A court cannot resolve a dispute that has not been brought before it for specific relief.

The respondent, that is to say the Reserve Bank of Zimbabwe is a body corporate established in terms of the Reserve Bank Act [Chapter 22:15]. Its function, among others, include acting as the Exchange Control Authority in terms of the Exchange Control Act [Chapter 22:05] as read with the Exchange Control Regulations Statutory Instrument 109/09, S.I.109 of 2009.

On the other hand, the applicant is a duly registered company which is in the business of exporting commodities.

In terms of section 7 of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004, the applicant is required to acquit its export documentation, that is to say, repay or settle its debts or obligations to the respondent arising from export receipts commonly known as CD3 forms. The section reads:

“7(1) With effect from the 1st January 2004, every business organisation engaging in the export of goods and services shall be required to acquit the export documentation in respect of those exports.”

Failure to acquit CD3 forms in terms of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004 amounts to a criminal offence punishable by the courts.

Sometime in 2000, the applicant fell into arrears with the acquittal of some of its CD3 forms.

As a result, it was prosecuted, convicted, and fined in the Magistrates Court. In sentencing the applicant, the trial magistrate found special circumstances for not ordering repatriation. As a result, he sentenced the applicant to a fine of $2,000,000 but declined to order repatriation as requested by the State.

Repatriation, in terms of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004 means to pay back.

Following the conviction and sentencing of the applicant, the respondent demanded the acquittal of the outstanding CD3 forms in terms of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004.

The applicant refused to repay or settle its debts to the respondent arising from the outstanding CD3 forms arguing that it had been absolved by the magistrate from paying its debts to the respondent whereupon the respondent allegedly invoked the sanction provided by section 7 of the Exchange Control Regulations S.I.9 of 2009.

The effect of which was to freeze the applicant's foreign currency account number 9440031502000.

The applicant then filed this application seeking a declarator to the effect that it has been absolved from regularizing or acquitting its CD3 forms by the Magistrates Court.

It also sought an order overriding the sanction imposed by the respondent.

The respondent has objected to the applicant's application on the basis that it has not exhausted its domestic remedies and that the magistrate's refusal to order acquittal of the CD3 forms did not amount to absolving the applicant from regularizing or acquitting its CD3 forms according to law.

The issues which arise from the undisputed facts is:

(i) Whether or not the magistrate, in sentencing the applicant, absolved it from regularizing or acquitting its CD3 forms according to law; and

(ii) Whether or not the applicant is properly before this Court.

While it is desirable that parties should be encouraged to exhaust their domestic remedies before approaching the courts, the mere existence of domestic remedies does not oust the unlimited jurisdiction of this Court.

The Court has therefore discretion whether or not to entertain the application.

Having regard to the fact that the regularization or acquittal of CD3 forms has a direct bearing on the fiscus, the country's economy, and the applicant's business operations, it is in the national interest that the matter be determined as soon as possible. That being the case, I have decided to determine the matter on the merits so as to avoid unnecessary delays which may have the effect of prejudicing both parties and the nation at large.

I now proceed to determine the application on the merits.

In sentencing the applicant, the trial magistrate declined to make a repatriation order on the basis that he had found special circumstances. In his reasons for sentence…, the magistrate remarked that:

“For all the forgoing reasons, it is this court's finding that special reasons or circumstances exist in relation to both the offence(s) and the offender. See S v Chisiwa 1981 ZLR 666 (H): S v Mbano 1990 (1) ZLR 270 (SC).

It will be considered favourable that the Accused Company is a first offender.

Of course, the message must be distinctly conveyed to the Accused Company, and would be offenders, that, CD3 forms must be acquitted within stipulated times as directed.

It will be noted also that quite substantial amounts of monies were not accounted for to the Reserve Bank and that this is to be discouraged by the meting out of a fairly stiff penalty for the conviction today, but not necessarily repatriation of the monies as urged by State Counsel.

The following is the Accused Company's sentence:-

Fined $2,000,000, (new currency) or, in default of payment, Warrant of execution against property.”

I have carefully gone through the trial magistrate's reasons for sentence and I have found nowhere he stated or suggested that the applicant was excused or absolved from acquitting its CD3 forms.

It is clear, from a proper reading of the trial magistrate's reasons for sentence, that, he was alive to the applicant's statutory obligation to acquit its CD3 forms hence his remarks to the effect that the message must be driven home to the applicant, and others, that, CD3 forms must be acquitted within the prescribed time limits.

Check the use of the compulsive word “must” and not “should”.

The acquittal of CD3 forms is a statutory obligation imposed by law. That being the case, it is not the function of the courts to excuse or absolve anyone from complying with the law.

The mere fact that in punishing the applicant during criminal proceedings the trial magistrate declined to order repatriation did not absolve or excuse the applicant from complying with the law.

On 19 May 2009, the High Court (BHUNU J) granted an order in favour of the first respondent in the following terms:

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

2. Costs of suit.”

The defendants referred to in the Order were the two appellants and the second, third and fourth respondents (“Macmillan”, “Finnigan” and “Across Enterprises”). I shall refer to the two appellants and the second to the fifth respondents collectively as “the defendants” and, where the context requires, to the two appellants as “the appellants”. The first respondent will be referred to as “Surtee”.

When the defendants failed to make delivery in terms of the Order made by BHUNU J, the Deputy Sheriff was charged with the execution thereof. He served the Order at 72 Eastern Road, Greendale, Harare, on 22 July 2009 and made the following return:

“Attempt to recover the fuel. Mrs Evans said they are no longer dealing in fuel supplies and they do not have the fuel. Nulla bona. Return to Attorneys.”

This prompted Surtee to file an application in the High Court seeking an order that the defendants be held to be in contempt of court and committed to gaol for 90 days.

Macmillan, Finnigan and Across Enterprises did not file opposing papers and were therefore in default. All five defendants were found to be in contempt of court. Across Enterprises was sentenced to a fine of US$55,000 while the remaining four defendants were sentenced each to a term of 30 days imprisonment. The sentences imposed were suspended on condition that the defendants, jointly and severally, the one delivering the other to be absolved, deliver to Surtee 47,500 litres of fuel on or before 30 November 2010.

The appellants now appeal against the order of the court a quo on the grounds, inter alia, that, the learned Judge erred:-

(i) In finding that the appellants were in contempt of the order made by BHUNU J;

(ii) In finding, that, that order was one ad factum praestandum;

(iii) In finding that the appellants intentionally disobeyed that Order despite the Deputy Sheriff's nulla bona return, the import of which was that the appellants did not have the fuel.

The main issues to be determined are whether the order by BHUNU J was an order ad factum praestandum, and, if so, whether the court a quo correctly found the appellants to be in contempt of court by reason of their disobedience of that order.

Orders of court are, generally speaking, divided into two categories:

(i) Orders to pay a sum of money, namely, orders ad pecuniam solvendam; and

(ii) Orders to do, or abstain from doing, a particular act, or to deliver a thing, namely, orders ad factum praestandum.

See HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3ed…,.

The remedy of committal for contempt is available only in the latter category of cases.

These definitions notwithstanding, the distinction between the two types of orders is, in practice, not as clear cut as it may seem. Thus, certain orders for the payment of money, namely, maintenance orders (which one would have regarded as orders ad pecuniam solvendam) have been classified by the courts as orders ad factum praestandum.

The principle was expressed by SCHREINER AJ, in Carrick v Williams 1937 WLD 76…, as follows:

“The reason for holding maintenance orders…, to be orders ad factum praestandum is that they are not really money orders at all.

In their essential nature, they are orders that the defendant do something, namely, maintain the wife or the children.

This duty might be performed in various ways, including the provision of housing, clothing, and food in kind, or the transfer of property; but, in practice, the Court indicates how the defendant is to fulfil the duty by the payment of a periodical sum of money fixed in relation to the apparent capacity of the defendant and the needs of the party to be maintained at the time of the making of the order.

This direction by the Court does not convert the judgment from one ordering the doing of an act by the defendant into one awarding a sum of money to the Plaintiff.”

And, in East London Transitional Council v MEC for Health, Eastern Cape & Ors 2001 (3) SA 1133 (Ck), an order directing a public official to pay a certain sum of money to the judgment creditor was held to operate against that official ad factum praestandum.

The following extract from the judgment of EBRAHIM J, at page 1140F-I of the judgment, is instructive:

“In its strict sense, the order that this Court issued on 28 July 2000, for payment of the sum of R801,249, is an order ad pecuniam solvendam. But, the crucial issue that falls to be considered is, in what manner such an order operates against the first and second respondents and what the effect thereof is.

In my view, its operation is similar to that of an order which indicates the manner in which maintenance must be paid: see Carrick v Williams 1937 WLD 76 at 83.

In casu, even though the order directs that the debt be paid, it is issued, and operates, against the respondents in their nominal capacities. At the same time, and because of their official capacities, it imposes an obligation on them to take such steps as are necessary to enable the relevant departmental procedures to be implemented so that payment of the debt can be effected.

The obligation it imposes is not of a financial nature but one that requires them to carry out one or other function which forms an integral part of their official duties. In this respect, I consider that the Court's order of 28 July 2000 operates against the first and second respondents as an order ad factum praestandum.”...,.

Orders ad factum praestandum are usually granted only where there is no other remedy available to the applicant, the rationale being, that, the successful party has other options to enforce an order ad pecuniam solvendam....,.

On this basis, counsel for the appellants submitted, that, on the authorities, the key determinant is not the act directed but the nature of the obligation to be enforced.

He submitted, that, the true nature of the Order by BHUNU J was one for the payment of a debt – albeit in kind - and that the fact that the court ordered the delivery of fuel does not convert the order from an order for payment of a debt into an order ad factum praestandum in the same way that an order for the payment of money by way of maintenance is not converted from an order ad factum praestandum to an order ad pecuniam solvendam by the fact that it is expressed in monetary terms.

He further submitted, that, just as a Maintenance Order requires the performance of an act in a specific way (and is therefore an order ad factum praestandum), so, the order by BHUNU J, required the payment of a debt in a specific manner (and was therefore an order ad pecuniam solvendam).

Counsel for the first respondent, on the other hand, contended, that, the order was clearly one ad factum praestandum since it directed the appellants to do something, namely, to deliver 47,500 litres of fuel.

The learned Judge in the court a quo decided the first issue on the basis that:

“As correctly acknowledged by both parties, this court's order, of 19 May 2009, was the type of order normally referred to as 'ad factum praestandum' (i.e. an order for specific performance or the performance of an act – namely, the delivery of 47,500 litres of fuel).”

I can find no such acknowledgement by the appellants on the record.

On the contrary, it is quite clear from the record that it was not common cause between the parties that the order was one ad factum praestandum.

In the supplementary heads of argument filed on behalf of the appellants in the High Court the following appears:

“It is submitted that the order sought to be enforced is not ad factum. The present case is very different from the one in Trevor Batezat case SC49-09 in that the appellant in that case was ordered to return an identified triaxle trailer Registration Number 490-816V…,.

At the hearing of the application I dismissed it with costs. The applicant has requested for written reasons for the dismissal.

These are the reasons:-

On 29 March 2011 I dismissed, unconditionally, an application for summary judgment by the applicant.

On 4 May 2011, I dismissed a chamber application for leave to appeal to the Supreme Court against the order dismissing the application for summary judgment. The application for the leave to appeal had been made pursuant to section 43(2)(d) of the High Court Act [Chapter 7:06]. That provision states 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 that judge, or, if that has been refused, without the leave of a judge of the Supreme Court…,.”

I dismissed the application for leave on the basis of the provision of section 43(2)(b) of the of the High Court Act [Chapter 7:06] which provides:

“(2) No appeal shall lie –

(a)…,.

(b) From an order of a judge of the High Court in which he refuses an application for summary judgment and gives unconditional leave to defend an action;”

In view of the clear and unambiguous provisions of section 43(2)(b) of the High Court Act, and the fact that my order was one dismissing an application for summary judgment wherein I gave unconditional leave to the respondent to defend the action, that order is not subject to any appeal and section 43(2)(d) of the High Court Act does not apply.

Even the Supreme Court cannot grant leave to appeal against such an order.

The provisions in section 43(2)(b) of the High Court Act [Chapter 7:06] have been literally interpreted in a number of precedents.

In Haulage (Pvt) Ltd v Mumurgwi Bus Service (Pvt) Ltd 1980 (1) SA 729 (ZRA), the court, in interpreting section 31(1)(b) of the predecessor High Court Act [Cap 14] (ZR) whose provisions fell on all fours with those in our current section 43(2)(b) of the High Court Act [Chapter 7:06] held that, in providing in section 31(1)(b) of the High Court Act [Chapter 14] (ZR), that no appeal shall lie from an order of a judge of the General Division giving 'unconditional leave to defend an action', the Legislature intended to refer only to the granting of unconditional leave to defend in summary judgment proceedings in terms of what are now Rules 69 and 70 of the Rules of the High Court (Order 10 of the High Court (General Division) Rules in Rhodesia Government Notice 995 of 1971).

Implicity, from the provisions of section 31(1)(b) of [Cap 14], where conditional leave to defend is granted in summary judgment proceedings, the right of either party to appeal is restricted to a right of appeal (with leave of the court under section 31(1)(b)) only against the conditions imposed.

Pertinent to note here is that the provisions of section 31(1)(b) of the then [Cap 14] are similar to those of section 43(2)(b) of the present High Court Act and Rules 69 and 70 of Order 10 of the High Court Rules 1971 are also still the same: see also Howff (Pvt) Ltd v Tromp's Engineering (Pvt) Ltd 1977 (2) SA 267 (R); Rheeder v Spence 1971 (1) SA 1041 (R).

In spite of the plain language of the relevant legislation and case law cited above, to the effect that refusal of an application for summary judgement, coupled with unconditional leave to defend an action, is not appealable, the applicant's legal practitioner, following my refusal of leave to appeal, has since noted an appeal to the Supreme Court against my order refusing summary judgment.

Whence he got the leave to lodge such appeal is alien to the applicable law.

He has now requested for written reasons for my order of 29 March 2011 to enable him to prosecute his appeal.

It is not for me to withhold them in spite of the law saying no such appeal shall lie from such an order. Those reasons are herewith provided.

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.

The letter of explanation was not placed before me and it was not until after some months that the matter was then brought to my attention. In the event, it was set down before me in chambers to be argued as an urgent application.

The respondents indicated a desire to file affidavits in opposition and it was agreed between the parties that the best way was for the matter to be dealt with as an opposed application. The parties thereafter filed their documents, including heads of argument, and the matter was then argued in court.

On the date of hearing, counsel for the applicants made reference to a number of authorities to which I had no access. He promised to avail them to me shortly thereafter, but, it was not until 31 May 2007 that this request was complied with. It was, as a consequence, virtually impossible to render a judgment soon after the hearing as I then was heavily committed in other duties.

I turn now to the application before me.

The applicants are unions representing members in the employ of the second respondent. The first respondent is a medical aid society set up for the benefit of the employees of the second respondent and would appear to have been set up by virtue of a Collective Bargaining Agreement between the second respondent and its employees.

It is common cause that the first respondent was collecting subscriptions from the employees and the second respondent. Benefits which the employees received were not related to the level of payment by the beneficiary and it was, consequently, a fact that the second respondent was operating as a welfarist society with its members being afforded the same benefits.

In August 2006, the second respondent put into effect a three-tier system where benefits were structured according to the level of contributions paid by respective members.

Following representations made to the second respondent, the changes were not put into effect immediately as the parties attempted to find a common position. However, at the end of August 2006, the second respondent gave notice of its intention to put the changes into effect at the beginning of October 2006. The changes were put into effect and the system is now operational.

In view of the reasons I alluded to earlier, an attempt to have a temporary interdict stopping the implementation was still-born. It therefore only leaves the final relief for determination.

The terms of the final relief are in the following terms:

1. That the implementation and execution of the tiered system by the first respondent, effected on 1 October 2006, be and is hereby set aside.

2. That the first respondent be and is hereby ordered to cease/stop and be inducted from implementing the tiered system introduced on 1 October 2006.

3. That the first respondent pays the costs of suit.

Extensive heads of argument were filed on behalf of the parties. In addition, both counsel addressed the court orally.

Counsel for the applicants argued that there were three issues for determination:

(i) The first issue was whether or not the first respondent had powers, in terms of its Constitution, to alter the medical aid scheme in existence since its inception. Counsel invited me to look at the narrow positivist meaning of clause 11(2) as well as the context of the agreement.

(ii) The second issue was whether or not the Board of the third respondent had issued a directive to the first respondent following upon a meeting held on 20 October 2006; and

(iii) The last issue was whether or not the applicants had a legitimate interest to be heard before a decision was made to link benefits to subscriptions.

Counsel for the respondents argued almost on the same premise as counsel for the applicants viz whether the second respondent had the power to introduce the benefit structure that it did.

His argument was that the applicants had considered the structure of the third respondent in isolation of the statute. He submitted that the first respondent had the power to alter the benefits accorded to its members. In so far as the third respondent was concerned it was his contention that it had not issued a directive to the first respondent to stop implementing the alteration in the benefit structure. Lastly, it was argued, on behalf of the first respondent, that, the provision of medical services by the first respondent to members of the applicants was not a condition of service and that therefore there was no need for the applicants' members to be consulted prior to the implementation of the changes.

I think the logical place to start in this matter is the examination of the relationship between the applicants and the first respondent.

The first respondent was established by the National Industrial Council for the Railway Industry in 1970. One of its objects was to afford members the facility of obtaining medical and surgical treatment for themselves, and their dependants, including the provision of drugs and medicines.

According to the Constitution in terms of which the first respondent was set up, its members comprised of the following; employees of Railways, employees of National Railways of Zimbabwe, Railmed, National Railways of Zimbabwe Pension Fund, RAE, RAU, RAYOS, REC, RMS, and Z.A.R.W.U. who are entitled to membership in terms of their conditions of employment.

Also included in the list of people entitled to be members are pensioners of the various institutions described above and the widows or widowers of those persons who had been in employment in the same and were members of the first respondent.

The applicants, being unions, are representing the persons employed by the various bodies I have referred to. Except for those employed by the first respondent, none of the members of the applicants can say that they are employees of the same. The greater number of the applicants' members therefore are employed by the other bodies.

Going by the objects of the Constitution of the first respondent, the applicants' members have a relationship with the first respondent whereby the latter has undertaken to afford the members facility for the provision of medical and surgical treatment as well as drugs and medication. Nowhere in their papers have the applicants' alluded to any other contract with the first respondent except for the provision of the services I have described above.

Yet, in addressing the question of the first respondent's actions in altering the benefit structure being offered to their members, the applicants contend that the actions of the first respondent are in fact an alteration of their conditions of service.

In order to dispose of the issue of the relationship between the applicants and the first respondent, it then becomes necessary to arrive at a decision as to the meaning to be ascribed to the phrase “conditions of service.”

When one is in service, one is in employment, and, therefore, conditions of service are the same as conditions of employment. In the case of OK Bazaars (1929) Ltd v Madeley NO & Anor 1943 TPD392, conditions of employment were described as:

“Conditions of employment in the present context means simply the terms, either express or implied, contained in a contract of employment.”

The terms and conditions of the employment contracts of the applicants' members are not in the purview of the first respondent. In my view, conditions of service can only exist where services of a personal nature are rendered, the one being the employer the other the employee.

We do not have services of a personal nature being rendered by the applicants' members to and on behalf of the first respondent.

I presume that the contracts of employment provide for contributions by the employer for subscriptions to a medical aid society. Beyond that, I refuse to go as the contracts are not before me and any further comments on my part would be mere speculation.

On 15 October 2009, after hearing counsel, I dismissed this application with costs. The applicant's legal practitioners have now indicated that they require reasons for the dismissal and these are they.

Counsel for the respondent submitted that..., the law recognizes two types of orders. 

There is what is termed a constitutive order which confers rights to one party and imposes obligations on the other party. The other order is declaratory as it does not confer rights but states what the position of the law is regarding a particular issue.

Both counsel agreed that the issue of the granting of an application for a warrant for seizure of the applicant's motor vehicle will be the subject of separate litigation. That, however, does not affect the determination of this case as the parties in this application only dealt with the seizure of the motor vehicle without a warrant.

This court's decision must, therefore, only determine that issue and no other.

This appeal, from the judgment of the Labour Court, raises the issue whether an Arbitrator can, in a compulsory arbitration, dictate the terms of a Collective Bargaining Agreement between the parties.

Collective Bargaining Agreements are governed by Part X of the Labour Act [Chapter 28:01] (“the Act”). They are to be negotiated by the parties mentioned therein as the following provisions demonstrate:

“PART X

COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED BY TRADE UNIONS AND EMPLOYERS ORGANIZATIONS

74 Scope of Collective Bargaining Agreements

(1) This Part shall apply to collective bargaining agreements negotiated by registered trade unions, employers, and employers' organizations or federations thereof:

Provided that nothing in this Part contained shall prevent an unregistered trade union or employers' organization from negotiating a collective bargaining agreement.

(2) Subject to this Act and the competence and authority of the parties, trade unions and employers or employers organizations may negotiate collective bargaining agreements as to any conditions of employment which are of mutual interest to the parties thereto.

(1) Without derogation from the generality of subsection (2), a collective bargaining agreement may make provision for —

(a) Rates of remuneration and minimum wages for different grades and types of occupations;

(b) Benefits for employees;

(c) Deductions which an employer may make from employees' wages, including deductions for membership fees and union dues, and deductions which an employer may be required or permitted by law or by order of any competent court to make;

(d) Methods of calculating, or factors for adjusting rates of pay, and the dates, times and modes of payment;

(e) All issues pertaining to overtime, piece-work, periods of vacation and vacation pay and constraints thereon;

(f) The demarcation of the appropriate categories and classes of employment and their respective functions;

(g) The conditions of employment for apprentices;

(h) The number of hours of work and the times of work with respect to all or some of the employees;

(i) The requirements of occupational safety;

(j) The maintenance of, and access by the parties to, records of employment and pay;

(k) Procedures for dealing with disputes within an undertaking or industry;

(l) Housing and transport facilities, or, in their absence, an allowance for the same;

(m) Measures to combat workplace violence and handling its aftermath…,.”…,.

The list of subjects set out in subsection (3) are suggestions as to matters that may be included by the parties in a Collective Bargaining Agreement. Thus, the parties may elect to include all or any of the suggested topics in their agreement.

The point being made is that the statute does not confer a right on any of the parties, without agreement of the others, to have included in their Collective Bargaining Agreement, any of the subjects on the list.

This is understandable since a Collective Bargaining Agreement is a contract between the parties to it and only they can set the terms by which they will be bound. It follows that any benefits to be included in the Collective Bargaining Agreement must be agreed by the parties. They cannot be imposed by the Arbitrator, or indeed any court, in the same way that a court cannot write a contract for the parties.

What occurred in this case was totally improper. The Labour Officer, the Arbitrator, and the Labour Court all missed the point.

THE BACKGROUND

The proceedings on record commenced on the 27th June 2007, when the General Secretary of ZARWU (it is not clear whether these are the initials of the 4th respondent (Zimbabwe Amalgamated Railwaymen Union) or 1st respondent (Zimbabwe Railways Artisans Union)) wrote to the Designated Agent of the Railway Employment Council in the following terms:

“Dear Sir

RE: DISPUTE HOUSING ALLOWANCE AND EDUCATIONAL ASSISTANCE

On the full council meeting on 21 June 2007 there was disagreement between Labour and Management on the above issue.

Labour, through ZARWU, are referring the matter to your office for Concilliation (Labour Act Section 63).

We wait to hear from your office.”

Thereafter, all the parties were notified of a hearing to be held on 12 July 2007 and later postponed to 19 July 2007.

On 19 July 2007, the parties appeared before a conciliator. The latter required each of the parties to state his position on the matter and enquired as to whether any of the parties had varied its position on the dispute. The parties had not. He therefore issued a Certificate of No Settlement, and, by agreement with the parties, referred the matter to an arbitrator for compulsory arbitration. The terms of reference were agreed to be whether the respondents were entitled to:

(a) Housing allowance, and, if so, the quantum thereof (the claim was stated at $7,500,000 per month);

(b) Education allowance calculated at Government school rates, whether boarding or day school for up to a maximum of three children or registered dependents;

(c) The effective date of such award.

The Arbitrator appointed to deal with the matter was Mr Chinjeruke.

The point was taken before the Arbitrator, in limine, that the matter was not properly before him since no conciliation had taken place. That point was dismissed on the basis that the parties could, in terms of section 93(1) of the Labour Act [Chapter 28:01], agree, and did in fact agree, to refer the matter to arbitration.

As to the merits, it was contended, before the Arbitrator, that the appellant had not refused to negotiate on the allowances but proposed, rather, that the negotiations be centered on basic pay. Accordingly, the appellant's refusal to accede to a request to negotiate on the allowances did not indicate bad faith on its part. However, in the event that the arbitrator came to the conclusion that the appellant had refused to negotiate, the most he could do was to order the parties to negotiate. He could not impose 'un-agreed' terms and conditions on the parties.

In that submission, the appellant was correct. It was, however, ignored by the Arbitrator.

It was further contended on behalf of the appellant that the dispute, having arisen from the respondents' assertion that they are entitled to the allowances in terms of section 74(3) of the Labour Act, was a dispute of interest as opposed to one of right since that section provides for discretionary collective bargaining negotiations.

The Arbitrator appeared to accept this reasoning. He said:

“…, the dispute, in its current form, is a 'dispute of interest'. Because of 'may'…, in section 74(3), the matters are negotiable.”

He then went on to find:

“However, allowances such as Housing and School Fees, have to exist in one form or the other”, and, awarded, without giving reasons for so doing, school fees and housing allowances totaling 55 per cent of the basic salary of the employees.

The appellant was aggrieved by the award and appealed to the Labour Court.

Before the Labour Court, one of the main grounds of appeal was that the allowances sought and obtained by the respondents were not a right or entitlement but were to be negotiated. In the appellant's words, the Arbitrator had elevated a 'negotiable to an imperative', and, thereby, committed an error of law. A further ground of appeal was that the Arbitrator's award was premised on 'serious misdirections of fact which amount to mis-directions in law'. In particular, it was alleged that the Arbitrator erred in his finding that allowances such, as Housing and School fees 'have to exist in one form or the other'.

The Labour Court dismissed the appeal. Its concern was:

“This award was handed down on the 9th November 2007. Three years down the line the respondents' grievances have not been resolved. On page 6-9 of the record it has been shown that referring the matter back for conciliation will not assist as each party maintained its original position. This will further delay the finalization of this case.”

ISSUES ON APPEAL

The grounds of appeal are far from clear and concise. However, the main issue which clearly arises for determination, and which is dispositive of the appeal, is whether the Arbitrator could properly impose, upon the parties, the terms of a Collective Bargaining Agreement and whether the court a quo was correct in upholding the decision of the Arbitrator to do so.

As already stated above, the matters listed in section 74(3) of the Labour Act [Chapter 28:01] are matters which the parties may, at their discretion, decide to include in their Collective Bargaining Agreement. The appellant's position, at all times, was that it preferred to negotiate on basic salaries and not allowances. In my view, both the Labour Court and the Arbitrator ought to have found that the allowances, not having been negotiated by the parties, and, therefore, not forming part of their Collective Bargaining Agreement, were not a right or entitlement available for appropriation by the respondents. This is a matter for the parties to bargain and reach agreement on. It is not a matter where a court can intervene.

A court can only intervene to enforce any agreement the parties will have concluded.

The Arbitrator could not, therefore, impose terms and conditions in the Collective Bargaining Agreement. His finding, that housing and school fees allowances 'have to exist in one form or the other', was misguided, devoid of any legal basis and irresponsible.

So, too, was the subsequent award of the said allowances in percentages (the percentages amounted to 55 per cent of the employees' salaries) lacking evidential foundation, and, as submitted by the appellant, “plucked out of the air”.

Clearly, the Arbitrator acted outside his powers when he purported to set the terms of the Collective Bargaining Agreement between the parties and the Labour Court erred in law when it upheld the arbitrator's award....,.

The appellant's position was 'I will pay you the best salary that I can pay in the circumstances but I would rather not commit to pay allowances'.

There is nothing wrong with that approach.

Each undertaking is beset with its own peculiar circumstances. The fact that one employer considers it appropriate to pay allowances puts no obligation on another employer to do the same. Apart from dismissing the claim as being devoid of merit, the arbitrator had no meaningful role to play in this matter save to urge the parties to negotiate further on the issues in dispute. He could not, as he purported to do, create a contract for the parties.

It follows from the above that the Labour Court committed an error of law when it dismissed the appeal against the Arbitrator's award.

It is, therefore, ordered as follows:

1. The appeal is allowed with costs.

2. The order of the Labour Court is set aside and substituted with the following:

'The appeal is allowed with costs.

The Arbitrator's decision is set aside.'

This is an urgent Chamber application in which the applicants seek the relief set out in the draft order.   The draft order reads as follows:

“1. The Registrar is hereby directed to set down case no. SC 293/11 for an urgent hearing on the next available date.

2. The applicants shall file heads of argument within five days of being called upon to do so by the Registrar.

3. The first, second and third respondents shall thereafter file their Heads of Argument within five days of receiving the applicants' Heads of Argument.

4. Pending the determination of the appeal under case no. SC 293/11, the fifth respondent be and is hereby interdicted from transferring the Pelhams Limited, amounting to 376,976,840, shares from the second, third and fourth applicants to the second respondent.

5. Costs shall be costs in the cause unless the application is opposed, in which case the party opposing shall meet the costs of this application.”

In essence, the applicants were seeking –

(a) The setting down of the appeal in case no. SC 293/11 on an urgent basis;

(b) An interdict stopping the transference of the shares in Pelhams Limited to the second respondent pending the hearing of the appeal in case no. SC293/11.

The application was opposed.

After submissions by counsel, I dismissed the application as I was satisfied that it was devoid of any merit. My reasoning for so concluding was made very clear during my interaction with counsel during their submissions. I accordingly assumed that written reasons for judgment were superfluous in this matter, as the parties were aware of my reasoning process.

The appeal in case no. SC 293/11 has since, in due course, been heard. The appeal was dismissed.   See judgment no. SC12-13.

In a letter to the Registrar of the Supreme Court dated 29 January 2014, the respondents' legal practitioners, Messrs Atherstone & Cook, have requested my reasons for judgment in this application. I can only surmise that the respondents probably want the reasons for judgment for guidance as they were the successful parties in the application. 

Be that as it may, it is now trite that a litigant is entitled to reasons for judgment.

I have already stated that I dismissed the application without giving written reasons for judgment.  

The following are they.

This is an appeal against the judgment of the High Court granting with costs a claim by the respondent for:

(i) Payment of the sum of US$750,000.

(ii) Interest tempore morae at the London Interbank rate for United States dollars, at 3.5% per annum, from 1 September 2005 to the date of payment.

(iii) Costs of suit.

The factual background to this dispute, which is largely common cause, may be summarised as follows:

The appellant is a financial institution. The respondent is a manufacturer and supplier of an exclusive range of cables for the transmission of communication and distribution of energy used by such entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel One.

The respondent's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In 2004, the respondent's business experienced slow growth due to inflation and the scarcity of foreign currency. During that year, the respondent's representatives met with the appellant's Governor, Dr. Gideon Gono, with a view of securing foreign currency to purchase imported inputs in order to sustain its business.

Dr Gono gave an oral undertaking to avail US$150.000 per week, to the respondent, from the foreign currency auction system.

In January 2005, the respondent began to receive the said sums of foreign currency against payment of a Zimbabwean dollar equivalent to the appellant via a commercial bank.

The special arrangement was extended to thirty-five (35) other companies selected as the recipients of foreign currency.

This allocation of US$150,000 was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the respondent until the end of July 2005.

In August 2005, the respondent made three transfers of money, in Zimbabwe dollars, to the appellant, for the equivalent of the amount of US$750,000. The payments were accompanied by details of external creditors to be paid by the defendant.

The appellant did not pay the foreign currency.

Its position, at the trial, was that foreign currency could not be paid because it was not available.

The respondent's witness, Mr. Turina, confirmed, in evidence, that, the appellant indicated that it did not have foreign currency for disbursement.

On 2, 11 and 19 August, respectively, the respondent made payments, in Zimbabwe dollars, equivalent to US$750,000.

In respect of these three payments, the respondent would receive a phone call from the appellant before making payment.

On 1 August, it received a call from the appellant before depositing a sum of Z$4,438,294,052=45 with the appellant the following day.

With regard to the second transaction, the respondent received a phone call on 5 August. In response thereto, it deposited the sum of Z$4,511,254,261=47 with the appellant on 11 August.

On the third occasion, the telephone call was made on 17 August. The respondent deposited an amount of Z$4,587,562,920=90 with the appellant on 19 August.

Bigboy Masoso, who was the Division Chief Treasury Officer testified on behalf of the appellant to the effect, that, the disbursement of foreign currency could only be made if the front office of the appellant made the funds available. He also stated that the telephone calls made to the respondent, and other companies, were meant to provide quotations to secure constance of the exchange rate.

In the affidavit filed of record, Dr Gono stated as follows at paragraph four thereof as follows:

“I advised them that the Bank would endeavour to source foreign currency for the plaintiff to the tune of USD$150,000 per week in recognition of the plaintiff company's strategic role in the national economy. No formal binding agreement was concluded in this regard and it was never the common understanding of the parties that we were concluding a formal agreement.”

At paragraph six of the affidavit, he stated as follows:

“As a result of further representations made by the plaintiff, the defendant increased the weekly allocation of foreign currency to the plaintiff to USD250,000 from or about the 8th June 2005. Again, it was never the common understanding and contemplation of the parties that they were entering into a formal binding transaction, hence no formal contractual documentation was executed.”

Again, at paragraph seven of his affidavit, he stated as follows:

“I am advised, that, during the month of August 2005, plaintiff made payments totalling Z$13,535,110 being the quoted equivalent at the auction rate of USD750,000 which the defendant had hoped to pay to the plaintiff. Due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency, not only to plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

Following a trial, the learned Judge found as follows at p8 of the judgment:

“However, the main issue, in my view, is whether, by allocating to the plaintiff US$150,000 and later US$250,000 from the auction system, the defendant then became obligated to release the money to the plaintiff upon payment by the plaintiff, within twenty-four hours, of the Zimbabwe dollar equivalent at the defendant's instruction.”

At p9 of the judgement, the court a quo stated as follows:

“It becomes crucial for the defendant to explain the reasons for Patience Aisam to set in motion the process, if foreign currency was unavailable. My view is simply that the allocation was only made against funds that were already available from the auction.

It is important to note that Patience Aisam spoke of 'an approved allocation and not successful bid.'

This was so because the plaintiff was on a special list that was not required to bid.

There could, in my view, be no approval or allocation of what was not already available.

Given the condition that the completion of each transaction was totally dependant upon the availability of foreign currency, the possibility of Aisam confirming allocation and asking for payment of the Zimbabwe dollar equivalent, within 24 hours, when there was no foreign currency already earmarked for the plaintiff is, in my view, very remote.”

The learned Judge, at p9, made the following finding:

“I am therefore unable to accept that the above scenario did not create binding obligations on the part of the defendant.

To that end, I am of the view, that, upon compliance by the plaintiff, a binding contract was concluded and what remained was the release of the foreign currency purchased by the plaintiff.

The case of F.C. Hume (Pvt) Ltd v Minister of Natural Resources & Tourism 1989 (3) ZLR 55 indeed supports this view.

With the plaintiff having complied with all the requirements, the contract was already in place and the defendant was obliged to meet its obligation.”

The gist of the court a quo's reasoning was that, at the time the phone calls were made to the respondent, the foreign currency to which the call related was available and the call was an offer which the respondent accepted by depositing the money, in Zimbabwean dollars, with the appellant thereby giving rise to a binding contract.

The court a quo gave judgment in favour of the respondent as sought in the summons. It is against this judgment that the appellant now appealed to this Court.

In the grounds of appeal, the appellant contends that:

1. The court a quo erred in law and fact in not making a finding that the payment by the respondent of the Zimbabwe dollars, as directed by the appellant, did not create a binding contract which was an end itself but that performance was always subject to foreign currency being available.

2. The court a quo erred in law and fact in making a finding that the communications made by Patience Aisam, on behalf of the appellant, calling upon the defendant to pay the Zimbabwe dollars, meant or was evidence that the foreign currency being allocated was available for disbursement to the respondent.

3. The court a quo erred in fact and law in not making a finding that non-availability of foreign currency made performance impossible and that the appellant was entitled to refund the respondent the money it had paid as the suspensive condition, viz, the availability of foreign currency had failed to be met.

4. The court erred in law in allowing the claim for interest and in ordering the interest to run from 1 September 2005.

The primary question to be decided by this Court is: whether or not there existed a binding contract for the disbursement of a sum of foreign currency to the respondent's creditors upon payment by the respondent of an equivalent sum in Zimbabwean currency.

The following are undisputed facts:

As a result of an approach to the appellant's Governor, Dr Gono, on 27 October 2004, for assistance in obtaining foreign currency, the respondent was granted the status of a successful bidder at the weekly foreign currency auction.

Several other companies were on this special list.

The respondent was not required to place bids at the auction but was merely telephonically advised of the agreed weekly allocations.

The practice had been successfully operational from January 2005 to July 2005.

Payment requirements were availed to the respondent who complied by effecting payment of the equivalent amount of the foreign currency in Zimbabwe dollars.

There was no formal contract between the appellant and the respondent.

The respondent was amongst a list of thirty five (35) companies on this special list who had been identified as preferential recipients of foreign currency under the arrangement.

The court a quo correctly found, that, the arrangement between the parties was premised on the availability of foreign currency. As such, no allocation could be made without the availability of foreign currency.

Indeed, both parties were aware that the arrangement for the disbursement of foreign currency was subject always to a condition that foreign currency had to be available in the first instance.

Mr Turina stated, that, due to the scarcity of foreign currency, the respondent had reached an agreement with the appellant whereby bids from the respondent would be given preferential treatment.

He confirmed that the information on the allocations was done telephonically and that once an allocation (i.e. the initial US$150,000 rising to US$250,000) was made, the respondent was required to pay the equivalent in Zimbabwean dollars.

The arrangement had worked well from January 2005 until July 2005.

In August 2005, the appellant failed to disburse US$750,000 to the respondent's customers and suppliers after the respondent had deposited with the appellant an equivalent sum, in Zimbabwe dollars, in three separate tranches.

In this regard, the import of the affidavit of Patience Aisam was that a telephone call would be made to advise of an approved application and not allocation. In effect, the approval and the actual allocation of foreign currency were distinct processes - premised on the availability of foreign currency.

It was the evidence of Patience Aisam's superior, Bigboy Masoso that payments in foreign currency would only occur if the front office availed such funds.

This testimony accords with logic and probability.

Patience Aisam was not employed in the Front Office which was responsible for the allocation of foreign currency.

The court a quo found that there existed a binding contract between the parties.

When regard is had to Dr Gono's affidavit, it is clear that he advised the respondent that the appellant would “endeavour” to source foreign currency for the respondent.

Such assertion does not suggest that the appellant was binding itself to provide the respondent with foreign currency on an ongoing or permanent basis.

It is not in dispute that no allocation of foreign currency was made in August 2005. According to Bigboy Masoso, the system was discontinued because there was no foreign currency.

The 24 hours notice of payment of Zimbabwe dollars was not in fact adhered to by the respondent in August 2005.

The finding by the court a quo, that, upon payment by the respondent, a binding contract was concluded, is not borne out by the evidence with regard to the payments made following telephone calls of 5 and 17 August 2005.

It is to be noted, that, there was no formal contract between the parties.

Dr Gono offered to prioritise the respondent, and other companies, in the allocation and disbursement of foreign currency.

The Court finds that when Dr Gono put in place the special arrangement, there was no intention to create a binding contract to avail foreign currency to the respondent and the other companies on the special list.

The facility was put in place, at the time, because of the acute shortage of foreign currency.

It is highly unlikely, that, given that state of affairs, Dr Gono would seek to bind the appellant to avail foreign currency to the respondent, upon payment of the local currency, when the volume of inflows of foreign currency were unpredictable.

In the circumstances, it would not be logical for Dr Gono to enter into a binding contract to supply foreign currency to the respondent on the terms suggested.

It is not without significance that 35 other companies on the special list subsequently accepted refunds of Zimbabwe dollars deposited with the appellant in August 2005.

This fact is consistent with the position that the allocation of foreign currency was conditional upon its availability at any given time.

The effect of the evidence is that the agreement for the disbursement of foreign currency was predicated upon availability of foreign currency.

It was the respondent's testimony, that, the condition that foreign currency would be availed to the respondent, subject to availability, was expressed orally by the appellant's Governor when he entertained the respondent's request to be allocated foreign currency.

The agreement to accord the respondent preferential treatment, in the disbursement of foreign currency, together with 35 other companies, did not create a binding and enforceable contract between the parties.

The performance of the appellant's obligation, to provide foreign currency, was always qualified or conditional upon its availability.

Reliance by the respondent on previous dealings did not, in the circumstances, give rise to binding contractual obligations between the parties.

The parties understood, that, in the absence of foreign currency, there was no contract between them.

The Court is satisfied, that, the evidence does not establish that a binding contract existed between the parties regarding the disbursement of foreign currency, either formally or on past practice, upon payment by the respondent of the local currency equivalent.

It was found, by the court a quo, that, the Deputy Governor, Mr Ncube, gave an undertaking to make available the US$750,000 to the respondent as and when foreign currency became available.

The Deputy Governor's position was not part of the respondent's case on the pleadings in the court a quo.

The finding by the trial court that Mr Ncube's testimony, that he had promised the respondent that it would be paid the sum of US$750,000, was binding upon the appellant, is a misdirection.

The late Ntongayabo Abel Ngwenya was a polygamist who was married to both the appellant and the second respondent in terms of the Customary Marriages Act [Chapter 5:07], he having married the second respondent in 1952 and the appellant, customarily, in 1970, before registering that marriage in 1997. He died in Bulawayo in 2008 at the age of 78 whereupon his estate was registered with the Additional Master and the first respondent, his son, with the second respondent, was appointed executor by Letters of Administration issued on 16 September 2008.

The first respondent was dishonest in the administration of the estate in that he and the second respondent did not disclose the existence of the appellant as the second wife and sought to appropriate the entire estate to themselves.

When she discovered this, the appellant brought an application in the court a quo seeking an order reversing the fraudulent process of winding up the estate. The trial magistrate, having heard the application, referred the matter to this court for the proceedings to be quashed and the matter was placed before me. On 5 November 2010 I issued a review minute which reads:

“In light of the findings of the magistrate, I direct as follows;

(1) The entire proceedings and the winding up of the estate late Ntongayabo Abel Ngwenya under DRBY322/08 and everything done in terms of authority granted thereunder including the transfer of House No.14/412 Mpopoma, Bulawayo to the name of Rhoda Ngwenya be and is hereby set aside.

(2) The estate of the late Ntongayabo Abel Ngwenya should be reopened and its administration be commenced afresh to take into account the interests of all concerned.”

Having quashed the proceedings, the court a quo was required to commence the proceedings afresh. 

It is not clear what happened thereafter but the record does not contain any fresh hearing at all. No evidence was led by the parties concerned but out of nowhere the trial magistrate delivered a ruling on 2 December 2010 in the following;

“After hearing both parties, including family members from both litigants, it has been agreed that the applicant be allowed the use of the matrimonial house for a period of one year while she builds herself a homestead in the rural home or acquires alternate accommodation as the urban matrimonial home should now be shared between the applicant and respondent. The sharing ratio would be two fifths and three fifths. The applicant (Essie Ncube) gets two fifths whereas the respondent (Rhoda Ngwenya) gets three fifths. This is an ex tempore ruling.”

Unfortunately, there is no record that the learned trial magistrate heard the parties as alleged in his ruling nor that the parties consented to the order that he made. The situation is made worse by the fact that the learned magistrate did not give reasons for arriving at a share of 40% to the appellant and 60% to the second respondent.

The failure to give reasons for the decision raises the possibility that the magistrate did not apply his mind to the case. There is always a need for judgments to be reasoned and for the reasons to be stated. Failure to give reasons is, in my view, a gross irregularity. This is particularly so in a case such as the present where the magistrate alleges that part of the order made was by consent and yet that consent is not on record. The judgment of the court a quo therefore cannot stand.

In the result, it is ordered that:

(1) The appeal succeeds to the extent that the judgment of the court a quo is set aside.

(2) The matter is hereby remitted to the Magistratse Court for a trial de novo before a different magistrate.

(3) Each party shall bear its own costs.

The applicant in this matter was seeking for an order in the following terms -

“It is ordered that:

(a) Applicant's late filing of this review application be condoned;

(b) On review, the judgment of the Provincial Magistrate under case CC383/94 (local courts) is quashed and rescinded and in its place, an order be made referring the case to be heard de novo before a different provincial magistrate;

Alternatively to (b) above

(c) The court proceedings of the provincial magistrate court (local courts) under case CC383/94 declared a nullity and the matter be referred to be heard de novo before a different magistrate; and

(d) First and second respondents pay costs of this application, only if they oppose his (sic) application.”

This judgment relates to an application for condonation for the late filing of an application for review. The delay is extraordinary inordinate in that it is a delay of some twelve (12) years.

Her reason for not filing the application timeously was that she had only allegedly found out about the court order for the first time in September 2006. It was her story that she had waited from 1994 on the understanding that case number CC383/94 had been postponed sine die until the last child of their former marriage attained the age of eighteen (18) years. Thereafter, the matter relating to the division of their matrimonial property would be adjudicated upon. She, however, had to bring up the matter earlier because their last child was no longer being looked after by the first respondent. The minor child was, instead, being looked after by his sister who is another child of the parties.

Her explanation is simply untenable and unacceptable. She was represented by a very senior legal practitioner and so was the respondent. She wants the court to accept her suggestion that when the matter went to the Community Court the two legal practitioners went into the Presiding Officer's office; they emerged from there telling her that the matter had been postponed sine die but the respondent was ordered to pay her $10,000= as a small interim payment to her pending the final resolution of the issue relating to the share of the matrimonial house and other property – which was going to be done after the last child had turned eighteen (18) years. The sum of $10,000= was a lot of money in 1994 which cannot be described as a small amount paid as a stop-gap measure for her to put in her pocket so that she could start a small home-grown business. Her legal representative had no reason to mislead his own client. It is for the above reasons that I find her explanation untenable and unacceptable.

What then are her prospects of success on the merits? 

The parties' marriage was dissolved on 28 August 1992. At divorce she was awarded the following property:- a kitchen table and 4 chairs, stereo, double bed and mattress and half share kitchen utensils.  The defendant was ordered to buy her a two-plate electrical stove. The court made an award for her maintenance in the sum of $100= per month which was effective from June that year.

The defendant was awarded the custody of all the five children with the plaintiff having reasonable access. The reason for awarding the custody of the children to the defendant was because the plaintiff used to suffer bouts of mental challenges time and again.

Two years later, the applicant went back to court claiming “half share from sale of house, property and custody.” As can be seen from her claim she was, in addition to the claim of a half share of the proceeds from the sale of the matrimonial home, claiming, again, a share in the other property and custody of the children - matters which had already been adjudicated upon by the court at divorce. In its judgment on the claim for half share from the sale of the house the court recorded the following -

“Defendant to pay plaintiff $10,000=. Terms of payment to be arranged between their legal practitioners respectively. No order as to costs.”

It is clear from the above that the applicant got her share of the value of the house. She admits receiving the money but contended that she got the impression that the money was just to cushion her so that she could have some money in her pocket to start a business. Why would the respondent have given her such a large sum of money if that was not her half share of the house. Ten thousand dollars in 1994 was indeed a large sum of money. The respondent would not gratuitously part with such kind of money to assist a woman he had just divorced. The applicant's assertion is difficult to understand.

More difficult to follow is the suggestion that the two legal practitioners told the parties that the matter had been postponed sine die until the last child turned eighteen (18) years.

In the light of the foregoing I hold a view that the prospects of success on the merits are non-existent.

The applicant in this matter sought an order in the following terms:-

“It is ordered:

1. That the order of this honourable court made on the 4th day of December, 2008 be rescinded and the following substituted:

(a) A decree of divorce be and is hereby granted to the plaintiff.

(b) The parties proceed on trial of the division of matrimonial assets and ancillary relief.

(c) The parties be and are hereby permitted to make discovery in terms of the rules of court, with defendant having to make discovery within 5 days of the uplifting of this order.

(d) Henceforth the parties shall proceed in strict compliance with the rules.

2. The costs of this application shall be costs in the cause in the main action.”

The parties were husband and wife who married each other on 1 May 1996. When the parties developed irreconcilable differences the wife instituted divorce proceedings against her husband on 7 July 2006.  The husband entered appearance to defend and filed his plea. The husband failed to file discovery documents timeously resulting in the wife applying and was granted an order compelling him to do so within five (5) days failing which his defence would be struck off and she would be granted leave to set down the matter on the unopposed roll without notice to him. He was unable to comply and the matter was set down on the unopposed roll. A default judgment was granted on 4 December 2008. Paragraphs 4 and 5 of the court order reads as follows -

“4. Plaintiff shall pay to the defendant the sum of $11, 000,000,000,000= (eleven trillion dollars) being his 20% share to Stand Number 10449 Bulawayo Township also known as 29 Heythrop Road, Montrose, Bulawayo within 30 days of the granting of this order.

5. Plaintiff be and is hereby granted ownership of Stand Number 29 Heythrop Road, Montrose, Bulawayo also known as Number 10449 Bulawayo Township and the defendant shall transfer the said property into plaintiff's name within 30 days of this order failure of which the Deputy Sheriff be and is hereby authorized to sign all relevant papers on defendant's behalf to effect the said transfer.”

The applicant did not file his application for rescission timeously. He applied for condonation for the late filing of that application for rescission. His application for condonation was contested by the respondent but was, nevertheless, granted. The full reasons are contained in judgment number HB36-10.

During the subsistence of their marriage, the parties bought a house known as 29 Heythrop Road, Montrose, Bulawayo which they registered in their joint names. Ex facie they own the house in equal shares. Both parties sold their respective properties which they owned before they got married. The wife sold her flat while the husband sold his house in Nketa Township Bulawayo. Each party claimed that the proceeds from the sale of his or her property were channelled towards the purchase of the house.

The wife, however, would want the court to believe that only the proceeds from the sale of her flat were used to purchase the house. It is her word against that of her husband. If that was the case, one wonders why the parties registered the house in their joint names.

The wife also alleged that part of the money used to purchase the house came from monthly deductions made from her salary. She therefore felt that it was just and equitable to award her 80% of the market value of the said house while her husband got 20%. The husband on the other hand contended that a 50-50 share would be just and equitable.

On the above facts, it seems to me that gross injustice would result if the parties are not made to prove their respective cases in court.

In respect of the default judgment, I held the view that the applicant was not in willful default. He had always wanted to assert his rights but was let down by his legal practitioners who failed to file discovery documents timeously.

This court was advised that the parties were, in fact, negotiating an out of court just and equitable settlement which was about to be completed. The court was further advised that the wife had not even paid the 11 trillion dollars which was equivalent to 20% of the market value of the house.

The applicant in this matter was seeking the rescission of this court's judgment granted on 19 November, 2009 under case number HC274/09. Further, she sought leave of the court to file her opposing papers within five (5) days of the order being granted. If the first respondent opposed the application she would be liable to pay costs of suit.

The judgment she sought to have rescinded was in the following terms:-

“It is ordered that:-

(a) The affidavit dated 12 August, 2009 filed by the first respondent with the 2nd respondent be and is hereby declared to be invalid and of no force and effect;

(b) The Last Will and Testament of the late Dickson Filson Goni dated 14 June, 2004, be and is hereby declared to be valid.

(c) 1st respondent and all those who claim occupation through her be and are hereby ordered to vacate House Number 3179 Magwegwe North, Bulawayo within 7 days of service of this order;

(d) Should 1st respondent and all those who claim occupation through her fail to comply with paragraph

(c) above, the Deputy Sheriff, Bulawayo or his lawful deputy be and is hereby authorized to evict them;

(e) 1st respondent pays costs of suit.”

Zanele Sibanda was the executrix of the estate of the late Dickson Filson Goni. She instituted proceedings to evict the present applicant from House Number 3179 Magwegwe North, Bulawayo. The application was served on the applicant personally on 26 October 2009. The Deputy Sheriff explained to her that if she intended to oppose the application she would have to file her opposing papers within ten (10) days as failure to do so would result in the application being set down for hearing without further notice to her and the matter would be dealt with as an unopposed application.

She failed to do so within the ten (10) days until the application was set down on the unopposed roll. She failed to so with the full knowledge of the consequences for such failure. Her explanation for the failure was that she had been looking for a legal practitioner to represent her.

The explanation is unacceptable in the light of what she had said in an affidavit she had filed two months before she was served with the application. She stated in an affidavit filed on 12 August 2009 that she had been seeking for the services of a legal practitioner at that stage. It therefore cannot be true to suggest that she started looking for a lawyer after she had been served with the court application. She was clearly in willful default since she deliberately failed to file her opposing papers and only did so when her eviction was imminent. Her suggestion that she was not aware of the time limit is untenable because the Deputy Sheriff advised her of the same.

Having found that she was in willful default the next issue I have to consider is whether or not she had a defence to the executrix's claim to evict her from the property. She stated that the deceased was her maternal uncle and she used to live with him at the said house and was claiming a usufruct to the house.

However, papers filed of record reveal that she never lived at the house during the deceased's lifetime.  She only went to stay at the house after he had passed on. This she did by arranging with Kessie Sibanda who, at that stage, was in charge of the property. Kessie Sibanda was about to put some tenants into the house when the applicant pleaded with her to allow her to occupy the house.

Further, the applicant attended an edict meeting at the Master's Office. She never raised the question of her right to a usufruct of the house.

The applicant alleged that before his death, the deceased held a meeting with her, and Kessie Sibanda and four other people whereat he declared that she would remain in the house and raise her children therein and did not want her children to suffer. She said she did not remember the date of the alleged meeting. Kessie Sibanda on the other hand denied that any such meeting ever took place. She emphasized that the applicant never lived at the house during the deceased's lifetime. The deceased used to stay with his tenants. He never gave a usufruct to the applicant.

On 27 August 2007, one Fefa Michael Moyo – who was being represented by his wife Ruth Nyathi – the applicant, entered into a Memorandum of Agreement of cession with the first respondent Hilda Mhlanga wherein she bought the rights, title and interests of Fefa Michael Moyo in the property known as Stand 3174 Nkulumane, Bulawayo.

According to the Memorandum of Agreement, Ruth Nyathi derived the authority to represent her husband through a general power of attorney granted to her by Fefa Michael Moyo on 28 April 2000.

The purchase price was $1.5 million which was paid in full by a cash payment when the Agreement was signed.

In terms of the Memorandum of Agreement, the seller was supposed to cede his rights, title and interest upon signing of the Agreement. He was also supposed to give vacant possession of the property within three (3) months of the signing of the Agreement, which was by 1 December 2007.

The seller failed to honour his side of the agreement whereupon the buyer i.e. Hilda Mhlanga sought and was granted an order on 27 March 2008 against Fefa Michael Moyo. He was ordered and directed to proceed to the Housing Office at Nkulumane within five days of service of the order and sign all necessary papers to cede his rights, title and interest in the said property to Hilda Mhlanga. In the event of him failing to do so the Deputy Sheriff, or her lawful assistant, was ordered and directed to do so. Fefa Michael Moyo and all those claiming through him were evicted from the said property. An award of costs on an attorney and client scale was made against him.

The judgment was granted by default.

When notice to evict Fefa Michael Moyo and all those occupying the property through him was issued Ruth Nyathi applied for, and was granted, a provisional order on 24 July 2008 stopping her ejectment from the property.

On 14 August 2008, she filed a court application seeking condonation for the late noting of an application for rescission of the default judgment granted on 27 March 2008 under HC300/08 and its rescission. She sought, in addition, leave to file opposing papers in respect of that case within 10 days of granting of this order.

Hilda Mhlanga, through her legal representative, raised a point in limine pointing out that Ruth Nyathi had no locus standi to file both the urgent application and the court application.

Firstly, when she entered into the Memorandum of Agreement of Sale she represented her husband, Fefa Michael Moyo, by power of attorney granted to her by him. She did not get authority to institute proceedings on her own behalf.  She was not a party to the proceedings in case HC300/08 wherein Fefa Michael Moyo was ordered and directed to sign all the necessary papers for the cession of his rights, title and interest in the said property. She, therefore, could not seek the rescission of a judgment to which she is not party. Order 9 Rule 63 of the High Court Rules only relates to a party against whom judgment has been granted in default. It states:

“A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.”

The provisions of Order 49 Rule 449(1) of the Rules of Court would also not avail her either. The provisions would only avail a party affected by a judgment to seek its correction, rescission or variation where:-

(a) The judgment was erroneously sought or erroneously granted in the absence of such party; or

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

(c) It was granted as the result of a mistake common to the parties.

The judgment, in casu, was neither granted no sought in error. It is a clear judgment with no error, omission or ambiguity. It was not granted as a result of a mistake common to the parties.

Further, Ruth Nyathi claims occupation through her husband not through her own right. It is, therefore, Fefa Michael Moyo alone who can institute proceedings against his eviction from the property. She could only institute proceedings as Fefa Michael Moyo's agent - which is not the case here. Consequently, she lacks the locus standi to institute these proceedings.

Her case is equally devoid of any merit. Firstly, she entered into a Memorandum of Agreement of Sale of the property as an agent of her husband using a power of attorney and received the full purchase price.  She now turns round that she had no authority to sell the property and alleges that the power of attorney was a forgery. It must have been forged by someone else and was in fact not granted to her by her husband.

She adduced no evidence from her husband to support her story.

On the other hand, Hilda Mhlanga filed two affidavits from one Phanuel Pfende and Dick Mbulaye who actually witnessed Ruth Nyathi producing the power of attorney and was handed a sum of R48,000=.  She also alleged that she repaid the purchase price through one Mr Ncube whom she denied was her agent. The evidence, on the papers filed of record, clearly shows that he was her agent. She alleged that she had received R47,000= instead of R48,000=. The evidence of Phanuel Pfende and Dick Mbulaye is that she received R48,000=.

In the light of the foregoing I would issue the following order. It is ordered that:-

(1) The applicant in case number HC1617/08 be and is hereby dismissed with costs on an attorney and client scale; and

As stated in Mandava v Chasweka HH42-08 (as yet unreported)…,;

“All Magistrates' Courts in this country are formal courts whose proceedings are governed by a set of rules and established procedures.

It is trite that the pre-setting of rules of procedure is, to date, the widely accepted manner of avoiding arbitrariness and ensuring fairness in the airing of disputes by litigants. Rules of Court are framed for a purpose and any procedure done outside the Rules is susceptible of being set aside as being unprocedural.”

On the 3^rd September 2010, I heard this application and delivered an ex tempore judgment and thereafter asked any of the parties to request for written reasons should they want to. Counsel for the respondent has so requested and these are they.

This is an application seeking the eviction of the respondent.

The applicant and the respondent are related. The respondent is the applicant's aunt as she is the applicant's mother's sister. The applicant's mother is now deceased. Before she died she entered into an Agreement of Sale between herself and one Jacob Phosa over Stand Number 259 Nketa 6, Bulawayo.  This property was transferred and registered into the applicant's name in accordance with the Bulawayo City Council's requirements.

It is her averment that her mother passed on in 2002. From the time the property was purchased, the respondent was staying in the said property. After her mother's death, the respondent confiscated both her mother's and father's death certificates and has not returned them ever since. In addition, the respondent has refused to vacate the property in question.

The said property is registered in her name, she therefore has a real right over it.

The respondent's argument is that in as much as she does not dispute that the property was registered under the applicant's name and her name appears as a witness, the correct position is that it was an arrangement between herself and the applicant's mother (during her lifetime) that their names appear as such. Other than her mere say-so, there is no other shred of evidence to support her. If her name appears as a witness, I do not see how it can be understood in any other way other than what the Agreement of Sale was between her late sister and Jacob Phosa. She has no reasonable explanation why she was not recorded as co-purchaser. Further, there is no document to show that both the applicant's mother and herself entered into some arrangement with regards to the purchase of this house or any other future house. In the absence of any evidence to support her, I have no alternative but to reject her position as untruthful.

In her opposing affidavit, she stated that there were two other applications pending before this court.  Upon perusal, and with the consent of her legal practitioner…., these cases were disposed of by case no. HC1454/08. What is more disturbing is that counsel for the applicant advised the court, that, in fact, counsel for the respondent had advised her that the reason why the respondent opposed this application was to for her to buy time in order to build her own house then she would thereafter abandon her defence. Counsel for the respondent indeed admitted having stated so. What is worrying is that despite these utterances, he still persisted before me that the respondent had a bona fide defence to the applicant's claim. This type of conduct by a legal practitioner is misleading and it borders on abuse of the court process which these courts cannot tolerate. A legal practitioner is supposed to desist from conduct which is unbecoming and unworthy. Accordingly counsel for the respondent is strongly warned to desist from such conduct in future.

It is clear in my mind that the applicant has made a good case for herself and the respondent's argument is devoid of any merit and is accordingly dismissed. The following order therefore is made:

1. Respondent and all those claiming occupation of Stand Number 259 Nketa 6, Bulawayo through her be and are hereby ordered and directed to vacate the same within 24 hours after service on them of this court order.

2. Failure by respondent to comply with (one) above, the Deputy Sheriff be and is hereby ordered and directed to evict whoever will be in occupation of 259 Nketa 6, Bulawayo with the assistance of the Zimbabwe Republic Police.

I heard the matter on an urgent basis on 25 April 2013.

In considering sentence, the magistrate converted the United States Dollars to South African rands and came up with a total of ZAR12,000= as the value of the prejudice. It is not clear why he saw it fit to make the conversion, which must have been at a rate of 1 US$ to 10 rands.

When counsel for the accused person (she had been unrepresented at the trial) perused the court record for purposes of preparing submissions for review, there were no reasons for sentence, a point that he took up in his submissions. The matter was referred back to the magistrate for his response to those submissions. His response reads in part as follows:

''Reasons for sentence were given ex tempo (sic) in court in the presence of accused person during the sentence. It could be the legal practitioner has (sic) sight of the record before the trial magistrate had placed the same in the record.''

Counsel for the accused has commented as follows:

''When counsel went to look for the record a considerable time, about two weeks, had elapsed after the passing of sentence. At that time, a review cover had been completed and the record, according to the Clerk of Court, was ready for dispatch to the Criminal Registrar for his Lordship's attention. It was dispatched on 27 January 2010, sentence having been passed on the 13^th January. One has difficulty in understanding how a judicial officer could remember, some two weeks later, what he had said orally without writing in open court. One should be forgiven for taking the view that the learned trial magistrate adopted the reasoning process of Shakespear's characters - starting with the conclusion and later going back to justify it…,. Had his worship not adopted the wrong reasoning process, he would probably not have misdirected himself on sentence, for misdirect himself he did, by exaggerating the gravity of the offence.''

It is a cardinal principle of our criminal justice system that before assessing an appropriate sentence a judicial officer must seriously engage in a pre-sentencing inquiry in order to gather as much information as possible to enable him or her to humanely and meaningfully assess sentence.  Sentencing cannot be left to the caprices and instincts of the judicial officer. A thorough investigation should be carried out by the judicial officer before arriving at an appropriate sentence.

Where the judicial officer gives an ex tempore judgment with reasons for sentence contained in his head, only to be inserted in the court record much later, he runs the risk of someone concluding that he did not apply his mind to the case at hand. Indeed, it is a misdirection for the judicial officer not to record the reasons for sentence, a misdirection which entitles the reviewing judge to tamper with the sentence.

I agree with counsel for the accused that the magistrate may have come up with reasons which were added on long after the sentence simply to justify the sentence he had already imposed. I can assign no other reason for the fact that at some stage after sentence the reasons for sentence were missing and he ''placed'' them in the record later.

This is an application for rescission of a judgment granted to Barbara Murasiranwa on 16 October 2008 wherein she was declared the owner of Stand Number 4935 Chinotimba Township, Victoria Falls. The respondents in that case were directed to do all things necessary to transfer Stand Number 4935, Chinotimba Township, Victoria Falls into the name of Barbara Murasiranwa within 60 days of the court order.

The circumstances giving rise to this matter are briefly these:

On 6 October 1999, the applicant, Alfred Mupfumbatwa, sold the property at the centre of this dispute to Edgar Mbwembwe, the second respondent. A dispute relating to their Agreement of Sale ensued resulting in Alfred Mupfumbatwa instituting proceedings against Edgar Mbwembwe under HC1083/02. He went on to apply for summary judgment which he subsequently abandoned by withdrawing it. He made no further claim against Edgar Mbwembwe. Following that withdrawal, Edgar Mbwembwe sold the property to Barbra Murasiranwa in 2001. In 2008, which was 8 years later, Barbara Murasiranwa filed an application under case number HC16/08 seeking an order for transfer of the property to her name - which order was granted on 16 October 2008. It was then that Alfred Mupfumbatwa challenged the application on the basis that he had cancelled the agreement between himself and Edgar Mbwembwe.

Alfred Mupfumbatwa's claim against Edgar Mbwembwe has been prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11]. The matter between the two is, therefore, non-existent. Alfred Mupfumbatwa's rights were prescribed by operation of law and are non-existent. He cannot try to assert his non-existent rights against Barbara Murasiranwa either. The explanation for failing to file the application timeously is also not convincing. I am unable to accept it.

The first respondent, on the other hand, objected in limine to the application on the basis that it was filed out of time. The first respondent contended that the arbitral award was ready for collection by the parties on 25 February 2011 when a letter was addressed to the applicant's legal practitioners by the Secretary to the Commercial Arbitration Centre advising them that the award was ready for collection upon payment of the fee stated in the letter. The applicant did not attend to collect the award as advised. The award was subsequently delivered to the applicant's legal practitioners on 14 March 2011 under cover of a letter dated on the same date.

Article 34(3) of the Arbitration Act [Chapter 7:15] provides as follows:

“An application for setting aside may not be made after three months have elapsed from the date on which the party making the application had received the award or, if a request had been made under Article 33, from the date on which that request had been disposed of by the arbitral tribunal.”

The above provision shows that the period of three months is reckoned from the date that a party wishing to apply for the setting aside of an arbitral award received the award.

Counsel for the first respondent submitted that the date on which the award was made available to the parties must be taken as the date on which the parties received the award. In this instance, that date would be the 25^th of February 2011 when the applicant was notified that the award had been completed and was available for collection.

According to the Longman Dictionary of Contemporary English, 'receive' means “to get (something given or sent to one).” The Oxford Advanced Learners' Dictionary explains the meaning of the word 'receive' as follows: “to get or accept sth that is sent or given to you.” The word 'received' to me means that the award must have been sent or delivered to the recipient. In this case, there was an invitation to collect the award. Until the award was delivered to or collected by the applicant one cannot say that the applicant had received it. The letter of the 25^th February 2011 does not amount to traditio longa manu as submitted by counsel for the first respondent. That letter does not amount to a pointing out (with the long hand) of the item to be delivered. Further, the nature of the thing, the award, is such that the court would be most reluctant to extend that form of delivery to it as it could be easily handled and physically given to the applicant, as what eventually happened on 14 March 2011. See Groenewald v Van der Merwe 1917 AD 233…,.; Mankowitz v Loewenthal 1982 (3) SA 758 (A)…,. The award was, therefore, received by the applicant on 14 March 2011 and not on 25 February 2011. The application was, therefore, filed timeously. Compare Mtetwa & Anor v Mupamhadzi 2007 (1) ZLR 253 (S).

On that account, the objection in limine fails.

The applicant sought an order nullifying the sale of a certain vehicle by the first respondent to the second respondent. At the end of the hearing I granted the order sought in terms of the draft. The order read as follows:

“1. The agreement of sale by and between the 1^st and 2^nd Respondents in respect of the motor vehicle Nissan March ACP 3268 be and is hereby declared unlawful.

2. Applicant be and is hereby declared the lawful owner of the Nissan March ACP 3268.

3. Respondents jointly and severally shall pay costs of suit.” 

I gave the reasons for my decision ex tempore. However, the second respondent has now asked for them in writing.

Here they are.

In December 2012, the first respondent purported to sell the vehicle in question…, to the second respondent. Apparently, it had been a swap deal. For the purchase price, the second respondent had surrendered his own vehicle, also a Nissan March, and had topped it up with cash. At the hearing, there was a conflict as to how exactly the sale had been arranged and what exactly had been the agreed purchase price. But it was common cause that the sale vehicle had belonged to the applicant.

At the time of the purported sale, the applicant had been in Kariba. The sale vehicle had been in Harare. The respondents had also been in Harare. The first respondent had contacted the applicant by phone that he had found a buyer for the sale vehicle. The applicant had arranged with his sister to make the sale vehicle available for inspection by the potential buyer. The buyer was the second respondent. The next thing was that the first respondent had sold the vehicle to the second respondent. The sale document was a crude Agreement in long hand on Kingstons Limited's stationery. It read as follows:

“I, RUZVIDZO KUDZAI, ID 63-1035356 V24, residing at Glennorah, do hereby solemnly and sincerely swear/declare the following:-Sold my Nissan March Reg no. ACP 3268 as an swop and top with a Nissan March Reg ABY 5930 with cash top of USD800 paid USD600 Balance of USD200 to be paid on or before the 15^th of December of 2012.”

The document was signed by the second respondent as “BUYER”; the first respondent as “SELLER” and by two other persons as witnesses.

The first respondent did not file any opposing papers.

The second respondent, through his legal practitioners, who later renounced agency, did. However, almost all the averments in the second respondent's opposing affidavit were inadmissible hearsay. He alleged he had been aware that the applicant had been communicating with the first respondent. He referred to a certain phone text message allegedly from the applicant to the first respondent which he said had been shown to the criminal court. Apparently, the matter had been to the Criminal Court at the instance of the applicant. He had reported a case of theft of the sale vehicle against the first respondent. However, it seems the first respondent not been convicted. It also appeared that it was the applicant who had ended up paying a deposit fine to the police for a false report. The applicant claimed he had been coerced to pay the fine. He also claimed that he had filed a complaint against the conduct of the police. However, I found none of these details relevant.

The major ground of opposition by the second respondent to the relief sought had been that the applicant had legitimately sold the vehicle to him through the first respondent as his agent. He claimed it was only because the applicant had been unhappy with the quantum of the cash top up that the second respondent had paid that he was now reneging on the Agreement. The applicant had allegedly wanted US1,000=, the second respondent averred. But he had refused to pay such an exorbitant amount. He had agreed to only US800= which he had paid. The second respondent also claimed that the applicant had felt let down by his agent, the first respondent, in that he had demanded an amount of commission which the applicant had felt had been exorbitant and unjustified.

Given what was common cause, namely, that the sale vehicle had belonged to the applicant; given that the purported Sale Agreement had patently been false and therefore a nullity, and given that the transfer of possession of the vehicle to the second respondent had been predicated on such a nullity I considered that the onus to prove a genuine sale of the vehicle had lain on the second respondent. I considered that the second respondent had come nowhere near discharging that onus.

The second respondent's affidavit had essentially been hearsay testimony. There had been no opposition from the first respondent who had been central to the whole dispute.

At the conclusion of the hearing, I gave an ex tempore judgement.

The respondents have appealed against the judgment and require written reasons. These are they.

After hearing submissions from both parties, I postponed the case to 18 July 2014 when I gave an ex tempo judgment based on the notes for judgment I had recorded in my notebook in which I dismissed the applicant's application with no order as to costs.

It was argued that the manner in which the eviction order was framed did not put the appellant at risk of being evicted at the instance of the respondent, a factor which appears to have escaped the notice of the learned judge. An order for the eviction of African Medical Investments Plc would not disturb the lawful occupation of the premises by the appellant as such order is not aimed at the latter.

I agree.

This is because there was no allegation that it had been the appellant that was responsible for the alleged acts of spoliation being complained of.

It was stated by the court a quo that the identity of the property had never been in issue and that it was clear that all the parties were aware that the property being referred to was No.15 Lanark Rd.

I am not convinced that this is a correct interpretation of the order from the Magistrates Court. The order did not mention the premises from which the respondent sought that African Medical Investments Plc should be evicted. The order also sought the eviction of officials without specifying the names of which officials it was seeking to be evicted.

An order must be framed in such a manner as to leave no doubt in the minds of any party to the dispute as to its meaning, effect and application. It should not be vague or ambiguous. It must be clear and precise.

In chambers in terms of Rule 5 of the Supreme Court Rules.

This is an application filed in terms of Rule 31(2) of the Supreme Court Rules.

On 9 of December 2013, and upon reading documents filed of record, I dismissed the application with no order as to costs. No opposing papers were filed by the respondent.

The applicant has requested that I furnish him with reasons for the judgment, and these are provided herein.

This is an appeal against the decision of the High Court granting summary judgment against the appellant in the sum of US$8,330,470=52 together with interest at 2.5% per annum above the prime overdraft Bank rate and costs of suit.

The claim against the appellant arose from a Service Provider Agreement concluded between the parties on 10 March 2006 (the Agreement). The Agreement required the appellant to pay the sums due thereunder within thirty days of receiving the respondent's invoices.

It is common cause that the appellant owed the respondent the outstanding amount claimed as at 30 September 2010.

The respondent issued summons on 16 November 2010, and, following the appellant's appearance to defend, applied for summary judgement on 14 February 2011.

The court a quo held that the respondent's claim was unimpeachable and that the appellant had no plausible defences to the claim. In particular, the court found that there was no supervening impossibility due to the currency regime changeover between January and March 2009, entailing any objective impossibility of recovering debts from the appellant's customers. Additionally, there was no condition precedent in the Agreement that those customers should first pay the appellant before it became obliged to pay the respondent. Lastly, there was no principal and agent relationship between the parties to preclude the recovery of payments from the appellant upon presentation of the respondent's invoices.

The grounds of appeal herein arise from the defences raised in the High Court, viz: supervening impossibility of performance, recovery from customers as a condition precedent for payment, and the existence of a principal and agent relationship between the parties.

In essence, the question to be determined is whether the learned judge was correct in holding that the respondent's claim was unassailable and that the appellant had no bona fide defences to that claim.

In addition, the appellant's heads of argument raise a further ground of appeal not pleaded in its Notice of Appeal. It is argued that the order granted by the court a quo is vague as it does not specify the applicable rate of interest and the dates when the amounts due accrued interest....,.

VAGUENESS OF COURT ORDER

The court a quo granted summary judgment as prayed for in terms of the draft order. The latter is regrettably terse and simply orders that summary judgement be entered in terms of the summons.

In the summons, the respondent's claim is for payment of the sum of US$8,330,470=52 with:

”Interest thereon at a rate of 2.5% per annum above the prime overdraft rate of the Standard Chartered Bank of Zimbabwe, from the date each payment was due to the date of payment.”

Counsel for the appellant contends that this part of the court order is vague and unclear as regards the rates of interest applicable and their respective dates of application.

As I have already indicated, this is not a ground of appeal that was raised in the notice of appeal. Nevertheless, it is a point of law that can be raised at any stage of the proceedings, provided that the other party is not thereby prejudiced.

Counsel for the respondent accepts that it would not be improper or prejudicial to the respondent for the point to be addressed and determined at this stage.

In my view, there is nothing vague or unclear in the court order as read with the summons.

The applicable rates of interest are undoubtedly available from the Bank cited and the dates from which those rates apply will be apparent from the relevant tax invoices presented by the respondent to the appellant.

In any event, this is an issue that should most appropriately be agreed between the parties themselves, or, failing such agreement, be referred to the court a quo for determination and quantification.

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:

“IT IS ORDERED:

1. The appeal be and is hereby allowed.

2. There shall be no order as to costs.

3. The judgment of the Labour Court, in cases No. LC/URG/MT/25/08 and LC/MT/37/08 be and is hereby set aside and substituted with the following:

'(i) The urgent chamber application by the respondents be and is hereby struck off the roll.

(ii) The urgent chamber application by the applicants be and is hereby struck off the roll.

(iii) The retrenchment agreement entered into between the parties and approved by the Retrenchment Board be and is hereby upheld.

(iv) There shall be no order as to costs.'”

This judgment contains the reasons for the order.

In a judgment handed down on 16 April 2014, the High Court made an order setting aside the decision of the appellant refusing the request made by the respondent for leave to institute civil proceedings against SMM Holdings (Pvt) Ltd.

The court further granted leave to the respondent to institute the proceedings and ordered the appellant to pay the costs of the application.

This appeal is against that judgment.

FACTUAL BACKGROUND

SMM Holdings (Pvt) Ltd (“SMM”) is a company under a reconstruction order issued by the Minister of Justice, Legal & Parliamentary Affairs in terms of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] (“the Reconstruction Act”). The appellant was appointed Administrator of SMM Holdings (Pvt) Ltd in September 2004. Upon such appointment, the appellant was conferred, by law, with the power, inter alia, to raise money, in order to turn around the fortunes of the company.

In 2008 and 2009, the appellant sought loans on behalf of SMM Holdings (Pvt) Ltd in order to purchase spares and other consumables from various South African suppliers. The spares and consumables were meant to capacitate Shabani Mine so that its mining operations could continue. As at 31 December 2010, the total amount outstanding on the two loans was US$3,635,158=31 which amount the appellant acknowledged was due and owing.

Efforts by the respondent to recover the debt were in vain.

Accordingly, in June 2012, the respondent made a written request to the appellant to grant it leave to institute proceedings against SMM Holdings (Pvt) Ltd in terms of section 6 of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27].

On 28 August 2012, the appellant, through his legal practitioners, declined to give such leave.

Consequently, the respondent filed a court application, in November 2012, seeking an order setting aside the decision of the appellant refusing it leave to institute civil proceedings and for the court itself to grant such leave.

PROCEEDINGS IN THE HIGH COURT

The application before the High Court was made in terms of section 4 of the Administrative Justice Act [Chapter 10:28].

The basis of the application was that the decision of the appellant, refusing leave to institute proceedings, was contrary to the intention of the legislature, grossly unreasonable, made in bad faith and constituted an abuse of authority; that it was an unlawful deprivation of the right of the respondent to obtain judgment in a court of competent jurisdiction; that it was not a fair decision, regard being had to the fact that the debt in question was incurred during the administration period; that there was no rational basis for the decision, and, lastly, that the appellant had failed to comply with his duty and obligations as an administrative authority as provided for in section 3 of the Administrative Justice Act [Chapter 10:28].

In his opposing papers, the appellant justified the refusal of the grant of leave on the basis that there was need, in the short term period, to preserve the assets of the company pending its full recapitalisation and subsequent reopening of operations. He further averred that, were the respondent to obtain judgment against SMM Holdings (Pvt) Ltd and thereafter proceed to execute on that judgment, SMM Holdings (Pvt) Ltd would, in the result, have to be liquidated, thus negating the whole purpose of reconstruction.

In heads of argument filed by both parties, various issues were identified as requiring determination.

The appellant, inter alia, submitted that the application filed by the respondent was a review application.  He further submitted that, on the papers, the application did not comply with the requirements for review.  Indeed, the presiding judge, in his judgment, accepted that the issue that fell for determination, amongst others, was whether the application was properly before the court….,.

The court reached the conclusion that the decision to refuse leave was wrong, unfair and in breach of section 3 of the Administrative Justice Act [Chapter 10:28]. The court consequently set aside the decision.  The court considered it unnecessary to decide whether or not the decision refusing leave was grossly unreasonable “in the Wednesbury sense.” The court was also of the view that this was a proper case for it to grant the leave which the appellant had refused. Consequently, the court granted such leave in paragraph [2] of the operative part of its judgment.

APPELLANT'S SUBMISSIONS ON APPEAL

In submissions before this Court, the appellant has argued that the court a quo erred in failing to determine the question whether the application filed by the respondent was properly before it, and, in particular, whether the application complied with the requirements of Order 33 of the Rules of the High Court. He further submitted that the fact that the court a quo proceeded to deal with the merits of the application suggests a tacit acceptance by the court that the matter was properly before it. The absence of reasons for such tacit acceptance and the failure by the court to expressly deal with the issue constitute a serious misdirection. He has further submitted that, on the authority of Minister of Local Government, Rural and Urban Development & Anor v Silas Machetu & 3 Ors SC34-12, there is little doubt this was an application for review. The present application, having been filed some three months after the making of the decision, was therefore not properly before the court.

The appellant also submitted that the refusal to grant leave was not unreasonable, unfair or wrong. Lastly, he submitted that, in terms of the Administrative Justice Act, it is not permissible for the court itself to substitute its own decision in place of that of the Administrator.

RESPONDENT'S SUBMISSIONS ON APPEAL

In submissions before us, the respondent has argued that the Administrative Justice Act, in effect, created a new jurisdiction not only in respect of the obligations of an administrative authority but also in respect of the manner in which challenges to such administrative authority could be made. In the absence of a provision in the Act requiring applicants to comply with Order 33 of the High Court Rules, no obligation arises to comply with the various provisions under Order 33. To the contrary, it is the provisions of Order 32, and in particular Rule 226 of the High Court Rules, 1971, which are applicable.  Consequently, in the absence of any period stipulated by the Minister in terms of section 10(2)(b) of the Administrative Justice Act [Chapter 10:28], no time limits apply to applications in terms of section 4 of the Administrative Justice Act [Chapter 10:28]…,.

The respondent has further submitted that the central issue that fell for determination before the court a quo was whether the appellant, as an administrative authority, acted lawfully, reasonably and in a fair manner in declining to give the necessary leave for the institution of proceedings against SMM Holdings (Pvt) Ltd.  

On the facts, it is quite clear that the decision of the appellant was irrational and unreasonable.

The respondent has further argued that section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] is not valid in terms of the current Constitution, regard being had to the provisions of section 69 of the Constitution, which provide for the right of access to the court for the resolution of any dispute.

Lastly, the respondent has submitted that section 4 of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] cannot be interpreted as preventing the High Court, in an appropriate case, from substituting its own decision for that of the administrative authority.

Notwithstanding the fact that the propriety of the application had been put in issue, the court a quo, in its judgment, did not deal with the submission but took the view that the substantive issue falling for determination was the extent to which the respondent could exercise the discretion bestowed on him…,.

On the question whether the court a quo failed to resolve the issue raised by the appellant, namely, that the proceedings, being of the nature of a review, were subject to the provisions of Order 33 of the High Court Rules, the respondent has submitted that it is quite permissible for a court not to deal with each and every submission raised by the parties and instead confine itself only to those issues which are critical to its decision….,.

It is essential to deal, first, with the submission whether the court a quo erred in not dealing with the preliminary point taken by the appellant in the court a quo that the application before it, having been one of review, was not properly before it. That this submission was made by the appellant in argument before the court a quo is not in dispute. Indeed, in its judgment, the court a quo confirms that the appellant had argued that “the application failed to satisfy the requirements for review.”

Although it was alive to the fact that the appellant had raised this preliminary point, the court a quo said nothing further on the matter, and, instead, concluded that “aside from the constitutional point…, the substantive issue before [the court] was the extent to which the respondent could exercise the discretion bestowed on him by s 6(b) of the Reconstruction Act.”

I am inclined to agree with the respondent that, in proceeding to determine the substantive issue that fell for determination before it, the court must have tacitly accepted that the application was property before it.  Had the court concluded otherwise, it would not have proceeded to deal with the merits of the application.

In general, I agree with the respondent's submission that, in a case where a number of issues are raised, it is not always incumbent upon the court to deal with each and every issue raised in argument by the parties. It is also correct that a court may well take the view that, in view of its finding on a particular issue, it may not be necessary to deal with the remaining issues raised. However, this is subject to the rider that the issue that is determined in these circumstances must be one capable of finally disposing of the matter.

In the present case, the substantive issue that was determined by the court a quo did not dispose of the matter. The question still remained whether the application was, in the first instance, properly before the court. This was not an issue that the court a quo could ignore or wish away. The court was obliged to consider it and decide whether the matter was properly before it. It was, in short, improper for the court to proceed to determine the substantive factual and legal issues without first determining the propriety or otherwise of the application itself.

If the court, as it appears to have done, tacitly accepted that the matter was properly before it, then reasons for such tacit acceptance should have been given.

The position is well settled that a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised “unless the issue so determined can put the whole matter to rest” - Longman Zimbabwe (Pvt) Limited v Midzi & Ors 2008 (1) ZLR 198, 203 D (S).

The position is also settled that where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed, the failure to resolve the dispute or give reasons for a determination is a misdirecton, one that vitiates the order given at the end of the trial - Charles Kazingizi v Revesai Dzinoruma HH106-06; Muchapondwa v Madake & Ors 2006 (1) ZLR 196 D-G, 201 A (H); GMB v Muchero 2008 (1) ZLR 216, 221 C-D (S).

Although it is apparent in this case that the judge in the court a quo may have considered the question whether the matter was properly before him when he considered the merits, a large portion of those considerations remained stored in his mind instead of being committed to paper. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity - S v Makawa & Anor 1991 (1) ZLR 142.

Consequently, the failure by the court a quo to specifically determine the question whether or not the application was properly before it, its tacit acceptance that this was the position, and the consequent failure on its part to give reasons why it had proceeded to deal with the substantive issues in the light of the preliminary point taken, vitiated the proceedings.

In the light of the above conclusion, it becomes unnecessary to deal with the rest of the issues raised by the parties to this appeal.

DISPOSITION

In the circumstances, it seems to me that the most appropriate course would be for this matter to be remitted to the court a quo for a determination whether, in the first instance, the application was properly before it, and, if so, whether the decision of the appellant denying leave is, on the facts and the law, sustainable.

In the result, this court makes the following order:

1. The appeal is allowed with the costs of the appeal being in the cause with those in case no. HC13496/12.

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

I turn next to the question of sentence.

In passing sentence, the learned judge before whom the appellant, for purposes of having sentence passed, did not give reasons for the sentence meted out to the appellant. 

A failure to give reasons for sentence or an order is a gross irregularity and thus amounts to a misdirection. In S v Makawa 1991 (1) ZLR 142 (S) EBRAHIM JA stated…,:

“Although there are indications in this case that the magistrate may have considered the case, a large portion of those considerations remained stored in his mind instead of being committed to paper. In the circumstances, this amounts to an omission to consider and give reasons. There is a gross irregularity in the proceedings. See R v Jokonya 1964 RLR 236 (G); R v d'Enis 1966 RLR 457 (A); 1966 (4) SA 214 (RA); and Practice Note 4 of 1966 (Appellate Division) 1966 RLR 755.”

See also the remarks of GARWE JA in Gwaradzimba v C.J. Petron & Company (Pty) Ltd SC12-16.

This is a matter in which two separate appeals, involving the same parties and the same judgement appealed against, were consolidated for hearing and disposition. The appeals in question are under case nos. SC66/16 and SC80/16.

After hearing counsel in the matter, the Court delivered a unanimous ex tempore judgment disposing of both appeals.

Counsel for the appellant contended before us that the absence of reasons for the judgment constitute an irregularity such as to justify interference with the judgment of the court a quo by this court. 

I agree. 

In Muchapondwa v Madake & Ors 2006 (1) ZLR 196 (H)…, KARWI J said:

“The issue to be decided is whether or not an appeal is invalid if it is noted without the appellant having requested, in writing, and being furnished with the reasons for a judgment or order. I do not agree with the submission by Mr Magwaliba that such an appeal is a nullity. I equally do not agree with Mr Magwaliba's assertion that a judicial officer is not under obligation to provide reasons for his judgment or order. It is settled that:

'When a matter is opposed and the issues have been argued, it is unacceptable for a court to make an order without giving any reasons for it, since the litigants are entitled to be informed of the reasons for the decision.'”

See HERBSTEIN and VAN WINSEN, Civil Practice of the Supreme Court of South Africa, Vol 1 4ed…,.

The rationale for the above was set out in Botes & Another v Nedbank Ltd 1983 (30) SA 27 (A)…,.:

“The first is that the judge who heard the exception and application to strike out made orders dismissing the exception and allowing, in part, the motion to strike out without giving any reasons. In my view, this represents an unacceptable procedure. In a case such as this, where the matter is opposed and the issues have been argued, the litigants are entitled to be informed of the reasons for the judge's decision. Moreover, a reasoned judgment may well discourage an appeal by the loser. The failure to state reasons may have the opposite effect. In addition, should the matter be taken on appeal, as has happened in this case, the court of appeal has a similar interest in knowing why the judge who heard the matter made the order which he did.”

A court is obliged to give reasons for its judgment to inform the parties on its reasons for the decision. A failure to give reasons is an irregularity which has the effect of vitiating the proceedings. The Labour Court considered an application for leave to appeal against that judgment to this court. Notwithstanding its knowledge of the intent of the appellant to note the said appeal, the Labour Court has, to date, not provided reasons for its order. 

Counsel for the appellant submitted that in light of the irregularity, this court should exercise its powers of review in terms of section 25 of the Supreme Court Act [Chapter 7:13]. Section 25 of the Supreme Court Act [Chapter 7:13] reads:

“25 Review powers

(1) Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.

(2) The power, jurisdiction and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the Supreme Court or a judge of the Supreme Court, and provision may be made in Rules of Court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

Due to the irregularity, the appeal cannot be decided on its merits.

The absence of reasons makes the task of the court even more difficult as the reasons for the decision remained locked in the mind of the judicial officer.

See S v Makawa 1991 (1) ZLR 142 (S)…,.

In the exercise of its review powers, this court finds that it is in the interests of justice that the judgment be set aside….,.

I turn now to the substance of the appeal itself.

THE ISSUES RAISED AND THE DISPOSITION THEREOF

The sole ground of appeal complains that the granting of the amendment reflecting the appellant as the respondent to the dispute had the effect of turning the appellant, instead of PG Timbers, into the respondent's employer. In view of the finding of irregularity in the proceedings it is not intended to go into the merits of that submission. 

What is, however, of import is how the application came about.

In its judgment of 2 August 2013, the court a quo ordered that an application be made to rectify what the court termed was an irregularity in the manner in which the two entities had been cited. The said irregularity being referred to by the court arose as a result of a point in limine raised by the appellant on its improper citation on one of the documents constituting the notice of appeal. The learned judge did not determine the point in limine, choosing instead to order the respondents to amend their notice of appeal.

Two issues arise immediately.

(i) The first is that the court failed to deal with and determine an issue that had been raised before it.

The point in limine was to the effect that due to the irregularity in the citation of the respondent to the appeal, there was, in fact, no respondent before the court. The preliminary point raised was such that the court could not dispose of any issue in relation to the matter without making a finding on the point. The court could not simply wish it away as a non-issue. It had to make a determination. 

In my view, the failure to deal with an issue raised is an irregularity that can serve to vitiate the proceedings.

The position is settled that where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute.

The failure to resolve the dispute vitiates the order given at the end of the proceedings.

Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.

(ii) The second issue is that the court fashioned a remedy on behalf of one of the parties and ordered that party to take a procedural step which had neither been sought nor prayed for.

It was submitted that some of the individual applicants and other former owners or occupiers of acquired land have court orders issued by the Magistrates Courts and the High Court authorising their occupation of acquired land after the prescribed period.  

If such orders were issued, they would have the effect of authorising the doing of something that Parliament has decreed should not be done.  This Court, or any other court for that matter, has no jurisdiction to authorise the doing of that which Parliament has decreed would constitute a criminal offence. Put differently, a court of law cannot authorise an individual to commit a criminal offence.

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….,.

Whether or not the court a quo erred by not determining whether or not there were disputes of fact which could not be resolved through the application procedure?

The purpose of litigation is for the court to determine disputes placed before it by the parties. The court must therefore give reasons stating how it resolved all the disputes placed before it, unless the determination of one or some of the issues clearly renders the determination of one or other issues unnecessary.

The issue of whether or not there were disputes of fact was critical as to whether or not the respondent had used the correct procedure. It could have established that the application procedure was inappropriate. That, in turn, would have left the court a quo with the option of either dismissing the application or referring it to trial. There would, in either of the two options, have been no need to determine the other issues. Therefore, the issue of whether or not there were material disputes of fact should have been determined before the court could determine other issues. The court a quo therefore erred when it failed to determine this critical issue. In the case of Gwaradzimba v C. J. Petron and Company (Pvt) Ltd SC12-16 GARWE JA said:

“The position is well settled that a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised, 'unless the issue so determined can put the whole matter to rest' - Longman Zimbabwe (Pvt) Ltd v Midzi & Ors 2008 (1) 198, 203 D (S).

The position is also settled that where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed, the failure to resolve the dispute or give reasons for a determination is a misdirection; one that vitiates the order given at the end of the trial. Charles Kazingizi v Revesai Dzinoruma HH106-06; Muchapondwa v Madake & Ors 2006 (1) ZLR 196…,. D - G 201A (H); GMB v Muchero 2008 (1) ZLR 216 at 221 C-D (S).”

I therefore agree that the court a quo misdirected itself when it failed to determine the issue of whether or not there were material disputes of fact.

Lastly, comment is called for on the remark by the court a quo that the claim was founded on an employment dispute.

The appellant, as plaintiff, had predicated his cause of action on a stated or agreed amount. Once he failed to prove that the amounts were agreed, then that was the end of the matter. 

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list. Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017.

The appellant wrote to the Registrar requesting the reasons for the order. These are they.