stating that the first plaintiff body was a bogus union and a fabrication and that it belonged to the second and third plaintiffs who had been ousted by the entire engineering industry.

Further, it was specially pleaded that the second and third plaintiffs were no longer office bearers in the genuine workers union and that they had been dismissed from employment, and, therefore, the second and third plaintiffs had no capacity to sue on behalf of the National Workers Engineering Union.

(ii) The second special plea was that the matter was pending in another court (lis alibi pendens) under case number HC8051/19; in which the defendants claim was to cause the second and third plaintiffs to be barred from instituting proceedings from filing suits in the name of the first plaintiff.

(iii) Lastly, the defendants specially pleaded that matter had already been determined in part (res judicata) in that some of the claims in the declaration had already been determined and disposed of by the Magistrates Court.

The defendants sought a dismissal of the plaintiffs claims in their entirety, if all or any of those special pleas were upheld.

Thereafter, the defendants seemed to have abandoned taking the next procedural steps in pursuing the determination of the special pleas immediately as laid out under Order 20 Rule 138(a) and (b) of the High Court Rules 1971; in that, they failed to set the matter down for the hearing of their special pleas separately.

Order 21 Rule 138 of the High Court Rules reads as follows:

“138 Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed —

(a) The parties may consent within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with subrule (2) of Rule 223;

(b) Failing consent, either party may, within a further period of four days, set the matter down for hearing in accordance with subrule (2) of Rule 223;”

In the result, the special pleas would be held over for determination at the trial in this matter; but, in the meantime, and in terms of (c) the defendants were required to have pleaded over the merits of their respective cases in terms of Rule 138(c) which prescribes that:

“(c) Failing such consent and such application, the party pleading specially, excepting or applying, shall within a further period of four days plead over to the merits if he has not already done so and the special plea, exception or application shall not be set down for hearing before the trial.”

When no pleas on the merits were forthcoming from the defendants, on the 17th of January 2020, the plaintiffs filed a notice to plead and intention to bar and served the same on the defendants.

The defendants elected, deliberately, to withhold their pleas on the merits and cited their reason for that decision as being that they had pending special pleas which were yet to be disposed of by the court.

Such an irreverent approach by the defendants resulted in the defendants being barred from pleading and appearing in accordance with Order 12 Rule 83 of the High Court Rules which states:

“83 Effect of Bar

While a bar is in operation —

(a) The registrar shall not accept for filing any pleading or other document from the party barred; and

(b) The party barred shall not be permitted to appear personally, or by legal practitioner, in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar.”

Strictly taken, the Registrar ought not have accepted any further pleadings from the defendants; but, assumedly, the Registrar's office would have been hard pressed to pick this up, given the voluminous court filings which are processed in that office, and also because filings on the defendants behalves were being done by registered legal practitioners.

Be that as it may, the matter ended up being enrolled on my opposed roll for determination.

Strangely, the defendants counsel audaciously appeared to argue their cases and avoided informing the court that their clients had no right of appearance in accordance with Order 12 Rule 83(b) of the High Court Rules supra.

The defendants counsel ought to have been fully aware that they had no right of audience with the court on the opposed roll of matters: see General Leasing (Pvt) Ltd v Allied Timbers Zimbabwe (Pvt) Ltd HH76-15…,.

The indictment against counsel for the defendants was that they avoided informing the court about the status of the bar pertaining to their clients pleas; which was already in effect.

The latter issue was brought to my attention by the plaintiffs counsel...,.

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU
Ruled By: MOYO J

The plaintiff issued summons in this matter seeking an order as follows:

(a) Eviction of the defendant and all those claiming right of occupation through him from a property known as House Number 5 Cypress Avenue, Masasa, Kwekwe.

(b) Payment of $3,478 being arrear rentals for the period extending January 2013 to December 2013.

(c) Holding over damages at the rate of $11=50 per day from January 6, 2014 to the date of eviction.

(d) Payment of the sum of $169=32 being arrears ZETDC bills and $243 being the Municipality bills.

(c) Costs of suit at a higher scale.

It is important to note, that, the plaintiff's witness advised the court that claim number (d) on the summons was being abandoned because the utility bills had been paid by the defendant to the relevant authorities.

The plaintiff's case is that the defendant took over occupation of Stand 5 Cypress Avenue, Masasa, Kwekwe, after the decease of one Chengoma who was the lessee leasing the property from the plaintiff.

The plaintiff was made to understand, that, the defendant was related to the late Chengoma and would want to remain in occupation and take over the lease.

The plaintiff allowed the defendant to remain in occupation on condition the defendant paid monthly rentals in the sum of $345 per month.

They were to assess the defendant's performance on payments before crafting a lease in the defendant's name.

The defendant fell into arrears shortly after this arrangement was made resulting in the plaintiff instituting this action.

The defendant, on the other hand, agrees that he took occupation of the property in issue and that he was to pay $345 per month, but, that, in fact, he had entered into a rent to buy agreement with the plaintiff.

In giving evidence, the defendant told the court, that, in the rent to buy agreement he was to pay $345 per month and he was supposed to have paid $9,600 by 31 August 2013.

He however told the court, that, he did not pay the $9,600 by 31 August 2013 as the Bank had said he could be given an indulgence to pay within another three months. He said however he did not pay the $9,600 even by December 31, 2013 as he had only paid $7,500 by then.

Asked what the precise terms and conditions of the rent to buy agreement were, he said he was to pay $9,600 at $345 per month by 31 August 2013.

The defendant also told the court, that, it was another term of the agreement that he would then pay about $25,000 “soon after paying the $9,600” to make up the total purchase price of $35,000.

He said that his agreement with the Bank was oral.

The defendant failed to produce proof of payments for the rentals per month from 2012 to date. He only tendered about nine copies of deposit slips all with dates in 2012. They were marked Annexure “A”.

From the facts before me, the following are common cause:

(a) That the defendant took occupation of the plaintiff's property sometime in 2012–2013.

(b) That the defendant did make some payments towards rentals.

(c) That there are no rental slips for the years 2013, 2014 and 2015.

(d) That the property, i.e. Number 5 Cypress Avenue, Masasa, Kwekwe belongs to the plaintiff.

(e) That an agreement was reached between the parties resulting in the defendant occupying the plaintiff's property; whatever nature of agreement, whether it was a rent to buy or lease, but, the bottom line is some agreement was reached.

Looking at the plaintiff's allegations, that the defendant inherited Chengoma's lease whom they were made to believe was his relative, and the rentals agreed upon, as well as the payment slips tendered by the defendant, the plaintiff's case sounds, in my view, to be plausible.

On the other hand, the defendant's case creates numerous problems and I list them herein.

Assuming that the court were to accept the defendant's version of events, there are these challenges in adopting that version:

(1) The parties entered into an oral rent to buy agreement

This raises eyebrows as any person who owns an immovable property to the value of $35,000 would not behave in such a manner - moreso a Building Society.

On the other hand, the plaintiff's explanation for the oral lease agreement is plausible in that the defendant was taking over Chengoma's lease, as a relative, and this would entail continuity. Also, that they did not immediately reduce the agreement to writing since they wanted to observe the defendant's conduct with regard to payments makes sense.

(2) The defendant says, that, the agreement was that he takes occupation, pays $345 per month as rentals in a rent to buy agreement, and that he should have paid $9,600 by 31 August 2013 from January 2012.

2012 had 12 months, and, from January 2013 to August 2013 its 8 months, meaning, that, there is a total of 20 months. At $345 per month, for 20 months, mathematically, the defendant would have paid $6,900.

So, it would not make sense that the Bank agreed with him that he pays $9,600 by 31 August 2013, from January 2012, at the rate of $345 per month.

(3) When he was asked for the precise terms of this rent to buy agreement, he said that he was to pay about $25,000 “soon after paying the $9,600.”

What kind of agreement is this?

(4) The defendant did not comply with the terms of the agreement he alleges was entered into.

He never paid $345 per month consistently for the 20 months stretching from January 2012 to 31 August 2013. Neither did he pay the $9,600 by 31 August 2013.

He says that he was given a leeway to pay within 3 months from the last date given; but, it is also his evidence that he had not paid the $9,600 by December 2013. He also did not pay the balance of about $25,000 “soon after paying the $9,600” as he never paid the $9,600 in the first place.

Clearly, the defendant is being untruthful with the court from the aforestated analysis.

He wants to take the court in a long meandering route destined nowhere. He is merely wasting the court's time and is indeed abusing court process in my view.

He knows that he entered into a lease agreement with the plaintiff, defaulted on rentals, and then decide to come up with a concocted rent to buy story that was falling apart on its own.

I accordingly grant the plaintiff the following relief for the aforestated reasons:

(a) Eviction of the defendant and all those claiming right of occupation through him from the property known as House Number 5 Cypress Avenue, Masasa, Kwekwe.

(b) Payment of $3,478 being arrear rentals for the period extending January 2013 to December 2013.

(c) Holding over damages at the rate of $11=50 per day from January 6, 2014 to the date of eviction.

(d) Costs of suit at a higher scale.

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

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

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

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

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

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

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

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

“MEMORANDUM OF AGREEMENT

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

Plaintiff and her legal practitioner Mr G. Nyoni

Defendant and his legal practitioner Mr S.S. Mazibisa

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

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

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

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

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

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

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

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

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

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

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

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

“RE: M. NCUBE vs SIPIWO NKOMO

The above matter refers and to our previous conversation.

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

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

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

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

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

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

The above matter refers and to the attached court order.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

Unfortunately, the applicants have decided not to be candid with the Court and take it into their confidence.

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.The applicant craves ...

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.

The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.

The applicant craves the grant of his application, with no order as to costs.

Background

The two parties involved in this matter are a formerly married couple in terms of the Marriages Act [Chapter 5:11].

Following an irretrievable breakdown in their relationship, the respondent sought a decree of divorce in the High Court. The order sought in the court a quo also regulated the distribution of their perceived matrimonial property.

During the course of those proceedings, the applicant contested the distribution of an immovable property known as House Number 114 Lomagundi Road, Harare. His chief argument was, that, there was no direct contribution towards the purchase of the property by the respondent and hence she was disentitled from any claim to the property as part of their divorce proceeds.

This proposition was countered by the respondent who insisted that she had been the primary caregiver to their family and had remitted the various monies she had earned to the applicant during the subsistence of their marriage.

The applicant's purported former second wife also testified to the same effect on behalf of the respondent. She submitted, that, the respondent had raised various amounts of income that she submitted to the applicant during their marriage.

In the event, the court a quo found in favour of the respondent and granted her a fifty percent share in the property.

Irked by the High Court's determination, the applicant launched a subsequent appeal to the Supreme Court.

From the submitted grounds of appeal, the sole issue that arose for determination was whether the court a quo had erred in awarding the respondent a fifty percent share in the contested immovable property.

It was submitted, on behalf of the applicant, that, the court a quo had adopted a narrow construction of the principle of equality as the respondent had not contributed towards the purchase of the immovable property. It was contended, that, the judgment by the court a quo upset the established jurisprudence regarding the primary considerations for equitable distribution of matrimonial property.

Per contra, the respondent submitted that the court a quo had exercised its wide discretion under section 7 of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes Act”). It was contended, that, the High Court, in arriving at its determination, was guided by the Constitution as well as established precedent.

The respondent submitted, that, taking into consideration the circumstances of the case, the court a quo's determination could not be faulted.

Once seized with the matter, the Supreme Court proceeded to first correct the order of the court a quo, that had omitted to grant a decree of divorce before distributing the parties matrimonial property.

On the merits, it re-affirmed the respondent's position, that, section 26(c) and (d) the Constitution, as well as international law, mandated a fair and equitable distribution of matrimonial property. The Supreme Court upheld the court a quo's determination on the basis, that, the court a quo had properly exercised its discretion under the Matrimonial Causes Act.

The Supreme Court also noted, that, the applicant's moral turpitude was a critical factor in the decision of the High Court. The applicant's conduct, in trying to frustrate the equitable distribution of matrimonial property, was held to justify the order granted by the High Court.

Thus, the appeal was held to be meritless and dismissed.

Thereafter, the applicant failed to note an application for leave to appeal against the Supreme Court's decision within the allotted timeframe stipulated by the Constitutional Court Rules, 2016.

Based on the foregoing, the applicant filed the instant application before this Court on 22 March 2022.

The judgment of the Supreme Court was handed down on 29 June 2020 and the Rules of this Court provide fifteen days from the date of judgment to apply for leave to note an appeal against the judgment.

The applicant was evidently barred from noting his application for leave to appeal against the Supreme Court's decision and hence he has filed the present application for condonation.

In his founding papers filed of record, the applicant averred that his application for condonation ought to be granted as the intended application for leave to note an appeal enjoyed prospects of success.

It was contended, that, the applicant enjoyed a right to petition the Constitutional Court under section 69(3) of the Constitution, and, in the present instance, such access hinged on the existence of a constitutional matter in the subordinate court. He averred, that, the Supreme Court over-extended the import of the notion of “equality” when interpreting the provisions of the Matrimonial Causes Act.

It is on the basis of the foregoing, that, the applicant submitted that he had a justiciable right to equality, under section 56 of the Constitution, that ought to be protected by this Court.

He averred, that, section 56(3) of the Constitution, in particular, prohibited every person, including judicial officers, from discriminating against litigants based on their culture.

He asserted, that, the High Court's determination was primarily influenced by his cultural practice of taking another spouse during the subsistence of his marriage to the respondent.

The applicant advanced the position, that, the Supreme Court consequently failed to protect his right to equality. This constituted a flagrant violation of his fundamental right which ought to be redressed by this judicial forum.

Regarding the extensive delay in applying for leave to note an appeal, the applicant pleaded that he had limited financial liquidity to afford legal consultation and was oblivious of the prescribed period to access this Court.

He also averred, that, the Covid-19 pandemic militated against the filing of the present application due to onerous lockdown restrictions.

The applicant conceded, that, the extent of the delay in filing the application was inordinate but countered this concession by reasoning that, at any rate, the respondent was not prejudiced by the delay due to the peculiar circumstances of the matter.

The application was strenuously opposed by the respondent.

She averred, that, the Supreme Court was not seized with a constitutional matter and did not determine any constitutional issues in rendering its verdict. The respondent submitted, that, the draft grounds of appeal filed by the applicant related to general points of law.

It was contended, that, the judgement of the Supreme Court did not stray from the established legal precepts governing the distribution of matrimonial property in determining the rights of the parties.

The application was deemed to be an abuse of court process due to the obvious absence of any constitutional issue in the Supreme Court's judgment.

Submissions by Counsel

Counsel for the applicant, conceded that there was an extensive delay in filing the present application and that such delay was inordinate. She countered her concession by arguing, that, the applicant had been pondering his available remedies due to the complexity of the matter. It was submitted, that, the applicant sought legal advice from counsel, a process that extended the delay in filing the present application.

When it was pointed out that the founding affidavit on record contradicted her submissions, counsel admitted that the applicant had not been candid with the Court....,.

The Supreme Court, in Moroney v Moroney SC24-13 upheld the position, that, a litigant's lack of candour fatally impairs his argument. It was held as follows, at p7 of the judgment:

“In Leader Tread Zimbabwe (Pvt) Ltd v Smith HH131-03 NDOU J, at p7 of the cyclostyled judgment, stated as follows:

'It is trite, that, if a litigant gives false evidence, his story will be discarded and the same adverse inferences may be drawn as if he had not given evidence at all: see Tumahole Bereng v R (1949) AC 253 and South African Law of Evidence by LH HOFFMAN and DT ZEFFERT (3ed) at p472. If a litigant lies about a particular incident, the court may infer that there is something about it which he wishes to hide'.”

In casu, the applicant's lack of probity regarding the circumstances resulting in the inordinate delay to petition this Court fortifies the respondent's case.

Counsel for the respondent submits, that, the letters exchanged by the parties highlight the fact that the applicant, at all material times, was under legal representation and that the delay was therefore not occasioned by any lack of financial capacity.

When this is tallied with the concoction of differing justifications proffered by the applicant, it is abundantly evident that he is not being candid with the Court.

Consequently, he has not been able to provide a reasonable explanation for his failure to impugn the Supreme Court's determination timeously....,.

The disingenuous explanation proffered by the applicant for the delay in lodging the application in effect aggravates his non-compliance with the Rules due to his lack of probity and candour regarding the inordinate delay.

This has the attendant effect of tipping the balance of convenience in the respondent's favour.

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

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

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

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

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

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

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

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

The details were these:

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

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

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

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

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

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

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

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

The first respondent obliged.

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

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

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

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

The applicant sought the following orders:

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

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

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

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

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

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

The record was returned to the Registry.

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

That explains the delay in rendering this judgment.

The application was ill-conceived, because, apart from regurgitating the principles of review of an administrative decision, as set out by case law, there was little or nothing of the factual background upon which the application was based.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (GPS) survey.

The applicant was completely silent about this crucial fact, both in her founding and answering affidavits.

So, I find that the applicant was present when the Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

The first respondent said the results of the GPS survey showed that the applicant's 50 hectares were not interfered with and that the 21 hectares allocated to the third respondent were not carved out of her portion.

The applicant proffered no counter argument, let alone present any facts to rebut the survey findings. She was simply adamant that the 21 hectares allocated to the third respondent had been chopped off her own allocation.

That was ill-conceived.

Part of the applicant's argument was that the first respondent wrongly treated the dispute between herself and the third respondent as a dispute over boundaries, yet it was not, but was a dispute of land invasion by the third respondent over land lawfully allocated and utilised by herself.

But, the dispute was indeed a dispute over boundaries.

The order by consent, in September 2017, expressly recognised the dispute as one over boundaries. The very first line to the preamble to that order read:

“Whereas there is a dispute relating to boundaries and allocation of land on Farm 38, Hippo Valley Estates, Chiredzi as between and among the parties;”

There was no basis for the remedies sought in the draft order. The real dispute had been competently and properly resolved by the first respondent.

That the applicant had farmed on the disputed portion of the land for thirteen years did not preclude the second respondent from properly allocating it to deserving beneficiaries as the applicant had not acquired rights over it.

When the first respondent resolved the dispute, it issued out a written determination. No breach of the Administrative Justice Act was shown to have occurred.

It was for the above reasons that I dismissed the application with costs.

HHMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

I noted, that, D/Ass Insp Chinoni was a very impressive witness. Besides being an eloquent speaker, his attention to detail and knowledge of his work is excellent. The professionalism he exhibited in recording the warned and cautioned statement, as seen on the video, is commendable.Indeed, counsel for the accused understandably ...

HH95-16 : MANICA ZIMBABWE LTD vs GRINDSBERG INVESTMENTS (PVT) LTD and OTHERS
Ruled By: DUBE J

This is an application for costs. At the hearing of this matter, the applicant withdrew its urgent application without an offer of costs.

The first respondent requested the court for an order of costs resulting in the question of costs was reserved pending the filing of heads of argument on the subject by both parties.

The first respondent seeks an order of costs on the legal practitioner client scale, alternatively, costs on the legal practitioner-client scale de bonis propriis.

The brief background to this application is as follows:

The applicant provides a container depot for the storage, detention, unpacking, and examination of containers or the contents of containers or for the delivery of importers of contents of containers after the contents have been duly entered.

The applicant is a licensed container depot.

The second respondent (Bollore Africa Logistics Zimbabwe (Pvt Ltd) was cited as an interested party having arranged transport of the consignment of sugar which forms the subject matter of this application.

The third and fourth respondents (Minister of Industry and Commerce N.O. and Minister of Agriculture, Mechanisation and Irrigation Development N.O.) are the minsters responsible for issuing permits and licences for importation of goods into the country.

The fifth respondent is the Commissioner General of the Zimbabwe Revenue Authority, the authority responsible for the administration of the Customs and Excise Act [Chapter 23:02].

Between March and October 2014, the applicant received containers containing sugar and other goods belonging to the first respondent. The rest of the goods were cleared leaving containers of sugar. The first respondent was required to obtain a licence and permit from the third and fourth respondents, pay import duty to the fifth respondent and clear the goods, and pay the applicant's storage and handling charges.

The applicant averred, that, the first respondent had failed to obtain the necessary licence and permit to allow the importation of the sugar held by the applicant.

The applicant submitted, that, the first respondent's licence, from the third respondent, for the importation of the sugar into Zimbabwe, was to expire on 24 September 2005. It contended, that, sugar is a perishable and its value was continuing to deteriorate as each day passed.

On 15 September 2015, the applicant filed an urgent chamber application seeking an order to compel the first respondent to pay for licences, permits, and import duty to the third to fifth respondents to enable the first respondent to clear and remove the sugar stored at the applicant's premises.

In the event of the first respondent's failure to do so, the applicant sought an order compelling the third and fourth respondents to grant to the applicant the necessary permits and licences entitling the applicant to import the sugar into Zimbabwe, sell the sugar, and pay the fifth respondent out of the proceeds of the sale and recover its storage costs.

The court initially declined to deal with the application on the basis that it was not urgent and only agreed to entertain the application after an appeal by the applicant.

At the hearing, the court commenced hearing a preliminary point on the urgency of the matter.

The applicant withdrew the application midstream after the first respondent disclosed that it had a licence and a permit for the importation of the sugar and had paid the fifth respondent for the clearance of the sugar.

The applicant did not make a tender of costs.

The first respondent asks for costs on the basis that the matter was never urgent and hence the court's decision not to treat it as not urgent, the matter only having been set down after the applicant had pleaded with the court for a hearing.

The first respondent maintained that the matter was not urgent and was devoid of any merit leading to a withdrawal by the applicants.

The first respondent avers that the import licence it holds had not expired and it was not consulted to ascertain the status of the goods before the urgent application was made. That otherwise the application ought not to have been filed.

The applicant defends this application.

The applicant took a point in limine. It takes issue with the first respondent's failure to file heads of argument by the date appointed by the court.

The applicant argued, that, the first respondent, having breached the order of the court, ought to have sought condonation of its breach. The applicant urged the court to expunge the first respondent's heads of argument from the record for failure to make an application for condonation.

The applicant maintains, that, ultimately, there is no application for costs before the court.

The applicant seeks costs on the basis that it was successful in this application.

On the merits, the applicant took issue with the respondent's failure to advise it and the court of the fact that it had since paid the duty and licences concerned when the application was set down for hearing.

The applicant further contended, that, the reason why the applicant withdrew its application is because it had been successful and that a court order was no longer necessary. The court was urged to take the view that the applicant was successful in this application.

On the issue of costs, the applicant submitted, that, there is no rule of law that a party withdrawing an application pays the other side's costs.

The applicant contended, that, if a party withdraws an application because the other party complied with the order sought, then, it is successful and can recover its costs.

The applicant submitted, that, the first respondent has failed to justify a claim for either costs on a higher scale or costs de bonis propriis.

The applicant prays for an order of costs on the ordinary scale against the first respondent. The order of the court was not obeyed.

The first respondent requested, and was ordered, to file its heads of argument by 30 September 2015 and only did so on 12 October 2015.

The filing of the heads was not subject to the filing of the notice of withdrawal was filed. The first respondent's explanation, in its heads, that it did not file heads on time because the applicant had not filed a formal notice of withdrawal therefore has no basis as no such pronouncement was made by the court.

The respondent is indeed in breach of the court's order and has fallen foul of the Rules.

The first respondent has not applied for condonation of the late filing of the heads of argument.

A party who fails to comply with an order of the court, to file heads of argument within a stipulated date, is expected to apply for condonation of the late filing of the heads of argument.

The respondent has failed to ask for condonation of the late filing of its heads of argument, and, in the end, there is no explanation for the delay in filing the heads of argument.

The respondent was advised that the applicant was taking issue with the late filing and advised to seek condonation. The respondent has done nothing.

It is difficult for the court to condone the late filing without having been asked to do so by the offending party.

This error is fatal to its application. The heads of argument are not properly before the court.

The respondent's heads are expunged from the record.

The effect of this on the applicant's request for costs made at the hearing is simply that there is no argument on the costs requested.

I am still required to consider the question of costs.

Any costs, of whatever nature, are not merely for the asking and require to be justified.

The approach to take in determining the issue of costs was discussed in Nhari v Public Service Commission 1998 (1) ZLR 574 (HC)…,. The court quoted the following except from Fripp v Gibbon & Co 1913 AD 353 per De VELLIERS JP as follows:

“Questions of costs are always important and sometimes difficult and complex to determine, and, in leaving the magistrate discretion, the law contemplates that he should take into consideration the circumstances of each case, the conduct of the parties, and any other circumstances…, and, if he does this and brings his judgment to bear upon the matter and does not do so capriciously or upon a wrong principle, I know of no right on the part of a court or a court of appeal to interfere with the honest exercise of his discretion.”

Another case in point is Kruger Bros and Wasserman v Ruskin 1918 AD 63…, where the court said the following:

“The rule of our law is that all costs, unless expressly enacted, are in the discretion of the judge. His discretion must be judicially exercised, but, it cannot be challenged taken alone and apart from the main order without his permission.”

A court assessing the question of costs is required to take into account all the relevant factors.

The subject of costs is always in the discretion of the court.

The court has a discretion in considering whether any costs are payable to any party. If it decides to make an award of costs, it is usually guided by the general rule that the unsuccessful party pays the costs of the successful party. The court's discretion is required to be exercised judicially. The court will not allow costs that have been unreasonably incurred. The court also has to be satisfied that the costs sought are payable by one party to another. The court must, in determining which party to award costs to, and the appropriate scale of costs to impose, have regard to -

(a) The conduct of the parties before and during the proceedings;

(b) Whether a party has been wholly or partly successful in his case;

(c) Whether the other party has offered to settle the matter;

(d) Any other pertinent circumstances.

Costs are not merely there for the asking.

With regards costs following a withdrawal, the general rule is that a party may withdraw any proceedings before they have been set down and where he does so after set down of the matter, he may do so with the consent of the other side or with the leave of the court.

He is expected to file formal a Notice of Withdrawal and make a tender of costs.

If no consent to pay costs is embodied in the Notice of Withdrawal, the other side may apply to court for an order of costs: see The Civil Practice of the Superior Courts of South Africa, 5th ed…,.; Moodley v Moodley [2009] ZAFSHC 61; Protea Assurance Co. Ltd v Gamlase and Ors 1971 (1) SA 460.

The author AC CILLIERS in The Law of Costs, 2nd ed…, states as follows on withdrawals:

“Where a litigant withdraws an action, or, in effect, withdraws it, very strong reasons must exist…, why a defendant or respondent should not be entitled to his costs.

A plaintiff or applicant who withdraws his action or application is in the same position as an unsuccessful litigant because after all his claim or application is futile and the defendant or respondent is entitled to all costs caused by the institution of proceedings by the withdrawing party;…,there is a crucial difference between the position of an applicant settling his case on the merits and then asking the court's ruling on costs and the position of an applicant withdrawing his claim, and, thereafter, attempting to avoid an order of cost as against him.''

See also Protea Assurance Co Ltd v Gamlase and Ors 1971 (1) SA 460 where the court relied on the case of Germishuys v Douglas Besproeiingsraad 1973 (3) SA 299, for the proposition that it is only in exceptional circumstances that a party that has been put out of pocket by having to oppose a matter will be denied all the costs.

My understanding of the correct legal position is that where a party withdraws his application or action, he is expected to make a tender of costs. It is only in exceptional circumstances that a respondent will be deprived of costs.

A party withdrawing an action or application may only be entitled to costs where 'very strong reasons' have been shown to exist.

Where a party has been wholly or partly successful in its claim, this fact may constitute very good reasons for an entitlement to costs.

The respondent may also be deprived of costs because of his conduct or fault on his part.

The conduct of the applicant in this case was above board. I have not been able to find fault with the applicant's conduct in this application.

When this matter was placed before me, I ruled that the matter was not urgent. The fact that the court initially refused to entertain the matter does not favour the first respondent. The applicant cannot be penalised for having its application declined on the first occasion when one has regard to the circumstances of this case.

The application was subsequently set down following an appeal from the applicant.

Once the court decided to set down the matter for hearing, the issue of the urgency of the matter remained in abeyance.

At the hearing of the matter, the first respondent challenged the urgency of the matter and it was entitled to do so.

The matter was withdrawn in the midst of submissions on the urgency of the matter.

The court did not get to pronounce itself on the urgency of the matter as the court was not fully addressed on the subject and the application was aborted midway and no ruling made.

The first respondent cannot be entitled to costs simply on the basis that the court had initially declined to entertain the application.

Although the court found that the matter was not urgent, this in no way means that the applicant had no cause of action against the first respondent.

The applicant was holding its sugar and the first respondent was not clearing it or facilitating that process.

When the application was lodged, the respondent had not paid for clearance of the sugar.

The applicant was entitled to compel the first respondent to clear the sugar - and by a certain date.

The withdrawal of the application was done after the matter was set down for hearing. It emerged during argument, that, the first respondent had since paid the monies required as duty to clear the sugar. The first respondent, it also emerged, had a permit and licence from the third and fourth respondents to enable it to clear the sugar and collect it from the applicant's depot.

The applicant made its application on 15 September 2015 seeking an order against the first respondent to “effect all such payment as is required to clear and to remove” its sugar held at the applicant's depot.

The first respondent effected these payments on 18 September 2015.

The court set down the application for hearing on 23 September 2015.

The first respondent was not open with the court, only advising the court of its payment to the fifth respondent on the second day of the hearing.

The first respondent ought to have disclosed this progress at the onset of the hearing.

There is no explanation why the first respondent only informed the court, and the other parties, so late, of this crucial development. Had it done so earlier, this would have obviated the need for the hearing.

It appears to me that the payment was prompted and made in response to the application.

The discovery that money had been paid to the fifth respondent to clear the sugar led the applicant to withdraw its application. It would have been potentially abusive conduct for the applicant to proceed with an application that served no purpose.

I am of the view, that, the applicant is not liable for the untimely termination of the application.

There is no suggestion that the applicant abused court process. The applicant used the procedures permitted by the rules of court to facilitate the pursuit of the truth. The applicant achieved its objective of trying to compel the first respondent to pay up its licenses and permits and duty so that the sugar could be removed from its depot.

In that regard, the applicant was the successful party.

The respondent, on the other, had been clearly at fault for failing to disclose developments that were taking place timeously.

The applicant was the successful party and that fact, in my view, constitutes 'very good reason' for depriving the first respondent of its costs.

The applicant is entitled to the costs of this application. The applicant has been put out of pocket by having to compel the respondent to clear its sugar. The first respondent has been unable to justify its claim for costs.

Costs follow the event.

The applicants have asked for costs on the ordinary scale. In the result, it is ordered as follows:

The application is dismissed. The first respondent is to pay the costs of this application.

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details....,.

(c) The Relief Sought

The applicant's draft order was couched thus:

“TERMS OF FINAL ORDER SOUGHT

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

1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief:

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

But, there was a problem with that.

From the papers, it was not Phillip Chiyangwa's company that was doing the harm complained of - it was him personally.

But, he was not a party to the application.

Secondly, and more importantly, what really was being sought was an interdict to stop Phillip Chiyangwa from making police reports against the applicant's Management Committee.

There was attached to the founding affidavit, a document headlined “WANTED BY POLICE”.

Below were pictures of six named individuals and six other names without pictures to them. The six pictures included that of the deponent to the founding affidavit, one Benny Tangai Matenga (“Matenga”).

According to the applicant, the pictured and named individuals were the applicant's Management Committee.

The document offered a reward to anyone who reported them to the police.

However, before me, there was no telling whether the document had been from Phillip Chiyangwa himself or the police.

Also attached to the applicant's papers was another document headlined “PUBLIC NOTICE - WARNING MBAVHA KU SOUTHLEA PARK.”

“Mbavha” is Shona for thief or thieves.

In essence, the document informed the public, that, it had come to the attention of the first respondent that the named individuals, and other “unscrupulous” elements, were illegally selling residential Stands to unsuspecting members of the public.

The document said a report had been made to the police and that only the company could legitimately issue title deeds over the property.

In his affidavit, Phillip Chiyangwa said those individuals were the so-called land barons who had illegally sold off pieces of land from his company's property and whom he had reported to the police.

The point is: it is everyone's right to report what they may perceive to be criminal conduct.

The interim order sought was manifestly incompetent.

In substance, it was sought to gag someone from exercising his right or freedom.

Although not really conceding the point, counsel for the applicant seemed to appreciate the difficulty.

She sought to amend the draft order so that the interdict would read something like this:

“…, to restrain the first respondent from interfering with the applicant's operations at the property; or disposing of any Stands thereon and from harassing the applicant's members and from publishing any false statements pending the determination of the main case….,.”

The first respondent opposed the proposed amendment.

Among other things, counsel for the first respondent pointed out, that, it was the applicant, not the respondents, that was selling off units of land.

In my view, the proposed amendment still amounted to the same thing.

The applicant's real case was that it was for Government to answer why it was ditching its members.

But, no relief was being sought against the Government.

Furthermore, other than the two documents aforesaid, and the single allegation in the founding affidavit to the effect, that, such documents had been flighted in the media by the first respondent, there was nothing else said or shown that amounted to harassment.

There was simply a disconnection between what the application said or highlighted in its application, and the relief sought in the draft order.

Such defect was incurable.

That was yet another reason why I refused to deal with the application.

(d) Falsehoods or material facts concealed

The applicant blatantly neglected to take the court into its confidence. Material facts were omitted from the founding papers.

This was fully exposed and exploited by the first respondent - with fatal consequences.

One example stuck out prominently.

As summarised above, the applicant condemned the Government for, as it were “selling” out to Phillip Chiyangwa.

The applicant did not recognise Phillip Chiyangwa or his company.

The applicant's position was that its members would pay compensation to no one else other than the Government.

The applicant's case, particularly that for urgency, was that it was only after the Government had surreptitiously issued title to Phillip Chiyangwa's company, on 8 July 2015, that it had finally become aware of the Government's sinister dealings.

That was what had triggered the urgent chamber application a week later.

To expose the falsehoods, the first respondent produced several correspondence and documents.

These showed, that, as far back as December 2014, the Government had written to the first respondent, inter alia, confirming its resolution to hand over the property back to it and advising that the first respondent would now receive its compensation directly from the applicant.

The first respondent, had, in turn, copied that letter to the applicant some five days later.

In answer to that, the applicant claimed not to have received the correspondence.

However, it admitted that it had received an agreement, dated 15 April 2015, between the Government and the first respondent.

That agreement was to the same effect as the correspondence.

In fact, it was more elaborate.

It explained the background to the devolution of the property from the Zimbabwe Tobacco Association (ZTA) to the first respondent. It explained how the first respondent would develop the property and receive compensation directly from the applicant, and how the Government would issue a Deed of Grant over the property in favour of the first respondent to facilitate the raising of capital for the developments intended, etc.

All that the applicant challenged, in the answering affidavit, was some inconsequential aspect of that agreement.

Its major argument was that the Government was dealing with the first respondent at its own risk because it had an agreement with the applicant over the property.

But, that was not the point.

The point was that such communication or documents had been concealed from me.

Furthermore, if the applicant had become aware of the Government's intention, inter alia, to issue a title deed over the property in favour of the first respondent as far back as, according to the applicant itself, mid-April 2015; how could the matter then suddenly become urgent only in mid-July 2015 when the applicant finally filed the urgent chamber application?

There was more.

The first respondent produced a sample of the correspondence signed by Benny Tangai Matenga, in February 2015, to members of the consortium.

The letters, referenced “PAYMENT OF COMPENSATION TO SENSENE INVESTMENTS (PVT) LTD” advised that the Government and the first respondent had settled the issue of ownership.

The applicant, itself, was confirming, that, indeed, the first respondent now owned Ordar Farm.

In the circumstances, the applicant's members were being directed to now pay compensation directly to the first respondent.

By all accounts, such correspondence damned the applicant's case.

So, anyone would naturally be curious what the applicant's answer to that could be.

Benny Tangai Matenga had an answer.

He claimed, in the answering affidavit, and in yet another affidavit attached to the answering affidavit, that, he had signed those letters, as it were, at gun point!

He said he had written them without consulting the applicant's Management Committee because a “representative” of the first respondent had stood over him demanding that he signed the letters!

The representative was not named.

Plainly, that was puerile.

At any rate, it was beside the point. The point was that such material correspondence and documents had not been disclosed.

Asked to explain, counsel for the applicant retorted what purpose disclosure would have served.

But, she could not possibly have been serious.

There was yet other more relevant and material letters that the applicant had concealed.

It turned out, that, the applicant had engaged more than one law firm over the issue of, inter alia, the level of compensation payable to Phillip Chiyangwa's company.

One of those law firms, Sawyer & Mkushi, had written to the Government on 28 April 2015.

On 30 April 2015, the Government had replied, advising the lawyers to deal directly with the first respondent to whom the property had been handed back.

The other law firm was Tamuka Moyo Attorneys.

On 6 July 2015, they had written directly to Phillip Chiyangwa, making substantial proposals on, inter alia, the level of compensation the applicant wished to pay him.

The letter clearly accepted, that, the first respondent was the owner of the property.

In the penultimate paragraph, the letter expressed gratitude to Phillip Chiyangwa for the good faith that he had demonstrated towards the applicant.

6 July 2015 was, of course, a mere one week before the urgent chamber application was launched.

Once again, the letters to or from the law firms aforesaid were quite damaging of the applicant's case.

So, again, one was curious what the applicant's answer would be.

It had an answer.

Of the Government's letter to Sawyer & Mkushi, Benny Tangai Matenga said the letter was “invalid” because the first respondent was not a party to the agreement between the applicant and the Government!

Of the letter from Tamuka Moyo Attorneys to Phillip Chiyangwa, Benny Tangai Matenga said the proposals on compensation therein were meant to put the issue of compensation to rest!

Demonstrably, the applicant was ill-advised.

As I dismissed the application, I mentioned that if costs de bonis propriis had been prayed for, I would have seriously considered the request.

HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA
Ruled By: GOWORA J

The second defendant was candid enough to admit that he was the alter ego of the first defendant.

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

The applicants applied for a decree of perpetual silence against the respondents.

They submitted, that, these constituted a nuisance to them. The respondents, they said, took them to the Magistrates courts, this court, and the Supreme Court with no end in sight. They stated, that, the respondents took them to court on not less than forty (40) occasions. They averred, that, they have been subjected to a series of abusive criminal and civil proceedings. They said, despite repeated dismissal of their claims by the courts, the respondents maintained the position, that, the judgments which were entered against them were ineffectual. They complained that the respondents were harassing and vexing them. They insisted that the court should protect them as well as itself from the abusive conduct of the respondents. They moved the court to grant them the decree.

The respondents opposed the application.

They moved the court to examine the cases which formed the basis of the application in relation to their cause.

They denied that they were always in the driving seat when the cases which the applicants made reference to found their way to the court(s). They stated, that, the applicants filed some of the cases with the court(s). They said all the cases upon which the current application rests had a bearing on a mine tribute agreement which the fourth applicant (John Richard Needham Groves) concluded with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd). The fourth applicant, they said, concluded the tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd [“the company”].

They submitted, that, they should not be silenced for their effort to assert their right in the tribute agreement. They moved the court to dismiss the application with costs.

At the centre of the parties dispute is Dodge Mine [“the mine”]. It lies in Shamva District under Mashonaland Central Province. It has six claims. These are lucrative, according to the evidence filed of record.

The fourth applicant and his partner used to own and work the mine. They worked it under the name Chiroswa Syndicate. The fourth applicant later sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). This was after his partner had left the syndicate. The first applicant is currently the owner of the mine.

The issue of the mine has seen the parties take each other to court on thirty (30), and not forty (40) occasions.

The applicants filed actions and/or applications against the respondents on nine (9) occasions. The respondents filed actions and/or applications on sixteen (16) occasions. The following five (5) cases were not accounted for: HC233/13, HC5669/13, HC5460/13, HC6842/14 and HC308/12.

The court could not tell which party filed what action or application in respect of the mentioned five (5) cases. What it could tell, however, was that the parties have been in and out of courts on thirty (30) occasions.

The relief which the applicants moved the court to grant to them is not new to the jurisdiction of this court.

In Mhini v Mupedzamombe 1999 (1) ZLR 561…, GARWE J…, had the occasion to deal with an issue which was similar to the present one. The learned judge quoted with approval what CURLEWIS J said in Brown v Simon 1905 TS 311…, wherein he remarked that the procedure:

“…, affords a useful means of bringing to a conclusion all threatened actions, and, in our opinion, it is applicable under due safeguards not only to cases where a claim has been made or an action threatened publicly, but, to every case where by demand or threatened action there has been a disturbance of, or interference with, the quiet enjoyment of another's rights.”…,.

In Corderoy v Union Government [Minister of Finance] 1918 AD 512, which GARWE J was pleased to make reference to in Mhini v Mupedzamombe 1999 (1) ZLR 561, the South African Appellate Division held, that, when there has been repeated and persistent litigation between the same parties, in the same cause of action, and in respect of the same subject–matter, the court can make a general order prohibiting the institution of such litigation without the leave of the court, but, that power extended only to prevent abuse of its own process without being concerned with the process of other courts.

The paucity of case authorities on the current subject is ample evidence of the fact that the relief, whilst recognised at law, is seldom resorted to.

It is only granted where a party succeeds in showing the court, that, the defendant or respondent is a serial litigator who has the tendency to abuse not only the court but also its process and his adversary.

It is important for the court to examine and establish the fact of whether or not the respondents fall into the category of serial litigators who abuse the applicants, the court(s), and their processes.

The dispute of the parties has its origin in the judgment of PATEL J…,.

The learned judge had the occasion to hear and determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the company”] and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) brought before him under case number HH2612/11. The company and the second respondent had sued the following three parties – the Minister of Mines, one Morris Tendayi Nyakudya and the latter's company, Vambo Mills (Pvt) Ltd. They succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted from the mine where they were operating in terms of an expired tribute agreement. They successfully moved the court to order the Minister of Mines to refer the tribute agreement, which they had concluded between them, to the Commissioner of Mines for approval and registration.

A reading of PATEL J's judgment, under HH261-11, tends to suggest, that, it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd. It is also not a far-fetched suggestion, that, Chiroswa Mills (Pvt) Ltd moved to enter into the second tribute agreement of the mine with the second respondent.

The abovementioned observations find support from the fact, that, it is Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from the mine. The company worked hand-in-glove with the second respondent to achieve its desired end-in-view.

The impression which the company created in the mind of the respondents, at the time, was that it owned the mine. It could not successfully evict those from the same if it was not the owner of the mine. It would have had no locus standi to do so.

It is common cause, that, the fourth applicant (John Richard Needham Groves) owned Chiroswa Minerals (Pvt) Ltd. He, in appreciation of his good working relationship with the first respondent (Peter Valentine), donated 50% of his shares in the company to the first respondent. The first respondent, it is not in dispute, was or is the Managing Director of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The above observed matters do, in the court's view, account for the misunderstanding which later ensued between the fourth applicant (John Richard Needham Groves) and the respondents (Peter Valentine and Base Mineral Zimbabwe (Pvt) Ltd).

These, the first respondent in particular, must have laboured under the genuine but mistaken belief that they, or he, as a 50% holder of shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not only in the company but also in the mine which the company owned.

The first respondent's belief in the mentioned regard finds support from a reading of MATANDA-MOYO J's judgment under case number HH557-14.

The first respondent (Peter Valentine) had, in the case, sued the first, second and fourth applicants (Mabwe Minerals (Pvt) Ltd, Tapiwa Gurupira and John Richard Needham Groves). He moved the court to set aside the agreement of sale of the mine which the fourth applicant had concluded with the first and the second applicants. He claimed that he owned 50% of the mine. He challenged his omission from participating in the sale of the mine. He insisted that the sale was, on the mentioned basis, null and void and had, therefore, to be set aside.

It is such belief, as has been stated in the foregoing paragraphs, which caused the respondents to file one suit after another with the courts.

They worked on the impression which had been created. They believed that they, or one of them, owned 50% of the shares in the company which owned the mine. They, therefore, made every effort to assert what they believed belonged to them.

The respondents belief was shattered when MATANDA-MOYO J ruled, to their disappointment, that, Chiroswa Syndicate, and not Chiroswa Minerals (Pvt) Ltd, owned the mine.

The respondents could not, under the stated circumstances, be said to have engaged themselves in a wild goose chase, as it were. They honestly believed, in the court's view, that, they were pursuing a genuine cause. They believed, further, that, the fourth applicant (John Richard Needham Groves) and the company were treating them unfairly. They, therefore, made effort to have their case determined by the courts.

The respondents unrelenting effort to assert their right, in what they believed belonged to them, took their case to a higher level in 2013.

In a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent filed under case number HC5208/13, TAKUVA J remained alive to the judgment which PATEL J delivered under HH261-11.

The learned judge ordered the Minister of Mines, one Obert Mpofu, and the Commissioner of Mines, a Mrs E Kahonde, to process the tribute agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) concluded as at the time of PATEL J's judgment and to have the same registered at the offices of the Mining Commissioner.

The order contained a stiff sanction which the Minister and the Commissioner would suffer if they did not comply with it. They would each be held to have been in contempt of court and be committed to thirty (30) days imprisonment.

It was as a result of TAKUVA J's order that the Mining Commissioner did, on 13 February 2014, register a tribute agreement in favour of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The fourth applicant represented the company and Chiroswa Syndicate in the tribute agreement which the parties registered with the Mining Commissioner. The first respondent represented the second in the same. The tribute was or is to endure for a period of three years. It would, therefore, expire on 13 February 2017.

Given the above described set of circumstances, it would be difficult, if not impossible, for one to suggest, as the applicants did, that the respondents were or are a nuisance to them.

The applicants, the fourth applicant in particular (John Richard Needham Groves), conveyed an impression to the respondents. These believed him, only to discover, at a later stage, that, he was hunting with the hounds and running with the hares, so to speak.

He dined and wined with them, as it were. He later switched his allegiance from them and proceeded to work with the applicants against them.

The fourth applicant was undoubtedly the main cause of the parties misunderstanding.

He, through his Chiroswa Minerals (Pvt) Ltd, worked with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) to evict persons who were at the mine from the same. He agreed to enter into a tribute agreement of the mine with the second respondent. He sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). He sold his 50% shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant (Tag Minerals Zimbabwe (Pvt) Ltd).

He consulted no one in this complicated matrix which he created, not for himself, but for the respondents.

The court was not amused by the fourth applicant's manner of dealing with his business partners.

It viewed the applicants effort to conceal certain matters from it with serious disquiet.

They attached to the application a wrong tribute agreement. The agreement showed its life span as commencing on 14 December 2011 and expiring on 14 December 2014. They did not make any reference to the correct tribute agreement which was registered at the Mining Commissioner's offices on 13 February 2014. They plucked off the last page of PATEL J's judgment i.e. the page on which the learned judge's order was recorded. They made an effort not to disclose the existence of TAKUVA J's order under HC5208/13.

In acting as they did, the applicants aim and object were to paint the picture which showed, that, the respondents were a rogue element which must be placed under leash all the time, so to speak.

They, unfortunately for themselves, over-did their trick to a point where their story remained difficult, if not impossible, to believe.

They were ably legally represented in this and other actions or applications. Their legal practitioner should have been more candid with the court than he did.

The court, therefore, viewed the conduct of the applicants and their legal practitioner with displeasure.

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

The first applicant was a duly registered co-operative society. The parties to this matter were two factions of its membership.

The one faction comprised applicants 2 to 6 (Never Kowo, Keri Mhute, Andrew Marauka, Charles Matapo and Jotamu Nkala).

The other was respondents 1 to 5 (Simba Moyo, Enesia Gutu, Elizabeth Gutu, Lloyd Hamamuti and Austin Hove).

Both sides were fighting for the control of the first applicant (Nehanda Housing Co-operative Society).

Both claimed to be the legitimate management committee of the first applicant. Both claimed to have been duly installed in office following due process.

For applicants 2 to 6, their claim to office was an alleged election allegedly won by them in September 2014. For the respondents, their claim to office was an alleged vote of no confidence against applicants 2 to 6 allegedly passed by the majority of the first applicant's members in April 2015.

The case before me was the return date of a provisional order issued by this court [per TAGU J] on 27 June 2015. It read [words in parenthesis added to somewhat straighten it out]:

“TERMS OF [FINAL] ORDER SOUGHT

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

1. That 1st to 5th respondents be and are hereby interdicted, restrained, and barred from conducting themselves as the managing committee of the 1st applicant pending the finalization of the Supreme [Court] Case No. SC267/15.

2. The 1st to 5th respondents jointly and severally with [the] one paying [and] the other[s] to be absolved be and are hereby ordered to pay [the] cost[s] of this application [on an] attorney and client scale.

INTERIM RELIEF GRANTED

1. Pending the finalization of this provisional order, the 1st to 5th respondents be and are hereby interdicted, barred, and restrained from holding any meetings for the purposes of running or deliberating on the management/or affairs of the applicants.”

During argument, it was apparent to me, that, the fight had nothing to do with the interests of the first applicant per se. It had everything to do with the protection of individual interests and the preservation of egos.

The interests of the first applicant seemed to have been consigned to the periphery.

Even though both sides purported to canvass the requirements for an interdict, namely, a prima facie or clear right; a well-grounded apprehension of an irreparable harm; an absence of an alternative remedy; and the balance of convenience should the interdict be granted or refused [see Setlogelo v Setlogelo 1914 AD 221…,.; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 [1] ZLR 289 [SC]…,; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR 234 [H]…,.] it was clear to me, that, this was a mere perfunctory exercise.

I wondered how, if the focus of the legal contest was really the first applicant, either of the parties could legitimately claim a right that could be harmed irreparably, with no other alternative remedy and how the balance of convenience could be said to favour either of them were I to confirm or discharge the provisional order.

It was just not adding up.

But, the protagonists having come to court, the outcome would have to be either win or lose, for one or other of them.

However, before reaching that point of finality, I suggested an alternative course of action, which, if acceptable and followed through, could produce an outcome that should be acceptable or binding to all.

It was this.

Could both sides consider going back and hold a fresh election within a reasonable period of time, say ten days from the date of any directive that I might give, and the winners of such an election be accepted as the legitimate management committee of the first applicant?

The modalities of running such an election could always be worked out later on if the suggestion was acceptable in principle.

At first, my suggestion was, through counsel, enthusiastically accepted by both sides. So, the matter was adjourned to another day to allow for further consultations and the crafting of an order by consent.

On resumption, a further postponement was sought and granted for the purposes of putting final touches to the Deed of Settlement and the draft consent order.

However, as a precautionary measure, I insisted on a deadline for the filing of the draft order by consent failing which I would hand down my decision on the merits.

I told the parties that I had come to a decision on the merits but that I would much rather defer it to their Deed of Settlement.

It is always preferable for litigants to settle their disputes amicably rather than through a court order which neither party might find palatable.

Thus, it was agreed, that, unless the Deed of Settlement was filed by 4 December 2015, I would proceed to hand down my judgment.

However, well before that date, I received communication to the effect, that, there was no chance of an out of court settlement as the parties were wide apart from each other, and that, therefore, they would be most happy to receive my judgment on the merits.

So, this here is my judgment on the merits.

I found the conduct of the applicants unacceptable. I am referring to the applicants 2 to 5 (Never Kowo, Keri Mhute, Andrew Marauka and Charles Matapo).

The first applicant, the soul for which both sides were fighting to control, had nothing to do with this wrangle.

The applicants conduct, that I found unacceptable, was that they were guilty of forum shopping and material non-disclosure.

The provisional order by TAGU J, on 27 June 2015, the confirmation for which was before me, was the second in a space of twenty-two or so days.

On 4 May 2015, this court, per MATANDA-MOYO J, had dismissed the same application.

The applicants did not disclose this in their founding papers. So, the learned TAGU J must obviously have been unaware of this information when he granted the provisional order.

I was told, that, the respondents were by then not represented. They had filed no opposing papers. They only did so afterwards when they were opposing the confirmation.

In my view, a party that conceals material information must be unworthy of the protection or assistance of the court. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter - even those that you may perceive to be adverse to the relief that you seek.

As long ago as 1849, an English judge, WIGRAM VC, put it this way in a case, Castelli v Cook (1849) 7 Hare 89, 94, that was cited with approval in the English case of Rex v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de Polignac (1917) 1 KB 486…,:

“A plaintiff applying ex parte comes…, under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go.”

In Ex Parte Princes Edmond de Polignac (1917) 1 KB 486, the applicant, a wealthy American lady who had been twice married to French subjects and was domiciled in France, had obtained an injunction against the collectors of revenue in Kensington, one of the parishes in England. The basis of the injunction had been that she was neither domiciled nor ordinarily resident in England, but Paris, France; and that the house, in a certain locality in that parish, which she frequently visited as her brother's guest for very short periods of time, allegedly not exceeding six months per any one visit, and upon which the local collectors of revenue had based her liability for income tax, was, in fact, owned by her brother. However, a former employee of her solicitors who had been disgruntled for having lost his job, hit back by supplying the collectors of revenue with information and documents showing that the house was practically owned by the lady and that the brother was no more than a mere front.

The information that subsequently came to light, and which the lady was subsequently forced to admit, was that, among other things, she had been the one that had provided the purchase price for the house; she had been the one that had bought the furniture in it; she had been the one that had paid all the rates and taxes for the property; she had been the one that maintained it on a regular basis; and that she had been the one that received the rentals from it.

On the return date, the King's Bench Division refused to hear the matter on the merits and discharged the rule nisi on the basis that the lady had concealed material facts when she had obtained the injunction ex parte.

VISCOUNT READING CJ, delivering the judgment of the court, said…,.:

“Where an ex parte application has been made to this Court for a rule nisi or other process, if the court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but, stated them in such a way as to mislead the Court as to the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits.

This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived.

Before coming to this conclusion, a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts.

But, if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then, it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.”

The applicant appealed. But she lost. The decision of the King's Bench Division was confirmed.

It was stressed by the Court of Appeal, that, it was incumbent, in an ex parte application, that, the applicant should make the fullest possible disclosure of all relevant facts, failing which he cannot obtain any advantage from the proceedings and that he will be deprived of any advantage he may have already obtained.

The court further said, that, an application for a special injunction is governed by the same principles which govern insurances. Both are matters that require the utmost degree of good faith or uberrima fides.

In the case of insurance, if the insured should conceal anything that may influence the rate of premium, whether or not he is conscious of it, the policy is entirely vitiated.

The same applies to applications for injunctions made ex parte. Failure to disclose material facts disentitles the applicant to the relief which he seeks, or dis-entitles him to keep the one he had already obtained. The court will not go into the merits.

It is also the law in South Africa, that, the utmost good faith must be observed by litigants making ex parte applications by placing before the court material facts that might affect the granting of the provisional order: see HERBSTEIN & VAN WINSEN, The Civil Practice of the High Courts of South Africa 5th ed. Vol 1…,.; De Jager v Heilbron & Ors 1947 [2] SA 415; Schlesinger v Schlesinger 1979 [4] 342…,.; and MV Rizcun Trader [4] MV Rizcun Trader v Manley Appledore Shipping Ltd 2000 [3] SA 776 [C].

In casu, the applicants do not seem to have learnt a lesson.

MATANDA-MOYO J dismissed their first urgent chamber application for non-disclosure of material facts. They had concealed the fact, that, the respondents claim to office was on the basis of the vote of no confidence of April 2015. At p3 of the cyclostyled judgment, Her Ladyship said this:

“The applicants have not been candid with this court in the present application. They distorted the facts. The applicants were aware that an emergency meeting was called for, on 24 April 2015, where a vote of no confidence was passed on the second to the sixth applicants, but, decided to mislead this court by submitting that the first to fifth respondents 'unlawfully declared themselves the new management committee for the first applicant.' Such facts were not correct. In the hearing, it also became apparent, that, the second to the sixth applicants were advised of the meeting but decided not to attend.”

It seems the learned judge found nothing wrong with the vote of no confidence. Among other things, she found, that, the meeting that passed it had been properly convened and properly constituted in terms of the Co-operative Societies Act [Chapter 24: 05]. She then concluded as follows:

“The withholding of such information, by the applicants, was a ploy to mislead this court and to keep this court in the dark and trying to make this court believe that the first to the fifth respondents simply woke up and declared themselves the new management committee of the first applicant through a newspaper article of 29 April 2015. It is settled law, that, a person who approaches the court for relief ought to be candid with the court. Such an applicant ought to disclose all the material or important facts and refrain from suppressing facts within his knowledge. Once found out, such an applicant ought to be denied the relief sought.”

The learned judge then cited the case of Rex v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de Polignac (1917) 1 KB 486 as authority for her decision to dispense with the merits of the dispute.

However, with all due respect to my learned sister judge, the principle laid down in Rex v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de Polignac (1917) 1 KB 486, the English authority…, related to ex parte applications, not ordinary court applications or chamber applications on notice of motion.

An ex parte application is one made in the absence of the party who will be affected by the order that the court is asked to grant. It is in respect of such applications that the uberrima fides rule was said to apply.

In Schlesinger v Schlesinger 1979 [4] 342, it was said…, there are three principles of the uberrima fides rule as they apply to ex parte applications, namely:

[1] That all the material facts which might influence the court in coming to a decision must be disclosed;

[2] That non-disclosure, or suppression of such facts need not be wilful or mala fide to incur the penalty of rescission of the order obtained ex parte; and

[3] That the court, on being apprised of the true facts, has a discretion to confirm or discharge the provisional order.

In Trakman NO v Livshitz 1995 [1] SA 282 [A] the South African Appellate Division refused to extend the uberrima fides rule of ex parte applications to ordinary opposed motion proceedings on the basis there was no authority for such an extension and that there was no sound reason for doing so. The court said opposed motion proceedings could not be dismissed solely on the ground that the applicant had failed to disclose fully or fairly all material facts.

Delivering the judgment of the five judges of the Appellate Division, SMALLBERGER JA said…,.:

“It is trite law that in ex parte applications the utmost good faith must be observed by an applicant. A failure to disclose fully and fairly all material facts known to him (or her) may lead, in the exercise of the Court's discretion, to the dismissal of the application on that ground alone: see, for example, Estate Logie v Priest 1926 AD 312; Schlesinger v Schlesinger 1979 [4] SA 342 [W] at 348E–350B].

I know of no authority, and Mr Pincus was unable to refer us to any, which extends that principle to motion proceedings and would justify the dismissal of an opposed application [irrespective of the merits thereof] for the reasons given by the Judge a quo.

The reasons given by the Judge a quo, ROUX J, were, at p286H–I of the Appellate Division's judgment:

'There is a further consideration which relates to both the facts of the review and costs. Since May 1986, the applicant [appellant] and his attorney, Kruger, have had intimate and, as far as the other litigants are concerned, exclusive knowledge of the cession. On his own, or on Kruger's advice, the applicant has misled this Court by his silence. This silence becomes all the more sinister when the delaying tactics of the applicant, as plaintiff, are taken into account. I need not list all the procrastinations. There is ample evidence before me to show sinister motives. The failure to disclose the cession for six years is inexcusable. This failure is only consistent with dishonesty. When dishonesty is harnessed to mislead the Court, to harass the other litigants, and to obtain undue advantage it will be met with the sternest disapproval. Because of his behaviour, I would also dismiss the application....,.'

Nor is there any sound reason for so extending the principle.

Material non-disclosure, mala fides, dishonesty, and the like, in relation to motion proceedings may, and in most instances, should be dealt with by making an adverse or punitive order as to costs but cannot, in my view, serve to deny a litigant relief to which he would otherwise have been entitled. No justification therefore existed for the dismissal of the application on the alternative basis.”

In that case, the court a quo had dismissed an application for review on the ground that the applicant lacked locus standi because he had already ceded his rights of action to someone else. His argument, that there had been a re-cession of the cause of action back to him, had been dismissed by the court as a lie.

The court had also dismissed, as shown above, the application, on the alternative basis of non-disclosure of material facts, namely, the cession of rights aforesaid.

With due respect, I have found the approach of the South African Appellate Division in Trakman NO v Livshitz 1995 [1] SA 282 [A] non-persuasive.

I am mindful that it was a decision of five judges of appeal.

But, with all due respect, I have found no cogent justification for restricting the uberrima fides rule strictly to ex parte applications only.

The Appellate Court said there was no sound reason to extend the principle to ordinary motion proceedings. But, I also find none for not extending it either.

In my view, the underlying reason why an applicant may be non-suited where he conceals material information from the court, as VISCOUNT READING CJ said in Ex Parte Princes Edmond de Polignac (1917) 1 KB 486, is to protect the court itself.

That is, in my view, to protect its integrity. It is to prevent an abuse of its process.

There are several instances when a litigant's infraction or misconduct is so gross as to warrant the court withdrawing its jurisdiction altogether, in spite of the inherent power reposed in it to punish such misconduct by a punitive order of costs: for example, a litigant coming to court with dirty hands has no right of audience; a litigant guilty of contempt of court may not be heard; a litigant that continuously overburdens the courts with endless frivolous or spurious suits may be silenced perpetually.

In my view, the court's decision, to refuse to entertain a matter on the merits because of some wrong done by the petitioning litigant, must, to a large extent, depend on the nature of the litigant's misconduct and the circumstances surrounding it.

In Trakman NO v Livshitz 1995 [1] SA 282 [A], it turned out that the issue of the cession, although not disclosed in the court a quo, had been common knowledge, not only to the litigants themselves, but also to virtually all the other interested parties. That the cession had not been disclosed had not been an issue for contest. It had not been fully debated. Only the aspect of locus standi had been an issue.

Thus, in my view, the non-disclosure of the cession had not been such a material aspect as would have forfeited the applicant's right to be heard on the merits.

In contrast, in the present matter, not only did the applicants conceal before TAGU J the question of the vote of no confidence against them, but also, and crucially, the fact that some twenty-two days before, this same court, per MATANDA-MOYO J, had dismissed the same application on the basis, it seems, of the same failure to disclose the aspect of the vote of no confidence.

Because of that non-disclosure, what the applicants had initially failed to get before MATANDA-MOYO J they had subsequently got before TAGU J.

This, to me, amounted to forum-shopping.

It was conduct that, in my view, was so culpably iniquitous as to forfeit the applicants right to be heard on the merits. It was conduct that gnawed right at the heart of the integrity of the court.

Furthermore, in an urgent chamber application under Order 32 of the Rules of this court, particularly one accompanied by a certificate of urgency as prescribed by Rule 242(2)(b), a judge may well decide the case solely on the basis of the applicant's papers if he is satisfied that the matter is indeed urgent and that a prima facie case for relief has been made out.

The respondent's right to be heard, in terms of the audi alteram partem rule of natural justice, may be deferred to the return date: but, immeasurable damage may be caused if the applicant's papers are misleading by reason of, for example, a material non-disclosure.

The almost inflexible rule of practice by the judges of this court, to invariably insist on service of the urgent chamber application on the respondent before the matter is heard, does not absolve the applicant from disclosing all the material facts surrounding the dispute.

Therefore, I would discharge the provisional order of this court, on 27 June 2015, on the basis of non-disclosure of material facts by the applicant and without going into the merits.

View Appeal
HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

On 22 April 2015, the plaintiff issued summons out of this court seeking the following order against the defendant:

“(1) An order confirming null and void the purported agreement of sale signed by the plaintiff and defendant on the 12th January 2010 in respect of Umguza 100 Acre Lot 5A for want of a subdivisions permit at the material time, and, in any event, and in the alternative, for defendant's breach of the terms and conditions of the agreement of sale.

(2) An order for the eviction of the defendant and all those claiming rights after him from Umguza 100 Acre Lot 5A currently occupied by the defendant on the basis of a null and void agreement of sale.

(3) Payment of the sum of US$18,000 being reasonable rental and unjust enrichment arising from defendant's occupation of Umguza 100 Acre Lot 5A from March 2010 to April 2015.

(4) An order for holdover damages at the rate of US$10 per day being reasonable rental for the portion of Umguza 100 Acre Lot 5A currently occupied by the defendant calculated from the 1st May 2015 to date of vacation, both days included.

(5) Costs of suit on a higher scale.”

Upon being served with the summons, and after indicating his intention to defend the action, the defendant, in his plea, flatly denied any form of liability and sought the dismissal of the plaintiff's claim with costs at a punitive scale.

In addition, the defendant counter claimed on the basis of unjust enrichment and sought an order against the defendant in the following terms:

“1. Payment in the sum of US$19,000 together with such payment as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.

2. A refund of all the money used by the defendant in drawing electricity to the plaintiff's homestead and applying for a subdivision permit.

3. Interest on all sums at the prescribed rate of 5% per annum with effect from the date of issue of summons to date of payment in full.

4. Costs of suit at an attorney and client's scale.”

THE FACTS OF THE CASE

The following facts are not in dispute in this case:

By a Deed of Sale signed by both parties on 26 January 2010, the plaintiff sold to the defendant 10 acres of land being part of 100 Acre of Lot 5A, Umguza District on certain terms and conditions outlined in the deed.

At the time the parties signed the agreement of sale, there was no subdivision of the land in question as required by section 40 of the Regional, Town and Country Planning Act [Chapter 29:12], thus rendering the agreement null and void from its inception.

As fate would have it, the parties ran into problems with their agreement, with allegations and counter allegations mounted against each other.

Under cases referenced HC491/11 and HC2828/12 both parties initiated civil action against each other over the invalid agreement.

Confusion reigned.

Both parties ended up withdrawing the civil suits against each other leaving the instant case to resolve their differences and provide some direction.

THE EVIDENCE

The evidence in this trial centred on the testimonies of the two protagonists aided by some documentary exhibits to strengthen each other's position. I proceed to deal with that.

THE PLAINTIFF'S EVIDENCE

The plaintiff, who was aged 94 years at the time he gave evidence in court, was in full control of his faculties and did not seem to show any sign of struggling due to his advanced age.

The witness gave a detailed narrative of his relationship with the defendant, whom he regarded as his “child”. He chronicled how he entered into an agreement of sale (exhibit 1 of Annexure 1) on 26 January 2010. The witness told the court, that, pursuant to the signing of the agreement and the payment of the initial US$10,000 (ten thousand) dollars, he allowed the defendant to commence construction on the purchased property.

He said it was part of the agreement that the defendant would pay expenses related to the processing of the subdivision permit.

The witness said he wanted the defendant to pay him $350 per month as rentals for staying and conducting his farming activities at the plot which was the subject of the sale agreement.

He said when they ran into problems with their agreement, owing to the defendant's failure to comply with their agreement, he wanted him to be evicted from the plot and the defendant's response was to report him to the police.

When the witness's attention was drawn to the fact that the defendant was alleging to have made improvements for which he had been enriched and therefore wanted to be compensated, he said that the improvements had not benefited him and that the defendant was free to destroy such improvements.

The witness confirmed the improvements consisted, inter alia, of two dwelling houses, the second one of which the defendant had constructed against his will. The witness further told the court, that, in installing electricity, the defendant had used substandard poles which got rotten, and, he concluded his evidence in chief by suggesting that the defendant had cheated him.

Under cross-examination from the defendant's counsel, the plaintiff confirmed that he and the defendant had signed the sale agreement in 2010 and that as a result of that, the defendant had carried out visible improvements on the purchased property.

The witness also confirmed, that, other than the sale agreement, he had not signed any lease agreement with the defendant.

When questioned about the borehole on the property, the witness was emphatic that it was him who had sunk it and that all the defendant did was merely to have it flushed.

On further cross-examination, the witness could not dispute that the houses built by the defendant had electricity installed by the defendant.

When the valuations of the improvements done by the defendant were brought to his attention, the plaintiff was unable to challenge same. The best the plaintiff could say on the valuations was;

“He did that on his own volition. I did not tell him to make such developments. There is a letter which says there should be no development until the case is over.”

The plaintiff's cross examination was concluded by an admission, that, when he concluded the agreement of sale with the defendant, he was fully aware that he did not have a sub-division permit.

When his attention was drawn to his arbortive attempt to obtain a subdivision permit in 2000, almost 10 year before signing the agreement with the defendant, the plaintiff denied having applied for such permit, and sought to argue that the only permit he had applied for was for the southern side of his plot.

THE DEFENDANT'S EVIDENCE

The defendant commenced his evidence by highlighting the cordial relationship which he had enjoyed with the plaintiff prior to entering into this agreement of sale with him.

He indicated, that, in order to raise the money to buy this particular plot, he had to dispose of his smaller 6 acre piece of land. The defendant told the court, that, after paying the initial agreed sum of US$10,000 (ten thousand United States Dollars), he embarked on the construction of his cottage which was subsequently followed by the main house and electrification of same.

The defendant testified on the difficulties that he had with the plaintiff which were centred on the latter's refusal to receive part of the payment owing to delay.

The defendant, said, owing to the frustrations which he faced as a result of the refusal by the plaintiff to accept payment, he ended up initiating legal proceedings against the plaintiff for breach of contract.

The plaintiff also confirmed the civil suit commenced against him by the defendant and its ultimate withdrawal.

The defendant testified, that, all in all he paid the plaintiff a total of US$19,550 (nineteen thousand five hundred and fifty United Stated Dollars) toward the agreement.

The defendant's further evidence was that he only became aware of the absence of the subdivision permit much later, and when he was well into the agreement, as a result of which he gave the plaintiff US$80 for the facilitation of the permit.

The defendant further stated, that, when he eventually got the subdivision permit, through the plaintiff's legal practitioners, it turned out to be a fake or not authentic document.

He insisted that other than paying for its processing, he had no input into its production and flatly denied ever being involved in the fraudulent acquisition of the sub-division permit.

In his further evidence in chief, he gave a detailed account of the various improvements he made at the “purchased” property and the numerous demands for his eviction made against him by the plaintiff.

The witness said he was prepared to move out of the property as long as he was fully compensated for the improvements made. In his own words, the defendant stated the following as regards his counter claim;

“May the court order that the plaintiff compensates, the reason being that I constructed my house after he had given me permission to do so. I constructed two houses and he was watching me do so. If he says I should vacate the piece of land I will do so by removing what I put there to enable me to construct again at a different place. If he does not end up a destitute or a person of no fixed abode.”

When questioned during his evidence in chief to indicate the improvements he made, the following is what he stated:

“First and foremost, I built a three-bedroomed house (cottage), and, secondly, a three bedroomed main house. I pulled electricity to the house. On that Stand was a dry borehole. I got a company which flushed the borehole. I then bought the pump and the jojo tank which I fixed for the storage of water. That is the water that we are using. The rest of the things have their valuation.”

The witness went further to give the three valuations of the improvements he carried onto the property which he averaged to come up with a figure of US$97,833=33.

The witness emphasized that he had invested all his resources on the property and maintained that if he did not get compensated for such improvements he would end up having no fixed abode.

The defendant was taken through cross examination, part of whose thrust was to challenge him why his (defendant's) lawyer had not suggested to the plaintiff that he was lying, if at all he was misleading the court during his testimony....,.

The defendant was taken to task by the plaintiff's counsel on why his lawyer did not specifically tell the plaintiff that he was lying on certain aspects of his evidence which the defendant disputed in his evidence in chief or in his own cross-examination.

Over my years on the Bench, I have always been marveled by this way of reasoning.

In the first place, a litigant can be a lay person (as in this case), and, when he gives instructions to his counsel he/she does no more than tell a simple story in his own simple understanding. In court, such a litigant has no capacity to frame appropriate questions for his legal practitioner. The legal practitioner, who is properly trained in the field of law, is assumed to know better how to frame his questions for cross-examination.

A simple, untrained litigant has absolutely no control over that process.

More importantly, a court does not require the cross-examination of a party in pointed terms labeling him a liar to make a finding that such a party is indeed a liar. The ultimate decision of finding someone to be a liar is not for the cross-examiner but it is a prerogative of the trier of fact after taking into account all the evidence in that trial.

In fact, in my view, a cross examiner must be slow to label a witness a liar because the trier of fact might see things differently and arrive at a completely different conclusion, which, by implication, might then project the cross-examiner as a liar himself.

As I will demonstrate later in this judgment, contrary to the effort made in this trial to portray the defendant as not worth believing, I found his credibility to be beyond reproach.

The plaintiff was clearly far from convincing.

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

On 11 March 2015, the High Court granted part of the claim sought by Valentine Ziswa and his wife Margaret Ziswa (the cross appellants) against Graeme Shaun Chadwick and Landos (Pvt) Ltd (the cross respondents).

The court a quo dismissed the claims of the cross-appellants as against the second cross-respondent in their entirety and granted part of the claims as against the first cross respondent.

The cross appellants seek a reversal of the dismissal orders issued a quo.

The order issued by the court a quo reads as follows:

“In the result, it is ordered that:

1. The plaintiffs claims against the second defendant are hereby dismissed with costs.

2. The plaintiffs claim (a) against the first defendant succeeds only in the sum of $8,808 which the first defendant is directed to pay the plaintiffs.

3(a) The plaintiffs claim (e) partially succeeds to the extent of the 4km LTC Electric cable while the rest is hereby dismissed.

(b) The first defendant shall pay to the plaintiffs the sum of $84,000 being the replacement value of the LTC electric cable removed from the plaintiffs farm.

4. The first defendant shall pay the plaintiffs the sum of $780 being value of labour hired to clear tobacco stalks and related expenses.

5. The plaintiffs claims (b), (c), (d), (f), (g), (j) and (l) are hereby dismissed.

6. Absolution from the instance is granted in respect of plaintiffs claims (h) and (k).

7. The plaintiffs shall pay 20% of the first defendant's costs of suit.”

The first cross appellant is Valentine Ziswa (Ziswa) while the second cross-appellant is his wife, Margaret Ziswa. I will cumulatively refer to them in this judgment as the lessor.

The first cross-respondent is Graham Shaun Chadwick (Chadwick) and the second cross-respondent is Landos (Pvt) Ltd (the Company).

Graham Shaun Chadwick was a director in Landos (Pvt) Ltd, which he also used as his special purpose vehicle or agent to conduct his farming operations on Ziswa Farm (the farm) and on three other surrounding farms, namely, Gijima, Kelvin, and Landos.

THE BACKGROUND

On 20 March 2015, Graham Shaun Chadwick filed a defective Notice of Appeal against the cross appellants, which did not indicate the part of the judgment he sought to impugn.

He, thereafter, filed a contested chamber application for condonation and extension of time within which to appeal on 11 January 2018, which was dismissed with costs on 21 March 2018.

The effective disposal of the main appeal in this manner left the cross appeal pending.

FACTS

On or before 1 September 2008, Valentine Ziswa and Graham Shaun Chadwick entered into a verbal agreement for the lease of the farm and the inventoried equipment. The description, quantities, and state of the leased equipment was recorded in the comprehensive inventory the parties drew in October 2008.

The tobacco season in Zimbabwe generally runs from September to August and sales generally take place between March and June.

Graham Shaun Chadwick was on the farm during the 2008-2009, 2009-2010, 2010-2011, and 2011-2012 seasons (hereinafter called the first, second, third, and fourth seasons, respectively).

On 9 January 2009, Valentine Ziswa and Graham Shaun Chadwick signed a 10-year lease agreement.

On the same date, Valentine Ziswa and his wife (the First Partner) executed a second “Joint Venture Agreement” (JVA) with Graham Shaun Chadwick (Second Partner) for the “long term development” of the farm.

The two agreements were backdated to 1 September 2008.

Graham Shaun Chadwick not only leased the farm and the inventoried property, but, in addition, undertook to erect permanent structures (in each season) of an equivalent value to the seasonal rental payable.

In terms of clause 1 and clause 2, Graham Shaun Chadwick leased “the land, together with all buildings and other permanent improvements and certain immovables” for the ten year period from 1 September 2008 to 31 August 2018 for the purpose of growing “30ha of tobacco, 40ha of maize, 20ha of wheat and any other crop agreed between the parties.”

In terms of clause 3, the rental payable would be “6 per cent on the US$ of the gross turnover of the crops produced on the said land inclusive of bonuses and hailstorm insurances.”

In respect of tobacco, the rent was to be paid into the lessor's FCA by stop order raised at the auction floor, and cash payments were to be made in respect of other crops.

In addition to the rental, Graham Shaun Chadwick would, in terms of clause 4(d), be responsible for the repairs and maintenance of tractors and the inventoried equipment leased to him with effect from 1 September 2008.

Lastly, clause 9 stipulated that:

“This agreement constitutes the entire agreement between the parties, and no representation or undertakings given by one of them to the other of them prior to the execution hereof, and no variation of the conditions hereof, shall have any force or effect unless recorded in writing and executed by the parties hereof.” (The underlining covers the handwritten portions of the otherwise typeset agreement).

The Joint Venture Agreement (JVA) substantially duplicates the lease agreement. Clause 3 thereof reads as follows:

“3. The rent payable by the lessee to the lessor shall be 6 per cent per centum of the gross turnover in respect of the crops produced on the said land, and payment of such rent/lease shall be secured by means of STOP ORDER given by the lessee in favour of the Company against proceeds of tobacco sold through TOBACCO SALES FLOOR. Such PAYMENT shall be executed and registered as soon (sic) may be after the signing of this lease. 31 MARCH, 3 APRIL, 6 END OF JULY. MAIZE 1.5 TON MONTHLY.” (The underlined words and figures are handwritten)

It was common cause that the two agreements are complementary and separate and distinct. The requirements of the Joint Venture Agreement (JVA) were additional to the rental payable.

It was also common cause, that, Graham Shaun Chadwick was an active councillor for the Zimbabwe Tobacco Association (ZTA) for six (6) years and had been its Vice-President for another two (2) years.

He introduced the Zimbabwe Tobacco Association (ZTA) proforma lease and Joint Venture (JV) agreements, and, together with Valentine Ziswa, supplemented and annotated the terms and conditions therein by hand.

Graham Shaun Chadwick grew maize during the first season only and abandoned it in subsequent seasons in preference to the more lucrative tobacco crop. He never grew wheat on the farm.

Graham Shaun Chadwick did not abide by the direct deduction method prescribed in the agreements. He did not disclose to the lessor his prior preferential stop order obligations to the Zimbabwe Leaf Tobacco Company (Pvt) Ltd.

By 10 May 2010, Graham Shaun Chadwick had repaired a weir, put in a pump and generator, laid underground irrigation pipes, erected a centre pivot, paid for the labour for the reconstruction of a burnt down tobacco barn “maintained” all 14 barns by putting in place the necessary appurtenances for curing tobacco, repaired furnaces and sheds, and, at a cost of US$2,700 constructed 11 two roomed staff houses.

By letter dated 22 February 2011, Graham Shaun Chadwick offered to increase lease rental to 8%.

The offer was not accepted.

Instead, the lessor made the counter offer proposed in the detailed draft agreement, which the lessor signed on 13 March 2011.

The counter-offer was, in turn, rejected by Graham Shaun Chadwick.

Between 10 January 2012 and 18 May 2012, the parties failed to amicably resolve the lessor's demands for arrear rentals, maintenance of the leased equipment, and the repatriation of leased property that Graham Shaun Chadwick allegedly took to other farms.

In frustration at the impasse, the lessor sought to exercise a lien over the tobacco produce that was on the farm.

They were, by consent, interdicted by Graham Shaun Chadwick and Landos (Pvt) Ltd, on 24 May 2012 in case No. HC5477/12.

On 10 June 2012, the Ziswas instigated the arrest of Graham Shaun Chadwick for theft of some of the 2008 inventoried property. The complete police docket, compiled by Sergeant N'andu (IO), was produced by consent as exhibit 5.

Sergeant N'andu (the IO) first attended at the farm on 12 June 2012. On 19 June 2012, he conducted a verification or “exit” inventory with Valentine Ziswa and a proxy of Graham Shaun Chadwick, at the direction of the Area Public Prosecutor for Rusape (APP).

By letter dated 2 July 2012, Graham Shaun Chadwick cancelled the lease agreement and immediately vacated the farm.

On 5 September 2012, the Area Public Prosecutor for Rusape declined to prosecute, adjudging the criminal complaint to be a civil dispute.

On 26 September 2012, the lessor issued summons against the defendants claiming an aggregate sum of US$456,699 under 13 heads. These comprised of the following claims:

(a) Arrear rentals of US$64,160 for the fourth farming season;

(b) A refund of rates and levies of US$1,980 paid to the Makoni Rural District Council for the fourth farming season;

(c) The lessor's share of the hailstorm insurance proceeds of US$5,500 in respect of the second farming season;

(d) The outstanding developments for the first three farming seasons, represented by the value of the centre pivot that was removed from the farm, in the sum of US$67,507;

(e) Other enumerated property valued at US$187,707 that was also removed from the farm;

(f) The estimated damages to recovered property of US$15,905;

(g) US$7,600 for the damage to the fence and gates on the farm;

(h) US$15,008 for the repairs to the damaged tobacco barns and flue pipes;

(i) US$780 for removing the fourth season tobacco stalks;

(j) US$26,313 for vandalized overhead water storage tanks, pipes, workers houses, electrical underground cables, dams, pump unit, boreholes, and transformer;

(k) US$15,000 for maize deliveries contractually due to the lessor during the second to fourth farming seasons;

(l) US$4,240 for the tobacco seedlings grown on the farm and sold to other farmers;

(m) US$45,000 damages for loss of income in respect of the 2012/2013 tobacco cropping season caused by the premature and abrupt termination of the agreements.

THE PROCEEDINGS A QUO

The lessor made the following contentions:

The two agreements had separate and distinct obligations. Landos (Pvt) Ltd had a direct and substantial interest in the two agreements, and was, together with Graham Shaun Chadwick, therefore liable for the various contractual breaches that gave rise to the 13 claims.

The lessor's documentary and oral evidence established both liability and quantum in respect of claim (a), (d), (e), (f), (g), (h), (j), (k) and (l) at the higher rate of 8 per cent and not at the 6 per cent in the two agreements.

The lessor abandoned claim (m) and conceded that Graham Shaun Chadwick and Landos (Pvt) Ltd be absolved from the instance in respect of claims (b), (c) and (i) on the ground that the lessor had failed to established the due amounts.

Graham Shaun Chadwick conceded that the annotations formed part of the terms agreed by the parties on 9 January 2009.

Counsel for Graham Shaun Chadwick argued, that, the lessor failed to establish both liability and quantum.

He submitted, on the authority of Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (S), that, the oral variation of the rental rate from 6 per cent to 8 per cent in violation of the non-variation clause (Clause 9 of both agreements) of the agreements was inefficacious and invalid.

He also relied on the twin principles of privity and sanctity of contracts enunciated in CHRISTIE: The Law of Contract in South Africa, 6th ed, 2010 Lexis Nexis…, to call for the dismissal of all the claims sought against Landos (Pvt) Ltd.

Counsel, however, conceded that Graham Shaun Chadwick was liable for unpaid rental of US$8,808 for the fourth season and US$36,000 for the LTC line [falling under claim (e)] and not the respective US$64,160 and US$84,000 sought by the lessor.

He further contended, that, as the lessor had failed to establish liability or where liability had been established, the quantum thereof in respect of claims (b), (c), (d), the remainder of (e), (f), (g), (h) and (j), the claims fell to be dismissed.

Counsel requested the court a quo to discard the evidence of the valuator for the reason that it was unconventional and unprofessional.

He argued, that, the valuation was in breach of the 'objective' and 'appreciable help' standards expected of expert evidence that are propounded in Stock v Stock 1981 (3) SA 1280 (A)…,; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)…,; and Menday v Protea Assurance Co. Ltd 1976 (1) SA 565 (E)…, and articulated in SCHWIKKARD & Van der MERWE's Principles of Evidence, Juta 2009…,.

He, therefore, prayed for the dismissal of claims (d) (e), (f), (g), (h) and (j), which rested on the valuator's computations.

Counsel further contended, that, the claims ought to be dismissed for the further reason that the lessor had not amended the quantum to reflect the new amounts touted by the valuator some of which were higher than the individual breakdowns set out in annexures 2 and 3 to the summons.

THE FINDINGS A QUO

The court a quo made the following findings:

The only effectual agreements were the lease and the Joint Venture agreements dated 9 January 2009 and not the draft agreement of 13 March 2011.

The operational rental rate was 6 per cent and not 8 per cent. This was because the offer of 22 February 2011 had not been accepted nor had the non-variation clause been invoked.

Valentine Ziswa was an inconsistent, unreliable, untruthful, and greedy witness.

He prevaricated on whether the tenure of the agreements was 5 years, 8 years, or 10 years and whether the rental rate was 6 per cent, 8 per cent, or 10 per cent.

He was greedy because he unjustifiably claimed for municipal imposts, maize deliveries, seedlings, and hailstorm insurance proceeds, which were all not covered by the two agreements. He also demanded for the value of the centre pivot, which he had categorically rejected as constituting a permanent structure.

The court a quo also excoriated the valuator for flaunting his professional qualifications and experience at the expense of conventional valuation principles. It, therefore, discarded his depreciated replacement cost computations.

Graham Shaun Chadwick, whose demeanour was highly extolled, was found to be a truthful, good, and reliable witness.

His status as an accomplished tobacco farmer with 20 years experience, and who exuded confidence and conceded where he was liable, endeared himself to the court a quo at the expense of Valentine Ziswa whose penchant for renting out instead of farming on his own account was deplored by the court.

Notwithstanding the contrary general findings on credibility of Valentine Ziswa and the valuator, the court a quo believed Valentine Ziswa's oral testimony on the US$780 claim on tobacco de-stalking and the chartered accountant's valuation of the LTC line. It, however, dismissed the rest of their evidence on the valuation of all the other claims. It further held that seedlings were not a crop as they could not be sold at the auction floors.

The court a quo dismissed the claims against Landos (Pvt) Ltd on the twin basis of lack of privity of contract and sanctity of contracts.

It held, that, these cardinal legal principles could not be negated by Graham Shaun Chadwick's directorship of the company, his use of the company's letterhead in correspondence with the lessor and bank account to effect payment of his lease obligations.

It issued the order that I adverted to at the commencement of this judgment.

Aggrieved by the order granted a quo, the lessor appealed to this Court on the following grounds:

“1. The court a quo erred in not finding that the reduction of part of the agreement between the parties to writing and the existence of the non-variation clause notwithstanding, on the entirety of the evidence before the court, the agreement between the parties consisted in part of the written portion and in part of the oral agreement sworn to by the cross appellants.

2. The court a quo erred, for the stronger reason, in not finding that the second cross respondent was privy to the whole of the agreement between the parties and in dismissing the claim against it.

3. The court a quo erred in its treatment of the evidence and assessment of the cross appellants claim with the result, that, the court misdirected itself in its gratuitous conclusions on the first cross-appellant's demeanour and motives culminating in the rejection of the cross-appellants claims on this flawed basis.

4. The court a quo erred in not finding that the rent for the use of the cross-appellants farm varied from 6 per cent to 8 per cent of the gross annual turnover realised on the farm.

5. The court a quo erred, in any event, in accepting the appellant's bare testimony that the sum of US$21,000 paid to the cross appellants was towards the rental for the 2011-12 season and in deducting the same from the rental due and owing to the cross appellants.

6. The court a quo erred in its treatment of the evidence in concluding, that, the claim for the tonnage of maize was not within the parameters of the agreement of the parties and in rejecting the cross-appellants testimony regarding the quantum thereof.

7. The court a quo erred in holding, that, the claims for the centre pivot and generator did not fall within the parameters of the developmental agreement.

8. The court a quo erred in holding that the seedlings produced on the cross appellants farm, but sold elsewhere, were not produce for the purposes of the parties agreement, and in rejecting the cross-appellants quantification thereof.

9. The court a quo erred in finding, as it did, that there was no evidence to substantiate the cross appellants claim (e) (property removed and not returned) and claim (g) (removed and/or damaged fences and gates) and in finding the property could have been unusable.

ALTERNATIVELY

The court a quo erred, in any event, in dismissing the said claims as opposed to granting absolution from the instance.

10. The court a quo erred in rejecting the evidence of Pange purely on the basis that he had used one as opposed to three quotations which had been sourced by the cross-appellants, and had applied the general accounting depreciation formulae without a physical examination of the property in question.

11. The court a quo erred in not awarding the claim for the irrigation pump, which the appellant conceded in his evidence and offered to compensate for the same.

12. The court a quo erred in accepting as true the appellant's testimony based solely on the fact that he managed to impress the judge in terms of his demeanour.”

The cross-appellants sought the success of the cross appeal with costs, the amendment of the judgment a quo by granting, jointly and severally, the one paying the other to be absolved:

(i) Arrear rentals of $67,502=40 for the 2011-12 season (being 8 per cent of gross realization of US$843,780 from sale of 205,800kgs at US$4=10 per kg);

(ii) Alternatively, judgment in the sum of US$50,626=80 being 6 per cent of the above gross realisation;

(iii) Judgment in respect of claims (d), (f), (j) and (i);

(iv) Judgment for the reduced sum of US$364,729 as particularised in exhibit 3; and

(v) Costs of suit against the cross respondents.

THE ISSUES

The issues that arise from the grounds of appeal are the following:

1. Whether the variation clause was waived by the parties to the lease agreement.

2. Whether the second cross-respondent was liable to the lessor's claims.

(a) Rentals for the fourth season (a portion of claim (a)).

(b) The value of the developments in lieu of the Centre Pivot (claim (d)).

(c) Damages for missing equipment (including the irrigation diesel pump whose liability was conceded) (claim (e)) and for damaged property and equipment on the farm (claim (f)).

(d) Repairs to tobacco barns (claim (h)).

(e) Vandalized overhead water tanks, reservoirs, boreholes, and staff houses and their connecting pump unit, cables, electrics, and pipes claim (j).

(f) Maize deliveries due for the second to fourth seasons (claim (k)).

(g) Value of tobacco seedlings (claim (l)).

3. Whether or not the court a quo properly exercised its discretion in respect of costs.

THE ARGUMENTS BEFORE THIS COURT

At the onset of his submissions before this Court, counsel for the lessor abandoned claims (b), (c) and (g).

He persisted with the appeal against the dismissal of the entire claim against the company, the part dismissed in respect of claims (a) and (e), and the dismissals against claims (d), (f) (h), (j), (k) and (l).

Counsel for the lessor contended, that, the dismissal of the lessor's claims against Landos (Pvt) Ltd was erroneous.

He argued, that, the resolution passed by Landos (Pvt) Ltd, on 18 May 2012, authorising Graham Shaun Chadwick to “represent the company in any legal matter against Mr and Mrs Ziswa” before the institution of action proceedings on 26 September 2012, showed that it had a direct and substantial interest in the two agreements.

He further argued, that, the main credibility findings in favour of Graham Shaun Chadwick and against Valentine Ziswa, upon which the court a quo premised its dismissal of the lessor's claims were, on the totality of the adduced evidence, irrational.

He argued, that, notwithstanding the embodiment of the non-variation clause in the lease agreement, the lessor had, contrary to the finding a quo, established that Graham Shaun Chadwick had, by conduct, waived the lease rental rate from 6 per cent to 8 per cent on the second and subsequent seasons.

He further argued, that, the valuation testimony of the chartered accountant had proved the damages suffered by the lessor as at the date Graham Shaun Chadwick cancelled the agreements and vacated the farm.

Lastly, he contended that the costs order granted a quo constituted a patent failure in the exercise of discretion warranting interference by this Court.

Per contra, counsel for Graham Shaun Chadwick and Landos (Pvt) Ltd vehemently supported the impugned findings and conclusions of the court a quo.

He argued, that, the claims against Landos (Pvt) Ltd were rightly dismissed because it was not privy to the lease agreements.

He strongly contended, that, having acted as an agent, it could not be sued either separately or together with its principal.

He further contended, that, the non-variation clause precluded the lessor from relying on any variation derived from an oral agreement or on the offer to increase the rate to 8 per cent which they did not accept.

He submitted, that, an oral agreement could not waive a non-variation clause.

He further contended, that, the court a quo had not relied on the demeanour of the witnesses only but also on the inconsistencies that characterized the evidence of the lessor's star witness, Valentine Ziswa.

Lastly, he contended that the valuator's testimony was rightly discarded for being both unconventional and unprofessional.

Counsel impugned his competence on two bases:

(i) The first was that he had relied on the quotations availed to him by Valentine Ziswa without conducting a physical inspection of the equipment.

(ii) The second was that he had further relied on internet sites, that he failed to disclose, in ascertaining the life span of some of the equipment listed in exhibit 3.

ANALYSIS OF THE LAW AND THE FACTS

WHETHER THE FINDING OF FACT MADE A QUO IN RESPECT OF VALENTINE ZISWA AND GRAHAM SHAUN CHADWICK'S TESTIMONIES WAS IRRATIONAL

It is well settled in this jurisdiction, that, a court of appeal will only interfere with the findings of fact of a trial court where the findings are irrational.

The locus classicus on the point is Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…, where this Court said:

"It is not enough that the Appellate Court considers, that, if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always it has the materials for so doing."

To the same effect is RBZ v Granger & Anor SC47-09…, which held that:

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

See also Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,; Mettalon Gold Zimbabwe v Golden Million (Pvt) Ltd SC12-15…,.; and ZINWA v Mwoyounotsva SC28-15.

Counsel for the lessor contended that “the entire premise of the court a quo's conclusions on Ziswa's testimony was his demeanour. (It) did not trust (him and) on that basis disregarded much of his evidence.”

At page 12 of the judgment, the court a quo held that:

“Valentine Ziswa did not make a good witness at all. His demeanour was extremely given to wild exaggerations of his claims. He struck me as someone actuated by an improper motive and determined to maximize on what he can recover from the tenant at all costs thereby reducing the claim to ridiculous levels. He just tried too hard. A few examples will suffice.”

The examples related to his initial reliance on the reduced tenure of 5 years and the lease rental rates ranging from 6 per cent to 10 per cent written into the draft agreement of 13 March 2011; the 10 per cent in his letter of demand; reliance on oral agreements for the maize and RDC imposts claims; claiming the value of the centre pivot that he had rejected; reliance on “poorly drafted lease agreement with endless un-initialed annotations as well as blank portions of important clauses”; suing the company; inflated claims for arrear rentals; claiming arbitrary figures from hailstorm proceeds and seedlings; denying despoiling Graham Shaun Chadwick in May 2012; disputing improvements made on the farm by Graham Shaun Chadwick; and proxy rather than personal farming.

In comparison, at p22-23 of the judgment, the court a quo said of Graham Shaun Chadwick:

“Chadwick was clearly a good and reliable witness. His demeanour was always good. He readily made concessions where such was called for and admitted liability where clearly he was liable. He struck me as one who exudes confidence with a lot of knowledge in tobacco farming and with a willingness to compensate fairly for what he benefitted. Where his evidence is to be contrasted with that of Ziswa, I would prefer his. Chadwick's biggest undoing is that he appears to have run his activities at the farm by remote control and was clearly not hands on. He left most of his activities to his employees, including the very important task of verifying equipment at termination.”

The assessment of evidence is an onerous task for a trial court especially in a case such as this where the oral evidence encompasses in excess of 300 pages and is accompanied by documentary exhibits in excess of 200 pages.

Superior Courts in South Africa and in this country have, however, laid down certain guidelines that might ameliorate the difficult task.

The South African Supreme Court of Appeal cautioned against over-reliance on demeanour in Medscheme Holdings (Pvt) Ltd v Bhamjee 2005 (5) SA 339 (SCA)…, thus:

“It has been said by this Court before, but it bears repeating, that, an assessment of evidence on the basis of demeanour, the application of what has been referred to disparagingly as the 'Pinocchio Theory' without regard for the wider probabilities, constitutes a misdirection. Without careful evaluation of the evidence that was given (as opposed to the manner in which it was delivered) against the underlying probabilities, which was absent in this case, little weight can be attached to the credibility findings of the court a quo.”

In this jurisdiction, MUSAKWA J…, in S v Makomeke HH118-11…, outlined the approach to assessing credibility, which is applicable in both criminal and civil trials thus:

“In S v Sauls & Ors 1981 (3) SA 172 (A) at 180E-G, DIEMONT JA said:

'There is no rule of thumb or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence, will consider its merits and demerits, and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told….,. It has been said more than once, that, the exercise of caution must not be allowed to displace the exercise of common sense.'

In Zimbabwe, much the same approach has been adopted in S v Nyati 1977 (2) RLR 315 (A) at 318E-G.”

Again, though enunciated in the context of a criminal trial, in S v Makanyanga 1996 (2) ZLR 231 (H)…, GILLESPIE J graphically warned judicial officers against allowing the administration of justice to “be the hostage of the (witness) whose insincere but convincing blandishments must prevail over the stammering protestations of truth by the diffident (or) frightened” witness.

A proper consideration of the totality of the evidence on record shows, that, the court a quo misdirected itself in assessing the credibility of Valentine Ziswa and Graham Shaun Chadwick.

It misconceived the material evidence led by Valentine Ziswa, which Graham Shaun Chadwick either agreed with or did not controvert.

In my view, two critical factors emerge from the two common cause factors pertaining to the two agreements:

(i) The first is that, although the two agreements are strikingly similar and complementary, they relate to two different aspects. They are complementary in that the blank spaces regarding the name of the farm and the date of commencement of the lease, that were omitted in the lease agreement, were provided in the Joint Venture Agreement (JVA).

(ii) The second is that the court a quo did not relate to the effect of the annotated terms of both agreements.

At p19 of the judgment, the court a quo found that:

“He agreed that he took occupation of the farm in terms of a lease agreement and that a second JVA was also signed. He confirmed that the lease agreement signed on 9 January 2009, together with its annotations contains the terms agreed upon by the parties and governed their relationship.”…,.

It will be recalled, that, the annotations on the copies of the agreements produced a quo by the parties were the same.

The annotations on clause 4(c) of the lease agreement required Graham Shaun Chadwick to produce 10ha of maize for the lessor and 3ha of other crops in addition to the rental payment.

In my view, reliance on the rate of 8 per cent did not relegate Valentine Ziswa to a 'dithering' 'inconsistent' and 'greedy' litigant.

It does not appear to me that any of the “few examples” highlighted by the court a quo had the effect of eroding the probative value of Valentine Ziswa's evidence.

It does not appear to me, that, a vigorous pursuit of one's perceived rights, even one based on a misconception of the relevant law and requisite proof, could conceivably render a witness untruthful.

In any event, all the posited “few examples” relate to the construction rendered by Valentine Ziswa to uncontroverted facts rather than to a falsification of those facts.

It seems to me, that, the findings a quo, that Graham Shaun Chadwick was a credible witness, ran against the grain of the evidence.

A dispassionate reading of his testimony under cross examination shows, that, he could not dispute and did not dispute, the clear evidence on the entry inventory, which showed that he assumed control of the listed leased equipment.

It is inconceivable that he would have been able to plough and prepare his four farms with one tractor when the lessor handed, and he took over, three (3) functional tractors.

He only complained, that, the equipment was scrap for the first time in evidence and never at any period during the four seasons he leased the farm.

He was ambivalent on whether or not he removed equipment from the farm, and on whether he damaged any property.

While he may have repaired some equipment during his tenure on the farm, it is apparent from exhibit 2 that he left the farm equipment, and the lands, in a desolate state.

On his first visit to the farm, Sergeant N'andu (the IO) saw “pure vandalism”. His testimony to that effect was not impugned.

Lastly, in his summary of evidence, Graham Shaun Chadwick deliberately misled the court that he had faithfully abided by all his contractual obligations.

These, and many other instances too numerous to mention, portrayed him as the quintessential deceptive and untruthful witness that judicial officers ought to be wary of.

I, accordingly, agree with counsel for the lessor, that, the court a quo misdirected itself on the credibility findings that it rendered.

The third and twelfth grounds of appeal must therefore succeed.

View Appeal
HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

The first plaintiff (Ziswa) claimed the tenant had free access to the farm to conduct activities and had the keys.When his attention was drawn to the court order which he consented to on 24 May 2012, it became clear that he was not telling the truth.He was forced to admit ...

View Appeal
HH418-23 : LOVEDALE MANGWANA vs SAVIOUR KASUKUWERE and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MANGOTA J

The applicant, one Lovedale Mangwana (“Mangwana”), filed this application through the urgent Chamber Book.

He filed it in terms of Rules 59(6) and 107 of the High Court Rules 2021.

He is moving me to grant him a declaratur and consequential relief.

He premises his application on section 85(1) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act [Chapter 2:13] (“the Act”).

His suit is against one Saviour Kasukuwere (“Kasukuwere”) whom he cites as the first respondent and also against the Zimbabwe Electoral Commission (“the Commission”) and the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”) who are, respectively, the second and third respondents herein.

His bone of contention is that the Commission, which sat as the Nomination Court on 21 June 2023, acted in error when it accepted Saviour Kasukuwere's nomination paper for election to the office of the President of Zimbabwe in the election which shall be held on 23 August 2023.

He insists that Saviour Kasukuwere, whom he claims was out of Zimbawe for more than eighteen (18) consecutive months, is, in terms of section 23(3) of the Electoral Act, no longer a registered voter.

He claims, that, as a person who ceased to be a registered voter, Saviour Kasukuwere cannot vote in the forthcoming election, and, because he cannot vote, he cannot be voted into any public office, let alone that of the President of Zimbabwe.

He, accordingly, seeks a declaration which is to the effect that the decision of the Nomination Court, which accepted Saviour Kasukuwere's papers as a candidate for election to the office of the President of Zimbabwe, violated section 91(1)(d) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act.

The decision, he alleges, is a violation of his rights as contained in section 67(1)(a) and 67(1)(d) of the country's Constitution.

He, in short, moves me to grant him an order which is to the effect that Saviour Kasukuwere cannot be a candidate for election to the office of the President of Zimbabwe in the 23rd August 2023 plebiscite. He moves me, in consequence, to direct the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) not to include the name of Saviour Kasukuwere in their preparation of ballot papers which will be used in the electoral process of 23 August 2023. He moves me, further, to interdict Saviour Kasukuwere from holding himself out to the public and to the electorate in this country, as well as abroad, physically or through any form of media, as a Presidential candidate for the forthcoming election.

Saviour Kasukuwere opposes the application.

The Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) did not file any notice of opposition. The Commission filed what it terms its notice to abide with the decision of the court. It filed the notice on 30 June 2023.

My view is that the Minister is also of the same view.

The non-attendance of the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) leaves Lovedale Mangwana and Saviour Kasukuwere in the question.

Saviour Kasukuwere raises five (5) in limine matters, after which he proceeds to deal with the merits of the application. The preliminary issues which he raises are that:

(i) The court does not have the jurisdiction to hear and determine the matter;

(ii) The application is one for review which is disguised as a declarataur;

(iii) Lovedale Mangwana does not have what is normally referred to as the locus standi in judicio;

(iv) Lovedale Mangwana approached the court in terms of an incorrect law and in an incompetent forum; and

(v) Lovedale Mangwana violated the principle of subsidiarity.

He denies, on the merits, that he was out of his constituency, and, therefore, out of Zimbabwe, for more than eighteen (18) consecutive months.

He challenges Lovedale Mangwana to prove the allegation which he (Lovedale Mangwana) is making.

He avers that he is duly nominated to be a Presidential candidate in the forthcoming general election because he meets the legal requirements for nomination.

He challenges Lovedale Mangwana to state the manner in which his candidature would affect Lovedale Mangwana's constitutional rights.

He insists that he has a local address where he resides and is domiciled.

He claims that he left Zimbabwe on a temporary basis on medical grounds.

He avers that he is a registered voter and that the Zimbabwe Electoral Commission (the Commission) verified his address in terms of section 23(3) of the Electoral Act.

It is his appearance on the voters roll which makes him compliant with section 91 of the Constitution of Zimbabwe, according to him.

He alleges that he appears on the voters roll of Ward 40, Pfura Rural District Council, Mount Darwin South Constituency. He gives Chiunye Primary School A as his polling station.

He claims that Lovedale Mangwana makes bare allegations regarding his absence from Zimbabwe.

He contends that Lovedale Mangwana has not established any right which the court should protect.

Lovedale Mangwana has not, according to him, shown that he is a registered voter in the ward or the constituency he alleges to be registered. He insists that his inclusion on the ballot paper does not interfere with Lovedale Mangwana's right to vote.

Lovedale Mangwana, he claims, has not set out any substantial interest in the matter nor a factual cause to motivate the relief which he seeks.

There is, according to him, no legal basis for the Zimbabwe Electoral Commission's conduct to be set aside, and, consequently, for his nomination to be quashed.

He insists that the application does not meet the requirements of urgency.

Lovedale Mangwana, he avers, should have engaged the processes in terms of the Electoral Act well before 21 June 2023. The conduct of Lovedale Mangwana, he claims, is self-inflicted urgency.

He alleges that the application is no more than Lovedale Mangwana's attempt to curtail his right as it is provided for in section 67 of the country's Constitution.

He moves me to dismiss the application with costs which are at attorney and client scale.

The application succeeds.

ELECTION AND THE LAW

An election is, by its nature, a very emotive subject. Once it is at hand, people push and shove each other. They do so with one object in mind. They do so to either get into, or deny others from, entering or participating in the electoral race.

More often than not, the protagonists fail to find each other.

Where such occurs, they take each other to court which will resolve the dispute between them.

The court takes no side. All it does is to listen to the respective narratives of those who have approached it, the facts of each in particular, apply the relevant law to the same, and render a decision which, in its view, accords with the applicable law.

In this jurisdiction, a judicial officer wears two hats during the period which leads onto, during, and after an election.

Depending on the facts of the case, the judicial officer can sit as an ordinary court or as an electoral court.

The position which he/she assumes largely depends on the substance of the suit which the parties place before him/her.

Because the case can fall into one law and its rules to the exclusion of the other law and its rules, it more often than not occurs that one litigant, plaintiff or applicant, files his/her case under one law and its rules which, from a prima facie perspective, are divorced from the substance of the case.

Where the litigant does so, he/she creates fertile ground for his/her adversary, defendant or respondent, who will be quick to tell the court that the litigant's suit is misplaced. Misplaced in the sense, that, it should have been lodged in terms of the other law and its rules.

APPLICATION

What I stated in the foregoing paragraphs of this judgment applies to the current application, whose substance is that of an electoral matter which has been filed in terms of the High Court Act and its rules and not in terms of the Electoral Act and its rules.

Lovedale Mangwana's adversary, for instance, remains of the view that the same should have been filed under the latter, and not the former piece of legislation.

Whether or not the stated matter reflects the correct position of the law depends, in a large measure, on the substance of the application, which, as is evident from Lovedale Mangwana's founding papers, is one for a declaratur and consequential relief.

It is pertinent for me, at this stage, to deal with Lovedale Mangwana's application.

In doing so, I remain alive to the preliminary issues which Saviour Kasukuwere raises.

Those technical issues are allowed by law. They are more often than not raised by the parties legal practitioners who are schooled in substantive law as well as in the law of practice and procedure.

The issues colour the case of the parties for better or for worse. Where they are properly raised, they have the effect of stifling the suit of the plaintiff or the applicant to a point where no further debate of it may be entertained by the court. They cannot therefore be wished away. They should be taken account of on the basis of the audi alteram partem rule which, simply considered, enjoins a court to hear both parties before it determines their dispute....,.

SECTION 23(3) OF THE ELECTORAL ACT

Having disposed of the preliminary points which Saviour Kasukuwere raised, it is therefore pertinent for me to go into the raison de'etre of this application.

The same is premised on the above section of the Electoral Act. It reads:

“A voter who is registered on the voters roll for a constituency, other than a voter who has been registered in that constituency in terms of the proviso to subsection (1), shall not be entitled to have his or her name retained on such roll if, for a continuous period of eighteen months, he or she has ceased to reside in that constituency;
Provided that nothing in this subsection shall prevent his or her name from being struck off such voters roll -

(a) On his or being registered in another constituency; or

(b) If he or she becomes disqualified for registration as a voter.”

The law, as stated in the section of the Electoral Act, was made by the Legislature.

The section does not spell out its purpose.

The parties to this case did not address me on the mischief which the Legislature intended to cure when it enacted the law. They left that aspect of the case to conjecture. Yet, it is a fact that each law which the law-maker promulgates aims to address a particular mischief which the Legislature would have observed at the time that it makes a law.

It is my considered view, that, in providing as it did in section 23(3) of the Electoral Act, the legislature's intention was/is to allow only persons who are familiar with the issues which are in Zimbabwe the right to vote or to be voted in an election.

It considered that the person's knowledge of the issues informs the way in which he or she would, if elected into any public office, define the correct path for the people who are in this country to follow.

It, in short, preferred persons who are abreast with the challenges which the country is facing to vote or to be voted into a public office to persons who view Zimbabwe's challenges from the window of their computer or from some newspaper which circulates in the area where they are staying.

It considered that a person's absence from his constituency, or from Zimbabwe, for a continuous period of eighteen (18) months or more to be sufficient for one not to be abreast with issues which obtain in Zimbabwe.

It, in its wisdom or lack of it, placed emphasis on the point that such a person as remains outside his or her constituency, or fortiori his or her country, should be disenfranchised.

Disenfranchised because his or her vote, let alone his or her occupation of a public office, would not add any value or benefit to the people of Zimbabwe.

So strong was its view on this matter that it repeated the same law in paragraph (a) of subsection (2) of section 33 of the Electoral Act. This reads:

“(2)…,. If a voter registration officer is satisfied that a voter registered on a voters roll -

(a) Has been absent from his or her constituency for a period of twelve months or longer and is not a voter who was registered with the approval of the Commission in a constituency in which he or she was not resident; or

(b)…,.;
The voter registration officer shall remove such voter's name therefrom.”

Sections 23 and 33 of the Electoral Act must, in my view, operate in tandem. The only difference between them, as I see it, is that with the former, an application, such as the present one, can be entertained by the court.

It opens an avenue to an applicant, in casu Lovedale Mangwana, to approach the court, as well as to object to the retention of Saviour Kasukuwere's name on the voters roll or to enter into the political race to be elected into a public office in Zimbabwe on the ground that his election, when he allegedly was out of the country for more than eighteen (18) consecutive months impinges on Lovedale Mangwana's right to vote in a lawful electoral process.

The latter provision, section 33 of the Electoral Act, confers power on the voter registration officer to mero motu remove the name of the voter from the voters roll in circumstances where he is satisfied that the voter was/is absent from his constituency for twelve months or more.

He removes it after he has made the necessary inquiry which is stipulated in the section, and has satisfied himself that the voter has been absent from his constituency for twelve months or more.

Whether or not Saviour Kasukuwere violated section 23(3) of the Electoral Act is a matter of evidence.

Lovedale Mangwana alleges that he did. He, accordingly, bears the onus to prove the allegation which he is making.

Onus is the duty which is cast upon the particular litigant, in order to be successful, of finally satisfying the court that he is entitled to succeed on his claim, or defence, as the case may be: Pillay v Krishna & Anor 1946 AD 946…,.

The cardinal rule on onus is that a person who claims something from another must satisfy the court that he is entitled to it: ZUPCO Limited v Parkhorse Services SC13-17.

Onus is, however, not a static phenomenon. It shifts between the parties, depending on what one alleges against the other and the latter's response to the same.

In casu, Lovedale Mangwana makes a statement which, in the main, is to the effect that Saviour Kasukuwere was not in Zimbabwe, and therefore in his constituency, for a period which is in excess of eighteen (18) continuous months.

The assertion which he makes is in the negative. He is, therefore, not required to prove it at law.

He, in this regard, takes refuge in the learned words of Van Der LINDEN who remarked in The Institutes of Holland, (H. Juta Translation) (3rd edition)…, that “a negative is generally, on account of its nature, incapable of proof.”

Saviour Kasukuwere, for some inexplicable reason, snatches the onus from Lovedale Mangwana to himself.

He challenges Lovedale Mangwana to challenge him to prove that he was not out of Zimbabwe for more than eighteen (18) consecutive months.

He poses the challenge in paragraph 22.3 of his notice of opposition wherein he avers that “if Mangwana desires further proof, he can provide it.”

He confirms, in paragraph 22.6, that, he was once out of Zimbabwe on a temporary basis when he went for treatment.

He does not, however, show, as he offers to do, the date(s) that he left Zimbabwe and/or the date(s) that he returned to Zimbabwe. Nor does he attach to his Notice of Opposition a doctor's report which indicates that he was/is indeed receiving medical attention from outside Zimbabwe.

All what he does is to depose to his opposing affidavit - not from Zimbabwe but from South Africa.

The observed matter confirms, that, even as the application is being heard, he is not in Zimbabwe and/or in his constituency as well as that he will return to Zimbabwe at some future but unknown date.

The statement which Saviour Kasukuwere makes in paragraph 22.6 of his opposing papers throws him at the feet of Lovedale Mangwana's averments more than it takes him out of the same.

He makes an admission that he once left Zimbabwe for medical reasons.

He, however, does not place me into his confidence on that aspect of the case. He refuses to disclose matters which relate to his absence from Zimbabwe. He assumes the obligation to prove his own side of the case but does not do so at all.

The bare denial which he makes when he took upon himself to prove his own side of the case cannot take his Notice of Opposition any further than where he leaves it.

Saviour Kasukuwere is the holder of his own passport. This was issued to no one else but to him. A passport is a national document which is specific to its holder. It is not accessible to Lovedale Mangwana or to any person who has no business with it.

Nothing, therefore, prevented Saviour Kasukuwere, its holder, from availing a certified copy of the same to me as a way of showing the veracity of his assertions.

Surely, as a person who is aspiring to the highest office on the land, he could easily have dispelled the omnious allegation as a result of which he would have acquitted himself well.

He would, by the stated process, have shown the date(s) that he left Zimbabwe going for treatment as well as the date(s) that he returned to Zimbabwe, and, therefore, to his constituency.

His failure to produce his passport leaves his case hanging in the balance, so to speak.

His non-disclosure of the correct circumstances of his side of the case leaves me with no option but to draw an adverse inference against him.

Against him because he has at his disposal what it takes to unravel the truth of what is alleged against him.

I, on the basis of the foregoing, therefore, find that Saviour Kasukuwere was out of Zimbabwe, and therefore out of his constituency, for a continuous period of more than eighteen (18) months.

The finding is premised on his admission, that, he once left Zimbabwe for medical grounds, as read with the place from which he prepared and deposed to his opposing papers, as read together with his statement which is to the effect that he can provide proof of the fact that he did not remain outside the country for more than eighteen (18) consecutive months - which he does not prove.

This is a fortiori the case because, even where Lovedale Mangwana challenges him, in paragraph 17 of the founding affidavit, to prove that he was not in Zimbabwe for more than eighteen (18) months which precedes his nomination into the Presidential race, he offers to prove the same but does not do so, for reasons which he does not advance.

He has no difficulty to show papers which prove that he went outside Zimbabwe to be treated. Nor does he have any difficulty to show that he was, indeed, treated and/or that his passport shows that he left and returned to Zimbabwe at some point in time between 31 July 2018 and the date that he filed his nomination papers with the Zimbabwe Electoral Commission (the Commission). He has his passport on him and the doctor(s) who attended to his medical condition, if he was, would not have refused to give him the report which relates to his treatment.

His bare denial and challenge to Lovedale Mangwana to prove the negative which he made cannot assist him at all....,.

DISPOSITION

On the date that the application was heard, counsel for Lovedale Mangwana moved me to admit into the record the amended draft order which he attached to the answering affidavit.

He advised that the motion was with the consent of Saviour Kasukuwere's counsel. The latter confirmed the same to have been the case.

The amended draft order was, therefore, made part of the record and it replaced Lovedale Mangwana's original draft order.

I heard and considered the case of both parties. I am satisfied that the applicant proved his case on a preponderance of probabilities.

The application is, accordingly, granted as prayed in the amended draft order.

prev 1 2 next

Back Main menu

Law Portal Zimbabwe

Findings of Fact re: Witness Testimony iro Candidness with Court, Deceptive, Misleading Evidence & Material Non-Disclosure

View Appeal HH207-15 : G BANK ZIMBABWE LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN Ruled By: KUDYA J

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO Ruled By: MAWADZE J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O. Ruled By: MAFUSIRE J

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY Ruled By: MALABA CJ

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD Ruled By: CHIKOWERO J

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA Ruled By: DUBE J

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD Ruled By: UCHENA J

Appealed HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS Ruled By: CHATUKUTA J

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU Ruled By: MAWADZE J

HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER Ruled By: MATHONSI J

View Appeal HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: CHITAPI J

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O. Ruled By: CHITAKUNYE 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

View Appeal HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST Ruled By: ZHOU J

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT Ruled By: MAKONESE J

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

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

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

HB39-15 : JEMITIOUS GUMBO vs VARAIDZO GUMBO Ruled By: KAMOCHA J

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS Ruled By: MUSHORE J

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU Ruled By: MOYO J

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

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: PATEL JCC

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

HHMA56-19 : THE STATE vs WONDERFUL MANJORO Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

HH95-16 : MANICA ZIMBABWE LTD vs GRINDSBERG INVESTMENTS (PVT) LTD and OTHERS Ruled By: DUBE J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL Ruled By: MAFUSIRE J

HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA Ruled By: GOWORA J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD Ruled By: MANGOTA J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS Ruled By: MAFUSIRE J

View Appeal HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO Ruled By: BERE J

Appealed SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

View Appeal HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD Ruled By: MATHONSI J

View Appeal HH418-23 : LOVEDALE MANGWANA vs SAVIOUR KASUKUWERE and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: MANGOTA J

Categories

Your Donation.

Law Portal
Zimbabwe

View Appeal
HH207-15 : G BANK ZIMBABWE LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

HH362-13 : THOMAS CHAURAYA vs PROGRESS MAKOKORO
Ruled By: MAWADZE J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

HH477-16 : RICHARD SEAGER vs ALESTER ZIYANGA
Ruled By: DUBE J

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD
Ruled By: UCHENA J

Appealed
HH46-09 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: CHATUKUTA J

HH08-12 : LOREEN MASHANGWA vs CHRISPEN BHADHI and TICHA DARANGWA and THE MINING COMMISSIONER GWERU
Ruled By: MAWADZE J

HH84-12 : CHRISTOPHER BARNSLEY vs HARAMBE HOLDINGS (PVT) LTD AND ANOTHER
Ruled By: MATHONSI J

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O.
Ruled By: CHITAKUNYE 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

View Appeal
HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST
Ruled By: ZHOU J

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

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

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

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

HB39-15 : JEMITIOUS GUMBO vs VARAIDZO GUMBO
Ruled By: KAMOCHA J

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU
Ruled By: MOYO J

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

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

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

HHMA56-19 : THE STATE vs WONDERFUL MANJORO
Ruled By: MAWADZE J and ASSESSORS: CHADEMANA and MUSHUKU

HH95-16 : MANICA ZIMBABWE LTD vs GRINDSBERG INVESTMENTS (PVT) LTD and OTHERS
Ruled By: DUBE J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA
Ruled By: GOWORA J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

View Appeal
HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

View Appeal
HH240-15 : VALENTINE ZISWA and MARGARET ZISWA vs GREAEME CHADWICK and LANDOS FARM (PVT) LTD
Ruled By: MATHONSI J

View Appeal
HH418-23 : LOVEDALE MANGWANA vs SAVIOUR KASUKUWERE and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MANGOTA J