Final Orders re: Confirmation or Discharge of Interlocutory Restraining Orders and Provisional Orders

HH70-12 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs MUNYARADZI SEFAIDIGA and BLESSING MUNYORO
Ruled By: HUNGWE J

On the return day of the rule nisi I confirmed the provisional order and dismissed the counter application indicating that the reasons will follow. These are the reasons. This is the return day of the rule nisi issued by this court on 10 May 2007 interdicting the two respondents (applicants in the counter-application hereinafter referred to as ...

On the return day of the rule nisi I confirmed the provisional order and dismissed the counter application indicating that the reasons will follow. These are the reasons.

This is the return day of the rule nisi issued by this court on 10 May 2007 interdicting the two respondents (applicants in the counter-application hereinafter referred to as “respondents” or “first and second respondents”) from using the applicant's (respondent in the counter application hereinafter referred to as “applicant”) two Mercedes Benz motor vehicles registration numbers AAA 3378 and AAA 4417 and directing the respondents to surrender to the applicant the said motor vehicles immediately.

The applicant undertook not to re-allocate two of its senior staff members the said motor vehicles pending the return day.

The respondents complied with the terms of the order requiring them to surrender to the applicant but have filed a counter-application seeking an order that the present applicant be ordered to surrender the two motor vehicles to the respondents upon tender and payment of the amount due to it for the value of the two motor vehicles.

This application and counter application arose out of the following facts:

The applicant employed the first and second respondents as Finance Director and Operations Director respectively. The applicant is the lawful owner of the two Mercedes Benz motor vehicles. It allocated the use of the motor vehicles to the respondents in terms of its company vehicle policy. Sometime in February 2007 the applicant's Board of Directors had reason to cause a forensic audit to be carried out within the applicant. A forensic audit report produced after the audit investigations revealed possible fraudulent and prejudicial conduct by the two respondents. The forensic audit report, which is part of the papers, reveals that the investigations included seeking explanations from the respondents and recording such explanations as they would have given. When the findings and conclusions of the forensic audit report were put to the respondents, they both offered to resign with immediate effect.

They both refused to hand over the two vehicles on the ground that they were entitled to purchase the motor vehicles from the applicant. This necessitated the chamber application resulting in the present litigation.

The applicant argues that the provisional order should be confirmed as the final order since;

(a) The applicant has not, in the exercise of its discretion, granted the two respondents the option to purchase the two motor vehicles; and

(b) The employees leaving its service are required to surrender the vehicles.

The first and second respondents, on the other hand, contend that the provisional order be discharged and that the applicant be directed to surrender the two motor vehicles to them up on tender of the value of the motor vehicles.

The respondents ground their counter-application on the following basis.

During their term of employment with the applicant, the applicant came up with an executive car policy which governed the acquisition and use of motor vehicles by senior employees. The first and second respondents contend that the scheme entitled them to exercise an option to purchase the motor vehicles which they were using at the time of resignation. Upon resignation, the respondents notified the applicant that they were exercising the option to purchase the motor vehicles for which the purchase price would be fixed in accordance with the applicant's executive car policy.

The right to the motor vehicle accrued at the time of the purchase of the motor vehicle; this is demonstrated by the registration of the motor vehicle in the respondents' names. They contend that they are entitled, upon exercise of the option, to the motor vehicles. The respondents also draw the court's attention to the fact that they are in a possession of the two motor vehicles' registration books.

The issue in this dispute, in my view, is whether, upon a proper interpretation of the applicant's motor vehicle policy scheme, the respondents have an enforceable right to purchase the two motor vehicles. Put differently, did the counter-applicants hold an option exercisable against the counter-respondent to purchase the two motor vehicles upon their resignation from employment?

In order to answer this question, regard must be had to the document which both parties agree governed the use of motor vehicles by the first and second respondents.

In interpreting the document, the court will give effect to the ordinary grammatical meaning of the words used unless the context clearly requires otherwise. It will be clear from the opening paragraph of the executive car policy document that it was formulated so as to uphold the principle of ensuring improved welfare of the applicant's key staff through the provision of a motor vehicle benefit designed to motivate and retain skilled personnel.

Clause 4 deals with the replacement period of the vehicle. It states that a company vehicle shall be due for a replacement or renewal after a period of five years from the date of manufacture. Clause 5 goes on to spell out that the executive using the vehicle due for a replacement will be given the first option to purchase the vehicle and the fixing of the price. It states that an application to exercise the option to purchase the vehicle will be processed in line with the relevant provisions of the policy. That same paragraph gives detail to what happens when an employee is promoted to a higher grade. Clause 6 is titled Vehicle Operating Expenses and sets out what the employer will pay for. Clause 7 spells out the responsibilities of the company vehicle operator. Clause 8 is titled Administration and Control. In terms of this clause the Group Company Secretary keeps custody of the motor vehicle registration books at all times even though, at purchase, the motor vehicle is registered in the name of the employee in terms of clause 2.

Management reserved the right to withdraw the company car facility at its discretion where there is evidence of abuse of allocated vehicle in terms of clause 8. Under clause 8 as well, an employee who leaves the company is required to surrender the vehicle and all accessories to the Group Managing Director with the option provided for them to purchase the vehicle as provided for under clause 5.

Clause 9 deals with interpretation and application of the policy and states that this is the responsibility of the Board. Clause 10 specifically states that “…, all provisions under this policy are at the discretion of the Group Managing Director or Chairman of the Board subject to cash flow availability.”

The first and second respondents argue that Clause 8 creates the option which they exercised by written notice of election to purchase the vehicles upon their resignation.

The question that arises is whether the option in clause 8 creates legally binding consequences between the parties. In other words: is the “option” an option in the legal sense of the word?

The Dictionary of Legal Words and Phrases, 2^nd edition, Vol. 3…, defines an option as follows;

“An option is an 'offer' which is irrevocable by the grantor during the period stipulated in the contract, or, if there be no such provision, within a reasonable time. See also: Van Pletsen v Henning 1913 AD 98; Annamma v Moodley 1943 AD 538; Hersch v Nel 1948 (4) SA 695; Brand v Spies 1960 (4) SA 14.

If the option be exercised, the potential contract contemplated by the parties to the option agreement is complete.”

It is contented, on behalf of both the respondents, that the applicant made an irrevocable offer in clause 8 of its policy.

In Bilodeh Properties (Pty) Ltd v Wilson 1946 NPD 736…, an option was defined thus:

“A true option is nothing more than an offer by one party to the contract to the other; which offer remains open according to the terms of the contract. The option holder has merely to accept the offer in the manner, and within the time prescribed by the contract, and a new contract comes into existence between him and the other party…,.”

In Wasmuth v Jacobs 1987 (3) SA 629 (SWA) it was explained that:

“An option constitutes nothing more than an offer coupled with an arrangement (express or implied) to keep the offer open for a certain period of time…,. It is fundamental to the nature of any offer that it should be certain and definite in its terms. It must be firm, that is, made with the intention that when it is accepted, it will bind the offeror. Efroiken v Simon 1921 CPD 367 @ 370; Finestone v Hamburg 1907 TS 629 @ 632…,.

Therefore, if an offer, which is an essential element of any option, is vague on all capable of more than one meaning, it is open to the offeror to contend that it is not capable of being accepted and thereby convert it into a binding contract. Where there is an 'offer' which provides that certain terms were to be 'renewed' or to be 'negotiated' or to 'stand over' for decision at a later stage, then, pending agreement on such outstanding terms, neither party has any rights against the other.”

OK Bazaars v Bloch WLD 37; Wilson Bros Garage v Texas Co (SA) Ltd 1936 NPD 386. See also Film and Video Trust v Mahovo Enterprises (Pvt) Ltd 1993 (2) ZLR 191 (H).

The contention by the respondents is that the provisions of clause 8 constitute an option exercisable against the applicant. Once exercised, it became binding.

I disagree.

It will be clear from the above authorities that even assuming in favor of the first and second respondents that “option” existed there is no offer capable of such acceptance by the offeree as would legally bind the offeror. There is no definite period within which the “option” would remain open. The terms of the offer cannot be implied. It is not contended that the terms of the sale agreement was spelt out expressly since price of the motor vehicles was not yet fixed. In any event, there is repeated reference to the discretion of the management, in clause 5, to which clause 8 refers, such that it cannot be said with certainty that there existed a formula to fix a price as the decision to sell depended on the discretion of management.

I am fortified in my interpretation by the principle espoused at the commencement of the policy document that the intention was never to make the document a contract which binds the employer to sell its motor vehicles once an employee applied for that. The document makes it clear that the policy is to retain personnel not to reward ex-employees. Such a benefit can only be extended to an ex-employee, if, in the discretion of management or Board of Directors, such employee merited it.

That is not the position here.

In any event, that is not the interpretation given to the policy document by the parties. The fact that the applicant allowed its vehicles to be registered in its employees names cannot, in my view, be construed as bestowing any right to purchase the motor vehicles on the employees. It does not advance the respondents' argument nor does it destroy the applicant's argument. It merely reinforces the spirit espoused by the policy which is to retain key personnel and nothing more. In my view, the two motor vehicles remain the property of the applicant. It is therefore ordered as follows:

The provisional order is confirmed. The counter application by the respondents is dismissed with costs.

Appealed
HB07-12 : GOLDEN MOYO vs STEPHEN MKOBA and DISTRICT ADMINISTRATOR, MIDLANDS PROVINCE and GOVERNOR, MIDLANDS PROVINCE and MINISTER OF LOCAL GOVERNMENT and PRESIDENT OF ZIMBABWE
Ruled By: NDOU J

There are two matters in this case.

The first matter, HC1369/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under case number HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The background facts of the matter are the following:

The applicant is the first born son of Jackson Moyo, the last Chief Bunina of Lower Gweru, who died sometime in June 2003. In turn, the late Jackson Moyo had taken over the chieftainship as substantive Chief Bunina from his late father, Mantiya. After the death of Jackson Moyo, the applicant was appointed acting Chief Bunina in May 2004 and his term as acting Chief was set to expire, and did expire, in May 2006.

Meanwhile, meetings were conducted between Ministry of Local Government officials and the Bunina family to select the substantive Chief Bunina where the first respondent emerged as a claimant to the throne.

It is common cause, that, the late Chief Bunina had more than one family, i.e. he had different wives: the eldest of which was the mother of Mantiya, the applicant's grandfather, who also ruled as Chief Bunina. The first respondent's father, Mkoba, was one of the sons of Chief Bunina's wives.

The first respondent's claim to the chieftainship does not seem to be based on a recognizable Ndebele system of succession, custom, or tradition of the clan but merely on some kind of election or poll conducted by Local Government officials.

This is captured in the memorandum dated 28 August 2006 from the Midlands Provincial Administrator to the Minister of Local Government, Public Works and Urban Development. In this memorandum, the Provincial Administrator states:

“1. Subject to the Traditional Leaders Act [Chapter 29:17], section 3, the President shall appoint Chiefs to preside over Communal and Resettlement areas.

2. Subject to subsection 2, the President shall give due consideration to the prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside, and the administrative needs of the communities in the area concerned in the interest of good governance.

3. The last incumbent in the Bunina Chieftainship was Golden Moyo whose acting term has since expired. In line with the requirement of Circular No.38 of 2004, the District Administrator held a selection meeting on the 21st of June 2006. The meeting was chaired by D.A. Kwekwe, Ms Muzenda, assisted by D.A. Gweru, Mr Maguma, with the Provincial Administrator and Mr Mukwaira (Traditional Support Services Director).

Though there was no succession among the family, what sufficed was that Stephen Mkoba was chosen by the majority of the houses. The decision to appoint Stephen Mkoba from the families, though non-procedural and non-congruent with either the bilateral or collateral system was welcome by this office in the best interest of the Chieftainship as continued squabbles derail the operations of Chiefdom.

4. This office support [sic] the nomination of Stephen Mkoba I.D. 29-063837 B29 as substantive Chief Bunina premised on the above-mentioned light….,.”…,.

The applicant protested this nomination of the first respondent to the President's office resulting in the selection process being re-opened.

The Minister of Local Government gathered stakeholders in 2007 and advised them to consult among themselves promising to return to finalise the process.

Before the above-mentioned recommendation was sent to the Minister, there was a selection meeting held on 21 June 2006. In this meeting, the Mantiya family, Mkoba family, Lugwalo family, and Mpabanga family were represented. The applicant, the first respondent, the second respondent attended the meeting. A total of twenty-two persons represented the above-mentioned family.

At this meeting, the Mantiya family traced their chieftainship as having come with Bunina from Matojeni with a group of followers who came and settled in the Lower Gweru. According to them, the chieftainship did not cascade across to the brothers but to the sons i.e. bilateral system of succession. In this regard, Mavu's descendents, being the eldest wife, were eligible to the throne. The Mantiya family highlighted the fact, that, although the Bunina's were of Rozvi origin, their ancestors inherited the Ndebele customs and culture following their defeat by the Ndebele in the pre-colonial era. Accordingly, in terms of the Ndebele system of succession their chieftainship was passed from father to son.

The Mkoba version was contrary to that of the Mantiya family.

The Mkoba version enjoyed the support of Lugwalo and Mpabanga families. Their version was, that, there was a battle between the whites and the Bunina community which resulted in the latter being victorious and ultimately being appointed Chief by government of the day.

As is to be expected, the meeting was acrimonious and hotly debated.

After all these processes and debates, a recommendation was made by the Minister of Local Government, Public Works and Urban Development (4th respondent) to the President of the Republic of Zimbabwe (5th respondent).

In exercise of his powers, the President appointed the first respondent the substantive Chief Bunina on 7 May 2007.

This appointment is in accordance with the Rozvi principles of succession. The President, in his wisdom and discretion, did not follow the Ndebele system of succession.

It is this appointment, really, that resulted in these two matters.

This appointment was done in terms of section 3 of the Traditional Leaders Act [Chapter 29:17] (“the Act”) which provides -

“3. Appointment of Chiefs

(1) Subject to subsection (2), the president shall appoint Chiefs to preside over communities inhabiting communal and resettlement areas.

(2) In appointing a chief in terms of subsection (1), the President –

(a) Shall give due consideration –

(i) The prevailing customary principles of succession, if any, applicable to the community over which the chief is to preside; and

(ii) The administrative needs of the communities in the area concerned in the interest of good governance; and

(b) Wherever practicable, shall appoint a person nominated by the appropriate persons in the community concerned in accordance with the principles referred to in sub-paragraph (i) of paragraph (a):

Provided that, if the appropriate persons concerned fail to nominate a candidate for appointment as chief within two years after the office of chief became vacant, the Minister, in consultation with the appropriate persons, shall nominate a person for appointment as chief….,.”

I have highlighted above, that, the most contentious issue is whether the Ndebele or Rozvi system is applicable in determining the succession battle for the Bunina chieftainship.

It is trite, that, although chiefs are envisaged as hereditary holders of office it is only official recognition by the President that carries with it the title of Chief.

In practice, the President frequently appoints the person holding traditional title to the chieftainship, but, he is not obliged to do so.

Section 3(2) of the Traditional Leaders Act obviously implies that the President “should give dire consideration to the customary principles of succession, if any, applicable to the community over which the Chief is to preside,” as investigated by Ministry of Local Government officials, in particular the second respondent. But, once the investigation has been made, the President is free to act as he thinks best in the interests of good governance of the community: Muwuungani v Minister of Native Affairs 1957 R & N 298 (FC)…,.; 1957 (2) SA 544 (FC): and Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (SC)…,.

In Ruzane v Paradzai & Anor 1991 (1) ZLR 273 (SC), MANYARARA JA…, had this to say -

“The clear meaning of the provision is that the President is required to 'give due consideration to the customary principles of succession', not to follow them in making his choice.”

In other words, section 3 of the Traditional Leaders Act provides the President with an unfettered discretion in the appointment of a chief.

The President has exercised this discretion and appointed the first respondent as substantive Chief Bunina. The President exercised this discretion after supporters of rival candidates were consulted through the second, third and fourth respondents.

This exercise of executive powers by the President cannot be reviewed.

Accordingly, the applicant's case should fail. I therefore order as follows:

(1) That the provisional order granted by this court on 10 September 2009, under HC1396/09, be and is hereby discharged with costs.

(2) That the application filed under HC1410/09 be and is hereby dismissed with costs.

HH93-09 : HAVEN CHIKUMBU vs BRYDEN TECHINICAL SERVICES (PRIVATE) LIMITED AND THE REGISTRAR OF DEEDS AND THE DEPUTY SHERIFF FOR HARARE
Ruled By: CHITAKUNYE J

On 4 July 2007, the first respondent, through Messrs. Mkushi, Foroma Maupa Legal Practitioners, addressed a letter to Messrs. Magwaliba, Matutu Kwirira. The letter reads in part:“We write to you at the instance of Ms. E. Khetani and Ms. Lukungwe, who are both Directors of Bryden Technical Services. Our clients advise ...

On 4 July 2007, the first respondent, through Messrs. Mkushi, Foroma & Maupa Legal Practitioners, addressed a letter to Messrs. Magwaliba, Matutu & Kwirira. The letter reads in part:

“We write to you at the instance of Ms. E. Khetani and Ms. Lukungwe, who are both Directors of Bryden Technical Services. Our clients advise that on 30 April 2007, they made a resolution to dispose of the above-mentioned property, but they were yet to appoint a company representative to sign the requisite documents on behalf of the company. We are advised that Mr. Michael Hanyani, one of the Directors, had proceeded to negotiate the price as well as granting power of attorney to yourselves to do the needful.

Our instructions are that the other two Directors never authorised Mr. Hanyani to act in the manner he did, and he acted on his own volition without any company resolution to that effect, implying that whatever was negotiated, and concluded, by him without the authority of the other Directors, is null and void. This includes any Agreement, if one has been concluded, as well as the power of attorney to yourselves.”

The reasons for seeking to annul the Agreement of Sale are clearly different from those advanced by Mr. Michael Hanyani, the Managing Director, in his letter of 29 June 2007...,.

Faced with the apparent effort to resile from the contract, by the first respondent, the applicant applied for, and obtained, a provisional order from this court on 11 July 2007. The interim relief granted was to restrain, and interdict, the first respondent from disposing of the property in dispute, and that the order be registered as a caveat against Deed of Transfer Number 2190/2000.

The applicant now seeks the confirmation of the provisional order granted then, which is basically an enforcement of the Agreement of Sale.

The first respondent opposed the confirmation of the provisional order. The first respondent's basic grounds for opposing the order were that:

1. The first respondent did not accept the offer made by the applicant; and

2. The Managing Director, Mr. Michael Hanyani, had no authority to accept the offer, and to negotiate the selling price.

The applicant's position was to the effect that the Agreement of Sale he entered into was valid, and should, thus, be enforced.

HH128-09 : ROUTE TOUTE BV & OTHERS vs MINISTER OF NATIONAL SECURITY RESPONSIBLE FOR LAND LAND REFORM AND RESETTLEMENT & OTHERS
Ruled By: PATEL J

The 1st applicant in this matter is a business corporation registered in the Netherlands. The other three applicants are commercial farming entities registered in Zimbabwe. The applicants together, directly or indirectly, are the registered owners and leaseholders of Fangudu Farm (the farm). They claim the right to continue to own ...

Background

The applicants together, as I have stated, seek to enforce their ownership and leasehold rights in the farm. They claim protection against compulsory acquisition by virtue of two separate bilateral treaties concluded by the Government of Zimbabwe with the governments of the Netherlands and Malaysia.

On the 21st of January 2005, the 1st respondent published a preliminary notice of his intention to acquire the farm for resettlement purposes. On the 10th of June 2005, he issued an acquisition order compulsorily acquiring the farm. Thereafter, on the 22nd of July 2005, he lodged an application for the confirmation of the acquisition. This application before the Administrative Court has yet to be finalised, having been overtaken by legislative enactment.

On the 8th of August 2006, the 1st respondent caused to be delivered a notice of eviction upon the applicants. Subsequently, an arrangement was negotiated between the parties not to enforce the eviction of the applicants. Nevertheless, on the 8th of November 2006, the 3rd respondent arrived to occupy the farm on the strength of the earlier notice of eviction and his letter of offer dated the 11th of July 2006 from the 1st respondent.

As a result of the 3rd respondent's actions, the applicants filed an urgent application to this Court and were granted a Provisional Order on the 22nd of November 2006.

The present proceedings are instituted to confirm the Provisional Order.

The Issues

The issues for determination in this matter, as I perceive them and as consequently argued by counsel, are as follows:

1. Whether the farm has been duly acquired by the State in terms of section 16B of the Constitution.

2. The effect of the notice of eviction served by the 1st respondent upon the applicants; whether the applicants are entitled to continue in occupation until evicted by order of a competent court.

3. The effect of the letter of offer given to the 3rd respondent by the 1st respondent; whether this letter confers any right of occupation before the current occupier vacates the farm or is duly evicted by a court order or otherwise.

4. Whether the applicants' rights and interests in the farm constitute “investments” within the meaning of the relevant bilateral treaties.

5. The effect of the relevant bilateral treaties within the domestic legal system and their enforceability at the national level.

6. The interrelationship between sections 16(9b) and 16B of the Constitution of Zimbabwe; whether or not and the extent to which the former has been overridden by the latter.

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO
Ruled By: CHEDA J

This is an application for an enforcement of a contract. The first respondent is Thabani Khumalo, a male adult who is in the business of contracting, acquiring and developing residential Stands for sale. He resides at House No.8774 Cowdray Park, Bulawayo, which is his address for service. The second respondent is the Executor in the Estate of the ...

This is an application for an enforcement of a contract.

The first respondent is Thabani Khumalo, a male adult who is in the business of contracting, acquiring and developing residential Stands for sale. He resides at House No.8774 Cowdray Park, Bulawayo, which is his address for service.

The second respondent is the Executor in the Estate of the Late Sibonile Mlilo, cited as such in his official capacity. His address for service is Chelmsford Executors and Trust (Pvt) Ltd, Suite 112, 1^st Floor, Parkade Centre, Fife Street, Bulawayo.

The third respondent is the Assistant Master of the High Court of Zimbabwe, Bulawayo, cited in his official capacity as a responsible authority over matters to do with, amongst other things, deceased estates administration. He is overseeing the winding up of the estate of the late Sibonile Mlilo registered in his office under DRBY 267/08.

The fourth respondent is the City of Bulawayo, a municipal body established by law and under whose jurisdiction the property in question presently falls. Its administrative officers are located at the City Hall, Bulawayo, which will be its address for service.

The salient facts of this matter are that the applicant and the first respondent entered into an agreement of sale wherein the first respondent sold and the applicant bought Stand No.5495 Cowdray Park, Bulawayo for $224 billion as the purchase price. The first respondent initially acquired the Stand from one Sibonile Mlilo who has since died and her estate is being handled by the second respondent.

The purchase price was fully paid.

As an indication of his commitment to the agreement, the first respondent handled the agreement between himself and the late Sibonile Mlilo together with the Registration book of his motor vehicle.

All was well until the first respondent began advising the applicant and her husband of his intention to cancel the agreement of sale. The reason for the cancellation is that the purchase price was no longer enough for him to purchase a developed Stand, but, rather, enough to purchase an undeveloped Stand.

Upon receipt of these threats, the applicant applied for an urgent chamber application and obtained a provisional order interdicting the first respondent from selling or transferring the property to any other person pending the finalization of the dispute which first the respondent opposed.

In his opposition, the first respondent argues that the applicant should have, in this urgent application under discussion, disclosed that there was a dispute relating to the estate which was raised at the edict meeting. For that reason, the matter cannot be resolved on the papers. He, however, did not tell the court, what this dispute was about.

It is necessary for the first respondent to have disclosed the nature of the dispute in order to enable the court to assess whether it is the kind of dispute which would necessitate a referral to trial.

The legal position with regards to referral of a matter brought to court by way of an ex parte application is that such a matter can be determined on the basis of affidavits filed of record as long as there is no dispute of facts. In the event of the existence of dispute of facts, the said facts should be such that the matter cannot be determined without resort to oral evidence.

The issue then is; is this the kind of matter which can be resolved on the papers? In my view, it can be.

The dispute, as referred to by the first respondent, is the edict meeting which does not tell the court much. The hurdle as to implementation of this agreement is as a result of the first respondent's second thought about the purchase price.

He freely priced this property and an agreement was reached on that basis. The purchase price was subsequently fully paid. What is left for him is to be honourable enough and fulfil his part of the contract.

The facts are, therefore, very clear, there are no facts which require oral evidence in this matter. The fact that he unilaterally made a mistake about the purchase price, by reason of miscalculation in view of the prevailing inflationary environment is not a legal reason which can justify his resiling from this contract.

This principle was clearly laid down in University of Zimbabwe v Gudza 1996 (1) ZLR (S)…, quoted with approval in Smith v Zesa 2003 (1) ZLR 158 where PARADZA J stated:

“Where an offeror mistakenly makes an offer that is accepted by the offeree, the offeror will only be able to rescind the contract if -

(a) The offer was induced by fraudulent misrepresentation by the offeree; or

(b) The mistake was a material one the offeree knew or ought to have known that the offer had been made in error.”

This was not the position in the present case.

There is no legal justification for the cancellation of this contract. The only reason for the first respondent's conduct is the desire to catch up with the ever escalating cost of immovable properties. This, however, is not a good reason which can justify the cancellation of the contract.

It is not the applicant's duty to educate him about the pitfalls of a failure to foresee economic downturns or upturns in life.

The applicant, as such, was an innocent purchaser and needs to be protected….,.

The provisional order granted on the 2^ndofJuly 2008 be and is hereby confirmed and the following order is made:-

(a) That the first respondent, or, in the alternative, the second respondent, be and is hereby ordered to cede the property called Stand No.5495 Cowdray Park, Bulawayo to the applicant or her duly authorized nominees or agents.

(b) That failing the above the Deputy Sheriff, Bulawayo be and is hereby given leave to do all such things in his powers as to cause the property to be ceded to the applicant by signing all necessary papers at the offices of the fourth respondent.

HB45-09 : FALCON DUBE vs ZIMBABWE NATIONAL WATER AUTHORITY and THE MESSENGER OF COURT
Ruled By: KAMOCHA J

The applicant entered appearance to defend, and engaged the services of a legal practitioner. The matter was set down for a hearing but the applicant, and his legal representative, failed to appear for the hearing. The court, accordingly, entered a default judgment. The applicant filed an application for rescission, which was dismissed. The reasons for the dismissal were that the ...

HB67-08 : PROMISE NCUBE vs SHENZIRA NCUBE and JEREMIAH TENHESE N.O.
Ruled By: KAMOCHA J

On 24 February 2006, this court granted a provisional order which the applicant now seeks to have confirmed. The terms of the final order are these:-“That the provisional order granted by this honourable court be confirmed in the following manner:-1. That the first and second respondents be and are hereby ...

HB90-09 : FIOS NCUBE vs TICHAONA GOMBA and ZIM-AUSTRALIA (PVT) LIMITED and CITY OF BULAWAYO
Ruled By: KAMOCHA J

This matter was first filed under cover of a certificate of urgency on 9 July 2004. A provisional order was granted whereby the first respondent, who is now the first defendant, and all those claiming through him, were ordered to vacate House Number 3722, Emganwini Township, Bulawayo, forthwith, failing which the Deputy Sheriff was authorized ...

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

In the provisional order issued in her favour, the operation of the order in favour of the first respondent was stayed pending the filing and determination of an application for joinder by the applicant in the main matter in which the eviction order had been obtained, and an application to have that Order set aside. When ...

HB35-11 : CARSLONE ENTERPRISES P/L vs WILSON SVOVA
Ruled By: MATHONSI J

The applicant, a subsidiary of the Reserve Bank of Zimbabwe, set up a diamond mining plant at Kleimport Farm near Gweru. The plant itself is located on claims known as 20 and 21 at the farm. The applicant has been mining at the site and processing the diamonds at the plant in question ...

It is alleged that the respondent, who is a member of Shuma Mining Syndicate, started intruding at the processing plant belonging to the applicant sometime in May 2010. He is accused of forcibly taking away the applicant's stock book and forcibly gaining entry into the plant. He announced to the employees that he had taken over the mining operation of the applicant and got the employees to sign new employment contracts to the effect that they are now employed by Shuma Mining Syndicate of Gweru.

It has not been disputed that Kleimport Farm, on which the diamond plant is located, was previously owned by one Magiel Casper Jovner but was gazetted for compulsory acquisition by the responsible Minister and it is now State land. The respondent has not denied intruding at the diamond plant but has instead sought to argue extraneously that the farm belongs to Magiel Casper Jovner and that the applicant is mining without the approval of the said Magiel Casper Jovner who has since entered into a Tribute Agreement with Shuma Mining Syndicate. In the respondent's view, this entitles him to move into the property.

In addition to that, the respondent maintains that the applicant is winding up operations and as such the Governor of Midlands Province has allocated the mining claims occupied by the applicant to Shuma Mining Syndicate and Women in Mining. He has not submitted any document, let alone evidence, to substantiate that claim. Only an agreement entered into between one Magiel Casper Jovner and Shuma Mining Syndicate has been produced. The said Magiel Casper Jovner has also deposed to a supporting affidavit claiming to be the owner of the farm and the mining claims over it and alleging that the applicant is in illegal occupation of the property.

The applicant seeks to interdict the respondent from entering its diamond processing plant and from coming within 100m of the plant because the respondent is interfering with its operations. It obtained interim relief on 2 July 2010 interdicting the respondent from entering the processing plant at Kleimport Farm.

HB56-11 : ELIZABETH READ vs MAIKOL PHIRI and JENNIFER PHIRI and REGISTRAR OF DEEDS
Ruled By: CHEDA J

This is an application for the confirmation of a provisional order granted by this court on the 15th of March 2006. The interim relief granted was couched as follows: INTERIM RELIEF GRANTED ''Pending the determination of this matter, it is ordered: - 1. That First and Second Respondents be and are hereby ordered not to evict or attempt ...

This is an application for the confirmation of a provisional order granted by this court on the 15^th of March 2006.

The interim relief granted was couched as follows:

INTERIM RELIEF GRANTED

''Pending the determination of this matter, it is ordered: -

1. That First and Second Respondents be and are hereby ordered not to evict or attempt to evict Applicant and all those claiming under her, from Stand 604, Victoria Falls.

2.That First and Second Respondents be and are hereby ordered not to transfer Stand 604,

Victoria Falls to any person other than Applicant and are ordered not to register any mortgage bond against the Title Deed as security in favour of any person.

3. That Third Respondent be and is hereby ordered not to: -

a) Effect transfer of Stand 604, Victoria Falls belonging to First and Second Respondents held under Deed of Transfer No. 2210/05 from them to any person other than Applicant; and

b) Register any mortgage bond against the Title Deed of Stand 604, Victoria Falls in favour of any person.''

The final order sought was couched as follows:

TERMS OF FINAL ORDER SOUGHT

''It is ordered that:

1. That First and Second Respondents be and are hereby ordered to transfer Stand 604,Victoria Falls from them to Applicant on condition that Applicant pays the balance of the purchase consideration of $20,000= and pays the costs of transfer.

2. That First and Second Respondents be and are hereby ordered to do what is required of them to give effect to the aforesaid transfer, to apply for the necessary authorities, certificates, etc, and to sign all required documentation to effect the transfer, within 14 days of the date on which this order is served on them.

3. That should First and Second Respondents fail to do what is required of them: -

a) Applicant be and is hereby given leave to act on behalf of First and Second Respondents to achieve the transfer; and

b) The Deputy Sheriff, Bulawayo be and is hereby authorised to sign the required documentation on behalf of First and Second Respondents.

4. That First and Second Respondents be and are hereby ordered to pay the costs of this application on the attorney/client scale.''

HH278-10 : RADIATOR AND TINNING (PVT) LTD vs RADIATOR AND TINNING (PVT) LTD WORKERS COMMITTEE and WALTER DUBE and LITOS CHIKWANDA and OTHERS
Ruled By: MTSHIYA J

This is an opposed application where the applicant seeks confirmation of a provisional liquidation order granted on 24 March 2010, which order read as follows- “1. The applicant, RADIATOR TINNING (PRIVATE) LIMITED, is provisionally would up, pending the grant of an order in terms of paragraph 3 of the discharge of this order. 2. Subject to ...

This is an opposed application where the applicant seeks confirmation of a provisional liquidation order granted on 24 March 2010, which order read as follows-

“1. The applicant, RADIATOR & TINNING (PRIVATE) LIMITED, is provisionally would up, pending the grant of an order in terms of paragraph 3 of the discharge of this order.

2. Subject to subsection (1) of section 274 of the Companies Act [Chapter 24:03], THERESA GRIMMEL is appointed as provisional liquidator of the above company with the powers set out in section 221(2)(a)-(g) of the Companies Act [Chapter 24:03].

3. Any interested party may appear before the court sitting at Harare on 5 May 2010 to show cause why a final order should not be made placing the applicant company in liquidation and ordering that the costs of these proceedings shall be costs of liquidation.

4.A copy of this order shall be served on the applicant at its registered office.

5. This order shall be published once in the Government Gazette, once in the Herald, and once in the Chronicle newspapers in a Friday edition. Publication shall be in the short form annexed to this order.

6. Any person intending to oppose or support the application on the return day of this order shall:

(a) Give due notice to the applicant at Coghlan Welsh & Guest Legal Practitioners, 3^rd Floor Executive Chambers, 16 George Silundika Avenue, Harare, ref: N. Moyo.

(b) Serve on the applicant a copy of any affidavit which he files with the Registrar of the High Court.”

The applicant, in its application filed on 9 March 2010, has, in terms of section 207 of the Companies Act [Chapter 24:03] petitioned this court for the above relief because, as per the founding affidavit-

“(i) The company is unable to pay its debts;

(ii) The company has resolved, by special resolution, to wind up;

(iii) I believe that it is just and equitable that the company be wound up so that the assets of the company can be liquidated to provide for some equitable distribution to creditors.”

In its founding affidavit, the applicant also states the following-

“Applicant has 102 employees, and its outstanding wage bill is US103,215=. The company has no prospect of generating enough money to settle this bill.”

Indeed, on 22 February 2010, at a special meeting of shareholders held at Helier, Jersey, the Directors of the applicant had passed the following resolutions-

“(i) It was resolved that the notice period required for the holding of a Special General Meeting be waived.

(ii) It was resolved that Radiator & Tinning (Private) Limited be put into “Members Voluntary Liquidation” due to the inability of the Company to continue to meet its obligations.

(iii) It was resolved that Jeremy Hodgskin, ID No. 08-051413-K00, be empowered to do all things and sign all documents in regard to effecting and facilitating this liquidation.

(iv) It was resolved that Robert Charles Jenkinson, ID No. 63-010327-K00, be empowered to do all things and sign all documents in regard to effecting and facilitating this liquidation.

(v) It was resolved that Theresa Grimmel be appointed Liquidator.”

The second resolution above, relating to members voluntary liquidation, is the one to occupy us in this judgment. It is on the basis of that resolution that the applicant then approached this court for the relief it seeks.

The provisional order…., was published in both The Herald and The Chronicle on 9 April 2010 and 30 April 2010 respectively.

On 8 June 2010…, the respondents…., filed their notice of opposition in which they raised the following points in limine-

“NON COMPLIANCE WITH THE PROCEDURE

With respect, I am reliably advised by my esteemed counsel, which advice I embrace, that the procedure as laid down in section 25A(4)(a) of the Labour Act [Chapter 28:01] and section 25A(5)(c) of the Labour Act [Chapter 28:01] was not followed before the matter was filed in this Honourable Court. It is respectively submitted that the applicant should have conducted a Works Council meeting with the workers in order to discuss its financial status and the way forward but this was not done. At the same time nothing was attached to the petition to the effect that such communication had been done to the workers. I will leave my legal counsel to deal with the legal issues in the Heads of Arguments to be filed with this Honourable Court.

EXISTENCE OF MATERIAL DISPUTE OF FACTS

This matter is full of material disputes of facts which can only be cured by leading evidence from witnesses as will be elaborated from para 3 downwards. I therefore pray that the Honourable Court allows oral evidence to be led during the hearing.”

At the hearing of this matter, and after listening to addresses on the points in limine, I allowed the parties to also address me on the merits of the application. I indicated, then, that my finding on the points in limine would dictate whether or not I should proceed to determine the application on the merits.

HH283-10 : TAWANDA CHIPATO vs MARKO MUSA MASEKO and RICHARD MASEKO and BERN-WIN DEVELOPMENT COMPANY (PRIVATE) LIMITED
Ruled By: MAKONI J

The background to the matter is that on 4 April 2002, Marko entered into an Agreement of Sale with the Bernwin, whereby Marko purchased the property in issue for five million dollars ($5,000,000=). It was a term of the agreement that Marko would pay a deposit of one million two hundred thousand dollars ($1,200,000=) upon signature of the agreement “or such longer period not exceeding seven days as the Developer may consent.” The balance was to be paid in instalments of $100,000= per month for a period of thirty-eight (38) months starting on 1 April 2009.

On 8 August 2003 Bernwin left a cheque, in a letter box, payable to Marko, in the sum two million eight hundred thousand dollars of ($2,800,000=). It was not accompanied by any explanation. Richard took the cheque to their legal practitioners on 22 August 2003. The legal practitioners wrote to Bernwin asking for an explanation. Bernwin responded by letter dated 2 September 2003 advising that the Agreement of Sale between their client and them was duly cancelled on 4 August 2003 after this client had been given due notice on 15 July 2003.

It was cancelled as the client had breached the terms of the agreement.

Sometime in 2003, Tawanda entered into an agreement of sale with Bernwin whereby he purchased the property. Sometime in 2005 he had the property transferred to him under Deed of Transfer No. 00 5415/05. He took occupation in 2006 triggering the urgent application for spoliatory relief.

As these events were unfolding, and on 10 November 2003, Marko instructed his legal practitioners to write a letter notifying would be buyers that the property was not available for sale. The letter was given to Mr Mois, the gardener, who was in occupation of the property. He was instructed to show it to would be buyers.

At the initial hearing of this matter, it was observed that the provisional order had not been confirmed or discharged.

In the final order, Marko sought that Tawanda restores possession and occupation of the property to him permanently. The parties agreed that that matter be consolidated to the present matter. The order for consolidation was granted. Tawanda did not file any opposing papers. He only filed heads of argument.

I will take it that he is not opposed to the granting of the final order.

HB11-10 : GORDON SPENCER and GARY BROWN vs THE MINISTER OF LANDS, LAND RESETTLEMENT AND RESETTLEMENT and THE CHIEF LANDS OFFICER, BULILIMA and MS R. BHEBHE
Ruled By: KAMOCHA J

The applicants in this matter sought and were granted a provisional order on 7 January 2010. The terms of the order were as follows:-“Interim relief grantedPending determination of this matter, the applicants are granted the following relief:(1) The respondents are interdicted from taking any steps to evict the applicants from the property described herein or from ...

The applicants in this matter sought and were granted a provisional order on 7 January 2010. The terms of the order were as follows:-

“Interim relief granted

Pending determination of this matter, the applicants are granted the following relief:

(1) The respondents are interdicted from taking any steps to evict the applicants from the property described herein or from carrying out any building or farming operation or from removing any stock or cattle being the property of the applicant or from introducing onto the farm any stock or cattle either owned by the third respondent or by any third party.

(2) It is ordered that until such time as the relief set out in the final order is determined the applicants and all those who occupy the farm through them are entitled to remain in peaceful and undisturbed possession of the farm and further entitled to continue farming operations on the property and the third respondent is interdicted from taking any steps to occupy the farm either himself (sic) or through any agent, servant or employee or to hinder or disturb the applicant in his occupation thereof.”

The third respondent has anticipated the application seeking to have the provisional order discharged. The final order being sought by the applicants was in these terms:-

“Terms of final order sought

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

(1) That until such time as the ownership, or right to occupy the property known as Orange Groove (hereinafter called “the farm”), is determined by a court of competent jurisdiction, and until such time as the applicants are lawfully evicted by such court and has exhausted all legal remedies available to him, the respondents are interdicted from evicting the applicants or from taking occupation of the farm. It is further ordered that the respondents are interdicted from interfering in any way with any of the farming operations carried out by the applicants or their employees or servants or from entering the farm or placing property or employees thereon (save as may be provided by law).

(2) That in the event that by the time this order is granted the applicants have been evicted or the third respondent has taken occupation of the farm, then it is ordered that the third respondent or any person occupying the farm through him (sic), be and is hereby evicted and the applicants be restored to possession thereof.

(3) That the respondents jointly and severally, one paying the others to be absolved pay the costs of this application.”

HB22-10 : KHAMI UNITED FOOTBALL CLUB vs ZIMBABWE FOOTBALL ASSOCIATION
Ruled By: KAMOCHA J

The respondent in this matter has anticipated the return date of a provisional order granted by this court on 1 April 2010. Its terms were that pending the finalisation of the matter the respondent be ordered and directed to take all reasonable steps to forthwith suspend the commencement of the 2010 Division One Southern Region League. The respondent was to further, forthwith, communicate the suspension of commencement of the 2010 Division One Southern Region League to all participating teams and to the applicant's legal practitioners.

The circumstances giving rise to the urgent chamber application were that on 25 January 2010 the Zimbabwe Football Association Southern Region addressed the following letter to the applicant-

“The Secretary

Khami United Football Club

BULAWAYO

Dear Sir,

Re: Confirmation of Admittance to Division (1) League.

We write to you on this instance confirming your admittance to our Division One League, having finished on second position in Division 2A stream in 2009 season.

We take this opportunity to congratulate you on your promotion and hope you are going to cope with the dictates of our league.

Yours in sport

S.B. Ntenezi

“Secretary)”

On 18 February 2010 the respondent, for reasons best known to itself, only addressed the following letter to the applicant -

“Re: Division Two Play OFFs

ZIFA Southern Region has indicated that our runners up in Division 2A and B respectively should be engaged in play offs for promotion to Division One for the 2010 season.

The winner between your team and Cosmos will qualify for play offs against the winner in Matebeleland North Province. The date for the play offs is 27 February 2010 at 1500 hours at a venue yet to be advised.

You are therefore advised to make suitable preparations for the tournament.

Yours in Sport

Washington Chimanda

(Secretary General)”

The applicant, despite the above letter of confirmation of admittance to Division One League, participated in the play-offs as directed by the respondent and won all the matches. The applicant then believed that it earned the right and legitimate expectation to be promoted to Division One League for the 2010 season.

But alas, that was not to be as the respondent, by a letter dated 22 March 2010, advised the applicant that it would not be promoted to Division One League after all.

This turn of events prompted the applicant to launch this application on a certificate of urgency and was granted a provisional order.

The final order which the applicant seeks to be confirmed calls on the respondent to show cause why an order should not be made in the following terms -

“(1) The decision of the respondent not to promote the applicant to Division One League for the 2010 season despite applicant qualifying for such promotion, be and is hereby declared to be unreasonable and unfair, and a contravention of section 3(1)(a) of the Administrative Justice Act [Chapter 10:28].

(2) The respondent be and is hereby ordered and directed to promote and admit the applicant to Division One League for the 2010 season.

(3) The respondent be and is hereby ordered to pay the costs of suit (including costs of counsel) on an attorney and client scale if it opposes confirmation of the Provisional order.”

HB27-10 : PATIENCE MOYO and ZIVANAYI MWEDZI and ANDREW BALENI and MARGRET MREWA and EDMORE VETERAI and OTHERS vs BULAWAYO KNITWEAR (PVT) LTD and MESSENGER OF COURT, BULAWAYO DISTRICT
Ruled By: KAMOCHA J

On 11 November 2009, the applicants applied for and were granted a provisional order whose terms were that pending the final determination of that application and the outcome of a review application which they were to institute within seven (7) days of the order, the writ of eviction and execution in case numbers 268/09; 666/09; ...

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

The applicant was granted, on 10 November 2009, a provisional order which was amended to read as follows in the interim order granted:- “Pending the finalization of this matter, applicant be and is hereby granted the following relief:- 1. The respondents be and are hereby ordered and directed to forthwith take all reasonable steps and do every ...

The applicant was granted, on 10 November 2009, a provisional order which was amended to read as follows in the interim order granted:-

“Pending the finalization of this matter, applicant be and is hereby granted the following relief:-

1. The respondents be and are hereby ordered and directed to forthwith take all reasonable steps and do every act necessary to unblock or re-connect the passage of water through the underground pipeline from the borehole along the Save River bank on one part of Lot 5 through Lot 8 into the main part of Lot 5 of Devure Ranch;

2. If the respondents fail to forthwith unblock the passage of water pumped into the underground pipeline through Lot 8 into the main part of Lot 5 of Devure Ranch, the Deputy Sheriff be and is hereby directed and authorized to act in the respondents' stead and do all acts necessary to unblock the passage of water through the underground pipeline into applicant's Msaize Ranch in Lot 5 of Devure Ranch.

3. The members of the Zimbabwe Republic Police, based at Bikita Police Station shall ensure full compliance with this provisional order by all the respondents jointly and severally, whether directly or through their agents or employees.”

In the final order the respondents were being called upon to show cause why a final order should not be made in these terms:-

(1) Pending finalization of the administrative process of the applicant's claim and registration of a permanent servitude of passage of water in favour of Lot 5 of Devure Ranch against the respondent's Lot 8 of Devure Ranch in terms of section 75 of the Water Act [Chapter 20:24], the respondent and all those acting on its behalf be and are hereby interdicted from blocking or interfering with the passage of water through the underground pipelines that run from the part of Lot 5 where the borehole and water pump were installed, through Lot 8, into the rest of Lot 5 of Devure Ranch.

(2) The respondent be and is hereby ordered to pay the costs of suit.”

Having taken all the necessary steps to acquire a permanent servitude of passage of water the applicant applied for and was granted a provisional order which it now seeks to have confirmed.

HB64-10 : (1) SHARON KENNY and ESTATE LATE TERENCE KENNY and (2) KNIGHT NCUBE vs (1) KNIGHT NCUBE and (2) SHARON KENNY and ESTATE LATE TERENCE KENNY
Ruled By: NDOU J

The cross-applicant has…, not established a clear or prima facie right for the final interdict sought.

HB104-10 : THENJIWE NDLOVU vs VISION SITHOLE and CITY OF BULWAYO and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

On the 6th October 2008, the first respondent issued summons out of this court seeking an order compelling transfer of Stand 20027 Pumula South, Bulawayo from the applicant to himself. In that action, he alleged that he had purchased that property from the applicant and that a written agreement had been signed on the ...

On the 6^th October 2008, the first respondent issued summons out of this court seeking an order compelling transfer of Stand 20027 Pumula South, Bulawayo from the applicant to himself. In that action, he alleged that he had purchased that property from the applicant and that a written agreement had been signed on the 22^nd September 2005.

Subsequent to that, a chamber application for default judgment, dated 3rd November 2008, found its way into the court record. I say so because that application does not bear the issuing stamp of the Assistant Registrar of this court. In fact, the only document which is stamped out of that entire application is the return of service which bears the High Court date stamp of the 9th October 2008. According to that return of service, which has since been disowned by the Deputy Sheriff, the summons was served upon the applicant on the 7^th October 2008, and on N. Tsheza, the Housing Officer, at Pumula and Hydepark Estate Housing office, Bulawayo, on the same date.

I shall return to the return of service in question later.

That application for default judgment was supported by an affidavit deposed to by the first respondent on the 3^rd November 2008 in which he repeated that there was “a written agreement of sale” between him and the applicant. Significantly, that agreement was not attached to the summons and declaration or, indeed, to the application for default judgment.

It has never been produced.

The matter was placed before NDOU J who granted default judgment on 12th November 2008 on the strength of the return of service indicating that the summons and declaration had been served.

Acting on the strength of that court order, the first respondent secured transfer of Stand 20027 Pumula South, Bulawayo from the applicant's name to his name.

The applicant later discovered the transfer and filed an urgent application seeking to reverse the transfer and alleging that not only did he not sell the property to the first respondent but also that he did not even know that character. According to the applicant, the first respondent acted fraudulently in obtaining judgment against him which allowed him to take transfer of the property. She alleged that the court was induced by a fraudulent return of service to grant default judgment against her - which judgment is a nullity by virtue of that fraud. A provisional order was granted in favour of the applicant on the 9^th February 2010, the interim relief of which was to place a caveat on the disputed property and to interdict the first respondent from disposing of or alienating the property.

The first respondent has contested the confirmation of the provisional order.

He argued that the application has come rather late in the day because after obtaining transfer he went on to sell the property to “the Sibandas” who are now staying at the property and therefore that the issue is incapable of reversal.

This has been challenged by the applicant who has submitted proof that not only is the Stand still registered in first respondent's name at the second respondent's offices, but also that the property is not habitable at all as it remains where she left it herself, that is, at window level without roofing.

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

1. ….,. 2. ….,. 3. The provisional order granted on the 17th April 2008 in Case No. HC815/08 be and is hereby discharged with applicant in that matter to bear the costs of suit.

HH104-13 : BOKA INVESTMENTS (PRIVATE) LIMITED vs THIRDLINE TRADING (PRIVATE) LIMITED and ONCLASS INVESTMENTS (PRIVATE) LIMITED and MASTER OF THE HIGH COURT
Ruled By: PATEL J

This an application for the confirmation of a provisional order, granted on 23 February 2011, for the winding up of the 1st and 2nd respondents (the respondents). The latter companies were the tenants of the applicant and jointly operate a tobacco auction floor under the trade name of Zimbabwe Industry Tobacco Auction Centre together with ...

This an application for the confirmation of a provisional order, granted on 23 February 2011, for the winding up of the 1^st and 2^nd respondents (the respondents). The latter companies were the tenants of the applicant and jointly operate a tobacco auction floor under the trade name of Zimbabwe Industry Tobacco Auction Centre together with their sub-tenants.

The applicant avers that the respondents have failed to satisfy an arbitral award for moneys owed that was granted in its favour on 16 April 2010 and registered by this Court on 19 May 2010. Together with sales commission and arrear rentals due, the total amount that the respondents owe the applicant stands at US$460,800=. The applicant further contends that the respondents' confirmed liabilities of US$1,630,800= exceed their assets of less than US$100,000= and that they have no prospect of recovery in the future as they were not granted an auction licence for the 2011 season.

The respondents' preliminary objection is that the provisional order in this case was granted unprocedurally for a number of reasons.

On the merits, they contend that the applicant has ignored their goodwill and volume of business, approximating US$6 million annually, which must be included in the valuation of their tobacco auction business. Therefore, their assets far exceed their liabilities. Their auction licence for 2011 was not granted because of an interdict by this Court preventing the Tobacco Industry Marketing Board from issuing the licence. The respondents have applied for the interdict order to be set aside and the matter is still pending. Moreover, soon after the provisional order was granted, the provisional liquidator voluntarily vacated the leased premises. Both the interdict and provisional liquidation were manipulated by the applicant to wrongly evict the respondents under the guise of liquidation. Before their provisional liquidation, the respondents had loan facilities with ZABG Bank and did not owe any arrear salaries to their employees. Again, their trading debts due were normal and the income that would have been generated in 2011 would have sufficed to satisfy those debts. The provisional liquidator's interim report is grossly inaccurate in understating their assets and income and in inflating or falsifying their liabilities.

In short, the respondents argue that they are not insolvent and that the provisional order should be discharged with costs de bonis propriis or on an attorney and client scale….,.

Whether Provisional Order has Lapsed

At the hearing of this matter, counsel for the respondents raised the new point that the original return date for confirmation of the provisional order was 17 May 2011, and, because the date was not extended, the order lapsed on that date. Consequently, there is no provisional order to be confirmed. Reliance for this submission is placed upon Ex parte S & U TV Services (Pty) Ltd 1990 (4) SA 88 (WLD) and Crundall Brothers (Pvt) Ltd v Lazarus N.O. & Another 1991 (3) SA 812 (ZHC)…,.

As against this, counsel for the applicant explains that the respondents filed their notice of opposition on 16 May 2011 - the day before the return date. Because the matter could no longer proceed on the Unopposed Roll, he argues that there was no need to extend the provisional order once it was opposed. He relies for this proposition on the decision of the Supreme Court in Militala N.O. & Others v Zimbabwe Textile Workers Union & Others SC67-11. According to counsel for the applicant, it was held that a provisional order for liquidation or judicial management, whether it is opposed or unopposed, does not lapse until it is confirmed or discharged.

My reading of the cases relied upon by both counsel is that they do not meaningfully support their respective arguments. In the Ex parte S & U TV Services (Pty) Ltd 1990 (4) SA 88 (WLD) case, the applicant applied for, and obtained, an order for its own provisional winding up. On the extended return day, there was no appearance on behalf of the applicant and the rule nisi was therefore expressly discharged by order of the court. An application for its revival 3 weeks later was refused because matters would no longer have been res integra at that stage. The Crundall Brothers (Pvt) Ltd v Lazarus N.O. & Another 1991 (3) SA 812 (ZHC) case involved a dispute over a right of pre-emption incorporated in an order of court. The return day of the relevant rule nisi was postponed but the rule itself was not extended accordingly. It was held that the postponement of the return day ipso facto extended the rule nisi to the new return day. In my view, both of these cases are distinguishable on their facts and findings from the present matter and do not really advance the position of the respondents.

Although applications for winding up and judicial management are similar in nature, they are not necessarily identical in terms of the processes involved and their objectives….,. Rule 247(3) of the High Court Rules stipulates the procedural requisites of a provisional order for sequestration or winding up as follows:

“Where a provisional order relates to the sequestration of an estate, the winding up of a company or any other matter in which interested parties generally are to be given an opportunity to oppose the granting of a final order, the provisional order shall -

(a) Be in Form 29D; and

(b) Specify the date and place at which the court will hear argument on the confirmation of the provisional order; and

(c) Specify the manner in which the provisional order is to be published and, where appropriate, the persons on whom copies of the provisional order, together with all supporting documents, are to be served.”

The relevant paragraphs of the provisional order in casu are in the following terms:

“1. The 1^st and 2^nd Respondents' companies…, are provisionally wound up pending the granting of an Order referred to in paragraph 3 or the discharge of this Order.

2. …,.

3. Any interested party may appear before this Court sitting at Harare on the 17^th May 2011 at 10.00 am to show cause why a Final order should not be made placing the Respondent Company (sic) in liquidation and ordering that the costs of these proceedings shall be the costs of liquidation.

4. Pending the return day, this Order shall operate as a Provisional Order of winding up.

5. …,.

6. …,.

7. Any person intending to oppose or support the application on the return day of this Order shall…, give due notice…, and…, serve…, a copy of an affidavit which it (sic) files…,.”

It is abundantly clear from the Rules, as read with the terms of the provisional order, that the return day is critical to its confirmation or discharge. What appears from the papers, and from submissions by counsel, is that the respondents filed their notice of opposition the day before and that the applicant attempted to extend the provisional order. It is not clear how this attempt was made or why it was unsuccessful. What is clear is that the provisional order was not confirmed, discharged or extended on the stipulated return day. Ordinarily, this would entail the conclusion that it has lapsed and is no longer extant for the purposes of these proceedings. While this conclusion seems inescapable, I am loath to endorse it in the circumstances of this case for the following reasons:

…,. The respondents were placed under provisional liquidation over 24 months ago. Thereafter, other creditors have lodged their claims and the provisional liquidator has issued his interim report. At this juncture, it is of cardinal importance to have regard to the general advantage and benefit of all the persons concerned or interested in the matter. The Court should be less inclined to interfere at a late stage in the winding up process than it would be at an early stage in that process. See Ma-Afrika Groepbelange (Pty) Ltd & Another v Millman and Powell N.N.O. & Another 1997 (1) SA 547…., in the context of an application for the removal of a liquidator.

In the instant case, the general balance of convenience is overwhelmingly in favour of treating the provisional order as having remained operational up to the present time. Moreover, the interests of justice dictate that the matter be finally determined to enable all the parties concerned, including the respondents, to know where they stand. Having regard to all of these factors, I take the view that the failure to extend the return day of the provisional order should not be regarded as being fatal to its continuing validity. Accordingly, I deem it appropriate to exercise my discretion under Rule 4C to condone that failure and to proceed with this matter on the basis that the provisional order remains in full force until it is confirmed or discharged.

HB10-13 : WESTGATE RESIDENTS ASSOCIATION vs NATIONAL RAILWAYS OF ZIMBABWE and L. H. JIYANE
Ruled By: NDOU J

After hearing submissions by both counsel, I ordered that the provisional order granted by this court on 29 June 2011 be discharged with costs on the ordinary scale. I indicated that reasons for doing so will follow in due course. These are they. The applicant is an association of residents at Westgate Security Complex a residential ...

HB101-11 : REJOICE SIBANDA vs ESTATE LATE C KARPUL
Ruled By: MATHONSI J

As the provisional order staying execution had been granted to allow her to prosecute the rescission of judgment application, it follows that it must be discharged. (1) ….,. (2) The application in Case No. HC450/11 is hereby dismissed and the provisional order discharged.

HB111-11 : CHRISTOPHER MOYO vs OBERT CHINHAMO
Ruled By: MATHONSI J

Counsel for the respondent…, argued that the remedy of spoliation was availed to the applicant at the time that he obtained interim relief. In his view, at the stage of confirmation of the provisional order, the court cannot ignore the fact that respondent has proved ownership of the disputed strip. Instead, the court should ...

HB168-11 : NOKUTHULA MOYO vs NORMAN GWINDINGWI N.O. and DAIRIBOARD ZIMBABWE (PVT) LTD
Ruled By: MATHONSI J

The provisional order granted to the applicant was predicated upon a valid application being made to challenge the termination of the applicant's contract of employment. There is no such application in existence. It must be discharged….,. (1)…,.(2) The provisional order made on 13 July 2006 is hereby discharged.

HB10-14 : ELPHAS KAWA vs VICTOR MUZENDA N.O. and ZEXCOM (PRIVATE) LIMITED (in provisional liquidation) and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS and GEORGE ZINGANI and FUNGAI MARUFU
Ruled By: MAKONESE J

The applicant (Elphas Kawa) is a shareholder of the second respondent (Zexcom (Pvt) Ltd) (in provisional liquidation) in terms of an Order granted by this Honourable Court on the 27th February 2013. By virtue of the Order, the first respondent was interdicted and prohibited from disposing, selling or in any way alienating or encumbering ...

HB20-14 : VELD CLIFF ENGINEERING (PVT) LTD T/A FIREMATIC CONSULTING ENGINEERS (represented by WATSON MURUVIWA) vs FIREMATIC CONSULTING ENGINEERS (PVT) LTD and VENSON GAMBIZA and NOMTHANDAZO NGWENYA
Ruled By: MOYO J

It is the respondent's contention that the applicant has not satisfied the requirements of an interdict as they have an alternative remedy in terms of Section 24(7) of the Companies Act [Chapter 24:03]. In the case of ZESA Staff Pension fund v Mushambadzi SC57-02, ZIYAMBI AJA…, stated the requirements for a final interdict ...

In the case of ZESA Staff Pension fund v Mushambadzi SC57-02, ZIYAMBI AJA…, stated the requirements for a final interdict as follows:

(1) A clear right which must be established on a balance of probabilities.

(2) Irreparable injury actually committed or reasonably apprehended.

(3) The absence of a similar protection by any other remedy.

The applicant, upon realising that the respondents were then using a name that is likely to cause it prejudice or harm, should have first sought to find protection in the remedies available to it, like section 24(7) of the Companies Act [Chapter 24:03], through lodging of a complaint with the Registrar as in seeking a final interdict, the applicant would be expected to meet all the requirements of an interdict - including the absence of any other protection.

The applicant's counsel unfortunately fails to address the third requirement for an interdict; that is to say that the applicant did not have an alternative remedy at the time that these proceedings were instituted.

In the answering affidavit…, wherein the issue of the availability of an alternative remedy was raised, the applicant simply says:-

“This is a matter which is so peculiar by the respondent's apparent desire to mislead the public through the case of Applicant's trading name that the Applicant had no choice but to resort to the relief sought. Applicant reserves the right to choose the most appropriate remedy and it is for the court, not the Respondent, to determine whether or not such a remedy is sustainable at law.”

The applicant's counsel, in his submissions, does not address fully the aspect of the non-availability of another remedy.

Whilst the applicant may have satisfied the first two requirements for an interdict, as correctly pointed out by CHATUKUTA J, in the case of Chirenje v Vendifin Investments P/L and Others HH04-05, the applicant has a duty to satisfy all the requirements for an interdict - not some of them. It is the totality of all the three requirements that would win the applicant an interdict in this court. Therefore, even if the applicant does satisfy the first two requirements for a final interdict, but the third requirement, of a lack of any other alternative remedy, is not satisfied. This clearly means that the Applicant would have failed to show or prove before this court, on a balance of probabilities, that he is entitled to the relief of a final interdict. Refer to Mabhodho Irrigation Group v Kadye and Others HB08-03; L.R Boshoff Investments (Pty) Ltd v Capetown Municipality 1969 (2) SA 256 (C)…,.

This remedy does not fall within the mould of ordinary judicial remedies.

Accordingly, I find that the applicant has failed to show before this court that he is entitled to the final interdict sought as he has not fully challenged the availability of, nor averred the absence of, an alternative remedy. For this reason alone, this application accordingly fails.

The provisional order granted by this court on 16^th January 2013 is, as a result, discharged with costs.

Appealed
HB114-16 : J.C. CONOLLY AND SONS (PVT) LTD vs R. C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MUSAKWA J

This is an application for confirmation of a provisional order that was granted on 17 June 2014. The terms of the provisional order were to the following effect:- “INTERIM RELIEF GRANTED Pending the return day, the following relief is granted: 1. The 1st respondent be and is hereby interdicted and barred from taking occupation of, or bringing cattle onto the piece ...

This is an application for confirmation of a provisional order that was granted on 17 June 2014. The terms of the provisional order were to the following effect:-

“INTERIM RELIEF GRANTED

Pending the return day, the following relief is granted:

1. The 1^st respondent be and is hereby interdicted and barred from taking occupation of, or bringing cattle onto the piece of land, namely, a farm known as Subdivision A of Centenary, measuring 1,304,5441 hectares situate in the Bulilima District.

2. The 2^nd respondent is interdicted from taking any steps to evict the applicant from the farm described above.

3. It is hereby declared that until this application is determined on the return day, the applicant and all claiming occupation through it are entitled to remain in peaceful occupation of the farm and to continue operations on the farm undisturbed.

4. In the event that the 1^st respondent, or any party claiming occupation through him, has, by the time of service of this order, taken occupation of the farm, it is ordered that the 1^st respondent, or any such person, shall vacate the farm immediately and restore occupation and possession to the applicant.

5. In the event of a party referred to in paragraph 4 above failing to vacate the farm in accordance with this order, the Deputy Sheriff is authorized and directed to evict such party from the farm.”

The order that is being sought to be confirmed, after amendment, reads as follows -

“1. The provisional order issued by this court on the 17^th June 2014 be and is hereby confirmed in the following terms:

1.1 The 1^st respondent, and all persons claiming occupation through him, be and are hereby interdicted from taking occupation of, or bringing cattle onto the piece of land, namely, a farm known as Subdivision A of Centenary, measuring 1,304,5441 hectares situate in the Bulilima District until such time as the applicant and all claiming occupation through it have been removed by order of a court of competent jurisdiction.

1.2 The 1^st respondent, and all persons claiming occupation through him, be and hereby directed to remove any and all cattle and belongings that may have been brought onto, or remain on, the said farm forthwith.

1.3 The 1^st respondent, and all persons claiming occupation through him, be and are hereby interdicted from interfering with the applicant's business operations on the said farm.

1.4 The 1^st respondent shall pay the costs of this application.”

The applicant used to own Subdivision A of Centenary in Bulilima District. The land was compulsorily acquired in 2000. It now vests in the second respondent. The first respondent was issued with an offer letter in respect of the piece of land. It is contended, by the applicant, that it has invested heavily on the land. The urgent chamber application giving rise to the provisional order was premised on doubts regarding the authenticity of the offer letter issued to the first respondent. Thus, the applicant had initially sought the nullification of the offer letter on the return day.

It is now conceded that the offer letter was properly issued to the first respondent, hence the amendment to the draft order. In making the concession, counsel for the applicant submitted that the applicant initially had an imperfect knowledge of the compulsory acquisition of the farm….,.

Counsel for the applicant submitted that since the compulsory acquisition of the farm in 2000 the applicant has been in peaceful and undisturbed possession. During that period, the applicant has been utilising the land. State officials have visited the land and encouraged the applicant to continue with its operations. As a result, the applicant has made substantial investments including a finance scheme with Dairiboard Zimbabwe (Limited). Counsel for the applicant further submitted that the order being sought is for the first respondent to follow due process in settling on the farm. In this context, due process entails the eviction of the applicant following a court order in which it was found that the first respondent is in unlawful occupation of the farm. Thus, he cannot summarily evict the applicant. A legal finding that the applicant is in unlawful occupation of the farm has not been made.

In placing reliance on the cases of Harland Brothers and Another v The Minister of Lands and Rural Resettlement HH06-10 and Commercial Farmers Union and Others v Minister of Lands and Others 2010 (2) ZLR 576 (S), counsel for the applicant further submitted that these authorities highlight that beneficiaries of offer letters must not resort to self-help if they want to occupy land offered to them.

On the issue of visits by State officials, counsel for the applicant submitted that such visits were made by the Deputy Minister of Agriculture. Thus, this overt encouragement dilutes the element of unlawfulness. There is the element of legitimate expectation.

Counsel for the first respondent took issue with the applicant's counsel's reference to spoliation. He thus submitted that what is before the court is an application for confirmation of a provisional order for an interdict. He made reference to the amended draft order. Thus, he submitted that the applicant has to overcome the hurdle of establishing a clear right to the land. Reference was made to the first respondent's heads of argument dealing with the requirements for an interdict.

Counsel for the first respondent further submitted that the applicant's case is not distinguishable from similar cases where litigants sought similar relief. This is particularly so where the applicant has conceded the lawfulness of the acquisition and the validity of the offer letter issued to the first respondent.

The requirements for a final interdict are:

(i) A clear right;

(ii) An injury actually committed or reasonably apprehended; and

(iii) The absence of similar protection by any other remedy.

In this respect, see Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent and Another 2000 (1) ZLR 234 (HC) and Setlogelo v Setlogelo 1914 AD 221.

Commenting on the element of clear right, BARTLETT J, in Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent and Another 2000 (1) ZLR 234 (HC) had this to say….,;

“The reference to a clear right in respect of a final interdict, as opposed to a prima facie right in regard to a temporary interdict, means no more than a clear right must be established on a balance of probabilities. See Aussenkehr Farms (Pty) Ltd v Walvis Bay Municipality 1996 (1) SA 180 (C) at 188F-G; Silberberg & Schoeman, The Law of Property 3ed at 146.”

Although the applicant was granted spoliatory relief in the interim order, what is being sought now is an interdict. The issue is what right the applicant is seeking to safeguard. In other words, does the applicant have a clear right of occupation of the farm in question?

The starting point is that the applicant is already in breach of section 3(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] which provides that -

“Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority.”

Lawful authority is defined as –

“'lawful authority' means -

(a) An offer letter; or

(b) A permit; or

'lawfully authorised' shall be construed accordingly;”

Apart from the above provisions, section 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] criminalises the unlawful occupation of gazetted land.

I am mindful that there has been no mention of whether the applicant has been charged for unlawful occupation of the disputed farm. Regardless of whether criminal charges have been preferred, it is not in dispute that the applicant is in breach of the law as it remains in occupation of the farm without lawful authority.

In Commercial Farmers Union and Others v Minister of Lands and Others 2010 (2) ZLR 576 (S) it was held that the Constitution vests all rights of former occupiers of gazetted land in the State. Although it is clear that the final order sought is not one of spoliation that aspect was again canvassed in Commercial Farmers Union and Others v Minister of Lands and Others 2010 (2) ZLR 576 (S), in which, at 594, CHIDYAUSIKU CJ had this to say -

“It was submitted that the orders were issued in spoliation proceedings. Spoliation proceedings cannot confer jurisdiction where none exists. A court of law has no jurisdiction to authorise the commission of a criminal offence. In any event, spoliation is a common law remedy which cannot override the will of Parliament. A common law remedy cannot render nugatory an Act of Parliament.

Apart from this, there is the principle that a litigant who is acting in open defiance of the law cannot approach a court for assistance. See Associated Newspapers of Zimbabwe (Private) Limited v Minister of State for Information and Publicity and Others 2005 (1) ZLR 222 (S). Indeed, if this point had been raised as a preliminary point, the probabilities are that this application would have been dismissed on that point alone. A former owner who is in occupation of acquired land in open defiance of the law cannot approach the courts for assistance.”

Similar sentiments were expressed in Airfield Investments (Pvt) Ltd v Minister of Lands and Others 2004 (1) ZLR 511 (S) which is referred to in the first respondent's heads of argument.

The applicant has no legal right to the land in question. That means the element of a clear right, as a requirement for the interdict, has not been met. It matters not that the applicant has received covert encouragement from Government officials. It was duplicitous of those Government officials to have given the applicant such false hope without ensuring it is issued with a legal permit to remain on the land.

In the final analysis, the provisional order is hereby discharged with costs.

View Appeal
SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

This is an appeal against the order of the High Court discharging, with costs, a provisional order granted in favour of the appellant on 17 June 2014. FACTUAL BACKGROUND The appellant was the registered owner of four pieces of land held under a consolidated Deed of Transfer in Bulilima District, Figtree. The dispute in the court a quo, and ...

This is an appeal against the order of the High Court discharging, with costs, a provisional order granted in favour of the appellant on 17 June 2014.

FACTUAL BACKGROUND

The appellant was the registered owner of four pieces of land held under a consolidated Deed of Transfer in Bulilima District, Figtree. The dispute in the court a quo, and before this Court, concerns one of the pieces of land known as Subdivision A of Centenary, measuring 1,304.5 hectares. On 17 September 2003, the Government of Zimbabwe, in a Government Gazette Extraordinary, listed for compulsory acquisition the property in question together with many others. In terms of section 16B of the former Constitution (as read with Schedule 7 of the same) the property became vested in the State with full title therein. With the coming into force of section 72(4) of the current Constitution, the title to the property remained vested in the State.

The land in question was offered to the first respondent in 2014 by the second respondent. The first respondent duly accepted the offer.

On 1 May 2014, the first respondent arrived at the farm in the company of the District Administrator and local police officers. He left a copy of the offer letter issued to him and indicated that he would be taking occupation on 1 August 2014. On 25 May 2014, a person who identified herself as the first respondent's wife also came to the farm and indicated that she would be taking occupation on 1 June 2014.

PROCEEDINGS IN THE HIGH COURT

Following the visit by the first respondent's wife, the appellant formed the view that the matter had become unavoidably litigious and consequently filed an urgent application for interdictory relief, in particular, prohibiting the first respondent, and other persons claiming through him, from taking occupation of or moving cattle onto the farm until the legitimacy of his offer letter had been established. The appellant averred that, in the event that no interdict was granted, it stood to suffer serious financial prejudice as there would be inter-mixing of herds which would result in cross-breeding, and, potentially, communication of diseases.

The application was heard by the High Court at Bulawayo on 17 June 2014. Although the application was served at the first respondent's residence, the first respondent did not attend the hearing. The court then granted interim interdictory relief which, inter alia, called upon the first respondent to show cause why the order sought should not be confirmed on the return day.

The first respondent opposed the confirmation of the provisional order.

He averred that the land in question had been offered to him by the Minister of Lands and Rural Resettlement. He admitted visiting the farm to notify the appellant of the need to wind up operations within a period of three months. He further stated that the land in question had been gazetted by the State and attached a copy of the Gazette of 17 September 2003. In the circumstances, he submitted that there was no lawful basis for the confirmation of the provisional order previously granted as that would be tantamount to perpetuating criminality on the part of the appellant. He therefore sought an order discharging the provisional order.

In its answering affidavit, the appellant averred that, by the time the provisional order was granted, the first respondent's wife had moved three of her workers into staff quarters at the farm. Between 1 and 2 August 2014, persons acting on behalf of the first respondent also moved onto the farm, rounded up the appellant's pedigree herd and removed same from the farm, evicted the appellant's labour force from the farm compound and directed that the gates leading to the irrigated vegetables be left unlocked. The appellant stated, further, that it had not, at any stage, been ordered by the Government to vacate the farm nor had any eviction order been granted by a court of competent jurisdiction. In the circumstances, the appellant sought an order preventing self-help by the first respondent and confirming the provisional order.

In its heads of argument a quo the appellant conceded that the farm had indeed been listed for acquisition and gazetted in 2003. The appellant consequently sought alternative relief in terms of a draft order it filed with the court. Further, the appellant submitted that the first respondent was in contempt of the order issued by the court and that, consequently, an application seeking an order declaring him to be in contempt had been filed. It contended that as the first respondent continued to be in contempt of court he should therefore not be heard before purging such contempt. The appellant also submitted that it had the right to remain in peaceful occupation of the property until such time as an order was made by a competent court for its eviction.

In short, it submitted that by resorting to self-help, the first respondent had committed an act of spoliation.

In his heads of argument a quo, the first respondent submitted that the appellant, having lost title to the property, had no locus standi to show the existence of a prima facie right and that a court of law cannot grant an order the effect of which is to authorise the appellant to remain on gazetted land.

In its judgment, the court a quo came to the conclusion, firstly, that it could not refuse the first respondent audience because the order of contempt granted against him had been appealed against and that such appeal was pending. Secondly, it found that the appellant, being in clear breach of the law as it remains in occupation of gazetted land without lawful authority, was not able to establish the existence of a clear right necessary in proceedings where a final interdict is sought. Accordingly, it discharged the provisional order.

Hence the present appeal.

GROUNDS OF APPEAL

The appellant filed a total of nine grounds of appeal. Some of them are repetitive. The grounds are cited verbatim hereunder:

1. The honourable court a quo declined to determine the appellant's point in limine on the right of audience of the respondent prior to hearing argument on the merits. The respondent was, in fact, in contempt of the provisional order and the learned court a quo erred, at law, in hearing the respondent despite this contempt and misdirected itself in the position that it took.

2. The appellant's argument on the respondent's contempt of court was not dependent on the contempt of court order which had been appealed against, but on the actual events, and the position at the time of the court hearing argument on the return day. The learned court a quo erred at law in not paying regard to those facts.

3. The Honourable Court a quo did not determine the question of whether or not the respondent's actions did constitute self-help, which is against the law, and, accordingly, in not determining whether or not the respondent himself was in contempt of the law and could not be heard. This was a fundamental error at law and a misdirection.

4. The Honourable Court a quo erred at law in not applying the requirements of spoliation proceedings in this matter. The relief sought on the Return Day was spoliatory relief, owing to the respondent having taken occupation of the property at issue without due process.

5. The learned court a quo erred at law in determining that the appellant was in unlawful occupation of the property by reason that the land at issue had been gazetted. In making this determination, the Honourable Court a quo paid short shrift to the representations and overt encouragements given to the appellant by responsible Government officials. The learned court a quo, accordingly, erred in not finding that these representations, which were not disputed, and were relied upon by the appellant to its detriment, were material to the matter.

6. There was, in this matter, clearly an element of estoppel following upon reliance on representations and advices of Government officials on Government policy, which element affected the question of unlawfulness, which question was the main determining factor upon which the court found that the appellant was in contempt of the law. The court a quo, therefore, erred in the finding that the appellant was in unlawful occupation of the property against the facts placed on record.

7. Further, the learned court a quo erred at law in dismissing the appellant's argument on a legitimate expectation on its part to be heard before it was evicted from the land in the full circumstances of this case.

8. The learned court a quo, while acknowledging that Government officials might have made representations and given encouragements to the appellant, found that it was duplicitous of the Government officials to have given the appellant false hope without ensuring that the appellant was issued with an offer letter. The duplicitousness of Government officials, just like bureaucratic inefficiency and bungling, does not accrue to the detriment of a citizen. The learned court a quo erred, at law, in effectively allowing the appellant to be penalised and adversely affected in this matter.

9. The learned court a quo erred at law in omitting to determine the question of whether due process was followed in the allocation of the land at issue to the respondent.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In heads of argument filed with this Court, the appellant submitted that the court a quo had misdirected itself in opining that the appellant had failed to demonstrate a clear right – a requirement one needs to establish where a final interdict is sought - when the appellant's case was predicated on the mandament van spolie. The court a quo should not, therefore, have concerned itself with the rights of the parties as the live issue at the stage of confirmation of the provisional order was whether or not spoliation had been established. Since it had been established that the appellant had been in peaceful and undisturbed possession, and that the first respondent had despoiled it of such possession, the court a quo should therefore have confirmed the order of spoliation and ordered the restoration of the status quo ante. Before restoration of that status, the court a quo had no jurisdictional ability to evaluate the appellant's rights viz-a-viz the acquired land since the cause for possession is irrelevant and it is for that reason that even possession by a thief is protected.

In short, it was submitted that the relief sought a quo was for the confirmation of spoliatory relief that had already been granted. Further, in terms of section 74 of the Constitution of Zimbabwe, the court a quo cannot sanction the arbitrary eviction of the appellant in the absence of a court order.

In oral submissions, counsel for the appellant conceded that, going by the founding affidavit, no spoliation had taken place at the time of the grant of the provisional order. However, it was his submission that after the interim order had been granted, interference had taken place and the issue both at the confirmation stage and before this Court is whether spoliation had taken place.

FIRST RESPONDENTS' SUBMISSIONS ON APPEAL

Counsel for the first respondent submitted that the appellant's founding papers confirm that what was sought was an interdict and not spoliation. Since the appellant had lost all rights to the land in question and, in short, is an outlaw, interdictory relief could not have been available to it as the law cannot interdict what is lawful. The appellant had sought an interdict pending the determination of the validity of the acquisition of the land and the offer letter. Once the appellant conceded that its land had been acquired and that an offer letter had been issued, it could not, in those circumstances, have been entitled to final interdictory relief.

In further oral submissions, counsel for the first respondent argued that once it was accepted that no spoliation had taken place at the time of the grant of the provisional order then that really was the end of the matter. If spoliation took place after the grant of the provisional order, such spoliation should have been the subject of a separate order of spoliation.

On the question whether the first respondent was in contempt, he submitted that the matter is the subject of separate proceedings which are pending before this Court. It would therefore not have been proper to refuse audience to the first respondent in respect of events that are subject to determination separately by this Court.

In the circumstances, he prayed for the dismissal of the appeal.

ISSUES FOR DETERMINATION

Although the appellant filed a total of nine grounds of appeal, it is my considered view that, from the heads of argument filed and the oral submissions made, only four issues arise for determination before this Court. The four issues are the following:-

(a) Whether the court a quo erred in giving audience to the first respondent despite the allegation of contempt of court having been made against him.

(b) Whether the court a quo erred in dealing with the matter as a final interdict as opposed to spoliation.

(c) Whether the conduct of certain Ministry of Agriculture officials who encouraged the appellant to continue farming constituted an estoppel.

(d) The effect, if any, of section 74 of the current Constitution.

I relate to each of these issues in turn.

View Appeal
SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

Following the issuance of the provisional order, the first respondent filed an opposing affidavit….,. He therefore opposed the confirmation of the provisional order.

HH468-18 : KETHIWE VAN DER SANDEN vs ROBERTUS ANTOINE W. VAN DER SANDEN and ROY MASAMBA and REGISTRAR OF DEEDS N.O.
Ruled By: CHIRAWU-MUGOMBA J

Setlogelo v Setlogelo 1914 AD 221 and a plethora of other cases is often cited as the leading authority on the requirements of a final interdict. These are:- 1. A clear right which must be established on a balance of probabilities. 2. Irreparable injury actually committed or reasonably apprehended. 3. The absence of a similar protection by any other remedy.

HH15-09 : GRISON MUWIDZI vs OPTIMACK INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: UCHENA J

The applicant and the first respondent entered into an agreement of sale. In terms of that agreement, the applicant was to purchase Stand 58 Greystone Township 2 of Lot A of Borrowdale Estate measuring 4,730 square meters. The agreement was entered into on 18 February 2008. In terms of clause 2, which deals with the terms ...

In terms of clause 2, which deals with the terms of payment, $1,950,000,000,000 (One trillion nine hundred and fifty billion Zimbabwe dollars) was to be paid “within three (3) days of signing this agreement of sale to Kingdom Asset Management.”

The applicant completed an RTGS form on 21 February 2008 and presented it to his Bank, instructing it to pay the first respondent's agent the purchase price. The RTGS form which was attached as annexure B to the applicant's application has the following material details;

It was addressed to CFX Bank requesting it to transfer $1,950,000,000,000 to Kingdom Securities Ltd Call Account. It is dated 21 February 2008. The value date is indicated as 22 February 2008. The account to be debited is indicated as c/o CFX. It is endorsed at the bottom in long hand “Debit new account No. 172 1197287-011” and “pd. 22/2”.

The following facts are common cause;-

1. The first respondent sold the property to a third party on 21 February 2008.

2. The applicant was offered another unspecified Stand on a without prejudice basis.

3. The applicant applied for a provisional order interdicting the first respondent from selling, disposing, transferring or alienating the immovable property to any person other than the applicant.

4. The provisional order was granted by HLATSHWAYO J on 5 March 2008.

The applicant now seeks confirmation of the provisional order. The first respondent seeks its discharge. The issue to be decided is whether or not the applicant paid the purchase price within the agreed period.

Counsel for the applicant submitted that the provisional order should be confirmed as the applicant has a clear right emanating from his having complied with the terms of the agreement of sale by paying the purchase price within the stipulated period. Counsel for the first respondent submitted that the provisional order should be discharged as the applicant has not established a clear right as the agreement lapsed when the applicant failed to pay the purchase price by the 21^st of February 2008.

The issue on which this case hinges is whether or not the applicant paid the purchase price within the stipulated period. Put differently, the issue is whether the instruction given by the applicant to CFX Bank on 21 February 2008 constitutes payment within three (3) days as provided in clause 2, or payment by the 21^st of February 2008 as provided in clause 17 of the agreement of sale.

Clause 17 provides as follows;-

“It is a condition precedent of this agreement that the Purchaser signs and pays the full purchase price stipulated in paragraph 2.1 (sic) on or before 21 February 2008 failing which the agreement shall immediately lapse and be of no further force or effect.”

Clause 2 of the agreement provides as follows;-

“Z$1,950,000,000,000 (one trillion nine hundred and fifty billion Zimbabwe dollars) to be paid within three (3) working days of signing this agreement of sale to Kingdom Asset Management.”

It is clear from clauses 2 and 17 that payment was to be made before the closing of business on 21 February 2008. Failure to comply would lead to the lapsing of the agreement of sale.

Counsel for the applicant submitted that the ZETTSS Payment Form, annexure B, proves that the applicant paid within 3 days as required by clause 2, and on or before 21 February 2008 as stipulated by clause 17. He relied on Rule 1.1 of the Zimbabwe Electronic Transfer and Settlement System Operating Rules, (R.B.Z.ZETSS - 1 (Issue 5) which provides as follows;-

“1.1 The Zimbabwe Electronic Transfer and Settlement System (ZETSS) allows for the real time, irrevocable, interbank transfer of funds on a same-day value basis using settlement accounts held at the Reserve Bank of Zimbabwe.”

Counsel for the respondent, on the other hand, submitted that payment is made when the sending Bank's account is debited and the receiving Bank's account is credited with the amount specified in the payment instruction. He relied on Rule 9 of the Zimbabwe Electronic Transfer and Settlement System Operating Rules which provides as follows;-

“9. A payment instruction under ZETSS is deemed to be final and irrevocable once the sending Bank's account is debited and the receiving Bank's account is credited with the amount specified in the payment instruction.”

It seems to me that the submissions made by counsel for the applicant are correct.

Rule 1.1 deals with the general intention behind the introduction of this type of transfer of funds. It was intended to be a quick way of transferring funds so that the funds so transferred could reflect in the recipient's Bank account on the same day. It makes it clear that once the instruction is given it becomes irrevocable, meaning that payment must be deemed to have been made at the time the instruction was given. Rule 9, on the other hand, provides for the stage when such a payment becomes final and irrevocable. In my view, this merely provides for the finality of an already irrevocable payment. I would therefore not agree with counsel for the respondent that payment is made at the time the receiving account is credited.

Rules 1.1 and 9 must be interpreted within the context of other provisions of the operating rules. Rules 7.1 and 7.4(a) of the Zimbabwe Electronic Transfer and Settlement System Operating Rules shed light to their true meaning. They provide as follows;-

“7.1 Only unconditional, irrevocable payment instructions between participants and between participants and the Reserve Bank may be made through the System;” and

“7.4 Participants may capture payments that are to be effected at a future date or time, on condition that:-

(a) Such payments shall be scheduled for a business day and time the System is in operation:”

This, to me, means, as a general rule only, unconditional, irrevocable payment instructions between participants and the Reserve Bank can be made. This would mean payment would be deemed to have been made on the day the paying party gave instructions to his Bank.

In this case, it would mean payment was made on 21 March 2008.

If there was no exceptions to Rules 1.1 and 7.1 I would have had no difficulties in finding that the applicant paid within the agreed period. However, the paying participant can, in terms of Rule 7.4(a) of the Zimbabwe Electronic Transfer and Settlement System Operating Rules, instruct his Bank to capture a payment that is to be made in the future. If he does, payment cannot be deemed to have been made on the date of the instruction but on the stipulated future date.

In this case, it is common cause that the applicant, in giving instructions to his Bank in annexure B, indicated the value date as 22 February 2008. That is the date on which he intended to effect payment. That is the date on which his Bank effected payment as he had instructed it to. The date of payment is, in this case, not the day the instruction was given but the future date stipulated by the applicant in his instructions. In the result, the applicant paid on 22 February 2008 when the agreement required him to pay by the 21^st of February 2008. This means the agreement lapsed at the close of business on 21 February 2008.

There is therefore no legal basis on which the provisional order granted on 5 March 2008 can be confirmed. The right on which it depended was extinguished by the lapsing of the agreement of sale. It is therefore discharged with costs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) One Sarah Hwingwiri (“Sarah”).

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

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

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

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

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

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

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

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

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

They submitted that the first applicant and the first respondent were two separate legal entities.

They stated that the annexures which the respondents used to support their case were forged documents. They insisted that the annexures which were purportedly deposed to outside Zimbabwe violated section 3 of the High Court [Authentication of Documents] Rules, 1971. They contended that the documents/annexures were not notarised.

They moved the court not to allow the respondents to use them as evidence which supports the latter's case....,.

My first observation relates to the resolution which the respondents passed.

The resolution confers authority on Sarah Hwingwiri to depose to their opposing affidavits. It raises more questions than it provides answers to them. It appears at page 114 of the record. The respondents called it Annexure A.

A reading of the annexure with what Sarah Hwingwiri stated in the first paragraph of the opposing affidavit shows the effort and the extent to which the respondents went to mislead the court. She stated:

“I, the undersigned, SARAH HWINGWIRI, do hereby make oath and state as follows:

1. I am the second Respondent in this matter and I have been authorised to depose to this affidavit on behalf of the 1st Respondent by virtue of a company resolution attached hereto as Annexure A….,.”…,.

The annexure, it is evident, is not that of the first respondent who allegedly authorised Sarah Hwingwiri to depose to the opposing affidavit. It is that of the first applicant.

The question which arises is; who, between the first applicant and the first respondent, authorised Sarah Hwingwiri to depose to the opposing affidavit?

The respondents left that critical issue not only unanswered but also unresolved.

I mention, in passing, that the first applicant could not have authorised Sarah Hwingwiri to depose to the opposing affidavit. It could not do so when it sued the first respondent and her. It could not, in other words, approbate and reprobate, and, at the same time, remain relevant to this application.

The first applicant and the first respondent have similar names. There is, however, a marked difference between the two legal entities. The difference lies in that the first respondent's name ends with the phrase (Private) Limited.

The second question which arises is whether it was by design or by accident for the respondents to have cited the name of the first applicant in their resolution.

The probabilities are that it was more by design than it was by accident. The citation was deliberate. It aimed at confusing issues especially in the mind of unsuspecting readers of the resolution.

It is my considered view that Sarah Hwingwiri must have realised the folly of the resolution of 29 November 2016 (i.e. Annexure A). It was for the mentioned reason, if for no other, that she refrained from repeating the same in all subsequent affidavits which she filed in opposition to any application which related to the two properties.

She, for instance, stated, in the opposing affidavit which she filed on 3 January 2017, as follows:

“I, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:

1. I am the second respondent and a director of the first respondent. I am therefore authorised to depose to this affidavit on my behalf and on behalf of the 1st Respondent.”

She stated, in her opposing affidavit to the urgent chamber application, as follows:

“I, the undersigned, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:

1. I am the second respondent in this matter. I also have authority to depose this affidavit on behalf of the 1st Respondent by virtue of being its director.”…,.

Sarah Hwingwiri did not mention the person who authorized her to depose to the first of the above mentioned two affidavits. She produced no resolution which conferred authority upon her to act for the first respondent. All she said was that she was authorised to depose to the affidavit on behalf of the first respondent.

Sarah Hwingwiri stated, in so far as HC2012/18 was concerned, that she had the authority to depose to the affidavit on behalf of the first respondent by virtue of being its Director.

The correct position of the matter is that she could not confer any authority upon herself. She could not even do so in her capacity of Director of the first respondent.

It is a trite position of Company Law that a Director cannot confer authority upon himself or herself to act for, and on behalf of, the company on the basis that he/she is a Director of the same. If that was the case, then each Director would, at his/her whim, drag his/her company to court as he/she pleases. Such an undesirable development would run against the concept of good corporate governance which lies at the centre of any business enterprise as well as Company Law.

The respondents did not mince their words in their criticism of the applicants' case.

They indicated that the application was fatally defective for want of a resolution which authorised Borislav Boynov to depose to the founding affidavit. They drew the court's attention to the importance of the resolution which they said was/is a sine qua non aspect of motion proceedings.

They spoke eloquently on the matter. They referred me to a number of case authorities which stressed the importance of the resolution in an application.

Among the cases which they cited in their heads, and in support of the necessity for a resolution, was that of Madzivire & Ors v Zvaridza & Ors 2005 (2) 514 (S)…, which stated as follows:

“…,. A company, being a separate legal persona from its Directors cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle which the courts cannot ignore….,.

The fact that the first appellant is the Managing Director of the fourth appellant does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorising him to do so.

In Burstein v Yale 1958 (1) SA 768, it was held that the general rule is that Directors of a company can only act validly when assembled at a Board meeting.”…,.

The respondents also referred me to the case of Dendeuka v Paper Place (Pvt) Ltd HH195-11 in which BHUNU J …, made some incisive remarks on the need for a company resolution. The learned judge said:

“The position in our law is…, that a company, being a fictitious legal persona, cannot act on its own. There is therefore need for a company resolution to legalize and validate any company acts…,.”

The last case which the respondents were pleased to draw my attention to on the matter was that of Tapson Madzivire and 3 Ors v Misheck Brian Zvarivadza and 2 Ors HH 2005 wherein MAKARAU J…., stated:

“The fictional legal persona (i.e. a company) still enjoys full recognition by the courts. Thus, for any acts done in the name of a company, a resolution duly passed by the Board of Directors of a company has to be produced to show that the fictional persona has authorised the act.”…,.

The applicants complied with the principles which were enunciated in each of the above cited three cases. They produced two resolutions which conferred authority on Borislav Boynov to depose to their affidavits.

The respondents, on the other hand, produced no resolution.

They, for a start, produced what purported to be the first respondent's resolution. This was, however, not such. They produced no resolution at all for the subsequent affidavits which they filed in opposition to the main and the urgent chamber applications.

It is accepted that Sarah Hwingwiri is a Director of the first respondent. She could not, however, confer authority upon herself to speak for, and on behalf of, the first respondent. She required a resolution for the purpose. She required the input of Ivan Pantchev for any resolution which she would have produced to remain valid. Ivan Pantchev's views were left out of the equation on the issue of the respondents' resolution.

The third question which arises from the above analysed matter is whether or not the respondents are properly before the court.

They passed no resolution authorizing Sarah Hwingwiri to speak for them. The first respondent is, by virtue of the stated fact, out of court.

I am pleased to refer the respondents to Macfoy v United Africa Co Ltd (1961) 5 ALL ER 1169 (PC) 1172 in the mentioned regard. The remarks of LORD DENNING, which he made in the case, are relevant to their situation. The learned LORD JUSTICE said:

“If an act is void, then it is a nullity. It is not only bad but incurably bad….,. It is automatically null and void without more ado….,. You cannot put something on nothing and expect it to stay there. It will collapse.”

Apart from the invalidity of the respondents' resolution, no evidence was produced to show that the first respondent's two Directors – Ivan Pantchev and Sarah Hwingwiri – sat down in some room to pass any resolution. Ivan Pantchev is a Bulgarian who is domiciled in Bulgaria. Sarah Hwingwiri, as a Zimbabwean, stays in this country.

The applicants' unchallenged statement was that Ivan Pantchev came to Zimbabwe at their instance. They said he left for Bulgaria and returned to Zimbabwe at the end of November 2013 to sell the Glen Lorne property. He, according to them, returned to Bulgaria after the sale. They submitted that he has not returned to Zimbabwe again.

The respondents did not challenge the above-mentioned averments of the applicants. They remained mute on the same.

By not challenging the applicants' assertions, the respondents admitted that Ivan Pantchev did not come to Zimbabwe. He, in other words, did not return to Zimbabwe after he had sold the Glen Lorne property. He, in short, did not sit down with Sarah Hwingwiri to pass a resolution authorising her to depose to the opposing affidavits.

The long and short of the above described matters is that the first respondent is not before the court. It is out of court. The opposing papers are, therefore, those of Sarah Hwingwiri alone.

The matter remains between the applicants and Sarah Hwingwiri. It excludes the first respondent in toto.

Annexure C, which the applicants attached to the application, shows that the first applicant was, until 22 November 2017, the owner of the Mount Pleasant property. It purchased it in 2008. It had it registered in its name.

Annexure D shows that the second applicant was, and still is, the owner of the Avondale property. It purchased it in 1989. It retained title in the same from the mentioned period of time to date.

Annexure E shows that the first applicant was the owner of the Glen Lorne property. It purchased it in 2008. Sarah Hwingwiri and Ivan Pantchev sold it to someone at the instance of the applicants. They sold it for $150,000.

Sarah Hwingwiri's averments were that the first respondent was the owner of the Mount Pleasant property. She attached Annexure A to her opposing papers. The annexure, she said, constitutes proof of the fact that the applicants conferred upon her the authority to run the affairs of the two properties on their behalf.

The applicants denied having ever conferred any authority on Sarah Hwingwiri to manage their two properties. They submitted that Borislav Boynov was, and remained, their point-man in Zimbabwe. They said he had their authority to look after their two properties.

Sarah Hwingwiri's statement, which was to the effect that the first respondent owned the Mount Pleasant property, is devoid of merit.

The first respondent did not ever own the Mount Pleasant property. That property's title was always with the first applicant. It was never with the first respondent as was alleged. It was transferred from the first applicant to Mr Jogi when the latter allegedly purchased the same.

The memorandum of agreement of sale, which appears at p156 of the urgent chamber application, bears testimony to the above stated set of circumstances. It describes the first applicant, and not the first respondent, as the seller of the property. It describes Mr Jogi as the purchaser. The two are the parties to the alleged agreement of sale.

The first applicant could not have sold the Mount Pleasant property if it did not belong to it. It could not have sold it if it belonged to the first respondent as Sarah Hwingwiri alleged. It could not have transferred title in the property to Mr Jogi if it did not have title in the same. It could not, in short, give what it did not have.

The first respondent, it is observed, did not ever own or possess the Mount Pleasant property. It did not ever have title in the Avondale property. Title in the same has always remained with the second applicant. The first respondent did not produce any evidence which supported the allegation that it was, or is, the owner of either of the two properties.

Sarah Hwingwiri's claims were that the applicants authorized her to manage the affairs of their two properties which are in Zimbabwe. She produced four documents which she said conferred the requisite authority upon her. The documents comprise:

(a) Annexure A which is a letter which Ivan Pantchev and one Ivo Kamenov Georgiev signed. The capacity in which they signed it was not stated. It is dated 6 September 2016. Its heading reads:

RE: CONFIRMATION AS MANAGER OF THE BULCHIMEX GMBH IMPORT CHAMUKALIEN UND PRODUKTE'S PROPERTIES IN ZIMBABWE…,.

(b) Annexure A1 is a resolution of three legal entities.

These are the first applicant, the first respondent, and the second applicant. It is dated 12 December 2016. It was passed by Ivo Kamenov Georgiev and Ivan Kostadinov Pantchev. Its paragraph 3 stated that the first applicant and the first respondent were one and the same entity. It authorised Sarah Hwingwiri to give effect to any of the companies' resolutions pertaining to the properties as the only Director representing the interests of the organisation in Zimbabwe.

(c) Annexure A2 is a resolution which Ivan Pantchev signed. It is dated 12 December 2016. It was passed by the first applicant and the first respondent. It authorised Sarah Hwingwiri to “represent the company in the court cases including hiring legal practitioners in cases pertaining to the company's properties in Zimbabwe.”

(d) Annexure A3 is an affidavit which Ivo Kamenov Georgiev deposed to on 12 December 2016. He did so as Director of the first applicant. He confirmed Sarah Hwingwiri as their “lawful representative including management of all our properties in Zimbabwe.”

The applicants dis-associated themselves from the above-mentioned four annexures. They said the annexures were a result of Sarah Hwingwiri's resourcefulness. They described them as a fraud and a forgery by her. They submitted that she crafted them with a view to stealing from them their properties through the first respondent in which she is a Director.

The applicants' Annexure M3 is a declaration by one Maria Ilieva Vladimirova who said she was the first applicant's manager and legal representative.

She stated that she was appointed to her position on 28 August 2015. She averred that she had exercised her full rights to represent the first applicant before any third parties, to manage its day-to-day business affairs and to supervise its documentation as well as documentation and record keeping. She stated, in an emphatic manner, that the first applicant's Board of Directors had not adopted any resolution and had not taken any action for incorporation and registration of any daughter company into the first applicant or related parties to it in Zimbabwe. She denied that the first applicant gave any power of attorney or any letter of authorization to Sarah Hwingwiri or to Ivan Pantchev. She stated that the first respondent had no relationship at all with the first applicant. The first respondent, she said, was not even a subsidiary of the first applicant.

She denied that the first applicant ever gave any authority to Ivan Pantchev or Sarah Hwingwiri to manage or sell any of its two properties.

Annexure O, which the applicants attached to the application, is a declaration by one Ivo Kamenov Georgiev. He said he was, until 27 August 2015, manager and legal representative of the first applicant. He stated that he was in that position from 2006 – 27 August 2015. He declared that Sarah Hwingwiri's Annexures A, A1, A2 and A3 were untrue and un-authentic. He said the signature which appeared as his in any of the annexures was not his own. He said:

“1.1 I am referred to as the authoriser who has allegedly confirmed the powers of Sarah Hwingwiri as a manager of the company's property in Zimbabwe. As indicated therein, the letter was produced on 6 September 2016. It is inconsistent with the fact (obviously due to the ignorance and a lack of information of its author) that on 28 August 2015 I was released as a manager and a legal representative of the company…,.

1.2 The second document is a translation of minutes (a Board resolution) into English language dated 12 December 2016 bearing the letterhead of Timeset Ltd a Bulgarian translation agency, which purportedly made that translation into English language.

The original minutes, subject to the translation, again, is missing and not appended thereto…,.

Furthermore, a joint meeting of three legal entities of different nationalities resolving together on matters concerning their private business affairs and properties, in one and the same document, is an absolute distortion of their actual corporate rules as well as legally unacceptable from the stand point of the corporate laws governing the Germany company said above, the Bulgarian Company, Technoimpex JSC (wrongly stated to be incorporated in Germany, and a Zimbabwean Company Bulchimex GMBH Import-Export Chemikalien and Produkte (Pvt) Ltd.

It is important to be noted that the name of the said Zimbabwean company closely resembles the name of the German Company, but, as a matter in fact, it has nothing to do with the German Company (as well as the Bulgarian Company) it has no place in such a joint meeting with them because it is neither a subsidiary of nor a related party to the German Company (or the Bulgarian Company Technoimpex).

It is also important to be mentioned that in this translation of the minutes I am referred to as a Director of the said three companies, but, in fact, I have never been a Director/Manager of the Bulgarian and the Zimbabwean companies. Ivan Kostadinov Pantchev has never been a Director /Manager of the German company. In addition, as indicated therein, the minutes were produced on 12 December 2016. It is inconsistent with the fact that on 28 August 2015, I was released as a manager and a legal representative of the company…,.

In conclusion, the document is false.”…,.

Mr Georgiev discounted annexures A2 and A3 which Sarah Hwingwiri purported to rely upon with clear and uncontroverted evidence.

The applicants' Annexure S was a declaration by one Dimitar Ivannov Tourlakov. He is the owner, manager, and legal representative of TIMSET Ltd.

He denied having ever received, let alone translated, Sarah Hwingwiri's annexures from any language into the English language. He said the four annexures did not exist in his company's records. He stated that he did not sign or issue those. His conclusion was that the four annexures were untrue and unauthentic. He pointed out seven inconsistencies which he said they contained.

I cited in extensor the declaration of Ivo Kamenov Georgiev. I did so as he was alleged to have authorised Sarah Hwingwiri to handle the affairs of the applicants' two properties. He and Ivan Pantchev had their names repeatedly mentioned in the annexures.

His conclusion, with which the court agrees, was that the annexures upon which Sarah Hwingwiri relied were not authentic at all.

Sarah Hwingwiri did not challenge, or even comment upon the declarations of Maria Ilieva Vladimirova, Ivo Kamenov Georgiev and/or Dimitar Ivannov Tourlakov.

The declarations contained information which seriously damaged her case. They called for a response which Sarah Hwingwiri did not ever make.

The law is very clear on such a matter as has been stated in the foregoing paragraph. It states, as trite, that what has not been denied in affidavits is taken as having been admitted. See Fawcett Security Operations v Director of Customs & Excise 1993 (2) ZLR 121 (SC); DD Transport v Abbot 1988 (2) ZLR 92; Remo Investment Brokers (Pvt) Ltd v Securities Commission of Zimbabwe SC85-14.

Mr Georgiev stated that he was no longer working for the applicants when the annexures of Sarah Hwingwiri came into existence. He denied that he authored Annexures A, A1 and/or A3. He stated, and I agree, that the annexures were a forgery. He could not have produced any of the annexures when he had ceased to work for the applicants.

That the annexures were a forgery is evident from their contents.

Annexure 1, for instance, does not mention the name of the place where it was passed - if it was. It does not mention the names of the Directors who attended the meeting on behalf of the first applicant, the first respondent and/or the second applicant.

A meeting of such serious magnitude, with such far reaching consequences, requires real, as opposed to fictitious, evidence that it was held and that the participants took a clear and unequivocal decision to merge the first applicant with the first respondent. It could not be plucked from thin air as Sarah Hwingwiri would have the court believe.

Sarah Hwingwiri did not explain the position of Mr Georgiev in the alleged meeting where the resolution was purportedly passed. He was not a Director of the first or the second applicant. He was a manager and legal representative of one of the applicants. He had ceased to be such when the resolution was allegedly passed. How he was able to communicate to her the contents of the resolution, in December 2016, when he had vacated his office on 27 August 2015, stretches the mind of anyone - that of the court included.

Sarah Hwingwiri stated, in her opposing papers, that she was in constant communication with Ivan Pantchev. She said she communicates with him through emails. She did not explain why she did not call upon him to substantiate the contents of her Annexure 2.

Sarah Hwingwiri's Annexure 2 describes Ivan Pantchev as a Director of the first applicant. It reads, in part, as follows:

“Today, 12 December 2016, the undersigned, Ivan Kostadinov Pantchev…, in his capacity as Director of BULCHIMEX GMBH IMPORT CHEMIKALIEN UND PRODUKTE, a company duly established…,.”…,.

Paragraph 2 of Sarah Hwingwiri's Annexure 3 changes the position of Ivan Pantchev from that of a Director to that of a manager. The annexure which was allegedly deposed to by Mr Georgiev reads, in the relevant part, as follows:

“2. I confirm that through our manager Ivan Kostadinov Pantchev…, Sarah Hwingwiri…, to be our lawful representative including management of all our properties in Zimbabwe.”…,.

It requires little, if any, effort to realise that the papers which Sarah Hwingwiri purports to rely upon are not authentic. They are, if anything, a product of her own fertile mind. She authored them herself. Her aim and object were, as the applicants stated, to reach out to their properties in an unlawful manner, take charge of the same, and deal with them as she pleased.

The documents which she referred to as annexures appeared to have been prepared in a hurried manner. They, in the process, failed to capture some salient features of, for instance, the correct name of the first applicant. Its name, in its correct form, reads: BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALEN und PRODUKTE. The same name as Sarah Hwingwiri wrote in her annexures reads as follows:

(i) Annexure A1: BULCHIMEX GMBH IMPORT CHEMIKALIEN UND PRODUCKTE. The following variations are noted;

(a) GmbH is written as GMBH.

(b) Import-Export is written as Import only. The word Export is left out.

(c) und is written as UND; and

(d) Chemikalen is written as Chemikalien.

(i) In Annexure A1 – Sarah Hwingwiri repeated the same errors.

(ii) In Annexure A2 – Sarah Hwingwiri repeated the same errors.

(iii) In Annexure A3 she repeated the same errors.

A reading of the above shows that her intention was to show that her Zimbabwean company, along which she fashioned the name of the first applicant, was the same as the latter. She failed dismally to achieve her intended end-in-view in the mentioned regard. The two entities, it has already been observed, are separate and distinct from each other. They are not, and can never be, the same.

The word Chemikalien which appears in the abovementioned annexures of Sarah Hwingwiri also appears in the memorandum of agreement of sale which is at p156 of the urgent chamber application.

The question which arises is whether it is the first applicant which sold its Mount Pleasant property to Mr Jogi.

Given Sarah Hwingwiri's fraudulent conduct, as has been observed in the foregoing paragraphs, the probabilities are that this is yet again one of her unwholesome schemes. She admitted, during the hearing of the urgent chamber application, that the mobile number which appears in the portion of the agreement which relates to the seller was her own. The number was quoted in many of the fraudulent documents which she produced as her annexures.

I am satisfied, therefore, that the mobile number belongs to her. It was cited as part of the seller's contact address and phone number.

That Sarah Hwingwiri's annexures were a forgery and a fraud by her is evident from the agreement of sale of the Mount Pleasant property. The agreement was signed on 9 December 2013.

The agreement is either real or unreal. If it is real, as Sarah Hwingwiri would have the court believe, the applicants would not have mandated her to manage the affairs of both properties in December 2016. They could not have done so when, to her knowledge and that of the applicants, Mr Jogi had, as of 9 December 2013, acquired personal rights in the Mount Pleasant property. The applicants would have realised that they could only confer such authority on Sarah Hwingwiri with the consent of Mr Jogi.

It is disquieting in the extreme to observe that Sarah Hwingwiri, who knew that the Mount Pleasant property had been “sold” to Mr Jogi, purported to have acquired the authority of the applicants to manage the same. The fact that she refrained from advising the court of the alleged sale of the property when the application was being heard shows the cunning mind with which she decided to handle the present matter. Nothing prevented her from disclosing that the applicants sold the Mount Pleasant property in December 2013 if they did.

Sarah Hwingwiri spent a lot of time, energy, and effort crafting her lies. She introduced them into the application which she strenuously opposed. She made every effort to create what she termed material disputes of fact. It was unfortunate for her, however, that what she had crated and made part of her case failed to stick.

The applicants described the circumstances through which Sarah Hwingwiri came to work with Ivan Pantchev.

They said they decided to sell one of their three properties and they wondered if they would be able to have the proceeds of the sale remitted to them. It was their testimony that Ivan Pantchev, whom they described as a Bulgarian free agent, convinced them that they would be able to receive the proceeds of the sale of the property. He was scheduled to come to Zimbabwe on holiday, according to them. They said they mandated him, on a trial basis, to sell their Glen Lorne property. He came to Zimbabwe in June, 2012 according to them. He met Sarah Hwingwiri who said she could sell the Glen Lorne property for, and on behalf of, the applicants and secure the exchange control authority to remit the funds to Bulgaria. They said she was, at the time, working for Mercers Property Brokers which is an estate agency. She sold the Glen Lorne property for $150,000 but did not forward the proceeds of the sale to the applicants.

Sarah Hwingwiri's contact with Ivan Pantchev and her work with him opened her mind to a golden chance in a person's life-time. It must have been at that time, more than at any other, that she became aware of Mr Georgiev as one of the applicants' workers. She must, therefore, have crafted all the documents which she used in her fraudulent scheme using the names of Ivan Pantchev, whom she already knew, and Mr Georgiev, whom she got to know, say, through Ivan Pantchev's correspondence with him. She knew of no other Bulgarian name apart from the two's names.

The applicants were, therefore, not far off the mark when they stated that the documents/annexures were a fraud which emanated from Sarah Hwingwiri's forgery. The annexures are nothing but that. The fact that Timeset, which is a Bulgarian translation agency, did not translate those confirms the view which I hold of the matter.

Sarah Hwingwiri registered the first respondent on 14 September 2016. She made an effort to have its name resemble that of the first applicant. She hoped that people who read the name of the first respondent would confuse it with that of the first applicant. Her plan, unfortunately for her, failed to hold.

Given Sarah Hwingwiri's scheming mind, it is doubtful if Ivan Pantchev is a Director of the first respondent. The probabilities are that he is not. If he was, he would simply have deposed to an affidavit confirming his status in the same. His deafening silence in the midst of this hot battle for some other persons' properties remains a cause for very serious concern.

The applicants' averments were that they authorized Ivan Pantchev to sell their Glen Lorne property.

They, however, produced no evidence which supported that his authority was limited to selling only that property. He allegedly sold the Mount Pleasant property. It remains unknown, at this stage, if his authority extended to selling that property as well. If it did, then the sale which he conducted in respect of the same is unassailable. If he did not have their authority to sell, and he sold it, the matter remains for argument before another court and on some other day....,.

The applicants did not mince their words.

They said Sarah Hwingwiri was not the owner. They stated that she schemed to steal from them their properties. They urged the court to make a finding that they were the owners of the properties as well as to declare them such.

Sarah Hwingwiri, on her part, did not dwell so much on the interdict. She made every effort to show that the company which she had registered owned the properties. She said she had the authority of the applicants, through the first respondent, to manage as well as sell the properties.

I have made a finding that the first applicant was, until 22 November 2017, the owner of the Mount Pleasant property. Whether it remains the owner of the same does, in a large measure, depend on the success or otherwise of the applications it filed under HC2974/17 and HC11246/17 and subsequent developments on the same.

I have also made a finding that the second applicant is the owner of the Avondale property.

Sarah Hwingwiri's fraudulent conduct is a nullity. It could not transfer ownership of each of the two properties to herself or to anyone else. It is trite that nothing comes out of an illegal conduct. Nothing, in short, comes out of fraud.

I have considered all the circumstances of this case. I am satisfied that the applicants proved their case on a balance of probabilities. I, accordingly, grant the final order in their favour subject to the amendment which must be effected in paragraph (1) of the draft order. The paragraph is amended to read:

“Until 22 November 2017, the first applicant, Bulchimex GmbH Import-Export Chemikalen und Produkte registered in Germany was the legitimate owner of Stand 295, Northwood Township 2 of Sumbeni commonly known as House No.116 Twickenham Road, Mount Pleasant, Harare.”

View Appeal
HH139-18 : MARIA SITHOLE vs MATHIAS SITHOLE and CECK ENTERPRISES PL and B.R.M HOVE and PETER DZIMBA and MANNERS JARAVAZA and PARDON CHAKANYUKA and REGISTRAR OF DEEDS
Ruled By: DUBE J

This case concerns a sale and transfer of property carried out contrary to a court order.

It is trite law that a thing done contrary to the direct prohibition of a court order is void and is of no legal effect. Such a thing is regarded as never having been done. A disregard of a court order is fatal to the validity of a contract that is concluded in violation of a court order.

This is an application for confirmation of a provisional order.

The brief background to the application is as follows;

The applicant and the first respondent were married to each other and they later separated. The first respondent passed away on 2 February 2013. The applicant obtained a provisional order, on 8 October 1997, under HC8638/97, against the first respondent and the Registrar of Deeds, in the following terms;

“1. That the 1st respondent be and is hereby interdicted from selling, ceding, encumbering or otherwise disposing of his right, title and interest in Stand No. 2395 Glen View Township of Glen View situate in the District of Salisbury pending the finalization of the appeal noted by the applicant in case No. CC1314/92: DC1/93.

That the 1st respondent be and is hereby interdicted from removing any of the movable assets in the matrimonial home.

2. That the 2nd respondent be and is hereby interdicted and restrained from registering or in any way giving effect to any sale, cession, encumbrance or disposal by any means of 1st respondent's right, title and interest in Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury.

3. That the 1st respondent pays the costs of this application.”

The first respondent did not oppose the provisional order which was granted during his life time and was barred for the reason of not opposing this application. He remains barred and this matter can proceed without notice to him or his estate.

The seventh respondent (Registrar of Deeds) is cited in his official capacity and did not oppose the application.

The claims against the third to sixth respondents, who are legal practitioners that represented the respondents at different stages of this dispute, were withdrawn.

Only the second respondent, who is the buyer of the property in dispute, defends the application.

The applicant followed the provisional order with a letter dated 24 October 1997 requesting that a caveat be registered over the property. Unfortunately, the letter was erroneously directed to the Registrar of the High Court instead of the Registrar of Deeds.

Unbeknown to the applicant, the first respondent had already sold the property to the second defendant in September 1997 and transferred the property to the second respondent on 3 November 1997.

Sometime in January 1998, the applicant was visited by people who claimed to be the new owners of the property. She obtained another order against the second respondent under HC1891/98 interdicting him from evicting her from the property or interfering with her peaceful occupation of the property on 2 March 1998.

In the final, she sought an order against all respondents for the setting aside of the sale and transfer of the property and cancellation of the sale.

The applicant remains in occupation of the property.

The Magistrates Court gave judgment in the appeal case, on 11 November 1998, granted 35% of the value of the rights, title and interest in the property to the applicant.

The applicant has appealed against the decision to this court under CIV(C) 27/29, and, interestingly, that appeal is still pending.

The issue regarding the applicant's rights in the property is still pending.

The applicant submitted that the first respondent disregarded the interim order and proceeded to sell and transfer the said property to the second respondent. The sale and transfer to the second respondent was unlawful and illegal and ought to be set aside.

The applicant seeks confirmation of the provisional order granted under HC1891/98 with the effect that the sale of the property to the second respondent is set aside and the property transferred into her name.

The second respondent is opposed to confirmation of the provisional order and he submitted as follows;

It was not aware of the order interdicting the sale at the time it bought the property. It later learnt of the controversy surrounding the sale and transfers of the property and surrendered the title deed to Hove Dzimba and Associates. The court order granted under HC8638/97 has been overtaken by events as the issue pertaining to the applicant's interests in the property was resolved by the Magistrates Court.

The respondent prays for dismissal of the applicant's application and counter claims for an order compelling the applicant to deliver the title deeds to it and for her to vacate the property.

The first respondent breached the court order interdicting him from selling or disposing of the property by selling the property to the second respondent and went on to transfer the property after the interim order had been granted.

The issues for determination are whether the applicant is entitled to the final interdict sought. Secondly, whether the second respondent is entitled to claim the title deeds of the property and eject the applicant from the property.

The applicant applies for a final order.

An applicant who seeks a final order must satisfy the following requirements;

(i) That applicant has a clear right.

(ii) That actual injury has been committed or is reasonably apprehended.

(iii) The absence of similar protection of another remedy.

See Setlogelo v Setlogelo 1914 AD 221.

In Federation of Governing Bodies of South African Schools (Gauteng) v MEC for Education, Gauteng, 2002 (1) SA 660…, the court remarked that when an order is disobeyed, the onus is on the party in favour of which the order was granted to establish contempt and persuade the court that a sanction is merited.

See also Fakie NO v CCII Systems (Pty) Ltd 2006 (4) 326 (SCA) where the court remarked that a party who has obtained an order requiring an opponent to do or not to do something, may, in the event of non-compliance, apply for contempt of court.

In Schierhaut v Minister of Justice 1926 AD 99…, per INNES CJ, the court said the following of things done contrary to a court order;

“It is a fundamental principle of our law that a thing done contrary to the direct prohibition of the law is void and of no effect.

The rule is thus stated: Ea quae lege fiery prohibentux, si fuerint facta, non solum inutilia, sed pro nfectis habeantur:licet legislator fiery prohibuent tantum, nec speccialiter dixerit inutile esse debere quod factum est: Code 1.14.5.

So that what is done contrary to the prohibition of the law is not only of no effect but must be regarded as never having been done and that whether the lawgiver has expressly so decreed or not: the mere prohibition operates to nullify the act…, and the disregard of peremptory provisions in a statute is fatal to the validity of the proceeding affected…,.”

Similar sentiments were echoed in Munyikwa v Mapenzauswa & Anor SC91-05. In this case, a party sold property contrary to a court order. The court said the following:

“Accordingly, the sale, having been done contrary to the provisions of the High Court order, was certainly not proper. It was therefore not proper to order that the house be transferred to the first respondent as the sale was a nullity. Court orders are made so that they are complied with. The order of the High Court, made on 16th May 2002, had neither been set aside nor appealed against. The High Court cannot be used to enforce a sale that was carried out contrary to the provisions of a lawful order.

In view of the above, the sale of the property to the first respondent cannot be allowed to stand.”

In Munyikwa v Mapenzauswa & Anor SC91-05, the consideration that the purchaser of the property was an innocent purchaser did not carry the day.

A thing that is done in breach of a court order is void ab initio. It is of no legal effect.

The failure to comply with a court order has the effect of injuring the rights of the other party. When a party is granted a provisional court order, those proceedings are complete notwithstanding that they may well be subject to an appeal or confirmation. The order ensuing is required to be complied with as any other order. A subsequent breach or wilful disobedience of the order entitles the person in whose favour the order was granted to enforce it.

A deliberate disregard of a court order constitutes contempt of court. It has the effect of violating the court's dignity, repute, and authority. It is the duty of the court to regulate its own orders. Courts cannot sit back and watch whilst its orders are being disobeyed. As a result, the courts regard anything that is done contrary to a court order to be of no force and effect and is regarded as not having been done at all.

The facts of this case are on all fours with Munyikwa v Mapenzauswa & Anor SC91-05 where the court refused to recognise a sale of a property made in defiance of a court order.

The order interdicting the sale and transfer of this property was granted on 8 October 1997 under HC8638/97. The applicant proceeded with the sale and transferred the property into the second respondent's name in November 1997 - well after the provisional order had been granted.

The first respondent breached the order when he sold the property to the second respondent and transferred it to him in the face of the court order. The first respondent acted contrary to a prohibition of a court order. The sale entered into between the first and second respondents is unlawful. It is a nullity and ought to be set aside. The non-compliance with the court order was both wilful and mala fide. The court order has not been appealed against or discharged and is still extant. The applicant is entitled to enforce the order.

The sale and transfer went ahead despite the fact that the dispute over ownership of the property was still pending.

The fact that the Magistrates Court subsequently dealt with the appeal is of no consequence when regard is had to the fact that the first respondent acted contrary to a court order. The judgment does not make lawful the sale and transfer which was made contrary to an extant order of the court and remains unlawful.

The fact that the purchaser may not have known of the existence of the court order does not clothe the sale with legality.

The first respondent disobeyed the authority of the court.

This court cannot be used to endorse and enforce a sale and transfer of property that was done contrary to its own order. The court will not be encouraged to be a party to defiance of its own orders.

The applicant has established a clear right to redress. She is not, at law, required to prove that she is likely to suffer any irreparable harm; see Charisma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Ors 2000 (1) ZLR 85…,. There clearly is no other appropriate remedy available to the applicant to address the harm caused. The sale of the property to the second respondent cannot stand. The applicant has shown an entitlement to the order sought.

The main application succeeds.

Consequently, the second defendant's counterclaim for eviction of the applicant from the property and surrender of title deeds of the property fails.

The provisional order granted under HC1891/98 is hereby confirmed with amendments. The applicant was initially justified in seeking an order for contempt of court against the first defendant. She has now abandoned that claim following the first respondent's death.

It is accordingly ordered as follows:

1. The respondent's counter claim fails.

2. The applicant's claim succeeds.

3. The sale of Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury previously held under Deed of Transfer No. D.T No.4347/90 by the first respondent to the second respondent be and is hereby set aside.

4. The transfer of Stand No. 2395 Glen View Township of Glen View situate in the District of Salisbury from the first respondent to the second respondent registered as DT 9235/97 be and is hereby set aside.

5. The seventh respondent be and is hereby ordered and directed to cancel the transfer of Stand No.2395 Glen View Township of Glen View situate in the District of Salisbury effected on the 3rd of November 1997 and registered as D.T 9235/97.

6. The costs of this application shall be paid by the second respondent.

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for the condonation of the late noting of an appeal. Although the applicant does not specifically aver this, I shall assume that the application is made in terms of Rule 31 of the Supreme Court Rules (“the Rules”).

On 25 July 2005, SANDURA JA, sitting with MALABA JA and NDOU AJA, issued the following order:

“WHEREUPON, after reading documents filed of record and hearing counsel, IT IS ORDERED THAT:

The matter be struck off the roll with costs.”

The record reveals that both parties were present, and the record of SANDURA JA, who presided over the matter, indicates that the matter was struck off the roll because the Notice of Appeal was filed out of time and no application for condonation had been made.

Because of the multiplicity of cases involving the same parties, it is important to understand that the Court was seized with appeal case no. SC236/2000, which was an appeal against judgment no. HB44/2000.

Where an appeal is noted out of time, before the matter can be heard by this Court an application for condonation has to be made, and such condonation granted, before the appeal can be entertained.

A matter that is set down for hearing without condonation being first granted will be struck off the roll, as happened in this case.

On 14 and 18 July 2000 the applicant filed a Chamber application for directions before KAMOCHA J. He handed down judgment dismissing the application on 20 July 2000. The judgment is judgment number HB44/2000, HB44-00.

Over a year after the handing down of the judgment, on 21 August 2001, the applicant filed a Notice of Appeal against the judgment of KAMOCHA J. The headnote of that Notice of Appeal reads as follows:

“Take notice that the applicant hereby appeals against the judgment of the High Court No. HB44/2000, in terms of which the Honourable Judge dismissed the applicant's application for discharge of the provisional order in case number HC5207/99 with costs on the grounds and reasons detailed below.”

Apart from the fact that the above Notice of Appeal does not comply with the Rules, in particular Rule 29(a) and (c), in that it does not give the date when the judgment was delivered nor state whether the appeal is against the whole or part of the judgment, and is therefore invalid, it was filed way out of time.

The applicant was appealing against the judgment of KAMOCHA J (No. HB44/2000) which had been handed down on 20 July 2000 and not any of the other judgments involving the same parties - of which there are several. Thus, the Court was seized with an appeal against judgment No. HB44/2000 and no other matter.

The applicant, in his submissions to the Court, alleges that he filed a Notice of Appeal against this judgment, No. HB44/2000, on 15 August 2000 and that the above Notice of Appeal, of 21 August 2001, was an amendment to the Notice of Appeal filed on 15 August 2000.

The alleged Notice of Appeal, of 15 August 2000, is not on the record.

The Notice of Appeal of 21 August 2001, cited above, is not an amendment but a Notice of Appeal on its own.

However, even if I were to accept that the applicant did file a Notice of Appeal on 15 August 2000, that Notice of Appeal would have been out of time. Judgment HB44/2000 was handed down on 20 July 2000, and, according to my calculations, the dies induciae for noting an appeal expired on 10 August 2000.

Thus, the Notice of Appeal filed on 15 August 2000 was outside the fifteen days prescribed by the Rules of the Supreme Court.

Thus, whichever of the two dates one accepts as the date for the filing of the Notice of Appeal makes no difference. Both dates were outside the dies induciae.

Consequently, the striking off of the matter from the roll admits no doubt.

The applicant contends that the matter should not have been struck off the roll and impugns the integrity of the Court for striking the matter off the roll....,.

Ten months after the appeal was struck off the roll, on 17 May 2006, the applicant filed the present application for condonation of the late noting of an appeal.

The Rules of this Court provide that condonation for the late noting of an appeal can be granted upon the establishment of a good cause.

It is well settled that the essential elements of a good cause are:

(a) A reasonable explanation for the failure to file the Notice of Appeal within the prescribed period;

(b) Some prospect of success on the merits; and

(c) The bona fides of the application....,.

PROSPECTS OF SUCCESS ON THE MERITS

As I have already stated, the appeal that was before the Court, and that was struck off the roll, was the appeal against judgment No. HB44/2000. In that judgment, KAMOCHA J dismissed a Chamber application for directions by the applicant.

Judgment No. HB44/2000 is very brief and to the point.

The judgment very ably sets out the facts of this case and the reasoning behind the learned Judge's conclusion. I can do no better than refer to it extensively. It reads, in part, as follows:

“For convenience, the parties in this matter will be referred to as Fuyana and Ntombaza.

On 14 October 1998, Ntombaza obtained a provisional order whose terms, inter alia, barred Fuyana from taking transfer of Stand Number 11747 Nkulumane from one William Ndlovu who had allegedly sold the same property to Ntombaza using Fuyana as his agent. Ntombaza was also granted rights to re-occupy the house as she had been in occupation before the said house had been damaged by one Jericho Maphosa.

Fuyana filed his notice of opposition but did not anticipate the return date.

Exactly a year later, on 14 October 1999, Ntombaza made an ex parte application seeking for (sic) an order converting the papers in the first application to pleadings and the matter (to be) referred to trial. The parties were allowed to file further pleadings within fourteen days of the order if they so desired.

This application to refer the matter to trial was served on the legal practitioners of Fuyana on 8 October 1999.

There seemed to be no opposition from Fuyana's legal practitioners and the application was granted six days after it had been served.

To illustrate the confusion that reigned in Fuyana's camp, a belated attempt to oppose the application was made by Fuyana himself - not through his lawyers.

Ntombaza asserted that Fuyana's legal practitioners had agreed that the matter be referred to trial.

I am inclined to agree with her because if what she asserted was not true Fuyana's legal practitioners would have filed an affidavit denying that they had agreed to the matter being referred to trial with the terms of the provisional order standing.

When the court granted the application it must have been satisfied that the matter was not capable of being resolved on the papers filed of record. It then issued an order which has not been rescinded. The matter has been settled and yet Fuyana still calls upon the court to interfere.

The court had concluded that a robust approach could not be adopted in this particular case to resolve the matter on the papers in the light of the numerous disputes of fact therein. But, Fuyana still lodged this application requesting the court to discharge the provisional order in question. He also wanted Ntombaza, and all persons claiming through her, to be ordered to vacate Stand 11747 Nkulumane within forty-eight hours of service on them of the order, failing which the Deputy Sheriff be ordered to evict them and their possessions.

Fuyana is clearly abusing court process and this court should express its displeasure by ordering him to pay punitive costs.

In the result, the application is dismissed with costs on an attorney/client scale.”

It is difficult to see on what possible basis a Court of Appeal can interfere with the above judgment more so having regard to the grounds of appeal contained in the Notice of Appeal.

The reasoning and the conclusion of the learned Judge, in my view, are flawless and there is no prospect of an Appeal Court differing from the learned Judge. The Notice of Appeal filed by the applicant is no more than a series of senseless assertions that the learned Judge misdirected himself on this fact or on that point of law. The Notice of Appeal raises nothing worth serious comment or consideration.

I would also add that KAMOCHA J was dealing with an application for directions by the applicant.

The heading of the application specifically indicates that the application before the learned Judge was one for directions. An application for directions, as the word implies, is an application seeking directions on how to proceed in the main proceedings, usually the trial. Order 23 and Rule 152 clearly set out the purpose and content of an application for directions.

The application before KAMOCHA J, although headed application for directions, sought to canvass issues between the same persons referred to trial by another judge. The draft order attached to the application for directions sought substantive and not procedural relief.

In my view, an application for directions that seeks, in its draft order, the eviction of the respondent from the premises is totally misconceived and should have been dismissed on that basis alone without much ado.

The merits of the case involving the Agreement of Sale which the applicant is harping on ad nauseum could only be resolved properly at a trial. The judge in the previous proceedings was quite correct in referring the issues for trial. This was done with the consent of the applicant's legal practitioner and therefore with the consent of the appellant. The learned Judge, in my view, was correct in ordering the matter to go to trial.

HB124-03 : EMMAH MUHAMBI vs STANLEY MUSENDO
Ruled By: CHEDA J

On 24 September 2003, the applicant, through an urgent chamber application, applied for custody and the terms of that order are:

“1. That custody of the minor child, Precious Paidamoyo Musendo, be and is hereby granted to the applicant with the respondent being accorded access on prior arrangement with the applicant.

2. That the Deputy Sheriff be and is hereby authorised and directed to remove the minor child from the respondent's custody and deliver it to the applicant forthwith.

3. That the respondent bears the cost of this application at an attorney and client scale.

Interim Relief Granted

4. That the applicant be and is hereby granted leave to immediately assume custody of the minor child, Precious Paidamoyo Musendo.

5. That the Deputy Sheriff be and is hereby directed to uplift the minor child and place it in the custody of the applicant.”

I granted the interim order on 25 September 2003. The matter then came for argument on 30 October 2003.

The parties were married under customary law and were blessed with one child, Precious Paidamoyo Musendo (female), born on 11 May 2001. In August 2001, the applicant secured employment in Bulawayo which necessitated her to move there leaving behind the minor child with its father.

The arrangement had been that the applicant would stay with the respondent's uncle, which she did, but, subsequently left due to some family misunderstandings which are irrelevant to the issue at hand.

The parties, however, came to live together.

In February 2003, the respondent ordered her to move out with the child - which she did. On 9 August 2003, the respondent approached her seeking custody. The parties would not agree and they ended up at Hillside Police Station. At the police station, the respondent advised the police that he only wanted to have custody of the child for a few days and this was mutually agreed to by the parties.

However, the respondent did not return the child as promised, but, instead, approached the Harare Magistrates' Court on 1 September 2003 seeking custody of the said minor child.

His application was however dismissed.

The applicant then approached this court for the relief referred to supra.

The respondent argues that his reason for taking the child is because the applicant has denied him access. Further, that she is a member of the Apostolic Faith Church whose doctrine does not subscribe to medical treatment.

To back up his story, he filed a “medical report” from a Dr B Madzima which reads:-

“To whom it may concern

Re: Precious Musendo, 2 and a half years

I can confirm that I am the medical practitioner of the above named since December 2002. I can confirm that I have seen her in May and in August 2003 with signs and symptoms of malnutrition, social neglect, and respiratory tract infection.

I can also confirm that on all occasions the father has been very supportive in terms of buying medication and bringing the baby for review.

To me, as it stands, the child seems to be doing very well in terms of weight for age, height for age etc and would definitely approve of whoever is currently looking after the child, serve for the two incidences mentioned earlier….,.

I make these statements sorely believing its true.

Yours sincerely

(Signed)

Dr B Madzima, MBChB”

I find that the parties were married under customary law and the applicant had custody of the child by consent of the respondent. The respondent unlawfully and deceitfully took the child from the applicant.

Counsel for the applicant has argued that I ignore Dr Madzima's letter.

I agree with his suggestion because it is clear that it was solicited by the respondent in order to strengthen his case.

Doctors are professional people who are expected to practice their profession without fear or favour. This is the hallmark of their profession and part of their ethics. A doctor should understand that his observations and opinion in a particular case will go a long way in helping the court in making a proper determination, and, as such, it is important that he remain neutral in his report. He should not be partisan to a party that has consulted him.

This practice, by some doctors, if allowed to continue, will no doubt shake the public's confidence in them.

It is trite and settled law that, in matters of custody, the determining factor is the interest of children: see Fletcher v Fletcher 1948 (1) SA 130.

In making a determination, the courts should be guided by the following factors, among others:

1. Sex of child

A girl child is naturally attached to its mother, and, as such, her removal can only be justified if the mother is of such a character that the interest of the child will not be served by the mother's association with the child.

2. Age

The younger the child the more attachment to its mother it becomes; and that is a natural bond in my view.

In Stieger v Stieger 1958 (2) PH B24 (D) an application for custody for two girls aged 4 years 2 months and 2 years 6 months was made before the court. Their father had claimed their custody. It was held that the younger child, in the absence of special circumstances, should remain in the custody of their mother.

In Ferguson and Ferguson 1906 EDC 218…, SHEIT J stated;

“As a general rule, no doubt, the father is entitled to the custody of his children; but, the first duty of the courts, in cases like the present, is to consider the interest of the children, and, having regard to their tender ages, one not being two years old, I think the best interests of these children will be safeguarded by giving their custody to their mother, who has not been proved guilty of such moral misconduct as would dis-entitle her to their custody.”…,.

See also Shawzin v Laufer 1968 (4) SA 657.

3. Character of Parents

The way a parent conducts himself should also be taken into consideration for the child is bound to learn a lot from a parent whom it daily associates with. The parent's charachter can easily be mirrored through the child: see Milstein v Milstein 1943 TPD 227…, where it was held that the character of the parties had to be taken into account in determining the question of custody.

In the present case, the respondent took custody of the child in a deceitful manner. He lied to the police Hillside, Bulawayo and also misrepresented the facts when he sought custody at the Magistrates' Court in Harare.

In my view, this type of behaviour is an indication of a dishonest man which then casts doubt on the respondent's bona fides in this matter.

If this is the kind of lifestyle the respondent leads, then he is not the kind of a father in whose custody a minor child should be entrusted.

In this case, the child is a little above 2 years and is a girl.

For those two reasons alone, the respondent's chances of succeeding in his endeavour to claim custody are slim, in my view: he will have to prove, on a balance of probabilities, that, in the circumstances, the applicant is of such a personality that it will not be in the interest of the child that she be granted custody.

The applicant is employed and lives with her brother in the leafy suburbs of Hillside which is regarded as a high class area with a sought after postal code.

I accept that fathers naturally would like to associate themselves with their off-spring. This is quite proper, as that bond should always be maintained. However, the natural instinct of continuing with the bond should not be allowed to cloud a father's judgment to an extent that prejudices the physical and mental development of the said minor child.

The best interest of the child will not be served by granting him custody.

In the light of the above, I am convinced that the applicant has made out a good case. Accordingly, the provisional order issued by this court on 25 September 2003 be and is hereby confirmed with costs.

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

It is trite that a provisional order granted under Rule 246(2) of the High Court Rules 1971, is granted upon the judge, sitting in chambers, being satisfied that the papers filed disclose a prima facie case....,.A provisional order granted under the Rules is always subject to confirmation or discharge before ...

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD
Ruled By: MATHONSI J

The applicant seeks a declarator that it is the lawfully registered holder of mining claims called Kapata 11, registered number 11769BM held by certificate of registration number T30249.All the respondents have opposed the application mainly on the ground, that, the applicant's said claims overpeg already existing and registered claims of ...

The applicant seeks a declarator that it is the lawfully registered holder of mining claims called Kapata 11, registered number 11769BM held by certificate of registration number T30249.

All the respondents have opposed the application mainly on the ground, that, the applicant's said claims overpeg already existing and registered claims of the third respondent.

Sometime in 2001, Kapata Syndicate hired an approved prospector, Mr Mguni, to conduct investigations and carry out due diligence search with a view to establish if it was appropriate to prospect, peg, and register three (3) special base metal block claims in the area. Mr Mguni duly carried out the work which cleared the area for pegging resulting in the three (3) claims being registered and registration certificates number 11768BM, 11769BM and 11770BM being issued to Kapata Syndicate by the Mining Commissioner, Bulawayo.

The claims are located in the Dete area of Hwange.

Work on the area commenced thereafter to develop it resulting in boreholes being sunk and equipped, road networks were opened, geological exploration, mining engineering work, metallurgical plant designs and so on were done.

In 2002, the claims were transferred from Kapata Syndicate to the applicant.

The applicant maintained, and paid for, the claims throughout in accordance with the provisions of the Mines and Minerals Act [Chapter 21:05] ('the Act').

By letter dated 9 July 2009, Zimbabwe Mining Development Corporation ('ZMDC') complained to the first respondent that the applicant's claims over-pegged extant claims belonging to the third respondent. The locus stand in judicio of Zimbabwe Mining Development Corporation (ZMDC) having been questioned at the hearing, counsel for the third respondent submitted that this entity owns the third respondent 100%.

It turns out, that, in 1977 and 1979, the third respondent had pegged and registered certain Kapata claims some of which may have been encroached by the applicant's claim number 11769BM. The position is not clear, but, what is pretty obvious is that a pegging dispute has therefore arisen. Both the applicant and the third respondent appear to hold title to conflicting claims.

In response to the complaint made by the third respondent, the first respondent addressed a letter to the Secretary for Mines, dated 19 August 2009, in which she stated, that, a survey conducted by the Regional Survey Department had shown that the applicant's claims encroached onto the third respondent's claims and should thus be relocated.

Clearly, therefore, the first respondent determined that the applicant should relocate to those of its claims which did not overpeg the third respondent's claims. This was confirmed by the Chief Mining Commissioner who said the applicant's claims must be cancelled.

It is pertinent that the first and second respondents have proceeded on the premise that the applicant's claims have been cancelled and that the first respondent's decision to cancel was based on a survey by the Regional Survey Department whose officials she says state that the third respondent's beacons were in place and that the applicant went to peg its own claims despite the existence of beacons.

This conclusion is in sharp contrast with what the Regional Mining Surveyor says in his letter of 8 December 2009 addressed to the Regional Mining Engineer which reads as follows:

''Re: Survey of dispute between Kamativi Tin Mines and BMG Mining claims

This minute is a reply to your request of the need to see the survey report of the beacons mentioned by the Mining Commissioner concerning the above issue. It is alleged, that, the Regional Survey office carried out a survey in the area and it was one of the fact (sic) that the Mining Commissioner used to determine the results of the dispute. The dispute was never ever brought to the attention of the Regional Mining Engineer's Department – Bulawayo.

I categorically state, that, there was no survey work carried out in connection with the dispute, that is the survey that helps the Mining Commissioner in reaching the conclusions in the determination of the dispute concerning the blocks of claims.

Mr Alex Saurombe, on or about 20 February 2008, approached the Survey office requesting for a GPS Survey to be carried out in his three special blocks of base metal claims (Kapata 1, Kapata 11 and Kapata 111) for the purpose of producing a general Surface Plan.

Before the survey was done, the Survey office checked the status of the blocks of claims to verify whether they were current or not, and, whether the blocks of claims are marked on the claims plan of the state to a scale of 1:25,000 that is under the custody of the Mining Commissioner.

The BGM claims were found to be in order and marked clearly on the claims plan and there were no Kamativi blocks of claims appearing on the claims plan or plans kept by the Mining Commissioner. The Survey office was satisfied with the search.

Therefore, the Mine Surveyors went out into the field with the full knowledge that they were stepping on and carrying out the requested survey work on BMG Mining claims only.

Denis Eshmael Katema, REGIONAL MINING SURVEYOR''…,.

It is therefore unlikely, that, the findings of the first respondent, regarding the conflicting claims, were informed by a survey conducted by the Survey office as alleged.

Having been disowned by the Regional Mining Surveyor, the first respondent then prevaricated in her opposing affidavit where, at paragraph 8, she says:

“(a) Applicant is now the registered owner of the claim and it is immaterial who did the pegging.

(b) It was an administrative error that Kapata Syndicate was allowed to register claims over current mining locations.

(c) The survey was carried out at the instance of the applicant. Officials from the Regional Survey Department informed the first respondent that Kamativi beacons were in place. Contents of Annexure 'L' are factually incorrect and were not relied on in reaching the decision to cancel the said claims.”

This, coming from a person who earlier on said she relied upon the same survey, is difficult to understand.

The first respondent is definitely not credible in this aspect and it remains a mystery on what basis she decided to cancel the applicant's claims.

What is more, this puts into issue the question whether any beacons belonging to the third respondent existed.

Both the first and second respondents claim that the applicant's claim was cancelled but they are silent as to when and how the cancellation was affected.

In her submissions, counsel for the first and second respondents stated, that, the “claims were cancelled in line with section 50 of the Mines and Minerals Act, Chapter 21:05, which provides for cancellation of such certificates of registration notwithstanding the provisions of section 58 of the same Act.”

The issue which then arises is whether such cancellation was done in accordance with the provisions of the Mines and Minerals Act [Chapter 21:05].

The applicant has vehemently argued that it was not and, that, because there was no compliance, it remains the lawful holder of claim number 11769BM. The applicant asks for a declaratory order to that effect.

If a cancellation is done by the first respondent in breach of the Mines and Minerals Act, such cancellation is void ab initio because anything done by an official in excess of the powers conferred upon him or without following the procedure for such cancellation is null and void: Musara v Zinatha 1992 (1) ZLR 9 (H)…,.

In that case, ROBINSON J went on to state…, that, an interested person should be at liberty and entitled, at any time, to approach this court for an order declaring the act in question to be null and void and that the court should be slow to turn a party away where it seeks a declaratory order about its status. At 13F the learned judge concluded that:

“I consider that the same approach should be adopted by the court in a civil case where, on the papers before it, the moreso where those papers seek a declaratory order, an act of glaring invalidity is, as in this matter, staring the court straight in the face: for the court to refuse, save in exceptional circumstances justifying such refusal, to declare the act in question null and void ab initio on some technical ground would, I agree, be to ignore the courts fundamental duty to see that justice is done which, after all, is the duty which the layman expects the courts to discharge.”

Accordingly, I do not agree with counsel for the third respondent that the application for a declaratory order should not be entertained as it amounts to the court usurping the power of the first respondent to adjudicate and cancel the registration certificate.

To deny the applicant audience in the face of glaring inconsistencies on the part of the first respondent's conduct, and clear violations of the provisions of the Mines and Minerals Act, amounts to an abdication of duty.

The first respondent claimed to be acting in terms of section 50 of the Mines and Minerals Act [Chapter 21:05] in cancelling the claims. That section provides:

“(1) Subject to subsection (2) the Mining Commissioner may, notwithstanding subsection (1) of section 58, at any time cancel a certificate of registration issued in respect of a block or site if he is satisfied that;

(a) At the time when such block or site was pegged, it was situated on ground reserved against prospecting and pegging under section 31 or 35 on ground not open to pegging in terms of subsection (3) of section 258; or

(b) Provisions of this Act relating to the method of pegging a block or site were not substantially complied with in respect of such block or site.”

In a case which falls under subsection (1), the first respondent is required to act in terms of subsections (2) and (3) which provide;

“(2) At least thirty days before cancelling a certificate of registration under sub-section (1) the mining commissioner shall give notice to the holder of the block or site of his intention to cancel such certificate and of the grounds for such cancellation and of the proposed date of such cancellation, and shall at the same time inform the holder that he may, at any time before that date, appeal in writing to the Minister against such cancellation.

(3) Such notice shall be given by registered letter addressed to the holder of the block or site at the postal address recorded in the office of the mining commissioner, or, if no such address is recorded, by publication thereof in the Gazette.”

There has been a signal failure to comply with any of these provisions relating to cancellation of the registration certificate.

What the first respondent has done is merely to announce the cancellation without more.

So, even assuming that section 50 of the Mines and Minerals Act applied to this case, which is unlikely given that the area was not reserved against prospecting and pegging under sections 31 or 35 and section 258(3) has no bearing, and the pegging method has not been questioned, the first respondent has not complied with the procedure for cancellation set out in subsections (2) and (3) of section 50 of the Mines and Minerals Act.

This therefore means, that, her actions not only offended the audi alteram partem principle but also that failure to comply with the mandatory procedural requirements renders her decision ultra vires section 50 of the Mines and Minerals Act: see Cluff Mineral Exploration (Zimbabwe) Ltd v Union Carbide Management Services (Pvt) Ltd & Ors 1989 (3) ZLR 338 (S)…,.

It was half–heartedly argued, by counsel for the third respondent, that, the first respondent has not yet cancelled the registration certificate, and, as such, due process must be allowed to take its course.

Unfortunately, that argument directly contradicts the submissions made by counsel for the first and second respondents.

Counsel for the first and second respondents unequivocally submitted, that, the applicants “claims were cancelled in line with section 50 of the Mines and Minerals Act [Chapter 21:05]” in paragraph 6 of her heads of argument and maintained that position during the hearing.

Accordingly, the cancellation was effected, and, in view of the violations referred to above, it cannot be allowed to stand.

If the first respondent has reason to believe that the registration of the applicant's claims is questionable or that there may be a case of over-pegging, she must investigate the matter thoroughly and act in accordance with the provisions of the Mines and Minerals Act. Overpegging complaints should be dealt with in terms of sections 353 and 354 of the Mines and Minerals Act - and this has not been followed in this case.

The first respondent appears to have acted in terms of the complaint made on behalf of the third respondent and did not conduct any meaningful investigation let alone commission a survey in terms of section 353 of the Mines and Minerals Act. This explains why she has found it difficult to explain how she arrived at a decision to cancel the certificate and why she has found herself contradicting the Regional Mining Surveyor.

In the result, the provisional order made on 15 January 2010 is confirmed in the following terms, that:-

1. It be and is hereby declared, that, the applicant is the lawfully registered holder of claims named Kapata 11 registered number 11769BM as recorded on certificate of registration after transfer number T30249.

2. If there are any complaints of encroachment, such should be dealt with by the first respondent in compliance with the provisions of the law.

3. The first and second respondents should bear the costs of this application.

HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS
Ruled By: PATEL J

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.The first and second respondents are directors of the third respondent, which is also a safari operator.The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for ...

The first and second applicants are directors of the third applicant, which operates safari activities in the Zambezi Valley Area.

The first and second respondents are directors of the third respondent, which is also a safari operator.

The fourth respondent is the National Parks and Wildlife Management Authority (the Authority) responsible for managing all safari operations in Zimbabwe.

Background

The applicants were granted two written concessions to operate hunting safaris in the Rifa Safari Area for a period of 10 years expiring on the 31st of December 2007.

Before this date, on the 18th of October 2007, the National Parks and Wildlife Management Authority (the Authority) conducted an auction for a new 5 year concession in respect of the applicants' concession area. At that auction, the applicants were prevented from bidding for the concession because they had failed to furnish the requisite Bank guarantee.

According to the first applicant, he then approached the first respondent who undertook to bid on behalf of the applicants after exhausting the respondents' own bidding limit.

The first respondent won the final bid for the sum of $750 billion.

The first applicant then thanked him and was congratulated by all present for having retained the concession.

Subsequently, on the 20th of October 2007, the respondents reneged on their arrangement and sought to retain the concession for themselves.

The respondents deny the applicants averments.

They contend, that, all bidders at the auction were fully aware of the Bank guarantee stipulation, as was clearly stated in the National Parks and Wildlife Management Authority's prospectus, and that there was no arrangement between the parties prior to the auction.

They did, subsequently, discuss the possibility of sub-letting part of the concession area to the applicants but nothing concrete materialised thereafter.

They further aver, that, if their Concession Agreement with the National Parks and Wildlife Management Authority (the Authority) were to be cancelled, they would suffer irreparable harm.

The National Parks and Wildlife Management Authority (the Authority) avers, that, the application is fatally defective in that it does not cite the Minister of Environment and Tourism (the Minister) as required by the Parks and Wildlife Act [Chapter 20:14].

Moreover, the Parks and Wildlife Act stipulates a maximum period of 10 years for hunting concessions and, therefore, the applicants cannot be granted any further extension.

On the 19th of February 2008, the applicants filed an urgent application to assert their rights, and, on the 22nd of February, they were granted a Provisional Order interdicting the respondents from evicting the applicants from the Rifa Safari Area and from interfering with the applicants' operations in that area.

They now seek a Final Order confirming the above relief, and, further interdicting the respondents from exercising any rights in the applicants' concession area pending the determination of Case No. HC891/08.

In that case, the applicants seek the setting aside of the written concession granted by the National Parks and Wildlife Management Authority (the Authority) to the respondents in November 2007. The Concession Agreement was signed by the Minister on the 10th of January 2008.

Preliminary Issues

At the hearing of this matter, counsel for the applicants submitted, that, the respondents were in contempt for having acted contrary to the requirements of the Provisional Order and were therefore barred from being heard.

Counsel for the respondents countered this submission on the basis that they had appealed against the Provisional Order and that the respondents were therefore not in contempt.

For the reasons handed down at the hearing, I ruled, that, in the circumstances of the case, the effect of the Provisional Order was not purely interlocutory but fairly definitive in terms of the future conduct of all the parties concerned. It therefore did not preclude the respondents from appealing against it without the leave of this Court.

Accordingly, the respondents were not in contempt and were entitled to be heard in these proceedings.

Issues for Determination

The issues for determination herein, as I perceive them, and as concurred by counsel, are as follows:

1. Whether the non-citation of the Minister as a party to these proceedings is fatally defective.

2. Whether the Parks and Wildlife Act [Chapter 20:14] precludes the grant of hunting concessions to any safari operator beyond the period of 10 years.

3. Whether there was a clear agreement between the applicants and the respondents whereby the first respondent was to bid on behalf of the applicants at the auction.

4. Whether the agreement between the applicants and the respondents, if any, was legally binding and enforceable as against the National Parks and Wildlife Management Authority (the Authority).

5. Whether the balance of convenience favours the grant or refusal of the relief sought by the applicants.

Non-citation of Minister

It is submitted by counsel for the applicants, that, the non-citation of the Minister in these proceedings is not fatal for two reasons:

(i) Firstly, she relies upon Rule 87(1) of the High Court Rules 1971, which stipulates that non-joinder of a party does not preclude the determination of the issues in dispute.

(ii) Secondly, she argues, that, the applicants are not presently seeking the grant of any concession from the Minister and that, in any event, the Minister is simply required to concur with the grant of a concession by the National Parks and Wildlife Management Authority (the Authority) in respect of a specific area and is not concerned with the identity of the grantee.

As regards the non-joinder and misjoinder of parties, Rule 87(1) of the High Court Rules provides as follows:

“No cause or matter shall be defeated by reason of the mis-joinder or non joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

Section 37 of the Parks and Wildlife Act [Chapter 20:14] empowers the grant of leases and hunting rights in safari areas as follows:

“The Authority, with the concurrence of the Minister, may —

(a) Lease sites in a safari area to such persons and for such purposes as it deems fit;

(b) Grant hunting or other rights over or in a safari area to such persons as he deems fit; subject to such terms and conditions as he may impose:

Provided that —

(a) The period of a lease in terms of paragraph (a) shall not exceed twenty-five years;

(b) The period of hunting or other rights in terms of paragraph (b) shall not exceed ten years;

(c) A grant of hunting or other rights, in terms of paragraph (b), shall not prohibit persons from entering into the safari area concerned for purposes other than those for which the rights have been granted.”

While I accept that the non-joinder of a party is not necessarily and invariably fatal to the continuance or determination of any matter, it is trite, that, Rule 87(1) does not absolve a litigant of the obligation to cite all relevant parties.

The discretion of the Court, in this regard, must be exercised so as to ensure that all persons who might be affected by its determination of the issues in dispute be afforded the opportunity to be heard before that determination is actually made.

Turning to section 37(b) of the Parks and Wildlife Act [Chapter 20:14], it is abundantly clear, that, the concurrence of the Minister is an essential statutory sine qua non to the grant of any hunting rights in a safari area.

Although it is the National Parks and Wildlife Management Authority (the Authority) that actually administers and grants such hunting rights, it can only do so “with the concurrence of the Minister” and “subject to such terms and conditions as he may impose.”

This is clearly recognised not only in the concession granted to the first applicant in 2003, but, is also explicitly declared in the preamble to the Concession Agreement concluded with the third respondent in 2007.

In short, the Minister's direct and personal involvement in the approval of any hunting concession cannot be obviated.

By the same token, where the Minister has already approved the grant of hunting rights, he must, of necessity, be concerned with any dispute concerning the exercise or non-exercise of such rights.

In the instant case, the applicants seek an order interdicting their eviction from the Rifa Safari Area and any interference with their operations in that area as well as an order interdicting the respondents from exercising any rights in the same concession area.

In essence, the relief that they seek impinges upon rights previously conferred upon the first applicant in 2003 and those granted to the third respondent in 2007.

In both instances, the determination of this Court will impact upon and interfere with decisions already taken by the Minister.

In my view, he is undoubtedly a highly relevant party to these proceedings with a very direct interest in the outcome and determination thereof.

It follows, that, the failure to cite the Minister in this matter is fatal and that the application should be dismissed simply on that preliminary basis.

However, given the possibility that my conclusion in this regard is incorrect, I shall proceed to consider and determine the merits of this case.

Maximum Period of Hunting Concessions

At the hearing of this matter, counsel for the first, second and third respondents did not persist with this point, but, counsel for the fourth respondent reiterated the National Parks and Wildlife Management Authority's stance, that, the applicants were precluded, by section 37 of the Parks and Wildlife Act [Chapter 20:14], from being granted any hunting concession beyond the limit of 10 years.

Proviso (b) to section 37 of the Parks and Wildlife Act stipulates that “the period of hunting or other rights in terms of paragraph (b) shall not exceed ten years.”

What this clearly means is that any single hunting concession granted under the section cannot exceed the period of 10 years. It may, at any one time, be granted for the maximum period of 10 years or for any shorter period.

However, the provision does not, in my view, preclude the grant of a further concession to a prior holder who has held one or more concessions amounting to 10 years, so long as the new concession does not exceed the maximum period prescribed.

It follows, that, the National Parks and Wildlife Management Authority's contention in this regard cannot be sustained and that the applicants are therefore not barred from being granted further hunting rights under the Parks and Wildlife Act.

Agency Agreement between the Parties

The affidavit evidence filed by the parties is markedly conflicting as to what precisely transpired during the bidding process at the auction held in October 2007.

Nevertheless, the applicants' version of events is strongly supported by the affidavits deposed to by several independent individuals who were present on the day.

These corroborating affidavits (by Messrs. Evans, Jolliffe, Fundira, Townsend, Dziya and Duckworth) confirm, firstly, that, the first applicant and the first respondent had concluded some arrangement for the latter to bid on behalf of the former, and, secondly, that the first applicant was congratulated by those present for having retained his concession.

Having regard to the foregoing evidence, the applicants' version in this respect is more credible than that of the respondents.

Accordingly, on a balance of probabilities, it is reasonably clear, that, there was an agreement between the parties the effect of which was that the first respondent would act as agent for the applicants in the bidding process at the auction.

Whether Agreement Legally Binding and Enforceable

In terms of the prospectus governing the auction conducted in October 2007, the conditions for participation which are presently pertinent were as follows:

(i) Firstly, only citizens or representatives of wholly owned Zimbabwean companies with no relevant criminal records would be permitted to bid.

(ii) Secondly, all current hunting concession holders “with the exception of the current concession lessee” (viz. the first applicant) were not allowed to participate.

(iii) Thirdly, bidders were required to submit proof of funds by way of a Bank guarantee to be furnished to the National Parks and Wildlife Management Authority (the Authority) two hours before the auction; prospective bidders who failed to do so would not be allowed to bid.

(iv) Fourthly, the National Parks and Wildlife Management Authority (the Authority) reserved to itself the right to vet all bidders.

It is also necessary to consider the concession conditions of sale set out in the prospectus. These conditions directed all participants to obtain auction participation forms on payment of the prescribed fee and to pay a refundable participation deposit of $20 million. At the conclusion of the auction “the highest accepted bidder will be declared the purchaser, subject to the reserve price [and] further vetting” and immediate payment of a surety deposit of $5 billion followed by payment for the concession itself within 14 days.

Although the registration status of the third applicant was questioned by counsel for the first, second, and third respondents by dint of a typographical error in the founding affidavit, I am satisfied that the third applicant is not a South African entity but a company registered in terms of the laws of Zimbabwe.

What is more relevant in casu is the applicants' contention that they were assured by the National Parks and Wildlife Management Authority (the Authority) that they would not be required to provide any Bank guarantee in order to be able to bid at the auction.

Apart from this bald assertion, there is no documentation to support this contention.

Moreover, the above-cited conditions for participation make it clear that all prospective bidders, including the first applicant qua current concession holder, were obliged to provide the requisite Bank guarantee, failing which they would not be allowed to bid at the auction.

Equally significantly, the applicants have proffered no evidence whatsoever that they paid the stipulated auction participation deposit.

Notwithstanding these deficiencies, counsel for the applicants submits, that, the first respondent was duly qualified to bid not only for himself but also as agent for the first applicant.

Since there was nothing to prevent the first respondent from bidding or participating as an agent, it is his status rather than that of the first applicant which must be considered for present purposes.

As already indicated, the National Parks and Wildlife Management Authority (the Authority) reserved the right to vet all bidders before the auction in order to ensure, inter alia, that they were citizens or representatives of local companies and that they had no criminal record for any of the offences specified.

More importantly, at the end of the auction, even the successful bidder was subject to further vetting to ascertain his suitability as a hunting concession holder before the concession could be granted.

These vetting requirements clearly demonstrate, that, the identity and attributes not only of the winning bidder but also of the grantee are crucial to the selection of the concession holder.

The appointment of an agent to bid on behalf of the prospective grantee would clearly subvert and negate the vetting and selection process since it is the agent, rather than his principal, who would have been subjected to full scrutiny. Although the bidding agent might be a local citizen and otherwise suitably qualified, his principal might well be a foreigner or even a convicted fraudster or perpetrator of parks and wildlife offences.

I am fortified in this view by having regard to the terms and conditions incorporated in the concession agreements in casu.

Clause 23 of the first applicant's expired Concession Agreement is virtually identical to clause 23 of the third respondent's current agreement. This latter clause recognises that “the right to operate on the Concession has been given to the right holder and to no other person solely in consideration of the right holder's successful bid of the right to hunt.” It then stipulates, that, in the case of a corporate right holder, no shares may be issued or transferred and no new director may be appointed without the National Parks and Wildlife Management Authority's prior written approval. Additionally, the clause prohibits, in absolute terms, any cession or assignment of any right or obligation under the agreement or of the right holder's annual quota of animals. It also prohibits any sublease or sub-occupation or any hypothecation or encumbrance of the concession without the prior written consent of the National Parks and Wildlife Management Authority (the Authority).

All of this re-affirms the critical significance of the grantee's identity and the fact, that, the rights conferred and obligations imposed under the concession are personal and peculiar to the grantee.

Taking all of the foregoing into account, I am of the firm opinion that any agency agreement of the nature presently under review would operate to circumvent the National Parks and Wildlife Management Authority's vetting requirements and the clear objective behind those requirements.

Any such arrangement, even if it were not contrived as a deliberate subterfuge, cannot be utilised to dilute the obvious privity of contract envisaged between the successful bidder-cum-grantee, on the one hand, and the Minister and the National Parks and Wildlife Management Authority (the Authority) on the other.

It follows, that, the agency agreement in casu, whatever its legal implications and consequences as between the applicants and the respondents, is not legally binding on the National Parks and Wildlife Management Authority (the Authority) and cannot be enforced as against it.

It also follows, that, the applicants have failed to establish the infraction of any clear right entitling them to the interdictory relief that they seek.

Balance of Convenience

The above conclusion renders it unnecessary for me to consider the final issue relating to the balance of convenience as between the parties. However, for the sake of completeness, I deem it appropriate to dispose of this aspect as well.

As regards the applicants, the withdrawal of the hunting concession has obviously entailed the loss of profit and will necessitate the removal of their assets from the concession area. However, their losses are not irreparable and could be redressed by a claim for damages in respect of lost profits and future hunting rights.

Moreover, in terms of clause 14 of the first applicant's Concession Agreement, he was given ample time to remove his improvements and is entitled to compensation from the National Parks and Wildlife Management Authority (the Authority) in respect of those improvements that are retained in situ by agreement.

Insofar as concerns the respondents, almost two years have elapsed since the third respondent was granted its hunting concession. If this subsisting Concession Agreement were to be cancelled or temporarily suspended, the respondents would incur huge losses in terms of moneys already expended on the auction and concession area and the withdrawal of firm contracts with foreign clients amounting to US$350,000.

Moreover, the practical effect of the final order sought by the applicants would be to suspend all operations in the concession area until the action in Case No. HC891/08 is finalised.

As is apparent from questions put to counsel, the time frame for the final determination of that matter is presently uncertain.

As for the National Parks and Wildlife Management Authority (the Authority), the suspension of hunting operations in the Rifa Safari Area will result in the substantial loss of revenue by way of hunting fees payable under the subsisting Concession Agreement. Any such suspension will also involve a diminution in other income generated from foreign and local tourists within the concession area.

All in all, I am abundantly satisfied that the balance of convenience does not favour the applicants. The granting of the relief sought in this matter would cause greater harm and inconvenience to the respondents and the National Parks and Wildlife Management Authority (the Authority) than the harm and inconvenience that the refusal of that relief would cause to the applicants.

Disposition

I have found that there was an agreement between the applicants and the respondents whereby the first respondent was to bid as agent for the applicants at the auction conducted on behalf of the National Parks and Wildlife Management Authority (the Authority) in October 2007. However, in my view, this agreement is not legally binding and enforceable as against the National Parks and Wildlife Management Authority (the Authority) and the applicants have therefore failed to establish any clear right apropos the relief that they seek.

In any event, even if it were to be shown that some right of the applicants has been infringed, the balance of convenience clearly favours the refusal of the order sought by the applicants.

In the result, the application is dismissed with costs.

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

In March 2009, the applicant approached this court on a certificate of urgency and obtained a provisional order calling upon the respondents to show cause why they should not be ordered to release certain items of household goods and effects whose details were listed in an annexure to the application.

As interim relief, the second respondent was ordered not to sell or dispose of any of the property on the schedule. The second respondent was also restrained from releasing any of the property to anyone other than the applicant.

On 14 January 2010, the matter was set down before me for the confirmation or discharge of the provisional order, the first respondent having filed a notice of opposition and opposing affidavit in the matter....,.

The issue that has exercised my mind in this application is whether the applicant is entitled to the order that he seeks on the facts that he alleges.

In his provisional order, the applicant seeks an order compelling the respondents to release to him certain items of his household goods and effects that are in the possession of the second respondent.

In his founding affidavit, the applicant alleges that he was in occupation of certain property leased by the first respondent. A rent dispute arose between the parties leading to the applicant approaching the Rent Board after the first respondent had locked the applicant out of the leased property. When the first respondent requested the applicant to show, in some tangible way, how he would be able to pay whatever rental was found to be fair in respect of the property, he pointed out that he had valuable movables that could be sold to meet his obligations. The first respondent demanded that the movables be valued and this was done.

Later, the applicant learnt that the first respondent intended to have his property sold.

He approached the second respondent, who was in possession of the property, and advised it not to sell the property as such had been removed without his permission and he had not consented to the sale.

In obtaining an order restraining the second respondent from selling the property, the applicant averred that he was in peaceful and undisturbed possession of the property before he was locked out of the rented property and before the respondents removed his movables from the property.

From the concluding paragraph of his founding affidavit, and from the submissions made orally by counsel for the applicant, it is clear that the applicant approached the court for restoration of his possession under the mandament van spolie.

It is trite that for one to succeed in a spoliation, one must prove that they were in peaceful and undisturbed possession of the property and were illicitly despoiled of such possession.

In my view, the applicant drafted his affidavits so vaguely that I cannot discern at what stage he alleges he was in peaceful and undisturbed possession of the property for the purposes of the application he has brought.

From his own affidavit, it would appear that after being initially locked out, which clearly was an act of spoliation, he was restored in possession of the rented premises after the Rent Board intervened.

After the intervention of the Rent Board, it is not clear how the applicant “lost” or parted with possession of his movables. The affidavit does not say.

In my view, the absence of an averment, in the founding affidavit, to the effect that the applicant was unlawfully made to part with possession is fatal to his application - even in the absence of opposition from the respondents who are now barred.

I am aware that the applicant obtained a provisional order from this court, granting him interim protection pending the issuance of an order restoring possession of the property to him.

It is trite that the judge who granted the provisional order was satisfied that a prima facie case had been made out for the interim protection that the applicant was seeking. It is further trite, that, at this stage, for me to grant the final relief that the applicant prays for, I must be satisfied that he has established his case on a balance of probabilities.

I am not so satisfied.

(i) Firstly, I am not satisfied that the applicant has established the second element for a spoliation order. He has not shown, in his founding affidavit, in which all the necessary averments have to be made, that he was illicitly deprived of possession. He makes an attempt to do so in the answering affidavit after the first respondent had taken specifically alleged that the applicant consented to the removal of the property to the auctioneers.

It is trite, that, in the circumstances, I cannot pay regard to the averments in the answering affidavit as laying out the applicant's cause of action.

(ii) Secondly, the applicant proceeded by way of application to seek to recover his property in the face of a number of disputes of facts.

He was aware of the stance that the respondents were taking in the matter and proceeded notwithstanding.

After obtaining the interim protection restraining the disposal of the property, in my view, he should have mounted a proper action, seeking, as an owner, to recover his property from the respondents.

On the basis of the foregoing, I am constrained to find that notwithstanding the barring of the respondents, the applicant is not entitled to the order that he seeks.

In view of the fact that both parties have been partly successful, I do not believe that it is in the interests of justice that I burden any of the parties with an order of costs.

In the result, I make the following order:

1. The application is dismissed.

2. Each party shall bear its own costs.

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

The plaintiff initiated proceedings by way of an Urgent Chamber Application under case number HC1580/10 seeking an order interdicting the first and second defendants, or any beneficiaries of the second defendant's estate, from disposing of the property known as Lot 1 A of Gumtree held under Deed of Transfer number 1793/82 and Lot 3 of Gumtree held under Deed of Transfer number 1326/82C (hereinafter referred to as “the property”).

An interim order was granted in this Honourable Court but its confirmation was opposed by the defendants.

A separate court application was launched by the plaintiff, under case number HC1653/10, wherein she sought to be declared the sole surviving spouse of the second defendant's estate.

That court application was also opposed, and, eventually, by court order granted on 6 June 2012 it was ordered as follows:

“1. The two applications pending before this Honourable court under cover of case number HC1580/10 and HC1653/10 consolidated under cover of case number HC150/11 be and are hereby converted into action proceedings.

2. The papers filed of record by the parties stand as pleadings in this matter.

3. The parties file their discovery affidavits, pre-trial conference minutes, and summaries of evidence within 7 days of this order.

4. In the event of any party failing as directed in paragraph (3) above, the party having complied be and is hereby granted leave to set the matter down, without giving notice, on the unopposed roll.

5. Third respondent pay costs only if she opposed this application.”

The parties consolidated the two applications in terms of the aforesaid order and proceeded to set down the matter for trial.

A joint pre-trial conference memorandum of issues filed by the parties reflects the issues for determination as follows:

1. Whether or not plaintiff bought the immovable properties, namely, Lot 1A Gumtree held under Deed of Transfer number 1793/81 and Lot 3 Gumtree and is therefore entitled to them.

2. Whether the third defendant is the surviving spouse and therefore the lawful heir to the estate of the late Jubane James Jack.

It was resolved and agreed, at the pretrial conference, that, the onus on the first issue was on
the plaintiff and the onus on the second issue was on the third defendant.

Plaintiff's Case

The plaintiff gave evidence in support of her case. She testified, that, she is ordinarily resident at 61 Queensbrooks, Slough in the United Kingdom. She is a State Registered Nurse and also qualified as a Mental Health Nurse.

She was customarily married to the late Jubane James Jack who died on 21 February 2006 in the United Kingdom.

Her evidence was that the deceased and herself commenced living together around December 1980 and formalized the union a year later in 1981 when her husband was customarily accepted as a son-in-law by her family. At the same occasion, she was accepted as a daughter in law by members of the late Jubane James Jack's family.

The plaintiff stated, that, at the time of their marriage, the deceased was working for National Railways of Zimbabwe and then based at Hwange. The deceased disclosed to the plaintiff that he was once married to the third defendant and that the marriage had broken down and he was in the process of legally divorcing the third defendant with whom he was married in terms of the then Marriage Act [Chapter 37].

She was also informed, that, the third defendant had one child with the deceased by the name Violet Jack.

At the time the plaintiff met the deceased, the third defendant was not living with him. They were on separation.

The plaintiff stated, that, in or around 1981 she was looking for a property to buy. She was advised that there was a plot for sale just outside the city of Bulawayo. She said that she negotiated for the purchase of the property, being Lot 1 A Gumtree and Lot 3 Gumtree, situate in the District of Umguza.

The property was registered in the names of the late Jubane James Jack because she did not have a payslip and there was need to have a Bond registered against the title deed for the payment of the balance.

She paid an initial deposit of $3,000 and the balance was paid in monthly instalments of $250. Payments were made at the offices of Messrs Ben Baron and Partners. She indicated, that, on certain occasions, the late Jubane James Jack would pay the instalments.

The total purchase price for the property was $15,000.

The second property, being Lot 3 of Gumtree was sold for $10,000. A second bond was registered over the property.

The plaintiff testified, that, she received part of the deposit for the purchase of the second property from a Mr Joshua Malinga.

After the purchase of the two properties, the plaintiff said she left for the United Kingdom in or around February 1999.

The deceased and the plaintiff had three children, namely, Neville Thamsanqa Jack (born on 26 October 1981, Brian Bekithemba Jack (born on 3 October 1985) and Denise Thembeka Jack (born on 18 January 1990).

The deceased and the children relocated to the United Kingdom in December 1999 where they remained until the demise of the deceased in 2006.

It was the plaintiff's evidence, that, problems started in June 2010 when she received a message on Facebook, from Violet Jack (her husband's only child out of his marriage with the third defendant), advising her that she and her mother were going to be the beneficiaries in the estate of the late Jubane James Jack.

In July 2010, the plaintiff travelled to Zimbabwe to attend the funeral of her sister, Faith Mazaiwana. Whilst at the funeral, she was alerted that the property at Gumtree had been put up for sale.

The plaintiff filed an urgent Chamber Application for an order interdicting the executor of the Estate of late Jubane James Jack and the third defendant from disposing of the immovable properties, being Lot 1A of Gumtree and Lot 3 of Gumtree in the District of Umguza.

The Registrar of Deeds and the Master of the High Court were cited, in those proceedings, as nominal respondents.

Upon the granting of the Provisional Order, the confirmation of such order was resisted by the third defendant. A subsequent court application, under case number HC1653/10, was filed by the plaintiff.

Both applications have now been consolidated.

The plaintiff abandoned her claim that she be declared the sole surviving spouse in the Estate Late Jubane James Jack when it became apparent that the third defendant was still legally married to the deceased at the time of his death.

In summary, the plaintiff avers, that, the property in dispute belongs to her for these reasons:

(a) She bought the property using her own funds. She saved the money whilst she was working in the United Kingdom and she was responsible for the repayments on the mortgage bonds.

(b) The deceased did not contribute anything towards the purchase of these properties.

(c) The third defendant never set a foot on these properties and never contributed towards their purchase -, directly or indirectly.

(d) The property never belonged to the Estate Late Jubane James Jack inspite of the property being registered in the names of the deceased.

The plaintiff's evidence is difficult to accept.

The plaintiff was unable to adequately explain why the property was registered in the names of Jubane James Jack and not in their joint names if indeed they had acquired the property together.

It is inconceivable that the deceased who was then employed by the National Railways of Zimbabwe would have contributed nothing whatsoever towards the purchase of the property.

At the time the plaintiff commenced living with the deceased, she was well aware the third defendant was still legally married to him. She was aware that divorce proceedings had not been instituted.

The plaintiff would not have invested all her entire life savings in a property registered in the names of a man married to another woman.

The plaintiff claims that all her documents proving the purchase of the property were lost or destroyed.

The court must, therefore, according to the plaintiff, believe her version of events on her mere say so.

Under cross examination, when a direct question was put to her as to why the property was registered in the names of the deceased, the plaintiff's response was that she was heavily pregnant at the time and she did not possess a payslip.

She could not say for certain who signed the agreement of sale. However, she could not deny that the agreement of sale was signed by the deceased who eventually had his names on the title deed.

The plaintiff conceded, that, at the time of the death of the deceased, the legal owner of the property was reflected on the title deed as Jubane James Jack, although she insisted that she was the financier.

It is my view, that, the evidence of the plaintiff was not convincing. She did not strike as a credible witness.

She failed to produce a single document to prove that the funds used to pay for the property were raised from her savings. Her initial attempt to claim to be the sole surviving spouse of the late Jubane James Jack puts her in very bad light.

There can be no other conclusion except that her intention was to mislead the court.

The second and only witness for the plaintiff was Flora Dhliwayo, a sister to the plaintiff.

Her evidence was largely unhelpful to the court. She repeated that the plaintiff had, through her own endeavours, purchased the property in dispute. She averred, that, she had gone to view the property with her sister before its purchase. She however played no further part in the transaction. She did not witness the signing of the agreement of sale between the seller and the purchaser. She informed the court, that, the reason the property was registered in the names of the deceased was because the plaintiff was pregnant at the time, and, further, the plaintiff was not employed at the time.

The plaintiff's witness did not assist the plaintiff's case in any meaningful way.

The Defendant's Case

The defendant gave evidence and did not call any witnesses in support of her case. She testified, that, on 22 September 1972 she was married to the late Jubane James Jack in terms of the Marriage Act [Chapter 37] (as it was called then).

The defendant said, that, when they were married, they moved into a house belonging to the National Railways in Thorngroove. Between 1974 and 1980 they were living at West Sommerton, Bulawyo. She stated, that, her husband was posted to various places of work around the country and outside Zimbabwe. The late Jubane James Jack fathered eight children from different mothers. She had one child with the deceased, Violet Jack (born in 1978).

The defendant's evidence was essentially, that, the properties in Gumtree were purchased by the late Jubane James Jack.

He raised the funds to acquire the property through a loan raised through his employer. The balance was secured by a mortgage bond registered over the property.

She said by virtue of their marriage, and as his legal wife, she was a beneficiary in the estate of her husband as a surviving spouse.

She firmly advised the court that she was always aware of the illicit relationship between her husband and the plaintiff.

Her version was that the plaintiff stole her husband and persuaded him to move over to the United Kingdom with her.

The deceased never went through the divorce proceedings because he was aware that they would have to share the property at Gumtree.

The defendant further stated, that, when her late husband indicated that he wished to divorce her she reminded him of their type of their marriage and that they would have to sell the immovable property and share the proceeds.

The defendant informed the court that the deceased never commenced the divorce proceedings until he met his death.

The defendant said she registered the Estate of the late Jubane James Jack under DRB773/06. A First and Final Liquidation and Distribution Account was filed with the Master of the High Court as follows:

“FIRST AND FINAL LIQUIDATION AND DISTRIBUTION ACCOUNT IN THE ESTATE OF THE LATE JAMES JUBANE JACK WHO DIED AT JOHN RADCLIFFE, OXFORD RADCLIFFE HOSPITAL, UNITED KINGDOM ON THE 21ST FEBRUARY 2006

DRB 773/06
LIQUIDATION ACCOUNT

ASSETS $US

IMMOVABLE PROPERTY

1. Certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $50,000

2. Certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $25,000

MOVABLE PROPERTY

1. Household goods and effects $ 1,000

2. Five (5) herd of cattle $ 500

3. Grinding Mill $ 100

TOTAL ASSETS $76,600

ADMINISTRATION EXPENSES

12. ADVERTISING DEBTORS AND CREDITORS

(a) Chronicle: see attachment
(b) Government: see attachment

ADVERTISING THIS ACCOUNT

(a) Chronicle $10

(b) Government gazette $ 5

13. MASTER'S FEES

4% on $76,600 $3,064

Edict fees: see attached statement

TOTAL LIABILITIES $ 6,372-80

Balance to Distribution $70,227.20

$76,600-00

DISTRIBUTION ACCOUNT

Balance brought down to Distribution Account $70,227.20

Assets awarded in terms of Deceased Succession Act [Chapter 6:02] Section 3A:

TO CLEMENTINE JACK

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $5,555.56

2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78

3. Five (5) herd of cattle $ 55.56

4. Grinding mill $ 11.11

TO DANISO JACK

1. 1/9 share of certain piece of land being lot 1A Gumtree Situate in the District of Bulawayo measuring 2,7323 hectares $5,555.56
2. 1/9 share of certain piece of land being Umguza 100 Acre Lot 3 situate in the District of Bulawayo measuring 40,4684 hectares $2,777.78
3. Five (5) herd of cattle $ 55.56
4. Grinding mill $ 11.11

TO CHIPO JACK

TO VUYISILE PATRICK JACK

TO VIOLATE JACK

TO THAMSANQA JACK

TO BRIAN JACK

TO GUGU JACK

TO DENNIS JACK

$70,227.00

Cash contribution to avoid sale of assets $ 6,372.00

$76,600.00

EXECUTORS CERTIFICATE

I, Bongani Ndlovu, hereby certify to the best of my knowledge and belief that the foregoing accounts are true and correct, that there are no further assets and that no liability exists in respect of income tax.

Dated at Bulawayo this day 28th day of January 2010.

FOR ESTATE LATE JAMES JUBANE JACK AKA JUBANE JAMES JACK

________________________________
EXECUTOR DATIVE”

What can be gleaned from a perusal of the Distribution Account is that the defendant took into account all of the deceased's children - including the plaintiff's children.

The totality of the defendant's evidence was that she was married to the late Jubane James Jack, such marriage being monogamous. She established, that, at the time the late Jubane James Jack died, she was the surviving spouse at law. She asserted that she was entitled to inherit from the deceased estate. She contended that in spite of their separation, the property was acquired by the parties during the marriage.

Her evidence was that her late husband secured a loan from the National Railways of Zimbabwe.

She stuck to her evidence, that, the plaintiff could not inherit the property in dispute because she was not the surviving spouse, and, in any event, she could not prove that she used her own funds to purchase the property.

From the defendant's testimony, her version remained uncontroverted.

It cannot be denied, that, if she was the lawful surviving spouse of the deceased, she would ordinarily be entitled to inherit the immovable property in dispute. The defendant went further to show, that, the property was shared amongst all the children of the deceased - including herself. It is my view, that, her attitude clearly shows that she did not seek to deprive all the lawful beneficiaries to the estate. She did not seek to allocate the property to herself to the exclusion of the children of the deceased.

The Legal Position

I have already set out the disputed and undisputed facts of the matter. I must now examine the law on the subject.

I have shown, that, the plaintiff failed to prove that she purchased the property in question. If she did contribute directly towards the purchase of the property, she failed, on a balance of probabilities, to show that she made any financial contributions. Nothing was placed before the court by way of evidence to show that the plaintiff purchased the property except her mere say so.

In the case of Sibanda v Sibanda and Another 2002 (1) ZLR 622 (H) SMITH J stated…, as follows:

“Since I have found that Josephine was not aware, in March 1994, that Joseph was a married man, that means that their 'marriage' is in fact a putative marriage.”

The judge held, in that case, that, the plaintiff was only entitled to what was a fair share in the matrimonial estate. She was not entitled to a half share.

The matter went on appeal to the Supreme Court, and, in Sibanda and Another v Sibanda 2005 (1) ZLR 97 (S), the Appeal Court upheld the decision of the High Court. The Supreme Court agreed with the lower court, that, where a man enters into a marriage with another woman whilst a previous monogamous marriage subsisted, the second marriage is a nullity.

The court, however acknowledged, that, it was the correct approach to take into consideration the contribution of the 'wife' in order to determine what amounts to an equitable distribution of matrimonial property.

See also Makovah v Makovah 1998 (2) ZLR 82 (S).

In casu, however, the court is not being called upon to determine what is an equitable distribution of matrimonial property. The court is also not called to consider the direct or financial contributions of the plaintiff, in the second 'marriage' which was undoubtedly a nullity.

The plaintiff in this action is claiming Lot 1A and Lot 3 Gumtree, alleging that she purchased the said property using her own funds.

I have already concluded that the plaintiff's evidence falls short of proving that she purchased the property. If anything, the totality of the evidence shows, that, the late Jubane James Jack had a substantial part to play in the acquisition of the said property.

In my view, the said property remained matrimonial property up to the time of the decease's death.

The property therefore quite clearly fell for distribution in the estate of the deceased.

I am satisfied, that, on the evidence led, the third defendant managed to prove that she is the surviving spouse of the estate of the late Jubane James Jack, and, therefore, the lawful heir to his estate.

I must observe, that, where a party cohabits with a married man or woman with full knowledge of the existence of a prior marriage, he or she takes a calculated risk when they acquire property together. In the event of either party's death, the property automatically falls into the estate of the deceased. The beneficiaries of such estate have valid and lawful claims against the deceased estate. A surviving spouse who produces proof of marriage with the deceased will have a prima facie claim as a beneficiary in the estate.

In the result, I am not satisfied that the plaintiff succeeded in proving her case on a balance of probabilities.

It is accordingly ordered as follows:

The plaintiff's claim is hereby dismissed with costs.

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

The respondent filed an application for Directions in terms of Order 23 of the High Court Rules 1971.

On 26 November 2014, I directed that the Urgent Application for Stay of Execution, filed under case number HC2009/14, be set down for argument during the first term of 2015. The matter was set down for argument on 20 February 2015.

This judgment deals with the confirmation or discharge of the Provisional Order granted by this court on 28 August 2014.

Background

The factual background to this matter is as follows:

On 28 August 2014, the respondent (as plaintiff) obtained a judgment in the Magistrates Court for the cancellation of the lease agreement between the parties signed and concluded on 30 July 2012. The Applicant (as defendant) was also ordered to pay arrear rentals in the sum of $2,500 per month with effect from January 2013. The applicants were ejected from Shop Number 2, 79A Jason Moyo, Bulawayo and were ordered to pay collection commission together with interest at the prescribed rate and costs of suit.

Aggrieved by the judgment of the Magistrates Court, the applicants filed a Notice of Appeal and such appeal is pending before this court under case number HCA92/14.

Armed with the Notice of Appeal, the applicants approached this court, under cover of case number HC2009/14 on an urgent basis and obtained a provisional order whose interim provides that:

“Pending the finalization of this matter, execution of the magistrates court judgment under case number 732/13 is stayed.”

The respondents sought to set the matter for hearing, a move resisted by the applicants.

This prompted the filing of the application for directions.

I directed the parties to file their heads of argument and present argument on whether the application for Stay of Execution should be confirmed or discharged.

The first issue I must determine is whether the Notice of Appeal filed by the applicants is valid and complies with the rules.

Rule 29 of the Supreme Court Rules 1964 (which Rule applies to appeals to the High Court), provides that:

“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state:

(a) The date on which, and the court by which the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 3;

(e) The exact nature of the relief sought;

(f) The address of service of the appellant or his legal practitioner.”

In this matter, the Notice of Appeal does not state whether the appeal is against both liability for arrears and ejectment from the rented property.

This is far short from the peremptory requirements for the Rules.

Furthermore, to merely state, that, the appellants pray that their appeal be allowed with costs is grossly inadequate and not in compliance with the rules of the court.

The Notice of Appeal, is, in my view, fatally defective to the extent that it is a nullity.

There has been no attempt to seek to amend the Notice of Appeal in spite of the fact that the issue was raised way back in October 2014.

What this boils down to is whether the applicants can hold on to an Order for Stay of Execution obtained pursuant to a defective Notice of Appeal.

I am of the firm view, that, once it is established that the Notice of Appeal is defective and a nullity, the applicant's order for stay of execution cannot be allowed to stand.

In the case of Jensen v Acavalos 1993 (1) ZLR 216, KORSHA JA…, stated the position as follows:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”

The next issue for determination is whether this court is the proper court to deal with an application to stay the execution of a judgment granted in the Magistrates Court.

Even if this court were to deal with the merits of the matter, I do not appreciate why this application was brought to the High Court in the first instance. No plausible explanation has been advanced by the applicants why the application was not brought before the Magistrate's Court which granted the order.

The applicant merely states, that, this court enjoys wide discretion whether or not to grant the application.

It is further contended on behalf of the applicants, that, they are bright prospects of success on appeal, and that the respondent will not suffer irreparable harm or prejudice if execution is stayed pending appeal.

The Magistrates Court Act [Chapter 7:10] provides, under section 40(3), as follows:

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

There is clearly no basis for the applicants to have circumvented the Magistrate's Court to lodge this application in this court.

It is apposite to note, that, the record of proceedings which forms the basis of the appeal is not before this court.

The applicants expect the court to come up with a determination solely on the basis of the judgment of the Magistrates Court placed before this court.

It is not desirable nor appropriate for this court to usurp the functions of the Magistrates Court: see the case of Haroon Mohamed v Noormahomed and Another HH180-10. In this matter MAWADZE J stated as follows:

“…,. Firstly, this court cannot meaningfully deal with the merits and demerits of the granting of an order of ejectment by the Magistrates Court on 22 June 2010 unless it is sitting as an Appellate Court. That appeal is still pending before this court and cannot be partially dealt with under the guise of an urgent chamber application. The two records of proceedings in the Magistrates Court are not even before this court.”

I am satisfied, therefore, that, the applicants have failed to justify the confirmation of the Provisional Order.

The applicants first hurdle is to regularize their defective Notice of Appeal. Secondly, the applicants ought not to have brought this application to this court for the reasons outlined above.

It is ordered as follows:

1. The Provisional Order granted under case number 2009/14, on 28 August 2014, be and is hereby discharged.

2. The applicants are ordered to pay the costs of suit.

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS
Ruled By: TAKUVA J

This is an application for confirmation of a provisional order issued by the Honourable Mr Justice Kamocha on the 31st day of October 2013.

The applicant is a registered trade union representing the artisans employed by the first respondent. It has capacity to sue and be sued in its own name.

The first to fourth respondents (National Railways of Zimbabwe, National Association of Enginemen, Railways Association of Yard Operation Staff and Zimbabwe Amalgamated Railway Workers Union) are signatories to the Parterson Job Evaluation System used at the first respondent's place of employment.

On or about 7 July 2004, the applicant and the respondents entered into an agreement setting out how the job evaluation system was to be conducted.

A procedural manual was drafted and signed by the applicant and all the respondents in July 2006.

In terms of clause 2 of the Parterson Job Evaluation System Procedural Manual, the purpose of the manual is to “set down the principles and procedures to be observed in respect of the classification of all Railway jobs in bands A to F using the Parterson Job Evaluation System.”

Clause 6 sets up a Job Classification/Review Committee whose composition is set out in clause 6.1 as:

“…,. 16 members, 8 of whom shall be appointed by the employer and 2 by each of the registered trade unions who are members of the Railways Employment Council.”

The quorum is established in terms of clause 6.1.5 as follows:

“The quorum of this committee shall be at least 4 members from the employer and at least one member from each of the trade unions. In the event of lack of a quorum, the meeting shall stand adjourned to a date and time to be agreed upon.”

The parties conducted their business in terms of the above manual until problems surfaced, and, in a meeting held on 18 September 2012, wherein the applicant and the fourth respondent's representatives indicated, that, unless the Parterson Job Evaluation System was reviewed they would be uncomfortable to remain as members of the Job Classification/Review Committee.

The third respondent withdrew its members on 27 November 2009.

The applicant also did so on 12 January 2010.

Consequently, no meetings of the Committee were conducted since then.

However, on 10 October 2013, the respondents met, without the applicant's knowledge and consent, and a motion was moved that the Committee should convene its meetings, and, if a party is absent, the meeting should remain adjourned for seven (7) days, and, at the agreed date, those members present shall constitute a quorum.

This proposal was the idea of one Gibson Mhlophe: see annexure H…,.

Indeed, notices were sent out by the secretary to the Railway Employment Council, one W. Chitima, and G. Ndlovu, the HR Manager for the first respondent: see annexures I and J…,.

Pursuant to those notices, a meeting was scheduled for the 23rd of October 2013. However, the meeting was postponed to the 30th of October 2013.

The applicant then sought and was granted a provisional order in the following terms:

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

1. The respondents be and are hereby ordered not to proceed with the meeting of 30 October 2013 to evaluate jobs as it violates the procedural manual.

2. In the event the meeting has already been done, the results of such meeting be declared null and void.”

The terms of the final order sought are:

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

1. The respondents be ordered to review the Parterson Job Evaluation Committee within 30 days of the order by subjecting it to an external evaluation.”

The applicant's argument is that there must be a review of the Committee's nature and functions in view of the corrupt manner in which it has been discharging its functions.

It was submitted, that, this Committee is a creature of the Manual and is strictly bound by the provisions of the manual in particular clause 6.1.5 thereof.

Further, it was submitted, that, where a quorum should be met in all such meetings, the failure to so comply renders those meetings conducted outside the requirements null and void: see L. Piros & Sons v Piros 1993 (2) ZLR 245 (H) and James North Ltd Can v Matrimson 1989 (1) ZLR 322 (HC).

The applicant also submitted, that, clause 6.1.5 of the Manual is clear and unambiguous in that the quorum of the committee shall be at least four (4) members from the employer and at least one member from each of the trade unions.

Also, it was argued, that, there is no provision in the Manual for the procedure proposed by Mhlophe and adopted by Chitima and Ndlovu.

Finally, it was submitted, that, the procedural manual is not subordinate to the Railway Employment Council constitution and any attempt to refer to it in order to resolve the impasse is a nullity.

The respondents opposed the confirmation of the provisional order on the following grounds:

(a) That, the applicant is barred from filing heads of argument because it did not, within one month of filing an answering affidavit, set the matter down for hearing in compliance with Order 32 Rule 236(4) of the High Court Rules 1971, and, as a result, the respondents have, under case number 272/14, applied for dismissal of this case for want of prosecution in terms of Order 32 Rule 236(4)(b) of this Court's rules.

(b) There is no urgency in that the decision the applicant seeks to be set aside was communicated to it on 10 October 2013 yet it waited until the 29th of October 2013 before approaching the court. Reliance was placed on Kuvarega v Registrar-General and Anor 1998 (1) ZLR 188.

(c) That the applicant has not exhausted domestic remedies provided for in terms of section 74(4) of the Labour Act [Chapter 28:01] before approaching this court.

(d) That the relief sought is incompetent in that the court has no authority to make an agreement for the parties.

(e) That constitutions of voluntary associations should be interpreted in a manner which gives effect to the objects of the association as was held in Mudzumwe & Ors vs MDC & Anor 2012 (1) ZLR 490; Mudzengi & Ors v Hungwe & Anor 2001 (1) ZLR 179; and Garment Workers Union v Vries & Ors 1948 (1) SA 1110…,.

(f) That, the decision the applicant complains of was taken when there was a full quorum and the applicant was simply out-voted.

In my view, the real issue is whether or not the respondents purported amendment of clause 6.1.5 is lawful.

The rest of the points raised by respondents are frivolities. However, I will consider them and provide reasons for their dismissal.

The first point has no merit in that the respondents should have set down case number HC277/14 for hearing.

The second point is irrelevant because the matter has already been heard on an urgent basis.

The third point is not well taken because the Labour Court has no jurisdiction to grant an interdict.

As regards the fourth point, by granting the relief sought, the court is not making an agreement for the parties but ensuring that the parties comply with their contractual obligations.

The fifth point is totally without merit because the basic rule of interpretation, namely, the literal rule, requires that words be given their ordinary grammatical meaning.

If this is applied to clause 6.1.5, the meaning becomes crystal clear.

The object of clause 6.1.5 is to ensure that all members of the Committee must be present when it conducts its business in line with sound industrial relations principles. Any other meaning would defeat the spirit of collective bargaining.

The last point, relating to how the decision complained against was made, is relevant to the issue.

However, the respondents submission, that, when it was made, there was a full quorum, is simply incorrect.

The respondents have referred to the meeting of 18 September 2012 as the date when the decision was made.

Quite clearly, this is not the case, in that annexure H, which is the proposal by Mhlophe, was written on 10 October 2013.

It would be illogical for this proposal to have been written on this date if the “decision” had already been made in 2012.

Also annexure I and J confirm that the controversial decision was only made after Mhlophe's not so wise proposal was made.

What is abundantly clear is that the adoption of Mhlophe's proposal, by the respondents, amounted to an unlawful amendment of the Parterson Job Evaluation System Procedural Manual, in particular, clause 6.1.5.

The Manual is a Collective Bargaining Agreement which can only be lawfully amended in terms of section 81 of the Labour Act [Chapter 28:01].

In casu, this was not done.

Accordingly, the provisional order is hereby confirmed.

HH667-15 : MARICK TRADING (PRIVATE) LIMITED vs OLD MUTUAL LIFE ASSURANCE COMPANY OF ZIMBABWE (PVT) LTD and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

Legal practitioners should keep abreast with, and heed pronouncements from the courts. It is a duty. The determination of cases on the merits should not be impeded or stalled unnecessarily for failure to follow the Rules.

This was the case in this matter.

From the papers filed by both parties, the merits appeared well set out. But, the case could not proceed. A technical objection taken by the respondent, in limine, blocked it.

I reserved judgment to think through it properly. Now, here is my judgment on the point.

In December 2014, this court granted a provisional order by consent. This followed an urgent chamber application by the applicant. The interim relief was a stay of execution of the applicant's goods, pending the confirmation or discharge of the provisional order. The final relief sought was for the first respondent (“the respondent”) to show cause why its writ in the main action, under HC3268/12, should not be set aside, and why its legal practitioner of record should not pay the costs of the application personally, or, in the alternative, why the respondent should not pay those costs on the higher scale.

The facts were simple.

The parties had once been landlord and tenant; the applicant being the tenant, and the respondent the landlord. There was a dispute over the proper level of rentals to be paid with the advent of the multi-currencying system introduced in this country in 2009. The dispute was taken to arbitration. An award was made in favour of the respondent. The award was registered as an order of this court under HC3268/12.

A writ of execution was issued.

But, the applicant claimed it had since paid all the arrear rentals. It accused the respondent and its legal practitioner of improper conduct by improperly trying to use the rent writ to recover operating costs and interest over which the respondent had no judgment.

Certainly, the respondent had no judgment for the operating costs and the interest on the rentals. It had issued summons under HC8399/14 to claim these.

However, the applicant took a special plea in bar. It pleaded prescription. That case was yet to be determined.

So, basically, the applicant's case was, that, for the respondent to try and use the rent writ to recover disputed operating costs and interest was an extreme form of abuse of the court process. It prayed that its lawyer, allegedly the architect of the abuse, be mulcted in costs.

Of course, the respondent denied any wrongdoing.

So, the case before me was the return day of the provisional order.

The point in limine by the respondent was that there was nothing before me to determine because the applicant's application was neither in Form No.29 nor Form No.29B as required by Rule 241(1) of the Rules of this Court.

Rule 241 of the High Court Rules reads:

“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies:

Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”…,.

In casu, the applicant's urgent chamber application was one to be served. Indeed, it was served. So, it had to be in Form No.29. But it was not. It was also not in Form No.29B either.

It read like this:

“TAKE NOTICE that the Applicant hereby makes an Urgent Chamber Application for an order in terms of the draft order annexed to this application and the accompanying affidavits and documents will be used in support of the application.”

I observe, in passing, that, the format of the application used by the applicant seems so popular among legal practitioners in this jurisdiction.

I do not know where it comes from.

But, all that is required of litigants is simply to copy and paste either Form 29B or Form 29, the latter with appropriate modifications if the application is a chamber application that needs to be served on interested parties.

Form 29 is for use in ordinary court applications, or those chamber applications that require to be served.

One of its most important features is that it sets out a plethora of procedural rights. It alerts the respondent to those rights.

For example, in notifying the respondent of the court application, the form also notifies the respondent of his right to oppose the application, and warns him of the consequences of failure to file opposing papers timeously.

On the other hand, Form 29B, for simple chamber applications, requires that the substantive grounds for the application be stated, in summary fashion, on the face of that form.

Nothing can be more elementary.

The courts, both in this jurisdiction and elsewhere, have repeatedly drawn attention to the need to follow the Rules on this.

It is not a “sterile” argument about forms: per HLATSHWAYO J in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H)…,.

I sample some of the pronouncements by the courts:

(1) In Simross Vintners (Pty) Ltd v Vermeulen VRG Africa (Pty) Ltd v Walters t/a Trend Litho Consolidated Credit Corporation (Pty) Ltd v Van Der Westhuizen 1978 (1) SA 779 (T) COETZEE J said…,:

“…,. [T]he more fundamental difficulty arises, that, the document which purports to be a notice of motion is, as I have indicated above, a nullity, and, I have grave doubt whether the court has power, under this Rule, to repair a nullity; a concept in law which carries within itself all the elements of irreparability….,. In addition, it must be emphasized that Form 2(a) contains a description of the procedural rights of the respondent after service of the notice of motion. These rights are considerable and substantial. How could a Court, even if it were not a nullity, put a blue pencil through all these rights in the absence of the person in whom they reside, and without notice to him that such an order which abrogates his rights might be made? This application is struck off the roll.”

(2) In Jensen v Acavalos 1993 (1) ZLR 216 (S) KORSAH JA, stating the same principle, albeit, in respect of a notice appeal, said…,:

“The reason is that a notice of appeal which does not comply with the Rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad, but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice to be filed, the appeal must be struck off the roll with costs….,.”

(3) In Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), HLATSHWAYO J…, said…,:

“In terms of Rule 229C, the use of one form instead of another, of Form 29 instead of Form 29B, does not, in itself, constitute sufficient ground for dismissing the application; it being necessary for a court or a judge to conclude that some interested party has thereby suffered prejudice which cannot be remedied by directions for service on the injured party, with or without an order of costs….,. However, the applicant's error in this instance was not one of using one form instead of another, but of using a completely different format from the authorized ones….,.”…,.

(4) In Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), there is this seminal statement, at p103C–E:

“Lest an impression be formed, that, this is a sterile dispute about forms, I have deemed it necessary to outline, in a summary way, what each of the two forms contains, on the one hand, and the unique features of the format used by the applicant, on the other.

In Form 29, the applicant gives notice to the respondents that he or she intends to apply to the High Court for an order in terms of an annexed draft and that the accompanying affidavit/s and documents shall be used in support of the application. It goes on to inform the respondent, if he or she so wishes, to file papers in opposition in a specified manner, and within a specified time limit, failing which the respondent is warned that the application would be dealt with as an unopposed application.

In Form 29B, an application is made for an order in terms of an annexed draft, on grounds that are set out in summary, as the basis of the application, and affidavits and documents are tendered in support of the application.”

(5) In Richard Itayi Jambo v Church of the Province of Central Africa & Ors HH329-13 GUVAVA J…, said…,:

“This court has stated in a number of judgments…, that, parties are obliged to comply with the Rules. Where there is a non-compliance, the applicant must apply for condonation and give reasons for such failure to comply with the Rules: see also Jensen v Avacalos 1993 (1) ZLR 216 (SC).

In this case, the applicant's legal practitioner made no effort to comply with this Rule despite the fact that the point was raised in the respondent's opposing affidavit. The request to the court to condone the non-compliance was made cursorily at the hearing as if the grant of such condonation is always there for the asking.

It seems to me, that, legal practitioners must be reminded that there is an obligation to comply with the Rules of this court….,.

Clearly, where a party fails to comply with the Rules there must be a plausible reason why there has been a failure to comply. In this case, the attitude of the applicant was that such non-compliance must be granted by the court even though no explanation has been proffered for such failure. The applicant's counsel merely submitted, that, the defect was not material enough to vitiate the application.

In my view, this is not sufficient, and, on this basis alone, I would dismiss the application.”

(6) In Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14 MAKONESE J said:

“It is trite law, that, a Chamber Application must comply with the rules governing Chamber Applications. Chamber Applications are provided for by Order 32 Rule 241. Rule 241(2)(sic) states, that, where a Chamber Application is to be served on an interested party it should be in Form No.29 with appropriate modifications. In terms of Rule 232, a Respondent shall be entitled to not less than 10 days to file opposing affidavits. In urgent matters, the court may specify a shorter period than 10 days.”

(7) I have also had occasion to comment on this matter.

In Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals (Private) Limited & Ors HH559-14 I said, in relation to non-urgent chamber applications…,:

“The proviso to Rule 241(1) permits the modification of Form 29 where the chamber application has to be served. What would constitute 'appropriate modifications' is not stated. Why, then, does it become important that every time a chamber application has to be served, the applicant should abandon Form 29B and switch over to Form 29?

In my view, once the chamber application becomes one that must be served, then, the respondent is entitled to a period within which to file opposing papers. The 'appropriate modifications' would include, in my view, a fusion of the contents of Form 29 and those of Form 29B. In other words, it becomes a hybrid, containing both '…, the plethora of procedural rights…,” of Form No.29, including the dies induciae, and a summary of the grounds of application of Form No.29B.”

In casu, there is really no aspect of the matter that has not been dealt with, or commented upon before. In particular, the applicant used a format that is foreign to our Rules.

The respondent objected.

The objection was taken as far back as the notice of opposition. It was persisted with in the heads of argument. Finally, it was pressed on with at the hearing.

But, throughout all these stages, the applicant steadfastly refused to acknowledge any wrong doing. It has argued, that, its format substantially complies with the Rules. It has consciously and deliberately, so it seems to me, refrained from applying for condonation.

But, with the weight of authorities against such a stance, what has been the applicant's argument?

The applicant's argument before me was that this was the return day of the provisional order. It argued, that, the respondent had consented to the grant of the provisional order and that the provisional order had been predicated on the very same application now sought to be impeached.

Furthermore, the argument went on, this court had also seen it fit to grant the provisional order on the basis of the same application.

Therefore, the argument concluded, the respondent was now disbarred from raising the challenge.

In my view, the applicant's argument is illusory.

That the respondent consented to the provisional order being granted on the basis of a defective application, or that this court had gone on to grant the provisional order, did not, in my view, disbar the respondent from raising the objection on the return day.

There are a number of reasons for my saying this.

The defective application gave notice of an application for an order in terms of the draft. One goes to the draft order.

It was on the return day, the day when the final order was being sought, that the actual application would be moved and the substantive relief sought. It was on the return day that the respondent would be called upon to show cause why its writ of execution should not be set aside. It was on the return day that the respondent would show cause why its legal practitioner of record should not be ordered to pay the costs of suit personally, or, in the alternative, why it should not itself pay them at the higher scale.

In other words, the actual application would happen on the return day.

Given the somewhat summary fashion with which issues are inevitably dealt with in urgent applications, a respondent might consider it futile to contest the fact that the applicant might have established some prima facie right worthy of interim protection by the court. A respondent might decide that an applicant's fear of an irreparable right be found to be reasonable by the court. It might also decide that the balance of convenience might be found to favour the applicant, and so on.

So, the respondent might decide to reserve its rights to fight the real battle on the return day.

Therefore, I do not read anything into the respondent's consent to the granting of the provisional order, or the fact that this court went on to actually grant it. The respondent was entitled to raise the objection on the return day.

Nothing was decided by the provisional order.

An application, like a summons commencing action, is the founding process by which a matter is brought to court for determination. If the application is incurably defective, as it was in this case, then, there cannot be anything before the court to sit over in judgment.

The purported application is simply a nullity and must be struck off the roll.

Presumably, owing to the attitude that it had taken, namely, that its format was in substantial compliance with the Rules, the applicant probably felt constrained to apply for condonation.

I need not deal with this aspect in any depth.

The respondent railed against the applicant for its failure or reluctance to apply for condonation. What triggers the exercise of discretion by a court or a judge to grant or refuse condonation is the application: see Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…,.

The court does not just do it of its own accord.

In the circumstances, the applicant has made its bed of roses. It must lie on it. There being no application properly before the court, the application should simply be struck off the roll, with the applicant paying the wasted costs.

However, having struck off the application from the roll, it is not the end of the matter.

The merits were not argued because I took the view, that, the point in limine went to the root of the matter, such that, if upheld, as I have done, that would be the end of the road for the applicant.

But, the law has been called all sorts of names - most of them not very complementary. I had looked at the merits in advance of the hearing. They were well set out. In my view, to just strike off the application from the roll and stop there would make justice turn on its head.

In its papers, the applicant made the point, that, the respondent is abusing the writ for rent, which has been paid, to recover operating costs and interest, which are prescribed.

Prima facie, that is fraudulent.

On its part, the respondent has not taken the accusations lying down. It has made the point, that, the applicant has been dishonest and that it is the one bent on abusing, not only the relationship of landlord and tenant that once existed between the parties, but also the legal system. Among other things, the respondent says the applicant knew it had to pay the operating costs; that the applicant knows it did not pay them; that it has never disputed liability for them, and that it knows arrears on rent would accrue interest at the rates agreed upon by the parties in terms of the lease.

Therefore, in my view, this is a matter crying out for determination on the merits.

Furthermore, although I have penalised the applicant for its defective application and for not taking heed of the respondent's objection, the fact remains, that, the matter is at such an advanced stage within the adjudication system that it would not be, in my considered view, in the interests of justice to just turn it away completely.

In my view, this is a proper case, in the interests of justice, to invoke the spirit of Rule 4C of the High Court Rules.

That Rule reads as follows:

“4C. Departures from rules and directions as to procedure

The court or a judge may, in relation to any particular case before it or him, as the case may be -

(a) Direct, authorize, or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appears to it or him, as the case may be, to be just and expedient.”

I have considered it just and expedient to give the applicant, if it so wishes, the opportunity to rectify its mistake, on notice to the respondent, within a specified period, failing which the application shall permanently remain struck off the roll.

I have also considered it just and expedient that the life of the provisional order be extended for the same period granted the applicant in terms hereof.

DISPOSITION

In the final analysis, my order is as follows:

1. The application is hereby struck off the roll with costs.

2. Notwithstanding paragraph 1 above, the applicant shall be at liberty to file a proper application, on notice to the first respondent, within seven (7) court days of the date of this order, failing which the application shall be deemed permanently struck off.

3. The provisional order granted by this court on 19 December 2014 shall be extended for the same period as referred to in paragraph 2 above.

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(c) The respondents pay the costs of suit on an attorney and client scale.”

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application.

I would first deal with the certificate of urgency. The certificate of urgency gives the following grounds of urgency:

1. The first and second respondents clearly fraudulently got an order which they are currently executing.

2. The first and second respondents are mining and exhausting gold resources at the applicants mine. Gold will be depleted if the respondent is not interdicted from executing the unlawful order.

3. The applicants are suffering great prejudice and irreparable harm in that all mining operations have been stopped based of an unlawful order which was granted based on fraud and due to the first and second respondents misleading of this Honourable court.

4. The applicants have applied for rescission of the fraudulently gotten order under case number HC141/15. The applicants will suffer irreparable harm if the conduct of the first and second respondents is not challenged.

Thus, the final decision of this Honourable court, under case number 141/15, will be rendered a brutum fulmen if the respondents are not interdicted.

5. The applicants have a legitimate fear that the mine can be exhausted at any time by the first and second respondents.

I am not sure if the certificate of urgency seeks to allege that even the provisional order issued on 20 November 2014 was a fraud, as, clearly, the court record does not point at that.

The only issues that perhaps the applicants could contend were done unprocedurally would be the confirmation of the provisional order as they dispute receipt of the order.

As for the issue of the provisional order on 20 November 2014, whilst there could have been a notice of opposition in the court record, it is common cause that the learned judge was not compelled, in terms of the Rules, to first set the matter down before granting it. The learned judge had a wide discretion in this regard.

This is clearly proper in terms of Rule 246(2) of the High Court Rules which provides as follows:

“Where, in an application for a provisional order, the judge is satisfied, that, the papers establish a prima facie case, he shall grant a provisional order either in terms of the draft or as varied.”

The harm stated in the certificate of urgency, in my view, is not founded for the simple reason, that, the interim relief granted in the provisional order, which would be operative with or without the confirmation of the provisional order, had the effect of allowing the respondent to take effective control of the farm from 20 November 2014 to date.

That would mean, in my view, that, the confirmation or otherwise of the order did not bring anything new in so far as the applicants fears as stated in the certificate of urgency are concerned.

If the respondent had effective control of the mine since 20 November, then, they should have been mining there since then.

Even if the terms of the final order, which the applicants allege were fraudulently gotten, were to be suspended, the interim relief, which was seemingly obtained above board, would still be operational.

The applicants would still suffer the harm stated in the certificate of urgency as a result of operation of the interim relief which is an order of this court that was not obtained through unlawful means.

It would appear, from the applicants papers, that, they seek a provisional order that would counter and reverse the effects of the provisional order in HC2167/14.

This, in my view, is not desirable.

This court cannot issue a provisional order denying the applicants interference with a mine, and later issue a counter-provisional order now allowing the applicants interference and denying the respondent same.

In my view, if the applicants are not satisfied with the relief sought and granted in HC2167/14, they should seek rescission, but, they cannot seek another provisional order that renders ineffective the relief that the respondents got from this court on 20 November 2014.

Provisional orders cannot be used in the rescission of an order, for the result would be that we now have two provisional orders, one giving rights to the respondents, and a second one now taking away those rights from the respondents and giving them to the applicants.

This kind of approach would result in an absurdity.

The only proper platform to challenge the confirmation of the provisional order would be through an application for rescission of judgment which the applicants have correctly launched.

The application has to fail for this reason.

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

The applicant purchased the immovable property known as Stand 4022 Khumalo Township of Stand 4125 Bulawayo (commonly referred to as 36 Ellington Avenue, Khumalo, Bulawayo) at a public auction conducted by the second respondent on 19 July 2013.

The property is registered in the name of Raphael Masuku (the first respondent's husband).

The sale was confirmed by the second respondent on 17 October 2013.

The applicant complied with all the terms and conditions of the sale and duly paid the purchase price.

The transfer of the property cannot, however, be effected into the names of the applicant as the first respondent obtained a Provisional Order against her husband, Raphael Masuku, on 20 September 2000 under case number HC3089/2000. The interim order provides, in paragraph 4, that, pending an order of this court, the third respondent be and is hereby interdicted from transferring the property to a third party.

A caveat was registered against the title deed of the property in terms of that interim order.

The applicant has filed this application seeking an order for the discharge of paragraph 4 of the provisional order under case number 3089/2000 and for the upliftment of caveat number 808/2000 registered in pursuance of the interim order.

This is to enable the third respondent to effect transfer of the property from Raphael Masuku into the applicant's names.

In essence, the relief being sought by the applicant is to give effect to the judicial sale which has been stalled by the terms of the interim order granted by this court on 20 September 2000.

The first respondent has opposed the relief sought by the applicant primarily on the grounds, that, the judgment/order under case number HC1938/12 which led to the attachment and subsequent sale of the property in dispute is being challenged in court by her husband, Raphael Masuku.

In that matter, Raphael Masuku has filed an application for condonation for leave to apply for rescission of judgment under case number HC1938/12 which led to the attachment and auctioning of the property by the second respondent....,.

Background

The first respondent is married to Raphael Masuku and there is a divorce action which is pending under case number 3089/2000. On 20 September 2000, the first respondent obtained, against her husband, interim relief interdicting the sale of the property in dispute to a third party pending an order of this court.

The first respondent duly registered a caveat against the title deed bearing number 808/2000.

The divorce action, instituted some 15 years ago, has not been finalized. No proper explanation for the delay in finalization of this matter has been proffered by the first respondent.

Sometime in May 2012, Raphael Masuku was served with summons under case number HC1645/12.

At that time, Raphael Masuku was at Khami Prison on charges of theft of motor vehicle.

The plaintiff in that matter obtained judgment, and, subsequently, this led to the sale of the property known as 36 Ellington Road, Khumalo, Bulawayo in satisfaction of the judgement debt.

Under case number 1398/12, Raphael Masuku has attempted to seek a rescission of judgment.

Once again, as in the divorce matter, there seems to be no urgency in having that matter brought to finality. No sensible and plausible explanation has been advanced to explain the failure to have the application for condonation, and for rescission of judgement, resolved.

The first respondent and her husband seem content with maintaining the status quo.

It suits the first respondent to cling to the caveat registered in the year 2000. This is so because the property cannot be transferred to the applicant for as long as the caveat is not uplifted. As things stand, the first respondent is not proceeding with the divorce action and Raphael Masuku is not pursuing the application to rescind the default judgment that led to the sale of the immovable property.

Established Facts

It is not in dispute, that, the applicant purchased the property through a public auction conducted by the second respondent.

The applicant complied with all the terms and conditions of the sale and paid the full purchase price for the property.

The applicant is essentially an innocent purchaser.

It is further not in dispute, that, the property is registered in the names of Raphael Masuku, who is the registered owner of the real rights over the property.

The first respondent's opposition to the upliftment of the caveat is premised on the fact, that, the judgment which led to the property being auctioned is being challenged in court.

That judgment, which led to the sale in execution, is still operative and has not been set aside by a competent court.

It is beyond dispute, that, the immovable property was placed under attachment and sold to the applicant in terms of a valid court order.

I have already indicated, that, both the first respondent and Raphael Masuku have shown no interest in bringing to finality, firstly, the divorce matter, and, secondly, the application for rescission of judgment.

I also note, that, there is nothing in the papers to suggest, that, there was an attempt to challenge the confirmation of the sale.

The first respondent has taken no action at all to obtain an order setting aside the sale in execution.

There is therefore no basis to oppose the upliftment of the caveat registered in the year 2000, simply on the grounds, that, Raphael Masuku has not finalized his application for rescission of judgment.

As matters stand, the first respondent has remained in the property in dispute from 17 October 2013. The first respondent and her husband enjoy the use of the property - rent free.

Analysis of the Law

The onus is on the applicant to satisfy the court, that, there are special circumstances why an order uplifting the caveat should be granted: see the case of Maphosa and Another v Cook and Others 1997 (2) ZLR 314 (H).

In this matter, the learned judge goes further to state, at page 317, as follows:

“It is clear from the authorities, that, in the exercise of its discretion, the court will consider the fact that the attached property had been sold to the applicant, but, that, the applicant must show, in addition to that factor, the existence of facts or circumstances which satisfy it that it would be just or equitable to grant the relief sought.”

In the case of Bulle v Merchant Bank of Central African and Others HH02-96, it was held, that, a caveat recorded against a title deed does not confer on the judgment creditor real rights.

In the same vein, in this instance, the caveat placed against the title deed does not confer any real right on the first respondent.

In her heads of argument, the first respondent makes the following averments in paragraph 2.2:

“The first respondent stands to be prejudiced if the caveat is lifted since the said property forms part of the matrimonial property upon which a divorce matter is still pending under case number 3889/2000. This property cannot then be disposed of at the detriment of the first respondent who also happens to be an interested party. Lifting the caveat will be contrary to public policy since first respondent's husband's indebtedness cannot prejudice her interest in the property.”

I hold the view, that, the first respondent only holds personal rights against the registered owner of the real rights, Raphael Masuku.

The first respondent's opposition to the upliftment of the caveat, on the grounds that it would be against public policy, lacks merit as she may claim damages against the registered owner of the property, Raphael Masuku.

In the instant case, what the first respondent is in effect protecting is her 50% claim of the proceeds of the sale of the property upon the granting of a divorce.

That divorce, sadly, has not been resolved for 15 years, and there seems to be no interest on the part of the first respondent, or her husband, to bring the matter to a final conclusion because the issue of the caveat will then simply fall away.

The issue of the caveat is being used, in my view, as a shield against the enforcement of the applicant's rights arising from the sale of the property.

The position was aptly stated by HERBSTEIN and VAN WINSEN in Civil Practice and Procedure of the Superior Courts in South Africa, 3rd Ed…, where it is stated as follows:

“…,. A judgment creditor is entitled to attach and have sold in execution the property of his debtor notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property, which right arose prior to the attachment or even the judgment creditor had notice when the attachment was made. An attachment in execution acts as a judicial mortgage or pignus judiciali.”

I make the further observation, that, the caveat, which has been in place for close to 15 years now, has been overtaken by events.

Since the caveat was placed on or about the time of institution of divorce proceedings, its real purpose was to prevent a sale which her husband could conclude with a third party without her knowledge, thus prejudicing her personal rights in and to the property.

The property has since been sold in terms of a sale in execution, and the first respondent can enforce her personal rights for her fair share of the proceeds of the sale against her husband.

The first respondent's opposition to the removal of the caveat lacks substantive and well-grounded basis at law.

In the result, I am satisfied, that, the applicant has made out a good case justifying the upliftment of the caveat.

In the exercise of my discretion in applications of this nature, the applicant is entitled to the relief sought.

I, accordingly, make the following order:

1. Paragraph 4 of the Provisional Order granted under case number HC3089/2000 be and is hereby discharged and caveat number 808/2000 registered over Stand 4022 Khumalo Township of Stand 4125 Bulawayo under Deed of Transfer number 3137/2000, more commonly known as Number 36 Ellington Road, Khumalo, Bulawayo be and is hereby set aside.

2. Third respondent be and is hereby authorized and directed to uplift the aforesaid caveat and allow transfer of the said property from Raphael Masuku into the names of the applicant.

3. Second respondent be and is hereby authorized to sign any relevant documents to enable transfer on behalf of the said Raphael Masuku.

4. First respondent shall bear the costs of this application.

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

MAKARAU AJCC:IntroductionOn 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.The two applications, filed separately, and on different dates, were brought in ...

MAKARAU AJCC:

Introduction

On 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.

The two applications, filed separately, and on different dates, were brought in terms of section 167(2)(d) of the Constitution as read with Rule 27 of the Constitutional Court Rules 2016, alleging, that, the second applicant had failed to fulfil the obligation to pass Constitutional Bill (No.1) of 2017 in accordance with the Constitution.

The first application was filed in September 2017, before Constitutional Amendment Bill (No.1) of 2017 was presented to the President for assent, whilst the second application was filed in December 2017, after the Bill had been assented to and had been gazetted as an Act of Parliament.

In view of the fact, that, the allegations made in the two applications were the same and raised the same issues for determination, the applications were consolidated and heard as one.

No import was attached to the different legislative stages through which the amendment Bill passed as the singular order that was issued by the Constitutional Court, under judgment number CC04-20, in respect of both applications, reads:

“(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside, for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017, in para 1(a), shall become final.

2. The applicant's allegations, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicant's allegation, that, a two thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

The one hundred and eighty days stipulated in paragraph (b) of the order commenced to run on 1 April 2020 and expired on or about 28 September 2020.

The directive in that order was not complied with for reasons that are set out in the applicants founding affidavit.

On 25 September 2020, upon realising that the one hundred and eighty days would expire shortly thereafter, the applicants filed an urgent ex parte chamber application in this Court, securing, on 28 September 2020, a provisional order extending the period and concomitantly further suspending the coming into effect of the order of invalidity of the amendment to a date following the determination of this application.

On 6 October 2020, the provisional order was confirmed with the consent of the parties.

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

On 30 November 2005, the first respondent, Bell Inn (Pvt) Limited, was granted a spoliation order by GOWORA J in the following terms:“INTERIM RELIEF GRANTEDPending determination of this matter, applicant is granted the following relief:1. That 1st respondent is directed to remove himself and property and all persons holding through ...

On 30 November 2005, the first respondent, Bell Inn (Pvt) Limited, was granted a spoliation order by GOWORA J in the following terms:

“INTERIM RELIEF GRANTED

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

1. That 1st respondent is directed to remove himself and property and all persons holding through him from Arden Estate within 24 hours of the date of service of this order.

2. The Deputy Sheriff is authorised to evict 1st respondent and all persons holding through him from the farm.

3. That 1st respondent is interdicted from interfering with applicant's farming activities.

4. That 2nd respondent is directed to give the necessary instruments to Nyabira police to render all necessary assistance to the Deputy Sheriff in implementing his order should 1st respondent offer any resistance thereto.

TERMS OF FINAL ORDER SOUGHT

1. That 1st respondent be interdicted from returning or visiting Arden Estate.

2. That 1st respondent pay the costs of application on a legal practitioner and client scale.”

In that case, Bell Inn (Pvt) Ltd, the first respondent in the present proceedings, was the applicant while Mr Zakeyo Mereki, the applicant in the present case, was the first respondent, and the Commissioner of Police was the third respondent.

On that same day, id est 30 November 2005, Zakeyo Mereki filed an application to suspend service of Bell Inn's application on himself. His application was heard in chambers on 5 December 2005 and judgment was handed down on 7 December.

The order that the court issued was as follows:

“TERMS OF RELIEF MADE

1. That the 2nd respondent be and is hereby ordered to suspend service of the order annexure “C” on the applicant.

2. That the applicant be and is hereby entitled to remain in occupation of subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province until the final determination of this matter and to carry on all farming activities which he was engaged in or intended to engage in consequent upon his right to occupation in terms of annexure “A” the letter dated 10th November 2005 from the acquiring authority.

TERMS OF ORDER SOUGHT

1. That the applicant be and is hereby declared to be the rightful occupier of No.1 Arden Estate in Zvimba District of Mashonaland West Province in terms of the offer letter annexure “A” dated 10th of November 2005.

2. That the 1st respondent be and is hereby ordered to cease occupation of the subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province.

3. That the 1st respondent pay the costs of this application.”

When Bell Inn's application was served on Zakeyo Mereki, on 2 December 2005, he had already filed the above application seeking to prevent the Deputy Sheriff from effecting service on him.

In the same application, Zakeyo Mereki was seeking for a declarator.

As already stated above, the court handed down the judgment on 7 December 2005 wherein it declared Zakeyo Mereki as the correct occupier of the disputed piece of land.

Two days later, Bell Inn filed a notice of appeal against that judgment.

Zakeyo Mereki, who is the respondent in the appeal, contended, that, the appeal was a nullity. Hence the order that he was granted remained operative. It could only have been suspended had the appeal been properly and validly noted against that judgment and order, so his contention went.

The appellant appealed against the granting of an interdict to the respondent.

The respondent argued, that, when an interdict is granted it was not appellable. It was only the refusal of an interdict which is appellable.

Counsel for the respondent argued this point at some length citing some South African authorities.

He concluded, that, the legal position on that point was as stated in the South African authorities and went on to submit, that, the appellant had misread the law.

It turned out, however, that it was him who had misread the law.

There was no need for the respondent to refer to foreign authorities when our statutes have the answer to the question that falls to be decided.

In casu, the answer lies in section 43(2)(d)(ii) of the High Court Act [Chapter 7:06] which recites that –

“(2) No appeal shall lie –

(a)…,.

(b)…,.

(c)…,.

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of a judge, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases -

(i)…,.

(ii) Where an interdict is granted or refused.”

Quite clearly, there was no need for the appellant to obtain leave of the judge in this matter.

Its appeal was properly and validly noted and it suspended the judgment and order handed down on 7 December 2005.

In this application, Zakeyo Mereki sought confirmation of the provisional order which the noting of an appeal suspended.

That is clearly untenable.

There is another issue in this application which is a cause for concern.

The applicant did not file a draft of the order that he sought. He merely stated what he was seeking at the conclusion of his founding affidavit.

As mentioned above, what he was seeking was the confirmation of the order which had been suspended by the noting of an appeal.

On realising that what he was seeking could not possibly be granted, he, a day after the hearing, then filed a draft order which was different from what he originally sought. This time around his interim relief read -

“TERMS OF RELIEF MADE

A(1) That the writ of execution issued by this Honourable Court, on the 5th of January 2005, be and is hereby set aside pending the confirmation or discharge of the order reflected in “B” below.

(2) That notwithstanding the noting of appeal in case no. HC6286/05 and this case, the Provisional orders be operative with immediate effect.”

This is completely new and was never addressed at the hearing in chambers.

The application was defective because it did not comply with the peremptory provisions of the rules of this court, in particular Rule 227(3), which reads -

“(3) Every written application shall contain a draft of the order sought."

The applicant did not seek condonation from the court for failure to file a draft order with the application.

When attention was drawn to this defect, all that the applicant's legal practitioner could say was that the applicant would have no problems with filing a draft order. He then went on to file a draft order which was totally unrelated to what was argued at the hearing.

The application also fails for failure to provide a draft of the order sought.

In conclusion, I hold that the application fails on two grounds:

(a) That the order in case No. HC6286/05 was suspended by noting of an appeal on 9 December 2005; and

(b) That the application was defective in that it had no draft order for which no condonation was sought for the failure to do so.

In the result, I would dismiss the application with costs.

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

This application was set down during vacation, i.e. on the Motion Court for 17 December 2020.

When this matter was called, Mr Moyo, counsel for the applicant rose and made a submission that the papers were in order, and he prayed for an order in terms of the draft order. Mr Mazibiko stood up and said he was representing the first respondent.

I noted that the first respondent was not served with the notice of set down. Mr Mazibuko might have only become aware of the application because the matter was called out in his presence in the Motion Court.

I pointed out to Mr Mazibuko that the first respondent was barred and the application was not opposed.

He was not deterred.

He attacked the validity of the service of the application on the first respondent and attacked the competence of the application itself. Notwithstanding that he was further advised that the first respondent was barred, he argued that he was raising points of law, and, in his view, a court cannot grant such an order as sought by the applicant.

On his part, Mr Moyo contended that the first respondent was barred for want of filing a notice of opposition, and the application was not opposed, and he submitted that his papers were in order and prayed for an order in terms of the draft.

After briefly hearing both counsel, I granted the order sought, couched in the following terms:

“1. The provisional judicial management order issued on the 1st day of March by this court, under cover of HC3455/15 be and is hereby discharged.

2. Nyasha Motsi, in his personal capacity, be and is hereby directed to pay applicant's costs of suit on an attorney and client scale.”...,.

The brief relevant facts of this matter are, on the 1st of March 2016, the first respondent was placed under provisional judicial management. This is an application for the discharge of the provisional judicial management order.

The anchor of this application is that the order was obtained fifty-six months ago, and, it has not been confirmed.

It is contended, that, the order is a sham designed and calculated to shield the first respondent from paying its debts.

The applicant then sued out this court application on 12 August 2020. A copy of the application was served by the Sheriff, on the first respondent, on 9 September 2020. Again, another copy of the application was served by a clerk in the employ of the applicant's legal practitioners on 8 October 2020.

There is proof that the Assistant Master of the High Court was served with a copy of the application.

The first respondent, on the papers before me, had not filed a notice of opposition.

The Assistant Master filed a report, and made the point, that, she was not opposed to the order sought by the applicant, and made the point that the provisional judicial management order must be taken by the court as dead.

I then took the view that the first respondent was barred for failure to file a notice of opposition and opposing affidavit within the time allowed by the rules of court, then, the application was not opposed.

The bar against the first respondent, in such circumstances, is automatic and brings about a default: Rule 233(3) of the High Court Rules 1971 provides that a respondent who has failed to file a notice of opposition and opposing affidavit in terms of subrule (1) shall be barred.

I took the view, that, in this application, Mr Mazibuko had no right of audience before court, because the first respondent was barred. The effect of a bar is that while it is in operation, the party barred shall not be permitted to appear personally, or through a legal practitioner, in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar: see Rule 83(b) of the High Court Rules 1971.

It is clear from Rule 83(b) of the High Court Rules, that, once a party is barred, the matter is treated as unopposed unless the party so barred makes an application before that court for the upliftment of the bar.

It is also clear, that, in making the application to uplift the bar, the party that has been barred can either file a chamber application to uplift the bar, or, where this has not been done, the party can make an oral application at the hearing: see Grain Marketing Board v Muchero SC59-07.

Mr Mazibuko was not applying for the removal of the bar. He was attacking the application.

In fact, I found his conduct somehow unacceptable, that, after I had pointed out to him that the first respondent was barred, and that the application was therefore not opposed, he persisted in argument.

After considering a number of factors, I refrained from calling him to order.

I take the view, that, such conduct is a deviation from the normal practice; it is inappropriate and unnecessarily belligerent towards the court, and it serves no useful purpose in litigation.

In the result, in deciding this application for default judgement, I did not factor into the equation Mr Mazibuko's submissions. I concluded, that, the respondents, having been duly barred in terms of the rules of the court, and not having made an application for the upliftment of the bar, the application was unopposed.

I took the view, that, the papers before me were in order, and the order sought was competent, I then felt inclined to grant the order in terms of the draft.

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Final Orders re: Confirmation or Discharge of Interlocutory Restraining Orders and Provisional Orders

HH70-12 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs MUNYARADZI SEFAIDIGA and BLESSING MUNYORO Ruled By: HUNGWE J

Appealed HB07-12 : GOLDEN MOYO vs STEPHEN MKOBA and DISTRICT ADMINISTRATOR, MIDLANDS PROVINCE and GOVERNOR, MIDLANDS PROVINCE and MINISTER OF LOCAL GOVERNMENT and PRESIDENT OF ZIMBABWE Ruled By: NDOU J

HH93-09 : HAVEN CHIKUMBU vs BRYDEN TECHINICAL SERVICES (PRIVATE) LIMITED AND THE REGISTRAR OF DEEDS AND THE DEPUTY SHERIFF FOR HARARE Ruled By: CHITAKUNYE J

HH128-09 : ROUTE TOUTE BV & OTHERS vs MINISTER OF NATIONAL SECURITY RESPONSIBLE FOR LAND LAND REFORM AND RESETTLEMENT & OTHERS Ruled By: PATEL J

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO Ruled By: CHEDA J

HB45-09 : FALCON DUBE vs ZIMBABWE NATIONAL WATER AUTHORITY and THE MESSENGER OF COURT Ruled By: KAMOCHA J

HB67-08 : PROMISE NCUBE vs SHENZIRA NCUBE and JEREMIAH TENHESE N.O. Ruled By: KAMOCHA J

HB90-09 : FIOS NCUBE vs TICHAONA GOMBA and ZIM-AUSTRALIA (PVT) LIMITED and CITY OF BULAWAYO Ruled By: KAMOCHA J

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER Ruled By: MAKARAU JP

HB35-11 : CARSLONE ENTERPRISES P/L vs WILSON SVOVA Ruled By: MATHONSI J

HB56-11 : ELIZABETH READ vs MAIKOL PHIRI and JENNIFER PHIRI and REGISTRAR OF DEEDS Ruled By: CHEDA J

HH278-10 : RADIATOR AND TINNING (PVT) LTD vs RADIATOR AND TINNING (PVT) LTD WORKERS COMMITTEE and WALTER DUBE and LITOS CHIKWANDA and OTHERS Ruled By: MTSHIYA J

HH283-10 : TAWANDA CHIPATO vs MARKO MUSA MASEKO and RICHARD MASEKO and BERN-WIN DEVELOPMENT COMPANY (PRIVATE) LIMITED Ruled By: MAKONI J

HB11-10 : GORDON SPENCER and GARY BROWN vs THE MINISTER OF LANDS, LAND RESETTLEMENT AND RESETTLEMENT and THE CHIEF LANDS OFFICER, BULILIMA and MS R. BHEBHE Ruled By: KAMOCHA J

HB22-10 : KHAMI UNITED FOOTBALL CLUB vs ZIMBABWE FOOTBALL ASSOCIATION Ruled By: KAMOCHA J

HB27-10 : PATIENCE MOYO and ZIVANAYI MWEDZI and ANDREW BALENI and MARGRET MREWA and EDMORE VETERAI and OTHERS vs BULAWAYO KNITWEAR (PVT) LTD and MESSENGER OF COURT, BULAWAYO DISTRICT Ruled By: KAMOCHA J

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

HB64-10 : (1) SHARON KENNY and ESTATE LATE TERENCE KENNY and (2) KNIGHT NCUBE vs (1) KNIGHT NCUBE and (2) SHARON KENNY and ESTATE LATE TERENCE KENNY Ruled By: NDOU J

HB104-10 : THENJIWE NDLOVU vs VISION SITHOLE and CITY OF BULWAYO and REGISTRAR OF DEEDS Ruled By: MATHONSI J

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT Ruled By: MATHONSI J

HH104-13 : BOKA INVESTMENTS (PRIVATE) LIMITED vs THIRDLINE TRADING (PRIVATE) LIMITED and ONCLASS INVESTMENTS (PRIVATE) LIMITED and MASTER OF THE HIGH COURT Ruled By: PATEL J

HB10-13 : WESTGATE RESIDENTS ASSOCIATION vs NATIONAL RAILWAYS OF ZIMBABWE and L. H. JIYANE Ruled By: NDOU J

HB101-11 : REJOICE SIBANDA vs ESTATE LATE C KARPUL Ruled By: MATHONSI J

HB111-11 : CHRISTOPHER MOYO vs OBERT CHINHAMO Ruled By: MATHONSI J

HB168-11 : NOKUTHULA MOYO vs NORMAN GWINDINGWI N.O. and DAIRIBOARD ZIMBABWE (PVT) LTD Ruled By: MATHONSI J

HB10-14 : ELPHAS KAWA vs VICTOR MUZENDA N.O. and ZEXCOM (PRIVATE) LIMITED (in provisional liquidation) and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS and GEORGE ZINGANI and FUNGAI MARUFU Ruled By: MAKONESE J

HB20-14 : VELD CLIFF ENGINEERING (PVT) LTD T/A FIREMATIC CONSULTING ENGINEERS (represented by WATSON MURUVIWA) vs FIREMATIC CONSULTING ENGINEERS (PVT) LTD and VENSON GAMBIZA and NOMTHANDAZO NGWENYA Ruled By: MOYO J

Appealed HB114-16 : J.C. CONOLLY AND SONS (PVT) LTD vs R. C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: MUSAKWA J

View Appeal SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

View Appeal SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

HH468-18 : KETHIWE VAN DER SANDEN vs ROBERTUS ANTOINE W. VAN DER SANDEN and ROY MASAMBA and REGISTRAR OF DEEDS N.O. Ruled By: CHIRAWU-MUGOMBA J

HH15-09 : GRISON MUWIDZI vs OPTIMACK INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS Ruled By: UCHENA J

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

View Appeal HH139-18 : MARIA SITHOLE vs MATHIAS SITHOLE and CECK ENTERPRISES PL and B.R.M HOVE and PETER DZIMBA and MANNERS JARAVAZA and PARDON CHAKANYUKA and REGISTRAR OF DEEDS Ruled By: DUBE J

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO Ruled By: CHIDYAUSIKU CJ

HB124-03 : EMMAH MUHAMBI vs STANLEY MUSENDO Ruled By: CHEDA J

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT Ruled By: MAKARAU JP

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD Ruled By: MATHONSI J

HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS Ruled By: PATEL J

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD Ruled By: MAKARAU JP

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT Ruled By: MAKONESE J

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT Ruled By: MAKONESE J

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS Ruled By: TAKUVA J

HH667-15 : MARICK TRADING (PRIVATE) LIMITED vs OLD MUTUAL LIFE ASSURANCE COMPANY OF ZIMBABWE (PVT) LTD and THE SHERIFF FOR ZIMBABWE Ruled By: MAFUSIRE J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE Ruled By: MOYO J

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS Ruled By: MAKONESE J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST Ruled By: KAMOCHA J

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O. Ruled By: DUBE-BANDA J

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Zimbabwe

HH70-12 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs MUNYARADZI SEFAIDIGA and BLESSING MUNYORO
Ruled By: HUNGWE J

Appealed
HB07-12 : GOLDEN MOYO vs STEPHEN MKOBA and DISTRICT ADMINISTRATOR, MIDLANDS PROVINCE and GOVERNOR, MIDLANDS PROVINCE and MINISTER OF LOCAL GOVERNMENT and PRESIDENT OF ZIMBABWE
Ruled By: NDOU J

HH93-09 : HAVEN CHIKUMBU vs BRYDEN TECHINICAL SERVICES (PRIVATE) LIMITED AND THE REGISTRAR OF DEEDS AND THE DEPUTY SHERIFF FOR HARARE
Ruled By: CHITAKUNYE J

HH128-09 : ROUTE TOUTE BV & OTHERS vs MINISTER OF NATIONAL SECURITY RESPONSIBLE FOR LAND LAND REFORM AND RESETTLEMENT & OTHERS
Ruled By: PATEL J

HB24-09 : SIKHULILE MOYO vs THABANI KHUMALO and ESTATE LATE SIBONILE MLILO (represented by Bongani Ndlovu) and ASSISTANT MASTER OF HIGH COURT, BULAWAYO and CITY OF BULAWAYO
Ruled By: CHEDA J

HB45-09 : FALCON DUBE vs ZIMBABWE NATIONAL WATER AUTHORITY and THE MESSENGER OF COURT
Ruled By: KAMOCHA J

HB67-08 : PROMISE NCUBE vs SHENZIRA NCUBE and JEREMIAH TENHESE N.O.
Ruled By: KAMOCHA J

HB90-09 : FIOS NCUBE vs TICHAONA GOMBA and ZIM-AUSTRALIA (PVT) LIMITED and CITY OF BULAWAYO
Ruled By: KAMOCHA J

HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

HB35-11 : CARSLONE ENTERPRISES P/L vs WILSON SVOVA
Ruled By: MATHONSI J

HB56-11 : ELIZABETH READ vs MAIKOL PHIRI and JENNIFER PHIRI and REGISTRAR OF DEEDS
Ruled By: CHEDA J

HH278-10 : RADIATOR AND TINNING (PVT) LTD vs RADIATOR AND TINNING (PVT) LTD WORKERS COMMITTEE and WALTER DUBE and LITOS CHIKWANDA and OTHERS
Ruled By: MTSHIYA J

HH283-10 : TAWANDA CHIPATO vs MARKO MUSA MASEKO and RICHARD MASEKO and BERN-WIN DEVELOPMENT COMPANY (PRIVATE) LIMITED
Ruled By: MAKONI J

HB11-10 : GORDON SPENCER and GARY BROWN vs THE MINISTER OF LANDS, LAND RESETTLEMENT AND RESETTLEMENT and THE CHIEF LANDS OFFICER, BULILIMA and MS R. BHEBHE
Ruled By: KAMOCHA J

HB22-10 : KHAMI UNITED FOOTBALL CLUB vs ZIMBABWE FOOTBALL ASSOCIATION
Ruled By: KAMOCHA J

HB27-10 : PATIENCE MOYO and ZIVANAYI MWEDZI and ANDREW BALENI and MARGRET MREWA and EDMORE VETERAI and OTHERS vs BULAWAYO KNITWEAR (PVT) LTD and MESSENGER OF COURT, BULAWAYO DISTRICT
Ruled By: KAMOCHA J

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

HB64-10 : (1) SHARON KENNY and ESTATE LATE TERENCE KENNY and (2) KNIGHT NCUBE vs (1) KNIGHT NCUBE and (2) SHARON KENNY and ESTATE LATE TERENCE KENNY
Ruled By: NDOU J

HB104-10 : THENJIWE NDLOVU vs VISION SITHOLE and CITY OF BULWAYO and REGISTRAR OF DEEDS
Ruled By: MATHONSI J

HB106-10 : THWASILE NGWENYA vs MHLUPHEKI HLABANGANA and MESSENGER OF COURT
Ruled By: MATHONSI J

HH104-13 : BOKA INVESTMENTS (PRIVATE) LIMITED vs THIRDLINE TRADING (PRIVATE) LIMITED and ONCLASS INVESTMENTS (PRIVATE) LIMITED and MASTER OF THE HIGH COURT
Ruled By: PATEL J

HB10-13 : WESTGATE RESIDENTS ASSOCIATION vs NATIONAL RAILWAYS OF ZIMBABWE and L. H. JIYANE
Ruled By: NDOU J

HB101-11 : REJOICE SIBANDA vs ESTATE LATE C KARPUL
Ruled By: MATHONSI J

HB111-11 : CHRISTOPHER MOYO vs OBERT CHINHAMO
Ruled By: MATHONSI J

HB168-11 : NOKUTHULA MOYO vs NORMAN GWINDINGWI N.O. and DAIRIBOARD ZIMBABWE (PVT) LTD
Ruled By: MATHONSI J

HB10-14 : ELPHAS KAWA vs VICTOR MUZENDA N.O. and ZEXCOM (PRIVATE) LIMITED (in provisional liquidation) and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS and GEORGE ZINGANI and FUNGAI MARUFU
Ruled By: MAKONESE J

HB20-14 : VELD CLIFF ENGINEERING (PVT) LTD T/A FIREMATIC CONSULTING ENGINEERS (represented by WATSON MURUVIWA) vs FIREMATIC CONSULTING ENGINEERS (PVT) LTD and VENSON GAMBIZA and NOMTHANDAZO NGWENYA
Ruled By: MOYO J

Appealed
HB114-16 : J.C. CONOLLY AND SONS (PVT) LTD vs R. C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MUSAKWA J

View Appeal
SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

View Appeal
SC22-18 : J.C. CONOLLY AND SONS (PRIVATE) LIMITED vs R.C. NDHLUKULA and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

HH468-18 : KETHIWE VAN DER SANDEN vs ROBERTUS ANTOINE W. VAN DER SANDEN and ROY MASAMBA and REGISTRAR OF DEEDS N.O.
Ruled By: CHIRAWU-MUGOMBA J

HH15-09 : GRISON MUWIDZI vs OPTIMACK INVESTMENTS (PVT) LTD and REGISTRAR OF DEEDS
Ruled By: UCHENA J

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

View Appeal
HH139-18 : MARIA SITHOLE vs MATHIAS SITHOLE and CECK ENTERPRISES PL and B.R.M HOVE and PETER DZIMBA and MANNERS JARAVAZA and PARDON CHAKANYUKA and REGISTRAR OF DEEDS
Ruled By: DUBE J

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

HB124-03 : EMMAH MUHAMBI vs STANLEY MUSENDO
Ruled By: CHEDA J

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

HB05-11 : BMG MINING (PVT) LTD vs MINING COMMISSIONER BYO MINING DISTRICT and CHIEF MINING COMMISSIONER and KAMATIVI TIN MINES (PVT) LTD
Ruled By: MATHONSI J

HH02-10 : JOHN RODGER & OTHERS vs FRIK MULLER & OTHERS
Ruled By: PATEL J

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS
Ruled By: TAKUVA J

HH667-15 : MARICK TRADING (PRIVATE) LIMITED vs OLD MUTUAL LIFE ASSURANCE COMPANY OF ZIMBABWE (PVT) LTD and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J