Findings of Fact re: Witness Testimony iro Candidness with the Court and Deceptive or Misleading Evidence

HH51-12 : TENDAYI MUNDAWARARA vs EMELDA MUNDAWARARA
Ruled By: MAWADZE J

I find both parties to be very impressive witnesses in most material respects. In fact, there is very little to choose between the parties as it were. They were both eloquent, focused, and admirably candid with the court on many issues.

HH134-12 : EVANGELIST SANDE (nee NYAMANGUNDA) vs TAKAWIRA KIZITO SANDE
Ruled By: CHITAKUNYE J

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

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

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

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

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

(2) The defendant is not financially responsible;

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

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

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

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

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

She further sought an order for costs.

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

The defendant raised a claim in reconvention.

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

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

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

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

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

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

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

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

The issues referred for trial comprised:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS
Ruled By: MAKARAU JP

The defendant called Dorcas Sibindi, the manageress at the service station during the relevant time. Her evidence was brief and concise.She knew the second and third plaintiff's witnesses as the plaintiff was one of the account holders at the service station. The station operated three tanks; one for commuter buses, ...

HH176-12 : HENRY MUSHAMBI vs EXECUTOR, ESTATE MIRIAM MUNEMO (nee MADENGA) and EXECUTOR, ESTATE FAINA MUNEMO (nee MARUMURE) and ELIZABETH NZIRAMASANGA and DIRECTOR OF HOUSING, CITY OF HARARE
Ruled By: HUNGWE J

The plaintiff even admitted that he could not recall the exact amount of money he had paid over to his legal practitioners as the purchase price. Had he rehearsed his evidence he could simply have given the figure.

HH57-12 : CENTRA (PVT) LTD vs PRALENE MOYAS and DEPUTY SHERIFF, HARARE
Ruled By: BERE J

This matter makes bad reading and its background can be summarised as follows:-

After the arbitrator had considered the submissions made by both the applicant and the first respondent, the Arbitrator determined the matter in favour of the first respondent and ordered the applicant to pay the respondent a total sum of $10,060 (ten thousand and sixty dollars) for having unfairly terminated the latter's employment.

This determination was made on 17 November 2011.

The first respondent subsequently applied for the registration of the arbitral award in this Court to pave way for execution.

The applicant was served with the application for registration, and, when the application was considered there was no notice of opposition filed leading to the registration of the award in question which then became an order of this court.

On 15 December 2011, the applicant filed an appeal against the decision of the arbitrator. Simultaneously, the applicant filed an urgent chamber application to stay execution pending the determination of the appeal filed in the Labour Court.

When the urgent chamber application was served on the first respondent she filed her notice of opposition.

The urgent application, under HC723/12, was placed before my sister Judge, MWAYERA J, who, after perusing the papers, concluded the application was not urgent. She endorsed on the file “Not urgent” and returned the file to the Registrar's office.

The decision by MWAYERA J was made on 25 January 2012.

Two days after my sister Judge had declined to entertain the matter on an urgent basis, the applicant's counsel filed a notice of withdrawal of the matter.

To be precise, this was done on 27 January 2012.

On the same date, the same legal practitioners filed virtually the same urgent application seeking substantially the same remedy and the matter was placed before me under case No. HC981/12 for consideration.

Therein lies the problem.

When this matter was placed before me the founding affidavit was completely silent on the true history of this case.

When given the first opportunity to present the applicant's case to the Court, the applicant's counsel chose to be mum about the background of his client's case. Counsel's submissions were brief and pretended as if this case was being presented to Court for the first time.

The true position of this case only came to light when the first respondent, who was acting in person, presented her opposition to the relief sought by the applicant.

It is this total absence of candidness or deliberate act of non-disclosure of material information by the applicant's counsel that I wish to deal with first.

It is the accepted position that Courts detaste or frown on those litigants or legal practitioners who desire to derive the sympathy of the Court by deliberately withholding vital information which has a bearing on the very matter that the Court is called upon to determine.

My brother Judge, NDOU J, after considering a number of decisions from other jurisdictions, summed up the correct legal position on this issue when he stated as follows:

“The Courts should, in my view, discourage urgent applications, whether exparte 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 by also 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.”

I would not agree more with the ratio well laid down by the learned Judge.

I would extend the position further and say the need to disclose material information should in fact be extended to cover any matter that is brought before the Court - be it on urgent basis or not.

Courts have no capacity to reward dishonesty on the part of litigants.

In the instant case, I am extremely concerned that the applicant's counsel deliberately chose not to disclose to the Court that his client's case had been in and out of the same Court and that another Judge had declined to entertain it on an urgent basis.

The legal practitioner then chose to embark on forum shopping for Judges.

This conduct is most reprehensible and does not add value to the practice of law.

The issue of urgency can never be pinned on or founded upon incomplete disclosure. My view is that a matter ceases to be urgent if it is founded upon deliberate misrepresentation or the holding back of vital information.

The accepted procedure is that if one is not satisfied by the position taken by a particular Judge before he has been afforded an opportunity to address the court, such a lawyer must seek audience with the Judge concerned and ask to be given a chance to be heard after which he can ask for the reasons for the position taken before considering other options open to him, including, but not limited to, appealing against the decision.

Forum shopping for other Judges does not fit into the equation.

The point must be emphasized that legal practitioners are officers of the Court. They have a concomitant duty to both the Court and to their clients.

The level of dishonesty exhibited in this case is frighteningly high and I feel more inclined to dismiss this application without even bothering to consider the matter on the merits.

Accordingly, the application is dismissed with costs.

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS
Ruled By: MATHONSI J

This is an urgent application in which the applicant seeks a provisional order in the following terms:-“(A) TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. That the execution of the Arbitral Award in case ...

This is an urgent application in which the applicant seeks a provisional order in the following terms:-

“(A) 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 execution of the Arbitral Award in case number HC6251/11 by the respondents be and is hereby permanently stayed.

2. That there shall be no order as to costs of this application.

(B) INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order the applicant is granted the following relief:

(a) That the execution of the Arbitral Award registered in case number HC6251/11 be and is hereby stayed.

(b) In the event of this application being heard after execution has been carried out, that the applicant be restored to possession of its movable property.”

On 24 May 2011, labour arbitrator, L.M. Gabilo, handed down an arbitral award in an arbitration involving the parties in terms of which he directed the applicant to pay the respondents a total sum of US$24,103 as unpaid salaries and cash in lieu of notice.

It does not appear, from the papers, as if the applicant did anything about the award until recently.

The arbitral award was registered with this Court following an application made by the respondents in terms of section 98(14) of the Labour Act [Chapter 28:01] in case number HC6251/11 but not before that application was served upon the applicant on 4 July 2011.

According to the Deputy Sheriff's return of service, the application was served on an employee of the applicant, Mrs Mudyawabikwa, who is a responsible person.

The applicant did not see the wisdom of opposing the application and now claims that the employee did not bring it to the attention of management.

I find it incredible that Mrs Mudyawabikwa could have appropriated the application for herself - especially as no affidavit has been elicited from her explaining how this came about. In fact, I reject the argument that the applicant only got to know of the arbitral award at the time of attachment.

Looking at L.M. Gabilo's award, the arbitration costs were to be borne by the parties at the ratio of 15% by the respondents and 85% by the applicant. It is highly unlikely that the arbitrator would have failed to send the award to the applicant when the bulk of his fees were to come from the applicant.

I therefore proceed from the premise, that, aware of both the award and its registration as an order of this Court, the applicant did nothing about the matter until removal of its property on 12 January 2012.

This is particularly so given that the applicant did not act even when served with the notice of seizure and attachment on 6 September 2011 and with the notice of removal on 5 January 2012.

Following registration of the award, a writ of execution was issued and the applicant's property attached and removed for sale in execution on 13 January 2012. It is that removal which jolted the applicant into action, as, prior to that, it had blissfully allowed the matter to remain unattended.

The applicant promptly filed an urgent application in this Court, in case no. HC289/12, seeking an order for a stay of execution pending the hearing of a review application which it only filed in the Labour Court on 13 January 2012 when its property was removed.

The urgent application, in HC289/12, was placed before my brother MUTEMA J who refused it on 13 January 2012 on the basis that he lacked jurisdiction as section 89(6) of the Labour Act [Chapter 28:01] ousted the jurisdiction of this Court, the determination of such application falling within the exclusive purview of the Labour Court as well as the fact that no urgency was demonstrated by the applicant - it having waited until the eleventh hour to bring the application.

It would appear that after failing to get relief from this Court, the applicant tried its luck at the Labour Court but it met with no joy there either as Senior President, G. Mhuri, of that Court, threw out the application on 15 February 2012 “for want of jurisdiction”.

The applicant then returned to this Court, again, on an urgent basis, seeking a stay of execution pending the determination of its review application in the Labour Court.

Significantly, the applicant filed almost the same application rejected by MUTEMA J and did not attach the review application in question.

More importantly, the applicant did not disclose the fact that it had been to this Court before and had had the same application dismissed. Neither did it disclose that its property had been advertised by the Deputy Sheriff and part of it sold by public auction on 4 February 2012.

If I had not directed service of the application upon the respondents, I would have determined the matter without knowledge of the existence of a similar application dismissed by this Court or indeed the sale of the property sought to be protected.

The utmost good faith must be shown by litigants making applications of this nature. They should place all material facts before the Court to enable the Court to make an informed decision: see N & R Agencies (Pvt) Ltd & Anor v Ndlovu & Anor HB198-11 and Graspeak Investments v Delta Corporation (Pvt) Ltd 2001 (2) ZLR 551 (H)…, where NDOU J stated, as he quoted with approval, HERBESTEIN and VAN WINSEN, The Civil Practice of the Supreme Courts of South Africa;

“The utmost good faith must be observed by litigants making ex parte applications in placing material facts before the Court, so much so that if an order has been made upon an exparte application and it appears that material facts have been kept back, whether wilfully or mala fide or negligently which might have influenced the decision of the Court whether to make the order or not the Court has a discretion to set the order aside with costs on the grounds of non-disclosure.”

At p555C, the learned judge went on 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 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.”

I find myself in total agreement with the sentiments expressed by the learned judge.

Here is a litigant that had approached this court a few weeks earlier and had its case dismissed. Its property has already been sold in execution; it was sold on 4 February 2012. The same litigant returns to this Court on virtually the same facts but does not disclose the history of the matter.

In my view, this is a very material non-disclosure and it borders on dishonesty. The courts must always cast a dim view on litigants who pull the wool over its eyes.

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

A more damning piece of evidence which was not placed before me in September 2009 is Reservation Order 1518 made in terms of section 35(1) of the Mines and Minerals Act [Chapter 31:05]. Section 35 of the Mines and Minerals Act [Chapter 31:05] provides thus - “35 Reservations against prospecting and pegging (1) The mining commissioner may, and ...

“35 Reservations against prospecting and pegging

(1) The mining commissioner may, and if so instructed by the Secretary, on the authority of the Minister, shall, reserve by notice posted at his office any area against prospecting and pegging, and all rights possessed by the holder of any prospecting licence or exclusive prospecting order to prospect for and peg minerals shall cease and may not be exercised within such area as from the date and hour of the posting of such notice or such later hour or later date and hour as may be specified in such notice:

Provided that the holder of a mining location, other than an exclusive prospecting reservation, within any such area shall retain and may exercise all rights lawfully held by him which existed at the date and hour as from which such notice takes effect in terms of this subsection.”

The effect of declaring an area reserved is plain; no-one can prospect or peg. All rights possessed by holders of any prospecting licence or exclusive prospective orders to prospect for, or peg, minerals cease. Only the rights of a holder of a mining location within the area which existed at the time of the pegging are saved.

I have already adverted to the evidence placed before me in respect of the reservation according to the applicants. The truth of the matter is that the applicants knew when they appeared in September before me that there had been reservation of the area in dispute as far back as 2004. The impression they created in September 2009 was that this reservation did not cover the area in which their claims lay. Indeed, they swore affidavits to this effect in other proceedings arguing that an extension of the initial Reservation 1518 was surreptitiously undertaken in order to disentitle them of their already existing claims. Presently, counsel for the applicants still argues that this issue was placed before me. I am at a loss as to how he can say this. Had this been placed before me I do not see how counsel for the first respondent would have made the concession he did or how I could have missed the effects of such clear prohibition. Had he been forthright with the court in September 2009, one would have expected him to clearly state that there is a dispute as to the nature and extent of the original reservation area 1518. One would have expected him to argue that certain of the applicants' claims are saved from the effect of a reservation since they pre-existed the declaration of the reservation. He would have, in other words, confessed and avoided the issue.

He did not.

To my mind, his clients knew back then the effect a disclosure of this aspect of the matter would have on their case. They chose to selectively place certain information before me at the exclusion of this aspect of it. I am convinced that the applicants knew that had this court's attention been drawn to the section 35 of the Mines and Minerals Act [Chapter 31:05] reservation, the court would not have granted the order it did.

HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA
Ruled By: MAVANGIRA J

The defendant refused to disclose his monthly income in South Africa where he is now employed on the ground that he did not think it would be in his best interests to do so. On this particular aspect, the defendant chose not to be candid with the court, and, again, I find persuasive the further submission ...

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

The applicant is a duly registered company in terms of the laws of this country. It is in the business of importing and marketing fuel in terms of licence number 000228 issued by the respondent Ministry on the 2nd of January 2009. It is common cause that on the 4th of September 2009 a consignment of 476,427 litres ...

It is common cause that on the 4^th of September 2009 a consignment of 476,427 litres of diesel was imported into the country from Sasol South Africa through the Beitbridge boarder post. The diesel was delivered to Zimbabwe in train wagons to be off-loaded at NOCZIM, Beitbridge but destined for Chiredzi. The transporter was unable to off load the product on the instructions of the second respondent, a director in the first respondent's ministry.

The second respondent's functions include:

1. Managing, monitoring and reviewing all Government-initiated or sponsored liquid fuel supplies contract and all fuel safety and quality standards; and

2. Providing leadership and facilitating the strategic management process to guide the operation of the Petroleum Department and the oil industry.

The applicant's complaint is basically that the second respondent is abusing his authority and has taken the law into his own hands by placing an embargo on the product when there is no law which authorizes him to do so.

The responsible Minister in the respondent's ministry has since filed an affidavit dated 8^th October 2009 ratifying the second respondent's conduct. In that affidavit he acknowledges responsibility for his conduct in the following terms:

"4. On the 14^th September 2009 I ordered the return of substandard diesel imported by a company called BSKY because it did not meet the quality specifications that we have determined. The level of 4400ppm imported by BSKY was too high and thus unacceptable.

5. Moreso is the fact that the high sulphur content of 50ppm to 500ppm is a Regional standard that has been agreed upon by South Africa, Zimbabwe, Tanzania, Mozambique, and Malawi. This position has been approved by Cabinet.

6. This Cabinet position is known and was communicated to the oil industry leading to the setting up of the National Procurement Committee to enforce quality and prices monitoring, and, sometimes, control.

7. Soon after we liberated the importation of fuel the rule of practice in the industry to set the quality has now been breached by BSKY.

8. There is no understanding the damage that can be caused by high sulphur diesel being imported in the knowledge of the serious corrosive effect.

9. The imported diesel is hazardous to property and I believe, as Minister of the State of Zimbabwe, I have a duty flowing from the Constitution to protect our citizens and property posed by such dangers knowingly caused by a licensed company because it believes there may be a gap in the law in terms of quality level stipulation by statutory instrument.

10. I am reliably informed that the diesel is a hazardous substance therefore is limited in its use as it damages the environment.

11. I am informed, in terms of the Environmental (Hazardous Substances Pesticides and Other Toxic Substances) Regulations, 2007 such substance(s) can only be imported under notification and license from the Environmental Management Agency.

12. I am also informed that counsel for the applicant has failed to produce the same under law.

13. The licence issued by my ministry is not for the importation of the substandard fuel."

Upon placing an embargo on the fuel in dispute the ministry constituted an investigating team comprising Ministry and NOCZIM staff. The team's terms of reference were to inspect the product by way of reading documents or breaking seals and taking samples for testing. Thereafter, the team would gather information and report on the quality of fuel being imported by various companies through the Beitbridge boarder post.

In discharging its mandate, the team was supposed to work in conjunction with ZIMRA staff. ZIMRA however objected to the intended investigations particularly the breaking of seals and taking of samples pointing out that it was unlawful. With much reluctance ZIMRA management finally granted the team access to the relevant documents. The team then proceeded to discharge its mandate by restricting itself to perusing the documents without breaking the seals and analyzing samples. In its written report the investigating team made the following findings:

"Findings

(a) We found that all fuel from SASOL was of the high sulphur type (0.5/500ppm). This is far above Zimbabwe spec.

(b) All companies importing SASOL products were dumping its product on poor countries (Zambia, Zimbabwe, DRC and other countries).

(d) We have always been using high sulphur diesel in our engines, so there is no new harm that can be done now.

(e) Ministry, in collaboration with EMA and ZIMRA, to draft an instrument on fuel specifications that is legally binding.

(f) ZIMRA to act on the basis of the instrument on fuel specifications so that they deny product on entry.

(g) SASOL to be advised of Zimbabwe's required fuel specifications.

(h) BSKY fuel is released as demurrage charges may be charged to the Ministry upon losing its case.

(i) Fuel samples should be collected at destinations as companies may possibly change their paper work without changing their product quality.

OPTIONS

Option One

Stopping high product entry.

Implication of Option One

It has some legal implications as there is no instrument to that effect. This may also result in critical fuel shortage…,.

Option Two

To continue business while putting the required legislation in place.

Implications of Option Two

This will ensure a smooth change over to agreed specs without interrupting product inflow into the country."

The above report is expertly written and presented such that one cannot imagine a better report or recommendations.

What emerges quite clearly from the report is that Zimbabwe has no legal instrument which entitles the respondents, or anyone, to regulate the quality of fuel being imported into the country. This stark reality has left both the Minister and the second respondent groping in the dark for legal authority to justify what is clearly unlawful conduct.

Both the first and second respondents have conveniently made no reference to the above report in their detailed opposing affidavits. As things stand, one cannot but surmise that they have deliberately sought to steer away from the report because it is not to their liking and yet they are unable to challenge its findings. That kind of conduct smacks of a deliberate attempt to mislead the Court by silence particularly on the part of the second respondent whose function includes advising the Minister on policy issues such as these.

On the facts before me it is doubtful that the report was drawn to the Minister's attention before he endorsed the order to place an embargo on the fuel in dispute or at the time he executed his opposing affidavit.

The attempt to conceal the investigating team's report tends to confirm the applicant's allegation that the second respondent was motivated by some improper motive, malice or ill-will in placing an embargo on its fuel when its competitors were importing the same fuel without let or hindrance from the same respondents. The applicant's Managing Director makes the telling point, in paragraph 10 of the applicant's founding affidavit, when he says:

"It will also be seen from the letter from Sasol, dated 1^st October 2009, that apart from the applicant, fifteen other companies are importing the same diesel as the one imported by the applicant in this case. These other companies have been allowed to have their diesel imported into the country without any obstruction. I must point out that Redan, the largest private importer and retailer of fuel in Zimbabwe are importing the same Sasol diesel. This can be seen from the letter from Sasol mentioned above and which I attach as Annexure "E".

The letter from Sasol reads in part:

"As from the 29^th of September 2009 Sasol Oil sold approximately 1,500m³ of Diesel 5000ppm into Zimbabwe. This is to let you know that Diesel 5000ppm is also sold in Zambia and the DRC in considerable quantities. The following companies all moved diesel 500ppm into Zimbabwe for the month of September 2009: UTEC, Nettrade Marketing, Redan, FX International, Petrotrade, Tradimex, Imvuselelo, Cargo Carriers, Lydon, Lemino, Zelda, Stoner Trading, Khumbulani and Bojas."

That much is common cause as the respondents have not been able to challenge those factual dispositions.

In his opposing affidavit, the first respondent nevertheless deposed that in imposing the embargo he was exercising his Constitutional mandate to give general direction and control over his ministry and departments in terms of section 31D of the Constitution which provides that:

"(3) Subject to the provisions of this Constitution and any Act of Parliament, where any Minister has been charged with responsibility for any Ministry or department he shall exercise general direction and control over that Ministry or department, and, subject to such direction and control, any such Ministry shall be under the supervision of a Secretary."

It must be noted that the Constitutional mandate restricts the minister's authority to his ministry in so far as the section states that "…, he shall exercise general control and direction over that Ministry" and not any other Ministry.

While it is correct for the first respondent to say, as Minister, he has a Constitutional duty to exercise general direction and control over his ministry or departments, that Constitutional mandate must be exercised within the strictest confines of the law. It cannot, and must not, be used as a vehicle to act outside the strict confines of the law. The words of PROFESSOR FELTOE, in his booklet, A Guide To Administrative Law…, are instructive when he says:

"All administrative powers (other than those exercised by domestic tribunals) derive from statute and the nature and extent of those powers are to be found in the statutory provisions whereunder these powers have been granted. Such powers are not unlimited. The legislature will not give unlimited power, but, instead, it will give power for specific purpose only or subject to special procedures or with some other kinds of limits. In other words, the limits upon the power are to be discovered by examining the statutory provisions in order to determine what powers the legislature has expressly or impliedly granted. The exercise of a power by an administrative official or body will be invalid unless the official or body is authorized to exercise that power. If an administrator purports to exercise a power he does not have or acts in excess of a power he possesses, his action will be invalid on the basis that it is ultra vires."….,.

Thus, the first respondent cannot use the general powers granted to him by the Constitution to arrogate to himself specific administrative powers which have not been granted to him by the legislature.

His resort to cabinet authority and directives as justification of his unlawful conduct is equally misplaced and without merit because cabinet has no legislative authority. It is trite that laws are made in Parliament and not in Cabinet.

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

In other words, the first respondent is claiming that he has authority to administer the Environmental Management Act simply because he is a Government Minister.

Section 2 of the Environment Management Act [Chapter 20:27], however, defines Minister in the following terms:

"'Minister' means the minister of Environment and Tourism or any other minister to whom the President, may, from time to time, assign the administration of this Act."

What that means is that for the purposes of administering that Act, the law does not recognize any other Minister other than the Minister of Environment and Tourism or any other Minister specifically assigned the task of administering that Act by the President.

In this case, it is common cause that the first respondent, as Minister of Energy and Power Development, he is neither the Minister of Environment and Tourism nor has he been assigned by the President the right to administer the Environment Management Act. For that reason, he cannot assign to himself the power to administer the Environment Management Act without usurping both the President and the Minister of Environment and Tourism's functions.

That being the case, the first respondent's conduct, in assuming responsibility over the Environment Management Act, without Presidential authority, was unconstitutional, and, to that extent, unlawful. In legal parlance his conduct was ultra vires the Constitution as read with the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007.

Looked at from a different angle, a perusal of the Constitution, the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007 shows that nowhere do they authorize any Minister to place an embargo on any fuel on the basis that its specifications constitute a hazardous substance or is harmful to motor vehicles. This explains why the responsible Minister, that is to say, the Minister of Environment and Tourism has wisely chosen not to interfere with the importation of the diesel in question.

Resorting to the Constitution, the Environment Management Act [Chapter 20:27] and the Environment Management (Hazardous Substances, Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007 could not assist the respondents achieve their purpose considering that in the case of Minister of Justice and Law and Order and Another v Musarurwa and Others 1964 RLR 298 the Appellate Division held, per BEADLE CJ, that:

"(3) When several Acts are used together for the single purpose of producing a desired result, all the Acts must be looked at together as comprising one scheme, If, in its pith and substance, such scheme is unlawful, what was done under each Act must be regarded as having been unlawfully done."

In the same case, QU'ENET JP weighed in with the observation that:

"In exercising his powers of restriction, the Minister was not influenced by a desire to give effect to the purpose of section 50(1)(b) of the Law and Order (Maintenance) Act [Chapter 39], but by a desire to achieve a result not contemplated by the section, viz, to regulate the visits of other persons to the area of restriction. The existence of such ulterior motive invalidated the orders."

In this case, the Minister's resort to section 72 of the Environment Management Act was not motivated by a desire to advance the purpose of that section but to bar the applicant from importing the diesel in circumstances where others were importing such diesel without let or hindrance. I come to that conclusion because the section does not authorize anyone to bar the importation of such diesel. It reads:

"72 Hazardous waste

(1) The Standards and Enforcement Committee shall, in consultation with the Agency, recommend to the Board standard criteria for the classification of hazardous wastes with regard to determining —

(a) Hazardous waste;

(b) Corrosive waste;

(d) Toxic waste;

(f) Radioactive waste;

(g) Any other category of waste the Board may consider necessary.

(2) The Board shall, on the recommendation of the Standards and Enforcement Committee, issue guidelines and recommend to the Minister the making of regulations for the management of each category of hazardous waste determined under subsection (1).

(3) Regulations referred to in subsection (2) may prescribe the procedure and criteria for:

(a) The control of imports and exports of toxic and hazardous chemicals and materials permitted to be so imported or exported;

(b) The distribution, storage, transportation and handling of chemicals and materials."

As can be seen, the section simply authorizes the responsible Minister to make regulations controlling the importation of hazardous waste. Diesel with a high sulphur content is however not waste. The section does not prohibit the importation of substandard fuel.

The general rule of law is that what is not prohibited is allowed. As the importation of sub-standard fuel is not prohibited by law it means its importation is legally permissible.

It follows, therefore, that the Investigating Committee and ZIMRA were absolutely correct in advising the second respondent that his conduct was unlawful.

He disregarded that sound advice at his own peril.

His conduct becomes especially malicious and objectionable if one takes into account that he singled out the applicant for victimization in circumstances where fifteen (15) others were not penalized at all and continue not to be penalized for the same alleged misdemeanor. This discriminatory conduct offends both against the Constitution and all notions of justice and fairness.

Being an adviser to the first respondent, the second respondent appears to have misled his principal by concealing and deliberately not disclosing to him the Investigating Committee's report.

That kind of conduct cannot be tolerated by these courts.

By consciously ignoring sound advice, thereby deliberately straying into the wilderness of costly illegality, the second respondent cannot cry foul when he is personally visited with adverse costs.

Granted, the second respondent was acting in the course of duty as a civil servant but while going about his duties he was not entitled to act unlawfully thereby trampling on other people's rights.

A civil servant, or any other employee for that matter, who acts unlawfully in the course of duty attracts personal liability for the simple reason that he is not employed to discharge his duties contrary to law. People must not cause harm to others under the guise of executing official duties. There is therefore no merit in the second respondent's objection to being sued in his personal capacity.

While the importation of substandard fuel is undesirable and harmful to public interest, there is absolutely nothing the respondents can do about it in the absence of the necessary legal instruments as recommended by the Investigating Committee. This is what the cherished rule of law is all about.

It is accordingly ordered that a provisional order be and is hereby granted in the following terms:

TERMS OF THE FINAL ORDER SOUGHT

Pending the final determination of this matter, Applicant is granted the following relief:

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

(a) That the respondents pay demurrage costs to the amount of South African R308,660=.

(b) That the respondents pay costs of suit on an attorney client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief:

(c) That the Respondents release to the Applicant diesel or its agent fuel held at Beitbridge being a total of 476,427 litres without any conditions.

(d) That the Respondents are interdicted from unlawfully frustrating or preventing Applicant from carrying out its business of trading in fuel including importing and distributing fuel in the country.

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA
Ruled By: MAKARAU JP

I did not believe the plaintiff when he testified that he telephoned the second defendant as he alleges. He did not give the date when he actually made the payment. He was very vague about it saying it was between 7-14 days after the date of the quotation. The plaintiff is not a vague man. He ...

HH125-09 : TAKAWIRA MAPAYA vs STEELFORCE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JP

In casu, it is not in dispute that the defendant does not have in its stock the two steel products. It has not been proved before me that the steel products are readily available on the market. The plaintiff was uncharacteristically cagey when it came to testifying about the Y12 that he purchased elsewhere on the ...

HH74-10 : CHARLES MAKANI vs GERTRUDE MAKANI (NEE ZIMONDI)
Ruled By: GUVAVA J

The plaintiff gave his evidence well. He gave full explanations both in his evidence in chief and when questioned in cross examination. His evidence was supported by documentary evidence, and, even where it was not so supported, it was plausible and coherent....,.The defendant, on the other hand, did not strike ...

HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU
Ruled By: GUVAVA J

In assessing the evidence it seemed to me that the plaintiff was intent on showing that the defendant had not contributed at all in the acquisition and construction of the property. He, however, did not dispute the defendant's evidence that they earned about the same salary and the plaintiff could ...

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

The plaintiff gave her evidence in an honest and forthright manner. Her demeanor was good, and, although she was subjected to a lengthy and detailed cross examination she did not get angry or lose patience. She stuck to her story and answered questions put to her politely. She was candid ...

View Appeal
HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON
Ruled By: MAVANGIRA J

The respondent accepts the need for the variation of the maintenance order, and has, in fact, proposed the amount that he should be ordered to pay.But he has not taken the court into his confidence and divulged/stated how much income he gets, albeit, from the occasional jobs that he says ...

HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA
Ruled By: KUDYA J

The plaintiff gave his evidence in a quiet and dignified manner. He was not shaken in cross examination. His testimony was supported by..., and...,. I found both..., as honest, candid and forthright witnesses who did not exaggerate. The exhibits that were produced confirmed that he told the truth. His version ...

HB33-09 : CASTRO NDLOVU vs IAN DAVID GUTHERLESS N.O. and DONALD MAZWI SIBINDI and DIDYMUS MUTASA N.O. and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS-BULAWAYO
Ruled By: KAMOCHA J

Where it is found that a litigant was less candid with the court, such litigant should not expect the court to come to his/her assistance.In casu, as shown above, the applicant's affidavit was riddled with out and out falsehoods.

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

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

He was sentenced to twelve days imprisonment.

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

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

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

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

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

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

He was convicted and sentenced to twelve days imprisonment.

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

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

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

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

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

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

The intention of the legislature is clear.

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

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

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

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

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

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

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

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

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

The applicant filed this urgent application seeking an order staying his imprisonment for twelve days as ordered by the fourth respondent. He seeks the stay of his imprisonment pending the review of his case. He says he is taking the proceedings on review before the High Court and seeks the stay of the sentence pending review.

He does not state that he has already filed a review, nor does he state the review case number. There is nothing on the record to show that the application for review has been filed.

Counsel for the applicant complains that he is facing difficulties in obtaining the judgment and record of proceedings.

If that is true, he can initiate other forms of review.

The applicant cannot, however, rely on an automatic review to this court because section 31 of the Police Act does not apply to the sentence imposed on him.

Section 31 of the Police Act [Chapter 11:10] provides for the review of the tribunal's proceedings by this court as follows:

“(1) Where a board of officers imposes on a member a sentence of a fine in excess of level three or a period of imprisonment in excess of one month, the record of the proceedings shall forthwith be forwarded to the registrar of the High Court together with —

(a) Any statement that the president of the board may wish to make; and

(b) Any statement relating to the sentence that the member may wish to make.
(Subsection amended by section 4 of Act 22/2001)

(2) On receipt of the record and statements referred to in subs (1), the registrar of the High Court shall forthwith place such record and statements before a judge of the High Court in chambers for review.

(3) A judge before whom a record and statements are placed in terms of subs (2) may —

(a) If the proceedings appear to him to be in accordance with substantial justice, confirm the proceedings and endorse the record to that effect; or

(b) Exercise the powers conferred upon a judge of the High Court by subs (5) of section 29 of the High Court Act [Cap 7:06] as if the proceedings were the proceedings of a Magistrate's Court.”

In terms of section 31(1) of the Police Act, the proceedings in which the applicant was convicted and sentenced are not subject to an automatic review. Automatic review only applies to sentences imposed by a Board, and exceeding level three, or imprisonment exceeding one month.

The applicant was tried by one officer in terms of section 34(1) of the Police Act. Section 34(3) of the Police Act provides for a review of such proceedings by the Commissioner. The section provides as follows:

“(3) Every officer who convicts and sentences a member under this section shall forthwith transmit the proceedings for review by the Commissioner, who may —

(a) Confirm the conviction and sentence;

(b) Alter or quash the conviction or reduce the sentence or substitute a different but not more severe sentence;

(c) Quash the conviction and sentence and remit the matter for trial afresh before a different officer;

(d) Remit the matter to the officer with instructions relative to the further proceedings to be held in the case as the Commissioner thinks fit:

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

Section 34(3) of the Police Act therefore establishes that the Commissioner is the reviewing authority.

The case can therefore only be reviewed by this court if an application for review is filed, or in terms of section 29(4) of the High Court Act [Chapter 7:06], which provides as follows:

“(4) Subject to rules of court, the powers conferred by subss (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.”

Section 29(4), of the High Court Act gives this court, or a judge of this court, wide review powers.

It allows a judge to call for and review any proceedings of an inferior court or tribunal it becomes aware of and forms the view that they are not in accordance with real and substantial justice. The judge is empowered to call for and review any proceedings - even those he may hear about through the press, or a letter, or any other source of complaint or information.

This procedure can however not be used to review these proceedings because the applicant claims to have filed an application for review.

His legal practitioners must be allowed to represent him and seek justice for him. The courts should not be seen to be championing the cause of a legally represented applicant. That is why trials in the Magistrate's Courts, in which the accused is represented by a legal practitioner, are not subject to an automatic review.

The applicant's case has actually been heard by the Commissioner as an appeal in terms of section 34 (7) of the Police Act: see the Commissioner's affidavit in which he said he has dismissed the appeal.

The applicant did not respond to the Commissioner's opposing affidavit.

This means the applicant is not being candid with the court. He clearly did not initially consider the reviewing of the proceedings necessary until his appeal was dismissed. This tends to show that the review is an afterthought, and an act of desperation aimed at avoiding imprisonment. That must be why he does not even state that he has already applied for the review nor state the review case's number.

HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: MAVANGIRA J

The defendant was very reluctant to tell the court how much he was earning per month saying it was difficult to calculate. But, as submitted by the plaintiff's legal practitioner, how can a tradesman not be able to calculate what he earns per month? He does the work, renders an invoice, and receives payment. What ...

HH168-10 : THOMAS TUNGAMIRAI vs LORRAINE TUNGAMIRAI
Ruled By: MUSAKWA J

As for his earnings, he said it was difficult to say.

HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS
Ruled By: CHATUKUTA J

The plaintiff issued summons on 23 July 2007 claiming the following relief:“(a) An order declaring that the only families entitled to the Mapanzure chieftainship are the following families:1. Chimbuya.2. Magwirokona.3. Mavhengere.4. Bwangundoga.5. Mupandasekwa.6. Gwenhamo.7. Shumbayaonda.(b) An order declaring that according to customary principles of succession to the Mapanzure chieftainship, the ...

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

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

1. Chimbuya.

2. Magwirokona.

3. Mavhengere.

4. Bwangundoga.

5. Mupandasekwa.

6. Gwenhamo.

7. Shumbayaonda.

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

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

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

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

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

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

The action was only defended by the first defendant.

The History of the Mapanzure Chieftainship

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

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

Both documents contain the genealogy of the Mapanzure chieftainship.

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

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

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

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

1. Mupandasekwa 16. Rutoro

2. Chimbuya 17. Kuvengashe

3. Kufandada 18. Rima

4. Zingoni 19. Mutukwa

5. Chatikobo 20. Gowo

6. Musinazano 21. Chirudumwa

7. Chihava 22. Ruchanyu

8. Shumbayawonda 23. Ganda

9. Chizema 24. Wushe

10. Magwirokona 25. Bgwango

11. Tsungirai 27. Vushangwe/Rushangwe

12. Zishiri 26. Tirivahera

13. Mutodzaniso 28. Gwenhamo

14. Hapanyengwi 29. Chivendera

15. Tavareva 30. Taiziziva

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

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

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

Plaintiff's case

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

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

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

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

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

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

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

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

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

The plaintiff called his brother, Luckson Jayadhara Chimbuya.

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

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

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

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

First Defendant's case

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

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

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

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

The first defendant took the stand.

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

His son, Ignatius Vushangwe, testified on his behalf.

He testified as follows:

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

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

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

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

Assessment of Evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

A: Chimbuya.

Q: If Chimbuya died?

A: To Kufandada.

Q: Why would chieftainship devolve that way?

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

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

A: (plaintiff read out the names)

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

A: No. Makatu is a child.

Q: At what time would Makatu become chief?

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

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

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

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

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

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

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

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

The mode of succession that appears in the answers is in fact supportive of the succession of the Mapanzure's chieftainship according to seniority.

Kufandada was not from one of the alleged royal houses. He was Mazorodze's third son. Chizema was not also one of the alleged royal sons. He was the next son after Shumbayawonda. The next royal son, after Shumbayawonda, would have been Magwirokona.

The explanation by the plaintiff, that, upon the death of Chimbuya, the chieftainship did not go to Mupandasekwa's house because Mapandasekwa's children were very young but therefore went to Chatikobo was supported by Luckson Jayadhara Chimbuya. Jayadhara testified that Mupandasekwa's children were so young that they had not yet started talking.

This explanation is also at variance with the plaintiff's case that chieftainship rotates among the royal houses irrespective of the age of the children from the next royal house.

The plaintiff therefore conceded and supported the first defendant's contention that chieftainship was according to seniority although he would retract the concession under the pretext that he had been misquoted.

The plaintiff could not further explain why, upon the death of Gwenhamo, the chieftainship went to Masimba Shumbayawonda of the Shumbayawonda house instead of either to the Mupandasekwa or the Chimbuya houses.

He accepted that Mupandasekwa was Mazorodze's first son and Chimbuya the second son. Gwenhamo was the 28th son and Shumbayawonda the 8th. If succession follows the royal houses, the plaintiff failed to explain why the chieftainship by-passed both the Mupandasekwa and Chimbuya houses to go to the 8th house of Shumbayawonda.

The plaintiff's evidence, that there were only seven royal houses, is also not supported in the 1965 report that he produced as an exhibit. At p17 of Exhibit I, it is stated that:

“The order of birth of Mazorodze's sons, as given here, is probably not 100 percent accurate; Sister Aquina, in her article 'The Tribes in Victoria Reserve' (NADA 1965) records: Eight out of the twenty sons of Mazorodze…, became chiefs. This implies that there were twenty sons of Mazorodze. As can be seen from the genealogy given here, I have now established there were no less than 30 sons and probably more…,.”

It therefore follows, that, in 1965, when Sister Aquina did her own research, eight and not seven of Mazorodze's sons had become chiefs.

Although the plaintiff's initial evidence was that the first defendant was not entitled to ascend to chieftainship, he finally conceded, under cross-examination, that he was in fact eligible.

He however made a qualification that the first defendant's turn had not yet arrived.

He conceded that the last chief, Masimba, was his uncle (or “father”) and of the 6th generation. He further conceded that the incumbent, the first defendant, is also his uncle, his father's brother and of the 6th generation. Masimba and the first defendant would therefore be his “fathers”.

If one were to go by his concessions, he cannot be entitled to chieftainship as he is of the 7th generation and therefore a “son” to the incumbent. The plaintiff could therefore not be in the line of fathers as he alleged in his evidence. The plaintiff's concessions in fact support the first defendant's evidence to the effect that he (the first defendant) was eligible for succession as he was the eldest surviving in the generation of the plaintiff's “fathers”.

Turning to the question whether or not a meeting of the houses was held to select the incumbent, Luckson Jayadhara Chimbuya confirmed, in his evidence, that a meeting was indeed held although did not attend the meeting. The fact that a meeting was held is also confirmed by Pesanai Gozho Chatikobo.

It appears to me that Pesanai Gozho Chatikobo was not confused as to which meeting selected the first defendant as chief as alleged by the plaintiff's counsel and confirmed in the first defendant's closing remarks.

He testified, under cross-examination, as follows:

“Q: Apart from members of the clan who else who is notable was present at the meeting?

A: Most of the people are now dead.

Q: (Question was repeated). Was the Minister present?

A: The Minister was not present. We might not understand each other. I am referring to the meeting where the name of the current chief emerged. That is what I have referred to as the meeting that was attended by the elders. Even the DA was not there. We were still holding meetings as the clan.”

Even assuming that the witness may have been confused, I do not find that the confusion was intended to mislead the court.

The witness gave the clearest explanation of the Mapanzure chieftainship which substantially tallied with the documents and genealogies that the plaintiff and the first defendant relied on. He also gave the clearest evidence on how the meeting was convened. He stated that the meeting was convened by the acting Chief Masimba and was held at the late Chief Masimba's homestead.

The plaintiff was not able to challenge this evidence.

The fact that meetings were held is further supported by the letters produced by the parties.

It is recorded, in a letter dated 1 December 1993, from the District Administrator to the Provincial Administrator, that, several meetings were held to choose the next chief. The last meeting where the first defendant's selection was confirmed was attended by members of all the houses of the Mapanzure chieftainship. There were 38 kraal heads, 120 elders of the Mapanzure chieftainship, councillor Mapanzure, Vidco, and Ward chairpersons of the Mapanzure chieftainship and the District Administrator.

The letter was common to both parties' bundle of documents.

In another letter, dated 21 June 2004, from the Provincial Administrator to the plaintiff, produced by the first defendant, the Provincial Administrator stated as follows:

“I wish to advise you that this issue should not just be Chimbuya House v Bvuramai. All houses must be involved like they were involved in the initial selection process. The initial meeting must be held without the involvement of this office. 'Tangai mataurirana vana vanyamunhu.'”…,.

I had difficulties in accepting the plaintiff's evidence that it took him over 10 years to discover that the first defendant had been appointed in 1995.

The plaintiff testified that he visited his communal home frequently. On the other hand, Luckson Jayadhara Chimbuya testified that when the plaintiff did not visit his communal home, he (Jayadhara) would visit the plaintiff at his urban home.

The appointment of a chief is a momentous occasion attended by a lot of people including senior Government officials. This was confirmed by Pesanai Gozho Chatikobo.

If the plaintiff did visit his communal home frequently, and I do not doubt him on that score, he does not appear to have been telling the truth when he said that he only became aware of the first defendant's appointment after ten years.

Luckson Jayadhara Chimbuya also sought to mislead the court when he initially testified that he had also not known of the appointment of the first defendant.

He resided in the rural area and such news could not have passed his ears. At least, he later, in his evidence, had the decency to confirm that he had heard of the meetings where the first defendant was selected and appointed chief but he did not attend any of the meetings.

He testified that although he knew of the appointment of the first defendant, he could not complain because Manyoka, the councillor, had told the villagers not to challenge the appointment as it was according to seniority.

It appears to me that he would not have missed telling the plaintiff of the appointment considering that the Chimbuya family had been vying for the chieftainship since the death of Gwenhamo.

HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

On 1 September 2008, L.T. Chitsaka, the Chief Executive Officer of the second respondent, made an electronic transfer of $38,884= to Global Gifts Concepts (Private) Limited, which is the name of the account in whose favour the deposit of $225,000= had been made. Again, on the same day, Apple Tree Holdings (Private) Limited, ...

On 1 September 2008, L.T. Chitsaka, the Chief Executive Officer of the second respondent, made an electronic transfer of $38,884= to Global Gifts & Concepts (Private) Limited, which is the name of the account in whose favour the deposit of $225,000= had been made. Again, on the same day, Apple Tree Holdings (Private) Limited, which had been named as the beneficiary into whose account the $225,000= had been deposited into made an electronic transfer into the account of Global Gifts & Concepts (Private) Limited of an amount of $146,900=. On 15 September 2008, L.T. Chitsaka, who handled the transactions on the sale, deposed to an affidavit wherein he narrated his part in the whole saga. He does not favour the court with the reason why the first respondent, having insisted on a purchase price of $225,000=, had not signed the offer form in the sum suggested by him. He also states that he prepared an Agreement for signature by the parties, but, again, does not explain when exactly the Agreement was prepared, and further, why the first respondent did not sign the same. More importantly, he fails to explain how the money came to be deposited into an account over which he had control given the refusal, or disinclination, by the first respondent to sign any of the documents. This account is not in the name of the second respondent, the estate agent for the sale and purchase of the immovable property. He states that he has returned the money, yet, in his affidavit, he contends that he is holding onto the money on behalf of the first respondent. He states that he has asked the first respondent to take the money. This is not true. The second respondent apparently tried to return the money, as the Annexures G1 and G2 show. He does not explain why he attempted to return the money to the purchaser barely four days after the transaction had been concluded. He has omitted to tell this important fact, and the reason why the money was returned.

In my view he is not being candid with the court.

HH125-10 : SNOCROSS INVESTMENTS (PVT) LTD vs IRVINES ZIMBABWE (PVT) LTD
Ruled By: KUDYA J

The other witnesses who were called by the plaintiff were candid and forthright in their testimonies. They admitted some facts which were against their interest, such as knowingly overloading their trailer. Their versions on the weight of the loaded trailer were corroborated by the documentation that was raised by the defendant's employees which was ...

HH225-10 : SOUTHEND CARGO AIRLINES (PVT) LTD and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE and THE SHERIFF OF ZIMBABWE and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

A document filed in support of the applicant's supplementary affidavit, and alleging that the debt had been paid in full, was abandoned at the hearing of this matter. I therefore need not repeat its contents. Upon counsel for the first respondent having queried why the supporting letter to the supplementary affidavit, written on 21 April ...

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

In a plea filed on behalf of the defendants on 4 December 2007 they were evincing a willingness to abide by the terms of the contract provided they were allocated foreign currency by the Reserve Bank of Zimbabwe. Further to that, in a summary of evidence filed more than a year later the defendants ...

HB129-10 : HERBERT VAN DEN BERG and CYNTHIA BESWICK vs FRANK LANG
Ruled By: MATHONSI J

This matter is characterized by a lack of disclosure of useful information as would enable one to make an informed decision on the facts. The brevity of the papers filed and the obvious unwillingness of counsel to clarify the dispute that exists between the parties constitute a challenge indeed.

HH21-11 : CHRIST EMBASSY ZIMBABWE vs CHIDZIVA INVESTMENTS (PVT) LTD
Ruled By: CHATUKUTA J

The second defence was that the parties never agreed to a monthly rental of US$5,000= claimed and awarded to the respondent. It was contended that the applicant had offered to pay a rental of US$200= per month. The respondent argued that the rental was US$5,000= as reflected by a handwritten endorsement on a letter dated ...

The second defence was that the parties never agreed to a monthly rental of US$5,000= claimed and awarded to the respondent.

It was contended that the applicant had offered to pay a rental of US$200= per month. The respondent argued that the rental was US$5,000= as reflected by a handwritten endorsement on a letter dated 8 August 2008 written to it by the applicant.

It is apparent from the communication between the parties that the applicant was labouring under the impression that the rental was US$2,000= per month (and not the US$200= referred to in the applicant's heads of argument). In a letter dated 8 October 2008, written by Stowell Mupanguri, the applicant offered a monthly rental of US$2,000=. In another letter, dated 25 August 2009, by one Mathew Kanganwayi, the applicant offered to settle the arrear rentals in the sum of US16,000= by way of two instalments of US$8,000= each payable on 15 September 2009 and on 7 October 2009. Thereafter, the applicant would pay a monthly rental of US$2,000=. The last paragraph of the letter is further informative. It reads:

“We would have loved to accompany this letter with $2,000= (USD) as payment for this month's rental, but we saw it wise to invest the $2,000= (USD) into the business ventures stated above so as to be able to raise the required finances to settle the arrears of $16,000= (USD) and create solid and stable sources of finances towards the rentals of the building in subsequent months.”

The letter referred to two meetings held between the representatives of the satellite church and the respondent's legal representative, Mr Chidziva, prior to the letter on 13 and 19 August 2009. The letter commences with an offer to settle a total of US$16,000= arrears. The amount tallies with rentals for 8 months starting from November 2008 when the respondent took occupation of the premises up to August 2009 when the letter was written. The meetings alluded to in the letter dated 25 August 2009 were held well after that endorsement on the letter of 8 October 2008. Both letters were filed by the respondent. There is no other letter from the respondent disputing the amounts reflected in the two letters let alone denying the purported nature and discussions of the meetings held between the parties on 12 and 19 August 2009.

The above communication was not placed before the court in case no. HC3672/09. Of concern is the fact that the respondents were well aware of the communication and the meetings held to resolve the impasse yet these were not brought to the attention of the court. The respondent relied, in its application, to a letter of demand dated 9 July 2009 stating that the rental was US$5,000= per month. The applicant did not bring to the attention of the court that subsequent to the letter of demand, there were two meetings held on 12 and 19 August and the letter dated 25 August 2009 which states a different monthly rental of US$2,000=.

Counsel for the respondent should have, as an officer of the court, brought the information to the attention of the court. It appears that he had been the respondent's legal practitioner throughout the negotiations at the meetings held on 12 and 19 august 2009. I find counsel for the respondent's conduct to be injudicious under the circumstances and borders on unethical conduct. I believe that had the court been made aware, by the respondent, of the meetings and contents of the letter, it may not have granted the order. The letter was only produced in the present case to show that the applicant was not being truthful when it says that the parties had agreed to a rental of US$200= per month. Unfortunately, for the respondent, the letter is a double-edged sword. It also shows that the parties had not agreed to a monthly rental of US$5,000=.

I shall not venture to hazard an explanation as to why the respondent withheld from the court such vital information then and only produced it in the present case.

It therefore appears to me that the applicant has prospects of success in so far as the arrear rental due and the holding over damages are concerned. I am therefore of the view that it is equitable under the circumstances that rescission be granted.

In the result, it is ordered that:

1. The judgment entered on 28 October 2009 in case no. HC3672/09 be and is hereby rescinded.

2. The respondent shall pay the costs of this application.

HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI
Ruled By: GUVAVA J

The plaintiff, in my view, was not an honest witness. He tried to paint the defendant as an uncaring mother who did nothing for the well-being of the family, and, yet, documentary proof produced by the defendant showed that she would bring home substantial sums of money. He also tried ...

HH79-11 : RUDO ELIZABETH SIMANGO (nee MAKONI) vs PAUL SIMANGO
Ruled By: CHITAKUNYE J

It may also be noted that the applicant was not clear on how she hoped to take care of Nathan Simango upon assuming custody. She seemed unwilling to take the court into her confidence regarding this issue.

View Appeal
HH129-13 : AIR ZIMBABWE [PRIVATE] LIMITED and AIR ZIMBABWE HOLDINGS [PRIVATE] LIMITED vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

It transpired during argument that contrary to the allegations by the applicants in their founding papers the release from attachment of the assets in question at Stephen Nhuta's instance, in February 2013, had not been the result of any respect by Stephen Nhuta of the new Finance [No.2] Act, Act No.6 of 2012 which ...

HH25-14 : STEVEN VHAVHA vs MSIZI DUBE and THE DIRECTOR OF HOUSING, CHITUNGWIZA and MUNICIPALITY OF CHITUNGWIZA and NANCY KUTYAURIPO
Ruled By: CHITAKUNYE J

Though it is common cause that this is how the first defendant acquired the property, the first defendant's effort at repelling the plaintiff's claim was riddled with inconsistencies and contradictions. He found himself having to change his stance at certain intervals. For instance, in paragraph 2 of his plea the first defendant denied that he misrepresented to the court that the property belonged to the fourth defendant. He went on to say, instead, the property was matrimonial property of which the fourth defendant was awarded 70% and the plaintiff 30%. In his viva voce evidence, the first defendant said that on his first visit to Chitungwiza Municipality Offices he was told that the property belonged to the fourth defendant. He was in fact shown confirmation of this on the Municipality's computers. In his amended summary of evidence he alluded to the fact that when he approached the Chitungwiza Municipality Offices it was confirmed to him that the fourth defendant owned the property. As a result of such confirmation he went on to buy the property.

The above stance is not consistent with paragraph 2 of his plea where he gives the impression he was aware the property was matrimonial property subject to an order for sharing.

In his initial summary of evidence, the first defendant stated that he purchased the property from the fourth defendant with the consent of the plaintiff yet in the amended summary of evidence he seemed to admit the plaintiff was not involved in the sale as he did not know him. That initial summary of evidence further states, inter alia, that:-

“a) He met plaintiff and the fourth defendant and they both showed him a court order for disposal of the property; that

b) Since the fourth defendant had 70% share in the said property the agreement of sale was supposed to be entered between him and the plaintiff also consented to that;

c) After payment, the fourth defendant promised to give the plaintiff his share of the proceeds;

d) After lodging a complaint with police when transfer was delayed they went to court and at court they were advised to settle and he requested plaintiff and 4^th defendant to pay his legal fees which they did.”

As it turned out from his amended summary of evidence and viva voce evidence all these aspects were not true.The plaintiff had never consented to the sale as the first defendant met him for the first time in 2009 well after the sale and court appearances referred to by the first defendant.

Under cross examination, the first defendant admitted that it was the fourth defendant who sold the property to him in the absence and without the participation of the plaintiff. He went on to concede that at the time he bought the property he thought the fourth defendant was the owner as she had ZESA and water bills in her name.

In approaching the High Court in HC6685/08, the first defendant indicated that he did not produce any document confirming the fourth defendant as the registered holder of rights and interests in the property. He merely stated so. The first defendant further indicated, under cross examination, that when his name was being substituted as holder of rights and interests he discovered that the registered holder of interests and rights in the property was, in fact, Steven Vhavha and not the fourth defendant. He conceded that the High Court Order in HC6685/08 was, in fact, obtained against the wrong party, a party who was not the registered holder of rights and interest in the property in question. Despite this discovery, he accepted cession into his name after which he proceeded to apply for and obtained a Deed of Grant.

From the above evidence it is clear the first defendant was not a credible witness. The contradictions and inconsistencies alluded to above coupled with the concessions he made under cross examination serve to confirm his desire not to be candid with the court.

HB102-11 : MIRIRAI MUHUSHWA vs LILIOSA STELLA MUHUSHWA
Ruled By: KAMOCHA J

An analysis of the evidence presented by the parties reveals that the plaintiff was not candid with the court about the acquisition of House Number 61 Dulivhadzimu Township. He also was less than candid with the court about the contributions made by the defendant. He was untruthful about when he got married to the ...

HB05-14 : CASPER SIBANDA vs BARNABAS SIGOLA
Ruled By: MOYO J

I have already alluded to the lack of logic in the defence case. Not only did the defendant's case defy logic but the defendant himself was not truthful to the court as he contradicted himself and even disowned the information in the pleadings that he filed. The defendant also struggled under cross-examination to ...

HB99-14 : ELLEN MAJOLA vs BEKEZELA NYONI
Ruled By: MAKONESE J

The court found the evidence of Ellen Majola to be simple and straightforward. She was candid with the court and she gave the impression of an unsophisticated woman who simply narrated events that occurred without any tinge of exaggeration. Her demeanour on the witness stand was satisfactory and I find her evidence to be worthy ...

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SC24-13 : VYVYAN JEAN MORONEY vs MICHAEL PATRICK MORONEY
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

In Leader Tread Zimbabwe (Pvt) Ltd v Smith HH131-03, NDOU J…, 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 ...

HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

The first defendant was not a satisfactory witness. He was not forthcoming in his evidence-in-chief and in cross-examination; he claimed not to know anything. His memory on things which should have been within his knowledge was hazy and fragmented….,. For these reasons I could not accept his evidence.

HH51-15 : JUSTIN MUPAMHANGA vs SAUL GOMWE and JUSTICE DHLIWAYO and BLESSING DOMBOJENA and MINISTER OF LAND AND RURAL RESETTLEMENT (N.O)
Ruled By: MAKONI J

What is emerging from the above, which the applicant had conveniently not disclosed to the court, is that all the parties where settled through offer letters at the same time in 2003….,. The respondents submitted that the applicant deliberately concealed the material and very important fact that he is aware that the respondents have lawful authority, in ...

HB105-16 : MAXWELL SIBANDA vs GAVIN HAYLER and HAROLD HAYLER and MARGARET MEEK and AUDREY BENEDICT and REGISTRAR OF DEEDS N.O. and BULAWAYO CITY COUNCIL
Ruled By: TAKUVA J

What is puzzling is why the applicant was not candid with the court….,. He certainly did not put the court into his confidence.

Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

The respondent deliberately decided not to take the court into his confidence…,.

SC63-18 : SERGEANT MHANDE 04737T and CONSTABLE MHAKA 081215B vs CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: BERE JA

There is no appetite by the applicants, through their founding affidavit, to openly disclose that this application is a second similar application which is being brought to court. That deliberate attempt to withhold information does not project the applicants in good light. Our courts are not keen to grant favorable orders to litigants who withhold vital information to ...

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT
Ruled By: CHITAKUNYE J

The executor gave the applicant the opportunity to bring to the table the UK estate in a transparent manner by suggesting that an administrator be appointed to deal with the UK properties or, at the very least, she provided proof of the nature and extent of the estate in UK, but, as the executor lamented, ...

HB143-16 : SIFISO KHUMALO vs SIHLESENKOSI NDLOVU and ZANELE NDOWA and POLKA EXECUTORS SERVICES PL and OFFICER IN CHARGE LUVEVE POLICE STATION and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

The applicant has not been candid with the court.

HH155-15 : TAYESA BANDA vs VUSANI G.D. SIBANDA and ORRIL ENTERPRISES (PVT) LIMITED
Ruled By: TAGU J

With the greatest of respect, the respondents are not being truthful to the court….,. The respondents dismally failed to take this court into their confidence.

View Appeal
HH319-17 : BINDURA UNIVERSITY OF SCIENCE EDUCATION vs TETRAD INVESTMENT BANK LTD (Under Provisional Judicial Management) and THE SHERIFF OF ZIMBABWE (N.O.)
Ruled By: ZHOU J

The first respondent has not taken the court into its confidence by providing evidence of its exposure to more severe consequences if the relief being sought herein is granted….,. No evidence has been placed before this court to suggest that the purpose of judicial management would be defeated by allowing the applicant to execute its writ against ...

Appealed
SC10-19 : SIPHIWE DUBE vs TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

Courts are averse to and detest dishonest litigants bent on misleading the courts. The function of the courts is to do justice. Lies are detrimental and incompatible with the due administration of justice in that they are bound to mislead the court into the wilderness of injustice. This prompted NDOU J, in Leader Trend Zimbabwe v ...

Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

The plaintiff was very candid about her character in her evidence. She admitted suffering from temporal lobe epilepsy and that before the diagnosis and treatment she was of violent disposition. She also admitted having smoked dagga, about four (4) times, during the marriage, just for fun, with the defendant, and denied that it was in copius ...

HH689-15 : THE SHERIFF OF THE HIGH COURT vs MUNYARADZI MAJONI and PAULINA MAJONI and MANDY M MAJONI and JAMES GUMBI
Ruled By: MAFUSIRE J

Counsel for the judgment creditor argued the claimants had refused to take the court into their confidence. They had flatly refused to disclose the judgment creditor's real place of abode. This latter submission was, no doubt, bolstered by my enquiry of the claimants' counsel, on more than one occasion, whether there was no obligation on the claimants ...

Counsel for the judgment creditor argued the claimants had refused to take the court into their confidence.

They had flatly refused to disclose the judgment creditor's real place of abode. This latter submission was, no doubt, bolstered by my enquiry of the claimants' counsel, on more than one occasion, whether there was no obligation on the claimants to disclose where their mother (or mother-in-law) stayed if they insisted that she did not live at the Gunhill property, given that she herself had supplied that address in her commercial transactions, and given the fact that process meant for her had previously been served successfully at that address. But counsel felt that there was no such obligation….,.

My third reason for dismissing the claimant's claim was their steadfast and conscious refusal to take the court into their confidence as far as the judgment debtor's true place of abode was. They said they had no obligation to disclose. But it was not lost to me what this court had said of the judgment debtor and her case in the provisional sentence proceedings. Delivering judgment in that case CHIGUMBA J (see James Gumbi v Mandy Margaret Majoni HH654-14…,.) had said:

“The facts of this matter, in my view, disclose a tangled web of deceit. The plaintiff is cast in the role of the big hairy spider and the defendant would have the court believe that she is a harmless fly, caught in the spider's web. There is an underlying element that pervades this case, of an unfortunate malaise that has afflicted business transactions in this country in these harsh economic times. People borrow money, then turn around and come up with the flimsiest of excuses to avoid paying back. The court's task is to separate the wheat from the chaff, and to determine who is telling the truth between the borrower and the lender. In order to do this, the court looks at the evidence on the papers which the parties place before it. Sometimes, the court can decide that the whole story is not apparent from the papers before it, and, consequently, refers the matter to trial so that witnesses can testify under oath. Other times, the court can adopt a robust approach when it looks at the papers before it, and decide that the papers contain sufficient evidence for the dispute to be resolved without going to trial.”…,.

Although Her Ladyship made those remarks in relation to the judgment debtor, it was not lost to me that in view of the close blood and marital relationship between her and the claimants, the likelihood of collusion to frustrate the judgment creditor was high. It was not the judgment debtor who was disowning the Gunhill address. It was the claimants themselves. In my view, common sense dictated that if the claimants were divorcing the judgment debtor from the Gunhill property, then it was incumbent upon them to disclose her usual place of abode - especially as they were not professing ignorance of such a place.

HH50-12 : CHEMATRON PRODUCTS ZIMBABWE (PVT) LTD vs TENDA TRANSPORT (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: BERE J

Mr Killian Kufahakurambwi was candid enough to advise the court that he declined to sign the second agreement basically because of two reasons, viz, the delay in dispatching that agreement which meant that the agreement per se had been superceded by other developments since the bulk of the purchase price had already been paid. This delay was ...

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

We are not taken into the first respondent's confidence with regards to the basis on which it decided to peg member applicants' January 2009 salaries as the benchmark for calculating pensionable emoluments.

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MAFUSIRE J

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

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

The facts were largely common cause.

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

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

“IT IS ORDERED THAT;

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

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

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

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

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

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

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

Meanwhile, the plaintiff had changed hands.

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

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

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

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

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

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

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

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

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

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

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

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

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

For the defence, only Mr Gurupira gave evidence.

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

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

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

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

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

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

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

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

That was false.

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

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

Furthermore, it was false to claim that the shares in the plaintiff gave the holder an exclusive right of ownership of the property.

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Findings of Fact re: Witness Testimony iro Candidness with the Court and Deceptive or Misleading Evidence

HH51-12 : TENDAYI MUNDAWARARA vs EMELDA MUNDAWARARA Ruled By: MAWADZE J

HH134-12 : EVANGELIST SANDE (nee NYAMANGUNDA) vs TAKAWIRA KIZITO SANDE Ruled By: CHITAKUNYE J

HH09-09 : SKF ZIMBABWE P/L vs PARIS OLYMPIOUS Ruled By: MAKARAU JP

HH176-12 : HENRY MUSHAMBI vs EXECUTOR, ESTATE MIRIAM MUNEMO (nee MADENGA) and EXECUTOR, ESTATE FAINA MUNEMO (nee MARUMURE) and ELIZABETH NZIRAMASANGA and DIRECTOR OF HOUSING, CITY OF HARARE Ruled By: HUNGWE J

HH57-12 : CENTRA (PVT) LTD vs PRALENE MOYAS and DEPUTY SHERIFF, HARARE Ruled By: BERE J

HH99-12 : SHUNGU ENGINEERING (PVT) LTD vs SIMBARASHE SANGONDIMAMBO & ORS Ruled By: MATHONSI J

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS Ruled By: HUNGWE J

HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA Ruled By: MAVANGIRA J

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

HH117-09 : MICHAEL KATEKETA vs ONE WORLD GALLERIES (PVT) LTD and A MPOPOMA Ruled By: MAKARAU JP

HH125-09 : TAKAWIRA MAPAYA vs STEELFORCE HOLDINGS (PRIVATE) LIMITED Ruled By: MAKARAU JP

HH74-10 : CHARLES MAKANI vs GERTRUDE MAKANI (NEE ZIMONDI) Ruled By: GUVAVA J

HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU Ruled By: GUVAVA J

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA Ruled By: GUVAVA J

View Appeal HH143-09 : KATHLEEN ENID THORNTON vs DARREN STEWART THORNTON Ruled By: MAVANGIRA J

HH93-10 : SHADRECK MUREHWA vs STEPHEN NYAMBUYA Ruled By: KUDYA J

HB33-09 : CASTRO NDLOVU vs IAN DAVID GUTHERLESS N.O. and DONALD MAZWI SIBINDI and DIDYMUS MUTASA N.O. and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS-BULAWAYO Ruled By: KAMOCHA J

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA Ruled By: UCHENA J

HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES Ruled By: MAVANGIRA J

HH168-10 : THOMAS TUNGAMIRAI vs LORRAINE TUNGAMIRAI Ruled By: MUSAKWA J

HH174-10 : SAMSON MARTIN MEKI vs VHURAMAYI VHUSHANGWE and OTHERS Ruled By: CHATUKUTA J

HH158-10 : SIZE MAVUTO vs PAUL GOSTINO and PROMENADE REAL ESTATE and THE REGISTRAR OF DEEDS Ruled By: GOWORA J

HH125-10 : SNOCROSS INVESTMENTS (PVT) LTD vs IRVINES ZIMBABWE (PVT) LTD Ruled By: KUDYA J

HH225-10 : SOUTHEND CARGO AIRLINES (PVT) LTD and STEPHEN CHITUKU and PATIENCE CHITUKU vs INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE and THE SHERIFF OF ZIMBABWE and THE DEPUTY SHERIFF Ruled By: MTSHIYA 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

HB129-10 : HERBERT VAN DEN BERG and CYNTHIA BESWICK vs FRANK LANG Ruled By: MATHONSI J

HH21-11 : CHRIST EMBASSY ZIMBABWE vs CHIDZIVA INVESTMENTS (PVT) LTD Ruled By: CHATUKUTA J

HH22-11 : SHEPHERD MASAWI vs MARGRET MASAWI Ruled By: GUVAVA J

HH79-11 : RUDO ELIZABETH SIMANGO (nee MAKONI) vs PAUL SIMANGO Ruled By: CHITAKUNYE J

View Appeal HH129-13 : AIR ZIMBABWE [PRIVATE] LIMITED and AIR ZIMBABWE HOLDINGS [PRIVATE] LIMITED vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF FOR ZIMBABWE Ruled By: MAFUSIRE J

HH25-14 : STEVEN VHAVHA vs MSIZI DUBE and THE DIRECTOR OF HOUSING, CHITUNGWIZA and MUNICIPALITY OF CHITUNGWIZA and NANCY KUTYAURIPO Ruled By: CHITAKUNYE J

HB102-11 : MIRIRAI MUHUSHWA vs LILIOSA STELLA MUHUSHWA Ruled By: KAMOCHA J

HB05-14 : CASPER SIBANDA vs BARNABAS SIGOLA Ruled By: MOYO J

HB99-14 : ELLEN MAJOLA vs BEKEZELA NYONI Ruled By: MAKONESE J

View Appeal SC24-13 : VYVYAN JEAN MORONEY vs MICHAEL PATRICK MORONEY Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

HH93-11 : ELIZABETH KAMANGA vs ESTATE LATE BUTE CHIKONDO (represented by Oswald Bute Chikondo as executor) and MERCY CHIKONDO and CITY OF HARARE and MASTER OF THE HIGH COURT Ruled By: GUVAVA J

HH51-15 : JUSTIN MUPAMHANGA vs SAUL GOMWE and JUSTICE DHLIWAYO and BLESSING DOMBOJENA and MINISTER OF LAND AND RURAL RESETTLEMENT (N.O) Ruled By: MAKONI J

HB105-16 : MAXWELL SIBANDA vs GAVIN HAYLER and HAROLD HAYLER and MARGARET MEEK and AUDREY BENEDICT and REGISTRAR OF DEEDS N.O. and BULAWAYO CITY COUNCIL Ruled By: TAKUVA J

Appealed SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

SC63-18 : SERGEANT MHANDE 04737T and CONSTABLE MHAKA 081215B vs CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS Ruled By: BERE JA

HH94-15 : STELLA HAPAGUTI vs CECIL MADONDO (as Executor Dative in the Estate of the Late EXISTO FRANCIS HAPAGUTI) and MASTER OF THE HIGH COURT Ruled By: CHITAKUNYE J

HB143-16 : SIFISO KHUMALO vs SIHLESENKOSI NDLOVU and ZANELE NDOWA and POLKA EXECUTORS SERVICES PL and OFFICER IN CHARGE LUVEVE POLICE STATION and ASSISTANT MASTER OF THE HIGH COURT Ruled By: MAKONESE J

HH155-15 : TAYESA BANDA vs VUSANI G.D. SIBANDA and ORRIL ENTERPRISES (PVT) LIMITED Ruled By: TAGU J

View Appeal HH319-17 : BINDURA UNIVERSITY OF SCIENCE EDUCATION vs TETRAD INVESTMENT BANK LTD (Under Provisional Judicial Management) and THE SHERIFF OF ZIMBABWE (N.O.) Ruled By: ZHOU J

Appealed SC10-19 : SIPHIWE DUBE vs TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

Appealed HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS Ruled By: MAWADZE J

HH689-15 : THE SHERIFF OF THE HIGH COURT vs MUNYARADZI MAJONI and PAULINA MAJONI and MANDY M MAJONI and JAMES GUMBI Ruled By: MAFUSIRE J

HH50-12 : CHEMATRON PRODUCTS ZIMBABWE (PVT) LTD vs TENDA TRANSPORT (PVT) LTD and REGISTRAR OF DEEDS Ruled By: BERE J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND Ruled By: CHIGUMBA J

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF Ruled By: MAFUSIRE J

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