Jurisdiction re: International Jurisdiction iro Peregrinus or Non-Residents and the Rule of Forum Rei Sitae

HH19-08 : SERGIO TARWIREYI vs SAMUEL MBONELI KUNENE AND FOURWAY HAULAGE S.A. (PTY) LTD
Ruled By: HUNGWE J

In early 2006 the defendants raised a special plea to the jurisdiction of the court. The special plea was upheld. On..., April 2006 the plaintiff made a chamber application in terms of which on 10 October 2006 this court issued an order attaching certain of the second defendant's mechanical horses and trailers specified in the ...

Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

The first applicant is a subsidiary of the second applicant. Both companies are Namibian-based.

HB06-11 : JOTHAM CHIRONGOMA vs TDG LOGISTICS and REGENT INSURANCE
Ruled By: MATHONSI J

The first defendant is a peregrinus whose address is given in the summons as Bracken Gardens Alrode, Johannesburg, South Africa. The said company does not have property located within the Zimbabwean jurisdiction but has haulage trucks which ply Zimbabwean routes on commercial deliveries in Zambia. On 30 April 2009, the plaintiff instituted summons action out ...

The plaintiff claimed the replacement of its Toyota Hilux motor vehicle and a trailer damaged as a result of a collision with the first defendant's haulage truck on 18 August 2007. He also claimed certain damages which arose as a result of the same accident.

At the time the summons was issued, the plaintiff had not obtained a court order for attachment of the first defendant's property to confirm or found jurisdiction against the peregrine defendants. It was not until the 9th June 2009, almost 11/2 months after the summons was issued, that the plaintiff filed an application in this court seeking an order for attachment of property to found jurisdiction and it was not until the 30th June 2009, exactly 2 months after the summons had been issued, that the order of attachment of property was granted by NDOU J under case no. HC879/09. The said order reads, in part, as follows:

''IT IS ORDERED:

1. That the Deputy Sheriff be and is hereby authorised and directed to impound any of the 1^st respondent's vehicles crossing the border into Zimbabwe, or already in Zimbabwe, in order to found jurisdiction.

2. That the Deputy Sheriff shall retain the vehicle so impounded until litigation in the matter no. HC672/09 is finalised.

3. That 1^st and 2^nd respondents pay the storage charges for the vehicle jointly and severally the one paying the other to be absolved.

4. That 1^st and 2^nd respondents pay the costs of this application on an ordinary scale jointly and severally the one paying the other to be absolved.”

The Deputy Sheriff for Beitbridge effected service of the summons on the first defendant's driver at Beitbridge Border Post on 12 July 2009, and in pursuance of the order for attachment, he attached an International Truck registration number LRP 232 GP and a trailer registration number TXL 411 GP belonging to the first defendant.

This was for purposes of founding jurisdiction when the summons in the matter had already been issued out.

The attachment of the vehicle and trailer forced the first defendant to file an urgent chamber application (HC1169/09) on 24 July 2009 seeking an order for the release of the vehicle. The matter was later amicably resolved and an order granted by consent on 31 July 2009 for the release of the truck and trailer against a payment of $3,000= to the plaintiff's legal practitioners in order to confirm jurisdiction.

On 17 November 2009, the first defendant excepted to the Summons and Declaration on the following grounds:

''1. The Plaintiff's Summons and Declaration, under case no. HC672/2009, is an invalid process and therefore null and void in that the summons was issued and sent for service against the first Defendant, who is a peregrinus before the Plaintiff had obtained an order of attachment to found or confirm jurisdiction.

2. It is submitted that the order of attachment granted by the Honuorable Mr Justice Ndou on 30^th June 2009 to found jurisdiction did not serve to validate the summons and Declaration issued earlier on under case no. HC672/2009 as the granting of the attachment order is a condition precedent to the issue of process.

3. Further, and in any event, the order for attachment granted by the Hounourable Mr Justice Ndou as abovestated is invalid as it ordered the attachment of First Defendant's property which was not within the jurisdiction of the courts of Zimbabwe at the time that the order was granted.''

The first defendant, as excipient, prays that the summons be struck down by reason of invalidity and that the money paid to the plaintiff's legal practitioners for security be refunded.

In response to the exception, the plaintiff stated that the exception is without merit by reason that:

1. The cause of action arose within the jurisdiction of this court;

2. The summons could not be served on the first respondent because it and its assets are located outside the jurisdiction of this court;

3. An application for attachment was made to facilitate service of summons which attachment ''found and confirmed'' jurisdiction and therefore the order for attachment was not validating the summons which was already valid.

Counsel for the excepient has argued that to the extent that the summons was issued before an order for attachment was sought and obtained such summons is invalid and of no legal effect. He has cited the persuasive authority of the learned authors HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts of South Africa, the 3^rd Edition (1979) of which reads….,:

“An attachment ad fundandam jurisdictionem is an attachment of the person or property of one who is domiciled and resident in a foreign country in order to make him amenable to the jurisdiction of the court. His person or property can only be attached while he or it is within the jurisdiction of the court out of which the attachment order is issued, and the effect of the attachment order is either to confirm the jurisdiction which the court already has in the suit between the parties, or in certain cases, to afford it a jurisdiction in the matter which it would not other wise have had.''

At 788 the learned authors state:

''Where an incola wishes to sue a peregrinus and none of the usual grounds upon which the court might have jurisdiction is present, attachment is a condition precedent to the action for it is upon the attachment that the court's jurisdiction is founded.''

They go on at 789:

''In addition to the grounds mentioned by De VILLIERS CJ, quoted above, a court will have jurisdiction to try a suit arising out of a delict committed within the area of its jurisdiction, whether the suit be between an incola and a peregrinus or between two peregrini. But in this case, too, attachment is a condition precedent to an action. But in an action ex delicto, a peregrinus cannot obtain an attachment where none of the ordinary grounds of jurisdiction exists.''….,.

Counsel for the plaintiff has argued that these authorities should be ignored as they are archaic and that the position of our law is governed by section 15 of the High Court Act [Chapter 7:06].

I agree with counsel for the plaintiff that the position in regard to attachment to found or confirm jurisdiction in Zimbabwe is now clearly governed by statute. I, however, disagree that the issue of summons must precede the authority to be granted by the court to sue a peregrinus either by edict or by attachment. Section 15 of the High Court Act [Chapter 7:06], relied upon by counsel for the plaintiff, provides:

''In any case in which the High Court may exercise jurisdiction founded on or confirmed by the arrest of any person or the attachment of any property, the High Court may permit or direct the issue of process, within such period as the court may specify, for service either in or outside Zimbabwe without ordering such arrest or attachment if the High Court is satisfied that the person or property concerned is within Zimbabwe and is capable of being arrested or attached and the jurisdiction of the High Court in this matter shall be founded or confirmed as the case may be, by the issue of such process.''…,.

That provision did not discharge the plaintiff from the burden of having to satisfy the court, before the issue of process, that the peregrinus was present within Zimbabwe for arrest or had property within the country capable of attachment. Monarch Steel (1991) (Pvt) Ltd v Fourway Haulage (Pty) Ltd 1997 (2) ZLR 342…, and ClanTransport Co. (Pvt) Ltd v Govt of the Republic of Mozambique 1993 (3) SA 795 (Z)…,.

In Stanmarker Mining (Pvt) Ltd v Metallon Corp Ltd & Others 2003 (1) ZLR 389…, CHINHENGO J stated:

“It must be clear from the above remarks that s15 of the High Court Act does not dispense with the need to show that the court has jurisdiction which may be founded or confirmed by the attachment of property or the arrest of the defendant. That is the single issue which the applicant had to deal with before he could obtain other associated relief.''

At the time the summons was issued, on 30 April 2009, neither the first defendant nor its property were located in Zimbabwe. In addition, no authority or permission had been obtained from the court to issue the process. Perhaps it was upon a realisation of that glaring omission that counsel for the plaintiff desperately tried to stretch the meaning of the word ''court'' as used in section 15 of the High Court Act [Chapter 7:06] to include the Registrar of the High Court, who issues the process, and sought to argue that by issuing the process the Registrar had permitted and directed its issue without an order for attachment.

There is no way the word ''court'' in that section can be interpreted to include the Registrar. There is no way a summons can be lawfully sued out against a peregrine defendant without the leave of the court. Where such summons is issued, it is clearly invalid and of no legal effect.

I now turn to deal with the effect of the attachment order issued by NDOU J on 30 June 2009.

In his application for an attachment order, the applicant disclosed that he had issued summons against the defendants, under case no. HC672/09, for damages and that he wanted ''an order for the impoundment of 1^st respondent's truck when it comes into Zimbabwe to found jurisdiction.'' The court was persuaded by the application and granted the order cited….,. Clearly, that order was granted in error as the plaintiff (applicant in HC879/09) had not discharged the onus that either the first defendant or its property was present within the territorial jurisdiction of Zimbabwe and therefore capable of attachment or arrest. In addition, no permission had been sought and granted as provided for in section 15 of the High Court Act [Chapter 7:06] to issue summons; the said summons having been issued without leave.

It is significant that NDOU J's order of 30 June 2009 did not grant such permission, even in retrospect, which could not be done, as attachment or the existence of the defendant or his property within Zimbabwe is a condition precedent to the issue of process.

In the absence of the defendant and/or its property within Zimbabwe, the order made on 30 June 2010 was a nullity. In Ngani v Mbanje & Anor 1987 (2) ZLR 111 (S), the Supreme Court, per KORSAH JA, pronounced categorically that if legal process is instituted based on a cause of action which has not yet accrued it is a nullity and a default judgment granted on the non-existent cause of action is void and of no effect . At 114 G-H and 115A the learned Judge of Appeal said:

''If at the time action was instituted, a right of action had not accrued to the plaintiff or applicant, as the case may be, then no cause of action is established by the initiating process. Put another way, the plaintiff or applicant should at or before filing the initiating process, have a complete cause of action against the defendant or respondent.''

The court went on, at 115 D-F, to state:

''This objection in limine is, in my view, not a mere technical point affecting some provision of adjectival law; it strikes at the very root of the action. It is so fundamental as to render the initiating process a nullity. If there is no cause of action then a judgment pronouncing that a non-existent cause exists is void and of no effect. As LORD DENNING observed in Macfoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 11721;

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

See also Heating Elements Engineering (Pvt) Ltd v Eastern & Southern Africa Trade & Development Bank 2002 (Z) (I) ZLR 351 (S)…,.

In light of the fact that there was no property belonging to the peregrini defendant located in Zimbabwe at the time the order for attachment was made that order was a nullity. To that extent, everything which flowed from it including, the service of the summons and the purported attachment of the first defendant's property, was a nullity. To the extent that the settlement of the parties, confirmed by order of CHEDA J, dated 31 July 2009, was predicated on a nullity, it was also a nullity and no legal rights arose from that adventure.

I therefore intend to set aside that order in terms of Rule 449(1) of the High Court Rules. In the result, I make the following order to wit that:

1. The exception by the first defendant be and is hereby upheld.

2. The plaintiff's summons and declaration be and are hereby struck down as invalid.

3. The order for attachment issued on 30 June 2009, under case No. HC879/2009, was issued in error in the absence of the first defendant or its property within the jurisdiction of the court and is therefore null and void.

4. The plaintiff should refund the sum of US$3,000= to the first defendant which was paid as security to his legal practitioners in pursuance of the settlement reached in case no. HC1169/2009.

5. The plaintiff shall bear the costs of suit.

HB103-11 : ROBERT BOWES and ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELINA PATRINOS and IONNIS IOANNIDIS and CONSTINDINOS PARTINOS and DEPUTY MASTER, HIGH COURT, BYO vs MARIA MANOLAKAKIS
Ruled By: MATHONSI J

The late Doctor John Joseph Manolakakis was a Greek medical doctor practicing medicine in Zimbabwe. He died on 2 July 2006 in Bulawayo, Zimbabwe at the age of 72 leaving behind Flats Nnumber 1703 and 1704 Kenilworth Towers, Ascot, Bulawayo and some household furniture and personal effects according to the inventory submitted upon registration of ...

HB31-10 : BROOKLANDS HUNTING SAFARIS (PVT) LTD vs PABST HOLDINGS (PVT) LTD t/a CHAPUNGU RANCH and LOWVELD MARKETING SERVICES (PVT) LTD and MR WILLIAM PABST
Ruled By: KAMOCHA J

The respondents complained of the misjoinder of Mr Wilfred Pabst as a third respondent contending that he was a peregrinus. The court's jurisdiction had to be founded on or confirmed by his arrest in terms of section 15 of the High Court Act [Chapter 7:06]. But Mr Wilfred Pabst is a Director and Shareholder of PABST ...

HH132-11 : MYSTICAL TRADING (PRIVATE) LIMITED and MARCOL TRADING LIMITED and BROAD FUELS CC vs ADDX TRADING 528 (PTY) LIMITED and DOWNTOWN PETROLEUM (PRIVATE) LIMITED and FUTURE MUVIRIMI
Ruled By: MTSHIYA J

Pedzisai Miriam Lilliethy Garwe goes further to describe the applicants as follows:- “2. The first applicant is MYSTICAL TRADING (PRIVATE) LIMITED, a company incorporated in terms of the laws of Zimbabwe, and thus an incola applicant of this honourable Court. The applicant is a trader in, and conveyor of, petroleum based fuels. Its address for ...

HH305-14 : FAIRDROP (PVT) LTD vs CAPITAL BANK CORPORATION LTD and JOURNET TRADING PL and ELSPENCE INVESTMENTS PL and OTHERS
Ruled By: MATHONSI J

The applicant insists that this court has jurisdiction over the matter because: “8.1. The court has already assumed jurisdiction in respect of the claim in convention, in which rectification has been pleaded; and 8.2. The rectification necessarily requires that the PTA Bank be a party in the counter claim; and 8.3. The PTA Bank is the principal lender; ...

The applicant insists that this court has jurisdiction over the matter because:

“8.1. The court has already assumed jurisdiction in respect of the claim in convention, in which rectification has been pleaded; and

8.2. The rectification necessarily requires that the PTA Bank be a party in the counter claim; and

8.3. The PTA Bank is the principal lender; and

8.4 The PTA Bank's loan to the applicant constitutes sufficient assets to found jurisdiction in addition to the fact that it has other numerous assets in Zimbabwe.”…,.

Counsel for the applicant submitted that while the PTA Bank is a foreign entity domiciled in Bujumbura, Burundi, it has valuable property within this jurisdiction which can found or confirm jurisdiction. In addition, the debt, which is the subject of the litigation, is itself sufficient to found jurisdiction. The court, having already assumed jurisdiction in the main lis, it should do so in respect of the counter-claim.

I have serious difficulties with that argument.

I stand by the pronouncement that I made in Wong & Ors v Tsoi & Anor HH380-13…, where…, I stated:

“The first respondent was therefore proceeding roughshod against all procedures set out in the Rules, disregarding the Rules and the law in razzmatazz fashion. I say so because our civil practice and procedure is clear that a person domiciled and resident in a foreign country cannot be sued in this court as it does not have jurisdiction over that person. For that reason, there is need for an attachment ad fundandam jurisdictionem of that person or his property in order to make him amenable to the jurisdiction of the court. Such person, or his property, can only be attached while he, or it, is within the jurisdiction of the court, and only after an attachment order has been issued by the court. It is important to point out that the attachment order should be issued by the court before the summons is issued against that person.”

The point is also made by the authors of The Civil Practice of the Superior Courts of South Africa, HERBSTEIN and VAN WINSEN, 3^rd ed (1979)…., that where an incola wishes to sue a peregrinus and none of the usual grounds upon which the court might have jurisdiction is present, attachment is a condition precedent to the action; for it is upon the attachment that the court's jurisdiction is founded.

I therefore do not agree with counsel for the applicant that the presence of unspecified and undefined property belonging to the PTA Bank or the debt, which is the subject of the dispute, is enough for the court to exercise jurisdiction. Where a peregrinus is being sued, even if it has property in Zimbabwe, the plaintiff must first seek and obtain an attachment order to found or confirm jurisdiction, as the case may be. Even if the court were to act in terms of section 15 of the High Court Act [Chapter 7:06], which allows the court to direct service of process without an attachment order, it can only do so if satisfied that the person or his property is within Zimbabwe and is capable of attachment or arrest. Chirongoma v Tdg Logistics & Anor 2011 (1) ZLR 98 (H)…,.

The existence of a claim in Zimbabwe, which claim is the subject of the dispute, nomatter how substantial that claim is, cannot satisfy the requirement relating to jurisdiction. Bowes & Ors v Manolakakis 2011 (2) ZLR 59 (H)…,; Ginsbera v Estate Kulf 1924 SNA 1…,.

Counsel for the applicant sought to rely on the authority of Voicevale Ltd v Freightlink (Malawi) Ltd 1987 (2) ZLR 22 (S) to submit that the subject matter of the litigation can be a basis upon which jurisdiction is founded. In that case, both parties were peregrini and the peas, which were the subject of the contract, were in Harare when one of them terminated the contract. The other party had sought an order for attachment of the consignment of peas to found jurisdiction for an order of specific performance against the respondent. The Supreme Court held that the High Court had jurisdiction by virtue of being the forum rei sitae, the court within whose area of jurisdiction the subject matter of the dispute is situated.

In my view, that case is clearly distinguishable from the present.

There, the matter involved an application for leave to attach in order to found jurisdiction. The goods sought to be attached were pointed out and firmly located in Harare, Zimbabwe. This is not an application for leave to attach in order to found jurisdiction. It is an application for leave to serve process outside Zimbabwe; a process which has been issued before an order of attachment and without leave. The case of Ex Parte Mor-tal Construction Co (Pvt) Ltd 1962 (2) SA 664 (SR) does not advance the applicant's cause either because in that case the court already had jurisdiction against the peregrinus not dependant solely on attachment of property, as the cause of action arose within its jurisdiction.

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER
Ruled By: MAKONESE J

In any event, a close scrutiny of the challenge, that there are no valid proceedings before the court, shows that the challenge is without any merit. The late Dr. Manolakakis was a resident of Zimbabwe and has assets in Zimbabwe. His estate is registered with the Master of the High Court at Bulawayo under DRB ...

In any event, a close scrutiny of the challenge, that there are no valid proceedings before the court, shows that the challenge is without any merit.

The late Dr. Manolakakis was a resident of Zimbabwe and has assets in Zimbabwe. His estate is registered with the Master of the High Court at Bulawayo under DRB 611/06.

The proceedings before the court seek to establish the validity of the Will purportedly executed by the late Dr. Manolakakis.

The court therefore has full jurisdiction to entertain the matter.

The second defendant is not peregrine. The estate of the late Evangelia Patrinos is also registered with the Deputy Master of the High Court under DRB 578/08.

The estate falls under the jurisdiction of this court, and, accordingly, this court enjoys full jurisdiction over any matters in relation to the estate.

The third and fourth defendants are the beneficiaries under the second defendant's estate. The court, under case number HC475/11, noted that there were the ones who particularly wanted security costs in order to bring in expert witnesses from abroad. Their claim was dismissed by MATHONSI, J on the basis that security for costs cannot be granted to a peregrini.

I have examined this judgment and observe that there has been an attempt by the defendant's counsel to quote parts of the judgment out of context. I note that portions of that judgment have been extracted where they seem to support the defendants. At page 3 of the cyclostyled judgment, MATHONSI, J states as follows:

“The 1^st Applicant, in fact, states in his his founding affidavit that he makes the application in his capacity as the “Director of National Executor Trust (Pvt) Ltd.” This is not helpful at all because he holds letters to administer the 3^rd Applicant's estate in his personal capacity. He can only bring an application on behalf of the 3^rd Applicant.”

It is my view that the claims before the court are valid and properly before the court. The third and fourth defendants are properly cited in the summons as they have not denied that they are beneficiaries of the second defendant's estate.

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING
Ruled By: MAKONI J

Jurisdiction Counsel for the respondent submitted that this court has no jurisdiction to hear this matter as the respondent is a peregrinus. The applicant had not made an application to attach the respondent's property. It has also not tendered security of costs. He referred the court to Hung Yuen Wong and Ors v Hsiao Cheng Liu and ...

Jurisdiction

Counsel for the respondent submitted that this court has no jurisdiction to hear this matter as the respondent is a peregrinus. The applicant had not made an application to attach the respondent's property. It has also not tendered security of costs. He referred the court to Hung Yuen Wong and Ors v Hsiao Cheng Liu and Anor HH380-13 and Chinongoma v TDG Logistics and Anor 2011 (1) ZLR 98 (H)…,.

Counsel for the applicant conceded that the respondent is a peregrinus but argued that he had submitted to the jurisdiction of the court. Furthermore, the subject matter at issue is within the jurisdiction of the court.

The above issue, of where an incola intends to sue a peregrinus, was dealt with by MATHONSI J in Huny Yuen Wong & Ors v HS 190 Cheng Liu and Anor HH380-13…, where he stated;

“…, our civil practice and procedure is clear that a person domiciled and resident in a foreign country cannot be sued in this court as it does not have jurisdiction over that person. For that reason there is need for an attachment ad fundandam jurisdictionem of that person or his property in order to make him amenable to the jurisdiction of the court. Such person or his property can only be attached while he/it is within the jurisdiction of the court - and only after the attachment order has been issued by the court.”

See also HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts of South Africa, 5^th Ed Vol 1….,.

The object of attachment was clearly stated by the above authors, on page 97, when they stated -

“Although the main object of the attachment is to find or confirm jurisdiction, a further object of the attachment is to furnish an asset against which execution can be levied to satisfy the judgement which may be given so that the courts sentence will not be rendered nugatory or, as it has been called, a brutum fulmen.”

From the above, it is clear that where an incola intends to sue a peregrinus, an attachment to find or confirm jurisdiction is necessary in order to make the peregrinus defendant amenable to the jurisdiction of the court.

Counsel for the applicant, whilst conceding that the defendant is a peregrinus, he argued that he submitted himself to the jurisdiction of the court by responding to the application.

Did the respondent submit to the jurisdiction of the court?

Submission to jurisdiction can take many forms which can run from a formal consent contained in a written contract to a consent from the bar. The applicant is relying on implied consent. The authors HERBSTEIN and VAN WINSEN, The Civil Practice of the High Courts of South Africa, 5^th Ed Vol 1…, state:

“A submission to jurisdiction must be clear so as to establish it as a legal certainty. Failure to defend legal proceedings instituted does not necessarily constitute submission to the jurisdiction of the court, nor can the fact that a defendant contested another issue, in addition to the issue of jurisdiction, be construed as a clear tacit acceptance by the defendants of the court's jurisdiction.”

In casu, the respondent filed a Notice of Opposition and Heads of Argument. He did not contest the court's jurisdiction in those pleadings. It is only on the day of hearing that the respondent raised the issue in limine.

In Mashinen, Grommer, Gribtt & Co. H.G. v Trisave Engineering Machinery Supplies (Pty) Ltd 2003 (6) SA 69 (C)…, VAN REENEN J stated the following -

“C.F. FORSYTH, Private International Law, 3^rd Ed, at 269, where he stated there are no decided cases in which submission by conduct has been accepted or rejected as a means of conferring international competence on a foreign court which it would otherwise not possess. Taking guidance from matters of internal competence, where submission by conduct is not readily inferred, but it is required that the defendant's conduct 'must be of such a nature that the court is able to say that it is consistent only with acquiescence' (per VIEYRA AJ in DuPreez v Phillip King 1963 (1) SA 80 1 (W) at 803 C) he submits that courts should exercise caution and not find that there has been submission to jurisdiction unless the parties have clearly accepted the foreign court's jurisdiction; for example, where a defendant pleads to the merits without contesting a court's jurisdiction.”

VAN REENEN J…, quoted CONRADIE J…, with approval, in Supercot Incorporated v Two Oceans Marince CC 2001 (4) SA 27 (C)…, where he stated that the enquiry into whether there has been submission by conduct concerns the defendant's state of mind as evidenced by his/her/its conduct.

Looking at the circumstances of this matter, it is my view that the respondent submitted to the jurisdiction of the court. In our jurisdiction, we have the procedural regime where a plea of lack of jurisdiction is adjudicated upon in limine prior to the adjudication of the merits of the matter. If the respondent did not intend to submit to the jurisdiction of the court he would have raised the issue in limine in his Notice of Opposition. His conduct, in casu, clearly points to a person who had no intention, whatsoever, to contest the jurisdiction of the court. It came as an after thought - after he had pleaded to the merits of the matter.

I will therefore make a finding that the court has jurisdiction in this matter.

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.

Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated in the district of Salisbury. The piece of land is called Stand Number 295, Northwood Township 2 of Sumbeni. It was held under Deed of Transfer number 5022/2008. It is commonly known as Number 116 Twickenham Road, Mount Pleasant, Harare [“the Mount Pleasant property”].

On 9 December 2013 one Rajendrakumah Jogi [Jogi] purchased the property. He took title in the property on 22 November 2017 following its sale to him. It is now registered under Deed of Transfer number 4766/17 which Deed records the name of the purchaser as the new owner of the same.

The second applicant was, and still is, the owner of a certain piece of land which is situated in the district of Salisbury. It is called Lot 12 of Lot 15 Block C of Avondale. It is held under Deed of Transfer number 1657/89. It is commonly known as Bath Mansions Flats. It is at Number 32, Bath Road, Avondale, Harare [“The Avondale property”].

The abovementioned two properties lie at the centre of the main application, HC12074/16 and the urgent chamber application, HC2012/18.

The applicants filed the main application on 28 November 2016. They successfully moved the court to interdict the first and second respondents from dealing in any way with the two properties and/or from coming within 100 metres of the same. The interim order which the applicants obtained in the mentioned regard is dated 2 December 2016.

On 22 February 2018 l heard the matter which related to the confirmation or discharge of the provisional order of 2 December 2016. Having heard submissions from both parties, I reserved judgment.

Before the ink which related to my hearing of the main application had dried up, the applicants filed the urgent chamber application, HC2012/18. They did so on 5 March 2018. They moved the court to restore to them possession of the Mount Pleasant property and to interdict:

(a) The first (Bulchimex GMBH Import Export Chemikalien und Produkte (Pvt) Ltd), second (Sarah Hwingwiri) and third (Rajendrakumar Jogi) respondents from selling, or, in any way, alienating or encumbering the Mount Pleasant property.

(b) The fourth respondent (Registrar of Deeds) from facilitating or making further transfer of the Mount Pleasant property which is held under Deed of Transfer number 4766/17 in favour of Rajendrakumah Jogi to anyone.

(c) All the respondents from facilitating or transferring title in the Avondale property which is registered under Deed of Transfer number 1637/89 to anyone.

(d) The fifth respondent (the Sheriff of Zimbabwe) from evicting occupants of the Avondale property.

Because title in the Mount Pleasant property had already changed hands from the first applicant to Mr Jogi when the application was filed, I disallowed paragraphs 1, 2 and 3 of the applicants draft order.

I allowed paragraphs 6 and 9 of the draft order with some amendments. I directed that the word Lease which appeared in paragraph 6 should be deleted. I further directed that the phrase or 116 Twickenham Drive, Mount Pleasant, Harare which appeared in paragraph 9 should also be deleted.

I, accordingly, allowed paragraphs 4, 5 and 6 as amended, 7, 8, 9 as amended and paragraph 11 to remain as the interim relief for the applicants.

The interim order was issued with the consent of all the parties.

My reading of the record satisfied me that HC2012/18 was urgent.

The applicants stated that they were not aware that their Mount Pleasant property had been sold and transferred to someone. They said they became aware of that fact on 1 March 2018 when the deponent to their founding affidavit received a call from one Kudzai Kupambana, the caretaker of the property. He submitted that Mr Kupambana informed him that the Messenger of Court was carrying out eviction at the premises. He said he immediately notified the applicants' legal practitioners of the development. These and him, he said, visited the Mount Pleasant property. He averred that the legal practitioners and him later established that it was not the Messenger of Court but the Deputy Sheriff who had carried out the eviction.

The supporting affidavit of Mr Kubambana was on all fours with that of the deponent of the founding affidavit especially on the portion which related to the latter's eviction.

The applicants filed the urgent chamber application a day after their discovery of what had occurred. They most certainly treated the matter with the urgency which it deserved.

The first, second and third respondents opposed the urgent chamber application. They, however, and to their credit, consented to the interim relief which I granted to the applicants in its amended form. They did so in the interests of progress. They agreed with me that the situation had to be arrested. All the parties shared the view which the court had. The view was that the situation of the parties' case did not have to get out of hand whilst judgment in the main application, HC12074/16, was being awaited.

Two characters stand out clearly in both applications. These are;

(1) One Borislav Boynov (“Borislav”); and

(2) One Sarah Hwingwiri (“Sarah”).

Borislav Boynov is the deponent to the founding and the answering affidavits of the applicants. He is so for the main application as well as the urgent chamber application.

Sarah Hwingwiri is the second respondent in both applications. She is the deponent to the affidavits of the first and the second respondents in both applications.

Sarah Hwingwiri and one Ivan Pantchev (“Ivan”), a Bulgarian who is domiciled in Bulgaria, registered the first respondent in terms of the laws of Zimbabwe. They are both its Directors.

Borislav Boynov's averments, in the main application, were that the applicants own the Mount Pleasant and the Avondale properties. He said they also used to own a certain piece of land which is situated in the district of Salisbury called Lot 9 of Lot 9 of Glen Lorne measuring 4,047 square metres [“the Glen Lorne property”]. This, he alleged, was sold by Sarah Hwingwiri and Ivan Pantchev for $150,000 and transferred into the name of the purchaser.

The sale, he stated, was with the authority of the applicants.

He submitted that Sarah Hwingwiri and Ivan Pantchev did not transmit the proceeds of the sale to the applicants. He successfully moved the court to grant to the applicants the provisional order which prohibited the first and the second respondents from dealing, in any way, with the remaining two properties as well as from coming within 100 metres of the same. He, in the final order, prayed that:

(i) The first applicant be declared the owner of the Mount Pleasant property;

(ii) The second applicant be declared the owner of the Avondale property; and

(iii) The first and second respondents be declared to have no ownership rights or interests in either property....,.

The two respondents raised a number of preliminary matters in their opposition to HC12074/16....,.

They submitted that the applicants were not the owners of the properties. They stated that the first respondent owned the Mount Pleasant property.....,.

The applicants stated, on the point in issue, that they owned immovable properties in Zimbabwe. They submitted, and correctly so, that they were not, because of the stated fact, required to provide security before instituting legal proceedings.

The applicants had, as at the time of the application, two properties in Zimbabwe.

Nothing prevented them from approaching the court to protect their rights and interest in the same. No law prohibited them from applying as they did.

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a)...,.

(b)...,.

(c)...,.

(d)...,.

(e) Whether the Frankfurt award was unenforceable ab initio in the absence of any executable assets belonging to the defendant in Germany....,.

Enforceability without Executable Assets

Under the loan agreements in question (Article 10.3 of Loan No. F2971 and Article 9.3 of Loan No. F3040) the parties expressly agreed that the place of jurisdiction for all litigation in connection with the loans would be Frankfurt/Main in the Federal Republic of Germany.

It is therefore perfectly clear that the defendant specifically submitted to the jurisdiction of the Frankfurt court.

The defendant avers that the Frankfurt judgment could not have been enforced by execution in Germany as the defendant had no executable assets in that country, at that time, to satisfy the judgment in whole or in part.

In this regard, counsel for the defendant contends that the mere submission of the defendant to the jurisdiction of the Frankfurt court is not enough to render its judgment effective.

Counsel for the plaintiff counters that submission to the Frankfurt court is sufficient and that the defendant should have raised the effectiveness of its ruling before that court and not in the present proceedings.

The principle of effectiveness that underlies the law of jurisdiction, in its absolute sense, is that the court will only have jurisdiction if it controls the person or property of the defendant, as the mere consent or submission of the defendant to the jurisdiction of the court affords no absolute guarantee that the court's judgment will be effective: see FORSYTH: Private International Law (4th ed.)…,.

However, as is further explained by the learned author, at pp.215-216:

“Today, the doctrine of effectiveness is artificial and conceptual rather than realistic.

And, indeed, even those cases that would most severely restrict submission do not reject it altogether. Moreover, submission is widely recognised in legal systems across the world as a ground of international competence justifying the enforcement of the judgment of a foreign court to which the defendant has submitted. Thus, on the whole, a judgment based on submission will be effective. It is submitted that effectiveness in this slightly attenuated sense should suffice to justify the exercise of jurisdiction on the grounds of submission. The fact is that most other legal systems…, give wide recognition to and encourage submission as a ground of jurisdiction…,. It is to the benefit of international commerce that this should be so….,. As economic development in Southern and Central Africa proceeds, there is no reason, other than archaic restrictions on the exercise of jurisdiction, why the local courts should not develop an international role akin to that of the Commercial Court in London.”

Similar sentiments predicated on policy grounds were expressed in Richman v Ben-Tovim 2007 (2) SA 283 (SCA)…, where ZULMAN JA observed that:

“There are compelling reasons why…, in this modern age, traditional grounds of international competence should be extended, within reason, to cater for itinerant international businessmen. In addition, it is now well established that the exigencies of international trade and commerce require 'that final foreign judgments be recognised as far as is reasonably possible in our courts, and that effect be given thereto'.”

The enforcement of a foreign judgment requires that the foreign court had jurisdiction, in the international sense, according to the principles of our law on the jurisdiction of foreign courts: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,; SCHULZE: International Jurisdiction in Claims Sounding in Money 2008 20 SA MERC. LJ…,.

Thus, the mere fact that the foreign court may have had jurisdiction under its own laws is not conclusive: see Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W)…,.

The rules for assessing the international jurisdiction of a foreign court are expounded by POLLAK: The South African Law of Jurisdiction (1937)…,. The overall position is summarised…, as follows:

A foreign court has jurisdiction to entertain an action for a judgment sounding in money against a natural person if, at the time of the commencement of the action, the defendant is physically present in the State to which the court belongs or is domiciled or resident within that State or has submitted to the jurisdiction of that court.

According to POLLAK: The South African Law of Jurisdiction (1937) there are no other grounds for jurisdiction.

This summation was cited with approval in Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W)…, and followed in Richman v Ben-Tovim 2007 (2) SA 283 (SCA)…,.

With specific reference to submission as a basis of jurisdiction, the position is reiterated by PISTORIUS: Pollak on Jurisdiction (2nd ed. 1993)…,:

“Submission has been accepted, in our law, as an acceptable basis for international competence.

As in the case of local jurisdiction, submission may be by way of agreement or by a defendant acquiescing by his conduct in such jurisdiction after litigation against him has commenced. In the case of agreement, this may be pursuant to a contract between the parties which specifically provides for submission in the event of disputes or by an express or tacit submission after litigation. Submission by conduct may be difficult to prove, and…., the conduct must be of such a nature that it is consistent only with acquiescence.”

Again, in relation to claims sounding in money, FORSYTH: Private International Law (4th ed.)…, encapsulates the modern law as follows:

“It is widely recognised, by both writers and the decided cases, that submission by the defendant to the jurisdiction of the foreign court grants to that court international competence even if it would not otherwise enjoy that competence.”

As regards submission by agreement, the learned author…, states that:

“In accordance with the general principles of the law of contract, parties may, either expressly or impliedly, enter into binding agreements to submit their dispute to a particular court which might otherwise lack jurisdiction…,; express submission where the parties agree to submit in the ipsissma verba of their contract; provided such submission is valid under its proper law, such an agreement is undoubtedly effective.”

Having regard to the foregoing cases and commentaries, I conclude that a defendant's express submission to the jurisdiction of a foreign court suffices, ipso facto, and without any further jurisdictional ground, to endow that court with the requisite international competence, enabling and allowing the recognition and enforcement of its judgments under the common law.

I am fortified in that conclusion by the policy considerations that I have cited earlier, which are obviously germane to any analysis of international competence according to the principles of our law governing the jurisdiction of foreign courts.

In that context, the tenets of international comity, informed by the inexorable trans-nationalisation of trade and commerce, dictate that our courts should be astute to extend, rather than constrict, the scope of international jurisdiction and competence as regards claims sounding in money.

On that basis, there can be no objection to a more liberal approach that recognises the enforceability of a foreign judgment, founded on the submission of the defendant, whether it be a natural person or an artificial entity, to the jurisdiction of the foreign court in question.

I accordingly take the view, in keeping with principle as well as policy, that the explicit contractual submission of the defendant in casu, to the jurisdiction of the Frankfurt court, suffices for the purpose of recognising its judgment.

This is so regardless of the fact that the defendant may or may not have had any executable assets in Germany at the time of the commencement of the plaintiff's action in Frankfurt.

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;“FINAL ORDER SOUGHT1. That the stay of execution is hereby granted.2. Respondents shall pay costs of suit on an attorney-client scale.INTERIM RELIEF GRANTED1. The respondents are interdicted to conduct the attachment of the ...

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;

“FINAL ORDER SOUGHT

1. That the stay of execution is hereby granted.

2. Respondents shall pay costs of suit on an attorney-client scale.

INTERIM RELIEF GRANTED

1. The respondents are interdicted to conduct the attachment of the applicant's property until finalization of the applicant's appeal under case no. SC550/18.”

I reserved judgment in this matter after argument.

It is seldom that a judge finds himself having to contend with listening to academic presentations on law made for no other purpose than perhaps to simply satisfy the ego of the presenter. A judge unfortunately does not engage in debate with the parties or their legal practitioners. The judge can only listen to submissions made, seek clarifications, and, if merited, require any of the parties or any other person to give further information which may assist in the determination of the urgent application as provided for under Rule 246(1) of the High Court Civil Rules, 1971.

This application, on the papers, appeared to be a very simple one. l had thus scheduled to deal with it on the turn after hearing the parties. It ended up being unexpectedly very prolonged on account of the rather unmerited opposition which was mounted by the respondents through their counsel.

The background to this application is as follows:

(a) The applicant, which is a Namibian registered company, operates an airline which makes scheduled flights into and from Zimbabwe.

(b) The respondents are Zimbabwean nationals who made a chamber application in terms of section 15 of the High Court Act [Chapter 7:06] under case no. HC2355/18. The said application was made against the applicant herein as respondent. Its purport was to seek an order for attachment of the applicant's property to found and confirm jurisdiction in a case for dilectual damages in the sum of US$1 million dollars which the respondents intended to institute against the applicant.

(c) On 27 June, 2018 I granted the said application in case no. HC2355/18. I granted the order made ex parte following submissions by the respondents that the matter be dealt with as such in terms of Order 32 Rule 242(1)(b) – (2) of the High Court Rules, 1971. I was satisfied that the giving of notice to the applicant would have had the effect of forewarning the applicant of the proposed attachment with the result that the applicant could defeat the attachment if forewarned.

(d) For reasons which will become apparent later in this judgment, I will set out the content of the order which l granted. It reads as follows:

IT IS ORDERED THAT:

1. The Sheriff of the High Court or his lawful deputy be and is hereby authorised and directed to attach any of the respondents' movable property at its official address at Shop Number 202, Joina City, Harare and to impound any of the respondents airplanes situate in Zimbabwe in order to confirm and/or found the jurisdiction of the High Court of Zimbabwe, and this order shall be his warrant to do so.

2. The Sheriff of the High Court or his lawful Deputy be and is hereby ordered to keep the property attached pursuant to this order so attached until the action which the applicants intend to institute is finalized.

3. Respondent shall be liable for the Sheriff of High Court or his lawful Deputy's costs of storage of the property attached by the Sheriff's office pursuant to this order as well as any other costs arising from the said attachment.

4. Respondent to pay costs.

(e) It goes without saying that because the application was made ex parte and the relief similarly given ex-parte, the applicant herein was not aware of the making of the order.

(f) For reasons not apparent in regard to how the applicant became aware of the application made under case no. HC2355/18, since it had not been served on the applicant, the applicant's legal practitioners filed a chamber application under case no. HC5808/18 on 22 June, 2018. In the said application, the applicant sought the dismissal of application no. HC2355/18 for want of prosecution purportedly in terms of Order 32 Rule 236(3). The applicant alleged that it filed a notice of opposition in case no. HC2355/18 on 21 March, 2018 following service of the said application which had been filed on 14 March, 2018.

I have indicated that it is not apparent as to how the applicant became aware of the application no. HC2355/18 because the respondent, in making their application aforesaid, indicated that they had not served it.

I also granted it on the understanding that it had not, for reasons which l agreed with, been served.

Further, the notice of opposition purportedly filed by the applicant was not brought to my attention and is not filed in case no. HC2355/18. There is no proof of service of the notice of opposition filed in case no. HC2355/18.

I am also not persuaded that the application, case no. HC5808/18, was a proper or competent application for the simple reason that because application HC2355/18 was a chamber application, its disposal was not party driven but judge driven.

Chamber Applications are referred to a judge by the Registrar for disposal and do not require that a party should set down a chamber application for hearing. It is up to the judge to dispose of the application in terms of either Rule 245 which deals with non-urgent applications or Rule 246 which deals with urgent applications.

Rule 236(3), which allows for a respondent to apply for the dismissal of an application where the applicant has not set it down for hearing within one month after the filing of a notice of opposition, does not apply to chamber applications.

Be that as it may, application HC5808/18 became academic and was overtaken by events because the main application, HC2355/18, was determined before the said application was referred to the judge for determination.

For purposes of good order, the applicant, having noted that its application had been overtaken by events, should have filed a notice of withdrawal of the same.

For the record, having perused the said application, HC5808/18, I noticed that the certificate of service was filed on 29 June, 2018. The filing of the certificate of urgency would have been required to be filed before the application was referred to a judge. By 29 June, 2018, case no. HC2355/18, whose dismissal was sought, had already been determined on 27 June, 2018.

I will separately endorse that the record HC5808/18 application is incompetent and was overtaken by events so that the matter can be recorded as finalized by the court and filed away.

(g) On 14 July 2018, the applicant filed this urgent chamber application for a provisional order on the terms indicated at the beginning of this judgment.

I set down the application for hearing on 18 July 2018.

The chamber application is defective in that it does not comply with Form 29B as read with Rule 241.

It is not expected that a senior legal practitioner of Mr Musimwa's experience still fails to comply with the Rules despite a plethora of case law to this effect and the importance of complying with Rules when bringing cases to court.

One shudders to think what sort of grounding the junior practitioners who get employed or are attached to the senior practitioners who fail to comply with basic rules get taught.

To put it beyond conjecture as to the basis for my criticism, the applicant's notice of application should have set out the grounds of the application ex facie. The application, instead, states that:

“Take notice that an urgent chamber application is hereby made to this Honourable Court on the grounds stated herein. The accompany affidavit and Annexures shall be used in support of this application.”

The heading of the application itself reads as follows:

“URGENT CHAMBER APPLICATION FOR STAY OF EXECUTION PENDING APPEAL”

To compound my criticism of Mr Musimwa, the provisional order sought and the final order are substantially the same except in regard to the prayer for costs.

For whatever it is worth, and for the benefit of Mr Musimwa, it is entirely competent to seek an order which is final in nature by way of urgent application.

There is this myth or mis-appreciation of procedure by legal practitioners in believing that every urgent application must be for a provisional order and that it is returnable to court.

Rule 244, read with the proviso thereof, is clear, that, the judge can grant any competent order in an urgent application.

An urgent application is one which is certified as urgent by a legal practitioner. It can be for an order which is final or for a provisional order in terms of Rule 246(2), (3) as read with Rule 247.

Albeit, the pronouncements of the courts falling on deaf ears with respect to some legal practitioners, for posterity, I will, for the umpteenth time, in the interests of justice, once again, hit the drum loud and clear and repeat that rules and procedure are there to be followed. Following rules constitutes part of law practice.

That said, it appears to me that going forward, whilst the court has a discretion to either condone non-compliance with the Rules in the interests of justice, in terms of Rule 4C, or to dismiss the application, the better route to adopt, where circumstances permit, and to avoid an injustice, is for the court to condone the rule breach especially if it is one relating to form but to express its displeasure by ordering that the errant legal practitioner, who is an officer of this court, should be deprived of his fees.

Such an order would reign in errant legal practitioners and should be made where merited after affording them an opportunity to explain their errors.

Where the explanations are not convincing, and the legal practitioner's failures are adjudged to be gross, the attention of the Law Society should be drawn to the fact for it to monitor that the legal practitioner undergoes continuous legal training in the relevant areas of failure.

I will, out of benevolence, and in the hope that errant practitioners take heed, quote a few judgments of this court on the need to comply with Rules of Court, be it in ordinary, chamber, or urgent chamber applications; see David Jack & Ors v Lloyd Mushipe & Ors HH318-15; Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company (Pvt) Ltd & Anor HH667-15; Joshua Nyamhuka & Anor v Abigail Mapingure & Ors HH29-17; Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H); Salt Lakes Holdings (Pvt) Ltd & Anor v CBZ Bank & Anor HH636-15; Grandwell Holdings v ZCDC & 2 Ors HH125-17; Brain Andrew Cawood v Elasto Madzingura & Anor HMA12-17; Ignatius Masamba v Secretary Judicial Service Commission & Anor HH283-17 and several others which can be found on reference to decided cases on the need to comply with the Rules.

Legal practitioners must therefore take heed that they risk being put to shame by the court for inefficiency and being deprived of their costs. It is high time that the profession focuses on efficiency and to shun tardiness in case presentations, preparation of pleadings, and all other facets of legal practice that has to do with justice administration.

The profession must justify its description of a learned profession and its members learned officers of the court.

The applicant filed an appeal, No. SC550/18, against my order given in case no. HC2355/18, on 13 July 2018 with the Supreme Court.

On the following day, this urgent application was filed.

I have already indicated that the application was set down for 18 July 2018 following its referral to me in terms of Rule 244.

(h) On 18 July 2018, Mr Hashiti, who appeared instructed by Mr Musimwa, applied for a postponement of the hearing. He indicated that he had instructions that he needed to verify through documentation still to be availed to him to the effect that the applicant was in fact an incola.

In his submissions, which I found meritorious, he stated that should the applicant be an incola, then the issue of arrests or attachments of the applicant's property to found and confirm jurisdiction would fall away.

Counsel for the respondents first opposed the postponement arguing that the request was frivolous.

I was utterly surprised by his attitude because the reasons for the request had merit and would enable him to file his clients (the respondents) claims expeditiously without putting the respondents to the costs of ancillary matters of jurisdiction.

Having found the opposition to the application to be without merit, I dismissed the opposition and postponed the hearing to 20 July 2018.

(i) On 20 July 2018, Mr Hashiti now had in attendance representatives of the applicant, being, its Senior Legal Manager, Mr Jerhome Tjizo, and the Senior General Manager, Ground Operations, Mr Moses Shihepo. They had flown from Namibia for the hearing. I was advised by Mr Hashiti that the legal practitioners and the parties were in consultation but appeared not to be in agreement.

(j) For their part, the respondents had, on 18 July 2018 filed a notice of opposition. They contended that the application was not urgent because the order sought to be stayed had been appealed against. It was also contended that since the respondents had not taken any steps to enforce the order no urgency had arisen.

It is of course correct that an appeal was noted to the Supreme Court. The appeal suspended the execution of the judgment appealed against. The law in this regard was aptly set out by CORBETT JA in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A1)…,; a case cited by GARWE JA in Longman Zimbabwe (Pvt) Ltd v Midzi & Ors SC54-07 thus:

“Whatever the true position may have been in the Dutch Courts, and more particularly the court of Holland…, it is today the accepted common law rule of practice in our courts that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal with the result that, pending the appeal, the judgment cannot be carried and no effect can be given thereto except with the leave of the court which granted the judgment.”

After extensive discussion on the correctness of the above proposition and consideration of various decided cases, GARWE JA, with the concurrence of the other members of the court, stated thus:

“The position may now be accepted as settled, that, unless empowered by law to do so, an inferior court or other authority has no power to order the suspension of its own orders or judgment, and, further, that the noting of an appeal against the judgment or order of such court or tribunal or other authority in the absence of a statutory provision to that effect, does not have the effect of suspending the operation of the judgment or order that is sought to be appealed against.”

The legal position, following on the above settled position, is that my order, having been appealed against, and it being an order of a superior court, cannot be executed upon until the appeal is disposed of or unless the respondents in the appeal apply to execute the order pending appeal.

Accordingly, there is no legal basis for the applicant to seek a protection order or interdict to stay execution pending appeal.

The interdict or protection, if one may use the expressions loosely, is given in law and already in place. If l were to grant the order, I would simply be restating or endorsing a settled position. It is not the function of a court to do that in the absence of a dispute on the interpretation of the legal position.

(k) I would have thought that a properly advised legal practitioner would have argued the matter and sought the dismissal of the application on the basis that there was no proper or legally competent application before me.

It was not to be with Mr Mutevedzi for the respondents.

He went on, at length, to argue that the application was not urgent.

It is common cause and a matter of law, logic, and common sense that an invalid application is just that. Nothing sits on nothing. It is as good as it is not there. Urgency does not come into it because if, for example, the application was adjudged not urgent, it would have to be referred to the ordinary roll. A nullity is not referred for determination. It is declared to be so and that's the end of the matter.

Mr Mutevedzi was not done.

He argued that the application was incurably defective as it was not accompanied by Form 29B. He further argued that the appeal notice was defective because it did not bear a High Court stamp.

I cannot, of course, determine the validity of a Notice of Appeal agreed to be pending in the Supreme Court. It is for that court to make the determination.

The argument raised by counsel for the respondents in this regard contradicted his earlier submissions, and the deposition of the respondents, that they accepted that the order sought to be stayed had been appealed against.

Mr Mutevedzi was not done.

He then attacked the authority of the deponent to the founding affidavit to represent the applicant.

For his part, the applicant's counsel did not adopt a grandstanding approach.

Mr Hashiti sought to depart from the thrust of the application and submitted that the applicant's concern was that it risked having its business adversely affected by an attachment of its aircraft or other property. He tendered the applicant's resolution to provide a Bank guarantee in the sum of US$25,000 as security for its due submission to jurisdiction of the court.

The offer was refused by the respondents' counsel who argued for the dismissal of the application.

When I asked Mr Mutevedzi whether he did not consider that the interests of the respondents would be better served by a consensus between the parties on the submission to jurisdiction by consent secured by a Bank guarantee, or other security, he was adamant that the application should just be dismissed.

Mr Hashiti's position was that a mutual agreement on the issue would have dispensed with the appeal thus opening doors for the respondents to immediately institute action.

Although these submissions were being made in the course of the hearing, the issue was not before me and I could not make any determination thereon and will not do so in view of my finding that the application before me is incompetent at law in the circumstances of the existence of a pending validly noted appeal.

I should express my disquiet at the poor standard of understanding of basic law principles by the applicants' instructing legal practitioner and by Mr Mutevedzi.

It is not expected that any astute legal practitioner would not appreciate that the noted appeal, unless set aside, or the appeal determined, was a bar to execution of my order.

Sustained arguments by Mr Mutevedzi, on issues which did not contribute to the determination of a simple legal issue, namely, whether there was a valid application before the court in the face of the appeal, was an indictment on his ability to grasp the issue at play.

A legal practitioner should identify the issue, or issues, for determination and focus on them.

Grand-standing before a court or judge hardly impresses nor does it make a good legal practitioner.

I seriously considered depriving the legal practitioners of their costs as a mark of the courts displeasure at the legal practitioners' basic lack of diligent execution of their mandates.

Mr Musimwa's failure to appreciate that the application was a nullity and Mr Mutevedzi's lack of appreciation of issues and arguing ad infinitum on matters arising from an invalid application presented a serious indictment on the sinking levels of competence of some legal practitioners.

I could not properly determine whether or not to deprive the legal practitioners of their costs as I did not hear them on the matter.

It was a thought which played on my mind as l prepared these reasons for judgment.

I must, in dismissing this application, determine the question of costs.

The general rule is that costs follow the result. This notwithstanding, costs are awarded in the discretion of the court, and, as with any other discretion, it is exercised judiciously.

The principles which the court considers include; the conduct of the parties before and during the hearing; whether a party has been wholly or partially successful; whether a party has offered to settle the matter; and any other pertinent circumstances; see Manica Zimbabwe Ltd v Grindsberg Inv. (Pvt) Ltd & Ors HH95-16.

In casu, considering all the matters over which I have expressed the court's disquiet informed by what is clearly ineptitude by its officers, Mr Hashiti excluded, an order that each party bears its own costs would have been appropriate.

In view, however, of the fact that the applicant's application is not supported in law, the filing of the ill-advised application is the one which set into motion all that followed it - culminating in the court's time being wasted as well.

The appropriate order under the circumstances is that the application be and is hereby dismissed with costs.

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

JUSTIFICATIONThe HOLY BIBLE, CONCORDANCE AUTHORIZED KING JAMES VERSION, 2013 p1078 reads, in Ecclesiastes 4:09-12:“9. Two are better than one; because they have a good reward for their labour.10. For, if they fall, the one will lift up his fellow: but woe to him who is alone when he falls; for ...

JUSTIFICATION

The HOLY BIBLE, CONCORDANCE AUTHORIZED KING JAMES VERSION, 2013 p1078 reads, in Ecclesiastes 4:09-12:

“9. Two are better than one; because they have a good reward for their labour.

10. For, if they fall, the one will lift up his fellow: but woe to him who is alone when he falls; for he has not another to help him up.

11. Again, if two lie together, then they have heat: but how can one be warm alone?

12. And, if one prevail against him, two shall withstand him; and a threefold cord is not quickly broken.”

I therefore refer to a number of legal sources as well as illustrations in determining this inter pleader application.

CLAIMANT BEARS THE ONUS TO PROVE THAT THE ATTACHED PROPERTY BELONGS TO IT AND MUST DISCHARGE THAT ONUS ON A BALANCE OF PROBABILITIES

In Sabarauta v Local Authorities Pension Fund and the Sheriff SC77-17, UCHENA JA, writing for the Zimbabwe Supreme Court, said:

“Interpleader proceedings are instituted by the Sheriff in respect of property attached by him when a third party claims ownership of that property. In such proceedings, it is necessary for the party claiming the attached property to prove ownership by clear and satisfactory evidence.”

In The Sheriff for Zimbabwe v Mahachi and Leomarch Engineering HMA34-18, MAFUSIRE J puts it thus…,:

“One common thread running through such cases, and several others on the point, is that there is a rebuttable presumption that where someone is found in possession of movable goods, they are presumed to be the owner of that property.

Where someone else other than the possessor claims to be the owner of those goods, they have the onus to prove, on a balance of probabilities, that they are the owner. There are no hard and fast rules on how they may go about proving such ownership. Every case depends on its own facts. The claimant may have to produce some evidence, such as receipts or other documents, if available, to prove ownership. A bald assertion that they are the owner is not enough.”…,.

The facts of each matter ultimately resolves the question whether clear and satisfactory evidence has been tendered by a claimant to satisfy the court, that, on a balance of probabilities, the property attached belongs to the claimant. The road to proving ownership is not a one way street.

WHERE THE CLAIMANT HAS PRODUCED SUFFICIENT EVIDENCE TO CONSTITUTE PRIMA FACIE PROOF OF OWNERSHIP THE ONUS SHIFTS TO THE JUDGMENT CREDITOR TO DISPROVE SAME BY PRODUCING EVIDENCE TO THE CONTRARY

The claimant does not need, at this stage, to prove, on a balance of probabilities, that the attached property belongs to it. All that is required of it is to show, on the face of it, that the property probably belongs to it.

That is what prima facie proof means in civil cases.

The onus then shifts to the judgment creditor to disprove the claimant's prima facie evidence of ownership by producing its own evidence to the contrary.

If the contrary evidence satisfies the court, the claim fails and execution proceeds. The converse is true.

The judgment creditor cannot successfully disprove the claimant's prima facie evidence of ownership by making unsubstantiated assertions in its own opposing affidavit. Neither can it do so through composing heads of argument based on the bare assertions in the opposing affidavit.

It follows also that argument at the hearing of the inter pleader application is no substitute for a judgment creditor's failure to produce contrary evidence to disprove the claimant's prima facie evidence of ownership of the attached goods.

If the judgment creditor cannot disprove the claimant's prima facie evidence of ownership, the result is this: What was prima facie evidence of ownership is transformed into proof on a balance of probabilities. The attached goods are then declared not executable and their release from attachment ensues.

This procedure has a parallel in Criminal Law.

If the State establishes a prima facie case against an accused who then opens and closes his defence case without without leading any evidence at all that person will be convicted. The conviction is not based on the prima facie case. It is no longer that. It has graduated to become proof beyond a reasonable doubt for want of any competing evidence.

In (1) Smit Investments Holdings SA (Proprietary) Limited (2) Genet Mining (Proprietary) Limited v (1) The Sheriff of Zimbabwe (2) Pungwe Mining (Private) Limited SC33-18 PATEL JA, with whom MALABA CJ and HLATSHWAYO JA concurred, said…,:

“In a bid to prove its ownership of the assets, the first appellant produced statements of account for Mbada Mine which showed that some payments, but not all, had been made by Mbada Mine. In addition, both appellants produced detailed agreements concluded with Mbada Mine (on 15 July 2012 and 22 July 2015), respectively, which stipulated that ownership of the assets would remain with the appellants until the full purchase price was paid. It was the court a quo's finding that the agreements were not authentic and that there was collusion between the appellants and Mbada Mine.

It was alleged, by the second respondent, that, the agreements were doctored by Mbada Mine and the appellants ex post facto and that there was no paper trail to show that the assets belonged to the appellants.

However, no evidence was led to substantiate the second respondent's allegations of collusion.

The court relied on the bald averment by the second respondent that the documents were not authentic and simply took that to be correct.

It is the second respondent that levelled allegations of inauthenticity and collusion. Consequently, it is the second respondent that should have proven the same.

This position was succinctly captured in the case of Circle Tracking v Mahachi SC4-07, where the court held that the principle that he who alleges must prove is a basic concept of our law.

No evidence was adduced by the second respondent to substantiate the alleged inauthenticity of the agreements.

The appellants produced documents which show that the assets had been procured by them and initially belonged to them. They also produced the agreements concluded with Mbada Mine in 2012 and 2015 which show that ownership was reserved in favour of the appellants until the full purchase price was paid. The relevant provisions are contained in clauses 4.3 and 11.6 of the first appellant's agreement and clause 7.7 of the second appellant's agreement.

The second respondent alleged that the documents supporting the appellants' claims were a recent fabrication meant to frustrate the execution of the assets, but, the dates when the agreements were concluded reveal that they were executed well before the second respondent instituted any legal proceedings in this matter. There is also nothing in the record to give credence to the allegations that the documents were fabricated by the appellants in collusion with Mbada Mine. It is my view, therefore, in the absence of any evidence to the contrary, that the agreements are genuine and that their provisions and the agreed compacts contained therein must be accepted as being authentic, as well as commercially and legally cognizable.”

This court's decision in the Sheriff of Zimbabwe v Senital (Pvt) Ltd t/a Frank B Mine and Zimbabwe United Passenger Company Ltd HB233-18 underscores this point. There, MAKONESE J expressed it in these words…,:

“The claimant refuted the allegations that the property belonged to the judgment debtor, and, in a bid to prove ownership of the attached property, the claimant attached some receipts and agreements of sale as proof of the attached assets. An agreement of sale is taken as prima facie proof of ownership. Where a claimant tenders some acceptable proof of ownership the onus must necessarily shift to the judgment creditor disproving the claimant's ownership of the attached goods.”

Similarly, CHITAPI J explained in The Deputy Sheriff Marondera v Hombarume and 7 Ors HH521-18…,:

“In my view, this claimant's claim is not far fetched. The claimant did not just attach the registration book as proof of legal ownership. He attached the official motor vehicle extract from Central Vehicle Registry. It gives details of the importation of the vehicle by the claimant and proof of payment of import duty and police clearances. In such a situation, the onus to prove that the third claimant is not the owner of the vehicle must shift to the judgment creditor. Where the claimant places before the court acceptable evidence of ownership or of some other legally recognizable ground warranting release of the attached property from execution, the onus shifts on the party who impugns such evidence to controvert it.”...,.

THE FACTS

The judgment creditors were employees of Amble Mining (Private) Limited. The latter traded as Amble Mine.

On 24 May 2010, an Independent Arbitrator granted an award ordering the Mine to reinstate the 99 employees with effect from March 2006 without loss of salary and benefits. As an alternative, the Mine was to pay them certain sums for back pay, damages for loss of employment, punitive damages, housing allowance, cash in lieu of leave and cash in lieu of notice. The total amount was US$1,199,251=88.

The date when the matter was referred to the Arbitrator is not disclosed in the papers. Also kept under wraps is the history of the labour matter leading up to the award.

Amble Mining (Pvt) Ltd is the judgment debtor.

On 28 June 2017, the employees filed a court application for registration of the arbitral award. The application to register the award as an order of this court was granted, unopposed, on 16 August 2017.

A Writ of Execution Against Movable Property must have been issued. I have not seen it. What I have perused, both in the court record relating to registration of the arbitral award and the present matter is a Writ of Execution against immovable property. It was issued on 18 June 2018. In the writ is a statement speaking to a nulla bona return of service. The nulla bona return of service was not placed before me. I do not know when it was issued. I am also in the dark as to where the Sheriff had sought to effect the attachment.

However, as regards the immovable property, the Sheriff was instructed to attach and execute what was said to be the judgment debtor's property being a certain chrome mine comprising of:

(i) The mining claim, being a block of 25 mining claims known as BEE 47 registered as No. G310 BM.

(ii) 110 compound houses.

(iii) 1 x shop.

(iv) 6 x round thatched guest houses tiled/geyser.

(v) 3 separate guest houses.

(vi) Workshop.

This was to realize the sum of US$1,199,252=99 which was the alternative remedy to reinstatement.

On 26 June 2018 the Sheriff wrote to the Provincial Mining Director, Mashonaland West Province attaching the mining claim in question together with everything else listed on the writ of execution against immovable property.

Gurta AG is the claimant. It is a company incorporated in terms of the laws of Switzerland. It is therefore a peregrinus. It has paid security for costs.

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

Under case no CCZ10/2022, the applicants (Mutumwa Mawere, SMM Holdings Ltd, Africa Resources Ltd, Africa Construction Ltd, Tap Building Products Ltd and Friends of Shabanie Mashava Mines Trust) applied to intervene in certain ongoing proceedings brought by the first respondent (Tichaona Mupasiri) against the second and third respondents (the President of the Republic of Zimbabwe and Edwin Manikai).

The essence of the order sought in these ongoing proceedings is a declaration that the second respondent failed to fulfil a constitutional obligation, the precise nature of which is yet to be determined.

I shall hereafter refer to these ongoing proceedings as “the main matter.”

The application for intervention was placed before me for determination. Before the hearing of the application, the applicants made an application for my recusal.

After hearing submissions from the parties and counsel, I dismissed the application for recusal with no order as to costs. I indicated that reasons for the order would follow in a written judgment.

This is the written judgment.

The application for recusal was filed by the first applicant, who alleged that he was bringing it in his own right and on behalf of the other applicants (SMM Holdings Ltd, Africa Resources Ltd, Africa Construction Ltd, Tap Building Products Ltd and Friends of Shabanie Mashava Mines Trust). He deposed to the founding and only affidavit in the matter.

In purporting to act on behalf of the other applicants, the first applicant relied on the authority that he had been granted by the other five, purportedly authorising him to file the application for intervention in the main matter.

Authority to bring the application for recusal on behalf of the other applicants was not furnished - an observation correctly made by the second respondent.

As a consequence, for want of authority on the part of the first applicant to represent them, the other applicants were not before me.

In addition, the applicant purported to act for two companies incorporated in the British Virgin Islands and a third incorporated in Zambia. These are the third (Africa Resources Ltd), fourth (Africa Construction Ltd) and fifth (Tap Building Products Ltd) applicants respectively.

Being foreigners, the three companies ought to have furnished security for costs in accordance with the rules of court.

Not having done so, the three companies were, in addition to the want of authority on the part of the first applicant, also not properly before me.

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HH19-08 : SERGIO TARWIREYI vs SAMUEL MBONELI KUNENE AND FOURWAY HAULAGE S.A. (PTY) LTD
Ruled By: HUNGWE J

Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

HB06-11 : JOTHAM CHIRONGOMA vs TDG LOGISTICS and REGENT INSURANCE
Ruled By: MATHONSI J

HB103-11 : ROBERT BOWES and ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELINA PATRINOS and IONNIS IOANNIDIS and CONSTINDINOS PARTINOS and DEPUTY MASTER, HIGH COURT, BYO vs MARIA MANOLAKAKIS
Ruled By: MATHONSI J

HB31-10 : BROOKLANDS HUNTING SAFARIS (PVT) LTD vs PABST HOLDINGS (PVT) LTD t/a CHAPUNGU RANCH and LOWVELD MARKETING SERVICES (PVT) LTD and MR WILLIAM PABST
Ruled By: KAMOCHA J

HH132-11 : MYSTICAL TRADING (PRIVATE) LIMITED and MARCOL TRADING LIMITED and BROAD FUELS CC vs ADDX TRADING 528 (PTY) LIMITED and DOWNTOWN PETROLEUM (PRIVATE) LIMITED and FUTURE MUVIRIMI
Ruled By: MTSHIYA J

HH305-14 : FAIRDROP (PVT) LTD vs CAPITAL BANK CORPORATION LTD and JOURNET TRADING PL and ELSPENCE INVESTMENTS PL and OTHERS
Ruled By: MATHONSI J

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER
Ruled By: MAKONESE J

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING
Ruled By: MAKONI J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC

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Law Portal Zimbabwe

Jurisdiction re: International Jurisdiction iro Peregrinus or Non-Residents and the Rule of Forum Rei Sitae

HH19-08 : SERGIO TARWIREYI vs SAMUEL MBONELI KUNENE AND FOURWAY HAULAGE S.A. (PTY) LTD Ruled By: HUNGWE J

Appealed HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED Ruled By: MUTEMA J

HB06-11 : JOTHAM CHIRONGOMA vs TDG LOGISTICS and REGENT INSURANCE Ruled By: MATHONSI J

HB103-11 : ROBERT BOWES and ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELINA PATRINOS and IONNIS IOANNIDIS and CONSTINDINOS PARTINOS and DEPUTY MASTER, HIGH COURT, BYO vs MARIA MANOLAKAKIS Ruled By: MATHONSI J

HB31-10 : BROOKLANDS HUNTING SAFARIS (PVT) LTD vs PABST HOLDINGS (PVT) LTD t/a CHAPUNGU RANCH and LOWVELD MARKETING SERVICES (PVT) LTD and MR WILLIAM PABST Ruled By: KAMOCHA J

HH132-11 : MYSTICAL TRADING (PRIVATE) LIMITED and MARCOL TRADING LIMITED and BROAD FUELS CC vs ADDX TRADING 528 (PTY) LIMITED and DOWNTOWN PETROLEUM (PRIVATE) LIMITED and FUTURE MUVIRIMI Ruled By: MTSHIYA J

HH305-14 : FAIRDROP (PVT) LTD vs CAPITAL BANK CORPORATION LTD and JOURNET TRADING PL and ELSPENCE INVESTMENTS PL and OTHERS Ruled By: MATHONSI J

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER Ruled By: MAKONESE J

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING Ruled By: MAKONI J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI Ruled By: MANGOTA J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED Ruled By: PATEL J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian) Ruled By: CHITAPI J

View Appeal HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS Ruled By: CHIKOWERO J

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS Ruled By: MAKARAU JCC

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Law Portal
Zimbabwe

HH19-08 : SERGIO TARWIREYI vs SAMUEL MBONELI KUNENE AND FOURWAY HAULAGE S.A. (PTY) LTD
Ruled By: HUNGWE J

Appealed
HH158-11 : TRUSTCO MOBILE (PTY) LIMITED and TRUSTCO GROUP INTERNATIONAL (PTY) LIMITED vs ECONET WIRELESS (PRIVATE) LIMITED and FIRST MUTUAL LIFE ASSURANCE COMPANY (PRIVATE) LIMITED
Ruled By: MUTEMA J

HB06-11 : JOTHAM CHIRONGOMA vs TDG LOGISTICS and REGENT INSURANCE
Ruled By: MATHONSI J

HB103-11 : ROBERT BOWES and ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELINA PATRINOS and IONNIS IOANNIDIS and CONSTINDINOS PARTINOS and DEPUTY MASTER, HIGH COURT, BYO vs MARIA MANOLAKAKIS
Ruled By: MATHONSI J

HB31-10 : BROOKLANDS HUNTING SAFARIS (PVT) LTD vs PABST HOLDINGS (PVT) LTD t/a CHAPUNGU RANCH and LOWVELD MARKETING SERVICES (PVT) LTD and MR WILLIAM PABST
Ruled By: KAMOCHA J

HH132-11 : MYSTICAL TRADING (PRIVATE) LIMITED and MARCOL TRADING LIMITED and BROAD FUELS CC vs ADDX TRADING 528 (PTY) LIMITED and DOWNTOWN PETROLEUM (PRIVATE) LIMITED and FUTURE MUVIRIMI
Ruled By: MTSHIYA J

HH305-14 : FAIRDROP (PVT) LTD vs CAPITAL BANK CORPORATION LTD and JOURNET TRADING PL and ELSPENCE INVESTMENTS PL and OTHERS
Ruled By: MATHONSI J

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER
Ruled By: MAKONESE J

HH61-15 : WENZHOU ENTERPRISES vs CHEN SHAOLING
Ruled By: MAKONI J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

CC02-22 : MUTUMWA MAWERE and OTHERS vs TICHAONA MUPASIRI and OTHERS
Ruled By: MAKARAU JCC