Rules of Construction or Interpretation re: Recognition, Ousting and Alteration of Common Law by Statute Law

SC26-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs HERBERT PASIPANODYA
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

That statutory provisions override the common law goes without saying.

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

Section 25 of the Civil Matters (Mutual Assistance) Act [Chapter 8:02] expressly acknowledges that the Act does not derogate from other laws and provides that:“This Act shall be regarded as additional to, and not as limiting the provisions of any other law relating to the recognition and enforcement of foreign ...

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

It is also a well-established principle of statutory interpretation that a statute cannot effect an alteration of the common law without saying so explicitly. This principle finds authority in the case of Phiri Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (12) ZLR 45 (S)..., wherein the following was stated - “There is a ...

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

According to counsel for the applicants, the law of South Africa, which is the same as our own, is to the effect that, under the common law, a company can ratify a contract merely by adopting a resolution to that effect, and there is no need for compliance with the provisions of the Companies ...

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O.
Ruled By: BERE J

My very strong view…, is that this principle of law, sound as it is, cannot override a specific provision in our Rules, particularly where the Rule itself has gone further to provide sufficient safeguards by giving the presiding judge the power to either confirm or dismiss the urgency of the matter irrespective of the ...

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

Citing the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S) the applicant argued that “there was a presumption against alteration in the common law by statute law, unless the words of the statute are plain and unambiguous and an intention to alter the common law is evident from the ...

View Appeal
HH273-10 : WYNINA (PRIVATE) LIMITED vs MBCA BANK LIMITED
Ruled By: PATEL J

The precise scope of these Presidential Powers Regulations (S.I.115 of 2010) is not entirely clear and it is arguable whether they were intended to alter the common law or enacted purely ex abundante cautela.

HH33-11 : ALAN McGREGOR vs NEHEMIAH SABURI and ATTORNEY GENERAL and OTHERS
Ruled By: CHIWESHE JP

The first legal point that the applicant raises in its submission is that, prior to the actions of the first respondent, the applicant had been in “peaceful and undisturbed occupation” of the land and therefore entitled to a spoliation order against the first respondent. That position is correct at common law. However, it is trite that ...

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

It is..., trite that, a statute should, where possible, be construed in conformity with the common law rather than against it, except where the statute is clearly intended to alter the common law: see Johannesburg Municipality v Cohen's Trustees 1909 TS 811.

SC31-10 : COMMERCIAL FARMERS UNION and OTHERS vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

A common law remedy cannot render nugatory an Act of Parliament.

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

In Katirawu v Katirawu Ors HH58-07…, the LEARNED JUDGE PRESIDENT held thus: “While section 117(1) empowers the Master to approach the court for the removal of an executor for the listed grounds, in my view, such a power granted to the Master was not intended to take away the right of all those having an interest ...

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

There is a presumption that a statute cannot alter the common law without saying so explicitly. This principle finds authority in the case of Phiri and Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (2) ZLR 45 (S), wherein the following was stated…,: “There is a presumption, in the interpretation of statutes, that Parliament does not intend a change in ...

Appealed
SC50-18 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

A common law remedy cannot render nugatory an Act of Parliament.

View Appeal
HH964-15 : ECONET WIRELESS (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL and STEWARD BANK LTD and CBZ BANK LTD and NMB BANK LTD and STANBIC BANK LTD
Ruled By: MUSAKWA J

In Longman Zimbabwe (Pvt) Ltd v Midzi Others 2008 (1) ZLR 198 (S)…, GARWE JA had this to say: “There is a presumption in our law that Parliament does not intend to alter the common law unless it does so expressly or by necessary implication. Silence by the Legislature should not be taken to mean that ...

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage. The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who ...

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage.

The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who are parents to the minor children, alleged that they had entered into a contract with the defendant on the following agreed terms;

1. That the two minor children would be escorted onto the flight and off the flight;

2. That they would be monitored and assisted throughout the flight;

3. That they would be cared for on the plane;

4. That they would be taken through immigration and handed over to a designated person, namely, Haruchemwi Christine Masuta;

5. That their documents would be kept safely by the airline staff who would hand-over same to Hamuchemwi C Masuku; and

6. That Hamuchemwi C Masuku would sign documents acknowledging receiving the minor children.

The plaintiffs alleged that, in breach of the terms of the contract, the minors were not taken care of nor provided any assistance. Instead, a stranger who happened to be a passenger on the plane was asked to assist the children. The plaintiffs alleged that, as a result, they suffered psychological trauma, pain and suffering and claimed $75,000= damages in respect of the first and second plaintiffs and $100,000= damages in respect of the third and fourth plaintiffs.

The defendant excepted to the summons and declaration on the following grounds;

(1) That since the carriage by air of the first and second plaintiffs from Harare to Johannesburg constituted an international carriage within the meaning of Article 1(2) of the Convention for Unification of Certain Rules relating to International Carriage by Air (Warsaw Convention) as ratified by section 3 of the Carriage by Air Act [Chapter 13:04], the cause of action should be premised on the Warsaw Convention.

(2) That the plaintiffs cause of action, being founded on the defendant's alleged breach of contract, cannot be sustained at law; and

(3) That the claims of the Carriage by Air Act and Warsaw Convention, being limited to instances of death or wounding of a passenger or any other bodily injury by a passenger, and the plaintiffs not having pleaded the essential elements, their claim is incurably bad at law.

The defendant prayed for dismissal of the plaintiffs claim with costs of suit on an attorney client scale.

I am indebted to the parties for the detailed heads of argument filed.

The defendant argued that claims arising out of air travel are specifically governed by the Warsaw Convention. Any claims should fall squarely within the four corners of the Warsaw Convention. Any claims falling outside the Warsaw Convention could not be sustained. Since the plaintiffs claims arose from a breach of contract, and, possibly, delict, their claims ought to be dismissed.

The plaintiffs, on the other hand, argued that the Warsaw Convention does not provide the “sole and exclusive” remedies to claims arising from carriage by air. The Convention, as it stands, does not specifically ouster claims arising under common law. In any case, the plaintiffs submitted that Article 17 of the Warsaw Convention does incorporate psychological trauma and distress. In case it is found that Article 17 is applicable, the plaintiffs argued that Article 17 is an archaic piece of legislation which is not justifiable in a dynamic and democratic legal system such as ours.

The first issue falling for determination is whether the Warsaw Convention provides the exclusive remedy to claims arising from carriage by air.

Article 1(1) of the Warsaw Convention provides;

“For the purposes of this Convention, the expression 'international carriage' means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a breath in the carriage or a trans-shipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for purposes of this carriage.”

The Warsaw Convention was ratified by section 3 of the Carriage By Air Act [Chapter 13:04]. That means that where there is conflict between the Warsaw Convention and common law, the Warsaw Convention should prevail and apply.

SSC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court sitting at Harare, handed down on 12 December 2016.

In the judgment, the court a quo found the first three appellants guilty of murder and the fourth appellant guilty as an accessory after the fact, of public violence.

The first three appellants were sentenced each to 20 years imprisonment.

The fourth appellant was sentenced to a fine of $500, or, in default, three months' imprisonment with a further three years imprisonment suspended on conditions.

The appeal is against the convictions and the sentences.

Background Facts

On 29 May 2011, a political party, “the MDC-T”, held a political gathering at a shopping center in one of the suburbs in Harare. The purpose of the gathering was to celebrate the party's T-shirt visibility programme.

A group of police officers, led by the deceased, was dispatched to disperse the gathering which was deemed illegal.

When ordered, by the police officers, to disperse, the group did not resist but pleaded with the police to first complete their food preparations, which included a barbecue, before they could disperse. The police agreed to this arrangement and left.

Reports later reached the police that the group had thereafter relocated to another shopping centre in the same suburb. The police, once again, led by the deceased, reacted and followed to the new location.

When the officers tried to disperse the gathering at the new location, they were met with stiff resistance. In the melee that ensued, the deceased was stoned by an unidentified assailant. He fell down onto the tarmac. He died as a result of a severe injury to his head which depressed his skull and caused damage to his brain.

On 12 March 2012, the appellants, and 25 others, were arraigned before the court a quo facing one count of murder as defined in section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and, alternatively or concurrently, with public violence as defined in section 36 of the Criminal Law (Codification and Reform) Act.

After a protracted trial lasting over four years, the appellants were duly convicted and sentenced as detailed above.

The court a quo found that the first three appellants had, on 29 May 2011, unlawfully and with actual intent to kill, murdered the deceased by hitting him on the head with a brick, causing injuries from which he later died.

It found the fourth appellant guilty as an accessory after the fact to the crime of public violence, which it held to be subsumed in the crime of murder.

The fourth appellant had ferried the first two appellants from the scene of the crime in the vehicle he was driving.

In finding the first three appellants guilty of murder, the court was clear in its mind that the guilt of the accused persons hinged on whether or not the appellants participated in the commission of the crime, either directly or by association. In particular, it was its view that the case against the three appellants hinged on the applicability of the common law doctrine of common purpose, which it dealt with extensively, before convicting the appellants as detailed above.

The Appeal

As indicated above, the appellants were aggrieved by the convictions and sentences. In noting this appeal, they raised six grounds. I cite them here in full:

“1. The court a quo erred and seriously misdirected itself when it failed to properly apply the law and discharge the appellants as it was obliged to at the close of the State's case in terms of section 198(2) of the Criminal Procedure and Evidence Code, when no evidence justifying their placement on their defence had been led, and, in doing so, denied them a fair trial with the result that the conviction and sentence must be vacated.

2. The court a quo further erred and misdirected itself in finding the appellants guilty on the basis of the doctrine of common purpose, when, in law, the doctrine is no longer part of our law; the criminal law of Zimbabwe, having been codified in the Criminal Law Codification and Reform Code, which specifically outlaws Roman-Dutch Criminal Law.

3. The court a quo further erred and misdirected itself when it convicted the fourth appellant as an accessory after the fact to the crime of public violence when there is no actual perpetrator convicted of public violence.

4. The court a quo further erred and misdirected itself when it failed to find, as an extenuating circumstance, the fact that none of the appellants were shown to have directly participated in the melee that resulted in the deceased's death, thus reducing their moral blameworthiness.

5. Taking into account the full circumstances of the case, the court a quo's sentence of 20 years imprisonment induces a sense of shock in its excessiveness.

6. The court a quo erred and misdirected itself when it suspended a portion of the sentence on wide incompetent terms unrelated to the crime under which the appellant was convicted.”

The Issues

The issues that fall for determination in this appeal are interwoven.

The first ground of appeal argues that the court a quo erred in failing to acquit the appellants at the close of the State case when there was no evidence justifying the continuation of the trial beyond that point.

This seemingly raises the issue whether the court a quo erred as alleged.

I use the word seemingly deliberately. This is so because of the settled position at law, that, failure to discharge an accused person at the close of the State case can only sustain an appeal where it is found that at the close of the State case there was no evidence justifying a conviction and the defence case furnished no such proof.

The position, first debated in the controversial case of Kachipare v S 1998 (2) ZLR 271 (S), has gained traction and is accepted as the correct statement of our law: see S v Hunzvi 2000 (1) ZLR 540 (SC).

It has occurred to me that the rule in Kachipare v S 1998 (2) ZLR 271 (S) can be understood in two distinct senses:

(i) In the one, it renders incompetent and unsustainable, as a ground of appeal, one that simply alleges a failure by the lower court to acquit the appellant at the close of the State case without further alleging that there was no defence evidence proving guilt.

In this sense, it is an instruction to appellants not to seek to rely on the bare allegation that at the close of the State case there was insufficient evidence. The ground of appeal must, of necessity, attack the totality of the evidence led in the trial.

(ii) In the other, it directs the Appellate Court determining the question raised by such a ground to also consider the evidence led in the defence case before upholding or dismissing such a ground.

It is however not necessary that I debate to finality which of the two senses the court in Kachipare v S 1998 (2) ZLR 271 (S) intended. For the purposes of determining this appeal, I will assume it is the latter.

In view of the fact that the court a quo relied on the common law doctrine of common purpose to place the appellants, and others, on their respective defences, and, in convicting the appellants at the end of the trial, it is only logical that I deal, firstly, with whether or not the common law doctrine of common purpose was, at the material time, part of the Zimbabwean criminal law.

This is the issue that arises from the second ground of appeal.

Depending on my findings on the above issue, I will proceed to determine whether there was sufficient evidence against the appellants to justify the continuation of their respective trials beyond the close of the State case on the basis of the applicable law. This will address the issue that arises from the first ground of appeal.

The issue relating to the propriety of the sentences imposed on the appellants shall thereafter be determined, and only to the extent that this becomes necessary.

I have thus set up three issues which I now deal with seriatim. These are:

1. Whether, at the material time, the common law principle of common purpose was part of the Zimbabwean criminal law;

2. Whether, at the close of the State case, there was evidence justifying the continuation of the trial; and

3. Whether the sentences imposed on the appellants are severe and induce a sense of shock.

The Law

Was the common law doctrine of common purpose part of the Zimbabwean criminal law at the material time?

The criminal law of Zimbabwe was codified by the Criminal Law (Codification and Reform) Act [Chapter 9:23], “the Code”. The Code was promulgated in 2005 and came into force on 1 July 2006.

The purpose of the codification was partly to bring together, under one statute, the main aspects of the criminal law that were hitherto fragmented, and, partly, to reform and improve on the criminal law. This explains the lengthy and double-barrelled title of the Code: see Commentary on the Criminal Law (Codification and Reform) Act [Chapter 9:23] by PROFESSOR G FELTOE…,.

The Criminal Law (Codification and Reform) Act (the Code) therefore not only systematically arranged the existing material on criminal law conveniently under one legislation but also amended and modified the law.

Whilst the codification of the law brought with it convenience, the reform had wide-reaching ramifications. These ranged from the cosmetic, such as changing the nomenclature for some common law crimes, to the radical and fundamental. It changed the source of criminal law and supplanted itself and other statutes as the predominant source of the criminal law in the jurisdiction.

It appears to me, that, it was the clear intention of the law makers to make the Criminal Law (Codification and Reform) Act (the Code), and other statutes, the sole sources of the criminal law in the jurisdiction after the fashion of the Napoleonic and other civil law penal codes. This it sought to achieve through the cumulative effect of the provisions of sections 3 and 9 of the Code.

Section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provides that:

“3. Roman-Dutch criminal law no longer to apply

(1) The non-statutory Roman-Dutch criminal law in force in the Colony of the Cape of Good Hope on 10 June 1891, as subsequently modified in Zimbabwe, shall no longer apply within Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends, modifies, or repeals that law.

(2) Subsection (1) shall not prevent a court, when interpreting any provisions of this Code, from obtaining guidance from judicial decisions and legal writings on relevant aspects of -

(a) The criminal law referred to in subs (1); or

(b) The criminal law that is or was in force in any country other than Zimbabwe.”

It further appears to me that the language used in the section was deliberately wide to oust as much of the common law as is possible and was intended to make the Criminal Law (Codification and Reform) Act (the Code), and other statutes, the predominant sources of the criminal law in this jurisdiction with the common law providing a fall-back position to avoid any possible gaps in the law.

Thus, to widen the scope of its application, and, contrary to the general principle of interpretation of statutes that holds that statutes can only oust the application of the common law expressly and in clear language, section 3 of the Criminal Law (Codification and Reform) Act (the Code) permits and legitimizes the ousting of common criminal law by implication: see S v Matare 1993 (2) ZLR 88 (SC).

Section 9 of the Criminal Law (Codification and Reform) Act (the Code), which anchors the legitimacy of any criminal conviction and penalty in this jurisdiction provides that:

“9 Liability for criminal conduct

A person shall not be guilty of or liable to be punished for a crime unless -

(a) The crime is defined by this Code or any other enactment; and

(b) The person committed the crime or was a party to its commission as provided in this Code or in the enactment concerned; and

(c) His or her liability is based upon voluntary conduct; and

(d) Subject to subs (5) of section seventeen, the person engaged in the conduct constituting the crime with any of the blameworthy states of mind referred to in sections thirteen to sixteen of this Code or any other enactment may require; and

(e) His or her liability is based upon unlawful conduct, that is upon conduct for which there is no lawful excuse affording that person a complete defence to the criminal charge, whether in terms of Chapter XIV or otherwise.”

I digress briefly to note that the position I have detailed above held possibly only up to 2013 when the new Constitution was adopted. I say so advisedly because section 89 of the Constitution, which was enacted after the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provides that:

“89 Law to be administered

Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Cape of Good Hope on 10 June 1891, as modified by subsequent legislation having in Zimbabwe the force of law.”

There is therefore some scope to argue, that, through the provisions of section 89 above, the Constitution has reinstalled, for all purposes and for all laws, including the criminal law, the Roman-Dutch common law as a source of law. Put differently, there is scope to argue that the provisions of section 89 of the Constitution have clouded and rendered ambiguous the language of section 3 of the Criminal Law (Codification and Reform) Act (the Code), which, before the enactment of the Constitution, was clear and required no interpretation.

I remain of the above view notwithstanding, that, the repealed Constitution had a similarly worded section 89 on the law to be administered by the courts.

The law in force in the Cape of Good Hope on 10 June 1891 or Roman-Dutch common law, as it is appropriately called, was the applicable law together with subsequent legislation modifying the common law.

The Criminal Law (Codification and Reform) Act (the Code), having effect on a date subsequent to the adoption of the repealed Constitution, was permissible “subsequent legislation” modifying the common law.

In summary, therefore, the law of common purpose has seen major changes, in 2006 when the Criminal Law (Codification and Reform) Act (the Code) took effect, possibly in 2013 when the Constitution was adopted, and, in 2016, when section 196 of the Criminal Law (Codification and Reform) Act (the Code) was amended.

Quite apart from the fact that we did not have the benefit of researched argument from counsel on it, this issue is not relevant for the determination of this appeal.

This is so because the material date in this appeal is 29 May 2011 - which fell well before the adoption of the Constitution.

I merely flag the possible impact of section 89 of the Constitution on section 3 of the Criminal Law (Codification and Reform) Act (the Code) for law development purposes.

The issue illustrates how complex the determination of the applicable criminal law in any case after the codification of the criminal law may become and how it would appear that the codification and reform of the criminal law has created an un-intended minefield for the unwary.

Returning to the issue under discussion, it is common cause that the material date in this appeal is 29 May 2011. This was the date of the commission of the crime.

Section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) applied.

Its language is clear and admits of no doubt. It therefore requires no interpretation.

To establish whether or not the common law principle of common purpose was applicable at the material time, I must perforce look to the text of the Criminal Law (Codification and Reform) Act (the Code) to establish whether or not the Code had, at that time, expressly or impliedly enacted, re-enacted, amended, modified or repealed the principle under challenge. If it had dealt with the principle in any manner as detailed in section 3 of the Criminal Law (Codification and Reform) Act, then, the common law principle was no longer applicable. The reverse would also hold.

What then is the common law doctrine of common purpose?

It is a principle that deems the participation of two or more persons in the commission of a crime where the two or more persons associate with a common intent to commit the crime and one of them does commit the crime. It thus provides for co-perpetrators of crime with a common intent. In essence, the doctrine provides, that, if two or more people act together in pursuance of a common intent, every act done by one of them in furtherance of that common intent is deemed, at law, to be the act of them all: see Macklin, Murphy and Others (1838) 168 ER 1136; and Chauke v S 2000 (2) ZLR 494 (S).

The common law doctrine of common purpose has a dragnet effect. This is self–evident. As the head-note to S v Safatsa 1998 (1) SA 869 AD has it:

“The principle applicable where there is shown to have been a common purpose is that the act of one participant, in causing the death of the deceased, is imputed, as a matter of law, to the other participants (provided, of course, that the necessary mens rea is present).

A causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved to sustain a conviction of murder in respect of each of the participants.”

When the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) was enacted, it provided, in section 196, for the liability of co-perpetrators who associate with each other with the intention that each or any of them shall commit any crime.

Broadly, this provision re-enacted the essence of the common law doctrine of common purpose.

In terms of section 3 of the Criminal Law (Codification and Reform) Act (the Code) as detailed above, the direct application of the common law doctrine of common purpose, in establishing the criminal liability of accused persons at the material time, was, therefore, ousted by the enactment of section 196 of the Criminal Law (Codification and Reform) Act (the Code).

The criminal liability and punishment for two or more people who allegedly acted with a common intent at the time could only be imposed in accordance with the provisions of the Criminal Law (Codification and Reform) Act (the Code).

On the basis of the above, it is my specific finding, that, at the time the appellants were charged with the crimes of murder and/or public violence, the common law doctrine of common purpose was not applicable in this jurisdiction. The then section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) was the applicable law.

Before I proceed to analyse the decision a quo, I wish to comment on the submission by counsel for the respondent, that, the common law doctrine of common purpose is still applicable in our courts as this Court has applied it in two instances after the promulgation of the Criminal Law (Codification and Reform) Act [Chapter 9:23] ( the Code). Reference, in this regard, was made to the decisions of this Court in (1) Vusimuzi Moyo (2) Khulekani Nkomo v S SC37-13 and Ncube v S SC58-14.

As indicated above, the law appears to be in flux in the wake of the adoption of the Constitution. The critical factor, in my view, is the date when the alleged crimes were committed.

More importantly, though, I am unable to find a discussion of section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in either of the two cases.

I do not, therefore, hold the two cases as authority for the proposition that the common law doctrine of common purpose was the applicable law at the time the crimes alleged against the appellants herein were committed.

Analysis

In placing the appellants, and others, on their respective defences at the close of the State case, the court a quo had this to say:

“As I have stated elsewhere in this judgment, the State case is based on the common law doctrine of common purpose or conspiracy to commit a crime which has now been codified under section 188 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provides that:

“(1) Any person who enters into an agreement with one or more other persons for the commission of a crime in terms of this Code or any other enactment:-

(a) Intending, by that agreement, to bring about the commission of the crime; or

(b) Realizing that there is real risk or possibility that the agreement may bring about the commission of a crime…,.”

The court a quo proceeded to refer to case law and legal texts on the common law doctrine of common purpose before stating, as the basis of its decision, that:

“…, anyone who is shown to have associated himself or herself, at the material time, with the group that eventually killed the deceased, in the process of resisting police orders to disperse, has a case to answer.”

In convicting the appellants, the court a quo applied the same law that it had applied in dismissing the application to discharge the appellants at the close of the State case.

It applied the common law doctrine of common purpose.

The provisions of sections 3 and 9 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) were not drawn to its attention and were therefore never considered by it.

The error that the court a quo fell into is self-evident.

It applied the wrong law in establishing whether or not the appellants had participated or associated themselves with the commission of the crime in such a manner as to attract criminal liability. It applied the common law doctrine of common purpose instead of finding the liability of the appellants on the basis of the provisions of section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) as it then was.

Clearly, but again in error, the court a quo was of the view, that, at the material time, the Criminal Law (Codification and Reform) Act (the Code) and the common law were of equal and interchangeable application.

They were not.

I say so, because, having found that the common law principle of common purpose had been codified in section 188 of the Criminal Law (Codification and Reform) Act, which provides for conspiracy, erroneous on its own, the court a quo was of the view that it could then revert to the common law principle of common purpose and apply it directly to the facts of the matter that was before it.

It could not.

The intention of the law makers, in enacting the Criminal Law (Codification and Reform) Act (the Code) appears to me to have been quite clear.

Once a court finds that the common law has been enacted, re-enacted, modified, or repealed in the Criminal Law (Codification and Reform) Act, the Code takes over and becomes the sole source of the law and the provisions of the Criminal Law (Codification and Reform) Act become exclusively applicable, with precedent only acting as a guide in interpreting the provisions of the Code.

Thus, even assuming for a moment that conspiracy and the doctrine of common purpose are the same, as noted above, a finding by the court a quo that the doctrine of common purpose had been provided for under the Criminal Law (Codification and Reform) Act (the Code) as “conspiracy” would have debarred it from further proceeding to apply the common law principle directly.

This was the essence of the provision of section 3 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) at the material time as discussed above.

Again, and quite erroneously, the court a quo based its application of the common law doctrine of common purpose on the codification of conspiracy. It was of the view that the two are one and the same concepts both under the Criminal Law (Codification and Reform) Act (the Code) and at common law.

They are not.

It is, however, not necessary that I burden this judgment with a discussion of the differences between the two concepts. Suffice it to say that they are provided for separately in the Criminal Law (Codification and Reform) Act (the Code) and have different requirements.

On the basis of the above, I am compelled to find, that, the court a quo misdirected itself, and gravely so, in finding the appellants guilty, as it did, on the application of a law that was not applicable in this jurisdiction at the time of the commission of the crimes with which the appellants were charged.

The conviction of the appellants cannot stand and must be set aside.

This, however, does not entitle the appellants to their acquittal for I must now turn to consider whether the appellants were guilty as charged on the basis of the provisions of section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), as it then was - the law that the court a quo ought to have applied.

Whether at the close of the State case there was evidence justifying the continuation of the trial

Section 196 of the Criminal Law (Codification and Reform) Act (the Code) itself has seen some major changes since the promulgation of the Code. These changes have seen a progressive narrowing down of the applicability of the common law doctrine of common purpose.

The original section 196 of the Criminal Law (Codification and Reform) Act, when the Code was enacted, was repealed and replaced in 2016 through the provisions of the General Laws Amendment Act, 2016. This amendment took effect on 1 July 2016.

Notwithstanding that the trial of this matter was concluded in 2016, after the amendment had taken effect, the applicable law in the trial of the appellants remained the law that was in force in 2011 when the crimes were allegedly committed. This is so because of the hallowed principle of our law that guards against the retrospectivity of statutes in general and of crimes in particular.

The changes in the law may explain the joint, but erroneous, submission by both counsel before us, that, the Criminal Law (Codification and Reform) Act (the Code) did not provide for instances that fell to be determined under the doctrine.

It does, and, at the material time, it did.

At the material time, section 196(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) provided as follows:

“196 Liability of co-perpetrators

(1) Subject to this section, where -

(a) Two or more persons knowingly associate with each other with the intention that each or any of them shall commit or be prepared to commit any crime; and

(b) Any one of the persons referred to in para (a) ('the actual perpetrator') commits the crime; and

(c) Any one of the persons referred to in para (a) other than the actual perpetrator ('the co-perpetrator') is present with the actual perpetrator during the commission of the crime; the conduct of the actual perpetrator shall be deemed also to be the conduct of every co-perpetrator, whether or not the conduct of the co-perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.”

The entire section, as cited above, was, in 2016, repealed and replaced by a new section that deals with a different subject matter. A new section, section 196A, was inserted to deal with the liability of co-perpetrators who knowingly associate for common purpose of committing a crime or crimes. It provides as follows:

“196A Liability of co-perpetrators

(1) If two or more persons are accused of committing a crime in association with each other and the State adduces evidence to show that each of them had the requisite mens rea to commit the crime, whether by virtue of having the intention to commit or the knowledge that it would be committed, or the realization of a real risk or possibility that a crime of the kind in question would be committed, then they may be convicted as co-perpetrators, in which event the conduct of the actual perpetrator (even if none of them is identified as the actual perpetrator) shall be deemed also to be the conduct of every co-perpetrator, whether or not the co- perpetrator contributed directly in any way to the commission of the crime by the actual perpetrator.

(2) The following shall be indicative (but not, in themselves, necessarily decisive) factors tending to prove that two or more persons accused of committing a crime in association with each other together had the requisite mens rea to commit the crime, namely, if they -

(a) Were present at or in the vicinity of the scene of the crime in circumstances which implicate them directly or indirectly in the commission of that crime; or

(b) Were associated together in any conduct that is preparatory to the conduct which resulted in the crime for which they are charged; or

(c) Engaged in any criminal behavior as a team or group prior to the conduct which resulted in the crime for which they are charged.”

As indicated above, section 196A of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not have retrospective effect and is of no application to the facts of this appeal.

Accepting then, as we must, that, at the material time, the common law principle of common purpose had been re-enacted with modification that restricted its application; the liability of each accused person stood to be proved on the basis of the provisions of section 196 of the Criminal Law (Codification and Reform) Act (the Code) as it then was.

Principally, the State had to lead evidence tending to prove;

(i) Firstly, that the appellants knowingly associated with the person who killed the deceased;

(ii) Secondly, that such association was with the intention that each or any of them would kill or be prepared to kill the deceased; and

(iii) Thirdly, that the appellants were present with the actual perpetrator when the fatal blow was delivered.

It is, however, common cause that the scene of the crime was a busy shopping centre where there was a beer outlet, a car wash, vendors, including some who were cooking meals for sale, a flea market, and other members of the public who were waiting to use public transport. This was a Sunday afternoon falling at the end of the month. The crowd at the scene of the crime was not homogenous. It was made up of these members of the public and members of the MDC-T who had relocated from the first venue of their celebrations.

No evidence was led that the crowd had a common intent.

The first and second appellants alleged, in their Defence Outlines, that they were at the shopping centre accompanying a friend whose shoe was being repaired in the car park. The third appellant alleged that he was attending a church service and adduced into evidence a video tape that proved his attendance at the church. The video tape, however, only recorded the church proceedings up to 12:30 in the afternoon.

The alleged crime was committed after 12:30pm - between 2:00pm and 4:00pm.

It was not in dispute that the fourth appellant, employed as a driver, was sent to pick up crockery from the celebrations. When he saw the disturbances at the shopping centre, he decided to make a U-turn. In the process, he picked up the first and second appellants.

It is further common cause that the actual perpetrator of the crime, who was unidentified, came from within the crowd that gathered at the shopping centre during the melee.

Against the backdrop that I have painted above, it is difficult to envisage how the crowd, including the appellants, could have knowingly come together with one intent for the purposes of the law.

In any event, the evidence led a quo showed that the crowd had not come together but that persons making up the crowd found themselves at the shopping centre at the same time that the conflict between the police and the members of the MDC-T erupted.

I pause to observe that the cases where the common law principle of common purpose was applied successfully in this jurisdiction invariably involved a team or group of persons setting out to commit a crime or crimes. The accused persons knowingly embarked on their respective criminal enterprises. An appreciable number of the cases involve a pair or teams of robbers: see S v Mubaiwa & Anor 1992 (2) ZLR 362 (SC); S v Ndebu & Anor 1985 (2) ZLR 45 (SC); Matende & Machokoto v S AD 55/79.

In Chauke v S 2000 (2) ZLR 494 (S), the accused persons were a group of prisoners that teamed up to escape from lawful custody.

The crowd in casu pre-existed the violence with no commonality unlike the mob in S v Safatsa 1998 (1) SA 869 AD.

In that case, the mob gathered and formed with the specific intention to attack the deceased in protest against an increase in the levies by their local council, in which the deceased was the Deputy Mayor. The mob had set out to attack the deceased, and others who were viewed to have voted for the increase in levies.

To ascribe a common intention or individual mens rea to each member of the crowd in such circumstances of this appeal, in my view, is to stretch the applicability of the common purpose doctrine beyond its highest water mark.

The crowd that was at the scene of the crime did not plan the outing as a criminal enterprise. It did not set out to attack the police. Individual members of the crowd were not armed with stones when they went to the shopping centre.

The stoning of the deceased was un-premeditated by the crowd and the regrettable tragedy was unforeseen. It was a riotous reaction to the presence of the police.

Quite understandably, at the close of the State case, there was no evidence tending to show that the crowd had come together at any one stage. Further, and again, understandably so, there was no evidence at the end of the State case that the crowd harbored a single intention.

In this regard, a contrast may be made to the facts in S v Safatsa 1998 (1) SA 869 AD where the court found that the accused shared a common purpose with the crowd to kill the deceased, and, consequently, the acts of the mob were imputed to each of the accused.

Per contra, in casu, there was no evidence led a quo that the crowd coalesced around a single intention to assault and/or to attack the police.

Instead, the evidence from the State witnesses shows that the crowd had different intentions, as shown by their different reactions to the presence of the police at the shopping centre. Some ran away. Some remained where they were and only ran away to hide when the violence unfolded. Some may have joined in the violence with unknown intentions.

To be fair to the respondent, it was never its contention that the crowd had one intention.

Some members of the crowd must have remained strangers to each other with their separate and individual intentions.

The law, as provided in section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) sought to penalise two or more people who, knowingly, embarked on a criminal enterprise. It was not the intention of this law to penalise two or more persons whose criminal intentions may have coincided as may have happened with the crowd in casu.

The possibility that this is what in fact happened was not shifted beyond a reasonable doubt.

I have examined the evidence that was led a quo to establish if there is any basis upon which I can infer that the crowd did come together with the intention of killing the deceased.

I find none.

The crowd remained a typical weekend crowd found at any busy shopping centre. There was no evidence, at the close of the State case, that it had a common intention to commit any crime. The defence case did not proffer such evidence.

Even if one were to infer that some members of the MDC-T formed the intention to repel the police with force, there is no evidence that this intention was shared with the members of the public who then knowingly associated with the political party in its alleged criminal intent.

I therefore find that, at the close of the State case, there was no evidence that the crowd knowingly came together with the intention of murdering the deceased and that the crowd in fact had that common intention.

No such evidence was adduced during the defence case.

On the basis of the finding that I make above, the appellants were entitled to their discharge, on the main charge, at the close of the State case.

Assuming that I have erred in making the above finding, the convictions of the first three appellants of murder, would, in any event, be invalidated by the provisions of the repealed section 196(8) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which provided that:

“(8) For the avoidance of doubt, it is declared, that, this section may not be used to convict a co-perpetrator of murder unless he or she was present with the actual perpetrator while the victim was still alive and before a mortal wound or mortal wounds had been inflicted.”

Because the respondent was oblivious of the provisions of section 196 of the Criminal Law (Codification and Reform) Act in its entirety, no evidence was led to show that the appellants were present with the actual perpetrator when the deceased was felled by the brick that caused the mortal wound.

In the absence of such evidence, the law clearly provided, at the material time, that, the appellants could not be convicted of the murder of the deceased.

It is therefore my finding, that, there was no evidence a quo that the appellants had knowingly associated with the actual perpetrator of the crime with the intention of committing the crime or any crime and that they were present with the actual perpetrator when the crime was committed.

The defence case did not supply the missing evidence.

The requirements of section 196 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) were not satisfied.

In the absence of evidence that the appellants participated in the commission of the crime, as provided for in the Criminal Law (Codification and Reform) Act (the Code), they cannot be convicted.

They are therefore entitled to an acquittal on the charge of murder.

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

This matter came before me as an urgent application.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I now turn to the dispute between the parties.

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

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

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

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

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

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

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

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

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

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

He was unsuccessful as he was met with resistance.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I turn then to the substance of the application, as to whether or not I should issue an order in favour of the applicant directing the first and second respondents to abide by their statutory duties and remove the attached assets and sell them in execution of the judgment of this court.

The powers and duties of the Sheriff are provided for in section 20(1) of the High Court Act to the following effect:

"Subject to section nineteen and to rules of court, the Sheriff shall, by himself or his deputy or an assistant deputy, execute all sentences, decrees, judgments, writs, summonses, rules, orders, warrants, commands and other processes of the High Court, and shall make a return thereof to that court together with the manner of execution thereof."

That there is a statutory obligation falling upon the shoulders of the Sheriff and his lawful deputy, in this case the first and second respondents, is not in dispute. Both are officers of this court and are bound by the High Court Act.

The question to be determined here is whether or not the applicant has made out a case requiring this court to order that the first respondent execute his mandate in terms of the writ.

The applicant has addressed this court at length on the validity of the writ. I do not believe that is the issue before me. The writ is valid until such time as the judgment of this court has been set aside.

The judgment has not.

However, each of the parties has noted an appeal against the assessment of damages by the arbitrator in the sum of US$60,000.

It is trite that a litigant who is dissatisfied with a judgment or decision may appeal against that judgment or decision.

Appeals under the Labour Act are governed by that Act. Section 92D provides:

"A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner prescribed, appeal to the Labour Court."

The effect of noting an appeal under this section is described in section 92E of the Labour Act in the following terms:

"(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.

(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires."

In terms of subsection (2), the Legislature has finally put to rest the confusion in the law as to whether or not an appeal under the Labour Act would suspend the operation of the decision or determination appealed against.

The arbitral award was however granted in terms of section 98(9) of the Labour Act.

An appeal against the decision of the arbitrator, on a question of law, lies to the Labour Court in accordance with the provisions of section 98(10) of the Labour Act.

Where section 92E of the Labour Act provides that the noting of an appeal does not suspend the decision or determination, there is no such provision in relation to an appeal against an award by an arbitrator.

In PTC v Mahachi 1997 (2) ZLR 71 (H) CHATIKOBO J stated…,.:

"I am concerned with proceedings conducted in the public law domain under the provisions of the Act. In this domain, the common law presumption against the operation of judgments which have been appealed against applies unless the Act provides to the contrary.

In this case, the Act is silent on the issue. But, does this silence mean that Parliament intended to alter the common law position?

In Phiri & Ors v Industrial Steel & Pipe (Pvt) Ltd SC242-95 (not reported) KORSAH JA said:

'There is a presumption, in the interpretation of statutes, that Parliament does not intend to change the common law, unless it expresses its intention with irresistible clearness, or, it follows, by necessary implication, from the language of the statute in question, that it intended to effect such alteration in the common law; for 'construing the statute by adding to it words which are neither found therein nor for which authority could be found in the language of the statute itself is to sin against one of the most familiar rules of construction….,.': per LORD HALSBURY LC in Bank of England v Vagliani [1891] AC 107 at 120.

I am of the opinion, that, in the absence of a clear indication by the law giver to the contrary, the common law position that the execution of all judgments is suspended upon the noting of an appeal is not ousted by the silence of the statutory instrument in terms of which the respondent's appeal to the Tribunal was lodged upon the effect of such appeal against the order made by the Minister.'"

I will consider, and accept, as CHATIKOBO J did before me in PTC v Mahachi 1997 (2) ZLR 71 (H) that the proceedings against which the appeal was noted were conducted in the public domain law under the aegis of the Labour Act. As such, in the public domain law, the common law presumption against the operation of judgments which have been appealed against operates unless the Act has provided to the contrary viz section 92E(2) of the Labour Act.

I am fortified in this view by comments made by GREENLAND J in Mushaishi v Lifeline Syndicate & Anor 1990 (1) ZLR 284 (H)…, to the following effect:

"To my mind, it would be anomalous if an administrative decision of a quasi-judicial nature, as is the case here, were to be put on a different footing from court judgments and orders.

In the absence of anything provided to the contrary in the relevant Act, such decisions must be treated as suspended pending appeal."

The sum total of the comments from the eminent jurists that I have quoted from leaves me with no other conclusion than that the arbitral award, having been appealed against, is not capable of being executed against.

To hold otherwise would be to fly in the face of age old established common law principles, let alone logic.

For a litigant to note an appeal against judgment granted in his favour, and, thereafter, to seek to execute against the same judgment with which he has clearly expressed unhappiness, is, to say the least, an abuse of court process.

ln any event, the fourth respondent has noted an appeal against the award of damages by the arbitrator.

The Labour Court is a creature of statute and is regulated strictly within the four corners of the statute which created it.

The Act that created it has not seen fit to interfere with the common law position which provides that an appeal against a judgment suspends the same.

It stands suspended and the applicant has not convinced me otherwise.

In the premises, I find that the application has no merit and it should be dismissed with an appropriate order for costs. I therefore make an order as follows:

IT IS HEREBY ORDERED AS FOLLOWS:

1....,.

2. The application for an order of mandamus against the first and second respondents be and is hereby dismissed.

3. The applicant is ordered to pay the costs of this application.

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.)
Ruled By: CHIWESHE JP

This is an application to review the actions of the second and third respondents with regards the distribution of the estate of the late Lloyd Chimhowa, who died intestate on 3 December 2007.

At the time of his death, the deceased was married to the first respondent, Joyce Chimhowa, in terms of the then Marriages Act [Chapter 37].

The parties initially contracted a customary law union. This union was subsequently solemnised on 14 June 1991. Up till then, the deceased was a widower, having been customarily married to Mary–Maria Mabwe in 1971. She died intestate in October 1987.

During the subsistence of this first marriage, the spouses acquired an immovable property known as House Number 7447, 6th Way, Glen View 7, Harare. The house was registered in the name of the deceased, Lloyd Chimhowa. The house was acquired in 1979. The spouses jointly contributed to the development of the Stand, including the construction of a dwelling house. Mary Maria died after completion of the house.

For one reason or another, her estate was neither registered nor administered as required by law. She was survived by her husband, Lloyd Chimhowa, and six children - the applicants in this matter.

The late Lloyd Chimhowa's second marriage to the first respondent was blessed with four children. The new family continued to reside at the house left behind by Mary Maria Mabwe. Also residing at the same address were the six children borne out of the deceased's marriage to Mary-Maria Mabwe.

When the late Lloyd Chimhowa died, the first respondent was appointed executor of the deceased estate. She did not last long in that appointment after the Master wrote to her accusing her of falsifying information in order to get authority to transfer estate assets into her name. For this, the Master threatened her with criminal prosecution.

Her appointment as executor was then revoked in favour of the second respondent.

The first respondent and the applicants were in bitter dispute as to the distribution of the matrimonial home. The parties eventually buried the hatchet and came to a mutually agreed distribution plan. It was agreed that the matrimonial home be jointly owned by the applicants, the first respondent, and her four children, in equal share. This agreement was referred to as 'the family tree”.

This agreement did not last long.

The first respondent opted out of it, and, in a letter addressed to the executor (the second respondent), dated 30 September 2008, she advised that she was resiling out of the agreement and demanded to be allocated what belonged to her and her biological children. She followed this with another letter dated 21 October 2009 in which she demanded to be allocated fifty per cent of the matrimonial home, with the other fifty per cent being allocated to the 6th applicant (Nyasha Masiyiwa Chimhowa) and her minor biological children.

On 4 August 2009, the executor submitted to the third respondent the first and final distribution account in terms of which it was proposed, inter alia, to award the immovable property (matrimonial home) No.7447–6th Way, Glen View 7, Harare, to the first respondent.

Despite the applicants' written objection to the distribution of the matrimonial home, the third respondent, the Master, confirmed the distribution, advising the applicants to seek review by this Honourable Court should they persist with their objections.

The applicants have proceeded accordingly by launching the present application. They contend as follows:

The third respondent did not take their objections into account, and, for that reason, he failed to apply his mind to the issues before him. Chief among the applicants reasons for objection was that the distribution did not take into account the fact that the matrimonial home also constituted part of their late mother's estate (Mary-Maria Mabwe's estate). This should have been taken into account in finalising the estate, they argue.

Secondly, the applicants were aggrieved, that, in compiling the inventory, the first respondent had left out the Rusape rural home, which their late father had specifically built for her. It is this rural home to which, in the opinion of the applicants, the first respondent would be entitled as she had not contributed to the acquisition and development of the Glen View matrimonial home.

It is further argued that the third respondent failed to recognise that he was essentially dealing with two estates. Maria-Mary Mabwe's estate, argue the applicants, would be entitled to fifty per cent of the matrimonial home. The balance of the value of the matrimonial home would have accrued to her late husband's estate. That is the value that the first respondent would have been entitled to.

The applicants admit that, at one stage, the first respondent had offered that they buy out her fifty per cent share. They were however unable to raise the amounts involved.

Further, the applicants aver, that, on a number of occasions, the first respondent had indicated that she wanted to sell the matrimonial property and that if she did so, the applicants, especially the 6th applicant (Nyasha Masiyiwa Chimhowa), who is disabled, would be greatly prejudiced.

For these reasons, the applicants seek an order setting aside the decision of the third respondent to award the matrimonial home to the first respondent. In its place, they seek the substitution of an order awarding the Rusape rural home to the first respondent with the applicants and the first respondent being jointly awarded the Glen View matrimonial home in equal share.

Alternatively, in the event that the matrimonial home is awarded to the first respondent, that the applicants, in particular the 6th applicant (Nyasha Masiyiwa Chimhowa), be granted the right to use the property and that the fourth respondent be directed to register a caveat against the property to prevent the first respondent from disposing of the property without the consent of the applicants.

The first respondent says she was initially amenable to sharing the immovable property with the applicants, but, because the applicants continually undermined her authority as mother, and also because there being ten people, the house was always overcrowded, she had changed her mind. She expected those of the applicants who had attained adulthood to move out.

They refused to so move out.

She said she had left out the rural home, in compiling the inventory, because although she regarded it as the family's rural home (Mary Maria Mabwe's hut is also situated there), she did not regard it as her matrimonial home as she hardly lived there, except for the odd weekend.

She denied that it was her intention to sell the matrimonial home in Glen View.

Above all, however, the first respondent argues that, at law, being the surviving spouse, she is entitled to the matrimonial home and that she is not obliged to co-own the matrimonial home with the applicants.

She also avers that had the estate of Mary-Maria Mabwe been registered it would have been handled under customary law and thus the house would have been excluded from her estate and awarded to her husband instead. It cannot therefore be argued that the house transcends two separate estates.

To that end, contends the first respondent, the Master's decision was sound at law and meets the justice of the case.

I believe, from the facts of this matter, that, the office of the Master followed the procedures outlined in terms of the Administration of Estates Act.

An edict meeting was held, attended by all stakeholders. When the first respondent failed to meet the required standards, the Master quickly intervened revoking her appointment as executor and replacing her with the second respondent. Various meetings were held among the parties with a view to getting them to agree on the way forward. They were unable to agree, and, naturally, the Master directed that the executor proceeds in terms of section 3A of the Deceased Estates Succession Act [Chapter 6.02].

In general, therefore, the Master and the second respondent cannot be faultered in the manner in which they handled this deceased estate. They were guided, ultimately, by the provisions of section 3A of the Deceased Estates Succession Act which provide that the surviving spouse of a person who dies wholly or partially intestate shall be entitled to receive, from the free residue of the estate, “the house or other domestic premises on which the spouses or the surviving spouse, as the case may be, lived immediately before the person's death and the household goods and effects which immediately before the person's death were used in relation to the house or domestic premises referred to in para (a), where such house, premises, goods and effects form part of the deceased person's estate.”

Section 68F(b)(i) of the Administration of Estates Act [Chapter 6:01], on the other hand, provides, in relation to the estates of persons who die intestate, as follows:

“…, where the deceased person is survived by one spouse and one or more children, the surviving spouse should get –

(i) Ownership of, or, if that is impracticable, a usufruct over the house in which the spouse lived at the time of the deceased person's death, together with all the household goods in that house.”

In reading the legislation governing deceased estates, in so far as the rights of surviving spouses are concerned, it is important to bear in mind the intention of the legislature, bearing in mind that this branch of the law has, in the last decade, been the subject of much debate and controversy.

A number of amendments have been brought to bear to this branch of the law.

The chief driver of this process has been the desire by the legislature to protect widows and minor children against the growing practice, by relatives of deceased persons, to plunder the matrimonial property acquired by the spouses during the subsistence of the marriage. Under this practice, which had become rampant, many widows were deprived of houses and family property, by marauding relatives, thus exposing the widows and their minor children to the vagaries of destitution.

In many cases, the culprit relatives would not have contributed anything in the acquisition of such immovable and movable properties, often the result of years of toil on the part of the deceased and the surviving spouse.

This is the mischief that the legislature sought to suppress in introducing provisions such as section 3A of the Deceased Estates Succession Act, section 68F of the Administration of Deceased Estates Act, and the Deceased Persons Family Maintenance Act [Chapter 6:03].

In my view, the legislature intended to protect, in the case of widows, that property acquired during the subsistence of their marriage to the deceased persons. This protection benefitted not just the widows but their minor children as well.

I do not perceive the legislature's intent to be to extend this protection and privilege to persons outside the marriage within which such property might have been acquired. To impute that kind of interpretation would lead to serious absurdities in the application of the law.

For example A marries B. They acquire jointly what may be termed matrimonial property. They have children. A, the husband, dies, and, in terms of the law, B, the wife and surviving spouse, is awarded the matrimonial property. Thereafter, B contracts another marriage with X, the second husband. She dies and X the second husband and surviving spouse, inherits the matrimonial property that B inherited from A, at the expense of A and B's children in that marriage.

Clearly, the children will have been disinherited of their parents' property.

They may, as a result, end up in the street, particularly if X sells the property and converts the proceeds to his own selfish ends.

In the result, the noble intention of Parliament, to keep the property within the family for the benefit of the surviving spouse and the children, will have been subverted.

During the course of hearing this application, an example was given of a surviving male spouse whose wife died leaving him to fend for their minor children. He was, in terms of the law, awarded the matrimonial house and movables. He retained the maid because it was in the interests of the children to keep them under the care of a person they were familiar with.

In time, a relationship developed between the maid and the widower, leading to marriage.

The widower dies and the maid, being the surviving spouse, is awarded the family's matrimonial home acquired during the subsistence of the first marriage - without the maid's contribution. Thereafter, the maid sells the matrimonial home, takes the money, deserts the deceased husband's children, and marries another man.

Again, in instances such as this example, the intention of the legislature is subverted.

For these reasons, I would conclude, that, the protection afforded surviving spouses is, in terms of inheritance, limited to those assets that were acquired during the course and subsistence of that spouse's marriage to the deceased person whose estate is under distribution.

In particular, surviving spouses cannot, by right, claim any right to matrimonial property acquired outside their own marriage.

To allow them to do so would lead to the absurdities alluded to above. It would be against public policy and conscience to deprive the children of deceased persons the common law right to inherit from their parents merely because, at some stage, the surviving parent had remarried.

If that had been what Parliament intended to do it would have expressly so provided.

I am satisfied that Parliament intended only the consequences I referred to earlier.

In my view, it is of paramount importance that the legislature revisits the relevant legislation in order that its intention be expressed in clearer terms than is presently the case.

In the result, I agree with the submissions made on behalf of the applicants vis a vis the distribution of the immovable property in this estate. I agree that it is impracticable and indeed undesirable that the first respondent be awarded property acquired before her marriage to the deceased, Lloyd Chimhowa. At the same time, I recognise the first respondent's right to live at this property, which, to all intents and purposes, is also her matrimonial home. Her four minor children, being dependants of the deceased person, also have the right to live with their mother at that property.

In the result, I order as follows:

(1) That, the immovable property commonly referred to as House No.7447–6th Way, Glen View 7, Harare be and is hereby awarded to the first to sixth applicants (Alex Chimhowa, Cleopas Chimhowa, Viola Chimhowa, Pauline Chimhowa, Edmore Chimhowa and Nyasha Masiyiwa Chimhowa) in equal shares.

(2) That, the first respondent be and is hereby granted a life usufruct over the said immovable property.

(3) That, the final order of the third respondent, given under DR15/08, Estate Late Lloyd Chimhowa, be and is hereby amended to the extent of paragraphs (1) and (2) above.

(4) That there be no order as to costs.

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

This is an appeal against the judgment of the High Court handed down on 4 May 2018.

The appellant had, before that court, sought a declarator that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations 2016 published as Statutory Instrument 117/2017 were null and void and of no force or effect.

The appellant had also sought an order declaring the enabling Act, the Presidential Powers (Temporary Measures) Act [Chapter 10:20] to be inconsistent with the Constitution of Zimbabwe, and, as a consequence, the striking down of that Act.

In the alternative, the appellant sought a declaratur that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with the Constitution and that the same be struck down.

After hearing argument from both parties, the High Court dismissed the application with costs. It is against that order that the appellant has now appealed to this Court.

BACKGROUND FACTS

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Act”) provides as follows in section 2 thereof:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen, or is likely to arise, which needs to be dealt with urgently in the interest of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act:

Provided that…,. (not relevant).”…,.

Section 5 of the Presidential Powers (Temporary Measures) Act provides:

“Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Acting in accordance with the above provisions of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, who is the respondent in this matter, published, on 15 September 2017, in the Government Gazette Extraordinary, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117 of 2017 (“the Regulations”). The Regulations sought to amend certain sections of, and the Schedule to, the Electoral Act [Chapter 2:13].

On 20 October 2017, the applicant filed a court application seeking the declarators referred to and an order setting aside both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117 of 2017.

THE APPELLANT'S CASE A QUO

In his founding affidavit in the court a quo, the appellant, as applicant, stated as follows:

The Presidential Powers (Temporary Measures) Act is unconstitutional because it gives the President of the Republic of Zimbabwe the power to enact Regulations which override existing Acts of Parliament. Nowhere in the Constitution is the President given the power to make law as provided for in the Presidential Powers (Temporary Measures) Act.

Although section 116 of the Constitution states that the Legislature of Zimbabwe consists of Parliament and the President, it is clear that the President is involved only to the extent stipulated in Chapter 6 as read with the Fifth Schedule to the Constitution.

Section 134 of the Constitution makes it clear that Parliament may, in an Act of Parliament, delegate the power to make statutory instruments within the scope of and for purposes laid out in the Presidential Powers (Temporary Measures) Act but in no uncertain terms prohibits the delegation of Parliament's primary law making function.

It was never the intention that delegated legislation could have the effect of altering an existing Act of Parliament.

In terms of section 5 of the Presidential Powers (Temporary Measures) Act, the President has sweeping powers to make laws that transcend existing Acts of Parliament.

For that reason, the applicant sought an order striking down both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117/2017.

THE RESPONDENT'S CASE A QUO

In his opposing affidavit, the respondent stated as follows:

The provisions of the Electoral Act amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 had not envisaged the use of the biometric voter registration system which requires voters to have fingerprints and photographs taken in addition to filling in forms.

The President accepted, that, in terms of section 2 of the Presidential Powers (Temporary Measures) Act, he can enact laws, but, submitted that any Regulations he makes are subject to scrutiny by Parliament which can resolve either to have them amended or repealed.

Further, and in any event, section 110 of the Constitution gives him the power conferred by the Constitution, an Act of Parliament, or other law, to enable him to exercise his functions as Head of State.

The reference to “other law” includes provisions of the common law, customary law, and international law in force in Zimbabwe.

Under the common law, the President has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers have not been abolished under the Constitution and consequently remain at his disposal.

DETERMINATION OF THE COURT A QUO

In its determination, the court a quo found, that, in invoking his powers under the Presidential Powers (Temporary Measures) Act, the respondent was not abusing the law-making function conferred upon him by the Act.

The new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the requisite time lines of the 2018 harmonised elections.

The court a quo accepted, that, the question whether or not the Presidential Powers (Temporary Measures) Act is legal depends on the interpretation of the Constitution.

It found, that, the President's “necessary and unavoidable intrusion into the function of Parliament” is evident from a reading of section 86 of the Constitution.

It further found that “it is only the President who has the power to limit, through the Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution”.

The court also found that “because the President's law making power exists in the Act, the drafters of the Constitution did not include it in section 134 of the Constitution” and that “because his powers, as stated in section 86(2)(b) of the Constitution, relate to the limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.”

The court consequently dismissed the application with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the dismissal of his application by the court a quo, the appellant noted an appeal to this Court. His grounds of appeal are that:

“1.1 The court a quo erred as a question of law, in upholding the validity of the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

1.2 A fortiori, the court a quo erred in holding that the President could make law.

1.3 In addition, the court a quo erred in failing to hold that the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was an unlawful delegation of legislative power and was therefore ultra vires the Constitution of Zimbabwe.

1.4 In the alternative, the court a quo failed to uphold that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was null and void and of no force and effect to the fact that it permitted the making of laws overlooking Parliament.”…,.

In his prayer, he seeks an order setting aside the order of the court a quo, and, in its place, an order granting the relief he had sought before the court a quo.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

Section 86 of the Constitution is just a limitation clause and does not allow the President to limit rights or to be the person who curtails the rights of persons. Section 86 of the Constitution only relates to a law of general application made and passed by Parliament and not by an individual.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20], that is the subject of this appeal, amounts to Parliament outsourcing its original law-making powers.

The function of the President, under section 110 of the Constitution, is not to make law, but, merely to assent to a Bill, and, if he does not agree, to refer the Bill to the Constitutional Court for an opinion on its constitutionality.

He further argues, that, there is a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning primary law making power to another body.

In this case “the President is even higher than Parliament because he can amend what Parliament has done.”

On the remedy, the appellant submits, that, an order should be issued nullifying the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

However, since the retrospective declaration of invalidity might produce significant disruption in the voter registration exercise, the court should make an order that limits the retrospective effect of any such declaration.

He makes it clear, that, he has no difficulty with the substance of the amendments and that the gravamen of his displeasure is the manner in which they were effected.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

In his heads of argument, the President states, that, whilst he does not entirely agree with the reasoning of the court a quo, he agrees with the order made.

He submits, as he did before the court a quo, that, the Presidential prerogative is a power that attaches to the President by virtue of his office, and that, under the common law, he has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers were never abolished but are now codified under the Presidential Powers (Temporary Measures) Act.

The reference to “other law” in section 110(1) of the Constitution includes, by necessity, the provisions of the common law in force in this country.

Lastly, he maintains, that, as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 have to be laid before Parliament for approval, this shows that Parliament, essentially, still retains its primary lawmaking power.

In the course of considering the possible disposition of this matter, a question of law arose, namely, whether the appellant could properly appeal to this Court against a determination of constitutional validity by the court a quo.

Being an important issue that could be dispositive of this matter, and in light of the fact that neither party had hitherto addressed the court on it, this Court asked both parties to file supplementary submissions within a given time frame.

This the parties proceeded to do.

APPELLANT'S SUPPLEMENTARY SUBMISSIONS

In his supplementary heads of argument, the appellant has submitted, that, where the High Court, as in this case, issues an order of constitutional validity, that determination is subject to an ordinary appeal to this Court. Where, however, the same court issues an order of constitutional invalidity, then, that order must be referred to the Constitutional Court in terms of section 175 of the Constitution.

In other words, in the former case, there is no obligation that the order of constitutional validity be referred to the Constitutional Court for confirmation.

The appellant further submitted, that, in terms of section 43 of the High Court Act [Chapter 7:06], the Supreme Court has an obligation to hear and determine all appeals from the High Court of Zimbabwe, whether in the exercise of its original or appellate jurisdiction.

Further, in terms of section 21 of the Supreme Court Act, the Supreme Court has jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.

In terms of section 22 of the Supreme Court Act, the Supreme Court shall have the power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.

There is, therefore, nothing in the High Court Act or Supreme Court Act, so the appellant argues, that takes away the power of the Supreme Court to entertain an appeal from the High Court. The only limitation is in respect of an order of Constitutional invalidity which must be confirmed by the Constitutional Court before it has any effect.

The appellant has further submitted, that, in light of the wording of section 175(3) of the Constitution, any interested person has a right to appeal or apply directly to the Constitutional Court to confirm or vary the order of constitutional validity.

Subsection (3) of section 175 of the Constitution refers to a court order made in terms of subsection (1) of that section, which subsection provides for an order of constitutional invalidity. The reference, in subsection (3), to an order concerning constitutional validity in terms of subsection (1) restricts the meaning of subsection (3) to orders of constitutional invalidity only.

In other words, the right to appeal to the Constitutional Court is restricted by the fact that such a right only applies to an order of constitutional invalidity provided for in subsection (1).

Further, Rule 31 of the Constitutional Court Rules refers to an order of constitutional invalidity and not an order of constitutional validity. The express mention of orders of constitutional invalidity excludes orders of constitutional validity.

In the event that the Supreme Court declares a law to be invalid, then, that order has to be confirmed by the Constitutional Court.

RESPONDENT'S SUPPLEMENTARY SUBMISSIONS

The respondent does not accept the appellant's submissions in this regard and submits that the Supreme Court has no jurisdiction to hear and determine such an appeal, because, in terms of section 175(1) of the Constitution only the Constitutional Court is empowered to confirm or vary an order concerning constitutional validity by any court.

Subsection (3) of section 175 of the Constitution refers to an order concerning constitutional validity by a court in terms of subsection (1). If subsection (1) and (3) of section 175 are read together, it becomes apparent that section 175 of the Constitution refers not only to orders of constitutional invalidity but also orders of constitutional validity.

Only the Constitutional Court is empowered to confirm or vary an order of Constitutional invalidity.

The Supreme Court would be unable to sufficiently deal with the issue of constitutional validity or invalidity of any law and is not in a position to vary or confirm any order concerning constitutional validity of any law. Although the Supreme Court is the final court in non-constitutional matters, it cannot usurp the powers of the Constitutional Court in this regard.

ISSUE(S) ARISING FOR DETERMINATION

From the foregoing, it seems to me that two broad issues arise for determination before this Court:

(i) The first is whether an order of constitutional validity by the High Court can be appealed against to the Supreme Court rather than directly to the Constitutional Court.

(ii) The second is whether the Presidential Powers (Temporary Measures) Act is consistent with the Constitution of Zimbabwe.

I proceed to deal with these two issues in turn.

The question whether an order of constitutional validity is appealable to the Supreme Court is one of interpretation. To determine the question there is need to look at the provisions of the Constitution that have a bearing on this issue.

One must, I think, start with section 167(3) of the Constitution which states as follows:

“(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional and must confirm any order of constitutional invalidity made by another court before that order has any force.”

Section 169(1) of the Constitution, in turn, provides:

“169 JURISDICTION OF SUPREME COURT

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

This is then followed by section 175 of the Constitution which provides, in relevant part, as follows:

“175 POWERS OF COURTS IN CONSTITUTIONAL MATTERS

(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.

(2)…,. (Not relevant)

(3) Any person with a sufficient interest may appeal or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

(4)…,. (Not relevant)

(5) An Act of Parliament or rules of court must provide for the reference to the Constitutional Court of an order concerning constitutional invalidity made in terms of subsection (1) by a court other than the Constitutional Court.”

CONSTITUTIONAL INTERPRETATION

In Mawarire v Mugabe & Ors 2013 (1) ZLR 469, the Constitutional Court of Zimbabwe remarked as follows…,:

“In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear: see Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580.

If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense: see The Sussex Peerage (1843-1845) 65 RR 11 at 55.

In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it.”

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning. Various decided cases have also stressed the need for a generous and purposive interpretation to give expression to the underlying values of the Constitution.

In S v Makwanyane 1995 6 BCLR 665 (CC) the Constitutional Court of South Africa also stated, that, the provisions of the Constitution should not be construed in isolation but in their context.

It is permissible to have regard to the purpose and background of the legislation.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653 A…, that:

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.

But, it may be useful to stress two points in relation to the application of this principle.

The first is that 'the context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

A further consideration in the interpretation of a statute is that the legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words it uses in an enactment.

Therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had, not only to the literal meaning of the words, but, also to their practical effect.

In this respect, the words in question must be capable of an interpretation that is consistent with the rest of the instrument in which the words appear.

In interpreting the provisions of the Constitution, it is, as stated, necessary to adopt a broad and generous approach and also to ensure that all the relevant provisions on the subject are considered.

As stated in Attorney-General v Dow (1992) BLR 119 (CA)…,:

“…, the very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution.”

Indeed, section 46 of our Constitution, which deals with the interpretation of Chapter 4, makes it clear, that, such interpretation must pay due regard to all the provisions of the Constitution, and, in particular, the principles and objectives set out in Chapter 2.

Section 331 of the Constitution, in turn, provides that section 46 of the Constitution applies, with any necessary changes, to the interpretation of the rest of the Constitution.

APPEAL AGAINST AN ORDER OF CONSTITUTIONAL VALIDITY – TO WHICH COURT DOES IT LIE

The Constitutional Court Rules 2016, in Rule 21, make provision for the matters that do not require the leave of the court. These include “appeals in terms of section 175(3) of the Constitution, against an order concerning the constitutional validity or invalidity of any law.”

It is apparent that the framers of the Rules considered that even an order of constitutional validity could be the subject of an appeal directly to the Constitutional Court and that leave to appeal was not necessary in such a case.

One must, I think, accept that the ordinary literal and grammatical interpretation of section 175(1) of the Constitution is that an order concerning the Constitutional invalidity of any law has no force or effect unless confirmed by the Constitutional Court. In my view, such an interpretation is in accord with section 169(3) of the Constitution which makes it clear that the Constitutional Court must confirm any order of constitutional invalidity made by another court before that order has any force.

The real question, as already noted, is: which court should hear and determine an appeal against an order of constitutional validity?

The Constitution has not, itself, stated to which court such an appeal shall lie.

It should also be accepted, that, in general, appeals from the High Court lie with the Supreme Court.

Section 169(3) of the Constitution, however, makes it abundantly clear, that, the Constitutional Court makes the final decision whether an Act of Parliament is constitutional.

It does not state that the Constitutional Court only makes the final decision on whether an Act of Parliament is invalid.

The clear intention that comes out from a careful reading of that section is that it is the Constitutional Court that makes the final decision on whether an Act of Parliament is constitutional or not. That means the Constitutional Court makes the final decision whether an Act of Parliament is valid or not.

In the event that an order of constitutional invalidity is made by a lower court, such an order has no effect until the Constitutional Court has confirmed such invalidity.

Section 175(3) of the Constitution provides, that, an interested person may appeal or apply directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

Whilst the subsection refers to subsection (1), it also refers to “an order concerning constitutional validity” – and not only constitutional invalidity.

An order concerning constitutional validity is exactly that. It is not limited to orders concerning constitutional invalidity only.

Taken together, therefore, sections 169(3) and 175(3) of the Constitution simply mean that an order of constitutional validity or invalidity may be appealed against directly to the Constitutional Court.

Bearing in mind that only the Constitutional Court makes the final decision on the validity of an Act of Parliament, it could not have been the intention of the legislature that an order concerning constitutional validity be the subject of an appeal to the Supreme Court in the normal way for the reason that the Supreme Court does not make the final decision on whether or not an Act of Parliament is valid.

Only the Constitutional Court has that jurisdiction.

In any event, the submission that an appeal against an order of constitutional validity should lie to the Supreme Court and not the Constitutional Court would result in a patent absurdity.

The Supreme Court is an Appellate Court and does not, itself, deal with matters at first instance. It does not itself declare, at first instance, an Act of Parliament to be valid or invalid.

Its powers, in terms of section 22 of the Supreme Court Act, are to confirm, vary, amend, or substitute the order appealed against. If it amends the order of the lower court, that amended order becomes the order of the lower court. Similarly, where it substitutes an order, that order becomes the order of the lower court.

In this case, the High court made an order that the impugned Act, the Presidential Powers (Temporary Measures) Act, was valid and constitutional.

The appellant wants this order set aside and replaced with an order declaring the Presidential Powers (Temporary Measures) Act unconstitutional.

Assuming, arguendo, that the Supreme Court were to agree with the appellant and grant the order substituting the order of the court a quo with one of constitutional invalidity, the Supreme Court would not itself have the power to refer the order to the Constitutional Court for confirmation. The order substituting the judgment of the High Court with one of invalidity would become a judgment of the High Court itself, to be actioned by that court.

The record would have to be returned to the High Court.

The High Court would, thereafter, refer the order of constitutional invalidity to the Constitutional Court for confirmation.

Such a process would be convoluted and unnecessary. An appeal from an order of constitutional validity directly to the Constitutional Court would resolve the issue of validity or invalidity once and for all.

Subsection (3) of section 175 of the Constitution could have been more elegantly worded to obviate possible confusion as to its interpretation.

It is garbled. Its gibberish.

Taking into account their ordinary signification, the words used in the subsection create uncertainty as to the real intention of the Legislature as regards appeals against orders concerning constitutional validity, which, no doubt, would include both orders of constitutional validity and invalidity.

One can understand a situation where a person with sufficient interest applies directly to the Constitutional Court to confirm an order of constitutional invalidity so that the order has force. It is, however, difficult to imagine an interested person appealing directly to the Constitutional Court to confirm an order, presumably made in its favour.

An interested person would, surely, appeal directly to the Constitutional Court to have an order either of constitutional validity or invalidity set aside and substituted with one to the contrary.

In the final analysis, however, it seems to me that the intention of the legislature was that appeals against both constitutional validity and invalidity be determined by the Constitutional Court, which has the jurisdiction to make the final decision in this regard.

Consequently, the appeal noted to this Court is invalid, and, for that reason, the matter ought to be struck off the roll.

For the sake of clarity, it must be stressed, that, it is the order of constitutional validity or invalidity which may be appealed directly to the Constitutional Court for that court “to confirm or vary” the order.

The right to appeal directly to the Constitutional Court does not apply to orders made in respect of other constitutional matters in which the Constitutional Court exercises concurrent jurisdiction with the other courts established under the Constitution.

In view of the above conclusion, it becomes unnecessary to consider the issue whether or not the Presidential Powers (Temporary Measures) Act is constitutional or not.

COSTS

The question whether an appeal lies to the Supreme Court from an order of constitutional validity is one that has hitherto not come before this Court. It is a question that was, at worst, moot.

In the circumstances, an order that each party bears its own costs would appear to me to be the most appropriate.

DISPOSITION

The order of constitutional validity should have been the subject of an appeal directly to the Constitutional Court and not to this Court. The appeal filed with this Court is, therefore, irregular and a nullity. The matter ought therefore to be struck off the roll.

In the result, the following order is made:

The matter is struck off the roll with each party paying its own costs.

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

This is an ordinary opposed application which the applicant turned into an urgent one. He did so through a letter which he addressed to the Registrar of this court. The letter is dated 20 February 2018. It reads, in part, as follows:“2. As you will be aware, the application, among ...

“2. As you will be aware, the application, among other things, seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] amended to Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

3. As you are aware of, the regulations we (sic) enacted on 15 September 2017 and therefore they will naturally expire by 15 March 2017.

4. In order to avoid a situation where arguments will be academic on aspects of the regulations, and given the fact that both parties have filed heads of argument in this matter, we seek that the matter be determined urgently.”…,.

It is evident, from the foregoing, that, the applicant was rushing against time.

However, the application was, in my view, not urgent. It was more of self-created urgency than it was urgent in the sense which the rules of court contemplate.

The Regulations were published on 15 September 2017. The applicant did not apply, as he should have done, shortly after the publication of the Regulations. He only filed his application some thirty-five (35) days after the event. He filed it on 20 October 2017. He did not explain the cause of the delay.

The form which he employed showed, that, the application should not have been enrolled on applications which fall under Rule 244 of the High Court Rules 1971. It did not have a certificate from a legal practitioner. It did not give reasons for its urgency. It was filed under Form 29 instead of under Form 29B of the rules of this court.

Urgency was, therefore, created by the applicant himself.

He suddenly became aware of the date of the expiration of the Regulations. He, accordingly, requested the Registrar to draw the court's attention to his predicament, and, in the process, he moved the court to hear the application before the period of the expiration of the Regulations.

The applicant used the Regulations as his point of entry into the substance of the application.

The application has less business with the Regulations. It, in fact, has more business with the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act [Chapter 10.20].

Paragraph 2 of the applicant's letter of 20 February 2018 is relevant in the mentioned regard.

He states, in the same, that, the application seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. This, in my view, is the thrust of the application.

The applicant describes himself as a Zimbabwean scholar, businessman, and human rights activist. He says he has a direct interest in issues which relate to the rule of law, constitutionalism, democracy, and Zimbabwe's electoral process.

I mention in passing, that, human rights activism and constitutionalism took root in Zimbabwe in the late 1980s and early 1990s. Many non-governmental organisations sprouted through the length and breadth of the country. Activists who fell into, and continue to remain in, this very important field of work brought the Government of the day to account for its conduct in such areas as the due observance of the rule of law, people's fundamental rights, democracy, and elections.

Persons of the mind of the applicant remain a thorn in the eyes of Government.

They made, and continue to make, it to remain on course. They criticized, and continue to criticize, the conduct of Ministers of Government and their Ministries. They, in short, remain a constant cause of concern to the three pillars of the State: namely, the executive, the judiciary, and the legislature. They worried, and continue to worry, the politicians especially those whose functions fall under the executive organ of the State.

Human rights activists are, therefore, a sine qua non aspect of any democratic order.

They make every effort to point out, as well as speak against, such deviant behaviour as corruption, inertia, unconstitutionalism and/or the absence of democratic principles. Their continued existence in a society is a most welcome development which governments the world over are encouraged to embrace and not ignore.

When such activists, as the applicant, request members of the executive to jump, the ideal situation is that the latter should not question why they are being asked to jump. The only question which they can, and should, ask is how high they should jump.

It is, therefore, in the context of the above stated matters, that this application would be considered as well as determined.

The applicant, it has already been stated, falls into the category of the above described group of persons. He lays stiff criticism on the continued existence of the Presidential Powers (Temporary Measures) Act.

He insists that the Presidential Powers (Temporary Measures) Act serves no meaningful purpose in an independent and democratic Zimbabwe. He advocates the strengthening, as well as the observance, of constitutional provisions which, he says, protect and advance the people's fundamental rights and freedoms. He lays emphasis on matters which relate to the rule of law, democracy, constitutionalism, and/or the doctrine of separation of powers amongst the three pillars of the State.

The thrust of the applicant's argument is that the Presidential Powers (Temporary Measures) Act is ultra vires the Constitution of Zimbabwe.

He submits that the President has abused the Presidential Powers (Temporary Measures) Act as and when he pleased.

The Presidential Powers (Temporary Measures) Act, he argues, allows the President to make law by decree as opposed to having the same made by Parliament which, in terms of the Constitution, is the law–making authority in Zimbabwe.

He insists that the Presidential Powers (Temporary Measures) Act must be struck off the country's statute books because its provisions are not consistent with those of the Constitution of Zimbabwe.

The application which is before me is unique.

It is unique in the sense, that, it is the first of its kind to test the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act after the coming into existence of the Constitution of Zimbabwe Amendment [No.20] Act of 2013.

The Presidential Powers (Temporary Measures) Act was promulgated in 1986. It survived all applications, and they were many, of the present nature. It did so largely because of some provision of the 1979 Constitution which provision ensured its continued existence in the country's statute books. That provision, it was argued, does not exist in the new Constitution which replaced the old one.

It follows, from the foregoing, that, case authorities which dealt with the continued existence or otherwise of the Presidential Powers (Temporary Measures) Act will not be of much assistance towards the determination of this application. The decisions were, no doubt, anchored upon the provision which ensured the retention of the Presidential Powers (Temporary Measures) Act.

The current application will, in the result, be decided on what, in my view, is the correct interpretation of the new Constitutional provisions.

It will be decided on the basis of provisions which define the role and functions of such State actors as the President, Parliament, and the Judiciary of an independent and democratic society such as the one in which we live.

I have already stated, in some part of this judgment, that, the applicant used the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017, as his point of entry into the application.

He criticizes the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which the President published on 15 September 2017. He says these are null, void, and of no force or effect.

He submits, that, only Parliament can make law in Zimbabwe. He insists that the President cannot do so.

He criticizes section 2(2) of the Presidential Powers (Temporary Measures) Act which he says purports to give to the President power to change, or over-ride, an Act of Parliament.

He states, that, the President's conduct, of publicizing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 is ultra vires the Act. He, therefore, moved the court to declare:

(a) The Presidential Powers (Temporary Measures) Act to be ultra vires the Constitution of Zimbabwe; or alternatively

(b) Section 2(2) of the Presidential Powers (Temporary Measures) Act a nullity; and

(c) The President's actions, of publishing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 to be ultra vires the Act.

He, in short, moved the court to make the declarations and set aside the Presidential Powers (Temporary Measures) Act as well as the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017 which flow from the same.

The respondent is the President of the Republic of Zimbabwe. He opposes the application.

He states, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017, which he published, were necessitated by the biometric voter registration exercise which the country adopted in preparation for the July/August 2018 election. He says everyone who was on the old voters roll was expected to register through the newly adopted voter registration system.

He avers that he did not act outside the law.

Section 2(2) of the Presidential Powers (Temporary Measures) Act, he says, confers authority upon him to publish the Regulations as he did.

He submits that he did not go beyond the powers which the Constitution of Zimbabwe confers upon him. He drew my attention to his executive functions which are contained in section 110(1) of the Constitution.

He denies that his conduct, in publishing the Regulations, violated the Presidential Powers (Temporary Measures) Act or the Constitution.

He submits that, under the common law, he has always enjoyed prerogative powers which allowed him to make temporary legislation in urgent situations. He states that the current Constitution did not abolish his prerogative powers.

He insists that the Presidential Powers (Temporary Measures) Act conferred power on him to make law in the general public interest. He avers that the Act recognizes Parliament's law-making function. He denies that the Act confers sweeping powers upon him.

He moved the court to dismiss the application with costs.

The application was well-researched, well-argued, as well as presented.

It drew my attention to a number of important case authorities which, in a large measure, addressed the concerns of the applicant.

It cited six cases of the South African Constitutional Court, four case authorities from the courts of the United States of America, four cases which the Privy Council decided, and two case authorities which the Supreme Court of India decided, among others.

The cited cases brought to the fore such pertinent matters as the supremacy of a country's Constitution, the doctrine of separation of powers, rule of law, and issues which pertain to procedural and/or substantive legality by such State actors as the respondent in casu.

The cases were, no doubt, rich, informative, thoroughly persuasive, as well as educative.

That having have been said, sight must not, however, be lost of the fact that each case to which the applicant drew my attention was decided in context. The decision was not plucked from thin air and placed on paper. It was based on the country's Constitution and other pieces of legislation which were relevant to the case. The court was, in each case, interpreting the law as it existed in its jurisdiction as measured against the facts of the matter which was then before it.

I mention, at this stage, that, the facts of the cases to which the applicant drew my attention remain unknown to me. I also state that the Constitutions and other pieces of legislation which influenced the decision of the court in each cited case were not availed to me. My attention was only drawn to the important dicta which the courts pronounced in each case.

The above stated matters make it hard, if not impossible, for me to go along with the decided case authorities. That is so notwithstanding their persuasive value. I cannot, in other words, conclude that what the court in America, or India, or South Africa pronounced should apply to the case which is before me.

Judicial work does not work in a vacuum. It operates upon a set of rules, chief among which is a country's Constitution and any legislation which is relevant to a case which is being decided. It interprets the law as it exists in a country's Constitution and other law. It interprets those against a certain set of stated matters.

The current application will, therefore, be decided in the context of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 as read with the Presidential Powers (Temporary Measures) Act [Chapter 10:20] [“the Act”] and matters which relate to the two pieces of legislation.

Amongst such matters is the birth of a new voters roll which the President made mention of in his opposition to the application.

The President made law when he published the 2017 Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017. He rested his law-making conduct on section 2 of the Presidential Powers (Temporary Measures) Act.

The section allows him to make law, albeit of a temporary nature, in certain circumstances of urgency.

The section reads, in the relevant portion, as follows:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to this Constitution and this Act, the President may make such regulations as he considers will deal with the situation.”

It is evident, from the above-cited portion of the section, that, the President's discretion to make Regulations is only exercisable by him in the interests of the people of Zimbabwe as a whole. He does not exercise the discretion in the interests of a section of the population of the country. The use of the word 'public' which appears in the various facets for which the discretion is exercised says it all.

The President did not publish the Regulations for the fun of it.

He did not, as the applicant alleges, make an effort to abuse the law making function which the Presidential Powers (Temporary Measures) Act confers upon him. He states, and correctly so, that the advent of the biometric voter registration exercise which Zimbabwe contemplated to put into place made it necessary for him to act as he did.

His contention, with which l agree, was that the advent of a new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the times-lines of the forthcoming 2018 harmonised election. It was, according to him, out of necessity and urgency that he published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017.

He insists, and l agree, that the preparation of the new voters roll, as measured against the July/ August 2018 election, was not an event but process.

The background of the matter which relates to the publication of the Regulations is relevant.

I take judicial notice of the fact, that, for a considerable length of time in the past, the people of Zimbabwe urged Government to:

(i) Do away with the old voters roll which they said contained a lot of inconsistencies as well as unnecessary features;

(ii) Replace it with a new voters roll which was more credible than the old one. A voters roll which was credible in terms of voter population, its density in a particular area, and detail;

(iii) Remove the voters roll from the office of the Registrar-General and place it within the domain of the Zimbabwe Electoral Commission.

It is my view that the applicant, and others of a like mind, were at the forefront of the stated matter.

He made a statement to an equal effect in his founding affidavit. He and other human rights activists urged and encouraged Government to address their abovementioned concerns. They insisted that its attention to the same would render the forthcoming July/August 2018 election more credible than otherwise.

The President, as Head of State and Government, heeded the call of the people of Zimbabwe.

He remained alive to the fact, that, whatever was to be achieved in response to the people's concerns was to be supported by some law. He, therefore, published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which, in his view, would take the place of the law which Parliament was constrained to make within the time which preceded the election.

That the President complied with the procedural legality of the Presidential Powers (Temporary Measures) Act requires little, if any, debate.

He, as the applicant stated, published the Regulations. He published them on 15 September 2017. He did so after he had notified the people of Zimbabwe of his intention to publish the same. He, in the mentioned regard, made substantial compliance with section 3 of the Presidential Powers (Temporary Measures) Act.

It cannot, in view of the above stated matter, be suggested that the President's conduct, in publishing the Regulations, was ultra vires the Presidential Powers (Temporary Measures) Act. He published them in terms of an existing law. The law conferred upon him the power to act as he did. He followed the procedural aspects of that law to the letter and spirit.

His conduct was above reproach. It was, and it remains, valid.

I have already stated, in the foregoing portions of this judgment, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 are not the subject of this application.

The subject, from the perspective of the applicant, is the Presidential Powers (Temporary Measures) Act itself.

If the Regulations were the issue, the applicant would have invoked section 3(1)(b) of the Presidential Powers (Temporary Measures) Act as read with subsection (2) of the same. He would, in other words, have objected to the publication of the Regulations when the President made his intention known to him, and others, through the Government Gazette Extraordinary, Volume XCV No.61.

The fact that the applicant did not object to the publication of the Regulations, at the time that the President's intention appeared in the Gazette, shows his real intention.

The intention is that he wanted to use the Regulations, after they had been published, as his entry point into criticizing the substance of the Presidential Powers (Temporary Measures) Act.

The observed matter, therefore, takes the discourse to the substantive legality or otherwise of the Presidential Powers (Temporary Measures) Act.

Whether or not the Presidential Powers (Temporary Measures) Act is substantively legal depends on the provisions, if any, of the Constitution which relate to it. This, in a nutshell, refers to the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act.

The question which we should ask and answer centres on whether or not the law-making function of the President, as conferred upon him by the Presidential Powers (Temporary Measures) Act violates the Constitution of Zimbabwe.

The same question, put differently, would read: did Parliament act within or without the Constitution when it conferred some of its law-making function in the Presidential Powers (Temporary Measures) Act to the President?

Succinctly and boldly stated, the same question reads: Is the Presidential Powers (Temporary Measures) Act in compliance with the Constitution of Zimbabwe (No.20) Act of 2013 (“the Constitution”)?

The legislative authority of Zimbabwe is reposed in the Legislature. This comprises Parliament and the President acting in accordance with this Chapter.

Sections 116, 117 and subsections (2), (3), 5(a), 6(a) and (b), 7(a), 8(a) and (b), (9) and (10) of section 131 of the Constitution of Zimbabwe spell out the complimentary roles which Parliament and the President play in Zimbabwe's law-making process. They check and balance each other's work. The one cannot make law without the input of the other and vice-versa.

The fact that the President can, in terms of section 131(8)(b) of the Constitution as read with subsection (9) of the section, refer a Bill to the Constitutional Court for advice on its constitutionality shows that the judiciary is, to some extent, involved in the law-making process. It ensures that all Bills which Parliament and the President pass into law must comply with the Constitution of Zimbabwe.

The checks and balances which exist in section 131 of the Constitution also exist in section 4 of the Presidential Powers (Temporary Measures) Act.

The President does not, therefore, have sweeping powers as the applicant alleges.

The Regulations which he makes are, as of necessity, subject to Parliamentary review and/or scrutiny. It is within the domain of Parliament to resolve that any Regulations which have been laid before it be either amended or even repealed. Once such a resolution has been made, the President has no option but to comply with the resolution of Parliament.

It follows from the foregoing, therefore, that, complete separation of powers of the three organs of the State, i.e the Executive, the Legislature and the Judiciary, is a myth. It is not achievable in the context of the Constitution of Zimbabwe.

I, in the mentioned regard, associate myself fully with the views which the Constitutional Court of South Africa was pleased to express in Ex parte Chairperson of the Constitutional Assembly: In Re: Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744. It stated…, as follows:

“There is, however, no universal model of separation of powers, and, in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation that is absolute….,.

The principle of separation of powers, on the one hand, recognizes the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense, it anticipates the necessary and unavoidable intrusion of one branch into the terrain of another. No constitutional scheme can reflect a complete separation of powers: The scheme is always one of partial separation.”…,.

The President's necessary and unavoidable intrusion into the function of Parliament is evident from a reading of section 86 of the Constitution. The section deals with the limitation of the people of Zimbabwe's fundamental rights and freedoms. It reads, in part, as follows:

“86 Limitation of Rights and Freedoms

(1) The fundamental rights and freedoms set out in this chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(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)…,.;

(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….,.”…,.

The question which begs the answer is: who/which authority has the power to limit the people of Zimbabwe's fundamental rights and freedoms when any of the matters which are stated in section 86(2)(b) of the Constitution has arisen or is about to occur?

The applicant does not mention the person or authority who/which, in terms of a law of general application, can limit the people's rights and freedoms.

The limitation, no doubt, has far-reaching consequences. It relates to matters which, if left unattended, adversely affect a considerable portion of Zimbabwe's population - if not the people of Zimbabwe as a whole.

The President says the Presidential Powers (Temporary Measures) Act and the Constitution confers upon him that power to deal with any of the matters which are stated in section 86(2)(b) of the Constitution when such have arisen or are about to occur.

He states, in casu, that, it was in the interest of the general public of Zimbabwe that he made the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017.

That the general public interest was real as opposed to having been fanciful requires no debate. That was so, given the people's outcry for a new voters roll which had to replace the old one with which they were not satisfied.

Parliament could not make law within the time which remained to deal with the situation which was then at hand. Whatever process which pertained to the introduction into the country of a new voters roll required some law to be in place before it could be embarked upon.

The President, therefore, made that law in line with his law-making function as was provided for in the Presidential Powers (Temporary Measures) Act and the Constitution.

The verbatim repetition of section 86(2)(b) of the Constitution in section 2(1)(a) of the Presidential Powers (Temporary Measures) Act confirms the Constitution's recognition of the Presidential Powers (Temporary Measures) Act.

The stated matter confirms further, that, it is only the President who has the power to limit, through the Presidential Powers (Temporary Measures) Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution. Those can be limited when certain undesirable occurrences have arisen or are about to arise.

The President limits them in the interests of Zimbabwe's public good.

The drafters of the Constitution were, in my view, alive to the existence of the Presidential Powers (Temporary Measures) Act.

They crafted section 134 of the Constitution to confer power on Ministers of Government and such statutory bodies as the Zimbabwe Electoral Commission to make subsidiary legislation. They state, in the section, that, the legislation which these make should not go outside the enabling Act which establishes their law-making function.

Because the President's law-making power exists in the Presidential Powers (Temporary Measures) Act, the drafters of the Constitution did not include it in section 134 of the Constitution.

Because his powers, as stated in section 86(2)(b) of the Constitution, relate to limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.

Paragraphs (b), (c) and (d) of the section would have disenabled him from effectively dealing with situations of disastrous consequences which he has to address in his capacity of Head of State and Government when such arise.

It was for the mentioned reasons, if for no other, that the Presidential Powers (Temporary Measures) Act conferred upon him power to deal with any situation which, in his view, would work against Zimbabwe's public interest in an adverse manner.

Section 5 of the Presidential Powers (Temporary Measures) Act accords to him the leeway to deal with the situation which would have arisen or is about to occur in a very effective as well as conclusive manner.

It allows him to override an Act of Parliament where such is necessary in the interests of the public good of Zimbabwe.

It makes little, if any, sense for the applicant to suggest that Ministers, whom the President appoints into cabinet, can make subsidiary legislations under section 134 of the Constitution and the appointing authority himself cannot.

The applicant's reading of section 134 of the Constitution is misplaced.

He overlooks the fact, that, its application relates to the making of law by Ministers of Government and statutory bodies. He remains oblivious to the fact, that, the President's law-making function is not covered under the section but under the Presidential Powers (Temporary Measures) Act and the Constitution.

The President states, and I agree, that, section 110(1) of the Constitution confers upon him the power to make law. It reads:

“(1) The President has the powers conferred by this Constitution and by any Act of Parliament or other law including those necessary to exercise the functions of Head of State.”…,.

It is his status, as Head of State and Government, which allows him to limit the people of Zimbabwe's fundamental rights and freedoms when a need to do so arises or is about to occur.

He will be complying with his duties as the President of Zimbabwe in the mentioned regard.

He will be, as is stated in section 90(2)(a) of the Constitution, promoting unity and peace for the benefit and well-being of the people of Zimbabwe.

It is evident, from the foregoing, that:

(a) The conduct of the President was not ultra vires the Presidential Powers (Temporary Measures) Act;

(b) The Regulations which he published were procedurally and substantively compliant with the law under which they were made; and

(c) The Presidential Powers (Temporary Measures) Act is not ultra-vires the Constitution of Zimbabwe.

The applicant, in my view, confused the President's ordinary law-making function, as it is stated in Chapter 6 of the Constitution, with his law making function as it exists in the Presidential Powers (Temporary Measures) Act as read with sections 86 and 110 of the Constitution.

He sought to do away with the President's law-making power as it is contained in the Presidential Powers (Temporary Measures) Act.

The Presidential Powers (Temporary Measures) Act, it has already been observed, is in complete harmony with the Constitution.

The application constituted an interesting exercise of the mind. It was more academic than it was real. It was devoid of merit. It cannot, therefore, stand.

The applicant did not prove his case on a balance of probabilities. The application is, accordingly, dismissed with costs.

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Zimbabwe

Rules of Construction or Interpretation re: Recognition, Ousting and Alteration of Common Law by Statute Law

SC26-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs HERBERT PASIPANODYA
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O.
Ruled By: BERE J

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

View Appeal
HH273-10 : WYNINA (PRIVATE) LIMITED vs MBCA BANK LIMITED
Ruled By: PATEL J

HH33-11 : ALAN McGREGOR vs NEHEMIAH SABURI and ATTORNEY GENERAL and OTHERS
Ruled By: CHIWESHE JP

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

SC31-10 : COMMERCIAL FARMERS UNION and OTHERS vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

Appealed
SC50-18 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

View Appeal
HH964-15 : ECONET WIRELESS (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL and STEWARD BANK LTD and CBZ BANK LTD and NMB BANK LTD and STANBIC BANK LTD
Ruled By: MUSAKWA J

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

SSC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

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

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.)
Ruled By: CHIWESHE JP

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

Categories

Law Portal Zimbabwe

Rules of Construction or Interpretation re: Recognition, Ousting and Alteration of Common Law by Statute Law

SC26-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs HERBERT PASIPANODYA Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER) Ruled By: PATEL J

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS Ruled By: GOWORA J

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O. Ruled By: BERE J

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

View Appeal HH273-10 : WYNINA (PRIVATE) LIMITED vs MBCA BANK LIMITED Ruled By: PATEL J

HH33-11 : ALAN McGREGOR vs NEHEMIAH SABURI and ATTORNEY GENERAL and OTHERS Ruled By: CHIWESHE JP

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

SC31-10 : COMMERCIAL FARMERS UNION and OTHERS vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS Ruled By: KUDYA J

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

Appealed SC50-18 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

View Appeal HH964-15 : ECONET WIRELESS (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL and STEWARD BANK LTD and CBZ BANK LTD and NMB BANK LTD and STANBIC BANK LTD Ruled By: MUSAKWA J

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD Ruled By: MATANDA-MOYO J

SSC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

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

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.) Ruled By: CHIWESHE JP

Appealed SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

View Appeal HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: MANGOTA J

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Law Portal
Zimbabwe

SC26-12 : CHIKOMBA RURAL DISTRICT COUNCIL vs HERBERT PASIPANODYA
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

SC43-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM (PRIVATE) LIMITED
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GARWE JA, HLATSHWAYO JA and GUVAVA JA

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

HH190-10 : NGONI MUDEKUNYE and GLADYS CHAMUTSA and MASIMBA MUDEKUNYE and TAMBURIKA MUDEKUNYE vs AARON EVANS MUDEKUNYE and BERTHA MUDEKUNYE and DEPUTY SHERIFF CHIPINGE N.O.
Ruled By: BERE J

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

View Appeal
HH273-10 : WYNINA (PRIVATE) LIMITED vs MBCA BANK LIMITED
Ruled By: PATEL J

HH33-11 : ALAN McGREGOR vs NEHEMIAH SABURI and ATTORNEY GENERAL and OTHERS
Ruled By: CHIWESHE JP

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

SC31-10 : COMMERCIAL FARMERS UNION and OTHERS vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and CHEDA AJA

HH06-09 : MARIA KATSIGA vs HILDA CHARLIE and NYASHA MACHAKAIRE and MASTER OF HIGH COURT and REGISTRAR OF DEEDS
Ruled By: KUDYA J

SC48-18 : THANDEKILE ZULU vs ZB FINANCIAL HOLDINGS (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA, HLATSHWAYO JA, GUVAVA JA and UCHENA JA

Appealed
SC50-18 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: HLATSHWAYO JA, BHUNU JA and UCHENA JA

View Appeal
HH964-15 : ECONET WIRELESS (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL and STEWARD BANK LTD and CBZ BANK LTD and NMB BANK LTD and STANBIC BANK LTD
Ruled By: MUSAKWA J

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

SSC71-21 : TUNGAMIRAI MADZOKERE and YVONE MUSARURWA and LAST MAENGAHAMA and PHINEAS NHATARIKWA vs THE STATE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

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

HH183-12 : ALEX CHIMHOWA and OTHERS vs JOYCE CHIMHOWA (nee MASUKWEDZA) and FREMUS EXECUTOR SERVICES (PVT) LTD (N.O.) and MASTER OF HIGH COURT (N.O.) and CITY OF HARARE (N.O.)
Ruled By: CHIWESHE JP

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J