Subpoena re: Subpoena Duces Tecum or Judicial Order for the Production of Documents and the Rule of Relevance

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

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 ...

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED
Ruled By: GOWORA J

The defendant has considered issuing a subpoena docus tucum for the production of minute books.

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

The defendant only made available the profit and loss account documents...., after an adjournment was sought by the plaintiff's legal practitioner for that purpose.

SC36-17 : NETONE CELLULAR (PRIVATE) LIMITED and REWARD KANGAI vs ECONET WIRELESS (PRIVATE) LIMITED and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

This is an appeal against the judgment of the Fiscal Appeal Court dismissing an application by the appellants to set aside a subpoena duces tecum issued by the Registrar of that court on 9 February 2015. The first appellant is Netone Cellular (Pvt) Ltd (Netone) and the second appellant is its Managing Director (Reward ...

The first appellant is Netone Cellular (Pvt) Ltd (Netone) and the second appellant is its Managing Director (Reward Kangai), while the first respondent is Econet Wireless (Pvt) Ltd (Econet) and the second respondent is the Zimbabwe Revenue Authority (ZIMRA).

The subpoena in question was issued by the Registrar pursuant to an order of the court in terms of section 6 of the Fiscal Appeal Court Act [Chapter 23:05]. It directed Reward Kangai to testify and produce documents relating to customs duty on certain base stations imported by Netone from October 1998 to November 2013. This testimony was required by Econet for the purpose of its appeal in the main case (FA 01/14) in which it had appealed against the decision of the Zimbabwe Revenue Authority imposing retrospective duty of US$15.8 million and a 300 per cent penalty of US$47.6 million on the importation of base station components from 2009 to 2013. Econet had originally intended to call a former clearing agent who had cleared components on behalf of Netone to show that it was being discriminated against in the imposition of duty by the Zimbabwe Revenue Authority.

Netone objected to this clearing agent being called to testify, while the Zimbabwe Revenue Authority claimed taxpayer privilege and that it was not the custodian of the documents required.

In their application to set aside the subpoena, the appellants challenged its issuance on the grounds that it was invasive and also incompetent in its scope and reach.

In a very detailed judgment, the court a quo ruled that the requested documents were relevant to the determination of the real issues between Econet and the Zimbabwe Revenue Authority in the main appeal. It reasoned that the appellants were competent and compellable witnesses and that their right to privacy was countervailed by Econet's right of access to information and right to a fair trial. Moreover, although the collation of the documents was arduous it was not an impossible task since the documents required had been particularised. They were necessary to establish whether or not the Zimbabwe Revenue Authority was treating Econet in a discriminatory fashion. Consequently, the court dismissed the application and ordered each party to bear its own costs.

The grounds of appeal herein may be summarised as follows:

(i) That the evidence in question could be obtained from the Zimbabwe Revenue Authority itself;

(ii) That the subpoena issued was unduly oppressive and invasive of Netone's right to privacy as well as being vexatious in its specific identification of Reward Kangai; and

(iii) That the subpoena was too generalised and a trawling retaliatory measure in abuse of court process and in breach of the right to protection of the law.

The appellants pray that the judgment of the court a quo be overturned and substituted so as to grant their application to set aside the impugned subpoena with costs.

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

This is an appeal against part of the judgment of the Fiscal Appeal Court dismissing an application to set aside a subpoena duces tecum issued against the appellants. The first appellant and the first respondent are both mobile network providers operating in Zimbabwe. At the time of the institution of proceedings in the court a quo the second appellant was ...

This is an appeal against part of the judgment of the Fiscal Appeal Court dismissing an application to set aside a subpoena duces tecum issued against the appellants.

The first appellant and the first respondent are both mobile network providers operating in Zimbabwe. At the time of the institution of proceedings in the court a quo the second appellant was the Chief Executive Officer of the first appellant and was referred to as its Managing Director. The second respondent is the authority mandated with the collection of taxes and other dues on behalf of the fiscus.

The first respondent is involved in litigation with the second respondent, before the Fiscal Appeal Court, concerning the reach and ambit of certain classification and tariff rulings on imported base stations for the purpose of calculating import duty. During those proceedings, the first respondent alleged that it was being discriminated against as other companies which also imported base stations in connection with the provision of mobile networks were taxed differently to itself. A specific allegation was made that the first appellant, in particular, had been accorded a privileged treatment based on its ties with the Government. In the dispute between them the first respondent wished to be treated in the same manner as the first appellant.

In order to prove the allegation, the first respondent made efforts to call, as a witness on its behalf, a former clearing agent who had been engaged by the first appellant to clear base station components imported by the latter. The first respondent claimed that the base stations in question were classified under the duty free tariff regime and it required the witness to testify and show that the first respondent was being discriminated against in violation of its rights. On becoming aware of this intention the first appellant declined to consent to the agent testifying or producing any documents relating to the importation of the base stations.

The first respondent, as a consequence, applied, in terms of section 6(1) and (2) of the Fiscal Appeal Court Act (the Act) for the leave of the court to subpoena the second appellant to appear before the court and produce documents relating to the clearance of the first appellant's base stations.

The second respondent's counsel was not opposed to the issuance of a subpoena in relation to the second appellant.

Neither appellant was before the court as they were not parties to the dispute. No papers, apart from the subpoena itself, were served upon them in relation to the subpoena. The court ruled that the second appellant should be subpoenaed to appear in court on the next day. The issued subpoena reads:

“To: Reward Kangai

Of NetOne Cellular (Pvt) Ltd, 16^th Floor Kopje Plaza Building, 1 Jason Moyo Avenue, Harare.

You are required and directed to attend before the Fiscal Appeal Court of Zimbabwe, at the Fiscal Appeal Court, Harare on the 10^th day of February 2015 at the hour of 10 o'clock in the morning and so from day to day until the above case is tried, to give evidence on behalf of the Appellant, and also to bring with you and produce at the time and place aforesaid all the import documents, namely, bills of entry, packing lists, invoices and proof of payment of any duty relating to importation of base stations and base station component by Net One duly stamped by the Zimbabwe Revenue Authority at the ports of entry where these base stations or base station parts or components entered into the country for the whole period commencing October 1998 and ending 30 November 2013.”

In answer to the subpoena, the second appellant appeared before the court and sought a postponement to seek proper legal advice. On 17 February 2015, the second appellant's legal practitioners addressed a letter to the first respondent's legal practitioners requesting a detailed report of the case before the court and the reasons why their client's testimony was required. The first respondent's legal practitioners responded by letter dated 26 February 2015 stating that their client was of the view it was being discriminated against as it believed that the first appellant's base stations were being imported duty free.

In a letter dated 4 March 2015, the second appellant, through his legal practitioners, objected to testifying. The reasons advanced in the letter are captured in the excerpt below:

(a) The issues to be adjudicated upon by the Honourable Court have no bearing on the evidence that you seek to be adduced from our client. There is clearly no need to call our client to testify and to prove or disprove any of the issues before the court.

(b) The evidence required from our client will not serve any material purpose to the case before the court because whether or not our client paid duty on the relevant components is not the determining factor on whether or not your client should or should not pay the duty.

(c) The evidence that you seek to adduce from our client, and, in particular, the documents our client must produce, are documents confidential to it and to its business. Your subpoena's effect is to call upon our client to disclose its private business making the disclosure to the public, and, most objectionably, to its competitor (your client).

(d) Our client has a constitutionally-protected right to privacy as it is not a party to this pending case. The subpoena, and the nature of the evidence required from our client, constitutes a gross invasion of this right. There is no basis upon which our client can justify the infringement of this right to the court.

(e) The subpoena also states that the Managing Director, Reward Kangai, is the one who should come to testify. The Managing Director is also required to bring several bulky documents dating back to 1998. All of the documents demanded are operational in nature hence their confidential status aforesaid and the Managing Director subpoenaed is not the custodian of these documents. As such what this subpoena demands is also legally untenable.

(f) It is clear from the afore-going that the subpoena served on our client is actually an abuse of court process and must therefore be set aside.

Notwithstanding the objections spelt out in the letter, the first respondent persisted with its demand that the second appellant appear in court or face contempt of court charges. As a result, the appellants applied to the Fiscal Appeal Court, on 17 March 2015, for an order for the setting aside of the subpoena duces tecum.

The court a quo found that the requested documents were relevant to the determination of the real issues between the first and second respondents and that the first appellant's right to privacy was countervailed by the first respondent's right to access of information. Relating to the second appellant, the court held that he was a competent and compellable witness and could testify on the pertinent issues found in the subpoenaed documents. The court also held that the scope and reach of the documents was unavoidable given the nature of a base station. Ultimately, the court refused to set aside the subpoena and dismissed the application.

The appellants were aggrieved by the decision and appealed to this Court on the following grounds:

1. The court a quo erred in failing to consider that the evidence which the first respondent wanted to force the appellants to produce is in the possession of the second respondent and the first respondent could consequently enforce production of same from the party against whom it seeks substantive relief.

2. A fortiori the court a quo erred in not concluding that the taking out of the subpoena was consequently an exercise in mischief and was meant to be unduly oppressive to the appellants under circumstances where such invasion was contrary to the appellant's right to privacy.

3. Having come to the conclusion that what was at issue was a subpoena duces tecum, the court a quo erred in failing to consider that such a subpoena does not require the testimony of a particular person and that the identification of the second appellant on the subpoena was vexatious and unduly burdensome.

4. The court a quo erred in failing to come to the conclusion that the impugned subpoena was far too generalized and speculative; being, in essence, a trawling exercise in search of unknown evidence.

5. Regard being had to the circumstances under which it was taken, the court a quo erred in not concluding that the subpoena duces tecum was a retaliatory measure, and is, on consideration of that circumstance, an abuse of court process and is in breach of the appellants' right to the protection of the law....,.

I turn now to the substance of the appeal.

The first appellant took issue with the fact that the subpoena specifies an individual to come and testify. It submitted that the court a quo failed to appreciate that the subpoena issued in this matter is one duces tecum which does not require the attendance of a particular person on the premise that a subpoena duces tecum, which compels the production of documents, does not, in the same vein, require the giving of oral testimony. For this submission, the appellant relied on the case of Poli v Minister of Finance and Economic Development & Anor 1987 (2) ZLR 302 (SC) in which DUMBUTSHENA CJ quoted Fisher v United States (1976) 425 US 391;48 Led 2d 39 where it was stated:

“A subpoena that demands production of documents 'does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought.”

In my view, this authority is support for the principle that a subpoena duces tecum can only demand the production of documents as opposed to compelling a witness give oral testimony. This fortifies the position taken by the appellants that a subpoena duces tecum could not demand the production of documents as well as compelling the attendance of a witness to give oral testimony on the documents being sought to be produced.

I must agree.

The court a quo made a finding that the second appellant was a competent and compellable witness and could testify on the pertinent issues found in the subpoenaed documents. Whilst the appellants have not challenged this finding, which in any event they could not, such finding does not, however, sanction the summoning of the second appellant to give oral testimony on the basis of a subpoena duces tecum.

The impugned subpoena was issued by the court a quo following an application by the first respondent in terms of section 6 of the Fiscal Appeal Court Act, which provides as follows:

“6 Summoning and privileges of witnesses

(1) The Court shall have power to summon witnesses, to call for the production of and grant inspection of books and documents and to examine witnesses on oath.

(2) A subpoena for the attendance of witnesses or the production of books or documents shall be signed by the Registrar of the Court and served in the same manner as if it were a subpoena for the attendance of a witness at a civil trial in a Magistrates Court.

(3) Any person subpoenaed to give evidence or to produce any book or document or giving evidence before the Court shall be entitled to the same privileges and immunities as if he were subpoenaed to attend or were giving evidence at a trial in the High Court.”

Although in Poli v Minister of Finance and Economic Development & Anor 1987 (2) ZLR 302 (SC) the learned Chief Justice sought reliance from an American authority on this issue, it is a principle of our law of evidence which seems to have been settled in Waterhouse v Shields 1924 CPD 115, wherein GARDINER J made the following remarks:

“As far as I have been able to ascertain there is no such general provision in our statutes with regard to civil cases, but seeing that in criminal cases, and in many instances in civil cases, the law of England in regard to evidence, where there is nothing to the contrary in our law, is to be followed, it seems to me as a general rule we should follow the law of evidence in England. Our system of procedure and our practice is based, in the main, upon the English system and not upon the system which used to prevail in the Courts of Holland. Now, in England, if a witness is subpoenaed duces tecum, and is simply called to produce, without giving evidence or identifying the documents, he need not be sworn.”

This position of the principle underlying the subpoena duces tecum was confirmed in Bladen and Another v Weston and Another 1967 (4) SA 4129..., where CORBETT J..., had occasion to remark:

“It would appear from authorities quoted by counsel for the applicants that the procedure whereby a witness who is subpoenaed duces tecum, to produce documents, is not initially required to go into the witness-box and take an oath prior to producing those documents to the Court, is basically one of convenience. It is also probably dictated partially by the undesirability of such a witness being exposed to a lengthy cross-examination on the case generally.”

In my view, these authorities fortify the position taken by the appellants that a subpoena duces tecum could not demand the production of documents as well as compelling the attendance of a witness to give oral testimony on the documents being sought to be produced.

In their book, Principles of Evidence, 3ed, the learned authors SCHWIKKARD and VAN DER MERWE..., state that a person who attends court in obedience to a subpoena duces tecum is not necessarily a witness, and, consequently, need not take an oath unless he is required to prove the document, that is where he is required to go onto the witness stand and hand in a document.

In addition, it seems to me that a reading of section 6 of the Fiscal Appeal Court Act would further confirm that the submission by the appellants, on the nature and intent behind a subpoena duces tecum as being one for the production of documents and not the giving of oral testimony is, in fact, correct. Certainly, from a perusal of the provision there does not appear to be a requirement that the production of documents by a witness must be accompanied by oral evidence in proof of the same. This construction of the provision is keeping with the views expressed by DUMBUTSHENA CJ in Poli v Minister of Finance and Economic Development & Anor 1987 (2) ZLR 302 (SC).

In my view, within our jurisdiction, the above authority is support for the principle that a subpoena duces tecum can only demand the production of documents as opposed to compelling a witness give oral testimony.

It is legally incompetent for a subpoena duces tecum to compel the giving of oral testimony on the premise that, by its nature, it demands the production of documents. A subpoena duces tecum differs from a standard subpoena, also known as a “subpoena ad testificandum,” because the subpoena duces tecum does not require the person named in it to give oral testimony. Instead, the subpoena duces tecum only orders the person to produce the items stated in the document.

On this basis alone, the court a quo should have found that the subpoena, as framed by the first respondent, could not stand, and, consequently, had to be set aside.

In my view, this ground, on its own, is capable of disposing of the appeal. However, the other issues raised sufficiently pertinent legal issues calling for their determination.

I will now proceed to deal with the remainder of the issues raised by the parties which are:-

1. Whether or not the subpoena duces tecum is an abuse of court process.

2. Whether or not the subpoena duces tecum violates the appellant's right to privacy.

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

1. Whether or not the subpoena duces tecum is an abuse of court process It is submitted, by the appellants, that the subpoena was an abuse of court process. The appellants submit that the subpoena itself has nothing to do with the pursuit of the truth and that it is oppressive, thus constituting an abuse of court process. What constitutes ...

1. Whether or not the subpoena duces tecum is an abuse of court process

It is submitted, by the appellants, that the subpoena was an abuse of court process. The appellants submit that the subpoena itself has nothing to do with the pursuit of the truth and that it is oppressive, thus constituting an abuse of court process.

What constitutes abuse of process was discussed in Beinash v Wixley 1997 (3) SA 721 (SCA) by MAHOMMED CJ..., as follows:

“There can be no doubt that every court is entitled to protect itself, and others, against an abuse of its processes. Where it is satisfied that the issue of a subpoena in a particular case indeed constitutes an abuse it is quite entitled to set it aside. As was said by De VILLIERS JA in Hudson v Hudson and Anor 1927 AD 259 at 268:

'When…, the court finds an attempt made to use, for ulterior purposes, machinery devised for the better administration of justice, it is the duty of the Court to prevent such abuse.'”

Whether a proceeding or certain conduct related thereto constitutes an abuse of the process of the court is a matter which can only be determined by the circumstances of each case. Consequently, there can be no all-encompassing definition of the concept of abuse of processes. However, it can be said, in general terms, that an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective.

See Standard Credit Corporation Ltd v Bester and Others 1987 (1) SA 812 (W)...,.; TAITZ, The Inherent Jurisdiction of the Supreme Court (1985)...,.

It is trite that any document may be made the subject of a subpoena duces tecum if it is or may be relevant to the conduct of the litigation by the party seeking its production. That said, a subpoena duces tecum must have a legitimate purpose.

(The unreported judgment of MARAIS J in the WLD, Wachsberger v Wachsberger, on 8 May 1990, in case no.8963/90; and the unreported judgment of PLEWMAN J in the WLD, on 6 October 1993, in the case of Lincoln v Lapperman Diamond Cutting Works (Pty) Ltd 17411/93).

What can be gleaned from the above remarks is that a court should not permit a subpoena duces tecum to be used to pursue a motive other than the securing of evidence by the party requiring it which is important to advance its case. In other words, the party seeking to issue a subpoena duces tecum should show that it has a legitimate purpose.

In the court a quo, the first respondent was able to show that the classification by the second respondent of parts of base stations imported by the first appellant is relevant to the classification of the same equipment imported by other importers. This is important in the determination of whether or not the second respondent is discriminating against the first respondent which is the substance of pending proceedings before the Fiscal Appeal Court.

However, given the background to the dispute between the two parties, the scope of the subpoena is questionable.

The first appellant is required, in terms of the subpoena, to produce to the court, and to the first respondent, documents dating back to 1998 in a matter that involves importation of base station components during the period extending from 2009 to 2013. The appellants contend that this is clearly untenable in light of the voluminous nature of the documents which would place an overbearing burden on the first appellant.

The court a quo made the following observation:

“The scope and reach of the documents is unavoidable given the nature of a base station. It appears that the nature of the base stations require the importation in the form of un-assembled, complete, knocked down CKD components. The components are numerous and result in the production of as many documents in the form of packing lists and bills of entry. Collating these documents is an arduous but not impossible task. It is hard work, and, to that extent, burdensome but not in the futile pejorative sense.”

The above dictum shows that the learned judge a quo appreciated the burdensome nature of the subpoena issued against the second appellant.

In my view, once the court a quo found that the extent of the subpoena was burdensome, it ought to have related to the period over which documents were being sought to be produced. It was necessary, in view of the inclusion of a period in the subpoena pre-dating the source of the dispute, for the court to have decided on the issue of the relevance for the inclusion of that period in the exercise. After all, discovery in litigation is a process meant for securing evidence in the pursuit of truth in the particular dispute. The relevance of documents predating the issues before the court a quo should have exercised its mind in deciding whether to set aside the subpoena or to uphold it.

The learned Judge, however, failed to consider that not all required documents were necessary to advance the first respondent's case. The fact that the documents were named does not clothe them with the particularity required for the issue of a subpoena duces tecum when one considers that they span over fifteen years. What emerges is that the first respondent is not sure which documents will specifically show that it is being discriminated against and hopes to find its answer in the requested documents.

This is the kind of disclosure that courts frown upon.

In Arab Monetary Fund v Hashim and Others [1992] 2 All ER 911 (No.5), HOFFMAN J had occasion to comment on the oppressive effect of a subpoena duces tecum lacking specificity. This is what he had to say…,:

“What he did say, however, was that the terms of PETER GIBSON J's order were so general in identifying the categories of documents to be disclosed that they were an oppressive use of the Bankers Trust procedure against a third party. They required the solicitors to go through their documents and make the sort of selection which would normally be required of a party to the action by way of discovery. It is of course well established that a third party liable only to be called as a witness or under subpoena duces tecum cannot be required to produce documents by relevance to issues but must be given more specific detail of what documents are required...,. The specificity of the order can, in my view, be sufficiently dealt with by making amendments to the schedule.”

A subpoena duces tecum cannot be used indiscriminately, as though one was on a "fishing expedition." Only specific documents relevant to the case can be requested. General, sweeping requests are improper - and this is one such request.

As the Second District Court of Appeal in America said in Walter v Page, 638 So.2d 1030 (Fla. 2d DCA 1994):

“We agree with the appellant that the subpoena duces tecum was too broad. The rule authorizing a subpoena duces tecum requires some degree of specificity and the documents or papers sought should be designated with sufficient particularity to suggest their existence and materiality. Palmer v. Servis, 393 So.2d 653 (Fla. 5th DCA 1981); Fla.R.Civ.P. 1.350(a). The subpoena in the instant case was too broad in seeking virtually all of appellant's personal financial documents. The subpoena duces tecum is not the equivalent of a search warrant, and should not be used as a fishing expedition to require a witness to produce broad categories of documents which the party can search to find what may be wanted.”

These remarks are apposite.

A court should be wary of permitting litigants to use the machinery of a subpoena duces tecum to request large amounts of information in the hopes that some of it may prove useful. An order for the production of documents under such subpoena should not be given unless the court is of the opinion that the documents are necessary for disposing, fairly, of the cause or matter.

The impugned subpoena is a dragnet sweeping every fish in its path to see if a particular species turns up in the net. The subpoena does not pass the test of bona fides. Even though a litigant is entitled to seek the production of documentation that he alleges would be vital in the prosecution of his case, the request for such production must relate to the dispute which is being litigated. There can be no justification for a subpoena that defies the rules for relevance in court proceedings.

The contention by the appellants that the subpoena is an exercise in mischief would appear to be well founded.

It is an established principle that the purpose of a subpoena duces tecum is that of obtaining evidence and is not meant for purposes of obtaining mere discovery which might lead to something else. The appellants are being asked to discharge a duty which should rightfully, in this case, fall upon the second respondent.

The view I take is that, in casu, the subpoena does not constitute a genuine exercise by a litigant to prosecute a dispute. It was not shown, in the court below, that the subpoena, wide as it is, was necessary for disposing, fairly, of the cause or matter. It cannot be allowed to stand in the circumstances because it is clearly an abuse of process and the court has inherent power to prevent this abuse. – see Makaruse v Hide and Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S).

The court a quo, therefore, erred in failing to find that the subpoena was an abuse of process.

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

2. Whether or not the subpoena duces tecum violates the appellants' right to privacy The appellants submit that upholding the subpoena duces tecum will undermine the first appellant's right to privacy, and, in the process, would constitute a contravention of both the Constitution and common law principles relating to privacy. Section 57 of the Constitution of Zimbabwe, 2013 provides that every ...

2. Whether or not the subpoena duces tecum violates the appellants' right to privacy

The appellants submit that upholding the subpoena duces tecum will undermine the first appellant's right to privacy, and, in the process, would constitute a contravention of both the Constitution and common law principles relating to privacy.

Section 57 of the Constitution of Zimbabwe, 2013 provides that every person has a right to privacy. The right to privacy was explained in Gaertner and Others v Minister of Finance and Others [2013] ZACC 38; 2014 (1) SA 442 (CC) as follows:

“The right to privacy embraces the right to be free from intrusions and interference by the State and others in one's personal life.”

Simply put, every person has a right not to be subjected to scrutiny of his or her personal life or business. The right is also accorded to juristic persons.

However, while this right is protected, it is subject to limitations. Section 86(2) of the Constitution provides for the limitations of rights and freedoms as follows:

“(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including -

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.”

This provision is clear that derogation from a fundamental right is permissible if two conditions are fulfilled.

These are;

(i) Firstly, that it should be prescribed in terms of a law of general application; and

(ii) Secondly, that such derogation is fair, reasonable, and justifiable in a democratic society.

The limitation in casu is prescribed in terms of section 6(1) and (2) of the Fiscal Appeal Court Act [Chapter 23:05] which gives the court power to summon witnesses, to call for the production of and grant inspection of books and documents and to examine witnesses on oath; therefore, that requirement of it being prescribed by a law of general application is satisfied.

What is reasonably justifiable in a democratic society is a concept which cannot be defined with precision. As this Court said in Re Munhumeso & Ors 1994 (1) ZLR 49 (S)...,:-

“What is reasonably justifiable in a democratic society is an elusive concept - one which cannot be precisely defined by the courts. There is no legal yardstick save that the quality of reasonableness of the provision under challenge is to be judged according to whether it arbitrarily invades the enjoyment of a constitutionally guaranteed right. See, generally, Commissioner of Taxes v CW (Pvt) Ltd 1989 (3) ZLR 361 (S) at 370F-372C, 1990 (2) SA 260 (ZS) at 265B-266D.”

The import of these remarks is that the limitation imposed on a right should not arbitrarily infringe upon the right guaranteed in the Constitution.

It is the appellant's case that the subpoena issued in compliance with the law arbitrarily infringes upon its right to privacy.

The court a quo, as highlighted, made a finding that the appellants' right to privacy is counterveiled by other rights, such as the first respondent's right of access to information. This position is supported in Bernstein v Bester NO1996 (2) SA 751 (CC)..., where the following pronouncement was made:

“The truism that no right is to be considered absolute implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy, this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but, as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.”

This constitutes confirmation that the right to privacy can be limited by other rights that accrue to other citizens and that as an individual engages with the community in business or other social interactions, the scope of such right becomes limited.

Whilst this principle is accepted, the appellants contend that the subpoena issued by the first respondent was too wide in its scope such that it cannot be accepted as fair and justifiable in a democratic society. It allows the first respondent to have access to its competitor's information; which information has not been shown to be necessary for the advancement of its cause. In fact, no attempt has been made to justify its wide ambit. The only issue upon which the first respondent relies is that the first appellant is its competitor in the provision of cellular services and it wishes to find evidence that it was being treated differently by the second respondent. It has not justified the intrusion in respect of the period from 1998 to 2009.

The lack of particularity and specificity of the subpoena opens avenues for an unwarranted invasion of the first appellant's privacy.

The first respondent, in its heads of argument, cites the English case of Home Office v Marman [1982] 1 All ER 532, 540 where the following view was expressed:

“Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest, in securing that justice, is done between parties, is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place on a litigant any harsh or more oppressive burden than is strictly required for the purpose of securing that justice is done. In so far as that must necessarily involve a certain degree of publicity being given to private documents, the result has to be accepted as part of the price of achieving justice.”

This case buttresses the point that invasion of privacy, when permissible, should be rational and should not unnecessarily place a harsh and oppressive burden on the party whose right is infringed. When the first appellant's right to privacy is weighed against the other rights that accrue to the first respondent, it is clear, in the circumstances of this case, that the first appellant's right to privacy must prevail.

Unless justification has been clearly established for such, no person or litigant should have their private information indiscriminately summoned to court - even for the purpose of protecting other rights.

In the event, the subpoena should not have been upheld, primarily on three grounds;

(i) Firstly, that it was wrongly taken by requesting the second appellant to personally attend at court and testify orally on the documents.

(ii) Secondly, the subpoena was clearly a fishing exercise; and

(iii) Lastly, that it constituted an unwarranted invasion of the first appellant's privacy on the part of the first respondent.

Thus, the court a quo should have set aside the subpoena duces tecum....,.

In the result the following order will issue:

1. The instant appeal succeeds.

2. The judgment of the court a quo is set aside and in its place is substituted the following:

“The application is granted in terms of the draft order, and, accordingly:

(i) The subpoena duces tecum issued in this matter by the Registrar of the Fiscal Court on the 9^th of February 2015 be and is hereby set aside.

(ii) The first respondent shall bear the costs of suit.”

HH278-17 : DAVID LUWO and ROSE LUWO vs DOWOOD SERVICES (PVT) LTD and RAILING ENTERPRISES (PVT) LTD
Ruled By: MOYO J

At the hearing of this matter I dismissed it by consent with costs at the legal practitioner and client scale. I was then served with a letter requesting for reasons. Here are the reasons. The point in limine raised was never argued hence I have no deliberation to make on it. In any event, as submitted ...

At the hearing of this matter I dismissed it by consent with costs at the legal practitioner and client scale. I was then served with a letter requesting for reasons. Here are the reasons.

The point in limine raised was never argued hence I have no deliberation to make on it. In any event, as submitted by the respondent, it had no basis which could be the reason why the applicants' counsel may have abandoned it.

On the merits, the respondent's counsel conceded that the application had absolutely no merit and that in fact it amounted to an abuse of court process.

This is a very interesting case, which is unprecedented and does not find its roots in the High Court Rules. In other words, both the substance, the procedure and the relief sought do not derive their existence from any precedent, nor text, statute, nor the High Court Rules. It was just crafted by the applicants from their imagination.

The application is for an order compelling the respondent to provide certain evidence to the applicants, which evidence supports a judgment debt in HB171-13. The applicants also seek “leave” to make an application for rescission of judgment in terms of Rule 449 of the High Court Rules.

Surprisingly, the applicants are aware that applications in this court are made in terms of rules as they state that they intend to make an application in terms of Rule 449; however, this particular application is made in terms of no precedent, no law, no rule. It is unprecedent, unheard of and unnecessary in fact for this court to revisit a finalized matter before it and start ordering one party to provide evidence in support thereof.

This is not only absurd but it is senseless.

This court has tried a matter, gone through the evidence before it, and pronounced judgment in relation thereto. It then is being asked by the applicant to go back to a finalized matter and order the successful party to provide evidence in relation thereto.

I fail to find sense in this request.

The relief sought is improper as this court cannot order a party to provide evidence related to matters it has already deliberated upon. The request is in itself hollow and an abuse of court process. The matter is res judicata and if the applicants want to seek rescission, it is up to them depending on the merits of their case, but they certainly cannot file a spurious application seeking this court to revisit what it has finalised though a procedure not provided for the rules and which is not supported by any legal principle or statute.

Rule 4C, that the applicant refers to, was crafted to enable the court to condone a departure from the rules on given procedure warranting such departure and for good cause shown, it was never inserted in the rules so that applicants can abuse it by crafting unsubstantiated causes of action and non-existent procedural avenues.

Again, section 14 of the High Court Act, that the respondent refers to, does not apply to the applicant's case as there is no existing, future or contingent right or obligation that needs to be determined in this application. If any obligations or rights exist in this matter, they are the rights and obligations already determined in the judgment against the applicant and in favour of the respondent in HC171/13.

I awarded punitive costs because this application is frivolous and vexatious and is an abuse of court process. Refer to the case of Hayes v Baldachin 1980 (2) SA 589.

This application, being a clear abuse of court process, I dismissed it with costs at an attorney and client scale.

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

SUBPOENA DUCES TECUM It is necessary to deal with the issue of the subpoena duces tecum the applicant sought from a Judge in chambers. A subpoena duces tecum is a subpoena issued under an order of a court compelling a person to produce documents which the court is satisfied are relevant evidence of a matter under determination. A ...

SUBPOENA DUCES TECUM

It is necessary to deal with the issue of the subpoena duces tecum the applicant sought from a Judge in chambers.

A subpoena duces tecum is a subpoena issued under an order of a court compelling a person to produce documents which the court is satisfied are relevant evidence of a matter under determination. A court must first decide whether or not the documents sought to be produced under the force of a subpoena duces tecum are relevant as proof of the matter in issue. See Poli v Minister of Finance and Economic Development and Anor 1987 (2) ZLR 302 (SC); NetOne Cellular (Pvt) Ltd and Anor v Econet Wireless (Pvt) Ltd and Anor SC47-18.

On 20 August 2018, the applicant's legal practitioners sent copies of a subpoena duces tecum to the Registrar, with an accompanying written request that it be issued. The subpoena sought to compel the Zimbabwe Electoral Commission to produce its server at the hearing of the court application. The request that the subpoena be issued by the Registrar was placed before the Chief Justice. He gave the following direction:

“The decision whether or not the subpoena is to be issued is for the full Court to make after weighing the issue of relevance of the evidence to be produced.”

The decision was communicated to the applicant's legal practitioners by the Registrar by an accompanying letter on 21 August 2018 and received on the same day at 11:05am.

The evidence showed that the applicant believed that the Zimbabwe Electoral Commission had a server into which polling station returns (the V11 Forms) were electronically transmitted and stored. On 02 August 2018, the applicant's legal practitioner and his chief election agent met with the Chief Elections Officer on the issue of the alleged existence of the server. They were advised that the Zimbabwe Electoral Commission had no server for the transmission of election results. The law of elections does not have a provision requiring the electronic transmission of polling station returns to, and storage in, a server.

The applicant intended to use the process of the subpoena duces tecum for a purpose for which it was not designed. It appears that the applicant intended to use the subpoena for the purpose of searching for evidence.

In Net One Cellular (Pvt) Ltd and Anor v Econet Wireless (Pvt) Ltd and Anor SC47-18…, the Supreme Court said:

“It is trite that any document may be made the subject of a subpoena duces tecum if it is, or may be, relevant to the conduct of the litigation by the party seeking its production. That said, a subpoena duces tecum must have a legitimate purpose. (The unreported judgment of MARAIS J in the WLD Wachsberger v Wachsberger on 8 May 1990 in case No.8963/90 and the unreported judgment of PLEWMAN J in the WLD on 6 October 1993 in the case of Lincoln v Lapperman Diamond Cutting Works (Pty) Ltd 17411/93.)

The question of legitimacy of the subpoena sought was never determined by the Court. It remains unanswered, as no application for the subpoena was made to the Court to determine the matter - despite the applicant having been notified that this was required.

No-one knows what, in the circumstances, the decision of the Constitutional Court would have been had the application been made for the subpoena duces tecum to be issued compelling the Zimbabwe Electoral Commission to produce its server at the hearing of the application. No-one knows what the responses of the respondents would have been to such an application, had it been made, considering the requirements of sections 93(1) and 93(3) of the Constitution.

The applicant would have been required to show that he was not on a “fishing expedition”. Only specific documents relevant to the case would have been requested.

In NetOne Cellular (Pvt) Ltd and Anor v Econet Wireless (Pvt) Ltd and Anor SC47-18…, the Supreme Court said:

“A subpoena duces tecum cannot be used indiscriminately, as though one was on a 'fishing expedition'. Only specific documents relevant to the case can be requested. General, sweeping requests are improper and this is one such request. As the Second District Court of Appeal in America said in Walter v Page, 638 So.2d 1030 (Fla. 2d DCA 1994):

'We agree with the appellant that the subpoena duces tecum was too broad. The rule authorising a subpoena duces tecum requires some degree of specificity and the documents or papers sought should be designated with sufficient particularity to suggest their existence and materiality. Palmer v. Servis, 393 So.2d 653 (Fla. 5th DCA 1981); Fla.R.Civ.P. 1.350(a). The subpoena in the instant case was too broad in seeking virtually all of appellant's personal financial documents. The subpoena duces tecum is not the equivalent of a search warrant and should not be used as a fishing expedition to require a witness to produce broad categories of documents which the party can search to find what may be wanted.'

These remarks are apposite.

In Odinga and Anor v Independent Electoral and Boundaries Commission and Ors Presidential Election Petition No.1 of 2017 [2017] eKLR, contrary to the mandatory provisions of section 39(1c) of the Elections Act, after polling stations were closed on 8 August 2017 the Independent Electoral and Boundaries Commission (“IEBC”) inordinately delayed in the transmission of the results. It is reported that on 17 August 2017 (nine days after the elections) the IEBC's Chief Executive Officer allegedly admitted that IEBC had not received all scanned Forms 34A and 34B (which contained results from the polling stations). The court concluded…, that section 39(1C) was mandatory and provided the imperative for electronic transmission of results from the polling station to the National Tallying Centre.

Section 39(1c) of the Elections Act of Kenya reads:

“For purposes of a presidential election, the Commission shall -

(a) Electronically transmit, in the prescribed form, the tabulated results of an election for the President from a polling station to the Constituency Tallying Centre and to the National Tallying Centre;

(b) Tally and verify the results received at the National Tallying Centre; and

The delay by the Independent Electoral and Boundaries Commission (IEBC) to avail the scanned copies of the Forms 34A and 34B formed the basis for a conclusion that the security of the electronic system had been compromised thus exposing it to unlawful interference and manipulation of results by third parties. This rendered the presidential election a sham.

Odinga and Anor v Independent Electoral and Boundaries Commission and Ors Presidential Election Petition No.1 of 2017 [2017] eKLR is distinguishable from the present matter on two grounds;

(i) First, section 39(1C) of the Elections Act of Kenya provided for simultaneous electronic transmission of results from the polling stations to the Constituency Tallying Centre (“CTC”) and the National Tallying Centre (“NTC”) immediately after the counting process at the polling station.

It meant that whoever required access to the presidential election results or copies of the polling station logs would have to access the Independent Electoral and Boundaries Commission (IEBC) server upon request. The IEBC server was, by operation of the law, the repository of the primary evidence the petitioners needed for proof of the allegations they made against the respondents.

In Zimbabwe, the counting and transmission of the results is wholly manual.

The process involves counting of all the ballots at the polling station - in the presence of election agents of candidates who participated in the election. A polling station return, the V11 Form, is completed and countersigned by the election agents. The import of sections 64-65B of the Electoral Act [Chapter 2:13] is that they lay down the processes and procedures for the counting of votes, securing of the voting material and transmission of the polling station returns together with the election residue.

The results obtained at the polling station, together with the election residue, are transmitted, physically, to the Ward Centre, where a similar process of collating all the results from different polling stations is repeated. The results from the Ward Centre are then transmitted to the Constituency Centre. A similar process is repeated, culminating in the collated results for the constituency, again, being physically transmitted to the Constituency Centre, and, finally, to the National Command Centre.

This distinction in the processes is important in that it brings to the fore the fact that in the Kenyan system election results, together with the residue thereof, are to be transmitted electronically and received almost instantaneously from the polling station to both the Constituency Tallying Centre and the National Tallying Centre.

(ii) Second, and even more importantly, the Independent Electoral and Boundaries Commission (IEBC) had been requested to provide access to its server where the election results and residue were stored electronically. It refused, neglected or failed to provide the access to the petitioners. Further, an order of the court compelling the IEBC to allow the petitioners access to the requested material had not been complied with. On account of this failure to comply with the requests and order of the court, the Supreme Court of Kenya concluded…, that the Independent Electoral and Boundaries Commission (IEBC) had denied the petitioners access to primary evidence which could have debunked their claims. It said:

“[279] It is clear from the above that IEBC in particular failed to allow access to two critical areas of their servers: its logs which would have proved or disproved the petitioners' claim of hacking into the system and altering the presidential election results and its servers with Forms 34A and 34B electronically transmitted from polling stations and CTCs. It should never be lost sight of the fact that these are the Forms that Section 39(1C) specifically required to be scanned and electronically transmitted to the CTCs and the NTC. In other words, our Order of scrutiny was a golden opportunity for IEBC to place before Court evidence to debunk the petitioners' said claims. If IEBC had nothing to hide, even before the Order was made, it would have itself readily provided access to its ICT logs and servers to disprove the petitioners' claims.

But what did IEBC do with it? It contumaciously disobeyed the Order in the critical areas.

[280] Where does this leave us" (?)

It is trite law that failure to comply with a lawful demand, leave alone a specific Court Order, leaves the Court with no option but to draw an adverse inference against the party refusing to comply. In this case, IEBC's contumacious disobedience of this Court's Order of 28^th August 2017, in critical areas, leaves us with no option but to accept the petitioners' claims that either IEBC's IT system was infiltrated and compromised and the data therein interfered with or IEBC's officials themselves interfered with the data or simply refused to accept that it had bungled the whole transmission system and were unable to verify the data.”

In terms of the Electoral Law of Zimbabwe, if a Presidential candidate requires that a recount of votes in a Presidential election be conducted by the Zimbabwe Electoral Commission, he or she must make a written request for the re-count to the Commission within forty-eight hours of the announcement and before the declaration of the winner. The applicant had the opportunity to do so but consciously took a decision not to follow the law and make such a request. He was also free to apply to the Electoral Court, in terms of section 70(4) of the Electoral Act, for an order which would have given him the right of access to the primary evidence contained in the closed and sealed ballot boxes and the sealed packets. As a result, unlike in Kenya, there was no basis for the Court to conclude that the sealed residue contained different results from those announced by the Zimbabwe Electoral Commission or that such ballots had been tampered with in favour of the first respondent.

The ground on which the application challenging the validity of the Presidential election was premised was the allegation that officers of the body responsible for conducting and managing the election acted unlawfully and rigged the election result. It was said that the officers did so by crediting the first respondent, who was declared to be duly elected as President of the Republic of Zimbabwe, with votes not generated from the polling stations officially designated.

It would defeat the purpose of section 70(4) of the Electoral Act if the Court failed to hold to account an applicant who lodges a court application challenging the validity of a Presidential election, on the allegation that the Zimbabwe Electoral Commission rigged the election result, for failure to use primary evidence to prove the alleged rigging of the election result.

The reason is that the purpose of the requirements of the provisions of sections 56 and 57 (on the verification of the identity of the voters and the manner of voting), section 59 (on the procedure for voting by illiterate or physically handicapped voters), section 63 (the counting and rejection of votes), section 64 (the procedure after counting of votes at polling stations) and section 110 (the verification of constituency returns by the Chief Elections Officer and the declaration of the result of election to the Office of President), is to ensure that cases of rigging of the election result do not occur.

The Legislature made provision for strict compliance with the procedures of voting, counting of votes and verification of the constituency returns to guarantee transparency of the actions of the officers of the Zimbabwe Electoral Commission at every stage of involvement in the processes. The intention was that the products of the processes should constitute real and credible evidence of compliance with the law and a guarantee of the credibility of the election result….,.

If the applicant had placed before the Court the V11 Forms from all the polling stations where he had election agents, a simple analysis of those V11 Forms and comparison with the V11 Forms from the sealed packets would easily have achieved a number of positive results. The exercise would have resulted in the following benefits -

(a) It would have disposed of any questions regarding the number of votes for any given polling station or constituency;

(b) It would have addressed any question of over-voting;

(c) It would have debunked allegations of upsurges of voters after a particular time, as, for instance, what is alleged to have happened in Mashonaland Central Province;

(d) It would have addressed issues of differences in voting patterns and numbers of votes for Parliamentary and Presidential elections;

(e) It would also have addressed issues of improbability of similar and identical results at polling stations; and

(f) It would have addressed questions regarding the accuracy of the results and data provided by the Zimbabwe Electoral Commission.

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

This is an urgent chamber application for a mandatory interdict in which the following order is sought on an interim basis;- That the respondent be and is hereby ordered to furnish the applicant with the following information within forty-eight hours of this order being granted; 1. A schedule detailing the applicant's back-pay and benefits from the period of March ...

This is an urgent chamber application for a mandatory interdict in which the following order is sought on an interim basis;-

That the respondent be and is hereby ordered to furnish the applicant with the following information within forty-eight hours of this order being granted;

1. A schedule detailing the applicant's back-pay and benefits from the period of March 2005 to 31 January 2016.

2. The respondent's salary advice slips for the period 22 March 2005 to January 2016.

3. The date and time at which the applicant shall resume his duties.

4. The date of payment of the applicant's back-pay and benefits.

5. The dates on and manner in which the applicant's salaries shall be paid from the 1^st of February 2016 until the applicant ceases to be entitled to a salary.

The final order sought is for the respondent to show cause why a final order should not be made on the following terms;-

The respondent be and is hereby ordered;

6. To immediately furnish the applicant with all information regarding and relevant to the applicant's employment contract and conditions of service when requested to do so.

7. To fully comply with the judgments of the Labour Court handed down on 6 February 2008 and 22 January 2016 within two weeks of this order being granted failing which the Director General (Chief Executive Officer) of the respondent shall be committed to gaol for a period of three months for contempt of court.

8. To pay costs of suit on a legal practitioner and client scale.

The applicant is the holder of a doctorate in Engineering Science and the respondent (SIRDAC) is a university situated in Hatcliffe, Harare. The background to this application, as set out in the founding affidavit, is that the applicant was employed by the respondent from the year 2000 to 22 March 2005 as the director of the Building Technology Institute (BTI) of the respondent. The Labour Court made a finding, on the 6^th of February 2008, that the respondent's dismissal of the applicant was unlawful. The respondent was ordered to reinstate the applicant with effect from 22 March 2005, the date of dismissal, without loss of salary or benefits.

The applicant alleges that the respondent has failed to comply with this judgment by failing to reinstate him or to pay him his full salary or benefits, or even to pay him damages in lieu of reinstatement in the alternative.

The applicant instituted proceedings in HC4544-08 for an order of contempt to be made against the respondent's Director General. The respondent, in response to that application, purported to 'reinstate' the applicant by way of a letter dated 26 September 2008. The letter was delivered to the applicant on the 7^th of October 2008.

It is common cause that, despite the letter of re-instatement, the respondent has not paid the applicant his salary or benefits, and that, the applicant has not re-joined the respondent's staff to date.

On 26 June 2009, the respondent terminated the applicant's employment by way of a letter. The applicant challenged this termination by way of an application for review before the Labour Court, which granted judgment in his favour on the 22^nd of January 2016…,. That judgment was done by two Labour Court Judges. They alluded to the judgment done by the same court on 6 February 2008 in which an order was made that the applicant be reinstated with full benefits, or, alternatively, be paid damages in lieu of reinstatement. The Labour Court found that the parties should go back to the original order of 6 February 2008 and allowed the application for review, setting aside the decision of the disciplinary committee of 26 June 2009.

The applicant requires information pertaining to his salary arrears in order to prepare an application for damages in lieu of reinstatement. This information is in the possession of the respondent who is being un-cooperative. The applicant is afraid that the respondent will continue to ignore the orders of the Labour Court with impunity. Letters written to the respondent on 22 January 2016 and 3 February 2016 have gone un-answered.

The applicant is of the view that he has no other remedy than to approach this court, on an urgent basis, because he is wallowing in poverty whilst the respondent remains in contempt of the Labour Court orders.

At the hearing of the matter, the respondent took the stance that this matter was not urgent because the requirements of urgency were not met on the papers, and that the application was devoid of merit because the requirements of a mandatory interdict were again not established….,.

It is my considered view that the question of jurisdiction ought to be settled before a decision is made as to whether or not the applicants satisfied the requirements of urgency and then the merits of the matter can be ventilated….,.

It is trite that only this court can grant a mandatory interdict. Such an interdict will compel the respondent to supply the information required by the applicant in order to utilize his remedy in the Labour Court, that of seeking payment of arrear salaries and damages in lieu of reinstatement. See National Railways of Zimbabwe v Zimbabwe Railway Artisans Union & OrsSC08-05, where the following guidance was given;-

“As a general statement, it is correct that the Labour Court has no jurisdiction to entertain claims that are brought at common law. It can only determine applications and appeals among others that are brought in terms of the Act. Where, however, a dispute can either found a cause of action at common law, or in terms of the Act, a case of apparent concurrent jurisdiction between this court and the Labour Court appears to arise. I say appears to arise because the apparent conflict can easily be resolved by paying regard to the overall intention of the legislature in creating the Labour Court. In my view, in such a case, the Labour Court's jurisdiction being special must prevail. It would make a mockery of the clear intention of the Legislature to create a special court if the jurisdiction of such a court could be defeated by the mere framing of disputes into common law cause of action where the act has made specific provisions for the same. In my view, if the dispute is provided for in the Act, the Labour Court has exclusive jurisdiction even if the dispute is also resolvable at common law.”…,.

This case was decided in 2005, before the advent of the current Constitution, and it would be interesting to see if the Supreme Court's guidance remains the same when the provisions of section 171(1)(a) are taken into consideration.

For purposes of determining whether an application for an interdict ought to be dealt with by this court because it is a common law remedy which the Labour Court has no power to grant, this case is indeed instructive. See also DHL International (Private) Limited v Madzikanda HH51-10; Surface Investments (Private) Limited v Maurice Chinyani HH295-14.

The requirements of an interdict are;

1. A clear or definitive right - this is a matter of substantive law.

2. An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

3. The absence of similar protection by any other ordinary remedy - the alternative remedy must be; adequate in the circumstances; be ordinary and reasonable; be a legal remedy; grant similar protection.

See Tribac (Pvt) Ltd v Tobbacco Marketing Board 1996 (2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo 1914 AD 221…,.; Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 378; Boadi v Boadi & Anor 1992 (2) ZLR 22; Diepsloot Residents' and Landowners' Association & Anor v Administrator Transvaal 1994 (3) SA 336 (A)…,.

For purposes of the interim relief sought, we need only be furnished with proof on a prima facie basis.

The applicant has a clear right which was affirmed by two judgments of the Labour Court. It is common cause that the two judgments have not been complied with so an injury has been committed against the applicant to his prejudice as set out in the founding affidavit. We have already found that although the Labour Act provides an alternative remedy, it is not adequate, and does not grant the applicant similar protection. Section 93 of the Labour Act only gives a sitting Judge power to compel the production of evidence. It does not assist a litigant to compel the production of documents or supply of information which he requires for the preparation of his case.

For these reasons, it is my view that the applicant has established the requirements of an interdict, and, for that reason, it be and is hereby ordered that;-

Respondent be and is hereby ordered to furnish the applicant with the following information within forty eight hours of this order being granted;

1. A schedule detailing the applicant's back-pay and benefits from the period of March 2005 to 31 January 2016.

2. The respondent's salary advice slips for the period 22 March 2005 to January 2016.

3. The date and time at which the applicant shall resume his duties.

4. The date of payment of the applicant's backpay and benefits.

5. The dates on and manner in which the applicant's salaries shall be paid from the 1^st of February 2016 until the applicant ceases to be entitled to a salary.

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the entire judgment of the High Court, sitting at Harare, handed down on 8 May 2019, in which the following order was granted:

1. The appointment of the 2nd and 3rd respondents as Deputy Presidents of the Movement for Democratic Change party were unconstitutional therefore null and void.

2. The appointments of the 2nd respondent, as Acting President and President of the Movement for Democratic Change party, were unconstitutional and therefore null and void.

3. All appointments and/or re-assignments and actions of the 2nd respondent, in his purported capacities as Deputy/Acting or incumbent President, were unconstitutional and therefore null and void.

4. The 1st respondent be and is hereby ordered to hold an Extra-Ordinary Congress after the lapse of at least one month after the date of this Order.

5. The respondents are ordered to pay the applicant's costs of suit, jointly and severally, the one paying the others to be absolved.

The Background

The first appellant is the Movement for Democratic Change, a political party which has capacity to sue and be sued in its own name (“the Party”).

The remaining protagonists are members of the Party who were cited as follows in the court a quo;

The second appellant is the President of the Party, while the third appellant is its National Chairman.

The first respondent, who was the applicant a quo, is the Organising Secretary for the Gokwe Sesame District. The second respondent is the Deputy President, the third respondent is the Acting President and the fourth respondent is the Secretary General of the Party.

The facts relating to this matter are as follows;

On 15 July 2016, the second appellant and the second respondent were appointed Deputy Presidents of the Party by the founding President, the late Dr Morgan Richard Tsvangirai. At the time these appointments were made, the post of Deputy President was occupied by the third respondent, having been elected as such at the Party's Congress held in October 2014.

Following the death of Dr Tsvangirai, on 14 February 2018, a special National Council meeting was convened, on 15 February 2018, whereat the second appellant was confirmed as the Acting President of the Party.

On 24 September 2018, the first respondent launched an application in the High Court challenging the validity of the President's appointment of the second appellant and second respondent as Deputy Presidents of the Party. He averred that such appointments were made ultra vires the Party's constitution as they were not done via an election by Congress. The first respondent argued that the meeting of 15 February 2018 was a non-event as the National Council did not have powers to ordain an Acting President or a President of the Party. He further emphasised that Article 9.21.1 of the Party's constitution was clear that, upon the death of the President, the Deputy President assumed the role of Acting President. As such, he argued that the third respondent, as the duly elected Deputy President of the Party, became Acting President upon the death of Dr Tsvangirai, and was obliged to call for an Extraordinary Congress within a year.

The third appellant opposed the application and deposed to an affidavit on behalf of the first and second appellants as well as the second and fourth respondents. He took four preliminary objections to the application;

(i) Firstly, he contended that the first respondent did not have locus standi to represent the first appellant as he had not produced a solemn declaration reflecting proof of acceptance of his membership of the Party.

(ii) Secondly, he stated that the first respondent's delay in raising his complaints was inordinate and would cause prejudice as many developments had occurred since the appointments under challenge. Further, he claimed that the first respondent had waived his rights to challenge the appointments.

(iii) Thirdly, he argued that the first respondent ought to have exhausted internal remedies provided in the Party's constitution by noting an appeal to its Appeal's Tribunal.

(iv) Lastly, the third appellant contended that the order directing the first appellant to hold an Extra-Ordinary Congress was incompetent relief in an application for a declaratur.

Regarding the merits of the application, the third appellant disputed the validity of the Constitution relied on by the first respondent. He submitted that the “true Constitution” was attached to the late President's opposing affidavit in the case of Patson Murimoga & Anor v Morgan Richard Tsvangirai & Ors HC7453/16.

The third appellant also argued that the appointments by the late President were made in terms of Article 9 of the Constitution which gave the President power to appoint deputies to “officers of Congress” on the instructions of the National Executive and the National Council. It was submitted that the appointments were made on the instructions of the National Council and ratified by the same in terms of Article 18 of the Party's constitution.

The third appellant further submitted that the subsequent occupation, by the second appellant, of the office of Acting President, was valid as it was the result of unanimous assent and was based on the second appellant's valid election as Deputy President.

In his replying affidavit, the first respondent challenged the validity of the third appellant's opposing affidavit. He stated that, in the absence of a mandate from the other parties, the third appellant could not depose to solemn facts on their behalf.

Further, he contended that the third appellant had not shown that he was authorised to represent the Party.

Lastly, the first respondent took the position that the first appellant, together with the second, third, and fourth respondents, were barred for having failed to file their opposition to the application.

Determination of the Court A Quo

On the preliminary objections raised by the parties, the court a quo made the following rulings;

It held that the first appellant was barred for having failed to file an opposing affidavit, as the third appellant, who purported to act on its behalf had failed to show proof of his authority. The court also held that the second and fourth respondents were barred for having failed to file their own opposing papers, while the third respondent was barred for having failed to oppose the application.

In relation to the first respondent's locus standi to institute the proceedings, the court held that his membership card was sufficient proof of his membership of the Party.

Regarding the issue of exhaustion of internal remedies, the court a quo reflected that the relief sought by the first respondent would not be competently granted by the Party's appeals tribunal. The court reasoned that it was more probable that the appeal would not be heard in an impartial manner due to the composition of the Appeals Tribunal.

On the issue of waiver of the first respondent's right to challenge the appointments, the court found that the first respondent had timeously approached the court after he became aware of his rights through a legal opinion furnished to the Party.

On the merits of the application, the court held that the appointments of the second appellant and second respondent, as Deputy Presidents of the Party, having by-passed the electoral process, were ultra vires the Party's constitution.

The court reasoned that the Constitution clearly provided that a Deputy President could only hold office by virtue of an election by Congress. This position was fortified by the court's interpretation of several provisions of the Party's constitution. The court considered the provisions of Article 6.4.4, which relate to the composition of the National Standing Committee. In particular, Article 6.4.4.1 was clear that a member could only occupy the office of Deputy President pursuant to an election at Congress. The late President had acted contrary to this provision by “picking” the second appellant and the second respondent as Deputy Presidents. The court also had regard to Article 9 of the Constitution which provides for the functions of various office bearers, including Deputy Presidents. In particular, Article 9.14 stipulates that all office bearers hold office by virtue of winning an election in Congress in terms of Article 6.4.4. The court highlighted that the President's powers of appointment, in terms of Article 9.1.4, had to be exercised “where such is provided for in the Constitution.” Thus, the President could only appoint the Secretary for Elections in terms of Article 6.4.4(k). The court further indicated that Article 9 listed office bearers and the Deputy President in the singular. In light of this, the court reasoned that the mention of Deputy Presidents in the plural was a typographical error.

The court further considered the powers of the National Council, in terms of Article 18 of the Constitution, to cure an oversight or omission in the appointment of office bearers. The court held that the contention that the National Council had delegated to the late President the power to make the contested appointments was not supported by the evidence. The oversight or omission sought to be cured was not identified in the papers pertaining to the deliberations of the National Council in 2016. Accordingly, Article 18 could not aid the appellants' case. Neither the President nor the National Council could bypass the requirement of holding an election at a Congress to fill those offices that were already provided for under the Constitution.

Additionally, the court took the view that the Party was founded on constitutionalism and social democracy, as per Article 3.1. Thus, the imposition of Deputy Presidents, by the late President, and the imposition of the second appellant as Acting President, acting in concert with the National Council, at its meeting on 15 February 2018, was contrary to those founding values.

In light of these considerations, the court a quo held that the contested appointments were unconstitutional and granted the order aforementioned.

Consequently, the court applied the provisions of Article 9.2.1(b) of the Constitution, in terms of which the Deputy President becomes the Acting President, where the President is unable, for any reason, to perform his or her powers, functions, or administrative duties. The court accordingly concluded that at the time of the late Dr Tsvangirai's death, the third respondent was the Deputy President and ought to have assumed presidential duties, pending the holding of an Extra Ordinary Congress to elect a new President, in terms of Article 9.21.1 of the Constitution.

Grounds of Appeal

There are numerous grounds of appeal herein, some of which are repetitive or should have been conjoined. They are reproduced verbatim as follows:

1. The court a quo erred in coming to the conclusion that first appellant was barred for failing to file an opposing affidavit and so erred in treating a valid affidavit deposed to by the third appellant as pro non scripto, and, in proceeding to determine the matter without hearing the first appellant.

2. A fortiori, the court a quo erred in proceeding in a manner which is in violation of the first appellant's constitutionally-protected right to be heard before an independent and impartial court as envisaged by section 69(2) of the Constitution of Zimbabwe, 2013.

3. Having found that the Constitution relied upon by the appellants at least contemplated the appointment of Deputy Presidents, the court a quo misdirected itself in concluding, without hearing evidence on this material issue, that the reference to Deputy Presidents in that Constitution was a typographical error.

4. A fortiori, the court a quo erred in writing a Constitution for the first appellant and in irregularly bringing it under the authority of such a document.

5. The court a quo erred in not concluding that the appointment of Deputy Presidents in the first appellant was in accordance with the Constitution of that party, had been mandated by congress and the highest decision making organ outside congress, and was, for all purposes, valid as a unanimous decision of a voluntary association.

6. Having been addressed on the law governing voluntary organisations and its effect on the subject before it, the court a quo misdirected itself in not pronouncing itself on that issue and in not deciding a question which was material to the decision required of it.

7. The question of the proper Constitution for the first appellant having been previously resolved in terms of an extant judgment in a matter which involved the same parties and/or at least their privies, the court a quo erred in allowing that issue to be re-opened and in founding its judgment on a Constitution which is foreign to the first appellant.

8. The court a quo erred in treating, without a valid legal or factual basis, the domestic remedies set out under the first appellant's Constitution as ineffectual and in not requiring, in accordance with superior court authority, the exhaustion of those remedies ante the bringing of the matter to court.

9. The court a quo misdirected itself, such misdirection amounting to an error in law, in not finding that the first respondent's participation in the activities of the first appellant, under the leadership of the second appellant, and duration of same, estopped him from contending against the validity of his appointment to the prejudice of the first appellant.

10. The ordinary congress for the first appellant having become due, the court a quo erred in finagling upon that party an extra ordinary congress and so erred in creating a totally untenable position which is at variance with the first appellant's Constitution and is totally unworkable either in fact and/or in law.

11. The court a quo erred in intervening, without a valid legal or factual basis, in the workings of a voluntary association and in subordinating its statutes and unanimous assent to the whims of a dishonestly disgruntled individual....,.

At the initial hearing of this matter, Mr Mpofu, lead counsel for the appellants, complained that the appeal record was incomplete.

The appellants had therefore filed an application in the High Court, in Case No. HC8183/79, for the rectification of the record. This was because there were some essential documents that were missing, in particular, Dr Tsvangirai's opposing affidavit in Murimoga & Anor v Tsvangirai & Ors HC7453/16, and Annexure A1 which was attached to that affidavit. Annexure A1, according to Mr Mpofu, was the authentic Constitution of the Party.

Given that these documents were necessary for this appeal, there was need to conclude the application for rectification before proceeding with the appeal....,.

Mr Mutungura, counsel for the first respondent, submitted that there was no need for the record to be rectified. This was because the Court itself had pre-empted this issue by having directed the production of the supposedly missing documents. These were identical to those contained in the record....,.

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

I will refer to the parties as Intratrek, Chivhayo, Kazhanje, the PG, and the court a quo respectively. Where it is convenient to do so I will refer to the first three (3) parties as the applicants and the last two as the respondents or first and second respondent as may be appropriate.

Chivhayo is the Managing Director of Intratrek Zimbabwe (Pvt) Ltd. The latter is a company incorporated in terms of the laws of Zimbabwe. Kazhanje was, at the material time, the Board Chairman of the Zimbabwe Power Company (ZPC).

On 18 June 2019 they appeared before the court a quo at Harare Magistrates Court, sitting as an Anti-Corruption Court.

The applicants were facing a charge of bribery as defined in section 170(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In respect of Intratrek and Chivhayo, it was alleged that on 21 January 2016, at CBZ Bank, Kwame Nkrumah Branch, Harare the trio or one of them unlawfully gave or agreed to give or offered an agent, namely, Kazhanje then a director and Board Chairman of the Zimbabwe Power Company (Pvt) Ltd, a gift or consideration as an inducement or reward for doing or omitting to do or having done or omitted to do any act in relation to his principal's affairs or business or for showing or not showing or having shown or not shown any favour or disfavour to Intratrek and Chivhayo in relation to Kazhanje's principal's affairs or business.

In short, the charge was that Intratrek and/or Chivhayo bribed Kazhanje by transferring to him US$10,000 as an inducement or reward for facilitating or influencing the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board of Directors to make decisions favourable to Chivhayo and Intratrek in relation to the contract for the Gwanda Solar Project.

As for Kazhanje, he was charged for being the receiver of the bribe.

The State Outline then set out how the offence was alleged to have been committed.

On 28 May 2019, the first and second applicants had filed a request for further particulars to the charge and the State Outline. On 11 July 2019 the Prosecutor General's representative filed a response thereto.

Section 177 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPE Act) provides that the court may order delivery of particulars to any matter alleged in a charge, summons, or indictment. It does not provide for delivery of particulars to any matter set out in the State Outline.

That is the first problem, in my view, with the request for further particulars. It is unlike in civil procedure where a request for further particulars covers both the summons and declaration/particulars of claim.

In that request, the applicants attached various annexures and sought admissions from the first respondent relative thereto. The admissions were made. In some cases, the first respondent indicated that what was sought was evidence and inferences which it would ask the court a quo to make from the evidence.

A total of twenty-eight annexures were attached to the request for further particulars. Admissions were sought touching on the identity of those documents and their place in the matter. The annexures comprised, among others, letters, contracts, and judgments of this court one of which has been overturned on appeal and the other whose appeal is pending in the Supreme Court.

Dissatisfied with what it perceived to be a reluctance to comply with some of the particulars requested, the applicants made an oral application, before the court a quo, for an order to compel delivery of those particulars.

The third applicant associated himself with both the request and the application.

The application was opposed, and dismissed. The court a quo found that what was requested was in fact evidence and therefore improper.

Next, the applicants excepted to the charge.

The submissions were these;

The third applicant argued that the defect was that the charge did not specify whether the US$10,000 was an inducement or a reward. Further, all three applicants argued that the charge, as amplified by the further particulars, did not disclose an offence.

The exceptions were based on section 170(2) and 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] respectively.

The court a quo dismissed the exceptions. It found no formal defect in the charge. It must have found, indeed it found, that the charge disclosed the offence of bribery. The reason is this. It found that what was requested constituted evidence. The charge, as it stood, disclosed the offence of bribery vis a vis the applicants.

The applicants are before us in an application to review the court a quo's decision.

The two grounds of review read as follows:

“1. The decision complained of is a grossly unreasonable abdication of judicial power in that the second respondent did not apply his mind to the substantive and procedural issues before him.

2. The decision complained of is patently contrary to law and determined the exception before the second respondent on an improper basis and is such that no reasonable judicial officer who had applied his mind to the facts would have reached the same decision.”

The first respondent opposed the application.

The parties filed heads of argument.

The first and second applicants made these submissions before us;

The second respondent's decision, dismissing the exception, was grossly unreasonable. The “common cause facts” show that there was no bribery. For example, it was admitted, by the first respondent, in replying to the further particulars, that the tender for the Gwanda Solar Project was awarded to Intratrek through Chivhayo by the State Procurement Board and not the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board which Kazhanje chaired. The ZPC Board's mandate was to implement the contract. There was therefore no basis for the first respondent to lead other evidence at the trial speaking to bribery of third applicant because it had admitted that it was the State Procurement Board (SPB) which awarded to the applicant the tender for the Gwanda Solar Project. The offence of bribery was therefore not disclosed.

Counsel for the third applicant referred us to the South African Supreme Court of Appeal decision in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking and Advertising Standards Authority SA 459/04 where that court held it proper to have regard to documentary evidence attached to pleadings in determining an exception.

My view is our law is different.

Evidence is inadmissible in determining an exception. Evidence is adduced at trial.

Counsel for the first and second applicants argument, on common cause facts showing that the offence of bribery was not disclosed, finds no favour with me.

We rejected this argument in Mupfumira and Another v Mutevedzi and Another HH200-20.

Firstly, there are no facts to talk about at this stage. There is nothing from the applicants in the nature of facts. They have not pleaded to the charge, tendered a Defence Outline, nor has any evidence been led which would found the basis for common cause facts, if any. All there is, at this stage, are the charge and the State's allegations as set out in its Outline.

What happened a quo, in my view, is that the applicants sought to truncate the trial by resorting to a procedure foreign to our law. Under the guise of seeking particulars to the allegations in the charge they expanded the request to cover allegations set out in the State Outline. They went further to seek admissions disguised as further particulars. The State seemed not to have initially noticed, a quo, that the applicants had sought to jump the gun. Admission of facts is a procedure available at the trial, post plea, and tendering of a Defence Outline, before the State has opened its case.

The multitude of questions contained in what was called a request for further particulars, the annexures thereto and the answers solicited were correctly disregarded by the court a quo in determining the exception. The time will come when evidence will be led, with exhibits, if any, produced in accordance with the rules of evidence.

I also take the view that the charge does not become defective by dint of characterizing the US$10,000 as either an inducement or a reward. These are alternatives speaking to the same charge of bribery.

Looked at from another perspective, counsel for the applicants, while purporting to be seeking further particulars, were actually cross examining the Prosecutor General's (PG) representative. The latter was responding, again through what was called a reply to the further particulars.

There is no law in our jurisdiction sanctioning the PG's representative to be subjected to cross-examination either pre-trial or at the trial itself, either through papers filed of record or orally.

The net effect of what was done was to delay the trial.

The court a quo dismissed the exception because it was based on what was effectively evidence improperly put before it as well as evidence sought to be prematurely placed before it. We see no merit in the application for review. We are remitting the matter to the court a quo for trial.

From the record of proceedings put before us, the applicants first appeared before that court around 18 July 2019. It appears the matter was then ready for trial. What this means is that the applicants have managed to delay the commencement of the trial by a period of one year.

Counsel for the third applicant asked us to consider a court record which was not before the court a quo. The argument birthed by that record was also not placed before that court.

We were told that the third applicant has since been convicted of contravening section 173 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) viz corruptly concealing from a principal a personal interest in a transaction. The facts and evidence were said to be the same as in the bribery charge. He submitted that there was therefore an improper splitting of charges as well as a basis for arguing that the third applicant was previously convicted of an offence arising from the same set of facts and evidence.

Section 180 of the Criminal Procedure and Evidence Act [Chapter 9:07] lists nine (9) pleas that can be pleaded to a charge. The usual ones are guilty or not guilty. But, section 180(2)(c) provides that a person can plead that he or she has already been convicted of the offence with which he is charged.

It is not necessary that I discuss whether that plea is available to the third applicant. What is important is that section 186 of the Criminal Procedure and Evidence Act provides that issues raised by a plea (except that of guilty or a plea to the jurisdiction of the court) shall be tried. The third applicant should therefore plead to the charge. The matter should be tried.

Further, whether there was a splitting of charges placing the third applicant in danger of a duplication of convictions on the same evidence is an issue which we cannot consider at this stage.

If he is convicted his remedy may be to raise that as one of his grounds of appeal.

Counsel for the third applicant referred us to a number of South African and Zimbabwean cases on this point. They include Zachariah v The State, Criminal Appeal number APP 331/01.

The application for review, in the circumstances, has no merit.

The present is not one of those rare cases where grave injustice might otherwise result or justice might not, by other means, be attained if we do not interfere in the un-terminated proceedings in the court a quo; see Prosecutor General of Zimbabwe v Intratrek Zimbabwe (Pvt) Ltd and 2 Ors SC59-19; Dombodzvuku and Anor v Sithole N.O. and Anor 2004 (2) ZLR 242 (H).

In the result, it is ordered that:

1. The application for review be and is dismissed.

2. The matter is remitted to the court a quo for the applicants to plead to the charge with the matter proceeding to trial.

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

BACKGROUND FACTSThe respondents are husband and wife. They are before this Court pursuant to a suit for defamation instituted by them in the High Court against the appellants herein. In the declaration, the first respondent is described as an Ambassador. It is a description which appears common cause. The first ...

BACKGROUND FACTS

The respondents are husband and wife. They are before this Court pursuant to a suit for defamation instituted by them in the High Court against the appellants herein. In the declaration, the first respondent is described as an Ambassador. It is a description which appears common cause. The first appellant is the editor of the Newsday Newspaper, with the second appellant being the publisher, printer and distributer of the publication.

On 19 May 2014, the respondents, as plaintiffs, instituted proceedings by way of summons claiming damages for defamation arising out of an article published by the second appellant on 6 July 2012.

On 23 November 2016, the High Court dismissed with costs an exception filed by the appellants in answer to the claim for defamation damages instituted by the respondents herein. The court also ordered the respondents to furnish the appellants with the particulars of the exact words being relied on in the defamation suit within a specified period from the date of judgment.

This appeal is against that judgment.

In their declaration in the suit described above, the respondents alleged that one Francis Mhere had, on 5 July 2012, written a letter to the first respondent imploring him to rein in his spouse, the second respondent. The letter alleged that the second respondent was meddling in, and involving herself in child custody issues between Francis Mhere and his wife.

The respondents alleged that, without establishing the veracity or truthfulness of allegations in the letter, the appellants had gone ahead and published an article on 6 July 2012 in the Newsday publication of that day. The respondents alleged that the article was defamatory of and concerning them. It is alleged that despite the falsity of the article, the appellants published the statements in the letter which were made with the intention of making a public spectacle of the first respondent in the office of Ambassador with the intention of injuring his reputation.

It was further alleged that the statements were understood by the ordinary reasonable man within the readership of the Newsday newspaper to mean that the second respondent was out of control, meddled in other people's affairs, was selfish and cruel, vindictive in nature, and was not a law abiding citizen, and lacked moral fibre.

Based on the above allegations, the respondents claimed damages for the article published by the appellants in the sums of USD120,000 and USD80,000 respectively.

The appellants did not plead. They jointly filed an exception and application to strike out in the form set out hereunder:

“A. No cause of action disclosed.

1.1. First Defendant is cited as Constantine Chimakure cited herein in his capacity as the Editor of Newsday Newspaper.

1.2 First Defendant as cited does not exist and no cause of action is consequently disclosed against first defendant. Alternatively, the proceedings are as against first defendant a nullity. (sic)

1.3 First plaintiff does not allege that the publication on which he sues and its unnamed words were published of and concerning him. No cause of action is consequently set out in favour of first plaintiff. (sic)

1.4 Second plaintiff does not allege that the publication of 6 July 2012 was made of and concerning her. No cause of action is consequently set out in favour of second plaintiff.

B. Vague and embarrassing

1.5 Plaintiff alleges in para 9 of the declaration that -

'Defendant went ahead and published a damning article on 6 July 2012 on page 2 of that publication to the Plaintiff's mortification and detriment'.

In paragraph 11 they allege -

'The article contained falsehoods of a venomous type'.

1.6 The words complained of which are alleged to appear in the said article are not set out and their effect cannot be ascertained.

1.7 The claim is consequently vague and embarrassing.

C. Application to strike out

1.8 Plaintiffs tell a story in a declaration made up of 21 paragraphs. The declaration is argumentative, superfluous, irrelevant is crafted in breach of the rules of court and must be struck out.(sic)

Wherefore, defendants pray, in the main, that the exception be upheld and the claim be dismissed with costs. Alternatively, defendants pray that the declaration be struck with costs.”

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, the parties made the following contentions. As regards the appellants, it was contended, firstly, that the summons and declaration did not disclose a cause of action primarily because the first appellant, as defendant, did not exist. It was argued that the improper citation rendered the proceedings a nullity.

It was also contended that the summons was vague and embarrassing because the exact words published were not set out in the declaration. It was argued, further, that the declaration told a story which was superfluous, irrelevant, and argumentative contrary to the rules of court. To that end, it was only right that the declaration be struck out as being vague and embarrassing.

Premised on the above arguments, the appellants prayed that the exception be upheld with the claim being dismissed with costs. In the alternative, the appellants prayed that the declaration be struck out with costs.

The respondents countered by arguing that the first appellant, a natural person, had been properly cited. The description of the first appellant, as Editor of the newspaper, did not render the citation defective in any manner.

As to the objection that the summons and declaration did not allege that the publication was made of and concerning the respondents, it was contended that the declaration alleged that the publication made reference to a letter wherein certain specific allegations were made of both respondents. It was argued that the exception to the summons and declaration should, as a consequence, be dismissed with costs.

Turning to the allegation that the summons was vague and embarrassing, it was argued that the claim was not vague or embarrassing. In this regard, it was argued that the prayer for the striking out of the declaration should be dismissed with costs.

It was further contended that the prayer for the dismissal of the claim, in the event of the exception being upheld, was misplaced. The proper course, it was argued, would be to afford the respondents an opportunity to amend the declaration.

The court a quo reasoned as follows:

“The defendants do not know which words are defamatory according to the plaintiff and this is 'embarrassing' to them. See National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984; Sutton v Brown 1926 AD 155 @ 163; Demmers v Wylie & Ors 1980 (1) SA 835 @ 842D.

In the alternative, the objection taken is that the declaration is argumentative, superfluous, irrelevant, and is crafted in breach of the rules. The declaration tells a story, it is not a pleading. See Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H) @ 236F-237A where it was held that;-

'Procedure, by way of notice of motion, though often convenient, is far less disciplined than procedure by action. A good novelist can write a series of exciting affidavits, and, at the end, claim large sums of money. It takes a lawyer to draw a declaration.'

Taruona v Zvarevadza & Ors HH87-12; Mwayisa v Jumbo & Ors HH03-10; Morris v Morris & Anor HH71-11.

Rule 99 (c) of the Rules of this court provides that:

'A pleading shall -

…,.

(c) Contain a statement, in a summary form, of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are proved.'

It is trite that a pleading which is irrelevant must be struck out. See Stephens v De Wet 1920 AD 279 @ 282; Golding v Torch Printing & Publishing Co. (Pty) Ltd & Ors 1948 (3) SA 1067 (C) @ 1090.

It is my considered view that the defendants' remedy lies in an application for further particulars if they are of the view that the exact words relied upon by the plaintiff's ought to form part of the summons and declaration. This would cure the defendants' embarrassment, if any. An exception which goes to the root of the matter and is calculated to divest the plaintiffs of any vestige of a cause of action is ill conceived in these circumstances, and inappropriate.

We find merit in the submission made on behalf of the plaintiffs that the case law which is relied upon by the defendants is distinguishable from the circumstances of this case and inapplicable. That case implies that the court must exercise its discretion in the circumstances of the case before it, and in this case, it is my view that the defendants are not embarrassed by the plaintiff's claim to the extent that the plaintiff's case should be dismissed by the upholding of the exception. Rather than delay the resolution of this matter further, the court directs that the plaintiffs set out the exact words that they allege to be defamatory as they appear in the letter which they refer to in the declaration.”

The court a quo dismissed the exception with costs being made to be in the cause. The respondents were ordered to furnish the appellants within a period of ten days, with the particular words on which the claim for defamation was premised.

THE APPEAL

With the leave of this court, the appellants have noted an appeal on the following grounds:

“1. The court a quo erred in holding that the appellants' exception did not go to the root of the respondents' claim. At law, where a party fails to plead and set out actual allegedly defamatory statements upon which its claim for defamation is based, then such pleading is patently defective and cannot be amended.

2. The court a quo further erred in holding that the appellants' exception was without merit and worthy of dismissal. Such holding was, at law, anomalous on account of the finding by the same court that the respondents' pleadings were deficient and called for better particulars.

3. The court a quo erred in granting to the respondent's relief that was not sought or pleaded. There was no cause for the amendment of the respondents' pleadings, and, the court went beyond the purview of its jurisdictional mandate in ordering an amendment and particularizing the details of such amendment.

4. Additionally, the court, again, erred in disregarding the mis-citation of the first appellant. At law, a summons that cites a non-existent person or capacity is a nullity.

5. The court a quo grossly misdirected itself and erred in holding that the respondents' declaration was capable of being pleaded to. Once a declaration is vague and embarrassing the defendant ought not to be required or compelled to plead to it.”

Three issues for determination emerge from the grounds set out above;

(i) First and foremost is whether or not the citation of the first appellant is defective rendering the summons and declaration a nullity as contended by the appellants.

(ii) The last two issues are whether or not the summons and declaration do not establish a cause of action rendering them subject to an exception and also vague and embarrassing and liable to be struck out.

ARGUMENTS ON APPEAL

...,. On the substance, the argument for the appellants went as follows;

The court a quo misdirected itself and erred in affording relief which had not been sought and which amounted in the order of things to an acceptance that the exception was well taken. It was suggested that the court a quo purported to be exercising a discretion which it was not imbued with. For this proposition, counsel for the appellants sought reliance on Forestry Commission v Moyo 1997 (1) ZLR 254 (S)....,.

Counsel for the respondents submitted that the relief afforded by the court was correct and that the court was empowered to exercise its discretion in the manner it did....,.

ANALYSIS OF THE DISPUTE ON APPEAL

For the sake of convenience, I will begin with the nature of the relief ordered by the court a quo. The court dismissed the exception. It found that the pleadings were not excipiable.

Once the court found that the exception was not well taken it could not exercise the discretion of affording the respondents an opportunity to file further particulars. Such indulgence could only follow upon a finding that the exception was well-taken.

To that extent, it is my view that the court was guilty of a misdirection....,.

The court a quo ordered the respondents to furnish further particulars to the appellants. This was despite the finding that the exception had not been successful.

In my view, the court, having found that the appellants had not been embarrassed, should have confined itself to dismissal of the exception. That said, it is my considered view that no prejudice will ensue if the order for the provision of the letter is left untouched. The respondents have not appealed that order and I see no reason to interfere with it.

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

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

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

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

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

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

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

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

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

(v) Developing preventive maintenance programmes for all divisions.

(vi) Building inspections for structured works.

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

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

Your initial package will be as follows:

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

Total ___________

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

Yours faithfully

D. Govere
CHIEF EXECUTIVE OFFICER”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I am persuaded by that argument.

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

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

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

I am in total agreement with that pronouncement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Back Main menu

Law Portal
Zimbabwe

Subpoena re: Subpoena Duces Tecum or Judicial Order for the Production of Documents and the Rule of Relevance

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

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED
Ruled By: GOWORA J

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

SC36-17 : NETONE CELLULAR (PRIVATE) LIMITED and REWARD KANGAI vs ECONET WIRELESS (PRIVATE) LIMITED and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

HH278-17 : DAVID LUWO and ROSE LUWO vs DOWOOD SERVICES (PVT) LTD and RAILING ENTERPRISES (PVT) LTD
Ruled By: MOYO J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

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

Categories

Law Portal Zimbabwe

Subpoena re: Subpoena Duces Tecum or Judicial Order for the Production of Documents and the Rule of Relevance

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

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED Ruled By: GOWORA J

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

SC36-17 : NETONE CELLULAR (PRIVATE) LIMITED and REWARD KANGAI vs ECONET WIRELESS (PRIVATE) LIMITED and ZIMBABWE REVENUE AUTHORITY Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

HH278-17 : DAVID LUWO and ROSE LUWO vs DOWOOD SERVICES (PVT) LTD and RAILING ENTERPRISES (PVT) LTD Ruled By: MOYO J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE Ruled By: CHIGUMBA J

Appealed SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA Ruled By: GARWE JA, PATEL JA and GUVAVA JA

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O. Ruled By: CHIKOWERO J and KWENDA J

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA Ruled By: GOWORA JA, MAKONI JA and BERE JA

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

Categories

Law Portal
Zimbabwe

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

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED
Ruled By: GOWORA J

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

SC36-17 : NETONE CELLULAR (PRIVATE) LIMITED and REWARD KANGAI vs ECONET WIRELESS (PRIVATE) LIMITED and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

SC47-18 : NETONE CELLULAR (PVT) LTD and REWARD KANGAI vs ECONET WIRELESS (PVT) LTD and ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

HH278-17 : DAVID LUWO and ROSE LUWO vs DOWOOD SERVICES (PVT) LTD and RAILING ENTERPRISES (PVT) LTD
Ruled By: MOYO J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

Appealed
SC56-20 : MOVEMENT FOR DEMOCRATIC CHANGE and NELSON CHAMISA and MORGAN KOMICHI vs ELIAS MASHAVIRA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

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