Jurisdiction re: Functus Officio iro Approach

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA J

This is the first and final distribution account in terms of which the executor awarded the house to the applicants...the Master approved the account. Once the account was approved the executor became functus officio.

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

Secondly, counsel for the applicants took the point that as this court had pronounced itself in the judgment of the 24th September 2009, this court was functus officio. The first issue to resolve is whether this court is properly seized with this matter. As I pointed out in my directive to the first respondent's legal practitioners, the allegation of ...

Secondly, counsel for the applicants took the point that as this court had pronounced itself in the judgment of the 24^th September 2009, this court was functus officio.

The first issue to resolve is whether this court is properly seized with this matter.

As I pointed out in my directive to the first respondent's legal practitioners, the allegation of fraud was directed at the judgment obtained before me. It is a serious matter for one party to make against another, especially where both parties are represented by counsel. Can this court rescind its own judgment without falling foul of the Rules of Court? In other words, when can a court grant rescission of a judgment?

Counsel for the applicants submitted that once this court pronounced itself on the matters before it on 24 September 2009, it became functus officio. As such, there is no basis, at law, upon which it could consider itself properly seized with the matter. Counsel for the applicants needed no authority for this trite position.

It is well-established in our law that once a court has duly pronounced a final judgment, it becomes functus officio; its jurisdiction in the case having been fully and finally exercised its authority over the subject matter ceases. Firestone SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298…,.; Chirambasukwa v Minister of Justice, Legal and Parliamentary Affairs 1998 (2) ZLR 567 (SC).

On the other hand, counsel for the first respondent urged the court to find that there is ample basis, under common law, permitting the court to exercise its inherent jurisdiction in addition to the Rules. Rule 449(1) of the High Court Rules provides -

“449(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order-

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or patent error or omission, but only to the extent of such ambiguity, error or omission; or

In terms of the common law, the court has power to rescind a judgment obtained by default of appearance provided that sufficient cause has been shown. In respect of rescission of judgment in terms of the Rules, it has been held that this is a matter for the discretion of the court, which discretion should be exercised judicially. Where willful default was found it has been held that there was no room for the exercise of this discretion but this approach has been questioned and the better view seems to be that willful default or gross negligence on the part of the applicant constitutes no absolute bar to the grant of the indulgence of rescission but that it is a factor, although a weighty one, to be considered in the broad conspectus of the application which is to be taken into account together with the merits of the defence raised to the plaintiff's claim, in the determination of whether good cause for rescission has been shown. De Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd 1994 (4) SA 705…,; HEBSTEIN & VAN WINSEN 4^th Edition…,.

In De Wet & Others v Western Bank Ltd 1977 (4) 770 (T) it was held…., inter alia, that -

“Before a judgment would be set aside under the common law, an applicant would have to establish a ground on which restitutio in integrum would be granted by our law such as fraud or justus error in circumstances.; Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163 at pp166-168; Semme v Incorporated Law Society 1933 (1) TPD 213 at p215; Makins v Makins 1958 (1) SA 338 (AD) at p343 Athanassiou v Schultz 1956 (4) SA 357 (W). It would appear that the procedure to set aside a judgment on grounds justifying restitutio in integrum is by way of action.”

The position set out above recognizes the finality of a judgment once delivered or issued (vide, Estate Garlick v The Commissioner of Inland Revenue 1934 AD 499…,.)

Under the common law, a judgment can be altered or set aside only under limited circumstances.

In Stumbles & Rowe v Mattinson; Mattinson v Stephens & Others 1989 (1) ZLR 172 GREENLAND J had occasion to consider whether this court can set aside its own interlocutory orders. He held that while the court normally does not have jurisdiction to temper or interfere with its own judgments, because in relation thereto, it is functus officio, it does have jurisdiction over orders made in interlocutory and procedural matters. He held further that in terms of this jurisdiction, the court has powers to set aside such orders on good and sufficient reasons, including the fact that the basis of the order has been destroyed or shown to be non-existent. At page 178 he stated -

“This is particularly so when the matter is interlocutory, (per SQUIRES J in Sayprint Textiles v Girdlestone 1983 (2) ZLR 322). It is also so where the matter is procedural; (per STRATFORD JA in Ex parte Barclays Bank 1936 AD 431). I support the propositions that the court is entitled to regulate its own Rules. It is trite that the Rules are intended to expedite procedure and relief. To insist that the court is bound by a procedural order which it knows to be fatally defective is to insist on the court conducting a sham trial. It is illogical, senseless unjust and unreasonable to say to a litigant, “We will proceed with this expensive and protracted exercise, which is a trial and you can start all over again when the Supreme Court rightly sets aside the proceedings because of this fatal procedural defect.”

He goes on to make a very clear distinction between interlocutory matters and those in which final orders are made and observed that the distinguishing feature is that in final orders and judgments, the matter takes on the character of res judicata, the essence of which is that the issue, having been fairly contested by the parties, is finally resolved. It seems to me that, by extension, it cannot be said that a matter was fairly contested when the party resorted to concealing relevant information from the court in what may amount to fraud. Where, therefore, a party could show such fraudulent concealment of information relevant to the determination of the issue to be decided then the court should, under its common law discretion, exercise its powers and grant rescission.

In Harare Sports Club & Another v United Bottlers Ltd 2000 (1) ZLR 264…, GILLESPIE J took up the discussion on the discretionary powers of the court in respect of rescission at common law thus -

“The perceived strictures of this common law were seen as abated by Rules of Court. These permit the rescission of default judgment 'on good and sufficient cause'; the rescission, variation or correction of judgments or orders for error and the rescission of judgments entered in terms of a written consent for 'good and sufficient cause'. The Rules (especially Rule 56 and Rule 63) were seen as relaxing the common law. Our law, however, is not aptly a casuistic set of rules and exceptions but rather a just and logical application of principle. It is therefore not surprising, and most to be welcomed, that this rigid and brittle view of this area of the law has been reconsidered. It is now recognised that the complicated Rules may be explained in principle and that the principle is by no means as intractable as was defined earlier in the last century.

Thus, where the judgment sought to be rescinded was given in default, no question of a final judgment having been given on the merits can arise. Hence, no considerations of functus officio or res judicata apply to thwart an application for rescission. In such a case, even at common law, it is recognised that the court has a very broad discretion to rescind (on sufficient cause shown) a judgment given by default.

Even where judgment is given in the presence of the parties, and where the merits of the cause are considered, the court still retains a power to rescind that judgment. The power in this case would be more sparingly exercised since final judgment would be res judicata as between the parties and would appear to be a complete discharge of the court's office. On principle, however, justice demands that a final discharge tainted by fraud should not be permitted to stand. The other traditionally recognised exceptions are also explained on the basis that policy prefers to regard a judgment procured in some circumstances of ignorance of relevant documents to the contrary (for example) as not constituting a final discharge of the court's function. Further instances where the court is not held to be functus officio are those specified in Rule 449. As has been said in connection with the counterpart in South Africa of this Rule, this Rule -

'Sets out exceptions to the general principle that a final order, correctly expressing the true decision of the court cannot be altered by the court…,; the court has a general discretion whether or not to grant an application for rescission under Rule 42(1).'

The apparently ill-assorted, eclectic instances gathered under that Rule do share the common thread that in each case there are sound policy reasons, counteracting any suggestion of functus officio, for recognising a court's discretion to revisit its order. The Rule does not provide statutory exceptions to, but has been said to codify (or perhaps better consolidate) the common law.”

I respectfully associate myself with these sentiments.

Whilst the common law rule regarding rescission of orders in interlocutory matters is settled as having been trammeled by the Rules, the position regarding rescission of final judgments is that it can only be permissible in circumstances where a party could establish a ground for restitutio in integrum such as fraud or justus error.

I am satisfied that, in casu, the first respondent has discharged the onus in that regard. Consequently, I find that this matter is properly before me.

The line of authorities which caution against revisiting one's judgment proceed on the basis that the final judgment has been fairly obtained. I doubt whether in cases where there is strong evidence that judgment was not properly procured theses authorities would maintain the same position. I express no views on this but leave the question open as to what constitutes a fairly procured judgment. One that was obtained by fraud or some such malfeasance cannot qualify to be treated as having been fairly obtained.

HH35-12 : DEBRAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: GUVAVA J

Whilst it is accepted that this court has inherent jurisdiction under common law to supplement, clarify, or correct its own judgments, it can only do so in very limited circumstances. The rationale being that once a court has delivered a judgment it becomes functus officio. The authors HERBSTEIN and VAN WINSEN in...outline the circumstances in ...

HH157-12 : JOROME OKEKE vs CHIEF IMMIGRATION OFFICER
Ruled By: MTSHIYA J

The endorsement that the matter is not urgent reflects the prima facie view of the court on the papers without the benefit of oral argument from the parties. Until the matter has been fully argued orally and a determination made thereafter, His Lordship is not functus officio and he can hear oral argument on ...

HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of October 2009.

The warrant of arrest was then cancelled on the 9th of October, on the very day that this application was filed, and is no longer of any concern.

Nevertheless, the applicant still seeks an interim order barring the first respondent, who was the presiding magistrate in a criminal matter before the Chinhoyi Magistrates Court, from compelling him to testify in that matter. He also seeks a final order setting aside the subpoena issued on the 2nd of October 2009 for him to attend and testify in the criminal matter.

The latter involves the prosecution of the fourth respondent under the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and has been set down to resume on the 4th of November 2009....,.

Basis of Application

The present application is by way of criminal review in terms of section 29 of the High Court Act [Chapter 7:06].

It was raised, in the course of argument, by counsel, that, the application is formally defective in that it has not been brought as a court application pursuant to Rule 256 of the High Court Rules, 1971 and that the review jurisdiction of this Court must be exercised with the concurrence of another judge.

As regards the first point, I take the view that Rule 256 is confined to civil matters and proceedings and does not apply to criminal reviews. In any event, it seems unnecessary for me to decide the point for present purposes, as I am inclined to entertain this matter on the robust approach adopted in State v Strowitzki 1995 (2) SA 525…, to wit:

“It is not the form of the procedure used which matters so much as the nature and substance of the application itself.”

As for the second point, the final order sought by the applicant requires the setting aside of the subpoena issued by the Magistrates Court.

This clearly falls within the purview of subparagraph (ii) of section 29(2)(b) of the High Court Act and would require the concurrence of another judge by virtue of the peremptory proviso to section 29(5)(b): see Attorney-General v Makamba 2004 (2) ZLR 63 (S)…,.

On the other hand, the interim relief sought herein is to bar the first respondent from compelling the applicant to testify pending the granting of the final order.

This relief, in my view, lies within the ambit of the general powers conferred by subparagraph (vi) of section 29(2)(b) and can be granted by a single judge in terms of section 29(5)(b) of the High Court Act.

Propriety of Application

Section 229 of the Criminal Procedure and Evidence Act [Chapter 9:07] regulates the process for securing the attendance of witnesses as follows:

“(1) In this section —

'prescribed officer' means the registrar, assistant registrar or clerk of the court or any officer prescribed by rules of court.

(2) Either party desiring to compel the attendance of any person to give evidence or to produce any books, papers or documents in any criminal case may take out of the office prescribed by rules of court the process of the court for that purpose.

(3) When the accused desires to have any witnesses subpoenaed and satisfies the prescribed officer of the court that —

(a) He is unable to pay the necessary costs and fees; and

(b) Such witnesses are necessary and material for his defence; the prescribed officer of the court shall subpoena such witnesses.

(4) In any case, where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the application to the judge or magistrate who may grant or refuse such application or may defer giving his decision until he has heard the other evidence in the case or any part thereof.”

It is averred, on behalf of the applicant, that, the subpoena that is impugned in casu was issued as an order of court and not merely through the office of the clerk of court. Accordingly, the first respondent was functus officio vis-à-vis the subpoena and his decision in that regard is properly reviewable by this Court.

In his affidavit, filed at the direction of the Court, the first respondent affirms that the subpoena was originally issued by the Clerk of Court at the request of the fourth respondent. Subsequently, following the reluctance of the police to serve the subpoena, the first respondent directed that the subpoena be “reissued to the police to serve the witnesses for the defence today.”

The first respondent's position is that, in essence, he merely ordered the police to serve the subpoena originally issued by the Clerk of Court.

Assuming that this evidence accurately reflects what transpired in the issuance and re-issuance of the subpoena, the subpoena was issued, not by the first respondent but by the Clerk of Court acting in terms of subsections (2) and (3) of section 229 of the of the Criminal Procedure and Evidence Act.

It follows that the validity of the subpoena, on its merits, was never canvassed before the first respondent and, therefore, he cannot be said to be functus officio in that regard.

Ordinarily, the applicant's claims of privilege and the validity or otherwise of the subpoena should, in the first instance, be ventilated before the Magistrates Court. Nevertheless, on the basis that the subpoena was originally issued by an officer of the court and subsequently reissued by order of the court, it may properly be regarded as an order of the court itself.

Moreover, whether the subpoena is regarded as an administrative order issued by the clerk or as an order of the court, this Court is endowed with the requisite jurisdiction in either case, by virtue of its inherent jurisdiction at common law as well as its statutory jurisdiction under section 26 of the High Court Act, “to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

I therefore deem it perfectly appropriate to deal with the merits of this application in order to avoid further delays in the administration of justice.

HB43-09 : THULANI NDLOVU vs SHEPERD MUKURUVA and GRACE MUGWAGWA and REGISTRAR OF DEEDS
Ruled By: NDOU J

The applicant and the second respondent only entered into their Agreement of Sale on 9 September 2003. The second respondent did not honour this Agreement as well, resulting in the applicant approaching this court in 2004. On 20 February 2004, he obtained a provisional order interdicting the second and third respondents from selling and transferring the property ...

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

On 20 May, the respondent's legal practitioners raised preliminary points, the first of which was that this court is functus officio and cannot hear the matter as it had already made a final determination that the matter is not urgent and the determination had been communicated to the parties. Reference was made to Chirambasukwa v ...

It was submitted that as the applicant had failed to establish urgency on the papers filed it could not now seek to establish urgency outside what is contained in its papers.

The applicant's legal practitioners, on the other hand, urged the court to find that it, the court, is not functus officio on the issue of urgency as the determination referred to is only a procedural directory as to how the matter should proceed and is not an order of court. It was submitted that the determination is analogous to a referral of a matter brought to court by way of application procedure. It was also submitted that even if the determination was to be taken as an order of court it is an interlocutory order which relates to a procedural matter and the court can thus not be functus officio. Reliance was placed on Stumbles and Rowe v Mattison; Mattison v Stevens and Others 1989 (1) ZLR 172 (HC) in support of this submission. It was held in that case that while normally a court does not have jurisdiction to tamper or interfere with its own judgments because, in relation thereto, it is functus officio, it does have jurisdiction over orders made in interlocutory and procedural matters.

I dismissed this preliminary point at the hearing for the following reasons.

The endorsement that the matter is not urgent was made on a consideration of the papers without hearing any oral arguments by the parties. It was the court's prima facie view of the matter as regards the issue of urgency. The parties were not heard by the court on the merits of the issue of urgency. It is my considered view that this court cannot be functus officio in such circumstances. Had the parties been heard orally, and a determination made thereafter, such determination would be consequent upon full ventilation by the parties on the pertinent issue. In my view, the court would then become functus officio.

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

Counsel for the applicant argued that the magistrate had no jurisdiction to order execution pending appeal. She contended that the Magistrate Court Act [Chapter 7:10] was silent in granting criminal courts further jurisdiction to issue orders to suspend or execute pending appeal any judgment given under criminal law. Section 3(5) of the Gazetted Land (Consequential ...

Counsel for the applicant argued that the magistrate had no jurisdiction to order execution pending appeal.

She contended that the Magistrate Court Act [Chapter 7:10] was silent in granting criminal courts further jurisdiction to issue orders to suspend or execute pending appeal any judgment given under criminal law. Section 3(5) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] gives the Magistrates Court criminal powers to order mandatory eviction consequent upon conviction. The magistrate is solely conferred with authority to issue an eviction order. He is not conferred with authority to subsequently revisit the case and order execution pending appeal. She argued further that the Magistrates Court is a creature of statute and as such its powers are created and defined by statute. The court has no inherent jurisdiction, and, accordingly, no power to order execution of its own judgments despite noting of an appeal. After the magistrate has given an order, he becomes “functus officio.” The general principle, argues the applicant, is that once the court has announced its final judgment or order, it has itself no authority to correct, alter or supplement such judgment or order. It thereupon becomes “functus officio,” its jurisdiction having been fully and finally exercised; its authority over the subject matter ceases. In support of these averments the applicant cited authorities such as: Nyaguwa v Gwinyayi 1981 ZLR….,; ANZ (Pvt) Ltd vs Minister of State for Information and Publicity and Ors 2005 (1) ZLR 222 (5); and Kassim v Kassim 1989 (3) ZLR 234.

Further, the applicant argues that the position at common law is that a court which does not have inherent jurisdiction cannot issue orders for the execution of its own judgments pending appeal.

The Civil Magistrates Court is conferred, by section 40 of the Magistrates Court Act [Chapter 7:10], with specific authority to issue an order of execution pending appeal. Nothing in the Magistrates Court Act [Chapter 7:10] extends the same jurisdiction to a Criminal Magistrate's Court.

Further, argues the applicant, the High Court has issued out several declaratory orders to the effect that in these cases, where in terms of section 63 of the Magistrates Court Act [Chapter 7:10] an order has been suspended by virtue of the noting of an appeal, that order, consequent to a conviction, shall remain suspended until the appeal has been disposed of. The following cases were cited in this regard: Mupinge Farms (Pvt) Ltd vs The Attorney–General HCH5682/08; Chiriga vs The Attorney–General HCH502/2010; and Fordham v Minister of Lands HCH4629/2010.

In terms of section 63 of the Magistrates Court Act [Chapter 7:10] any order that does not relate to the punishment of imprisonment or a fine, shall be suspended upon the noting of an appeal, further avers the applicant.

The application for leave to execute pending appeal can only be entertained by the trial court. At that stage it, alone, is privy to the merits of the case and therefore best placed to entertain such an application. In the instant case the magistrate considered the merits of the case and agreed with the first respondent that the appeal was frivolous and that the reason for appeal was to extend the illegal occupation of State land by the applicant. It was argued that the magistrate's order was legally competent and not a nullity as contended by the applicant.

The noting of an appeal in the absence of any provisions to the contrary suspends the execution of the order. In my view, where the trial court is of the opinion that the appeal has no prospects of success and that it is being lodged only for purposes of delay, it may order execution of the order pending appeal.

Section 40 of the Magistrates Court Act [Chapter 7:10], for instance, deals with appeals. Section 40(3) of the Magistrates Court Act [Chapter 7:10] reads -

“(3) Where an appeal has been noted the court may direct either that the judgment shall be carried into execution or that execution thereof shall be suspended pending the decision upon the appeal or application.”

In the present case, the magistrate's decision is supportable on the basis of this provision.

View Appeal
HH233-10 : YAKUB SURTEE vs SHAUN EVANS and PAUL FRIENDSHIP and COLLIN MacMILLIAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL
Ruled By: MTSHIYA J

In this application, the applicant seeks the following relief:

“1. The respondents be and are hereby held to be in contempt of this Honourable Court Order granted on 19 May 2009.

2. The respondents be and are hereby incarcerated for a period of ninety (90) days each.

3. Costs of this application shall be paid by the respondents.”

The background to the relief sought can briefly be stated as follows:

On 4 June 2008, the applicant instituted legal proceedings in this court by way of summons. The relief sought therein was:-

“(a) An order that the first, second, third, fourth, and fifth defendants supply and deliver to the plaintiff the total of 47,500 litres of fuel within forty eight (48) hours of service of this order upon them failing which the Deputy Sheriff be and is hereby authorized to recover the fuel and deliver it to the plaintiff.

(b) Cost of suit.”

In terms of the declaration to the summons, the above claim arose out of the fact that in July 2006 the first, second, third, and fourth respondents (then defendants) as directors of the fifth respondent (then also defendant) entered into a verbal agreement with the applicant (then plaintiff) whereby the respondents agreed to use the applicant's service station for the storage of their fuel. For the usage of the service station by the respondents, the applicant would receive 2,500 litres of fuel per month in lieu of monthly rent.

At the commencement of the agreement, the applicant made available to the respondents 30,000 litres of petrol and 10,000 litres of diesel. This means that a total quantity of 40,000 litres of fuel were due to the applicant at termination of the agreement in August 2007.

In addition to that quantity, the respondents were liable for 7,500 litres of fuel in respect of three months outstanding rentals. That brought the total quantity of fuel due to the applicant to 47,500 litres.

The above quantity of fuel forms the basis of the court order obtained from this court by the applicant on 19 May 2009 which order reads as follows:-

“1. The defendants, jointly and severally, the one paying the others to be absolved, deliver to the plaintiff 47,500 litres of fuel within forty-eight (48) hours of service of this order, failing which the Deputy Sheriff be and is hereby authorised to recover the fuel and deliver it to the plaintiff.

2. Cost of suit.”

The respondents did not deliver the fuel within 48 hours as directed in the above order. The Deputy Sheriff was then mandated to recover the fuel, and, on 22 July 2009, the Deputy Sheriff issued a 'Nulla Bona' return of service.

It is the alleged non-compliance with the above order that has led to the current proceedings.

I first heard this application on 30 July 2010. At the commencement of the hearing, the first and second respondents applied to file heads of arguments out of time. The application was not opposed. I allowed it.

The third, fourth, and fifth respondents were in default and had not filed any opposing papers.

The applicant applied for default judgment.

I initially granted default judgment against the third, fourth, and fifth respondents. However, I later thought it best to reserve my decision on the issue of default judgment until a full hearing of the application with respect to the remaining respondents who had filed opposing papers. I then caused an attendance of both parties in my chambers on 11 August 2010 where, in terms of the Rules, I altered my earlier decision on default judgment against the third, fourth, and fifth respondents.

HH276-10 : DAVID CHIGODORA and NELIA CHIGODORA vs THOMAS C. T RODRIGUES and THOMAS C.T. RODRIGUES (N.O.) and THE REGISTRAR OF DEED and THE MASTER OF THE HIGH COURT and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

As I have already indicated, the intention to regularize did not constitute a formal decision on the part of the Master of the High Court, and, therefore, the issue of him being functus officio never arose.

HB51-10 : MORRIS CHINGUWA vs SIPHO NYONI and MAGISTRATE ZVISHAVANE and MR MUTSUNGUMA N.O. THE MESSENGER OF COURT/D/SHERIFF
Ruled By: MATHONSI J

It is clear that the procedure followed by the Magistrates' Court was irregular. From the time the judgment of the Chief's Court was confirmed by that court and a writ issued in favour of the applicant the same court became functus officio and could not lawfully reverse its own decision. In addition to that, the ...

HH110-13 : THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE vs ABEDINICO BHEBHE and NJABULISO MGUNI and NORMAN MPOFU
Ruled By: CHIWESHE JP

The respondents contend that the court has become functus officio. Whereas in the past the applicant has sought extensions within which to abide by the order, what is presently sought is a different relief which the court cannot entertain….,. The applicant avers that it is competent for the court to hear an applicant who seeks to have ...

HH56-14 : MABWE MINERALS ZIMBABWE PL vs CHIROSWA MINERALS PL and BASE MINERALS PL and ORBERT MPOFU (Minister of Mines) and THE ATTORNEY GENERAL N.O. and MRS E. KAHONDE N.O. (Mining Commissioner)
Ruled By: CHIGUMBA J

The parties appeared…, before me for oral argument, at the applicant's insistence, after I had initially indicated that the application did not meet the requirements of urgency. The letter from the applicant's legal practitioners, dated 21 August 2013, addressed to the Registrar, read in part, as follows: “We note that pursuant to perusing the urgent chamber ...

HH22-15 : MILTON MADYAUTA vs MAZVIONA MADZIVA
Ruled By: UCHENA J and MWAYERA J

The appellant and the respondent had a dispute over land which they took to Headman Ganje for determination. Headman Ganje presided over the same dispute twice giving two different judgments. He initially found in favour of the appellant, but, subsequently, found in favour of the respondent. The respondent was aggrieved by Headman Ganje's ...

The appellant and the respondent had a dispute over land which they took to Headman Ganje for determination.

Headman Ganje presided over the same dispute twice giving two different judgments. He initially found in favour of the appellant, but, subsequently, found in favour of the respondent.

The respondent was aggrieved by Headman Ganje's second judgment, and appealed against it to Chief Saunyama's Court. Chief Saunyama found in favour of the appellant. The respondent then appealed to the Magistrates Court, which set aside Chief Saunyama's decision.

The appellant then appealed to this court.

The appellant raised several grounds of appeal, which will be considered if the point of law raised on appeal does not resolve the appeal. The appellant's counsel raised the issue of functus officio in her heads of argument.

It is trite that a point of law can be raised at any stage - even on appeal.

See the cases of Trustees, Leonard Cheshire Homes Zimbabwe Central Trust v Chite & Ors 2010 (1) ZLR 631; Muchakata v Nertherburn Mine 1996 (1) ZLR 153 (S)…,; Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1997 (1) ZLR 569 (S); Zesa v Bopoto 1997 (1) ZLR 126 (S).

It has therefore been properly raised and should be determined before the other grounds of appeal can be considered. If it succeeds it has the effect of resolving the appeal without considering the other grounds of appeal.

Counsel for the appellant submitted that the first judgment of Headman Ganje remains extant, so the Headman was functus officio when he presided over the same dispute for the second time.

It is common cause that the Headman presided over the same dispute twice.

The law does not ordinarily allow a judicial officer to preside over the same case more than once. The functus officio principle simply means after hearing a case for the first time, the judicial officer will have completed his functions over that case and cannot hear it again. This rule is of universal application and ensures that justice is seen to be done. Allowing a judicial officer to preside over the same case more than once opens him to giving conflicting decisions - as happened in this case.

Counsel for the respondent submitted that section 20(1) of the Customary Law and Local Courts Act [Chapter 7:05] provides against applying common law principles in customary law cases. It provides as follows;

“20(1) Subject to this Act, the procedure and law of evidence in local courts shall be regulated by customary law and not by the general law of Zimbabwe, and the proceedings in such courts shall be conducted in as simple and informal a manner as is reasonably possible and as, in the opinion of the person presiding over the court, seems best fitted to do substantial justice.”

The intention of the Legislature is clearly to bar the application of general law principles of procedure and evidence from customary law proceedings.

Counsel for the appellant, while not disputing the clear meaning of section 20 of the Customary Law and Local Courts Act [Chapter 7:05], took the court back into the provisions of the Customary Law and Local Courts Act, in section 23(1) and 24(1), which she submitted introduced the principle of functus officio into customary law proceedings. Sections 23(1) and 24(1) of the Customary Law and Local Courts Act [Chapter 7:05] provide as follows;

“23(1) Any person who is dissatisfied with any decision of a primary court may, in the time and manner prescribed, appeal against such decision to the Community Court within whose area of jurisdiction the primary court is situated.

24(1) Any person who is dissatisfied with any decision of a Community Court may, in the time and manner prescribed, appeal against such decision to a magistrate for the province within which the Community Court is situated.”

Sections 23(1) and 24(1) of the Customary Law and Local Courts Act [Chapter 7:05] clearly provides for an appeal to the next higher court if a party is dissatisfied by a decision of the trial court, at primary court and Community Court levels. This means these courts are not allowed to hear the same case again after determining it for the first time. They, to use the general law principle, become functus officio after determining a customary law case.

The facts of this case establish that the appeal against the primary court's second decision has scaled the hierarchy of the courts right up to this court without being shot down for being a nullity. Each court labored, in vain, on this nullity on which nothing can depend. It remains a nullity and must now be correctly defined. It should never have been given a status while the real judgment of the primary court remained unnoticed. A nullity does not gain status because it has erroneously been worked on by esteemed courts. It has never been, and will never, be a valid decision of the primary court. If any party is aggrieved by the first and valid decision of the primary court it must start from there and not this nullity.

In view of the above, I find that the appellant's appeal is against a nullity and must therefore be upheld. The respondent shall pay the appellants costs of suit.

HH631-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBIT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF
Ruled By: MAFUSIRE J

The respondent's second point in limine was that this court was now functus officio. The argument was that the application before me was basically the same matter as determined by NDEWERE J before. It was said that the arguments proffered before NDEWERE J would be the same arguments to be proffered before me. The order ...

The respondent's second point in limine was that this court was now functus officio.

The argument was that the application before me was basically the same matter as determined by NDEWERE J before. It was said that the arguments proffered before NDEWERE J would be the same arguments to be proffered before me. The order sought was the same as that granted by NDEWERE J.

The submission that this court was functus officio was, in my view, self-serving.

The matter dealt with by NDEWERE J was an application for stay pending resolution, by this court, of the application for rescission of judgment. The matter before me, despite the imprecision of the papers, was an application for stay pending the determination, by the Supreme Court, of the respondent's appeal.

Counsel for the respondent disagreed.

He argued that the respondent had not come to seek execution pending appeal. He said execution pending appeal was a different premise altogether.

To some extent, counsel for the respondent had a point. The draft interim relief sought by the applicants read as follows:

“The execution against the Applicants' property pursuant to an appeal noted by the First Respondent against the Provisional Order granted by the Court under Case No. 1922/15 on 21 April 2015 is hereby stayed.”

Nowhere in the applicants' papers was there was mention of a stay of execution pending appeal. But I was not about to be detained by an argument about substance over form. Admittedly, the applicants founding papers, its draft order, and even counsel's argument during the hearing, were essentially that the respondent's appeal was invalid; that I must not recognise it at all; that nothing stems from an invalid process and that therefore the earlier provisional order had not been suspended. For that reason execution had to be stopped.

Counsel for the applicants submitted that ordinarily this court would not be asked to consider the validity or otherwise of an appeal that lies at the Supreme Court. That would be the function of the Supreme Court. But, in this case, he argued, the appeal was patently a nullity. And given the surrounding circumstances, it was a proper case for me to stay execution by ignoring it.

The flaw in counsel for the applicants' argument, and which I pointed out during the hearing, was that if the matter was dealt with on that basis, and if I stayed execution, what then would be the position if the respondent, again, decided to appeal against my decision, thereby automatically suspending it? What would be the position if, on that account, and on its own construction of the effect of the appeal, the respondent would then decide to proceed with execution?

Counsel for the applicants' reaction, perhaps tongue in cheek, was that if I were to grant a stay of execution; and if the respondent were to appeal against my order; and if on that account the respondent would decide to proceed with execution again, then the applicants would be forced to come back again for the third time.

But where would it end?

That is precisely one reason why I felt that the issues being argued before me were not the actual case that I had to decide.

Be that as it may, I dismissed the respondent's second point in limine.

The lack of precision in the applicant's papers and in its argument, was, to me, all about substance over form. In my view, the substance of the applicants' application before me was a plea for a stay of execution pending the determination of the appeal….,.

I ruled that this court was not functus officio.

In the context of legal proceedings, to be functus officio is to lack legal competence to adjudicate on the proceedings because one would have disposed of them previously. To be functus officio is to have discharged one's office.

See BAXTER, Administrative Law (1984)…, and the case of Chirambasukwa v Minister of Justice, Legal & Parliamentary Affairs 1998 (2) ZLR 567 (S).

But before me the application for a stay of execution pending appeal was a new issue. It had not been the issue before NDEWERE J. I had to look at the application and determine it in accordance with the principles governing applications for stay of execution pending appeal.

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O.
Ruled By: MANGOTA J

Whether or not the court is functus officio in regard to the present application does, by and large, depend on the circumstances of this case. The first respondent stated that, in dismissing the application for rescission of default judgement, the court pronounced itself on the point that the applicants were in wilful default. It submitted ...

Whether or not the court is functus officio in regard to the present application does, by and large, depend on the circumstances of this case.

The first respondent stated that, in dismissing the application for rescission of default judgement, the court pronounced itself on the point that the applicants were in wilful default. It submitted that the court cannot, under the circumstances, re-visit the same matter.

The applicants argued to the contrary.

They submitted that the court was not functus officio. They, in that regard, referred the court to the case of Nasasa Cellular (Pvt) Ltd v South African Post Office Limited [57471/07 (2010) Zagpphc] 90 wherein the requirements of the common law term functus officio were articulated as being:

(i) The same parties (idem actor);

(ii) The same cause of action (eadem petendi causa); and

(iii) The same thing (relief) demanded (eadem res).

It is evident, from the foregoing, that whilst the parties to the present application are the same, the cause of action is not the same. Nor is the relief which the applicants are seeking in casu the same as the relief which they sought when they appeared before TAGU J.

When the parties appeared before TAGU J, the cause of action was the default judgment. The relief which the applicants moved the court to consider in their favour was a rescission of that judgment. The application for stay of execution pending appeal is a new matter. That matter was not before TAGU J when he made a determination of the applicants' application for rescission of default judgment. I, in this regard, associate myself fully with MAFUSIRE J, who, when dealing with the same parties, and on an application of a similar nature, under case number HC6407/15, aptly defined the term functus officio as follows:

“In the context of legal proceedings, to be functus officio is to lack legal competence to adjudicate on the proceedings because one would have disposed of them previously. To be functus officio is to have discharged one's office.”

The court is satisfied, on the basis of the foregoing, that it is not functus officio in so far as the application which is before it is concerned. The first respondent's submission, which was to the effect that it was functus officio was, therefore, misplaced.

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

The learned authors, HERBSTEIN VAN WINSEN, 'The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa', 5th ed, state that: “The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or ...

HH57-16 : MOSES PIKAI SHONIWA vs NYUKWA SHONIWA (NEE MAZENGEZA)
Ruled By: CHITAPI J

I was faced with a situation in which I was functus officio but at the same time having power to use the provisions of Rule 449 to revisit my order. However, the powers provided to the court or judge under Rule 449 are exercisable on application.The Rule refers to an ...

HH343-15 : SOURCE-NET (PVT) LTD and NELSON BANYA and ALFONCE MBIZWO and BERNARD MPOFU vs STEWARD BANK LIMITED and ECONET WIRELESS
Ruled By: MUSAKWA J

When the matter was set down for hearing, the Registrar erroneously notified the present applicants. Nonetheless, they were not served with the application itself. It turned out that they attended at the High Court after the matter had been disposed of and after the other parties had already left. They sought audience notwithstanding that I was ...

HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS
Ruled By: MATHONSI J

The arbitrator who has made an award is functus officio and cannot entertain the same matter again….,.

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

In the case of Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346…, where this court said the following: “…., while normally a court does not have jurisdiction to interfere with its own judgments because, in relation thereto, it is functus officio, it does have such jurisdiction over orders made ...

HMA01-18 : MAIN ROAD MOTORS and SYLVIA CHORUWA and PATRICK MUGUTI vs ZIMBABWE REVENUE AUTHORITY and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT and ATTORNEY GENERAL
Ruled By: MAFUSIRE J

The applicants also argued that once a Zimbabwe Revenue Authority (ZIMRA) officer has assessed the duty on imported goods; has received the duty paid by the importer; and has cleared the goods, he becomes functus officio and cannot go back to his decision to review it again….,. Section 192(1) of the Customs and Excise Act [Chapter 23:02] reads: “192 Embargo on ...

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

Whilst the court a quo did not articulate the reason why it believed that the judgment by the Appeal Court was not binding on it, the argument was advanced, on appeal, and on behalf of the respondent, that both courts enjoyed parallel jurisdiction and therefore the previous decision of one was not binding on the ...

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

Should our courts be courts of law or courts of justice? One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; ...

Should our courts be courts of law or courts of justice?

One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; one is nothing without the other. Yet, those who practice the law, will know that, often times than not, the rigid application of the law may lead to a palpable injustice. That is why the law is fluid, meaning that its application depends on the circumstances before the court.

The law must be applied to avoid perpetrating an injustice, especially where the extent of the injustice would be the non-suiting of a litigant, leaving the litigant with nowhere else to turn as it were. That is not to say that non-deserving litigants should be shielded from the inevitable consequences that flow from a correct application of the law. On the contrary, it is my view that our courts should be courts of law that derive their authority and legitimacy from a fair and impartial application of the law in the pursuit of justice and fairness.

The applicant filed a court application before this court on 8 May 2011 seeking an order for the amendment of the judgment handed down by this court on 23 January 2008 under case number HC4252/2001. The order of January 2008 reads as follows:

“Judgment is entered in favor of the plaintiff as follows:

That Defendant pays;

(a) BP63,750 as replacement value for his damaged vehicle.

(b) 83,717=09 for medical expenses.

(d) $3.50 for towing charges.

(e) BP12,000,000 for car hire charges.

(f) $2,000,000 for pain and suffering.

(g) $850,000 for disability.

(h) $1,000,000 for future medical expenses.

(i) Costs of suit.”

The order sought by the applicant in this matter relates to the Zimbabwe dollar component of that order. The applicant seeks an order that the judgment of this Honorable Court, in case number HC4252/2001, dated 23 January 2008 be amended as follows:-

“That the Defendant pays to the Plaintiff:

1. USD$2,790=60 for medical expenses.

2. USD$116=66 for towing charges.

3. USD$66,666=67 for pain and suffering.

4. USD$28,333=30 for disability.

5. USD$66,666=67 for future medical expenses.

6. Interest at the prescribed rate of 5% per annum calculated from the date of judgment to the date of payment.

7. Costs of suit.”

It is common cause that the respondent has paid in full for the component of the 2008 judgment which provides for payment in Botswana Pula, in terms of the order of the Supreme Court dated 28 February 2012. It is common cause that payment of the Zimbabwe dollar component of the 2008 judgment remains outstanding - although the respondent has tendered this payment to the applicant. It is common cause that the applicant did not attempt to execute in respect of the Zimbabwe dollar component at the date of the judgment in 2008, and that, in 2009, Zimbabwe adopted a multi-currency regime. It is also common cause that after the accident the applicant was disabled.

The applicant has come before this court and avers that he requires urgent medical attention.

He has attached a quotation from a medical specialist, Mr. Bijay B. Garach, dated 23 March 2012, to show that he requires an estimated USD$279,400= for surgery in Durban South Africa. The purpose of the surgery is to correct a condition of stiffness in the right knee which is possibly related to a fracture and muscle tightness and to an associated knee joint injury. Mr. B.A.V. Ncube, a specialist orthopedic surgeon, certified that the applicant is in pain and gross discomfort in his right foot, on 4 June 2012, and that he needs further surgery to remove the implants and to fuse his mid-foot and correct his mal-aligned toes.

The applicant is currently unemployed and has urgent need for funds in order to access the medical assistance he requires.

On 24 October 2012, the applicant's legal practitioners addressed a letter to the respondent to which they attached the judgment of 23 January 2008. In the letter, the respondent was reminded that the Zimbabwe dollar component of the judgment remained unpaid in a total of ZWD$4,937,217=09. It is common cause that the Zimbabwean dollar has fallen into disuse. The respondent was advised that the applicant had approached the Reserve Bank of Zimbabwe which had confirmed that as at 23 January 2008 one United States dollar was equivalent to ZWD$30,000=. Converting ZWD$3,937,212=10 to USD translates into USD$164,573=90. Interest at the prescribed sum translates to USD$41,143=47. The total demanded from the respondent is USD$205,717=38.

In a letter dated 8 November 2012, the respondent, through its legal practitioners, tendered the ZWD$ to the applicant on the basis that the Zimbabwean dollar was still valid currency, and that, it being the currency of the judgment which the applicant was seeking to enforce, that is the currency in which the applicant should be paid. The computation of the interest was brought into question.

In a letter dated 19 November 2012, the applicant's legal practitioners explained that interest had been calculated at the prescribed rate of interest from February 2008. In paragraph 12.1-14 of the founding affidavit the applicant avers that:

“I need to execute against the respondent. I need to have the judgment in my favor sounding in Zimbabwe dollars amended to reflect United States dollars so that I am paid in a currency that I will be able to use. I submit that the Zimbabwe Dollar is now moribund and has fallen into disuse. It is no longer the currency in use at the moment. There is no point in giving me, as respondent contends, the Zimbabwe dollars as I will not be able to use them to access the medical attention that I so badly and urgently require. I submit that I am entitled to effective remedies and giving me Zimbabwean dollars is hardly such effective remedies.”…,.

The notice of opposition was filed of record on 30 May 2013. Mr. Charles Stewart Gardiner deposed to the opposing affidavit on behalf of the respondent. He is a son of the Managing Director of the respondent, and himself a director of the respondent company. He averred that the applicant should apply to the court which granted the judgment in question for the judgment to be corrected in accordance with the rules of this court.

Mr. Gardiner denied that the applicant had a right to correct the judgment in terms of the rules of this court. He denied that the applicant was permanently disabled, although he accepted that the applicant was injured in the accident. He emphatically declared that the applicant was dishonest and that he had fraudulently exaggerated his injuries and allegations of disability. He denied that the applicant is in urgent need of medical attention. He reiterated that the applicant has already received a sum of USD$90,332=24 from the respondent and averred that this amount ought to have been more than sufficient to fund whatever medical attention the applicant allegedly requires.

It was admitted that the respondent is bound by the terms of the Supreme Court order.

The respondent expressed certainty that the applicant's awards which emanated from this court were based on fraud, fraudulent documents and perjured evidence, and referred the court to its application for leave to adduce further evidence which it filed before the Supreme Court simultaneously with its appeal under case number SC19-2008.

Mr. Gardiner averred that the court should have regard to the independent expert evidence that was filed before the Supreme Court to prove the allegations of fraud against the applicant. He re-iterated that the respondent believed that it was obliged to effect payment in the amount claimed by the applicant and awarded to him by the court. It was denied, on behalf of the respondent, that it was to blame for the applicant's hardship because the basis of the liability of the respondent arises entirely from a finding of vicarious liability for the negligence of its former employee.

Three issues fall for determination by this court;

(a) The first one is whether this court has jurisdiction to entertain this matter.

(b) The second issue for determination is whether it is competent for this court to award payment in United States dollars in respect of a judgment sounding in Zimbabwean dollars.

(c) Finally, we must determine whether it is competent to determine the rate of exchange by which the conversion may be made.

(a) Jurisdiction

It was submitted, on behalf of the applicants, that the High Court has jurisdiction to deal with any matter that is placed before it and that there is nothing amiss in this court dealing with a matter arising out of a judgment of this court. The court was referred to the case of Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors SC21-14 as authority for this proposition.

The court perused the judgment of the court a quoHH108-11/ HC5710-09.

The issue for determination, as it was understood by that court, was that the applicants had approached that court since it was the only court with inherent jurisdiction seeking a declaratur that the principle of currency nominalism has no place in Labour Law (i.e. a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. The applicants sought a further declaratur that to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is, in an amount, currency, and quantity that achieves fairness as required by the Labour Act. A further order compelling the respondent to pay damages in USD was sought. The principle relied on by the applicants was that a successful appellant ought to have the discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him for the loss as well as fulfill the objectives of the Labour Act.

The respondent had opposed the relief sought by the applicants before the High Court on the basis that the matters raised had been canvassed and dismissed by the Labour Court and were therefore res judicata; that this matter was purely a labour issue by virtue of section 89(6) of the Labour Act [Chapter 28;01]; that the court was being asked to usurp the role of Parliament by repealing the common law principle of currency nominalism and that the court was being asked to 'overrule” those decisions of the Supreme Court which had already made the point that in quantifying damages in labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension.

The High Court took the view that it was the only court with power to issue declaratory orders. On the issue of usurping the role of Parliament, the High Court took the view that 'it is not impermissible for the judiciary to make law by way of decided cases if an opportunity presents itself to plug a legislative gap especially where not to do so will leave many an unlawfully dismissed employee languishing in an asylum of financial misery'.

On page 5 of the judgment, the High Court postulated the question of whether, in the circumstances of the case before it, it ought to declare that 'in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.'…,.

Clearly, the High Court limited the application and scope of its judgment to the realm of employment relations and to the period during which there was lack of economic normalcy. It applied the principles of equity and enjoined itself to 'tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.'

The High Court ordered the respondent to pay damages in USD using the official exchange rate obtaining as at 5 July 2007.

The respondent appealed.

The appeal and cross appeal came before a five member bench of the Supreme Court on 11 September 2013. The judgment of the Supreme Court was to allow the appeal to the extent of setting aside the judgment of the High Court for lack of jurisdiction. It was held, with the consent of both parties, that the matter should have been determined by the Labour Court.

It is this court's view that it would not be proper to rely on principles which were enunciated in the context of labour disputes, which differ materially from the matter under consideration, and in respect of which certain principles underline their conduct, which are not applicable here, such as social justice and equity. The court is bolstered in its view by the recent judgment of the Supreme Court, Madhatter Mining Company v Marvelous TapfumaSC51-14, where the court stated that Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors HH108-11 had been overturned on appeal and could no longer be cited as authority or as a basis on which a court can convert damages awarded in Zimbabwe dollars to United States dollars.

The vexing question of whether the USD amount would give true value to the damages that the respondent would be entitled to was posed by the court.

True value was defined as a value that would 'neither over-compensate the respondent nor inadequately do so'. Other pertinent considerations for a court faced with the question of converting Zimbabwe currency to US$ were the issue the two main Zimbabwe dollar to USD$ exchange rates which obtained prior to 2009, i.e. the official and the unofficial rates….,. Finally, the Supreme Court emphasized that it is the Labour Court - and not the Supreme Court - which in endowed with jurisdiction to apply principles of equity in its determination of labour disputes based on the provisions of section 2A of the Labour Act [Chapter 28:01].

See Horace Nzuma & 2 Ors v Hunyani Paper & PackagingSC137-11.

I accepted the submission made on behalf of the respondent that this court has no similar jurisdiction to that of the Labour Court, to determine disputes on the basis of social justice or principles of equity.

The Labour Court, in Madhatter Mining Company v Marvelous TapfumaSC51-14, was then given guidance by the Supreme Court and the matter was remitted back to it for the determination of the following issues:

(a) What is the effect of the change of currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe Dollar currency which, though not demonetized, is no longer in use?

(d) The method of calculating the quantum of the debt in current realizable currency if the conclusion of the above issues is in favor of payment in United States dollars.

These questions given for the guidance of the Labour Court are regurgitated here in the realization that these are the same questions that this court may have to determine if the question of jurisdiction in this matter before it is resolved in favor of the applicant.

In defence of this claim, the respondent raised the main point of the absence of jurisdictional basis on which the court can 'change' or 'convert' a judgment that was given by it in January 2008.

I am grateful to counsel for the respondent for the extensive heads of argument filed of record, which appeared to have been tailored to respond to the questions for guidance which were issued by the Supreme Court, as listed above, for the guidance of the Labour Court.

It was submitted, on behalf of the respondent, that if there is such a jurisdiction, there is a dispute as to whether it can be exercised five years after the original judgment and one year after the judgment of the Supreme Court in which the matter was not raised; whether the conversion is to take place on the date of the judgment or on the date on which payment is made; what the proper rate of exchange would be; whether the conversion can be made in respect of those heads of damages which were incurred and paid for in Zimbabwe dollar currency and awarded as special damages at trial; and, finally, the bona fides of the applicant.

The respondent submitted that medical expenses and towing charges are special damages which were incurred in Zimbabwe dollars not United States dollars. The loss was incurred 15 years ago in Zimbabwe dollars, the damages were alleged and proved seven years ago in Zimbabwe dollars. The respondent disputed the applicant's entitled to interest at the prescribed rate, or at any rate, on the basis that the prescribed rate of interest sought to be relied on was only introduced on 23 October 2009 by S.I.164 of 2009 and backdated to 23 October 2008.

Finally, the respondent submitted that, in respect of the three heads of general damages that the applicant now seeks payment for in foreign currency, which was not available to him, and which he did not seek, at the time of the trial, those damages are not due to him in any other currency other than the currency that he claimed them in.

It is trite that the cause of action for the relief being sought must be found in the founding affidavit. See Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D); Director of Hospital Services v Mistry1979 (1) SA 626 (A)…,.; Dajen (Pvt) Ltd v Durco (Pvt) Ltd 1998 (2) ZLR 235 (SC)…,.; Mangwiza v Ziumbe NO & Anor2000 (2) ZLR 489 (SC)…,.

It was submitted, on behalf of the respondent, that the founding affidavit does not disclose the cause of action to support the relief sought. It was submitted, correctly in my view, that the applicant's need for urgent medical attention is not a jurisdictional basis for the relief sought. It was contended that the fact that the Zimbabwe dollar is now moribund and has fallen into disuse, and that, there is no point making payment in it, again affords the applicant no jurisdictional basis for the relief sought. Finally, it was submitted that to plead ad misericordiam that he is entitled to an effective remedy does not assist the applicant at all.

It is common cause that upon the introduction of the multi-currency basket in January 2009, Parliament did not see fit to introduce any legislation to enable this court to look at judgments given before January 2009.

It was contended that, in the absence of legislative authority that enables this court to look at judgments given in Zimbabwe dollars before dollarization in January 2009, we must be guided by the usual common law Rules. I find myself in full agreement with these statements of the law as it currently stands.

However, in case I am wrong in my view that there is no jurisdictional basis on which this court may grant the relief sought by the applicant, I will proceed to deal with the merits of the matter.

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

The law that underlies the legal principle of functus officio was summarized in the case of Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 298 (A)…, as follows: “The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or ...

The law that underlies the legal principle of functus officio was summarized in the case of Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 298 (A)…, as follows:

“The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.

See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 @ p176, 178,186-7 and 192; Estate Garlick v Commissioner of Inland Revenue 1934 AD 499 @ p502…,. There are, however, a few exceptions to the rule which are mentioned in the old authorities and have been authoritatively accepted by this court…, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases:

(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example costs or interest on the judgment debt which the court overlooked or inadvertently omitted to grant…,.

(ii) The court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous, or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter 'the sense and substance' of the judgment or order…,.

(iii) The court may correct a clerical, arithmetical or other error in its judgment in order to give effect to its true intention…,.

(iv) Where counsel has argued the merits and not the costs of a case…, but the court makes an order granting costs…, it may thereafter correct, supplement or alter the order…,.”

The submission that none of these exceptions apply to the applicant was accepted by the court, as well as reference that the principle of finality in litigation (interest reipublicae ut sit finis litium) is a part of our law.

See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140 (SC)…,; Maheya v Independent Africa Church2007 (2) ZLR 319 (SC)…,.

This court also accepted as correct, the submission made on behalf of the respondent, that the present application is not intended to supplement, clarify, or correct the judgment of January 2008 - but to alter its substance. The alterations are not incidental or consequential corrections - but go to the very heart of the orders made.

In respect of towing charges and medical expenses already incurred, the purpose of the application is to change the very basis of the currency in which those special damages were incurred. In respect of the three headings of general damages, the application intends to change the basis on which those damages were sought, when those damages were suffered in Zimbabwe, in the currency of payment then prevailing.

It is common cause that there was a considerable delay by the applicant in bringing this application, the original judgment having been handed down in January 2008 and the use of the United States dollar having been authorized by January 2009. The appeal was heard in October 2010 and the Supreme Court judgment handed down in February 2012. Nearly 15 years have passed since the accident in question and four and half years since dollarization. No explanation was given by the applicant for the inordinate delay in making this application. Any application to correct or supplement an order, whether in terms of the common law or under Rule 449 of the High Court Rules 1971, must be brought as soon as possible, or at the very least within a reasonable period. See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173…,.

The leading cases on currency nominalism in this court merit discussion.

In Shava v Bergus Investments (Pvt) Ltd 2011 (2) ZLR 340 (HC), a full bench of this Court, through my brother MUTEMA J and CHIWESHE JP concurring, held that a party cannot revalue a judgment debt for purposes of execution. Citing Mukorera v Ocean Breeze Engine and Cooling SystemsHH13-08…, the court held it to be trite that the principle of currency nominalism was part of the law of Zimbabwe. The court held that, to allow a party to change the currency of the judgment was 'not only incompetent for arbitrariness but offended against the time honored principle of currency nominalism'. The court said the following…,:

“That principle holds that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of the currency.”

The court also said…,:

“It is beyond argument that the first respondent's debt sounded in money and the judgment was given in March 2008 with the specific directive that the values of whatever was damaged by the appellant were to be as at the time of judgment. The values were in Zimbabwe dollars and not in US dollars. The principle of currency nominalism was therefore still applicable. It was accordingly idle for the first respondent to revalorize its claim on execution. It ought to have made a court application for the conversion of the currency.”….,.

Counsel for the respondent…, submitted that, before this court came to above underlined conclusion, it ought to have examined, in greater detail, the impact of the 'once and for all rule' and of the submission that the court cannot 'convert' the currency on application because it will be functus officio.

I found this view persuasive.

It was submitted, further, that reliance on Mukorera v Ocean Breeze Engine and Cooling SystemsHH13-08 should not have led the court to the conclusion that it came to, because, in that case, the court was emphatic in its view that:

“…, the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.”

In conclusion, this court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this court cannot revalue an order for the purpose of execution, let alone completely re-write an order granted nearly seven years ago. Any such power would have to be the consequence of legislation - which currently does not exist in Zimbabwe.

Under the common law, and as a protection against loss of value of a judgment, where a litigant has suffered a loss that can properly be expressed in foreign currency the court can enter judgment in foreign currency, but payment must be made in local currency converted as at the date of payment. See Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe1988 (2) ZLR 482 (SC)…, where the court said that:

“Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of devaluation in the value of the currency between the date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.”

See also Standard Chartered Bank of Canada v Nedperm Bank Ltd1994 (4) SA 747 (A)…, where it was stated that;

“…, the damages to be awarded in this case should be expressed in US dollars. It is implicit in any order to this effect that the judgment debt may be satisfied in South Africa by payment in the foreign currency or by payment of its equivalent in Rand when paid.”

This court is persuaded by the contention, which is supported by various decisions by the Supreme Court and the High Court, that, had the judgment in this matter been sought and made after January 2009, even in respect of an accident that occurred before that date, judgment could be granted in foreign currency as being the effective currency to redress the loss.

As further authority for this proposition, see Kwindima v Mvundura2009 (1) ZLR 168 (H).

However, in this case, judgment was sought prior to January 2009, specifically in Zimbabwe dollars, and quite clearly Zimbabwe dollars is the currency in which the losses were sustained.

Section 41 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] reads:

“41 Legal tender of banknotes

(1) A tender of a banknote which has been issued by the Bank and which has not been demonetised in terms of subsection (2) shall be legal tender in payment within Zimbabwe of the amount expressed in the note.

(2) The President may, by statutory instrument, call in and demonetize any banknotes issued by the Bank, and shall likewise determine the manner in which and the period within which payment for such banknotes shall be made to the holders thereof.”

It is common cause that the President has not demonetized the Zimbabwe currency in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations 2009, as confirmed by the Finance Act 2009, and that, he had not done so at the time that this application was filed, on 8 May 2013.

Section 44 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] provides that:

“44A Legal tender of foreign currencies

The Minister may, in regulations made under section 64, prescribe that, subject to such conditions as may be specified in the regulations, a tender of payment in any currency other than Zimbabwean currency shall be legal tender in all transactions or in such transactions as may be specified in the regulations.”

It is submitted, on behalf of the respondent, quite correctly in my view, that this provision does not render the Zimbabwe currency to be moribund, but that it allows foreign currencies to be treated as legal tender in addition to the Zimbabwe currency. It was correctly submitted, in my view, that there is no statute or other legal instrument that has abolished or suspended the existence of the Zimbabwe currency. Accordingly, as a matter of law, if not practice, the Zimbabwe currency still exists. See Stuart v National Railways of Zimbabwe (unreported)…,.

If any conversion is to take place for the purposes of allowing the enforcement of a judgment granted before February 2009, in Zimbabwe currency, it must be done at the rate prevailing on the date of payment, not the date of judgment….,.

The Legislature, in its wisdom, only enacted section 44A of the Reserve Bank Act, and did not see fit to provide a further framework to guide us on how to dispose of these matters. If the applicant's judgment has been rendered incapable of being satisfied through lack of a legislative framework that regulates its execution, then the applicant's remedies must lie with the Legislature.

The applicant seeks to use the date of judgment as the date on which conversion into US dollars is to be made, and seeks to use the rate of exchange allegedly applicable on that date. However, it is pertinent to note that, at the date of the judgment, January 2008, the use of United States dollars in Zimbabwe was not permitted, and any judgment given in United States dollars as being the currency in which the loss was sustained could only be satisfied by the payment of Zimbabwe currency as at that date.

This court lacks that jurisdictional basis to make any conversion as at the date of judgment because such conversion would, at that time, have been contrary to exchange control legislation. Any attempt to do a conversion as at the date of the judgment would in effect be to render a completely new judgment, in breach of the once and for all rule.

The 'once and for all rule' is a common law rule that stipulates that a plaintiff must claim, in a single action, compensation for the damage he has already suffered and the prospective loss which he reasonably expects to suffer in future. See Oslo Land Co Ltd v Union Government 1938 AD 584…,.; and Custom Credit Corporation (Pty) Ltd v Shembe1972 (3) SA 462 (A)…,.

In his book The Law of Delict, PROFESSOR BOBERG sums up the common law position as follows:

“A single wrongful act gives rise to a cause of action for all damage, past and future, that it causes. This means that a plaintiff cannot claim compensation piecemeal for his various losses as they occur: he must sue 'once and for all' for the whole of his damage, seeking redress not only for the harm he has already suffered (actual or accrued loss) but also for the harm he expects to suffer in the future (prospective loss). And if he succeeds he will generally be awarded damages in a lump sum, payable immediately, in respect of both past and future losses.”

See also Elvins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)…, where the court said:

“The 'once and for all' rule applies especially to common law actions for damages in delict, though it has also been applied to claims for damages for breach of contract….,. Expressed in relation to delictual claims, the rule is to the effect that in general a plaintiff must claim, in one action, all damages…,. This rule appears to have been introduced into our practice from English Law. Its introduction and the manner of its application by our courts have been subject to criticism…, but it is a well entrenched rule. Its purpose is to prevent a multiplicity of actions based upon a single cause of action to ensure that there is an end to litigation.”

In Dube v Banana 1998 (2) ZLR 92 (HC)…, the law in Zimbabwe was stated in the following terms:

“Our law recognizes the 'once and for all rule' which states that a plaintiff, when suing for damages, must sue for all his damages in a single action, both for loss suffered and for prospective loss…,. In my opinion, the once and for all rule should be modified. I consider this can best be done by an Act of Parliament rather than by 'judge-made law', which is, by its very nature, haphazard and piecemeal. The Law Development Commission of Zimbabwe issued a report entitled Report No. 43: 'Once and for all rule in claims for damages', in which, as the title suggests, it examined the rule and in which it made recommendations for its reform.”

Parliament has not intervened to change the law.

This court accepts as a correct application of the law to the circumstances of this case that the applicant has had his once and for all right to claim damages for the injuries which he sustained in the accident. He elected to litigate for those damages in 2008. He claimed those damages partly in Zimbabwe currency and partly in Botswana Pula. He received the awards he sought. He had a further opportunity to recast his case before the Supreme Court, in October 2010, when the appeal was heard, which was after dollarization. He chose not to do so, or to seek the leave of the Supreme Court to have the Zimbabwe dollar component of the judgment 'converted' to a currency that he could use. The Supreme Court, on application for its leave, would have had an opportunity for 'judge made law' to decide whether to remit the matter back to this court for evidence to be adduced on the question of the 'conversion' of the Zimbabwe dollar component of the judgment to a currency of the applicant's choice.

The applicant cannot now come back to this court seeking to change the judgment given to him. The applicant has already had his day in court he cannot now come for a second judgment arising out of the same circumstances as the first.

Res judicata is a rule that matters which have already been adjudicated upon between the same parties cannot be adjudicated again. It is a consequence of the 'once and for all rule'.

In Union Wine Ltd v Snell and Co Ltd 1990 (2) SA 189 (C)…, the Judge said:

“Although it is not clear from the cases whether the 'once and for all' rule is just a manifestation of the exceptio rei judicatae or whether it has a wider range than the latter, it is settled practice in South Africa that where a cause of action gives rise to more than one remedy a plaintiff who pursues one of those remedies and has obtained a judgment thereupon can be met with a plea of res judicata if he should institute a second action to pursue one of the other remedies.”

It is common cause that the parties before this court are the same as those before the court in 2008. It is common cause that the cause of action is the same and that damages are being sought pursuant to that cause of action. In the January 2008 judgment this court decided that the applicant had suffered damages which required to be redressed by the payment of Zimbabwe currency. This court accepts that all those issues are now res judicata and cannot be re-opened.

In the result, this court finds that it has no jurisdiction to grant the relief sought by the applicant, and that, no factual basis has been laid in the founding affidavit to justify granting the relief sought. The court is functus officio, the damages which the applicant seeks to be 'converted' to another currency now, were assessed and awarded in 2008. Any attempt to re-assess the award made in 2008 now, even if such assessment involves the calculation of the value of the damages in a different currency, would amount to changing the nature of the judgment given in 2008, a power which is only available to a superior court on appeal.

The matter cannot properly be determined by the improper use of this court's inherent jurisdiction.

This court's inherent jurisdiction does not cloak it with power to re-determine issues between the same parties which have already been conclusively determined. It may only do so on limited grounds where it is directed to do so by a higher court, the Supreme Court, and on very specific directions. There being no such direction from the Supreme Court, to this court, it is trite that the issues between the parties are res judicata.

This court has no jurisdiction to exercise the same principles of social justice and equity as the Labour Court, and any attempt to rely on labour matters, as the basis for inviting this court to exercise powers that are specific to and pertinent to the Labour Court will find no truck with this court.

In the circumstances of this case, where 'accident damages' were assessed and awarded as special damages and general damages, under the law of delict, it is my view that, there is no factual or legal basis in the papers filed of record, on which this court can 'convert' a 2008 judgment made in Zimbabwe currency to United States dollars.

Despite this finding, this court respectfully declines to exercise its discretion and grant punitive costs against the applicant as advocated for by counsel for the respondent.

Accordingly, the application is dismissed with costs on an ordinary scale.

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision. The following facts are common cause. The respondent sued for and was awarded damages by the ...

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”...,.

The further contention made on behalf of the appellant is that there was no jurisdictional basis for the court to exercise its original jurisdiction to convert the award to foreign currency on the basis that there was nothing to convert.

In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16 which was an appeal against a decision of the High Court in which that court had declined jurisdiction to grant an application for the conversion of the original award into foreign currency, this Court said:

“I am aware that the correction of judgments in terms of the court's jurisdiction to protect and regulate its processes in the interest of justice must be done within a reasonable time after the delivery of the judgment to be corrected. In this case, the judgment to be 'corrected' was taken on appeal. It thus had to await the decision of the Supreme Court after which the appellant sought payment. When the respondent refused to pay the appellant made the application which is the subject of this appeal. I am therefore satisfied that the appellant applied for conversion within a reasonable time. He, in other words, was not a sluggard.

Accordingly, this case should not be seen as opening the gates to all cases where judgments were denominated in Zimbabwean dollars and the affected parties failed or neglected to timeously do what the appellant in this case did, namely, seek the court's assistance to convert the awards to usable currency. A court order which is clear and enforceable at the time of delivery cannot be rendered nugatory and unenforceable by unforeseeable subsequent events which affect its clarity and render it unenforceable in its present form. The court a quo is entitled to protect and regulate its orders so that they remain enforceable.

I therefore hold that in terms of section 176 of the constitution, the court a quo has jurisdiction to hear and determine the appellant's application.”

HH517-15 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MUREMBA J

The applicant's application is for rescission of a default judgment which was granted by MANGOTA J on 4 February 2015 in chambers. The application is being made in terms of Rule 449 although on the face of the application the applicant indicated that the application was being made in terms of Rule 249. Rule 249 ...

In case number HC9133/14 the applicant filed an application against the three respondents in this court. After the respondents had filed their opposing papers the applicant did not take any action. This prompted the first respondent to make a chamber application, under case number HC271/15, for the dismissal of the application for want of prosecution. On 4 February 2015, MANGOTA J granted the chamber application. MANGOTA J granted the judgment in default because although the applicant had opposed the first respondent's application for dismissal of his application for want of prosecution the opposing papers had not found their way into the file.

When it later came to the attention of the applicant that a default judgment had been granted against him dismissing his application for want of prosecution his legal practitioner then wrote a letter to Judge MANGOTA on 18 February 2015 asking for the rescission of the default judgment. Attached to the letter was the applicant's Notice of Opposition in issue. The legal practitioner wanted the judgment rescinded in terms of Rule 449 stating that they had filed opposing papers on 28 January 2015 before the default judgment was granted on 4 February 2015. It was averred that the default judgment had been issued erroneously.

In response to the letter, MANGOTA J wrote a judgment under judgment number HH199-15 which judgment was delivered on 24 February 2015. He stated that instead of asking for rescission of judgment in terms of Rule 449 by way of a letter, the applicant ought to have made a proper application on notice to the other affected parties.

It is this judgment by MANGOTA J which prompted the making of the present court application by the applicant.

It is only the first and the fourth respondents who opposed this application. The second and third respondents did not file any opposing papers.

The first and the fourth respondents raised two (2) preliminary points to the application;

(a) The first one is that the application is bad at law because it is being made in terms of Rule 249 yet Rule 249 deals with applications involving persons with disability and minors.

Counsel for the applicant explained that he had made an error by stating that the application was being made in terms of Rule 249 instead of Rule 449. It is clear that this was just an error which was made on the top cover of the application otherwise the application itself makes it clear that the application is being made in terms of Rule 449. The error is not fatally defective.

(b) The second preliminary point is that the order that is being sought by the applicant was dismissed by this court, by MANGOTA J, in judgment no. HH199-15 which was handed down on 24 February 2015.

These two (2) respondents argued that, as a result, the matter is now res judicata and this court is now functus officio. They argued that the proper procedure for the respondent to follow is to appeal against the judgment of MANGOTA J.

The applicant's legal practitioner argued that MANGOTA J did not make a decision on the merits of the request to rescind the judgment in terms of Rule 449 having stated that a proper court application done on notice to all the other interested parties ought to have been made. He argued that MANGOTA J did not deal with the merits of the request because he stated that the matter had been placed before him improperly. He further argued that, as a result, this matter was not res judicata.

Looking at the judgment of MANGOTA J of 24 February 2015 I am inclined to agree with the first and fourth respondents that MANGOTA J made a determination on the applicant's request for the default judgment to be rescinded in terms of Rule 449. Although MANGOTA J indicated in his judgment that the applicant ought to have made a proper court application, on notice to the respondents, he went on to make a determination on the merits of the request. I arrive at this conclusion because from page 3 in paragraph 4 up to the end of the judgment he said;

“In his opposing papers, the first respondent admitted paragraphs A, B1, B2 and B4 of the applicant's affidavit. He also admitted that he filed his answering affidavit out of time after which he proceeded to chronicle his reasons for the delay. He apologised for the late filing of his answering affidavit and he, quite correctly, stated that he remained liable for the payment of the applicant's costs.

For some unknown and unexplained reasons, the first respondent did not file any answering affidavit. He, instead, filed his Heads of Argument under case number HC9113/14. He filed those on 14 February 2014. As at the time of this judgment, no answering affidavit of the first respondent was filed of record.

The court has considered the merits and demerits of the matter which the first respondent placed before it through the letter. It is satisfied that the first respondent's case is devoid of any merits. The request which he made in the letter is not sustainable.

In the resultant, it is ordered that the order which the court granted to the applicant on 4 February 2015, under case number HC271/15, be and is hereby not corrected, rescinded, varied or set aside.”

These cited paragraphs speak for themselves that MANGOTA J made a determination on the request to rescind the default judgment. If he had not made a determination these paragraphs would not have appeared in his judgment. He would not have made a pronouncement that the order he granted on 4 February 2015 was not corrected, rescinded, varied or set aside. In my view, he would have simply ended by stating that he was declining to determine the request for rescission on the basis that it had been improperly made as it had been made in the form of a letter instead of a court application and that it had been done without notice to the affected parties.

MANGOTA J, by saying, in his judgment, that, “the request which the applicant made in the letter is not sustainable,” means that he considered the contents of the letter and the opposing affidavit that had been attached to the letter and decided that they were devoid of any merit. If he had not made a determination he would not even have considered the contents of the letter and the opposing affidavit. He would not have commented on them at all.

It is for these reasons that I agree with the first and fourth respondents that MANGOTA J made a determination on the merits of the matter and refused to rescind the default judgment he granted on 4 February 2015. This renders the matter res judicata and makes this court functus officio.

As correctly argued by the first and fourth respondents, it matters not whether or not the determination by MANGOTA J was wrong. The correct procedure for the applicant to take is to make an appeal if he is not happy with the decision. If I make a determination on the current application I will be reviewing MANGOTA J's judgment. I have no such powers as this court cannot review its own work.

I will not award costs on a legal practitioner-client scale against the applicant for I see no justification for doing so.

In the result it is ordered that:

1. The applicant's application be and is hereby dismissed.

2. The applicant be and is hereby ordered to pay costs to the first and fourth respondents on the ordinary scale.

SC57-20 : TENDAI BONDE vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is a court application filed in terms of Rule 449 of the High Court Rules, 1971 in which the applicant seeks an order rescinding the order granted by this court on 27 November 2019. In terms of the Supreme Court Rules, 2018 the High Court Rules apply whenever there ...

THE BACKGROUND TO THE APPLICATION

The applicant was employed by the respondent at its Bulawayo depot in the capacity of a Laboratory Technician Quality Control Analyst, Grade 3. In July 2015, the respondent introduced an incentive scheme in terms of which employees were to be paid a monetary incentive half yearly. The scheme was non-contractual and was introduced by the respondent to improve the morale of employees at the workplace and to motivate the employees during the performance of their duties. The incentive was payable at the discretion of the respondent's Internal Remuneration Committee and was to be tabled before the Managers' Works Council for its input before it could be operationalised.

One of the conditions of the incentive scheme was that it was not payable to an employee who would have been convicted of misconduct during the period covered by the scheme.

The scheme was to be paid half-yearly for the period January to June, and, thereafter, from July to December. The company under-performed during the period July–December 2015, and, consequently, no incentive was paid for that period. The company however did a lot better in the period January–June 2016 and some employees were paid the incentive bonus. The applicant was however not paid, the reason being that during that period he had been found guilty of misconduct and given a written warning.

The applicant raised a grievance in terms of the company's Code of Conduct, querying the decision not to pay him the incentive bonus. The grievance went through the three stages provided for in the employment Code and eventually came up before the Managing Executive–Stock Feeds, who was the last hearing officer. He found that the matter was pending on the Works Council agenda, and that, until the Council resolved the matter, the policy was to remain operational. In the result, the Managing Executive decided that the grievance was to await the determination of the Works Council and that Human Resources was to look into the cases of bonuses that had been paid in error.

Unhappy with the decision of the Managing Executive – Stock Feeds, the applicant appealed to the Labour Court on two grounds;

(i) First, that the respondent had erred in considering his past disciplinary record in justifying its decision not to pay him the incentive bonus.

(ii) Second, that the respondent had, in any event, erroneously relied on an invalid scheme which was yet to be debated at the level of the Works Council.

The Labour Court found that the applicant had been convicted of misconduct and given a written warning which was valid for three months. This had happened in January 2016. The court found that for the period January–June 2016, during which the incentive bonus was payable, the applicant had an existing misconduct case and that he was therefore ineligible to get the incentive bonus in terms of the conditions of the scheme. The court also found that the incentive scheme was not an entitlement and that it was non-contractual. It therefore found that, as a court, it could not, in these circumstances, impose an obligation on the employer to pay the incentive bonus in all cases as that would be tantamount to re-writing the contract of employment for the parties. The court further found that there was a contradiction in that, whilst the applicant was seeking an order for the payment of the incentive bonus to himself, he was, at the same time, impugning its validity. The court was therefore not persuaded by the argument that the scheme was invalid. Consequently, the court dismissed the appeal with costs on the ordinary scale.

APPEAL TO THIS COURT IN CASE SC599/18

Dissatisfied with the ruling of the Labour Court, the applicant, as appellant, appealed to this Court seeking an order setting aside the judgment of the Labour Court and substituting the same with an order that the appeal succeeds and that the respondent pays him the incentive bonus. His grounds of appeal were formulated as follows:

“1. The judge a quo erred and grossly misdirected herself when upholding disqualification of payment of an incentive bonus on the basis of disciplinary record whose evidence was not explained or presented in court.

2. The court a quo erred on a point of law when upholding an illegal contract.

3. The court a quo grossly erred when it ruled that the court could not intervene in an agreement between the parties whereas the agreement is not dictated by good law or by fairness or good faith thereby giving reasons that are bad at law constituting failure to hear and determine according to law.

4. The judge a quo erred and grossly misdirected herself when she allowed disciplinary issues to overarch remuneration.

5. The learned judge erred and grossly misdirected herself by not ruling on Negotiating Framework document, a decision that ignores other issues that bring it for resolution is unreasonable and does not achieve finality.”

The appeal was opposed by the respondent who submitted that the payment of the incentive bonus was regulated by the Staff Incentive Scheme and not the respondent's Code of Conduct. The applicant could not, therefore, seek to enforce an incentive bonus that was not part of his employment contract and which was payable at the discretion of the employer. The incentive bonus was not remuneration due to the applicant as a right but was a discretionary payment to those employees who were not disqualified by the set terms and conditions of the scheme. The respondent accordingly prayed for the dismissal of the appeal together with costs on the higher scale, arguing that the appeal was an abuse of court process.

At the hearing of the earlier matter before this court, on 20 November 2019, the applicant appeared in person whilst the respondent was represented by a legal practitioner. After hearing submissions from both parties, the court had made the following order:

“It is ordered, by consent, that:

The appeal is dismissed with costs.”

I pause here to note that the order was by consent of the parties. Consequently, there are no reasons for the order made by this Court on the day in question.

THE PRESENT APPLICATION

The present application is for the rescission of the above order. The application states that it has been filed in terms of Rule 449(1)(b) of the High Court Rules, 1971. In his draft order, the applicant is seeking the following order:-

“Pending the finalisation of negotiations purposed on ratification of FY16 Staff Incentive Scheme following which either party may approach the court to rule on the contract of employment.”

It is his further submission that the order by this court did not spell out the fate of the incentive scheme following the dismissal of the appeal. He further poses the question whether “negotiations are now in futility and the incentive scheme is binding to the extent that any subsequent impeachment of the incentive scheme is res judicata.” He further submits that the above order will interfere with the negotiations that are to be negotiated by a task force set up by the Works Council for purposes of negotiating the incentive scheme.

The respondent opposes the application and the relief sought. It has submitted as follows:

“The application is incompetent and is an attempt to have this court review its previous decision. Further, there is nothing vague or ambiguous in the order that this Court made in November 2019. The respondent therefore prays for the dismissal of the application with costs on the higher scale for the reason that the application has not been instituted with a genuine desire to seek justice, but, rather, to harass the respondent.”

In his answering affidavit, the applicant points out that he has approached the court to rescind its order because it is vague and ambiguous. It is “vague on the applicability of the incentive scheme and legality of the contract of employment.” He further avers that the order is vague “as to the future rights of the parties and their privies with respect to clauses of the incentive scheme” and that the order “omits to express a position on the binding nature of incentive scheme leaving parties to guess. That vagueness is surely a compelling reason for rescission.” He has further submitted that “the order is unspecific” and “creates vagueness and ambiguity and is sound ground for rescission.”

PURPOSE OF RULE 449 OF THE HIGH COURT RULES

In general, once a court pronounces its decision it becomes functus officio, and cannot tinker with its decision except to correct typographical or other obvious mistakes. The High Court Rules, however, allow the court or a judge, under Rule 449(1)(b), whether mero motu or on application of any party affected, to correct, rescind or vary any judgment or order in which there is an ambiguity or patent error or omission – but, only to the extent of such ambiguity.

The purpose of Rule 449 is to enable the court to revisit its orders and judgments, to correct or set aside its orders and judgments where, to allow such orders to stand on the basis that the court is functus officio, would result in an injustice that may destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot otherwise be corrected in any other way. The Rule goes beyond the ambit of mere formal, technical, and clerical errors and may include the substance of the order or judgment. It is designed to correct errors made by the court itself and is not a vehicle through which new issues and new parties are brought before the court - Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…,.

An ambiguous judgment would be one that is unclear and capable of more than one interpretation. This can happen because of the language used by the court. In such a case, relief can be granted where, because of the language, the ambiguity has the effect of obscuring the true intention of the court or judge. On the other hand, a patent error or omission is one which is clearly obvious to anyone reading the judgment or order. Examples include clerical errors on figures, dates, or spellings - Masamba v JSC and Another HH283-17.

WHETHER THERE WAS AN AMBIGUITY OR PATENT ERROR OR OMISSION IN THE ORDER OF THIS COURT DATED 20 NOVEMBER 2019

In its decision of 20 November 2019, this Court was asked to determine the appeal noted against the decision of the Labour Court that had, in turn, dismissed the appeal noted by the applicant. That decision, by the Labour Court, had dealt with the applicant's complaint that he had been improperly excluded from benefiting from the incentive scheme and that the scheme was, in any event, unlawful. The Labour Court had found that the decision to exclude the applicant was not improper. The Labour Court was not persuaded that the scheme was invalid and noted that the two reliefs sought by the applicant in the appeal were contradictory.

The appeal from the Labour Court to this Court raised three basic issues;

(i) First, that the Labour Court had misdirected itself in upholding the decision to disqualify the applicant from getting the incentive bonus.

(ii) Second, that the court erred in upholding an illegal contract.

(iii) Third, that the court erred in not ruling on the negotiating framework document.

These were the issues that fell for determination before this Court when it sat on 20 November 2019.

When this Court dismissed the appeal, on 20 November 2019, the findings and order previously made by the Labour Court remained extant. In other words, the findings that the incentive scheme was not unlawful and that the applicant was not eligible to be paid the incentive bonus in terms of the incentive scheme's terms and conditions remained extant.

After carefully considering the present application, I am in no doubt that the applicant has not shown any ambiguity or patent error or omission in the order made by this Court, with his consent, on 20 November 2019. The order is very clear and allows of no ambiguity. There is no patent error or omission in that order. The order is clear that it is dismissing the appeal filed against the judgment of the Labour Court.

The present application has not been filed in order to correct an ambiguity or a patent error or omission. To the contrary, it seeks to re-argue the issue of the incentive scheme (which was one of the issues that fell for determination before this Court on 20 November 2019) and also to introduce new issues. The draft order to the application seeks an order that:

“The whole order of court under SCB599/19, dated 27 November 2019, be and is hereby rescinded till notification of finalization of Works Council negotiations or ratification of FY16 Staff Incentive Scheme. Consequent to those negotiations the court will convene to rule on the contract of agreement.”…,.

The draft order therefore evinces an intention to have the order set aside, not because it is ambiguous or contains a patent error or omission, but because the applicant considers it necessary that it be rescinded until the negotiations before the Works Council are finalised after which this Court can then sit again and rule on the legality of the scheme.

It is apparent from the submissions made by the applicant, and from the draft order, that he believes that the order of this Court, of 20 November 2019, has short-circuited negotiations that are pending before the Works Council.

In paragraph 5 of his founding affidavit, the applicant states:-

“…, the final order usurps the statutory rights of the parties in the negotiations and interferes with the decision making process of the Works Council. It is for this reason that the final order must be rescinded to give effect to the statutory rights of the Works Council following which the final order may take effect.”

In paragraph 15 of his founding affidavit he states that:-

“…, the final order interferes with negotiations. The order may even trammel the outcome of the negotiations. The earlier final order is therefore not in the interests of justice.”

In paragraph 18 of the same founding affidavit, he says that the order:-

“…, gives effect to a unilateral draft document with no signatures and the document contains patent error in duties (as observed by the justice) with clauses yet to be negotiated at later dates while other clauses are expressly illegal.”

I agree with the respondent's submission that the gravamen of the complaint by the applicant is that he is unhappy with the order of this Court, made in November 2019, and that the intention is to change the complexion of that order.

There can be no doubt that, in these circumstances, the applicant has not demonstrated that there is any ambiguity or patent error or omission in the order made by this Court on 20 November 2019. What the applicant is seeking, therefore, is an order setting aside the previous order of this Court and substituting in its place an order that any decision of this Court should await the conclusion of the negotiations taking place before the Works Council.

Clearly, Rule 449(1)(b) was not intended to cater for the above situation.

The issues now raised should more properly have been raised in the appeal that was heard by this Court on 20 November 2019. Indeed, the allegation that the incentive scheme was unlawful was made in the grounds of appeal, but, as already noted, the appeal was, by consent, dismissed, thereby bringing to an end the argument that there was something wrong with the scheme.

COSTS

Whilst this Court accepts that, as a self actor, the applicant is entitled to his day in court in appropriate circumstances, it is clear in this case that the applicant could not have held the genuine belief that he could properly use Rule 449 in order to have the previous order of this Court set aside. He had consented to the dismissal of the appeal with costs. That order cannot, in any way, be said to be ambiguous nor can it be said that it contains a patent error or omission.

I am satisfied, on the papers before me, that the application was intended to achieve a result not contemplated by Rule 449 of the High Court Rules.

In the circumstances, whilst the courts are generally reluctant to mulct self-actors by ordering them to pay costs, and, in particular, costs on the higher scale, it seems to me that in a case, such as the present, where the self actor, as applicant, abuses the Rules of this Court in order to achieve his own purposes, an order that the self-actor pays costs on the higher scale is warranted.

DISPOSITION

The applicant has not demonstrated any ambiguity or patent error or omission in the order made by this Court on 20 November 2019. It is apparent from the papers that the purpose of the application was not so much to seek a correction or rescission of the order, but, rather, to have the order, granted by consent, set aside for the totally different purpose of having negotiations at the Works Council concluded on the incentive scheme. The application therefore is without merit and must fail.

It is accordingly ordered as follows:

“The application is dismissed with costs on the scale of legal practitioner and client.”

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE
Ruled By: GUVAVA JA

This is a chamber application made in terms of Rule 12 of the Supreme Court Rules, 1964.

The brief background to this application may be summarised as follows:

The applicants are husband and wife. They approached the court a quo, by way of urgent chamber application, seeking a stay of execution and return of goods which had been removed pursuant to a writ of execution following a default judgment which was granted in favour of the second respondent.

The default judgment related to a claim, by the second respondent, who was the legal practitioner for the second applicant, claiming unpaid legal fees for services rendered to the second applicant and his political colleagues.

On 2 March 2017, the High Court granted a provisional order for the return of all the goods that had been attached and removed in execution. The court also ordered the first and second applicants to refrain from selling the goods until the dispute between the parties had been resolved.

On 3 March 2017 the second respondent filed an appeal against the judgment of the court a quo.

The applicants contend that the legal practitioners should not have successfully filed the appeal without the leave of the court. It was their contention, that, as the order related to an interim order, the second respondent should have sought leave from the court a quo in compliance with section 43 of the High Court Act [Chapter 7:06].

They thus sought an order setting aside the decision of the Registrar accepting the Notice of Appeal and an order declaring the appeal that was before the Supreme Court a nullity.

The Registrar filed a report in terms of Rule 12 of the Supreme Court Rules, 1964 stating that they had accepted the Notice of Appeal as the order which had been granted was in the form of a mandatory interdict and thus did not require the leave of the court a quo.

The second respondent denied that they required leave to appeal from the court a quo.

He also argued that the matter was not properly before the court as the order sought could not be granted by a single judge in chambers. The second respondent also raised the point that the applicants were in fact seeking a declaratur and this could not be granted.

It is trite that when the Supreme Court is seized with an appeal, such an appeal cannot be struck off the roll by one Judge in chambers.

In the case of Blue Rangers Estates (Pvt) Ltd v Muduviri 2009 (1) ZLR 376 (SC), an applicant approached a single Supreme Court judge, in Chambers, seeking the relief that the matter be struck off the roll. The applicant therein alleged that the matter for which notice had been filed was interlocutory in nature and required leave to appeal in terms of section 43 of the High Court Act. It was counsel's contention that, without leave to appeal, nothing was pending before the court.

MALABA DCJ…, stated the following:

“I agree with Mr Mlotshwa that a single Judge of the Supreme Court sitting in chambers has no power derived from any provision of the relevant statutes, to make an order striking an appeal pending in the Supreme Court off the roll. The answer to the question whether a single Judge sitting in chambers has power to hear and determine an application for an order striking an appeal off the roll lies in the relevant provisions of the statute in terms of which the Supreme Court was created and the Rules regulating its proceedings. It is also necessary to take into account provisions of the enactments by which the right of access to the Supreme Court on appeal is given.”…,.

Counsel for the applicants submitted that the above cited case could be distinguished from the present matter as they were seeking an order that the Notice of Appeal be declared a nullity on the basis that the Registrar should not have accepted it in the first place. He sought to make the distinction that this was not an application for the striking off of an appeal which was on the Supreme Court roll, but for the setting aside of a decision of the Registrar who had improperly accept such Notice of Appeal.

In my view, this point brings to the fore the question of the role of the Registrar when accepting process.

The Registrar's office is established by section 169(4) of the Constitution. The provision provides:

“An Act of Parliament may provide for the conferring, by way of rules of court, upon a registrar of the Supreme Court, duly appointed thereto, of the jurisdiction and powers of the Supreme Court in civil cases in respect of —

(a) The making of orders in uncontested cases, other than orders affecting status or the custody or guardianship of children;

(b) Deciding preliminary or interlocutory matters, including applications for directions but not including matters affecting the liberty of the subject.”

Section 33 of the Supreme Court Act establishes the officers of the Registrar in compliance with the Constitution. It provides:

“(1) There shall be a registrar of the Supreme Court and such deputy registrars, assistant registrars and other officers of the Supreme Court as may be required, whose offices shall be public offices and shall form part of the Judicial Service.”

The role of the Registrar is set out by the authors HERBSTEIN and Van WINSEN, The Civil Practice of Superior Courts of South Africa, 3rd ed, Juta and Co Ltd, Cape Town..., as follows:

“The Registrar is an official of the court, responsible for the smooth functioning of the court and is charged with multifarious duties, which duties are administrative in nature.

For the purposes of clarity, these duties include but are not limited to the issue of process, recording, preserving and directing the flow of all documents filed by the litigants. The Registrar is also responsible for the setting down of cases and issuance of court orders. It is common cause that the Supreme Court is a court of record and the Registrar is the custodian of all court records. Case management, which includes maintaining records and scheduling hearings, is also the Registrar's prerogative.”

From the above, it is clear that the Registrar provides a full range of administrative and support services to the Judges by managing cases coming to court. However, he or she can also perform quasi-judicial functions - but only in limited circumstances that are prescribed by statute.

An examination of the Supreme Court Act and Rules clearly illustrates that it is not one of the functions of the Registrar to decline a Notice of Appeal which has been filed in time. Where a Notice of Appeal is defective, for whatever reason, it is for the court seized with the matter to make such a determination.

The Registrar cannot refuse to receive a Notice of Appeal on the basis that it is defective, in the sense that it does not comply with Rule 29 of the Supreme Court Rules. The Registrar may suggest to a party that their document is defective in order for them to make the necessary amendments and bring the document back for filing. However, because of the administrative nature of the Registrar's duties, if a party insists on filing its document as it is, after such direction has been offered, the Registrar is obliged to accept the document.

The rationale is that a Registrar does not have the power to prevent a litigant from filing their court process, if it is filed within the times prescribed in the Rules, as this falls outside the ambit of the Registrar's mandate.

This is not a situation that is peculiar to this jurisdiction only but is found in a number of jurisdictions. I have examined the practice in various jurisdictions and found that it is the same.

The Registrar of the Supreme Court of Canada exercises the following functions:

(i) Processing, recording, preserving and directing the flow of all documents filed by parties and recording all proceedings which take place during the life of a case.

(ii) Providing information to litigants, the media, and the public on the court's processes and activities and scheduling of cases.

(iii) Maintaining the court library and providing a full range of library and information services to judges, staff of the court, and legal researchers.

(iv) Publishing the Supreme Court reports.

(v) Providing administrative and operational support to the judges and court staff.

(vi) Providing protocol services to the judges.

In Nigeria, the duties of the Registrars are also administrative in nature. Through these functions they aide in quick dispensation of justice, and this includes but is not limited to the following:

(i) As the head of the registry, he ensures proper day to day administration of the court registry.

(ii) He co-ordinates the handling of all court processes e.g. issuance of hearing notices, warrant of arrest, summons.

(iii) He undertakes supervision of work of all staff deployed on litigation duties.

(iv) He makes arrangement for court sitting and give necessary assistance to the judge in the open court.

(v) He helps in the administration of Oath and Affirmation on witnesses appearing in court.

(vi) He maintains record books in accordance with the rules of court and preparation of the court proceedings eg. rulings and judgments for interested litigants and lawyers in addition to when such matter is going on appeal.

(vii) He must ensure proper maintenance and disposal of attached property and exhibits in his custody.

(viii) He must ensure the preparation of quarterly returns of cases filed and disposed.

(ix) He must see to the execution of court judgments and orders.

It should be noted that once a Notice of Appeal has been filed with the Registrar of this court, the appeal is, from that point, pending before the Supreme Court.

In my view, once the second respondent filed the Notice of Appeal, within the prescribed time, it ceased to be an issue upon which the Registrar's decision could be questioned or one where a single judge of the Supreme Court could declare a nullity.

I was thus not convinced by the argument that there was a distinction between this case and Blue Rangers Estates (Pvt) Ltd v Muduviri 2009 (1) ZLR 376 (SC) as the net effect of such an order would be the same.

If the matter were to be struck off the roll, it would no longer be before the court. Similarly, if the Registrar's decision, accepting the Notice of Appeal were to be set aside on the basis that it did not comply with section 43 of the High Court Act, the matter would no longer be before the court.

In any event, as I have stated above, it should be stressed that once a matter has been filed with the Registrar only that court can remove it from the roll on the basis that it does not comply either with the rules of the court or a statute.

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

On 7 November 2016, the applicant filed this chamber application....,.The chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition to any other power ...

On 7 November 2016, the applicant filed this chamber application....,.

The chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:

“449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon application of any party affected, correct, rescind or vary any judgment or order -

(a)…,.

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c)…,.

(d) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

The Law

I consider it important to briefly deal with the interpretation which the courts have given to Rule 449(1)(b).

Firstly, it must always be borne in mind that when a court or judge is seized with a matter, once it or he pronounces judgment or an order on the matter, it or he becomes functus officio. The court or judge, as the case may be, will have discharged it or his function, rightly or wrongly, and may not revisit or change the determination or decision. A party who is not satisfied with the decision of the court or judge must, subject to any Rule relative thereto, take up the decision on appeal to the Supreme Court. I would say that at its simplest extrapolation, this is the procedure which a litigant who is not satisfied with a decision of the court or judge should follow or be guided by.

Rule 449 recognizes the fallibility of the court or judge inasmuch as decisions of the court are made by human beings. As human beings judges are not infallible.

The Rule, in addition to the common law inherent power of this court to supplement, clarify or correct its judgment, which power does not concern this judgment, allows the court or judge to revisit its judgment in which it or he is functus officio. The revisitation and the powers which the court or judge may exercise are not open ended. The powers which may be exercised, and the circumstances allowing for the revisitation, are circumscribed in the Rule. The court or judge will do so either on its or his accord or upon application by any affected party which means that in addition to the parties to the judgment, a party who was not party to the litigation can utilize the Rule if such party is affected by the judgment or order concerned where it was given in such party's absence; see Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362.

Before the court or judge can correct, rescind or vary any judgment or order based on the provisions of Rule 449(1)(b) at the instance of a party, such party is required to point out to:

(a) The ambiguity; or

(b) Patent error; or

(c) The omission; sought to be relied upon to move the court or judge to exercise a discretion to make alterations to the judgment or order as the case may be.

In Wector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S) the learned ZIYAMBI JA gave an overview of the rationale behind Rule 449 generally in the following extract…,:

“Rule 449 of the Rules has been invoked, among other instances;

(i) Where there is a clerical error made by the court or judge; see City of Harare v Cinamon 1992 (1) ZLR 361 (S);

(ii) Where entry of appearance had been entered but not in the file at the time default judgment was entered; see Banda v Fitluk 1993 (2) ZLR 60 (H);

(iii) Where, at the time of issue of the judgment, the judge was unaware of a relevant fact, namely, a clause in an acknowledgement of debt; see Grantually (Pvt) Ltd & Anor v UDC 2000 (1) ZLR 361 (S)…,.

Where applicable, the Rule provides an expeditious way of correcting judgments obviously made in error. It envisages the party in whose absence the judgment was granted being able to place before the court the fact, or facts, which were not before the court granting the judgment. There is no need for the applicant to establish good and sufficient cause as required by Rule 63 of the Rules; See Banda v Pitluk (supra).

However, in each case, the error or mistake relied upon must be proved, and, in each case, the court exercises a discretion; see Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201 (H)…,.

In any event, Rule 449 is not mandatory but confers upon the court a discretion to act in terms thereof…,.”

The decisions in Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362 and Vector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S), specifically dealt with applications brought under Rule 449(1)(a). This notwithstanding the cases stand as a guide with respect to the overview of the purport of Rule 449 generally.

In Mpansi & Ors v Dube & Ors 2015 ZLR 1 (S), the learned HLATSHWAYO JA dealt with an application for correction or variation of a Supreme Court order pursuant to Rule 58 of the Supreme Court Rules 1964 as read with Rule 449 of the High Court Rules, 1971.

He corrected a costs order in which costs had been granted against the executor of a deceased estate in his personal capacity. The order of costs had not specified that the costs of appeal be borne by the estate. The order had simply read, inter-alia, that; “The appeal is allowed with costs.” Since the executor had been a party to the appeal which was allowed, as a co-respondent, it was argued that the order of costs was ambiguous unless corrected because it gave the impression that both the executor and the estate had to bear costs. The learned judge clarified the costs order.

In my view, an ambiguous judgment or order must be construed as one that is unclear and capable of various interpretations. This may usually come about as a result of the language used by the court or judge. The ambiguity will therefore be attributable to the court or judge in how it or he has expressed himself or herself in the language used. In such a case it has been held that relief should be granted where, from the language used, the ambiguity resulting therefrom has the effect that the true intention of the court or judge is not clear; see First National Bank of South Africa Ltd v Surgens 1993 (1) SA 245 (W)…,.

A patent error or omission, as the expression implies, is one which is clearly obvious to anyone reading the judgment or order. It does not appear to me that the expression should present difficulties of interpretation.

Examples of patent errors may relate, inter alia, to clerical errors with regard to figures, dates, or spellings. For good measure, a court may have ordered that an order be complied with by a certain date, but, when the judgment is typed and signed, it gives a date which had already passed through clerical error or an impossible date like 31 June yet the month of June ends on the 30th.

A court or judge may, for example, in making an order requiring a party to do a certain act or refrain from doing so mistakenly omit to name the party who should so comply, in circumstances where there are several parties in the judgment. Such an omission can be said to be patent, and, in my view, can properly be corrected and the judgment or order varied to make it explicit.

I should mention that I have read the views expressed by the celebrated authors HERBASTEIN and Van WINSEN in The Civil Practice of the The Courts of South Africa, Vol 1, 5th…, where they rely on the judgment, Isaacs v Williams 1983 (2) SA 723, on the interpretation which has been given to Rule 42(1)(b) of the South African Uniforms Rules of Court which reads the same as Rule 449(1)(b).

The authors state that “an order that has been correctly made but incorrectly typed cannot be corrected or amended in terms of this Rule, although a court has the inherent competence to correct the order so that it corresponds with the one made by the court.”

A typing error, in my view, is an error which should be covered by Rule 449(1)(b) because, if the court has made an order and it is say handwritten or verbal and it is recorded, an error in typing becomes patent by comparison between the actual handwritten or recorded order and the typed error. I do not see why the Rule would not cover such a situation.

Even if I am wrong in my reasoning, I would think then that Rule 449(1)(c), which allows for a variation, rescission or correction of a judgment or order on the basis of a mistake common to the parties, would cover the situation.

The distinction is too fine to call because what, in essence, is the judgment or order of the court would be the untyped judgment or order. The act of typing is merely there to reduce the judgment or order to a typed version, and, if the typed version does not reflect the un-typed script, then, in my view, it is patently erroneous to the extent of the mis-typed error.

I therefore respectfully disagree with the said authors for the reasons I have set out. In disagreeing with them, I do so in the hope that I did not misunderstand or misconstrue what they intended to convey.

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

This matter came before me as an urgent application.

After having sight of the opposing papers filed by the respondents, I concluded that the matter was not urgent, and, by agreement of the parties, it was enrolled on my roll of opposed matters as all parties had filed all the necessary affidavits and heads of argument.

The dispute arises out of the registration of an arbitral award by this court at the instance of the applicant.

Subsequent to the said registration, the applicant caused a writ of execution to be issued by the Registrar of this Honourable Court. The writ was served by the first respondent who attached a number of assets belonging to the fourth respondent.

When the first respondent attended at the fourth respondent's premises to remove the attached goods, the third respondent, a firm of legal practitioners engaged by the fourth respondent, intervened and allegedly advised the first respondent that the order of this court had been stayed by an order of the Labour Court.

Thereafter, the legal practitioners for the applicant, on the one hand, and those representing the fourth respondent, on the other, engaged in correspondence whose tone descended with each letter, culminating in each of them hurling insults, threats, and counter accusations.

It is sad to record that insults were traded between the legal practitioners of the applicant and the respondents.

Needless to say, the first and second respondents were not spared from this barrage.

I think it it is pertinent to remind legal practitioners, that, the second respondent and his deputies are officers of this court. In the performance of their duties, they are supposed to be impartial.

If there exists a dispute between parties, it would be foolhardy for the second respondent, especially, to be seen to be taking the side of one party against another.

If there is a court order which has been granted staying execution, as happened in this case, the second respondent cannot be expected to conclude that the court order is irregular and should be disregarded. That would lead to a breakdown in the rule of law as well as a complete disregard and breakdown of the judicial system.

For the applicant to suggest, as he did, that, the first and second respondents ought to have, upon his demand, overlooked the existence of the order of the Labour Court and proceeded to levy execution in his favour 'because the order was clearly wrong', is, to my mind, tantamount to encouraging any official to disregard orders of the courts of this country.

The respondents have no capacity to decide if an order is incompetent or otherwise. That is the function of these courts.

The first and second respondents, having been threatened with criminal sanction, wisely, in my view, decided to take no further action until a court had decided whether one or the other was in the right from a legal perspective.

They have, as a result, been brought to court for an order for mandamus for the Sheriff and his Deputy to perform their duties in terms of the law.

I cannot fault the manner in which they handled their task. The same cannot, however, be said of the legal practitioners for the applicant and the fourth respondent.

The starting point would, in my view, be the award that the applicant obtained from the arbitrator which is the causa causans of the entire dispute.

The applicant was employed by the fourth respondent as a Director of the Agricultural unit at the school. On 6 March 2009 he was dismissed following a finding that he was guilty of wilful disobedience to a lawful order.

He filed an appeal to the Minister who referred the matter to an arbitrator for conciliation.

The arbitrator heard the parties on 12 May 2009, and, on 30 June, the arbitrator issued an award in favour of the applicant. The arbitrator found that there had been unfair labour practice against the applicant and gave the following award:

(i) That the employee be paid salary arrears from 1 March 2009 to 30 June 2009 and gratuity with immediate effect;

(ii) That the employee be paid three (3) months cash in lieu of notice, gratuity, and any outstanding vacation leave days with immediate effect;

(iii) That the employee be paid damages in lieu of reinstatement. Further, that, the parties negotiate the quantum of damages payable, if they fail to agree they should refer the matter back to arbitration.

The parties did not agree on the amounts to be paid, and, as a result, on 7 June 2010, the applicant referred the dispute to the arbitrator for an assessment of the monies due and owing as damages in lieu of reinstatement.

The arbitrator, on 7 June 2010, awarded the applicant US$60,000 as damages in lieu of reinstatement.

Armed with this award, the applicant then filed a chamber application with this court for the registration of the award.

In the draft order attached to the application, he sought registration of the awards granted to him on 16 July 2009 and 7 June 2010 respectively.

The learned judge before whom the application was placed, pointed out, correctly, in my view, that the first mentioned award did not sound in money.

To comply with this query, the applicant then submitted two annexures, one of which was a payslip and the other a document which purportedly set out all the sums as salary and allowances claimed from February 2009 to June 2009. These amounts totalled US$29,367 were accordingly claimed on the amended draft order filed by the applicant.

There was, however, no indication on the papers that these amounts had been awarded by the arbitrator.

On 21 June, this court gave an order in favour of the applicant in which the arbitral award of June 2010 was registered together with an amount of US$29,367 - which clearly was not part of the award by the arbitrator.

When the parties appeared before me, I raised a query with the applicant's counsel as to the entitlement by the applicant to have this aspect of the award registered with this court.

Counsel, who had not been instructed on the circumstances surrounding the registration of the award, was unable to confirm that it was based on an award by the arbitrator.

I indicated to the parties, that, in my view, the award had been registered in error and that it was my intention to invoke Rule 449 of the Rules of the High Court and rescind that part of the order.

Accordingly, the order of this court, dated 21 June 2010, relating to an award by Mpisaunga, dated 16 July 2009, for the sum of US$29,367 is hereby rescinded.

I now turn to the dispute between the parties.

The applicant seeks an order that the process of execution be proceeded with by the first and second respondents. He also seeks an order barring the fourth respondent from interfering with the first and second respondents in the execution of their duties.

In the final relief, the applicant also sought an order to the effect that Rule 34(1) of the Labour Court Rules 2006, S.I.59/06, S.I. 59 of 2006 is ultra vires the Labour Act [Chapter 28;01].

Subsequent to his having an order issued in his favour, the applicant caused, on 23 June 2010, a writ of execution to be issued by the Registrar of this Honourable Court.

It is common cause, that, on 28 June, the first respondent attended at the premises of the fourth respondent armed with the writ and attached two buses and a tractor. Removal was scheduled for 1 July 2010.

He did not do so due to a letter, dated 30 June 2010, from Messers Kantor & Immerman which advised the first respondent that a stay of execution had been granted in favour of the fourth respondent by the Labour Court, and that, therefore, the respondent ought not to proceed further with the process.

A copy of the order, which was attached to the letter, reveals that the order staying execution was granted in chambers by KACHAMBWA President on 30 June 2010.

The president had granted a stay on the execution of the judgment relating to the damages in lieu of reinstatement but had allowed execution on the part of the award which was not the subject matter of an appeal.

It transpired that the fourth respondent had not appealed against the award of 16 July 2009 but had appealed the award issued on 7 June 2010. The applicant had apparently not been served with the Notice of Appeal.

The applicant and his legal practitioners were not convinced that the Labour Court could order stay of execution on an order emanating from this court, and, accordingly, on 14 July, the latter addressed a letter to the first respondent urging him to proceed with execution.

The first respondent complied and served a fresh notice of removal on 16 July 2010. Removal was this time scheduled for 21 July 2010.

He was unsuccessful as he was met with resistance.

In the meantime, the fourth respondent's legal practitioners had addressed a letter to the first respondent, which they copied to the applicant's legal practitioners, on 19 July, in which they intimated that the writ of execution was no more legally enforceable and warning the first respondent that he risked being charged with a criminal offence if he persisted with execution.

A further letter on the issue was written to the applicant's legal practitioners, on 22 July 2010, in which it was stated, amongst other things, that, any instructions to the first respondent to proceed with execution would be unlawful because the writ had been suspended by the Labour Court.

In view of the turn of events, the second respondent advised the first respondent to suspend execution pending the determination of the application filed by the applicant, in the Labour Court, for rescission of the order for stay of execution.

The applicant sought an explanation from the second respondent who reiterated that his office would not proceed with the process of execution until the rescission would have been determined hence the application before me as the applicant is of the view, that, until such time as the order of this court has been set aside the writ is valid.

The execution of judgments of the High Court is provided for in Order 40 of the Rules.

Rule 324 thereof provides that a writ of execution, once issued, remains in force until such time as the judgment has been satisfied.

Rule 323 provides that one or more writs may be sued out by any person in whose favour a judgment has been pronounced if such judgement has not been satisfied, stayed, or suspended.

The contention of the first and second respondents is that the writ cannot be enforced because it has been suspended by the Labour Court.

The order by the Labour Court staying execution of the order of 21 June 2010 was effected in terms of Rule 34 of the Labour Court Rules which is to the following effect:

"Where a decision, order, or determination has been registered in terms of section 92B(3) of the Act, the Court or a President sitting in chambers may, upon application, order a stay of execution of the decision, order, or determination.”

The issue which then arises is whether this was a decision, order, or determination registered according to the provisions of section 92B of the Labour Act.

Section 92B(1) of the Labour Act provides that the Labour Court may fix the date from which any decision, order, or determination made by it may operate.

Subrule (2) requires the court or the president who made the decision to submit sufficient copies of the order or decision to the Registrar, who, in turn, will provide a copy to each of the parties affected by the order or decision.

Section 92B(3) of the Labour Act, in turn, permits the registration of the order or decision with the Magistrates Court or the High Court, depending on the jurisdictional limit of the lower court.

Clearly, an award from an arbitrator cannot be registered under section 92B of the Labour Act.

A closer scrutiny of the Labour Act actually reveals that the appropriate section for the registration of such awards is section 98(14) of the Labour Act, which is, to all intents and purposes, a mirror of section 92B(3) of the Labour Act except that there is reference to an arbitrator and an arbitral award as opposed to the Labour Court and a decision, order, or determination.

In my view, the Labour Court provided for the suspension of orders or decisions registered under section 92B(3) of the Labour Court only.

The judgments registered under section 98(14) of the Labour Act have been excluded.

Any suspension of any award granted under section 98 of the Labour Act would therefore be ultra vires the Rules themselves as they have not provided for such suspension.

The matter however does not end there.

The applicant has contended, that, irrespective of what the Labour Court Rules may provide, that court does not have the jurisdiction or power to suspend or stay execution of an order or judgment of this Honourable Court.

In terms of section 92B(4) of the Labour Act, once a judgment or order has been registered with the High Court, it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.

The same provision is found in section 98(15) of the Labour Act.

Effectively, therefore, once this court issued an order registering the award in favour of the applicant; upon the registration, the award became, to all intents and purposes, a judgment of the High Court.

The contention by the applicant is that, as a result of the registration, the Labour Court ceases to have jurisdiction over the judgment and it cannot control, vary, set aside, or rescind the judgment.

I think this is a correct exposition of the law.

The effect of the registration with this court is that only the High Court, barring an appeal to the Supreme Court, can interfere with the judgment or its execution. This is because, the High Court, being a court of superior jurisdiction, has the inherent power to regulate its own proceedings as remarked by GILLESPIE J in S v Chakwinya 1997 (1) ZLR 109 (H) as follows:

“…, and the remedy for the accused here lies in the inherent jurisdiction of this court to regulate its own proceedings and to protect the rights of those coming before it."

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: TAGU J

On 17 April 2014, I received a file for an urgent chamber application for a stay of execution pending the determination of an application for rescission of judgment. The applicant sought a provisional order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to the Honourable Court why ...

“TERMS OF FINAL ORDER SOUGHT

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

1. That the Writ of Execution issued under case number HC2106/14 be and is hereby set aside.

2. That execution of the order granted under case number HC2106/14 be and is hereby stayed pending the determination of Applicant's motion for the setting aside of such order.

3. That the 1^st Respondent shall pay the costs of this application on the legal practitioner client scale.

INTERIM RELIEF GRANTED

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

1. That the Writ of Execution issued under case number HC2106/14 be and is hereby suspended.

2. That execution of the judgment granted by the Court in case number HC2106/14 be and is hereby stayed.

3. That if execution had already taken place, the Sheriff restores the property to the Applicant within twenty four (24) hours of the granting of this order.

4. That Applicant shall file its application for setting aside of the order in case number HC2106/14 within three (3) days of the granting of this order.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served on the Respondents by the Applicant's legal practitioners or by the Deputy Sheriff.”

Whereupon, after reading documents filed of record and without hearing counsels, I declined to hear the application as I felt that the matter was not urgent and I made the following order:

“IT IS ORDERED THAT:

Matter does not meet requirements of urgency as contemplated by the Rules. Stay of execution cannot be granted pending nothing.”

Upon receipt of my order, counsel for the applicant wrote to the Registrar by letter dated 22 April 2014 seeking leave to present oral arguments on the issue of urgency. The letter was couched in the following manner:-

“…,.

We note that pursuant to the urgent chamber application in this matter, His Lordship is of the view that no urgency was disclosed and that His Lordship has endorsed the papers accordingly. We advise that the Applicant seeks leave to present oral argument before His Lordship on the point as we are of the view that His Lordship may be persuaded to revisit his view on the matter. As held in the case of Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 346 (H), the endorsement that the matter is not urgent reflects the prima facie view of the court on the papers without the benefit of oral argument from the parties. Until the matter has been fully argued orally and a determination made thereafter, His Lordship is not functus officio and can hear oral argument on the issue of urgency….,.”

On 28 April 2014, both the applicant's counsel and the first respondent's counsel made submissions. The first respondent's counsel then filed his notice of opposition in which he raised some points in limine as well as a counter urgent chamber application. I directed the parties to address me not only on the issue of urgency, but also on the points in limine, on the merits, as well as on the counter urgent chamber application.

Counsel for the first respondent raised points in limine on the following -

1. Lack of urgency;

2. Non-disclosure of material facts;

3. Res judicata; and

4. Functus officio….,.

The second respondent, who is the Sheriff of Zimbabwe, did not appear, meaning that he is prepared to be bound by the outcome of this case.

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

Rule 449(1)..., reads as follows, in part:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order ...

Rule 449(1)..., reads as follows, in part:

“449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order –

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.

(c)…,.”

The Supreme Court judgment, in Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, provides guidance on the interpretation and purport of the Rule. The learned judge, GARWE JA, stated as follows…,:

“It is the general principle of our law that once a final order is made, correctly reflecting the true intention of the court, that order cannot be altered by that court.

Rule 449 is an exception to that principle and allows a court to revisit a decision it has previously made - but only in a restricted sense.

Where a court is empowered to revisit its previous decision, it is not, generally speaking, confined to the record of proceedings in deciding whether a judgment was erroneously granted.

The specific reference in Rule 449 to a judgment or order granted in the absence of any party affected thereby envisages a situation where such a party may be able to place facts, before the latter court, which facts would not have been before the court that granted the order in the first place: see Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) at 364 H-365 A-D.

Further, it is also established that once a court holds that a judgment was erroneously granted in the absence of a party affected, it may correct, rescind, or vary such without further inquiry.

There is no requirement that an applicant seeking relief under Rule 449 must show 'good cause': Grantully (Pvt) Ltd & Anor v UDC Ltd supra at 365; Banda v Pitluck 1993 (2) ZLR 60 H at 64 F-H; Mutebwa v Mutekwa & Anor 2001 (2) SA 193 (TK) at 1991–J and 200 A-B.”

The learned judge, drawing on and adopting the remarks of JAFA J in Mutebwa v Mutebwa & Anor 2001 (2) SA 193 (TK), proceeded to point out that a distinction had to be made between the approach to be adopted by the court in instances where the court or judge revisits its or his judgment mero motu to correct, vary, or rescind it in terms of Rule 449 and where the judgment is revisited on application of an affected party who was absent when the judgment or order was made.

Where the court or judge revisits the judgment mero motu, the court or judge is limited to the four corners of the record of proceedings.

Where, however, the Rule has been invoked upon the application of an affected party who was absent when the judgment or order being revisited was made, the court or judge is not bound to the four corners of the record. The court is enjoined to take into account the facts set forth in the affidavits filed with the application. The error, in such a case, does not necessarily have to appear ex facie the record.

It therefore is clear, in my reading of the authorities cited above, that in either case, that is whether the court acts mero motu or an application, there should exist an error to be corrected.

It is this error which must be established by the applicant.

The next issue is to define what amounts to an error.

In Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, the learned GARWE JA stated that:

“What amounts to an error has also been the subject of a number of decisions.”

He then gave examples of Banda v Pitluck 1993 (2) ZLR 60 H wherein a default judgment had been granted against a defendant who had entered appearance to defend. The appearance to defend had not been brought to the attention of the judge meaning that had the existence of the appearance to defend been brought to the attention of the judge, he would not have granted judgment in default of appearance to defend.

In Mutebwa v Mutekwa & Anor 2001 (2) SA 193 (TK), a false return of service purporting that the Deputy Sheriff had effected personal service was used to obtain judgment.

In Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291, there was a discrepancy between the sale agreement which had been attached to the summons and declaration with respect to the parties identifications and the alleged witnesses. GARWE JA held that the discrepancies were such that had the judge who granted judgment been made aware, he would not have granted judgment against a witness to the sale agreement.

The question as to what amounts to an error was not addressed directly by the Supreme Court in Austin Munyimi v Elizabeth Tauro SC41-13, reported in 2013 (2) ZLR 291.

The learned judge in fact gave examples of errors which would pass to satisfy the requirements for correcting, rescinding, or varying a judgment.

An error is a mistake.

A judgment granted in error, or erroneously, would mean that the court or judge committed a mistake or mistakenly granted the judgment. Put in another way, the enquiry should be that the applicant needs to establish the existence of a fact or material which influenced or moved the court to grant judgment. It must be shown that the court would otherwise not have granted judgment but for that fact or material that becomes the error.

Rule 449(1)(a), as quoted above, comes into play where the judgment sought to be revisited was either erroneously sought or erroneously granted: see Machoto v Mudimu & Anor HH443-13.

A judgment, in my view, is erroneously or mistakenly sought by a party who seeks a judgement whilst labouring under a mistaken belief that he can properly seek judgment.

A simple example is like the one given by GARWE JA in Austin Munyimi v Elizabeth Tauro SC41-13 whereby he quoted the case of Banda v Pitluck 1993 (2) ZLR 60 H. If the plaintiff or the applicant applies for default judgement oblivious of the fact that appearance to defend or notice of opposition has been filed, such application will have been erroneously made, and, if the court grants the application, it will have granted it in error too....,.

I agree and endorse the remarks made by MAKARAU J…, in Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…, that:

“Rule 449 is a step to correct an obviously wrong judgment or an order.

The power given the court under the Rule is discretionary, and, like all such powers, must be exercised judiciously…,.

A review of the authorities would appear to suggest that the Rule is designed to correct errors made by the court itself and not an omnibus through which new issues and new parties are brought before the court for trial.”...,.

It is settled law that the onus is on the applicant who seeks rescission of judgment granted in default at common law to demonstrate sufficient cause for the relief to be granted: see Shinga Express (Pvt) Ltd v Hubert Davies (Pvt) Ltd 1998 ZLR; Uzande v Katsande 1988 (2) ZLR 47; Kaiser Engineering (Pvt) Ltd v Makeh Enterprises Ltd HB06-12.

In Mudzingwa v Mudzingwa 1991 (4) SA 17 (ZS) GUBBAY JA stated as follows:

“Furthermore, it is firmly established, that, a judgment can only be rescinded under the common law on one of the grounds upon which restitutio in integrum would be granted, such as fraud or some just cause, including justus error…,.

Certainly, a litigant who is himself negligent and the author of his own misfortune will fail in his request for rescission: see Voet 2.4.14; Gorenewald v Gracia (Edms) Bpk 1985 (3) SA 9687 at 972 C-D and G-H.”

See also Jones v Strong SC67-03 and Yeng Goo Chao v Stalin Mau Mau SC3/15.

In my judgment, the court does not enjoy an inherent discretion to rescind its judgment under the common law outside the parameters of ground upon which restitutio in integrum would be granted: see Childerly Estate Stores v Standard Bank of SA Ltd 1924 OPD 163.

It is important, in cases where rescission is sought under the common law, to appreciate that the court which granted the judgment being revisited will have become functus officio after having considered the merits of the dispute and given a definitive judgment thereon.

The ordinary and accepted way to revisit the judgment is by way of appeal so that a higher authority considers the judgment.

A court faced with an application to revisit its judgment, as in casu, must approach the application mindful of the fact that it will have exhausted and exercised its authority which it cannot do twice.

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

In Tiriboyi v Jani Anor 2004 (1) ZLR 470 (H), MAKARAU J…, said:“The purpose of Rule 449 appears to me to enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error, and, where to allow such to ...

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be revived.

Upon revival of the prior Deed, the applicant prays for an order that the property conveyanced therein, called Remainder of Subdivision C of Lot 6 of Lot 1890 to 195 (inclusive) measuring 4,377 square metres be transferred, by the third respondent, into the applicant's name.

I must note that the part of the order sought, directing transfer by the third respondent, is incompetent.

The third respondent is the Registrar of Deeds. The Registrar of Deeds does not transfer properties but registers them. A conveyancer, acting under a power of attorney given by the owner of the property or transferor is the one who transfers the property to the transferee. The Registrar of Deeds, as the name clearly denotes, registers the transfer documents subject to all requirements imposed by applicable law being met.

For the benefit of the applicant, the duties of a Registrar are set out in section 5 of the Deeds Registries Act [Chapter 20:05] as read with the Deeds Registries Regulations S.I.236 of 2018.

The court does not create a duty outside what the law permits for the Registrar to perform.

The relief sought, for the court to order the third respondent to transfer the property, assuming that the current holding Deed is cancelled as prayed for is therefore a non sequitur and cannot be granted.

The applicant also prays for costs against the first respondent and any other respondent who opposes the application on the scale of legal practitioner and client.

The basis of the application is succinctly set out in paragraph 8 of the founding affidavit deposed to by the applicant company's Managing Director, Kingstone Hamutendi Munyawarara who stated that he is aware of the facts of the matter. He states as follows in paragraph 8 of the said affidavit:

“8. The application is premised on the fact that the said property was sold to the applicant by the fourth respondent in execution proceedings against the first respondent in HC3331/14. First respondent, whilst aware that the property had already been sold to the applicant by the Sheriff, fourth respondent hereto, purported to sell and transfer the property to the second respondent.”...,.

The applicant's case, as set out in the founding affidavit, was to the following effect:

It averred, that, it was declared the highest bidder at a judicial auction held on 18 September 2017 wherein the first respondent's property, which had been judicially attached, was up for sale to satisfy the judgment in case no. HC3331/14 made in favour of the fifth respondent against the first respondent.

The applicant was declared the highest bidder, having offered US$270,000 for the property.

Following the dismissal of an objection to the confirmation of the sale, filed by the first respondent, the applicant avers that it paid the purchase price of $270,000 to the fourth respondent as confirmed by the letter from the fourth respondent, dated 6 November 2018, addressed to the fifth respondent's legal practitioners as execution creditor.

The applicant paid transfer fees to the fifth respondent's legal practitioners in the sum of US$23,100 on 9 November 2018 as per proforma invoice of the same date prepared by the fifth respondent's legal practitioners.

The applicant attached a copy of judgment no. HH604-18 by MATHONSI J…, wherein the first respondent had, in case no. HC11349/17, challenged the fourth respondent's decision to confirm the sale of the property to the applicant.

Judgment HH604-18 was delivered on 3 October 2018 and the first respondent's challenge to confirmation was dismissed.

Judgment no. HH604-18 also disposed of case no. HC2650/18 brought by the fifth respondent herein as applicant therein. Case no's HC11349/17 and HC2650/18 were consolidated for purposes of hearing.

In case no. HC2650/18, the fifth respondent prayed for a declaratur to be made by the court to the effect that once the Sheriff had confirmed a sale, after dismissal of any objection(s) made in terms of Rule 359(7), then the Sheriff was obliged to pass transfer to the purchaser as provided for in Rule 361 of the High Court Rules (1971).

The court dismissed the application for the declaratur.

In dismissing the application for the declaratur, the learned judge, albeit agreeing that Rule 361 in its wording appeared to support the fifth respondent's interpretation, that, following confirmation of the sale and compliance with sale conditions, the Sheriff was required to transfer the property to the purchaser against payment of the purchase price; it made sense for the Sheriff to await giving transfer to the purchaser until all objection procedures had been exhausted.

The learned judge also held that the court had the discretion to regulate its processes.

In commenting on the provisions of section 14 of the High Court Act [Chapter 7:06] which gives this court jurisdiction to determine existing, future, and contingent rights, the learned judge, after referring to several decided cases, correctly held that the grant of a declaratory order was a discretionary matter for the court.

In my view, there is a further consideration which attaches to the interpretation of Rule 361.

The consideration has to do with rules of statutory interpretation. Rules of court, as with other legislative statutes, are read as a whole and not as a collection of isolated phrases.

Rule 361 should be read together with the rest of the rules regarding execution on immovable property.

Rule 359(8) and (9) provide that the Sheriff's decision to confirm a sale is open to challenge by “any person” who is aggrieved by the Sheriff's decision made in terms of Rule 359(7), that is, to confirm or cancel the sale.

The person challenges the decision by way of court application made within one month of the Sheriff's decision.

In terms of subrule 9 of Rule 359, the court may confirm, vary, or set aside the Sheriff's decision or “make such order as the court considers appropriate in the circumstances.”

It cannot have been the rule maker's intention that the Sheriff should carry out a concomitant transfer of the property upon his or her confirmation of the sale without allowing for the exercise by aggrieved parties of their right to object to court. Such interpretation would render nugatory the rights of objectors aggrieved by the Sheriff's decision.

Therefore, Rule 361 should be read as directing the Sheriff to transfer the property following his or her confirmation of the sale, only after allowing for the objection period of one month to lapse and no aggrieved party has applied to court to set aside the Sheriff's decision, or after all court processes have been exhausted in the event that an aggrieved party has applied to court.

This includes the appeal process which would need to be exhausted where the challenge by an aggrieved person has progressed that far.

It must therefore follow, that, even if l was to cancel the Deed of Transfer in favour of the second respondent, an order of the transfer of the property to the applicant by the fourth respondent can only be made if all court processes have been completed to finality.

In the judgment HH604-18, the learned judge made an order that “this order shall not be suspended by any appeal by either party but shall remain in force not withstanding such appeal.”

The first respondent was dissatisfied with the judgment. He noted an appeal against that judgment.

The notice of appeal was not attached to the papers but it appears common cause that such appeal was noted.

The applicant, in its founding affidavit, did not relate to the appeal nor deny its existence save in the answering affidavit, in paragraph 4, where, in denying that the matter is lis pendens, the applicant contended that an order was made that the noting of an appeal would not suspend the operation of judgment no. HH604-18.

The first respondent, on the other hand, averred that his appeal was also against the order decreeing the judgment to remain operational despite the noting of the appeal.

The applicant also averred that the “purported” appeal did not affect this application.

I cannot agree in view of my interpretation that transfer in terms of Rule 361 cannot be proceeded with until the court challenge processes given in Rules 359(8) and (9) have been finalized.

The applicant also attached the judgment of the HONOURABLE BERE JA delivered under case no. SC843/18 and bearing case citation SC02-19.

In that application, the first respondent filed an urgent application seeking interim relief that transfer of the property be stayed pending the determination of his appeal against the judgment HH604-18.

The learned judge dismissed the application for want of form and for the first respondent's failure to apply for condonation or to give an explanation for not using Form 29 or Form 29B of the rules of court.

The learned judge expressed his displeasure at what he described as “errant conduct” by the first respondent in engaging in endless and hopeless litigation to frustrate full execution on the judgment.

The learned judge's remarks were expressed obiter because the first respondent's application was found lacking or wanting as to form.

What, however, did not escape my attention was that neither MATHONSI J…, nor BERE JA made an order specific that the fourth respondent should transfer the property to the applicant.

The learned judges ruled in favour of the continuation of due process of execution.

The first respondent then purported to correct his defective application, which had been dismissed by BERE JA for want of form, by filing another application on 21 January 2019 seeking the same relief as sought in the dismissed application.

Under case no SC15-19, the Honourable GWAUNZA DCJ struck the application off the roll.

I imagine that since the same application had not been struck off the roll by BERE JA, but dismissed, it was incompetent for the first respondent to file the same application seeking the same relief.

The earlier dismissal had the effect of res judicata on the issue.

The first respondent however indicated that his appeal was still pending - a fact which was not disputed by the applicant.

The applicant referred to the judgment of this court in HH209-19 in case no HC1444/2019 delivered by MANZUNZU J on 14 March 2019.

In that case, the applicant filed an urgent application in which he cited all the other parties in the application before me as respondents. Significantly, the applicant herein was the fifth respondent therein.

The first respondent herein was the first respondent therein, the second respondent herein was also second respondent therein, and the third and fourth respondents herein were therein third and fourth respondents. There was a fifth respondent, namely, the Law Society of Zimbabwe which is not cited in the current application.

In the interim relief, and in particular in paragraph (i) of that application, the fifth respondent, as applicant therein, sought the following relief;

“That Deed of Transfer No.708/19, issued in the name of Tendai Mashayamunda, in respect of a piece of land in the district of Salisbury called the remainder of Subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands Estate of Welmold measuring 4,377 square metres be and is hereby cancelled.”

The rest of the relief sought, in both the interim relief and final relief, concerned prayers for orders of the de-registration of the first respondent herein as a legal practitioner, the placement of his legal firm under curatorship, and incidental relief, including costs.

It is common cause that application HC1444/19 was dismissed with costs by MANZUNZU J.

The case was determined on the merits and the decision by MANZUNZU J was therefore final.

In his judgment, MANZUNZU J made certain observations which l find apposite in so far as the present application is concerned. The learned judge stated as follows on page 3 of the cyclostyled judgment;

“Despite the judicial attachment of Chiutsi's immovable property, and, in fact, with a sale having been confirmed by the Sheriff, against all odds, Chiutsi sold the property and transferred ownership to the second respondent.

The applicant's interest in this application is for him to get his money from Chiutsi. The sale of Chiutsi's immovable property to the fifth respondent, by the Sheriff, had at least guaranteed him of his money. He fears the second respondent may pass title to a third party complicating his chances of recovering his money.

Chiutsi said he has now paid $115,000 to the applicant through his lawyers' trust account.

The payment has been acknowledged though there is a dispute as to whether or not such payment is considered as payment towards the judgment debt because, as Mr Biti argued, it goes towards costs.

As I have already pointed out, the applicant's interest is to get his money, otherwise he cannot be seen fighting a case for the fifth respondent as to whether the sale between fifth respondent and Sheriff should proceed. He has no mandate to do so.“

The above pronouncements hold true in the application before me in so far as the interests of the fifth respondent is concerned. His interest, as the judgment creditor in case no. HC3331/14, is to have the judgment order satisfied and must remain so.

What however happened is that in the case before MANZUNZU J, the fifth respondent prayed for cancellation of the Deed of Transfer no.708/19 in favour of the second respondent and left it at that.

He did not ask for any other relief as would have ensured that he gets payment in terms of the judgment granted in his favour.

The fifth respondent noted an appeal to the Supreme Court against the judgment of MANZUNZU J. The appeal was noted on 15 March 2019. It is pending before the Supreme Court under case no. SC140/19.

The first respondent, in the application before me, also raised the defence of lis pendens.

He averred, in his opposing affidavit, that, there was a pending case, HC649/17, in which he challenged the attachment of the property in question and that the matter was still to be resolved.

He also averred that there was further pending litigation in case no. HC8122/17 and that the fourth respondent should not have proceeded with the sale in execution.

He lastly averred, that, he had a pending appeal before the Supreme Court and that in any event the Judicial Services Commission had directed the fourth respondent to stay execution until the Supreme Court had determined the first respondent's appeal made against the judgment of MATHONSI J…,.

The applicant attached a copy of a letter from the Secretary of the Judicial Service Commission, dated 12 November 2018, directing the fourth respondent to stay execution pending appeal.

In response to the defence of lis pendens, the applicant, in its answering affidavit, did not deny the existence of the alleged pending litigations nor the appeal.

It took the position that the gist of its application was that the first respondent had sold to the second respondent the property in question in the full knowledge that the property had been attached by the fourth respondent.

The applicant further averred that the matter was not lis pendens by virtue of the first respondent's pending appeal because the appeal was also against the order that the judgment would remain operational despite the noting of any appeal.

The applicant also averred that BERE JA had dismissed the first respondent's attempt to interdict the transfer of the property to the applicant on the basis of a pending appeal. The applicant stated, in the final sentence in paragraph 4 of the answering affidavit, thus –

“Therefore, the fact that first respondent has noted a purported appeal against Justice MATHONSI's judgment does not affect this application.”

In regard to res judicata, the first respondent averred that the applicant filed an affidavit in case no. HC1444/19 specifically requesting the court to cancel the title deed in favour of the second respondent. The applicant further averred that the dismissal of case no. HC1444/19 by MANZUNZU J rendered the issue of cancellation of the Deed of Transfer to the second respondent res judicata and that this court was functus officio on the issue.

In response to the defence of res judicata, the applicant averred that the judgment of MANZUNZU J did not deal with the merits of the application. The applicant averred that whilst application HC1444/19 was concerned with the protection of the fifth respondent's rights, the applicant in casu was seeking to enforce its rights to transfer to itself the property in question as purchaser.

In regard to the preliminary defences raised, it is trite that the court has an unfettered right to refer to its records: see Mhungu v Mtindi 1986 (2) ZLR 171 in which McNALLY JA…, stated:

“It seems clear from the judgment in which the learned judge a quo granted summary judgment that he made reference to the papers in case no. HC3406/84. In so doing he was undoubtedly right. In general, the court is always entitled to make reference to its own records and proceedings and to take note of their contents…,.”

Guided by the above dicta, I perused the records referred to by the second respondent.

Significantly, and in relation to case no. HC1449/19, decided by MANZUNZU J, the applicant herein did not oppose the application. The applicant in fact supported the application as shown in the affidavit which was filed of record on 28 February 2019. In paragraph 2 of the applicant's affidavit thereon, it is stated;

“2. I have perused the urgent chamber application for the cancellation and setting aside of Title Deed No. 708/2019, together with the certificate of urgency and the founding affidavit of the applicant in support of the application. I confirm that fifth respondent is in support of the application and the relief sought as fifth respondent has an inherent interest in this matter as is apparent from applicant's affidavit itself.”

The applicant then chronicled the history of how it bought the property on the Sheriff's auction; the declaration made by the Sheriff that the applicant was the highest bidder and purchaser; the challenges mounted by the first respondent including attacking the court judgment by MATHONSI J…,.; that the applicant paid the purchase price and transfer fees; the failed interdict applications made by the first respondent in the Supreme Court and determined by BERE JA and GWAUNZA DCJ; the allegation that the first respondent's appeal no. SC734/18 was dismissed for non-compliance with the Rules; and that the sale of the property by the first respondent was fraudulent as the first respondent was aware of the prior sale to the applicant made on 18 September 2017.

The applicant, in paragraph 13 of the affidavit, accused the first respondent herein of having connived with officials of the third respondent herein to perpetrate a fraud by registering the transfer to the second respondent herein. The applicant states as follows in paragraphs 13–16 of its affidavit:

“13…,. The sale and transfer of the property to the second respondent is void and that void transaction must be quashed.

14. The fact is, the title deed in favour of the second respondent is a fraud and it must be cancelled. The actions of the first respondent are criminal in nature and should not be condoned.

15. Fifth respondent has and continues to suffer prejudice at the actions of the first respondent, which, if allowed to stand, will greatly prejudice the applicant, fifth respondent, and our justice system.

16. It is therefore fifth respondent's position that there is sufficient basis for this Honourable Court to grant the relief sought for by the applicant. First respondent also ought to be ordered to pay the costs on a punitive scale.”

It is therefore clear that in case no. HC1449/19 the applicant took advantage of the application filed by the fifth respondent to present its own case to the court.

The relief sought by the fifth respondent was in effect for the benefit of the applicant as well.

In a manner of speaking, the applicant took the position of a co-applicant and prayed to the court that the relief sought by the fifth respondent herein should be granted.

The applicant argued, before MANZUNZU J, for the relief of cancellation of the Deed of Transfer made in favour of the second respondent to be cancelled. In paragraph 15 of its affidavit, the applicant averred that it continued to suffer prejudice as did the fifth respondent.

The applicant adopted the applicant's cause as its own.

The cancellation of the Deed of Transfer, had such relief sought been granted, would have benefitted the applicant.

The present application would not have been made.

The applicant has, by this application, sought the same relief which it looked forward to getting in case no. HC1449/19 before MANZUNZU J.

The extension to the same order then and now sought, that the prior Deed be revived, would simply have followed as a causa causans of the cancellation of the now holding Deed which was the causa sine qua non of the revival of the prior Deed. The same reasoning would apply to the faulty relief sought, that the third respondent transfers the property to the applicant.

I have already pointed out that the third respondent does not transfer property but registers transfers. Transfers are done by the seller to the purchaser.

There can be no doubt the dismissal of the application by MANZUNZU J resulted in the fifth respondent and the applicant being denied the common relief which they sought.

In deciding whether the plea of res judicata applies against the applicant in this case and similarly against the fifth respondent, I need to restate the requirements for a successful plea of res judicata.

In the case of Wilson Nakunyunda Banda and 45 Others v Zimbabwe Iron and Steel Corporation SC54-99, SANDURA JA stated…;

“The requisites of the plea of res judicata have been set out in a number of previous cases. In Pretorious v Barkly East Divisional Council 1914 AD 407. SEARLE J set them out as follows at p409:

As to the first point, the requisites for a plea of res judicata have several times been laid down in this court.

The three requisites of a plea of res judicata, said the Chief Justice in Hiddingh v Denysson L (3 Juta p424) quoting Voet (44.2.3) are that the action in respect of which judgment has been given must have been between the same parties or their privies; concerning the same subject matter; and founded upon the same cause of complaint as the action in which the defence is raised. In order to determine the cause of complaint, the pleadings, and not the evidence in the case, must be looked at.”

The pleadings in case no.1449/19 and in casu are similar.

What has simply happened is that the applicant herein, having made cause with the fifth respondent as applicant in HC1449/19, and lost the case, has decided, out of misplaced ingenuity, to file this application which otherwise involves the same parties, the same subject matter, and founded on the same cause of complaint as was before the court in case no. HC1449/19 which MANZUNZU J dismissed.

The fact that the applicant was a respondent does not alter the position.

A respondent who participates in an application is as much a party to the case as the applicant. Such respondent becomes an interested party who will be affected and bound by the order which the court may grant. The respondent, as much as the applicant, has a right of appeal against the judgment in which such respondent is a party.

In casu, the applicant herein did not appeal against the judgment of MANZUNZU J which means that it did not take issue with the dismissal of the application.

The dismissal of the application meant that the current Deed, in the name of the second respondent, remained extant, yet, in the application, case no. HC1449/19, the applicant had prayed for the order of cancellation of the Deed, as sought by the fifth respondent, to be granted.

In the current application, the applicant now took the leading role and petitioned the court for the same relief as previously sought in case no. HC1449/19 with the fifth respondent, who was applicant in case no. HC1449/19, being now cited again as fifth respondent.

The fifth respondent, for its part, filed what it terms a supporting affidavit on 12 April 2019.

It is a curious supporting affidavit in that it comprises 33 pages compared to only 7 pages which make up the founding affidavit of the applicant. The affidavit has 169 individualized paragraphs containing separate allegations in line with Rule 227(1)(b). The annexures to the supporting affidavit comprise 24 pages. In totality, therefore, the fifth respondent's so-called supporting affidavit, with annexures, comprises 57 pages.

The fifth respondent's affidavit goes further than the applicant's affidavit in expanding on the grounds on which the relief sought by the applicant should be granted. Significantly, the fifth respondent, in the penultimate paragraph of the supporting affidavit, in paragraph 168, stated:

“Ad paragraphs 1 to 28 of the applicant's founding affidavit

168. I have read the founding affidavit of Mr Kingstone Hamutendi Munyawarara. I associate myself with the same. I agree with every contention made therein and l seek that an order be granted in terms of the draft.”

Other than paragraph 168, the fifth respondent, in the bulk of his affidavit, was setting out facts which found the application more comprehensively in content and detail than the applicant had done in the founding affidavit.

In my view, the procedure which was adopted by the fifth respondent is wrong.

Form 29, referred to in Rule 230, on application procedure, calls upon the respondents to oppose the relief sought by the applicant if they wish to do so. This implies that the respondent can also consent to the application expressly by stating so or not file any papers in which case the respondent who does not file any opposing papers is deemed not to be opposed to the order sought.

Where the respondent seeks to bring its own application and the cause of action, subject matter, and the parties are the same, he or she can file his or her own application separately and apply for consolidation of the applications for purposes of hearing.

The fifth respondent did not do this, and, instead, sought to sneak in its own dispute for resolution by the court through the back door in an application brought by another party.

To compound matters, the fifth respondent could not competently seek the court's determination on issue which it brought before the court and judgment which he has appealed against was given by the same court.

The matter is therefore res judicata as far as this court is concerned and lis pendens as far as the Supreme Court appeal is concerned.

This court has inherent power, in terms of section 176 of the Constitution, to regulate its processes, and, in the process of doing so, to guard against abuse of court process by litigants.

The fifth respondent seeks to abuse the court process by asking the court to determine and grant an order which he failed to obtain in case no. HC1449/19 and appealed against that decision.

Obviously, if the order is granted, the appeal becomes academic and may not be pursued leaving this court with two conflicting judgments.

In my view, what was before MANZUNZU J was a dispute which involved all the parties herein.

A decision thereon was granted. One of the parties, namely, the fifth respondent herein, appealed against the judgment. The others, including the applicant, did not do so.

The court is not a gambling place where parties take chances to try their luck where one who led the group failed to get relief which each member of the group was seeking in the prior or failed application.

I therefore found merit in the first respondent's plea of res judicata for the reasons l have outlined.

The dispute before me was determined in case no. HC1449/19, and, save for the fifth respondent herein who was the applicant, parties who did not appeal against the judgment, when in fact they were dissatisfied with it, must live with the judgment.

For the fifth respondent, the matter is not only res judicata in this court, but is lis pendens in the Supreme Court.

Appealed
SSC25-21 : ROBERT GUMBURA vs THE STATE
Ruled By: BHUNU JA

The applicant approaches this Court in terms of section 123(1)(a)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07] with an application for bail pending appeal.He initially approached the High Court with the same application. The court a quo declined jurisdiction and deferred the application for determination by this Court.Factual ...

The applicant approaches this Court in terms of section 123(1)(a)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07] with an application for bail pending appeal.

He initially approached the High Court with the same application. The court a quo declined jurisdiction and deferred the application for determination by this Court.

Factual Background

The applicant is the owner and pastor of a Christian church. He is a convict serving a 20-year term of imprisonment. He was convicted in the Regional Magistrates Court on four (4) counts of rape as defined in section 65 of the Criminal Procedure and Evidence Act and one (1) count of contravening section 26 of the Censorship and Entertainments Control Act [Chapter 10:04].

The Regional Magistrates' Court sentenced him to 50 years' imprisonment of which 10 years were suspended for a period of 5 years on the usual conditions of good behaviour.

He appealed to a panel of two judges of the court a quo against both conviction and sentence with some measure of success. The appeal against conviction was found to be without merit and dismissed. He was, however, partially successful in respect of the sentence which was reduced to an effective 20-year imprisonment.

Aggrieved by the dismissal of his appeal against conviction he noted an appeal to this Court with leave of the court a quo.

Pending the determination of his appeal to this Court, the appellant applied to a single judge of the court a quo for bail pending appeal. The learned judge a quo declined jurisdiction arguing that sitting as a single judge he was ill-suited to review a judgment of two judges of the same court. In his reasons for judgment…, he reasoned that:

“In my interpretation, the default position is that where an applicant has noted an appeal to the Supreme Court against conviction and sentence on trial by the High Court, or has been sentenced by the High Court, bail pending appeal should be made to a judge of the Supreme Court.

Although the provision speaks to a judge of the Supreme Court or the High Court, the default position is that the Supreme Court judge is the first point of call failing which a High Court judge may determine the application.

Even if I am wrong in my interpretation, a situation may arise, as in the instant case, where I am asked to determine prospects of success on appeal where the High Court, on appeal, exhausted its jurisdiction.

In my respectful view, it is only jurisprudentially proper that a Supreme Court judge should be the one to determine the bail pending appeal where the appeal relates to a judgment of the High Court granted on appeal.

I must come to the conclusion that the interests of justice, and procedural and substantive fairness, dictates that I defer to a judge of the Supreme Court to hear the bail application in terms of section 123(1)(a)(i) of the Criminal Procedure and Evidence Act.”

On the basis of such reasoning, the learned judge a quo issued the following order:

“Consequently, the application for bail pending appeal is struck off the roll. The applicant, if advised, may direct the application for determination by a judge of the Supreme Court.”

Analysis of the facts and the law

With all due respect, the learned judge misconstrued what was required of him in respect of the application before him. He was not being asked to review the judgment of the two-judge panel a quo.

He was simply being asked to determine the applicant's suitability for bail pending appeal without determining the merits of the appeal....,.

In determining whether or not the learned judge a quo had the necessary jurisdiction to hear and determine the application for bail pending appeal against an appeal judgment of the court a quo, it is necessary to traverse and interrogate the jurisdiction of the High Court.

An application for bail is essentially a civil matter founded on a criminal case.

Section 13 of the High Court Act [Chapter 7:06] confers on the court a quo unlimited original jurisdiction over all persons and civil matters in Zimbabwe. Beyond that, it is trite that the High Court has unlimited inherent jurisdiction over both civil and criminal matters save where its jurisdiction is specifically limited by statute. Over and above its inherent jurisdiction, section 171 of the Constitution clothes the High Court with unlimited original jurisdiction over all civil and criminal matters.

The meaning and import of inherent jurisdiction has been the subject of courts and scholarly interpretation.

In Martin Sibanda and Anor v Benson Chinemhute and Anor HH131-04 MAKARAU J…, described the concept in graphic imagery as a building open to all citizenry with all its doors and windows open.

In Dardale Investments (Private) Ltd v Econet Wireless Private) Limited HH656-14 DUBE J weighed in with a simple but comprehensive definition of the concept of inherent jurisdiction when she said:

“Inherent power is unwritten power which superior courts are endowed with. Inherent power gives the court wide ranging and all-embracing powers to deal with any matter that may be placed before them. This means that a court of inherent jurisdiction has default powers which it can exercise in the absence of express power and can deal with all areas of law and all procedural matters involving the administration of justice.”

The learned author, JEROLD TAITZ, The Inherent Jurisdiction of Supreme Court, (Cape Town, South Africa; Juta Publishers 1985) describes inherent jurisdiction as the unwritten power without which the court is unable to function with justice and good reason as a superior court modelled on the lines of an English Superior Court.

It is therefore plain, that, clothed with inherent jurisdiction, the High Court, in the absence of any statutory prohibition, has the necessary jurisdiction to hear and determine an application for bail pending appeal against an appeal judgment of that court.

Statutory jurisdiction of the High Court to determine Bail Pending Appeal

Apart from its inherent jurisdiction, the court a quo is granted specific statutory power to hear and determine applications for bail pending appeal under section 123(1)(a)(i) of the Criminal Procedure and Evidence Act. The section provides as follows:

“Power to admit to Bail Pending Appeal or Review

(1) Subject to this section, a person may be admitted to bail or have his conditions of bail altered —

(a) In the case of a person who has been convicted and sentenced or sentenced by the High Court and who applies for bail —

(i) Pending the determination by the Supreme Court of his appeal; or

(ii) Pending the determination of an application for leave to appeal or for an extension of time within which to apply for such leave; by a judge of the Supreme Court or the High Court;”

As can be seen, the above section grants the relevant courts the power to grant bail pending appeal without excluding or qualifying the High Court's power to grant bail pending appeal.

What this means is that it is at large to exercise its unlimited inherent and statutory jurisdiction to hear and determine any application for bail pending appeal without any let or hindrance.

The learned judge a quo therefore misinterpreted the section to mean that the applicant should first approach the Supreme Court before approaching the High Court.

That interpretation of the law is clearly untenable and illogical as it turns the hierarchy of the courts upside down. This is for the simple reason, that, in terms of section 171 as read with section 169 of the Constitution, the High Court is primarily a court of first instance whereas the Supreme Court is basically an Appellate Court.

Matters naturally flow from the High Court to the Supreme Court and ultimately to the Constitutional Court.

Doing otherwise, as suggested by the learned judge a quo, will be contrary to law and against common sense and logic; for one does not climb a tree from the top but from the bottom going up.

Likewise, cases must start from the lower courts going to the higher courts.

The learned judge a quo was therefore duty bound to complete the application before him without abdicating his responsibility.

In any case, there is no law which permits the learned judge to defer uncompleted bail matters before him for adjudication by this Court as if it was a court of first instance. The deferment was therefore grossly irregular, unprocedural, and contrary to law.

Disposition

That being the case, the learned judge misdirected himself and fell into grave error. His order, deferring the application to this Court cannot stand on account of serious irregularity. Having said that, it will be necessary to invoke the provisions of section 25(2) of the Supreme Court Act [Chapter 7:13] and set aside the order of the court a quo.

The section confers jurisdiction on this Court to intervene, on review, to correct such irregularities whenever they come to this Court's attention.

In the result, it is ordered that:

1. The court a quo's order, declining jurisdiction and deferring the application for bail pending appeal to this Court, be and is hereby set aside.

2. The matter be and is hereby remitted to the court a quo for determination of the application for bail pending appeal.

View Appeal
HHH03-21 : ROBERT GUMBURA vs THE STATE
Ruled By: CHITAPI J

I would not have composed a written judgment but for the need to clear the confusion within the applicant's misunderstanding of procedure to assert his liberty rights.The Background to the ApplicationsB1725/20 and B892/20 is as follows:The applicant was convicted by the Regional Magistrate sitting at Harare on 4 October 2017 ...

I would not have composed a written judgment but for the need to clear the confusion within the applicant's misunderstanding of procedure to assert his liberty rights.

The Background to the Applications

B1725/20 and B892/20 is as follows:

The applicant was convicted by the Regional Magistrate sitting at Harare on 4 October 2017 on four counts of rape. Consequent on the conviction, the applicant was sentenced to fifty years imprisonment. Ten years of that sentence was suspended for five years on conditions of future good behavior. The effective sentence imposed was therefore forty years imprisonment.

The applicant noted an appeal against both conviction and sentence to this court.

On 5 August, 2020, this court, sitting on appeal, dismissed the applicant's appeal against conviction. As against sentence, the appeal succeeded to the extent that the sentence imposed by the Regional Magistrate was reduced to twenty five years imprisonment with five years thereof suspended on condition of future good behavior. The applicant was therefore to serve an effective sentence of twenty years imprisonment.

The appeal to this court was determined under case no. CA110/14.

The applicant was not satisfied with the decision of this court, on appeal, in case no. CA110/14. He however delayed in taking steps to further appeal this court's decision to the Supreme Court.

On 7 September 2020, the applicant filed, under case no. CON 319/20, a chamber application for condonation of late noting of an application for leave to appeal to the Supreme Court.

The application was placed before MUSHORE J, who, on 23 October 2020, granted the applicant leave to appeal against conviction only. In the order made, MUSHORE J, inter alia, ordered, in paragraph 2, as follows:

“2. Applicant be and is hereby granted leave to file his notice and grounds of appeal against conviction only through the Supreme Court Registrar within 10 days from the date of this order.”

It is, of course, a requirement, in terms of section 44(4) of the High Court Act, that a person convicted by an inferior court to the High Court and has appealed to the High Court against conviction or sentence or both, and is dissatisfied with the decision of the High Court, and wishes to appeal further to the Supreme Court, should first obtain leave of a judge to appeal if the appeal is based on a question of fact or mixed fact and law.

If the appeal is based on a question of law only, no prior leave to appeal is required.

The High Court Act does not provide for the granting of ancillary or consequential orders upon the grant of leave to appeal to the Supreme Court.

For posterity, I need to make a passing comment in regard to the quoted order of MUSHORE J aforesaid. It needs a non-prejudicial correction to it.

It directs the applicant to note the appeal through the Registrar of the Supreme Court.

In terms of Rule 18(3) of the Supreme Court Rules, S1.137 of 2018 a notice of appeal to be filed consequent upon the grant of leave to appeal by this court, is directed at and filed with the Registrar of the High Court and copy thereof then filed with the Registrar of the Supreme Court.

I have indicated that there is no prejudice to anyone and the order of MUSHORE J is corrected in paragraph 2 by the deletion of the word “Supreme” and replacing it with the word “High”.

The applicant, prior to being granted leave to appeal out of time, filed, on 16 October 2020, an application for bail pending the determination of the leave to appeal application.

The application was overtaken by events in that, with condonation being granted, there was no longer bail pending condonation to contend with.

The applicant only noted the appeal against conviction on 5 November 2020, under case no. SC476/20. The appeal is currently pending determination by the Supreme Court.

In case no. B1892/20, the applicant applies for bail pending the determination of that appeal. He filed the application on 6 November 2020 and headed it “bail pending appeal to the Supreme Court against conviction only.”

The application for bail pending appeal is anchored on the principal consideration of whether or not the proposed appeal has prospects of success.

It would be illogical, and not in the interests of justice, to grant bail pending an appeal which is predictably deemed to fail. It is, on the other hand, logical, and in the interests of justice, to grant bail pending appeal where the proposed appeal has merit and may likely succeed; provided, however, that there are no indications that the applicant for bail pending appeal may abscond.

The applicant averred that his appeal has prospects of success and relies on eight grounds of appeal set out in the notice and grounds of appeal.

The State counsel opposed the application on two grounds:

(i) Firstly, counsel contended, that, the application for bail was improperly before the court because the applicant did not seek leave to appeal first.

Counsel is mistaken because leave to appeal, as has been noted, was granted by MUSHORE J. The appeal is, in fact, properly pending before the Supreme Court.

(ii) The other ground of objection is that there are no prospects of success on appeal against conviction.

The determination of whether there are prospects of success on appeal in this matter presents jurisprudential challenges.

The applicant's appeal against conviction was dismissed, on appeal, by this court on the basis that it had no merit.

The decision on appeal is binding upon a single judge.

It would procedurally be improper, in my view, for the single judge to have to review the Appeal Court's decision and make a pronouncement on the correctness of the judgment given on appeal.

To interrogate the jurisprudential or legal quagmire, it is noted that section 44(4) of the High Court Act only grants a right of appeal to the Supreme Court against the decision of the High Court, on appeal, upon a decision of an inferior court.

The right of appeal given is to be exercised in the same manner as if the decision, on appeal, was a decision of the High Court on trial before the High Court.

The provisions of the law on the grant of leave to appeal have not taken into account that leave to appeal would be in relation to an appeal judgment wherein two or more judges sat.

Should such leave not be sought from the two judges is a question that comes to mind.

As the law stands, however, section 44(4) of the High Court Act implies that a single judge is permitted to grant leave to appeal.

I respectfully suggest that the law is revisited so that there is clarity on procedure as it appears illogical that a single judge reviews the Appeal Court decision and qualifies the judgment.

I have however also considered the provisions of section 123(1)(a) of the Criminal Procedure and Evidence Act which provides as follows:

“123 Power to admit to Bail Pending Appeal or Review

(1) Subject to this section, a person may be admitted to bail or have his conditions of bail altered –

(a) In the case of a person who has been convicted and sentenced by the High Court and who applies for bail –

(i) Pending the determination by the Supreme Court of his appeal; or

(ii) Pending the determination of an application for leave to appeal or for an extension of time within which to apply for such leave; by a judge of the Supreme Court or the High Court.”

In my interpretation, the default position is that where the applicant has noted an appeal to the Supreme Court against conviction and sentence, on trial by the High Court, or has been sentenced by the High Court, bail pending appeal should be made to a judge of the Supreme.

Although the provision speaks to a judge of the Supreme Court or High Court, the default position is that the Supreme Court judge is the first point of call failing which a High Court judge may determine the application.

Even if I am wrong in my interpretation, a situation may arise, as in the instant case, where I am asked to determine prospects of success on appeal where the High Court, on appeal, exhausted its jurisdiction.

In my respectful view, it is only jurisprudentially proper that a Supreme Court judge should be the one to determine the bail pending appeal where the appeal relates to a judgment of the High Court granted on appeal.

I must come to the conclusion, that, the interests of justice and procedural and substantive fairness dictate that l defer to a judge of the Supreme Court to hear the bail application in terms of section 123(1)(a)(i) of the Criminal Procedure and Evidence Act.

Consequently, the application for bail pending appeal is struck off the roll.

The applicant, if advised, may direct the application for determination by a judge of the Supreme Court.

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

This is an application for review brought in terms of section 27 of the High Court Act [Chapter 7:06].

The brief facts surrounding this application are as follows:

On 22 November 2013, the Administrative Court granted leave to the applicant to file an appeal out of time against the second respondent's decision granting a permit to the first respondent to establish a cellular base at a place in Mt Pleasant, Harare.

On 4 December 2013, the first respondent made a chamber application to the Administrative Court for leave to appeal to the Supreme Court against the interlocutory order. The chamber application was served on the applicant on 5 December 2013. The court dealt with and granted the application in chambers on 18 December 2013 before the 10-day period within which the applicant was required to file a response had elapsed.

A default order was in effect granted.

The next day, the applicant filed its notice of opposition. The court, on being advised that it had granted the order in error, accepted its error and requested the parties to appear before it in chambers to map the way forward.

The meeting did not produce any fruitful results.

The first respondent refused to abandon the order granted in its favour resulting in the court ruling that it was functus officio....,.

At the hearing of this matter, I queried the wisdom of bringing the dispute over the propriety of the order granted in default to this court as a review.

An alternative procedure was available to resolve the dispute between the parties.

Both parties agreed that the applicant had the simpler option of placing before the Administrative Court an application for rescission of judgment in terms of Order 49 Rule 449 of the High Court Rules, 1971.

The Rule provides for correction, variation, and rescission of judgments or orders erroneously granted in the absence of any party affected thereby.

The Administrative Court (Miscellaneous Appeals) Rules 1980, do not make provision for rescission of a judgment or order - particularly where there is an allegation that the order or judgement was erroneously made or granted.

In any case, where the conduct of proceedings is not covered by the Administrative Court rules, the practice embraced in that court is to resort to application of the High Court Rules. This course of action is made possible by the provisions of section 13(3)(a) of the Administrative Court Act [Chapter 7:01]. The section reads as follows;

“13(3) In any proceedings not covered by rules in terms of subsection (1) or any other enactment —

(a) The rules relating to practice and procedure in the High Court shall, where appropriate, apply;”

Invoking Rule 449 could have saved the day here.

SC50-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and HONOURABLE RETIRED JUSTICE SMITH vs GOOD LIVING REAL ESTATE (PVT) LTD
Ruled By: GWAUNZA DCJ, BHUNU JA and MAKONI JA

The court in Bezuidenhout v Patensie Sitrus Beherend Bpk 2001 (2) SA 224 (E) said as follows:"A court order stands and must be strictly obeyed until set aside by a higher court, and the same court which granted the original order does not have the right to nullify its effect ...

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

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

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

The applicant seeks an order in the following terms:

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

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

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

MAKARAU AJCC:IntroductionOn 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.The two applications, filed separately, and on different dates, were brought in ...

MAKARAU AJCC:

Introduction

On 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.

The two applications, filed separately, and on different dates, were brought in terms of section 167(2)(d) of the Constitution as read with Rule 27 of the Constitutional Court Rules 2016, alleging, that, the second applicant had failed to fulfil the obligation to pass Constitutional Bill (No.1) of 2017 in accordance with the Constitution.

The first application was filed in September 2017, before Constitutional Amendment Bill (No.1) of 2017 was presented to the President for assent, whilst the second application was filed in December 2017, after the Bill had been assented to and had been gazetted as an Act of Parliament.

In view of the fact, that, the allegations made in the two applications were the same and raised the same issues for determination, the applications were consolidated and heard as one.

No import was attached to the different legislative stages through which the amendment Bill passed as the singular order that was issued by the Constitutional Court, under judgment number CC04-20, in respect of both applications, reads:

“(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside, for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017, in para 1(a), shall become final.

2. The applicant's allegations, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicant's allegation, that, a two thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

The one hundred and eighty days stipulated in paragraph (b) of the order commenced to run on 1 April 2020 and expired on or about 28 September 2020.

The directive in that order was not complied with for reasons that are set out in the applicants founding affidavit.

On 25 September 2020, upon realising that the one hundred and eighty days would expire shortly thereafter, the applicants filed an urgent ex parte chamber application in this Court, securing, on 28 September 2020, a provisional order extending the period and concomitantly further suspending the coming into effect of the order of invalidity of the amendment to a date following the determination of this application.

On 6 October 2020, the provisional order was confirmed with the consent of the parties.

Simultaneously with the urgent ex parte application referred to above, the applicants filed this application, seeking an order for the extension of the 180 days within which the second applicant had to comply with the directive of the court.

The draft order did not seek an extension of the suspension of the order of invalidity of Constitutional Amendment Bill (No.1) of 2017.

The application was set down before us for determination.

The Jurisdiction of this Court

Whilst the issue of the jurisdiction of this Court did not arise, I wish to explain, in passing, that, notwithstanding that this application relates to an order that was issued by the full Bench of this Court, this Court, as presently constituted, has jurisdiction in the matter.

Prior to 22 May 2020, the Constitution required the full Bench of this Court to sit in all constitutional cases.

Paragraph 18(2) of the 6th Schedule to the Constitution, which was the governing provision then, and which provided for the transition between the repealed Constitution and the current Constitution, provided that:

“Notwithstanding section 166, for seven years after the publication date, the Constitutional Court consists of the Chief Justice and the Deputy Chief Justice; and seven other judges of the Supreme Court; who must sit together as a bench to hear any constitutional case.”…,.

The above provision gave way to section 166 of the Constitution, temporarily held in abeyance by the transitional provisions of the Constitution cited above, which, in subsection (3), grants this Court the requisite jurisdiction by providing as follows:

“Cases before the Constitutional Court -

(a) Concerning alleged infringements of a fundamental human right or freedom enshrined in the Constitution in Chapter 4, or, concerning the election of a President or Vice President, must be heard by all the judges of the court;

(b) Other than the cases referred to in paragraph (a), must be heard by at least three judges of the court;…,.”

It is further common cause, that, section 176 of the Constitution grants inherent jurisdiction to this Court to protect and regulate its own processes in addition to developing the law in the interests of justice and in accordance with the Constitution.

This application, being an application to extend the lifespan of an order given earlier by the Constitutional Court, is an incident of the exercise of the inherent jurisdiction of this Court to control and regulate its own processes.

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

This matter was heard on 13 January 2016 with judgment being reserved.

On 27 January 2016, this court determined, that, in view of the fact that this case raises similar issues as that of Farai Lawrence Ndlovu & Anor v The Minister of Justice Legal & Parliamentary Affairs, Constitutional Application No.50 of 2015, it was convenient that the two cases be consolidated and heard simultaneously.

To that extent, the court issued the following order:

“IT IS ORDERED THAT:

The matter be and is hereby postponed sine die to enable this case to be heard by the same bench that heard the matter of Cuthbert Chawira & Ors vs Minister of Justice CCZ47/2015. The Registrar is directed to set this matter at the earliest convenient date for hearing.”

In view of the above directive, the handing down of judgment in this case was postponed pending the completion of Case No.50/15.

The matter however dragged on and on until it was eventually struck of the roll on 1 January 2017 thereby paving way for the completion and delivery of judgment in this case.

The application is in terms section 85(1)(a) and (d) of the Constitution which entitles both natural and juristic subjects to approach this Court for relief as a court of first instance whenever their fundamental human rights, enshrined in Chapter 4, have been infringed or threatened.

All the fifteen applicants are condemned prisoners on death row awaiting execution after being sentenced to death by the High Court. They have been on death row for varying periods of time ranging from 2 to 18 years of incarceration.

They have now approached this court complaining that the length of their stay on death row is an affront to their human dignity and freedom from torture or cruel, inhuman or degrading treatment or punishment in violation of sections 51 and 53 of the Constitution.

Section 51 of the Constitution provides that:

“51 Right to Human Dignity

Every person has inherent dignity in their private and public life, and the right to have that dignity respected and protected.”

Section 53 of the Constitution goes on to protect subjects against torture, cruel, inhuman and degrading treatment or punishment. It provides that:

“53 Freedom from torture or cruel, inhuman or degrading treatment or punishment

No person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment.”

Initially, the applicants sought commutation of their respective death sentences to life imprisonment. That relief was, however, abandoned at the hearing through an amended draft order seeking to quash the sentences of death and remittal of the cases to the High Court for re-sentencing.

The amended draft order reads:

“IT IS ORDERED THAT:

1. In remedy, the sentences of death imposed on the Applicants, namely, Cuthbert Tapuwanashe Chawira, Masimba Mbaya, George Munyaradzi Manyonga, Jack Sikala, Livingstone Sithole, Jack Nyati, Busani Tshuma, Killian Mpofu, Wisdom Gochera, Ezra Manenji, Kudakwashe Taonangwere, Farai Lawrence Ndlovhu, Governor Masawaire and Lyton Mathe be quashed and determination of the appropriate substituted punishment for each Applicant be remitted for hearing.

2. The First Respondent pays costs of suit.”...,.

It is...,, inappropriate and improper that they should be re-sentenced by the High Court which is now functus officio...,.

The applicants are seeking to upset the sentences passed by the High Court without alleging, let alone proving, that it erred or was at fault in any way.

It seems they want to pre-empt and upset lawful, valid sentences purely on the basis of events which occurred after they had been convicted and sentenced.

In my view, this sounds more of an appeal disguised as a constitutional application.

In my considered view, events which occur in prison, after conviction and sentence, are wholly irrelevant to warrant reconsideration of the conviction or sentence by the trial court.

Once a court has completed a case, it washes its hands and moves forward without looking back.

The time honoured functus officio and res judicata doctrines militate against the same court revisiting the same completed case except in exceptional circumstances which are absent in this case.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J

On 18 September 2018, the applicant filed a court application for review seeking the following relief spelt out in the draft order:

“1. The decision of the first respondent in which she made an order for the rescission of default judgment in court case number 127/18 in favour of second respondent be and is set aside.

2. The application of second respondent for rescission of default judgment be remitted for rehearing before a different magistrate.”

On 28 September 2018, the second respondent filed its opposing papers.

BACKGROUND

On 5 February, the applicant initiated summons at the Magistrates Court claiming US$651 from the second respondent, the Zimbabwe National Roads Administration.

The applicant, on 21 May 2013, attempted to receive an exemption over a number of his motor vehicles from Zimbabwe National Roads Administration for the period extending 1 June 2013 to 31 May 2014.

The Zimbabwe National Roads Administration officials demanded a letter from a commercial garage certifying such automobiles inoperative for a specified period.

From 2013 to 2018, a number of correspondences took place between the applicant and the second respondent.

In January 2018, the applicant was told, by the Zimbabwe National Roads Administration, to pay a total of $696 licencing penalty and penalty fees up to 30 April 2018.

The applicant admitted to pay $45 but resolved to claim $651, being the difference between $699 and $45, which amount he argued was excessive and unjustified in his view.

On 25 February 2018, a default judgment was granted in favour of the applicant.

On 12 March 2018, the Zimbabwe National Roads Administration filed an application for rescission of judgment.

The second respondent also filed, on the same date, an ex parte application for stay of execution.

On 26 March 2018, the applicant filed his opposing papers for the rescission of judgment as well as stay of execution.

On 13 July 2018, the magistrate, the first respondent in this application, heard the application for rescission and stay and deferred her ruling to 27 July 2018.

It is common cause, that, both applications, for rescission and stay of execution, were granted.

The second respondent was given leave by the magistrate to file a notice of appearance to defend. It filed it, and, then, proceeded to file an exception to the current applicant's summons.

Meanwhile, the applicant embarked on a vitriolic attack of the judicial officer, the magistrate, through writing of letters up to the Chief Justice.

When the second respondent caused the exception to be set down for argument, the trial magistrate, recused herself, patently because of the attack by the applicant.

The exception was set down for 11 September 2018 and postponed to 20 September 2018 so that a different magistrate would deal with the matter.

Before the matter could be heard, as already indicated, the applicant filed a court application for review.

Meanwhile, the hearing of the exception was deferred indefinitely until the finalisation of the review application.

On 24 June 2019, I gave the following order, indicating that I would give reasons for that order:

“IT IS ORDERED THAT:

1. Points in limine raised by the 2nd Respondent is upheld.

2. Application for review is dismissed with costs on attorney client scale.”

On the very date, 24 June 2019, the applicant submitted a letter addressed to the Registrar which he wanted to be placed before me raising my attention “on matters which he might have overlooked in an attempt to deal expeditiously with the proceedings before him” to use the applicant's own words.

As a matter of comment, I read the letter, but, at that stage, the court was functus officio. I could not revisit the proceedings.

I opted not reply the letter, serve to mention, that, the very points raised by the applicant had been extensively covered by the applicant in a document he produced in court.

I had read the document, and, in principle, covered the chronicle of what has built up in the matter before the application.

I wonder why the applicant assumed that I had not appreciated what he had submitted, but, presumably because I had dismissed his application, he thought that I had missed the point.

I had not...,.

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

It has been said that;“…, where the judgment sought to be rescinded was given in default; no question of a final judgment having been given on the merits can arise. Hence, no considerations of functus officio or res judicata apply to thwart an application for rescission. In such a case, ...

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HH110-13 : THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE vs ABEDINICO BHEBHE and NJABULISO MGUNI and NORMAN MPOFU Ruled By: CHIWESHE JP

HH56-14 : MABWE MINERALS ZIMBABWE PL vs CHIROSWA MINERALS PL and BASE MINERALS PL and ORBERT MPOFU (Minister of Mines) and THE ATTORNEY GENERAL N.O. and MRS E. KAHONDE N.O. (Mining Commissioner) Ruled By: CHIGUMBA J

HH22-15 : MILTON MADYAUTA vs MAZVIONA MADZIVA Ruled By: UCHENA J and MWAYERA J

HH631-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBIT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF Ruled By: MAFUSIRE J

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O. Ruled By: MANGOTA J

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

HH57-16 : MOSES PIKAI SHONIWA vs NYUKWA SHONIWA (NEE MAZENGEZA) Ruled By: CHITAPI J

HH343-15 : SOURCE-NET (PVT) LTD and NELSON BANYA and ALFONCE MBIZWO and BERNARD MPOFU vs STEWARD BANK LIMITED and ECONET WIRELESS Ruled By: MUSAKWA J

HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS Ruled By: MATHONSI J

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY Ruled By: CHIGUMBA J

HMA01-18 : MAIN ROAD MOTORS and SYLVIA CHORUWA and PATRICK MUGUTI vs ZIMBABWE REVENUE AUTHORITY and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT and ATTORNEY GENERAL Ruled By: MAFUSIRE J

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA Ruled By: MAKARAU JA, GOWORA JA and BERE JA

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST Ruled By: CHIGUMBA J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST Ruled By: CHIGUMBA J

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

HH517-15 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED Ruled By: MUREMBA J

SC57-20 : TENDAI BONDE vs NATIONAL FOODS LIMITED Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE Ruled By: GUVAVA JA

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA Ruled By: CHITAPI J

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE Ruled By: GOWORA J

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE Ruled By: TAGU J

View Appeal HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: CHITAPI J

Appealed SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS Ruled By: CHITAPI J

Appealed SSC25-21 : ROBERT GUMBURA vs THE STATE Ruled By: BHUNU JA

View Appeal HHH03-21 : ROBERT GUMBURA vs THE STATE Ruled By: CHITAPI J

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA Ruled By: DUBE J

SC50-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and HONOURABLE RETIRED JUSTICE SMITH vs GOOD LIVING REAL ESTATE (PVT) LTD Ruled By: GWAUNZA DCJ, BHUNU JA and MAKONI JA

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

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION Ruled By: MUZENDA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O. Ruled By: CHIGUMBA J

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Zimbabwe

HH107-12 : TAWANDA LAMECK MUZONDA and TICHAONA MCDONALD MUZONDA AND THREE OTHERS vs LORRAINE USAYIWEVHU AND DEPUTY SHERIFF CHITUNGWIZA AND ONE OTHER
Ruled By: MUTEMA 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

HH35-12 : DEBRAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: GUVAVA J

HH157-12 : JOROME OKEKE vs CHIEF IMMIGRATION OFFICER
Ruled By: MTSHIYA J

HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

HB43-09 : THULANI NDLOVU vs SHEPERD MUKURUVA and GRACE MUGWAGWA and REGISTRAR OF DEEDS
Ruled By: NDOU J

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

HH232-10 : ANDREW RICHARD BRUFORD vs THE ATTORNEY GENERAL and THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MAGISTRATE JARABINI and OTHERS
Ruled By: CHIWESHE JP

View Appeal
HH233-10 : YAKUB SURTEE vs SHAUN EVANS and PAUL FRIENDSHIP and COLLIN MacMILLIAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL
Ruled By: MTSHIYA J

HH276-10 : DAVID CHIGODORA and NELIA CHIGODORA vs THOMAS C. T RODRIGUES and THOMAS C.T. RODRIGUES (N.O.) and THE REGISTRAR OF DEED and THE MASTER OF THE HIGH COURT and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

HB51-10 : MORRIS CHINGUWA vs SIPHO NYONI and MAGISTRATE ZVISHAVANE and MR MUTSUNGUMA N.O. THE MESSENGER OF COURT/D/SHERIFF
Ruled By: MATHONSI J

HH110-13 : THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE vs ABEDINICO BHEBHE and NJABULISO MGUNI and NORMAN MPOFU
Ruled By: CHIWESHE JP

HH56-14 : MABWE MINERALS ZIMBABWE PL vs CHIROSWA MINERALS PL and BASE MINERALS PL and ORBERT MPOFU (Minister of Mines) and THE ATTORNEY GENERAL N.O. and MRS E. KAHONDE N.O. (Mining Commissioner)
Ruled By: CHIGUMBA J

HH22-15 : MILTON MADYAUTA vs MAZVIONA MADZIVA
Ruled By: UCHENA J and MWAYERA J

HH631-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBIT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF
Ruled By: MAFUSIRE J

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O.
Ruled By: MANGOTA J

SC32-18 : ZESA HOLDINGS (PRIVATE) LIMITED vs ITAYI UTAH
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

HH57-16 : MOSES PIKAI SHONIWA vs NYUKWA SHONIWA (NEE MAZENGEZA)
Ruled By: CHITAPI J

HH343-15 : SOURCE-NET (PVT) LTD and NELSON BANYA and ALFONCE MBIZWO and BERNARD MPOFU vs STEWARD BANK LIMITED and ECONET WIRELESS
Ruled By: MUSAKWA J

HB160-16 : VICTORIA FALLS MUNICIPALITY vs S. C MUTARE N.O and DICKSON MUKOMBWE AND 16 OTHERS
Ruled By: MATHONSI J

HH151-15 : CMED (PRIVATE) LIMITED vs KENNETH MAPHOSA and SHERIFF OF ZIMBABWE N.O. and ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

HMA01-18 : MAIN ROAD MOTORS and SYLVIA CHORUWA and PATRICK MUGUTI vs ZIMBABWE REVENUE AUTHORITY and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT and ATTORNEY GENERAL
Ruled By: MAFUSIRE J

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

HH517-15 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MUREMBA J

SC57-20 : TENDAI BONDE vs NATIONAL FOODS LIMITED
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE
Ruled By: GUVAVA JA

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH76-11 : SIBANGALIZWE DHLODHLO vs DEPUTY SHERIFF FOR MARONDERA and SHERIFF FOR ZIMBABWE and KANTOR & IMMERMAN and WATERSHED COLLEGE
Ruled By: GOWORA J

HH214-14 : TETRAD INVESTMENT BANK LIMITED vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: TAGU J

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

Appealed
SSC25-21 : ROBERT GUMBURA vs THE STATE
Ruled By: BHUNU JA

View Appeal
HHH03-21 : ROBERT GUMBURA vs THE STATE
Ruled By: CHITAPI J

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

SC50-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and HONOURABLE RETIRED JUSTICE SMITH vs GOOD LIVING REAL ESTATE (PVT) LTD
Ruled By: GWAUNZA DCJ, BHUNU JA and MAKONI JA

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

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC03-17 : CUTHBERT CHAWIRA and OTHERS vs MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS and THE COMMISSIONER OF PRISONS AND CORRECTIONAL SERVICES and THE ATTORNEY GENERAL
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J