Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me. The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares ...

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i) Firstly, whether the judgment by MAFUSIRE J gave Muir leave to defend the matter....,.

In dealing with the first point, it is important to determine whether Muir was served with the court application. There is a Return of Service which was rendered by the Deputy Sheriff which reflects that the court application was served at No. 98 Churchill Avenue, Gunhill, Harare. It was served by placing in a letter-box. The service was on behalf of the first respondent, the company and the second respondent - Muir. In terms of clause 9 of the agreement between Muir and the Gurupiras, Muir chose that address as her domicilium citandi.

It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (10) ZLR 226 (SC).

In casu, Muir has not placed any facts before this court, either in the application for rescission on in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect. All that Mr Stevenson could say was that he wondered why the application was not served on his law firm. The answer is to be found in clause 9 of the agreement. Service of the process other than as stipulated in the agreement would have fallen foul of that clause.

Having been served, and after the expiry of 10 days, Muir was therefore barred. This is provided for in Rule 233(2) of the High Court Rules, 1971. She did not approach the court to seek upliftment of the bar.

The fact that the company successfully sought rescission of the judgment does not assist her.

MAFUSIRE J was clear in his order. He gave the company leave to file its opposing papers. He did not relate to the position of Muir as she had not made an application for the order to be set aside. She cannot therefore cling to the judgment made in favour of the company and allege that it paved the way for her to file her papers in opposition.

MAFUSIRE J could not grant what had not been prayed for.

View Appeal
SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

Absent a prayer by a party claiming specific relief from the court, a court cannot be criticized for not having given an order in favour of such party.

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

This was an opposed court application that I heard on 16 September 2013. Soon after argument I issued the following order: “1. The Respondent's objections in limine are dismissed. 2. The Applicant's application to delete “(Private)” in the name of the Respondent [and] in its place to substitute “(Zimbabwe)” is granted. 3. It is hereby declared that the Applicant is ...

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH
Ruled By: MUREMBA J

On 16 February 2015 I delivered an ex tempore judgment in this matter dismissing this application with costs on a legal practitioner client scale. Now I have been asked for the written reasons thereof and these are they.

HHH177-12 : MUNYARADZI GWISAI and FIVE OTHERS vs THE STATE
Ruled By: MATHONSI J

This is an appeal against the decision of the Provincial Magistrate sitting at Harare delivered on 30 March 2012 in which he dismissed an application by the appellants for the suspension of their sentence of 12 months imprisonment or 420 hours of community service at institutions in Harare and Chinhoyi.

The appellants had approached the court a quo seeking that suspension pending an appeal which they noted to this court on 22 March 2012.

As stated, their application did not find favour with that court as a result of which they have approached this court as an Appeal Court….,.

Regarding the merits of the matter, the appellants have attacked the decision to dismiss their application on the grounds, inter alia, that the court a quo misdirected itself in dismissing the application without a finding that the appeal had no prospects of success at the Appellate Court.

It has been submitted, on behalf of the appellants, that the court a quo did not properly apply its mind to the application before it especially as it did not consider all the factors placed before it in that application including the prejudice likely to be visited upon the appellants if they perform community service before the appeal is determined given the obvious delays that occur.

On the other hand, the State is of the view that the appeal against both conviction and sentence is without merit, has no prospects of success whatsoever, and, for that reason, the appellants should be made to serve their sentences.

Counsel for the State relies on the authority of S v Kilpin 1978 RLR 282 (AD) where the Appeal Court pronounced…, as follows:

“The principles governing the grant of bail before conviction are entirely different from those governing the grant of bail after conviction and the difference is even more marked when the guilt of the accused is not in issue and the usual sentence for the offence is an effective prison sentence of substantial duration. It is wrong that a person who should properly be in gaol should be at large and nothing is more likely to encourage frivolous and vexatious appeals than the attitude adopted by the magistrate in the present case.”

In the present case, the application for a stay of sentence was made after the Notice of Appeal had been lodged and the court a quo had the benefit of that detailed appeal when considering the application. It also had the benefit of lengthy oral submissions made by both counsel. In fact, the submissions by counsel run into 10 pages of the transcribed record, from page 75 to 85.

It is therefore curious that the judgment of the court is spectacular by its brevity - it being only 16 lines of the record. It reads as follows:

“Right, listen to the ruling.

The court considered the submissions made by both counsels (sic), and, in applications of this nature, some of the factors to be considered are whether there are prospects of success on appeal and the likely delay before the appeal is heard.

The accused were convicted of contravening section 188 as read with section 36 of the Criminal Law (Codification and Reform) Act. The evidence analysed in the judgment revealed that the key State witness was present in the room and narrated all that transpired and this was further corroborated by the accused themselves during their defence cases. It must be reiterated again that the accused were not found guilty of watching a video footage but that the video was just played to arouse feelings of hostility amongst those who attended as analyzed in the judgment and the reasons for sentence.

The accused were found guilty after the State proved its case beyond a reasonable doubt. The essential elements of the offence were satisfied as clearly shown by the evidence on record. Hence, this court did not misdirected (sic) itself in any way by arriving at the verdict of guilty.

The application for the suspension of performing community service is hereby dismissed.

So, that is the ruling.”

This is the entire judgment of the court a quo which is now being challenged on appeal.

It is difficult to understand how anyone can attempt to defend this judgment. While the magistrate made reference to matters to be considered in an application of the nature before him, he did not even attempt to deal with them. The magistrate busied himself with a narrative of how he arrived at the verdict and the sentence at the expense of the relevant considerations.

The appellants had raised essentially three (3) issues in their application, namely:

1. That they have prospects of success on appeal for a variety of reasons contained in their notice of appeal.

At the risk of commenting on issues still to be placed before the Appeal Court, I may hazard an example; being the contested issue of whether their conduct, be it “watching” or “playing” a video, constituted an offence as defined in section 188 as read with section 36 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code). In my view, this is a critical issue which calls for interrogation by the Appellate Court.

2. That should they be made to commence performing community service they will suffer prejudice in the event that their appeal is successful as they would have served a substantial part of the sentence which may be overturned on appeal, and, yet, no prejudice will be suffered by the State if the sentence is suspended.

3. That there is no risk of abscondment given that they had piously complied with their bail conditions and attended court - even when they were facing more serious charges.

In my view, these are the issues which should have occupied the mind of the court a quo in considering the merits of the application. It did not. Instead, as stated by counsel for the appellants, the court pre-occupied itself with justifying its judgment.

This was a misdirection.

Indeed, there are no reasons for dismissing the application at all.

State counsel has conceded that the court a quo did not give reasons for dismissing the application, and, in a way, although with tounge in cheek, he does concede that the points raised by the appellants were not addressed at all. He has however asked me to reconsider the evidence which he says will persuade me to uphold the decision of the magistrate.

I had occasion, in the matter of S v Ndlovu and Anor HB90-11…, to comment on the failure by a magistrate to give reasons for a decision. In that matter, I stated, quoting S v Mapiye SC 214-88:

“It is therefore not easy to ignore the possibility that the magistrate did not apply her mind at all to the case before her. Courts have repeatedly stated the need for judgments to be reasoned and for those reasons to be stated. As stated in S v Mapiye SC214-88:

'To confirm the conviction on the second count, would, in my view, result in a failure of justice. The omission to consider and to give reasons for convicting the appellant on Count Two is fatal to the prosecution case. It is a gross irregularity. Appeals are argued and decided on the contents of a certified record of the trial proceedings. If those contents are stored in the mind of the trial magistrate, they are not enough.'

It is a gross irregularity for a magistrate to omit to give reasons, which reasons remain stored in his/her mind without being committed to paper.”

The decision of the court a quo, to the extent that it dealt with extraneous issues and contains no reasons for the result is impeachable. I am of the view that the court a quo addressed the wrong issues.

Having gone through the record, I am satisfied that the appellants raise pertinent legal arguments especially relating to the legality or otherwise of their actions. Their appeal has merit and is indeed arguable. I am also of the view that the points raised in support of the application for a stay are very compelling indeed. Clearly, they will suffer prejudice if they serve the sentence which might be overturned.

On the other hand, there is absolutely no prejudice that will be suffered by the State by the suspension of the sentence. The appellants have been shown to be committed to the finalization of the matter and cannot be said to be flight risks. Indeed, the State has not even attempted to argue along those lines.

I therefore come to the conclusion that the court a quo misdirected itself in dismissing the application which should have been granted.

In the result, I ordered that:

1. The appeal is hereby upheld.

2. The performance of community service by the appellants is hereby stayed/suspended pending the determination of the appeal in case number HCCA 248/12.

HH222-15 : ELIOT ROGERS vs PUWAYI CHIUTSI
Ruled By: MAFUSIRE J

But for the letter from the Registrar of this court asking for the reasons for my “judgment” because an appeal had been noted, I did not intend to write any judgment in this matter.

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

I dealt with this application on 19 February 2018. I delivered an ex tempore judgment in which I dismissed it with costs.

On 8 May 2018 the applicant addressed a letter to the High Court Registrar. It did so through its current legal practitioners. It requested for reasons for my decision. These are they…,.:

The applicant and the respondent appeared before the arbitrator, one C Mesikano, on 21 February 2013. He issued an arbitral award in favour of the applicant. He ordered the respondent to pay to the applicant the sum of $256,317.

The arbitral award gave birth to the current application. The applicant moved the court to register the same for purposes of enforcement. It advanced four reasons for the motion which it placed before the Court. These were that:

(a) The award was sounding in money;

(b) The amount awarded was within the monetary jurisdiction of the court;

(c) The award was certified in terms of Form LR9; and

(d) The applicants were a party to the arbitration award.

The respondent opposed the application. It raised two preliminary matters after which it dealt with the substance of the application. Its two in limine matters were that:

(i) HC3359/13, which the applicant filed on 3 May 2013, was pending at court; and

(ii) The cases of Ngonidzaishe Moliba and Julius Demo, who were managerial workers, were dealt with separately from that of Nelson Maurede and 16 others.

It stated, on the merits, that the parties did not agree on the quantum which the applicant sought to register. It submitted that the applicant misled the arbitrator on the mentioned issue. It said it registered its objection to the same and it urged the arbitrator to exercise his powers and correct the quantum so that it remained in sync with what it said was the correct position of the matter.

It submitted that it successfully applied for stay of execution of the arbitral award.

It stated, in its heads, that only Nelson Maurede withdrew his application for registration of the arbitral award under HC3359/13. It insisted that the other applicants did not. It said only fourteen (14) applicants were before the court.

It averred that Kelvin Makuva and Jonis Nyadzuwa, who passed on, were not before the court. It stated that there was no substitution of the dead persons. It said the court has not been told the amount which related to the two deceased persons.

It insisted that the arbitral award which did not identify the sixteen (16) others was invalid. It said there was no legal persona which answered to the name “Nelson Maurede and sixteen (16) others.” It submitted that the only person to whom the award related was Nelson Maurede. It averred that the award which was made against a non-existent entity was a nullity.

It moved the court to dismiss the application with costs.

Annexures D and E, which the respondent attached to its Notice of Opposition, are relevant.

The annexures are letters which it addressed to the learned arbitrator on 22 February 2013 and 20 March 2013. They state, in clear and unequivocal terms, that the respondent disagreed with the quantum which the applicant seeks to register.

The respondent did not hide its disagreement with the figure of $256,317. It copied the annexures to the applicant. The annexures state, in an undiluted manner, that what the arbitrator endorsed was the applicant's unilateral statement. One of the annexures urged the arbitrator to exercise his powers in terms of section 98(2) of the Labour Act as read with section 33 of the Arbitration Act and correct the figure of $256,317 which was, and is, the subject–matter of the parties dispute.

The applicant states, in response, that the respondent should refer the above mentioned matter to the arbitrator. It submits that it is not within the jurisdiction of the court to review the award.

Whilst the position which the applicant takes reflects the correct position of the law, it is not, at the same time, suggesting that the court which is faced with such a matter as the respondent raised should turn a blind eye to the same. It is not, in other words, moving the court to simply rubber stamp what it placed before it notwithstanding the unsatisfactory circumstances of the same.

Where, as in casu, parties are at cross purposes on the issue of the quantum which is sought to be registered and there is no evidence that their disagreement on the same was resolved, it is, in my view, ill-advised for the applicant to insist on registering the wrong quantum for purposes of enforcement.

The applicant knows, as much as I do, that, once registered, the order ceases to be that of the court a quo. It assumes the status of the order of this court. Its knowledge of that fact notwithstanding, it insists that the order should be registered in its uncorrected form.

That, with respect, increases litigation which clogs the court's roster unnecessarily.

It is, at any rate, not the function of the court to aid and abet disputes which parties place before it. Its sole function is to resolve such in the interests of justice.

It is, therefore, in the interests of justice that I took note of the parties' serious disagreement as to the issue of quantum which is sought to be registered and allowed them to resolve the same so that the agreed sum is placed before the court for registration.

The fact that the disputed quantum was adversely affected by the death of one Kelvin Makuva and one Jonis Nyadzuwa, whose estates remain un-joined to the application, adds another dimension to an already confused matter.

It is, in my view, pertinent for the parties to resolve their dispute at the appropriate forum before the applicant moves the court to register an arbitral award which is under such a serious challenge as the present award is. A fortiori when evidence filed of record points in the direction that the challenge which the respondent raised two years prior to the filing of the application remains un-addressed to date.

The applicant relied on the remarks which Bhunu J…, made in Ericson Mvududu v Agricultural & Development Authority HH286-11 wherein he spelt out three requirements which an applicant for registration of an arbitral award must satisfy for the award to be registered. The learned judge said:

“In order to qualify for registration, all what an applicant has to do is to satisfy the court that:

(i) He is a party to the arbitral proceedings;

(ii) The award relates to him;

(iii) The copy he is presenting for registration has been duly certified by the arbitrator in terms of subsection (13).”

The applicant's statement is that it satisfies the above-mentioned three requirements. It insists that the same must, therefore, be registered.

The award which is sought to be registered appears at page 20 of the record. It makes mention of Nelson Maurede only. It does not mention any other person apart from him. Those who are suing together with him are collectively described as “16 Others”. The names of the sixteen (16) remain unknown.

The absence of their names from the arbitral award dis-enables them from being parties to the arbitration proceedings. The award cannot relate to unknown and un-named persons.

Certainty is the hallmark of any judicial work. No judicial proceedings can validly be conducted by, or against, unknown or unidentified persons.

The applicant does not, therefore, satisfy paragraph(s) (a) and (b) of the above cited judgment upon which it places its reliance.

Apart from Nelson Maurede, whose name is specifically mentioned in the award, none of the other persons who sued together with him can show the registering court that:

(i) He or she is a party to the arbitration proceedings; or

(ii) The award relates to him or her.

The application is, to the above-stated extent, fatally defective....,.

The current application cites Treger Products (Pvt) Ltd as the respondent. The award which the learned arbitrator granted cites Treger Ltd as the applicant's employer.

There is a world of difference between the two cited names.

This application relates to a private company. The applicant's employer, on the other hand, is a public company. It remains unclear if registration is sought against Treger Products (Pvt) Ltd or against Treger Ltd. The applicant did not explain the anomaly. Nor did it explain how that anomaly came about.

The onus rests on it to state the correct position of the matter. The court cannot.

What the court can tell, however, is that it is impossible for the applicant to enforce an award against a non-existent entity. As the respondent correctly states, Treger Products (Pvt) Ltd was not a party to the proceedings which the learned arbitrator conducted. The award cannot, therefore, be registered against it.

The above described matter was succinctly clarified in Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) which stated:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

It is…, not the function of the court to aid and abet disputes which parties place before it. Its sole function is to resolve such in the interests of justice.

SC85-14 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED and MAHOMED IQBAL MAHMED and REZANA EBRAHIM and JOHN MOTSI vs SECURITIES COMMISSION OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and PATEL JA

A failure to deal with an issue that has been placed before a court constitutes a misdirection.

SC03-20 : ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED vs N.R. BARBER (PRIVATE) LIMITED and THE SHERIFF FOR ZIMBABWE
Ruled By: MALABA CJ, MAVANGIRA JA and MATHONSI JA

This is an appeal against the decision of the High Court (“the court a quo”) dismissing an urgent chamber application for an order declaring that the payment made to the first respondent in terms of a court order was a full and final settlement of the liability owed by the appellant.

The appeal succeeds.

The Court holds that the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act & Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars)) (“S.I.33/19”) expressly provides that assets and liabilities, including judgment debts, denominated in United States dollars immediately before the effective date of 22 February 2019 shall, on or after the aforementioned date, be valued in RTGS dollars on a one-to-one rate.

The order in terms of which the appellant was obliged to pay the judgment debt owed to the first respondent, denominated in United Stated dollars, was made before the effective date. The judgment debt, and its evaluation, fell within the ambit of the provisions of section 4(1)(d) of S.I.33 of 2019. The payment made by the appellant, in fulfilment of the judgment debt, is a full and final settlement of the liability owed by the appellant.

The reasons for the decision now follow.

BACKGROUND FACTS

The facts are largely common cause.

The first respondent instituted proceedings against the appellant for payment of USD$3,885,000. The payment was for services which had been rendered by the first respondent to the appellant. On 25 June 2018 the appellant was ordered, by the High Court, to pay the first respondent the amount claimed, together with interest at the prescribed rate and costs of suit on an attorney client scale.

The appellant noted an appeal against the judgment. The appeal was dismissed on 13 May 2019.

On 21 May 2019, the appellant deposited an amount of RTGS$4,136,806=54 into the first respondent's account as settlement of the judgment debt plus interest and costs of suit.

The first respondent, through its legal practitioners, wrote to the appellant on the day of receipt of the funds, complaining that the amount deposited was less than the amount ordered by the court. The first respondent said that the amount deposited was equivalent to US$144,788=23. It used the interbank rate as at 21 May 2019. The contention was that the appellant still owed an amount of US$3,992,018=31. The first respondent advised the appellant that it was instructing the second respondent to proceed with the attachment of its property for sale in execution.

The appellant responded by a letter dated 24 May 2019, stating that the payment of RTGS$4,136,806=54 satisfied the judgment debt. It referred to the provisions of section 4(1)d) of S.I.33 of 2019 for authority that the payment was a full and final settlement of the judgment debt.

On 4 July 2019 the first respondent instructed the second respondent to attach the appellant's properties in Hwange to recover an amount of US$3,992,018=31. The appellant filed an urgent chamber application in the court a quo seeking an order for stay of execution and a declaratory order to the effect that the judgment debt had been fully discharged in terms of S.I. 33/19.

The matter of the dispute between the parties was the correct interpretation of section 4(1)(d) of S.I.33/19.

The court a quo dismissed the application with costs on a legal practitioner and client scale. The holding was that, had the Legislature intended to alter all court orders and writs that had been made prior to the promulgation of S.I.33 of 2019, it should have expressly said so. The court a quo held, further, that the payment made by the applicant did not discharge the judgment debt, as the payment ought to have been made at the Inter-bank rate prevailing on 21 May 2019. The court a quo accepted the evidence that the Interbank rate was 1 United States dollar to 3.5 RTGS dollars. The court a quo interpreted the provisions of section (4)(1)(d) of S.I.33/19 in a way that excluded judgment debts from the application of S.I.33 of 2019.

Aggrieved by the decision of the court a quo, the appellant appealed. The grounds of appeal were as follows:

“1. The High Court erred in failing to find that the judgment debt for the sum of USD3,885,000 together with costs of suit and interest in case number HC7882/17 was a liability to the applicant valued in United States dollars before the effective date as specified in Statutory Instrument 33/19.

2. The High Court further erred in failing to find that the United States dollar denominated debt was capable of being discharged at the rate of One United States dollar to One RTGS dollar as specified in section 4(1)(d) of Statutory Instrument 33/19, and, therefore, failing to find that the appellant fully discharged the debt on 21 May 2019.

3. The High Court further erred in finding that section 4(1)(d) of the Statutory Instrument 33/19 was not applicable to assets and liabilities arising from court orders.

4. The High Court further grossly erred in awarding costs of suit against the appellant on attorney and client scale having decided to dismiss the application.”...,.

Section 4 of S.I.33 of 2019 provides as follows:

“4. (1) For the purposes of section 44C of the principal Act, as inserted by these regulations, the Minister shall be deemed to have prescribed the following with effect from the date of promulgation of these regulations ('the effective date') -

(a) That the Reserve Bank has, with effect from the effective date, issued an electronic currency called the RTGS Dollar;

(b) That Real Time Gross Settlement system balances expressed in the United States dollar (other than those referred to in section 44C(2) of the principal Act), immediately before the effective date, shall, from the effective date, be deemed to be opening balances in RTGS dollars at par with the United States dollar; and

(c) That such currency shall be legal tender within Zimbabwe from the effective date; and

(d) That, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C(2) of the principal Act) shall, on and after the effective date, be deemed to be values in RTGS dollars at a rate of one-to-one to the United States Dollar; and

(e) That after the effective date any variance from the opening parity rate shall be determined from time to time by the rate at which authorised dealers under the Exchange Control Act exchange the RTGS Dollar for the United States Dollar on a willing seller-buyer-basis…,.”

In interpreting section 4(1)(d) of S.I. 33/19 the court a quo said:

“In my view, while the debt to the first respondent may be treated as a liability as against the applicant and an asset as against the first respondent for accounting purposes, this debt was not valued immediately before the effective date. The effective date is the 22nd of February 2019. The debt was due on the 25th of June 2018 despite that it was appealed against. Even if I may be wrong, I am not convinced that the legislature intended to alter all court orders made by the court. If the court had not made any pronouncement as to what denomination the debt should be paid in on 25 June 2018, then the applicant's argument may make sense. It was not made immediately before, on, or after the effective date. If the legislature wanted it to include court orders and writs, then it should have expressly said so.”

The court a quo went on to say:

“As I have said above, section 4(1)(d) of S.I.33 of 2019 cannot be construed as giving the legislature power to alter court orders. To allow that would be a violation of the separation of powers that is enshrined in the Constitution.”

Neither party questioned the validity of S.I.33/19.

The constitutionality of section 4(1)(d) of S.I. 33/19 was not in dispute. It was not an issue before the court a quo. There was no basis on which the court a quo found it necessary to allude to the suggested violation by the Legislature of the fundamental constitutional principle of separation of powers in the enactment of S.I.33 of 2019.

The question for determination, on appeal, was whether the court a quo correctly interpreted and applied the provisions of section 4(1)(d) of S.I.33 of 2019 in the light of the facts of the case.

Appealed
SC04-20 : NICKOLAS VAN HOOGSTRATEN vs TAPIWA NELOMWE
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 18 July 2018 in which it ordered the appellant to deliver to the respondent 167,275 Old Mutual Public Limited Company shares within 10 days of the date of the order. Alternatively, it ordered the appellant to pay damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last day that Old Mutual PLC traded in Zimbabwe.

The appellant was also ordered to pay costs of suit.

THE FACTS

The respondent instituted an action against the appellant for the return of the 167,275 Old Mutual PLC shares (the shares) which shares he had transferred to the appellant or its nominee in pursuance of an Asset Swap Agreement. In the alternative, the respondent sought payment of damages equivalent to the market value of the shares.

His case was that sometime in 2008 he had entered into a verbal Asset Swap Agreement with the appellant, the terms of which were that the respondent would transfer the shares and a further 110,000 PPC shares to the appellant. Upon the transfer of the shares, the appellant would transfer to the respondent an immovable property known as No.4 Wroxham Road, The Grange, Harare (the property). Thereafter, the respondent would also transfer the 110,000 PPC shares to the appellant.

It was the respondent's case that about 22 October 2008, he duly transferred the shares to the appellant's nominee, Zimcor Limited, under Share Certificate No. 606776.

In breach of the agreement, the appellant failed to transfer the property to the respondent as a result of which the respondent cancelled the agreement in January 2011.

Accordingly, the respondent became entitled to the return of the shares he had transferred to the appellant. As the appellant failed to return the shares, the respondent sued for their return. In the alternative, he claimed their value as damages.

Before the court a quo, the appellant denied ever entering into an agreement with the respondent maintaining that he had only received the shares from the respondent in his capacity as an agent of Zimcor Limited, a company in which he was neither a Director nor a shareholder.

The appellant asserted that the shares in issue were not transferred to him, and, as such, he was not liable to the respondent in respect of the shares.

The respondent insisted that he dealt with the appellant in his personal capacity and not as an agent and that the shares were transferred to Zimcor Limited on the instructions of the appellant; the respondent himself not having had any relationship with Zimcor Limited.

The court a quo found in favour of the respondent and granted an order aforesaid. The appellant was aggrieved. He noted an appeal to this Court on the following grounds:

1. The court a quo erred in fact and in law by finding that there was an agreement for the sale of an immovable property in exchange for shares in the absence of any evidence, disregarding the physical evidence which negatived the existence of the alleged agreement.

2. The court a quo erred in fact and at law in finding that the appellant was not a credible witness as a result of discrepancies in his evidence without taking into account the fact that the trial was taking place about a decade since the occurrence of the events under scrutiny which time would naturally have an effect on the memory of the appellant.

3. The court a quo erred in fact and in law by finding that the plaintiff (sic) had proved his case on a balance of probabilities and yet the appellant (sic) had in fact not proved the issues for trial.

4. The court a quo erred in fact and in law in ordering the appellant to return shares which, from the evidence before the court, were never in the appellant's possession.

5. The court a quo erred in fact and at law in finding that the shares should be compensated by a party who had not been proved to have benefited from same, in the absence of any proof that Zimcor Limited itself had not solely benefited from the shares transferred in its name.

I must state that at the hearing of the appeal counsel for the appellant quickly abandoned grounds of appeal numbers 1 and 3 which were afflicted by invalidity. This left only grounds of appeal numbers 2, 4 and 5 to be motivated.

THE COURT A QUO'S FINDINGS

The court a quo accepted the evidence of the respondent which it found to have been simple and in support of his averments in the pleadings. It found that although the shares in question had been transferred to Zimcor Limited and not to the appellant, Zimcor Limited was in fact the appellant's nominee to whom the respondent owed no obligation for which he could transfer the shares.

The court a quo found the existence of a link between an immovable property which the appellant had purchased at a Sheriff's auction and the transfer of the shares.

The court a quo concluded that the respondent was not only a credible witness, but that his evidence also accorded with probabilities. The evidence of the appellant, in opposition to the claim, did not impress the court a quo at all. In fact, the court a quo was quite critical of the appellant's presentation describing him “as an evasive and in some instances deliberately mendacious witness” who made inconsistent statements.

The court a quo concluded that nothing turned on the transfer of the shares to Zimcor Limited because the appellant had inadvertently admitted being in the habit of not registering his assets in his own name. This explained why he directed the respondent to transfer the shares into the name of Zimcor Limited.

ISSUES FOR DETERMINATION

This appeal, in essence, turns on two issues, namely;

1. Whether the court a quo erred in finding that there was a valid agreement between the parties; and

2. Whether the court a quo erred in ordering the delivery to the respondent of the shares or their equivalent value.

1. WHETHER THE COURT A QUO ERRED IN FINDING THAT THERE WAS A VALID AGREEMENT BETWEEN THE PARTIES

It was submitted, on behalf of the appellant, that he acted as an agent of a disclosed principal, namely, Zimcor Limited. For that reason he could not assume personal liability being merely a conduit that fell away the moment the agreement was concluded between his principal and the respondent.

In advancing that argument, counsel for the appellant relied on the proof of transfer of the shares dated 22 October 2008 showing that the respondent indeed transferred the shares to Zimcor Limited. The document in question was signed by the appellant on the same date and he endorsed that he had received it “on behalf of Zimcor.”

Once it was accepted that the appellant acted on behalf of a principal, so the argument goes, the court a quo was precluded from ordering the appellant to return the shares which he did not receive in his personal capacity.

Counsel for the respondent submitted that the existence of an agency relationship between the appellant and Zimcor Limited was not established.

Riding on the court a quo's finding that there existed no relationship between the respondent and Zimcor Limited as would motivate the transfer of the shares to the latter, counsel for the respondent submitted that the court a quo's findings on that aspect cannot possibly be said to have been irrational as to invite the Appellate Court to intervene.

I agree.

This is a matter which was decided entirely on the credibility of witnesses. The appellant was pitted against the respondent and the court a quo made factual findings based upon their presentation of evidence.

I have already said that the court a quo was critical of the evidence of the appellant. The court a quo assessed the quality of the appellant's evidence and concluded…,:

“The defendant's (appellant) demeanor punctuated by evasiveness and the use of impertinent language whenever he was confronted with facts presented him as a witness who was seeking to mislead the court.”

Indeed, there is a reason why the court a quo came to that conclusion.

The appellant's evidence was not only incoherent, it was punctuated by the use of intemperate language. Expressions like: “this is nonsense;” “no, it is rubbish, absolute rubbish; it is ridiculous…,” are all over the record of his testimony which is also replete with situations where the appellant refused to answer questions.

The trial court was required to resolve the factual disputes of whether there was a Swap Agreement and whether the appellant was acting in his personal capacity, among others.

The quality of the appellant's evidence was so poor that the trial court cannot be faulted for rejecting it and embracing that of the respondent. The appellant has himself to thank for that outcome having done nothing to endear himself in the eyes of the court.

In rejecting the appellant's evidence, the trial court made factual findings, including the finding that the appellant had acted for himself and not as an agent of Zimcor Limited which was merely his nominee for receiving the shares.

It has long been regarded as settled in this jurisdiction that this Court will not interfere with factual findings, including findings on the credibility of witnesses, made by a trial court unless the decision is irrational.

This Court has, in a number of cases, followed the general rule on whether to interfere or not which was expressed in Hama v National Railway of Zimbabwe 1996 (1) ZLR 664 (S)…, where the court pronounced:

“The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcoin v Rosenburg 1936 AD 380 at 395-7; Secretary of State for Education & Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671 E-H; CCSU v Min for the Civil Service supra at 951 A-B; PF-ZAPU v Minister of Justice (2) 1985 (1) ZLR 305 (S) at 326 E-G.”

When following this principle, almost two decades later, ZIYAMBI JA restated it more emphatically in ZNWA v Mwoyounotsva 2015 (1) ZLR 935 (S)…,:

“It is settled that the Appellate Court will not interfere with factual findings made by a lower court unless these findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusions; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it; or that the decision was clearly wrong.”

The appellant's case was never that there was no agreement involving the transfer of the shares but that such agreement was between the respondent and Zimcor Limited.

He maintained that he was only an agent of Zimcor Limited.

The respondent asserted that the verbal Swap Agreement was with the appellant and that he knew nothing about Zimcor Limited. He only transferred the shares to the latter as directed by the appellant. The respondent produced proof of the transfer of shares which was in fact signed by the appellant in acknowledgment of receipt. He also produced further documents signifying his pursuit of the transfer of the immovable property at the centre of the dispute, or, alternatively, the return of the shares.

It is the view of this Court that the requirements of a valid contract were satisfied by the evidence. The probabilities favoured the respondent as correctly found by the trial court. This is particularly so given that the appellant was not a credible witness.

The court a quo's finding on credibility, as I have said, is one which this Court cannot lightly interfere with. The assessment of the credibility of a witness is for the trial court to make and not this Court. That is the view expressed in S v Mlambo 1994 (2) ZLR 410 (S) …,:

“The assessment of the credibility of a witness is par excellence the province of the trial court and ought not to be disregarded by an Appellate Court unless satisfied that it defies reason and common sense.

A careful reading of Ndlovu's evidence, to which no accompanying adverse demeanor finding was made, does not persuade me that the magistrate's assessment was erroneous.”

See also Nzira v The State SC23-06.

There was no adverse finding on demeanor in respect of the respondent.

It was not suggested, on behalf of the appellant, that the findings of the trial court on credibility could be faulted in any way except the suggestion that the appellant's frailties as a witness should have been excused because of the lengthy passage of time.

I disagree because the respondent, who was credible and gave clear testimony, also related to the same events and was also afflicted by the same lengthy delay.

There was no misdirection on the trial court's finding that a valid agreement was concluded by the parties.

2. WHETHER THE COURT A QUO ERRED IN ORDERING THE DELIVERY TO THE RESPONDENT OF THE SHARES OR THEIR EQUIVALENT VALUE

Counsel for the appellant strongly submitted that it was incompetent for the trial court to order the appellant to return the shares which were never transferred to him, they having been transferred to Zimcor Limited and not the appellant.

In a way, the conclusion already made, that the parties entered into a valid agreement involving the transfer of the shares, resolves this issue as well.

In fact, that argument is not well taken to the extent that it ignores the primary transaction between the parties. The appellant did not meaningfully refute that there was an underlying agreement in terms of which he was selling to the respondent a house he was in the process of purchasing from a Sheriff's sale.

I have already adverted to the trial court's factual findings which were adverse to the existence of an agency relationship between the appellant and Zimcor Limited. I have said that there is no legal foundation for interfering with that finding. If there was no agency, as the trial court correctly established, the consequences of an aborted Swap Agreement, namely, the return of the shares or their value, cannot be shared with any other party. They are for the appellant alone.

When giving evidence, the appellant was unable to show that he was an agent of Zimcor Limited. Quite to the contrary, he stated clearly, under cross examination, at p148 of the record, that he did not get any authority from Zimcor Limited. Pressed further, he dithered stating:

“I cannot remember.”

There can be no doubt that the obligation to make good the shares fell on the appellant. In fact, that he was an agent of Zimcor Limited was a claim made by the appellant himself. He was therefore under an obligation to lead evidence to establish that claim. His failure to lead evidence from Zimcor Limited, which, presumably, was available, further warranted the drawing of an adverse inference that no such evidence existed or that the evidence would not support his case.

The respondent sought an order compelling the appellant to transfer the shares to him given the cancellation of the Swap Agreement. In the alternative, he sought payment of damages equivalent to the market value of the shares. The trial court issued the following order:

“In the result, it is ordered that:

1. Judgment be and is hereby given in favour of the plaintiff and against the defendant for:

(a) Delivery to the plaintiff of 167,275 Old Mutual Public Limited Company shares within ten days of the date of this order; or, alternatively

(b) Payment of damages equivalent to the value of 167,275 Old Mutual Public Limited Company shares calculated using the rate determined by the Zimbabwe Stock Exchange as at the close of trading on the last date that that company traded in Zimbabwe.

2. Defendant shall pay the costs of suit.”

It is not clear why the trial court made such a disposition given that the fourth issue for trial, which it was required to resolve, was the value of the shares.

Apart from that, it was common cause at the trial that Old Mutual PLC had ceased to operate in Zimbabwe and had delisted from the Zimbabwe Stock Exchange before commencement of trial. Not only that, it was also common cause that the shares forming the dispute between the parties no longer existed.

According to a letter of 9 March 2015, by Corpserve Registrars (Pvt) Ltd to the respondent's legal practitioners, the shares were transferred to Stanbic Nominees NNR on 4 June 2009.

Counsel for the appellant submitted that a court of law sits to resolve disputes and should not sub-contract its duties to a third party.

The trial court should have determined the value of the shares and issued a holistic order instead of delegating the task to the Zimbabwe Stock Exchange. He further submitted that the Court ordered the determination of the value to be as at the close of trading on the last day Old Mutual PLC traded in Zimbabwe. That date was not determined and the parties had not made any submissions in that regard.

In his view, the matter should be remitted to the trial court to complete the case.

Counsel for the respondent, in a way, conceded that the order of the trial court presents some difficulties. He however took the view that the value of the shares is ascertainable because all stock brokers have an index which can be used to determine the date of the de-listing of Old Mutual PLC. As to why all that was not canvassed during the trial and resolved by the trial court, counsel for the respondent would not say.

Clearly, the trial court did not resolve all the issues for trial, and, in the end, gave an order which did not bring the dispute to finality.

It should have determined the value of the shares from evidence presented to it. If such evidence was not presented, there are remedies available for such eventuality. It could not assign the resolution of a trial issue to a third party who was not even cited in the proceedings. Moreso in a case such as the present where it was common cause that restitution of the shares was, to the knowledge of the parties and the court, no longer possible - they having been disposed of 17 years earlier.

The matter has to be remitted for resolution of the outstanding issues.

In the result, it is ordered that;

1. The appeal partially succeeds to the extent described below:

(a) The appeal on the merits is dismissed;

(b) Paragraphs 1(a) and (b) of the order of the court a quo, relating to the delivery of the 167,275 Old Mutual Public Limited Company shares and payment of damages, are set aside and in their place is substituted the following:

“The defendant shall pay to the plaintiff damages equivalent to the value of 167,275 Old Mutual Public Company Shares.”

2. The matter is remitted to the court a quo for a determination of the value of the 167,275 Old Mutual Public Limited Company Shares to be paid.

3. Each party shall bear its own costs.

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017.The appeal is mounted against part of the judgment, in particular, ...

This is an appeal against the judgment of the High Court setting aside the decision of the appellant, made on 8 February 2018, ordering the rewrite of an English language examination at Ordinary Level taken by candidates in November 2017.

The appeal is mounted against part of the judgment, in particular, paragraph 2 of the operative order of the court a quo.

Background

The appellant is the Zimbabwe School Examinations Council (ZIMSEC), a statutory body created in terms of the Zimbabwe School Examinations Council Act [Chapter 25:18]. It is responsible for conducting examinations for primary and secondary schools in Zimbabwe. It is also empowered, in terms of section 34 of its enabling Act, to annul examination results.

The respondents are the respective guardians of two school children who sat to write the Ordinary Level English Paper 1 and Paper 2 examinations conducted by the appellant in November 2017.

It is common cause that there was a leakage of English Paper 2 which led to widespread cheating by candidates who sat for the examination in that paper.

On 6 February 2018, the appellant took the decision to nullify the results of that examination. The appellant also directed a re-sit of that examination which was scheduled for 16 February 2018.

The respondents, being aggrieved by these decisions, filed an urgent chamber application in the High Court for an order setting them aside.

They averred that the decisions were arbitrary and would cause undue hardship to their respective daughters as well as other students who had written their examinations in earnest and without cheating. At the time of the application, the first respondent's daughter had travelled to Australia, while the second respondent's daughter was in Bindura but her examination centre was located in Goromonzi.

The court a quo identified the issues before it as follows:

(i) Whether or not the appellant's nullification of the English Paper 2 examination results ought to stand; and

(ii) Whether a rewrite of that examination was the appropriate remedy.

The court proceeded to uphold the appellant's decision to nullify the results of the Paper 2 examination. However, it set aside the appellant's decision calling for a re-write of the examination and substituted it with an order to the effect that the results of candidates be based on the results in Paper 1 only, as per the recommendations of the English Subject Manager dated 8 January 2018.

In arriving at its decision, the court a quo (which comprised two judges) reasoned that it could not uphold the results of the Paper 2 examination as this would amount to the court aiding and abetting cheating in examinations.

However, the appellant's decision to order a rewrite of the Paper 2 examination was taken without regard to the recommendations of the Subject Manager and was therefore arbitrary in nature. Additionally, that decision was made without taking into account the interests of those children who did not cheat in the examination. It was also possible that many innocent children did not have access to information pertaining to the scheduled re-write of the examination as the notice given by the appellant for the scheduled rewrite was grossly and unreasonably short.

The appellant impugns the judgment a quo on the following grounds, as summarised:

(a) The court granted relief that was not sought or justified on the papers without advance notice or warning to the appellant.

(b) The court substituted its own substantive decision without being possessed of the tools to make such a technical and far-reaching decision.

(c) The only relief that was affordable was an extension of time for re-taking the examination and the effect of the court's substantive decision was to negate the exercise of the appellant's statutory function.

(d) The issues in question were not resoluble on the basis of the Subject Manager's recommendations which had already been rejected by the authority vested with the mandate to consider them.

(e) The court granted final relief on an urgent basis in a matter that was hotly contested and where the parties were not availed sufficient time to advance their contentions....,.

Final Relief Granted on Urgent Basis

The first ground of appeal attacks the judgment a quo on the basis that the court afforded relief which was neither sought nor justified on the papers before the court, without advance notice or warning to the appellant.

Closely related to this ground is the fifth ground which impugns the grant of final relief on an urgent basis without having availed the parties sufficient time to put forward their respective contentions.

I intend to address both grounds together.

It is not disputed that the court a quo granted final relief instead of the interim relief that was sought by the respondents. It is also not in dispute that the final order that was granted departed materially from the provisional order that was sought by the respondents.

The relief granted was not pleaded or supported by the averments contained in the founding affidavit and no evidence was led to support it.

It is trite that an application either stands or falls on its founding affidavit - Director of Hospital Services v Mistry 1979 (1) SA 626 (A)…,.

It is also trite that a court is ordinarily not at large to grant relief which has not been sought by the applicant. The court cannot exceed its mandate to determine the issues placed before it by the parties through their pleadings and evidence or mero motu grant orders not sought by either party without obtaining the parties' views on those orders – Nzara & Ors v Kashumba N.O. & Ors SC18-18.

As regards the grant of final substantive relief, it is generally undesirable to afford a final and definitive judgment on an urgent basis because that would ordinarily necessitate the applicant having to prove a clear right on the return date as opposed to a lesser prima facie right justifying the grant of interim or provisional relief; Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H); Zimbabwe Congress of Trade Unions v Officer Commanding, Zimbabwe Republic Police, Harare District & Anor 2002 (1) ZLR 323 (H)…,.

In casu, counsel for the appellant submits that the appellant was not given sufficient time to deal with the matter properly on an urgent basis. Furthermore, the court a quo granted final relief that was neither pleaded nor sought, to the extreme prejudice of the appellant.

Counsel for the respondents counters that the parties were afforded the opportunity to address all the issues raised a quo. The urgent chamber application mounted by the respondents had effectively become an opposed matter. As regards the order granted by the court, he concedes that it did not grant the provisional order that was sought by the respondents. Nevertheless, so he argues, the case established by the respondents justified the final relief that was granted.

Having regard to the record a quo, I am inclined to agree with counsel for the respondents that the parties were availed sufficient time and ample opportunity to put forward their respective contentions. The respondents filed their application on 9 February 2018, and the appellant responded to file its opposing papers on 12 February 2018. Thereafter, the respondents filed their heads of argument and answering papers on 12 and 13 February 2018 respectively. The appellant reacted immediately with its heads of argument on 13 February 2018 and the respondents' supplementary heads of argument were filed on the same day. The matter was then heard and determined on 14 February 2018.

Given this scenario, I am unable to find any merit in the appellant's complaint concerning the time and opportunity afforded to advance its position.

Turning to the order granted by the court a quo, there can be no doubt that its terms are materially different from those contained in the draft provisional order sought by the respondents.

However, given the perceived urgency of the circumstances a quo, I do not think that it can be said that the court took leave of its senses in departing from the original relief sought by the respondents.

In my view, the facts of this case are clearly distinguishable from those in Nzara & Ors v Kashumba N.O. & Ors SC18-18 where the order that was granted by the lower court was simply plucked from the air. This was not the position in casu where the constraints of time were evidently paramount. The court a quo was obviously alive and sensitive to the interests of those students who would not have been involved in the malpractice of cheating as well as those who might not have had access to information pertaining to the examination that was to be re-written.

In any event, Rule 246(2) of the High Court Rules allows the court seized with an urgent application to grant a provisional order in terms of the draft order as may be varied so as to accommodate the respective rights and interests of the parties.

As has been observed, albeit in the context of fundamental rights, the courts have a duty to provide effective relief through an appropriate remedy in order to secure the protection and enforcement of important rights - even if it involves having to fashion or forge an innovative remedy; Fose v Minister of Safety and Security 1997 (3) SA 786 (CC)…,.

I fully endorse these sentiments and subscribe to the view that the courts should not invariably and slavishly be hide-bound to the pleadings when framing effective remedies that are appropriate to the given circumstances.

All in all, I am satisfied that the court a quo did not egregiously misdirect itself in granting final relief in terms that were not originally motivated by the respondents.

In the event, I take the view that the first and fifth grounds of appeal are not meritorious in the particular circumstances of this matter.

They are accordingly dismissed.

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

A court cannot simply order that a matter, where issues remain unresolved, should end there.

Appealed
SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

It is trite that a court ought to be guided and to determine issues which are raised by the parties in the pleadings.In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A), 108, the court cited with approval the case of Robinson v Randfontein Estates GM Co. ...

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the decision of the Labour Court setting aside the proceedings of a disciplinary committee constituted by the appellant and remitting the matter for a re-hearing before a different panel.

The background leading to the institution of disciplinary proceedings against the respondent is common cause.

The respondent was employed by the appellant as a driver. At the time the incident giving rise to the disciplinary proceedings took place, he was driving a truck belonging to the appellant carrying fertilizer destined for Zambia. There were also a number of other trucks belonging to the appellant carrying fertilizer to Zambia. At Chirundu Border post there was a delay in clearing the truck as one bill of entry was missing. The respondent then telephoned a Chief Superintendent Mandipaka of the Zimbabwe Republic Police and made a report to the effect that the appellant's clearing agents were smuggling fertilizer out of Zimbabwe. As a result of that report some sixteen trucks, some belonging to the appellant, were delayed at the border post whilst the police investigated the report made by the respondent.

Upon full investigation, however, the missing bill of entry was found and it was established that there was no intention on the part of the appellant, or its agent, to smuggle the fertilizer out of the country.

The appellant's clearing agent, thereafter, wrote a letter of protest to the appellant highlighting the inconvenience caused by the report and the expenses which the company had been forced to incur to have the matter resolved.

Against that background, the appellant instituted disciplinary proceedings against the respondent on a number of allegations of misconduct.

The disciplinary committee found the respondent guilty of misconduct and determined that his employment be terminated with effect from 14 December 2005. The respondent appealed to the appellant's Managing Director, who, by letter dated 23 December 2005, upheld the decision of the disciplinary committee. On 30 December 2005, the respondent filed a notice of appeal with the Labour Court, Harare, seeking a review of the proceedings. On 3 January 2006, however, the respondent and the appellant executed a document that read as follows:

“I, NYAMWANZA GS, in my capacity as Driver being duly authorized hereto, hereby confirm that I have, on this 03/01/06 day of Jan 2006, accepted from WHELSON TRANSPORT the sum of $15,168,014,179 in full and final settlement of my/our claim/entitlement arising out of Terminal Benefits and I confirm that my/our acceptance of the aforesaid amount determines finally my/our claim and that I/we have no future/retrospective claims against WHELSON TRANSPORT of any nature whatsoever, including interest costs, collection commission arising out of the subject matter aforesaid, or otherwise.

I therefore do hereby sign as acknowledgement and in agreement with the above without alterations or cancellations.”

The document was signed by the respondent.

Notwithstanding the above document, the respondent proceeded with his appeal before the Labour Court. He sought a review of the proceedings before the disciplinary committee on three grounds. These were;

(i) Firstly, that his senior, a Mr Ndoro, played the dual role of chairperson of the disciplinary committee and witness during the disciplinary hearing;

(ii) Secondly, that no hearing actually took place; and

(iii) Thirdly, that he was not given the opportunity to be heard.

In its submission before the Labour Court, the appellant raised two issues. These were;

(i) Firstly, that having executed the document dated 3 January 2006, the respondent waived any rights he may have had to challenge the decision to dismiss him whether by way of appeal or review.

(ii) Secondly, that the respondent had not established good legal ground for setting aside the dismissal.

The court a quo did not consider the issue of waiver raised. It only dealt with the question of procedural irregularity.

In determining that there had been a procedural irregularity and that the matter be remitted for a hearing, the Labour Court remarked:

“In this case, there was a serious procedural irregularity in that the Chairman of the Committee was the witness. He led evidence from the bench. Obviously, there was a real risk of bias in the findings by the Committee. However, from the facts of the matter which are follows:

Appellant was employed as a driver with the respondent. On the day in question, appellant was driving one of the respondent's trucks ferrying fertilizers to Zambia. When the appellant got to Chirundu Border Post and had found that one bill of entry form was missing he phoned the police and advised that respondent was smuggling fertilizers outside the country. As a result of the report 16 trucks belonging to respondent were delayed at the border whilst the police were carrying on investigations.

Respondent lost time and money. The investigations revealed the report was false.

The appellant was charged and dismissed from employment. Since the facts are common cause, to some extent, I will not order reinstatement of the appellant as he clearly has a case to answer.”

The appellant attacks the decision of the Labour Court on four grounds. These are:-

1. That the Labour Court misdirected itself by not dealing with the defence of waiver raised by the appellant....,.

I proceed to deal with the issue of waiver which is the first ground of appeal raised by the appellant.

Reference has already been made to the document signed by the respondent in which he accepted payment of a sum of money in full and final settlement of all his claims and in which he confirmed that his acceptance of the money finally determined any claim he may have had of any nature whatsoever.

In its heads of argument before the court a quo, the appellant specifically raised the issue of waiver.

It was the appellant's contention that by entering into the above agreement the respondent had waived his right to appeal or to take on review the termination of his employment. The appellant had further contended that the ordinary grammatical meaning of the agreement was that the respondent had made an undertaking that the execution of the agreement determined finally any claims of any nature whatsoever.

Despite the fact that the issue had been raised, the court a quo did not consider it at all and made no reference to the submission in its judgment.

This, in my view, was a misdirection.

I would agree with the appellant that the failure to deal with a defence raised by one of the parties amounts to a failure to hear and determine the matter according to law....,.

There was a failure by the court a quo to determine an issue that had been properly raised by the appellant.

The Court completely ignored the issue of waiver raised and proceeded to determine the matter on the basis of procedural impropriety.

SC39-20 : ANJIN INVESTMENTS PL vs MINISTER OF MINES AND MINING DEVELOPMENT and MINISTER OF HOME AFFAIRS and THE COMMISSIONER – GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: BERE JA

This is an opposed chamber application for condonation of late noting of an appeal and extension of time within which to appeal in terms of Rule 43 of the Supreme Court Rules, 2018. The applicant seeks an order couched in the following terms:

“It is hereby ordered that;

(a) The application for condonation for non-compliance with Rule 38(1)(b) of the Supreme Court Rules, 2018 be and is hereby granted.

(b) The application for an extension of time to note the applicant's appeal be and is hereby granted.

(c) The appeal is deemed noted in terms of the Notice of Appeal attached hereto from the date of this order.

(d) Costs of this application shall be costs in the cause.”

The facts giving rise to this application can be gleaned from the filed papers and are as follows:

The applicant had been conducting mining operations in Chiadzwa District from 2009 under a Special Grant and stated that it was in undisturbed possession and occupation until February 2016. On 22 February 2016, the first respondent wrote a letter to the applicant notifying it that the special grant issued to it had expired therefore the applicant had to cease all mining activities with immediate effect and had to vacate the mining area. The applicant, together with its employees, was forced to vacate the mining location on the same date by armed police, leaving its assets on the site.

In March 2016, the applicant filed an urgent chamber application in the High Court against the respondents seeking restoration of the parties' status quo ante. This application was further necessitated by the first respondent's decision to terminate the applicant's right to conduct mining operations under a Special Grant. In the application, the applicant stated that it was substantially prejudiced by the respondents' conduct, and, resultantly, there was significant financial harm. In addition to this the applicant sought to justify its continued operations on the strength of the special grant which it alleged had been ceded to it by the first respondent.

That application was opposed by the first respondent who argued that the matter was not urgent and that the relief sought by the applicant sought to perpetuate an act of illegality. It stated that the applicant had no rights in the special grant as it had expired some years before. Further, it stated that the mining grant had been issued to the 'Zimbabwe Mining Corporation' and not to the applicant.

The application was argued before the court a quo and judgment in the matter was handed down on 30 March 2016.

In that judgment, the court a quo stated that although several points in limine had been raised by the respondents, it was of the view that the application had to be disposed of on substance and not on technicalities.

On substance, the court a quo found that the special grant relied on by the applicant had expired five years before it was declared expired in February 2016. It also held that the clause which allowed the applicant to work on sites ceded to it for an indefinite period was contrary to the peremptory provisions of section 291 of the Mines and Minerals Act [Chapter 21:05]. Resultantly, the applicant's application was dismissed.

Counsel for the applicant argued that the explanation of the delay in filing the appeal was reasonable as the applicant sought to deal with his Constitutional Court application before seeking remedy in the Supreme Court.

In addressing prospects of success in the intended appeal, counsel for the applicant submitted that the court a quo erred in finding that the special grant had expired and thus the applicant had not acquired any rights through the grant. He further contended that the question of legality or unlawfulness on the part of the applicant was irrelevant. He also contended that the court a quo had erred in not finding that the applicant was entitled to an order restoring the status quo ante when it had established that it was in peaceful and undisturbed possession of the mining location, and, further, that the court a quo had also erred in finding that the first respondent was entitled to summarily cancel the special grant, even without following due process.

Per contra, counsel for the first respondent argued that the applicant, in deciding not to appeal, and, instead, choosing to approach the Constitutional Court, had deliberately lost its right to appeal.

He further stated that by approaching the Constitutional Court, the applicant showed acquiescence of the judgment of the High Court. Counsel further argued that the applicant, by raising issues of entitlement to the special grant had invited the court a quo to make a determination on the substantive issue between the parties and that the court had proceeded to properly do so, as a result of which he opined that the applicant had no prospects of success on appeal.

APPLICATION OF THE LAW TO THE FACTS

In the case of Tel-One (Pvt) Ltd v Communication and Allied Services Workers Union of Zimbabwe SC01-06, GWAUNZA JA…, said the following:

“Essentially, in an application of this nature, the applicant must satisfy the court;

(i) Firstly, that he has a reasonable explanation for the delay in question; and

(ii) Secondly, that his prospects of success on appeal are good.”

Further, in the case of Florence Chimunda v Arnold Zimuto SC76-14 the court, per ZIYAMBI JA, held that the approach of the courts when dealing with applications of this nature is to consider the cumulative effect of the following:

“(i) The extent of the delay;

(ii) The reasonableness of the explanation tendered therefor;

(iii) The prospects of success on appeal;

(iv) The prejudice, if any, that is likely to be caused to the respondent should the application be granted; and

(v) The need to bring finality to the proceedings.”

EXTENT OF THE DELAY AND REASONABLENESS OF THE EXPLANATION

In the case of Ganda v First Mutual Life Assurance Society SC01-05, it was stated that:

“In addition, it is pertinent to note that it has been stated in a number of cases that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation…,.”

From the record, the judgment which the applicant seeks to appeal against was handed down on 30 March 2016 and the present application was filed on 13 July 2018 following the handing down of the Constitutional Court judgment on 29 June 2018. The extent of the delay is therefore 2 years 3 months.

It is apparent that the delay was quite inordinate.

The applicant stated that it did not file a Notice of Appeal at the time it was supposed to because it had filed an application in the Constitutional Court under case number CCZ38/2016. In that application, the applicant sought relief in terms of section 85(1)(a) of the Constitution of Zimbabwe against the respondents together with 'ZMDC and ZCDC.'

In my view, the explanation for the delay is unreasonable in the sense that the time lines for an appeal have no relevance to any form of remedy desired in the Constitutional Court.

It was not necessary for the applicant to either wait for or link its appeal to the outcome of the Constitutional Court application. It was therefore unreasonable for the applicant to awake from his slumber, after the dismissal of his application in the Constitutional Court on 29 June 2018, to file the instant application.

PROSPECTS OF SUCCESS

In the case of Kombayi v Berkout 1988 (1) ZLR, KORSAH JA stated thus:

“The broad principles the court will follow in determining whether to condone the late noting of an appeal are: the extent of the delay; the reasonableness of the explanation for the delay; and the prospects of success.

If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”…,.

As alluded to in the above case, it is imperative for an applicant making an application for condonation for the late noting of an appeal, to demonstrate to the court that the appeal enjoys prospects of success on the merits.

The issue to be determined in the intended appeal is whether the first respondent could summarily cancel the special grant without following due process.

The requirements and defences for a spoliation order were re-stated in the case of Augustine Banga & 2 Ors v Solom Zawe SC54-14 by GWAUNZA JA…, to be as follows:

“(i) The applicant was in peaceful and undisturbed possession of the thing; and

(ii) He was unlawfully deprived of such possession.”

In the case of Botha and Anor v Barrett 1996 (2) ZLR 73 (S)…, also cited by the learned judge a quo, the court qualified “unlawful deprivation” to mean that the respondent deprived the applicant of possession 'forcibly and wrongfully against his consent'.

The court a quo went on to list the valid defences against a spoliation claim, among them that:

“(i) The applicant was not in peaceful and undisturbed possession of the thing in question at the time of dispossession; and

(ii) The dispossession was not unlawful and therefore did not constitute spoliation.”

In the case of Chesveto v Minister of Local Government and Town Planning 1984 (1) ZLR 240 (H) REYNOLDS J…, stated that:

“It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing – that spoliatus ante omnia restituendus est (Beukes v Crous & Another 1975 (4) SA 215 (NC)).

Lawfulness of possession does not enter into it.

The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time that a competent court of law assesses the relative merits of the claims of each party. Thus, it is my view that the lawfulness or otherwise of the applicant's possession of the property in question does not fall for consideration at all.”…,.

From the cited cases, the position of the law is quite clear in that an application for a spoliation order is not concerned with the legality or otherwise of the applicant's conduct. The court would be called upon to determine whether one was in a peaceful and undisturbed possession and whether he was dispossessed unlawfully.

The situation that confronted the court a quo was adequately dealt with in a recent decision of this Court, viz, Minister of Mines and Mining Development and 2 Others v Grandwell Holdings (Private) Limited and 2 Others SC34-18 which reaffirmed the requirements for spoliation.

The case which was placed before the court a quo was by way of an urgent chamber application which sought to have the status quo ante of the parties restored after the applicant had been evicted from its mining activities without due process on 22 February 2016. The judgment of the court a quo completely ignored dealing with the issue to do with spoliation and decided to deal with the application on the substantive issues between the parties, that is, on the existence or otherwise of the special grant which the applicant claimed to have.

In my view, it is doubtful if such issues could have been adequately determined in an urgent chamber application.

It does seem to me, as argued by counsel for the applicant that the dominant issue that the court ought to have dealt with was the issue of spoliation. It was a misdirection for the court not to deal with this issue and focus exclusively on the substantive rights of the parties which could have been dealt with on the return day.

It is precisely because of this that I believe that there are prospects of success in the intended appeal.

I accept there was tardiness on the part of the applicant as argued by counsel for the first respondent but the prospects of success on appeal has tilted the balance in favour of the applicant.

As observed by CHIDYAUSIKU J…, in the case of Lovemore Sango v Chairman of Public Service Commission and Anor:

“In deciding whether to condone the delay or not two factors are of paramount importance;

(a) Firstly, the period of the delay and the reasons for such a delay.

(b) Secondly, the prospects of success on the merits.”

In the result, I make the following order:

1. The application for condonation of non-compliance with Rule 38(1) of the Supreme Court Rules, 2018 be and is hereby granted.

2. The application for an extension of time to note the applicant's appeal be and is hereby granted.

3. The appeal is deemed noted in terms of the Notice of Appeal attached hereto from the date of this order.

4. Costs of this application shall be costs in the cause.

SC40-20 : STUTTAFORDS REMOVALS (PRIVATE) LIMITED vs GODFREY NYAMAZUNZU
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

This is an appeal against the whole judgment of the Labour Court of Zimbabwe dated 14 July 2018 wherein an application for condonation for failure to file an application for leave to appeal in time was dismissed.

Briefly, the background to this matter is as follows:

The respondent was employed as an accountant by the appellant. He was charged with misconduct, that is, wilful disobedience of a lawful order given by the employer. The respondent was found guilty and his contract of employment was terminated.

The respondent then appealed to the Labour Court which upheld his appeal on 8 April 2016.

In terms of section 35 of S.I.59 of 2006 the appellant ought to have sought leave to appeal to this Court within 30 days from the date of the judgment of the Labour Court.

Having failed to observe the prescribed time limits the appellant sought condonation for the late noting of its application for leave to appeal before the Labour Court.

In deciding the application for condonation, the Labour Court concluded that the appellant had not been candid with the court on its explanation for the delay. The court held that it was unnecessary for it to deal with the other principles applicable in applications for condonation. The court proceeded to dismiss the application for condonation before it with costs.

It is this finding of the court a quo which has led to this appeal.

The appellant, having obtained leave to appeal to this Court on 24 November 2017, noted this appeal on the grounds stated hereunder:

“1. The Labour Court erred in law in its refusal of the application for condonation for failure to comply with the Rules on the basis that there were 'no compelling circumstances which justified a finding in Applicant's favour', when such is not the test applicable in an application such as the one which was before the court.

2. The Labour Court erred in law, in finding that it was unnecessary to consider all the principles applicable in an application such as the one that was before it, with the result that the court did not consider all the other factors which weighed heavily in favour of the application being granted.”

ISSUE FOR DETERMINATION

Whether or not the court a quo erred in dismissing the application for condonation.

THE LAW

The issue that arises from these grounds of appeal is whether the test applicable in matters for condonation was properly applied to the facts of this present matter by the court a quo.

The requirements for condonation have been set out in a plethora of cases, including the case of Bessie Maheya v Independent Africa Church SC58-07. In that case, the court stated the following:

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed, one against the other, are:

(i) The degree of non-compliance;

(ii) The explanation therefore;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) The avoidance of unnecessary delays in the administration of justice.”…,.

A reading of the record shows that the court a quo took into account one of the requirements to be considered in an application for condonation. Consequently, the enquiry that the court a quo made was inconclusive.

The court only considered the extent of the delay and ended there. It did not have regard to the other considerations for the granting of condonation. This is apparent from the judgment of the court a quo where the learned judge concluded her judgment by stating:

“I am convinced that this is a case in which the sins of the legal practitioner are visited on the client. I therefore do not consider it necessary to deal with whether or not other principles applicable in condonation are favourable to applicant.”…,.

Issues to do with the prospects of success on appeal, the importance of the case, the respondent's interests in the finality of the judgment, the convenience to the court, and the avoidance of unnecessary delays in the administration of justice were completely brushed aside by the court a quo. See Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

The finding that the explanation for the delay was unreasonable became the basis for the court a quo's justification in not considering the other factors that ought to be taken into account in condoning a party who is in breach of the Rules.

With this finding, the court a quo resorted to visiting the sins of the legal practitioners on the client and dismissed the application for condonation.

In light of the above, counsel for the appellant argued that as the court a quo had failed to consider all the requirements for condonation, cumulatively, the appeal had to be allowed.

Per contra, counsel for the respondent contended that the court a quo had power to exercise its discretion in such matters even without considering all the laid down requirements. He further argued that this could be done without taking into account the merits of the matter hence the appeal lacked merit.

I do not agree with this proposition of the law.

It was incumbent upon the court a quo to deal with all the considerations in the determination of the application for condonation. Failure to do so was a misdirection on the part of the court. It ought to have first applied the laid down principles to the facts of the case before proceeding to justify the stance it took in opting to dismiss the application for condonation.

In the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A)…, the principles of the law are re-stated as follows:

“It is well established that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all of the facts; and that, in essence, it is a question of fairness to both sides.

In this enquiry, relevant considerations may include the degree of non compliance with the Rules, the explanation therefor, the prospects of success…, (on the merits), the importance of the case, the respondent's interest in the finality of his judgment, and the avoidance of unnecessary delay in the administration of justice.

The list is not exhaustive.

These factors are not individually decisive but are inter-related and must be weighed one against the other; thus, a slight delay and a good explanation may help compensate for prospects of success which are not strong.”…,.

Condonation remains a sole discretion of the court, which discretion has to be exercised judicially upon a consideration of all facts, at all times with a view of doing justice between man and man.

A reading of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A) shows that such exercise of discretion must be done after a consideration of all the relevant factors.

The case of Ngirazi v Saurosi & Anor HB84-18 exhibits how the courts weigh the factors one against the other in granting condonation. It was stated as follows:

“It is settled in this jurisdiction that where the explanation for the delay is unsatisfactory then the prospects of success of the appeal must be really great before the court can exercise its discretion to condone the non-compliance.

As stated by BEADLE CJ in Kuszaba-Dabrowski et uxor v Steel N.O. 1966 RLR 60 (AD)…,;

'.., the more unsatisfactory the explanation for the delay, so much greater must be the prospects of success of the appeal be before the delay will be condoned; and the converse must of course be equally true; the more satisfactory are the explanations for the delay, the more easily will the court be inclined to condone the delay provided it thinks there is prospects of the appeal succeeding.'”

See also Maheya v Independent African Church 2007 (2) ZLR 319 (S)…,.

It is apparent from the above cases that all the laid down factors ought to be taken into account when dealing with an application for condonation.

This was not done in the application a quo.

Instead of individually dealing with these factors, and weighing them one against the other, the court a quo opted to deal with only the explanation for the delay.

This was a misdirection on the part of the court a quo.

In the case of Tshova Mubaiwa Transport Co-Operative Limited and Ors v Mpofu and Ors HB167-04, it was further stated that;

“While these courts have on many occasions held that a litigant chooses his legal representative and it is through that choice that he should either succeed or fail in that litigation. However, this approach should not be adopted as a cut and dry principle. Applicant's explanation, together with other factors supra, should also be considered…,. Therefore, to allow one party to find a way out of the problem through a technical fault will be a failure by these courts to do justice between man and man.”…,.

The court a quo failed to determine the issues that were before it. It failed to make a determination on whether or not the appellant had satisfied all the requirements for condonation. This was a serious mis-direction that warrants interference by this Court.

This is a case where a remittal of the matter to the court a quo for a consideration of all the requirements for condonation to be done. Those principles ought to be weighed one against the other before the application can be determined. This is so because the merit in one of the principles may help in compensating the weaknesses or lack of merit in the other laid down principles.

Accordingly, it is ordered as follows:

1. The appeal succeeds with costs.

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

3. The matter is remitted to the court a quo for consideration of the proper requirements for condonation.

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

Failure to appreciate a fact at all or a finding of fact contrary to evidence actually presented constitutes a misdirection which warrants interference by an appellate body.

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is an appeal against part of the judgment of the High Court. The appellant specifically appeals against paragraphs 2 and 3 of the operative part of the judgment which awarded the respondent maintenance at the rate of US$3,000 per month until she dies, remarries, or cohabits with another man ...

BACKGROUND FACTS

The appellant sued his wife, the respondent, seeking a decree of divorce and other ancillary relief. The respondent did not contest the appellant's claim for a decree of divorce. She however sought the distribution of the assets of the spouses and post-divorce maintenance.

The parties found each other regarding the distribution of their assets including the matrimonial home. They agreed to sell the matrimonial home and most of the proceeds were used to purchase an immovable property which was registered in the name of the respondent and the major, and only son, of the marriage. The appellant received the remainder of the proceeds.

PROCEEDINGS IN THE COURT A QUO

The court a quo captured the only outstanding issue before it as whether or not the defendant is entitled to post divorce maintenance and the quantum of such maintenance….,.

At the end of the trial, the court a quo found that the appellant was currently maintaining the respondent in the sum of US$3,000 per month and that from his income he could continue to maintain the respondent in that amount. It then concluded that, on the basis of the proven facts, the appellant was well able to maintain the respondent in the sum of US$3,000 per month. It also found that the defendant's health condition entitled her to maintenance until she dies, remarries, or cohabits with another man.

The appellant, aggrieved by the decision, filed the present appeal on the following grounds.

GROUNDS OF APPEAL

“1. The court a quo erred in awarding respondent post-divorce maintenance in the sum of USD3,000 per month on the basis that appellant had in the past afforded it and so erred in making that award against the background of appellant's dwindling income and increase in his financial obligation.

2. The court a quo misdirected itself in failing to take into account the fact that respondent had taken all the proceeds from the sale of the sole immovable property of the parties and that she has effectively been paid a lump sum payment by the appellant.

3. The court a quo misdirected itself in finding, without credible evidence, that respondent suffers from a medical condition rendering her permanently incapable of engaging in any income generating project.

4. The court a quo erred in failing to take into account the rental income derived by respondent from her Zvishavane properties and misdirected itself in putting any premium on the fact that respondent's late father's estate had not been wound up.

5. The court a quo erred in failing to grant an award which releases appellant from the control and influence of respondent and so erred in failing to take into account the fact that he is entitled to move on with his life.”

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant made the following submissions;

(a) The court a quo's findings were contrary to the evidence adduced and principles of law applicable in such matters.

(b) The exercise of the discretion by the court a quo was therefore improper and must therefore be vitiated.

(c) Contrary to evidence presented before it, the court a quo imposed an obligation upon the appellant to work for the respondent for life.

(d) The respondent has some free income in the sum of US$3,800 whilst the appellant's free income is under US$1,000.

(e) It is settled law that marriage is not a bread ticket for life.

(f) The court a quo further made a finding that the respondent was entitled to US$3,000 per month when no evidence had been placed before it showing the respondent's expenses to be in that amount. The court had no basis to come to the conclusion that her expenses were US$3,000 per month. The award did not take into account that she was earning $3,800 from her father's deceased estate through the properties she was leasing out in Zvishavane.

(g) The court further fell into error in finding that the respondent was unable to work, based on a report produced by a Dr Gunning. The appellant complained that he paid for the production of the report and yet it was only produced after he had testified and during the respondent's case. The finding that she cannot work does not mean she cannot generate income. She could employ people to do the running around for her.

(h) The respondent got a lump sum in sum of US$200,000 from the proceeds of the sale of the parties' matrimonial home which enabled her to buy another property. The appellant had to obtain a mortgage bond to acquire his own property. The US$200,000 should have set up the respondent and she should have used it in a profitable endeavour.

(i) The question of the respondent's adultery should have been taken into account in coming up with the quantum.

(j) Counsel for the appellant further submitted that the court a quo had erred in not considering the income due to the respondent from the Zvishavane properties on the basis that the estate has not been wound up. If ever it changes then she would approach the court for variation. Instead, the court turned principles of law on the head by asking the appellant to approach the court for variation if the respondent is awarded the properties.

(k) He prayed that the court interferes with the quantum and the period.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Per contra, counsel for the respondent made the following submissions;

(a) The court a quo did not act in a vacuum but in terms of facts it found to have been proven. He referred to the judgement where the court a quo deals with the facts that the court found to have been proven.

(b) The appellant, in his pleadings, did not put in issue the fact of entitlement to maintenance and the period. He offered to pay maintenance until such time as the respondent remarried or cohabited with another man. In the Notice of Appeal, he now prays that he pays the defendant the sum of US$1,500 per month for a period of five years reckoned from the date of this order until the respondent either remarries or commences to cohabit with another man. He now seeks to re-argue his case on appeal.

(c) The finding that the respondent had many ailments was based, inter alia, on the appellant's own admission. These are findings of fact. When the report by Dr Gunning was introduced there was no objection from the appellant. There was no insistence that Dr Gunning be called to testify. It would therefore be unfair to attack the court's reliance on the report.

(d) The issue of adultery was never raised as an issue to be considered regarding the respondent's entitlement to maintenance and the quantum.

(e) Again, the issue of the lump sum, realised from the disposal of the matrimonial home, was never raised as a factor in determining the amount of maintenance to be awarded to the respondent. The appellant should have given the respondent due notice that the lump sum would be taken into account in considering the issue of maintenance.

ISSUES

From the above submissions, and the pleadings by the parties, the issue for determination is the quantum of post divorce maintenance and the period.

In my view, this should have been the sole issue before the court a quo. It however proceeded to consider the question of entitlement to such maintenance. This was improper as the appellant, in paragraph 9 of his declaration, pleaded as follows:

“9 It is just and equitable that plaintiff (appellant) pay maintenance to defendant in the sum of US$750 per month for a period of one year commencing with effect from December 2009 or until such time as the defendant should remarry or live with another man as man and wife whichever should occur first.”…,.

Clearly, the appellant did not take issue with the respondent's entitlement to post divorce maintenance at that stage, and throughout the trial, but, rather, put in issue the quantum and the period....,.

The law is clear that parties are bound by their pleadings and they are not allowed to depart from them without leave.

The remarks by the authors JACOB and GOLDREIN in Pleadings: Principles and Practice (Sweet & Maxwell London, 1990)…, which are cited with approval in the judgment in Jowel v Bramwell-Jones & Ors 1998 (1) SA 836,898 are apposite and to the following effect:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings…; for the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.

Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.

The Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the court to enter upon an enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings…,.

In the adversary system of litigation, therefore, it is the parties themselves who set the agenda of the trial by their pleadings and neither party can complain if the agenda is strictly adhered to…,.”

See also Dube v Bushman Safaris & Another HB112–13; Matambanadzo Bus Service (Pvt) Ltd v Magner 1971 (1) RLR 543…,.

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

The applicant filed an urgent chamber application for a provisional order of stay of eviction as interim relief and a final order that he should remain in peaceful occupation of immovable property known being Stand number 107 of Salisbury Township, also known as Number 102 Harare Street, Harare.I heard the ...

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

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

THE BACKGROUND TO THE APPLICATION

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

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

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

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

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

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

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

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

APPEAL TO THIS COURT IN CASE SC599/18

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

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

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

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

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

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

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

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

“It is ordered, by consent, that:

The appeal is dismissed with costs.”

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

Appealed
SC58-20 : YUSUF GAIBIE and MILLY GAIBIE N.O. vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is an appeal against the whole judgment of the High Court sitting at Bulawayo in which it granted absolution from the instance against the appellants' claim.FACTUAL BACKGROUNDThis is a contractual dispute. The appellants and the respondents entered into an Agreement of Sale in respect of a certain piece of ...

This is an appeal against the whole judgment of the High Court sitting at Bulawayo in which it granted absolution from the instance against the appellants' claim.

FACTUAL BACKGROUND

This is a contractual dispute. The appellants and the respondents entered into an Agreement of Sale in respect of a certain piece of land being Stand 710 Bulawayo Township in the District of Bulawayo known as Sunkist Flats situate at No.68 Samuel Parirenyatwa Street/Corner 6th Avenue, Bulawayo (“the property”).

In terms of the agreement, the purchase price of the property was in the sum of Z$11,500,000,000 (eleven billion five hundred million dollars) payable in instalments. The first instalment of Z$5,000,000,000 (five billion dollars) was to be paid upon signing of the agreement and was duly paid. The second instalment of Z$5,000,000,000 (five billion dollars) was payable by 27 January 2006 and the third instalment of Z$1,500,000,000 (one billion five hundred million dollars) upon the respondents taking occupation of the property.

On 27 January 2006, the respondents paid Z$1,800,000,000 (one billion eight hundred million dollars) instead of the agreed Z$5,000,000,000 (five billion dollars). After the respondents failed to pay the remaining amount within the stipulated time, the parties signed an addendum to the Agreement of Sale allowing the respondents an extension of time within which to pay the remaining amount.

It was signed by the parties on 16 February 2006 and it gave the respondents up to 28 February 2006 to pay the remaining balance. Pursuant thereto, the respondents made further payments.

It is common cause that by 28 February 2006 they had not cleared the amount outstanding. A further payment was made on 3 March 2006. By that date, a total of Z$9,200,000,000 (nine billion two hundred million dollars) had been paid by the respondents leaving a balance of $2,300,000,000 (two billion three hundred million dollars).

The respondents allegedly held on to this amount in the belief that the amount was to be paid to the sellers' conveyancers in terms of Clause 4.5 of the Agreement of Sale.

On 15 March 2006, the appellants wrote a letter to the respondents giving them 30 days' written notice to remedy their breach failing which the appellants would cancel the agreement. The letter further required the respondents to pay the sum of Z$2,300,000,000 (two billion three hundred million dollars) to their conveyancers, Messrs Baron & Partners, as provided for in the agreement as well as the outstanding interest charges as provided for in the addendum.

The respondents paid an additional amount of $1,200,000,000 (one billion two hundred million dollars). After getting no further response from the respondents pursuant to the letter of 15 March 2006, in respect of the outstanding amount, the appellants instituted proceedings in the court a quo against the respondents. They claimed cancellation of the Agreement of Sale. They tendered a refund of all the amounts paid as the purchase price as at the date of the summons. They further claimed costs of suit on the attorney and client scale in the event that the respondents opposed the matter.

The respondents denied breaching the Agreement of Sale and stated that they had complied with the agreement by paying the purchase price in full.

The matter was referred to trial on mainly two issues;

(i) The first issue was whether the defendants (the respondents) had breached the contract.

(ii) The other issue was whether the plaintiffs (the appellants) were entitled to cancel the agreement based on the defendants' breach.

The appellants gave evidence on their own behalf and closed their case.

Thereafter, the respondents applied for absolution from the instance arguing that the appellants had not proved a prima facie case as they had failed to prove any breach of the Agreement of Sale and a right to cancel the agreement.

On 5 July 2018, the court a quo granted the respondents' application for absolution from the instance reasoning that the plaintiff's case was full of glaring inconsistencies and unacceptable variances with the pleadings filed of record. It found that the appellants had failed, at the close of their case, to establish a prima facie case.

The appellants, aggrieved by that decision, filed the present appeal on the following grounds;

“GROUNDS OF APPEAL

1. The court a quo erred in law by granting absolution from the instance when the appellants had established a prima facie case of breach of contract by the respondents which breach entitled the appellants to cancel the contract.

2. The court a quo grossly misdirected itself on the facts by concluding that the appellants received the full purchase price set out in the contract when there was sufficient evidence to the contrary and no reasonable court, applying its mind to the evidence on record and the test for absolution from the instance, could have arrived at the same conclusion.

3. The court a quo grossly misdirected itself on the facts by concluding that the appellants had admitted that they had received the full market value of the property agreed upon at the time of contracting when there is no basis for such a conclusion and no reasonable court could have arrived at the same conclusion.

4. The court a quo erred in law by concluding that the appellants are not entitled to cancel the contract on account of breach by the respondents because the appellants allegedly breached the contract first, which alleged breach by the appellants was never pleaded by the respondents as a defence to the appellants` claim.

5. The court a quo erred in law by applying the contra preferentum rule against the appellants when there was no ambiguity at all as to the breach committed by the respondents and the appellants right to cancel the contract.”

Notwithstanding the number of grounds of appeal raised by the appellants, the court takes the view that the present appeal turns on the sole issue of whether or not the court a quo was correct in granting the application for absolution from the instance made by the respondents.

THE APPLICABLE LAW

The law to be applied in the present circumstances was eloquently articulated by MAKARAU JA in Competition and Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd SC58-19…, where she said the following:

“[13] The law on when a court may grant absolution from the instance at the close of the plaintiff's case is settled. See Supreme Service Station (1969) (Private) Limited v Fox & Goodridge Limited 1971 (1) ZLR 1 (A) and United Air Charters (Private) Limited v Jarman 1994 (2) ZLR 341 (S). The court granting absolution must be satisfied that there is no evidence before it upon which a reasonable court might find for the plaintiff.

[14] Expressed differently, the court considering an application for absolution from the instance must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action. If there is some evidence on all the essential averments, absolution should not be granted. If there is evidence on some, but not on all, the essential averments, absolution may be granted, for, in that instance, the plaintiff will not be able to sustain and perfect its cause of action. This is so because an application for absolution from the instance stands on pretty much the same footing as an application for the discharge of an accused person at the close of the State case albeit on a lower threshold of the burden of proof.

[15] It follows then that a court granting absolution must be clear on the essential averments that a plaintiff has to make to sustain the cause of action.”

See also United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…,.

APPLICATION OF THE LAW TO THE FACTS

In casu, it is common cause that the appellants' cause of action was breach of contract.

Clause 1.1 of the agreement, which regulated the purchase price and its payment, provided as follows:

“The purchase price of the property shall be the sum of $11,500,000,000 (eleven billion five hundred million dollars) which shall be payable in accordance with the provisions specified under Special Conditions elsewhere in this agreement.”

The relevant part of the Special Conditions clause provided as follows:

“4.2 THE FIRST PAYMENT in the sum of $5,000,000,000 (Five Billion Dollars) shall be payable upon signing of this agreement by RTGS transfer to an account to be advised.

4.3 THE SECOND PAYMENT in the sum of $5,000,000,000 (Five Billion Dollars) shall be payable on or before the 27th January 2006 by RTGS transfer to an account to be advised, else the Midrate applies thereafter.

4.4 THE THIRD PAYMENT in the sum of $1,500,000,000 (One Billion Five Hundred Million) shall be payable on the Purchaser obtaining occupation of the property.

4.5 The two parties agree that any amounts paid shall be immediately released to the sellers save for any amounts required by law to be of the Conveyancers on account of Capital Gains Tax.

…,.

4.8 In the event that the sum of $10,000,000,000 (Ten Billion Dollars) deposit shall not have been paid in full by the 10th February 2006 the Sellers shall have the right to cancel the Agreement forthwith notwithstanding to the contrary containing this Agreement.”

The addendum to the agreement granted the respondent extension of time to pay the outstanding amount by 28 February 2006.

The appellants argue that the second instalment of Z$5,000,000,000 (five billion dollars) was not paid in full as was required by the agreement and that the respondents only paid Z$1,800,000,000 (one billion eight hundred million dollars) thus leaving a balance of Z$3,200,000,000 (three billion two hundred million dollars). The second instalment ought to have been paid by 27 January 2006.

The respondents do not deny this but seek to aver that the addendum to the agreement granted them an extension to pay the outstanding amounts by 28 February 2006.

While that may be true, it is also correct that by the time the extension provided by the addendum had expired, the respondents had not yet paid the full Z$11,500,000,000 (eleven billion five hundred million dollars) as required by the agreement of sale as read with the addendum. Instead, they had only managed to pay Z$9,200,000,000 (nine billion two hundred million dollars) leaving a balance of Z$2,300,000,000 (two billion three hundred million dollars).

The last payment towards the purchase price was paid on 14 July 2006.

In addition, it is common cause that on 15 March 2006 the appellants wrote to the respondents giving them 30 days' notice in which to pay the outstanding amounts - which they failed to do.

The respondents argued that they paid the purchase price in full to the second respondent's account. The balance of Z$2,300,000,000 (two billion three hundred million dollars) was to be paid to the appellants' conveyancers. By the time the appellants issued summons they (the appellants) had not opened a file with their conveyancers.

It is this Court's view that the respondents have to explain why they failed to pay the amount they claimed was due to the conveyancers upon being advised of the identity of the conveyancers.

It is common cause that the respondents attempted to pay by cheque and it was returned by the Bank in April 2006. It was not clear why the cheque was returned.

Regarding the issue of whether the appellants were entitled to cancel the agreement, it is this Court's view that it is a question of interpretation of the agreement as read with the addendum. This can only be done after the court would have heard evidence from both sides.

As it is, the Court has heard the appellants' side only.

In this vein, therefore, the appellants established a prima facie case of breach of the agreement by the respondents. The full amount, as stated in the agreement, had not been paid at the time of issuance of the summons.

Once evidence has been adduced which constitutes prima facie proof of breach, then, such evidence may become proof, on a preponderance of probabilities, and a plaintiff will succeed in proving his or her case. The courts must be slow to grant absolution from the instance and this point was made in Katerere v Standard Chartered Bank Zimbabwe Ltd HB51-08 which was quoted with approval in Bakari v Total Zimbabwe (Pvt) Ltd SC21-19. It was stated that:

“The court should be extremely chary of granting absolution at the close of the plaintiff's case. The court must assume that, in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not, at this stage, evaluate and reject the plaintiff's evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance at the close of the plaintiff's case may be granted if the plaintiff has failed to establish an essential element of his claim - Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26 (A); Sithole v PG Industries (Pvt) Ltd HB47-05.”

The same point had been made earlier on in Manyange v Mpofu & Ors 2011 (2) ZLR 87 (H)…, where it was stated that;

“The test to be applied as to whether to grant absolution is not whether the evidence for the plaintiff establishes what would finally be required to be established to obtain judgment. It is whether the plaintiff has made out a prima facie case against the defendant on the basis of which the court could or might find for the plaintiff. A reticent defendant should not be allowed to shelter behind the procedure of absolution from the instance. In practice, the courts are loathe to decide upon questions of fact without hearing all the evidence from both sides, and have usually inclined towards allowing the case to proceed. At this stage of the trial, it is not pertinent to evaluate the weight of the evidence adduced or the preponderance of probabilities, save where such findings are manifest from the evidence already heard.”

See also Chombo v Minister of Safety and Security (I3883/2013) [2018] NAHCMD 37.

It bears mention that the appellants only had to prove a prima facie case and their evidence a quo cannot be characterized as having been manifestly unsatisfactory, unreliable, or that it failed to establish an essential element of the claim. An arguable case was made out and the respondents ought to have been put to their defence.

At the hearing of the matter, counsel for the appellants sought to argue that the court a quo did not apply its mind to the matter that was before it for the reason that the judgment of the court a quo is a regurgitation of the respondents (then defendants a quo) submissions. He submitted that the court a quo simply adopted the evidence and submissions of the respondents without independently assessing it and without having regard to the appellants' submissions.

Per contra, counsel for the respondents argued that this was not an issue that had been raised in the grounds of appeal and thus could not be properly raised for the first time at this hearing.

On the merits, she argued that the court a quo did not produce a biased decision and for authority she relied on the case of Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd 2011 (1) SA 267 (CC).

In that case, the Constitutional Court of South Africa, in no uncertain terms, refrained from determining the question whether the extensive use of counsel's heads of argument could lead to a perception of bias because it was not a question before it. It merely expressed its views on such conduct.

The views are obiter and not binding.

However, in casu, it is apparent that the court a quo did not regurgitate the submissions made by the respondents in the court a quo. There are differences between the submissions and the final judgment. As a result, the court takes the view that while it may be undesirable for a court to plagiarize counsel's heads of argument in a judgment, this does not necessarily, without more, amount to a misdirection.

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

This is an application for leave to appeal against a decision of the Labour Court, handed down on 27 October 2014, dismissing with costs, an appeal to that court against a decision of the respondent dismissing the appellant from employment.

Leave to appeal was denied by the Labour Court on the premise that the intended appeal had no prospects of success.

The facts of this application are common cause.

The applicant was employed as a Senior Security Officer by the respondent. Prior to that, he was employed by the Reserve Bank of Zimbabwe which owed him money upon the termination of his employment. It was a condition of the Reserve Bank that for the applicant, and others similarly placed, to access the money owed, they had to make an application showing good cause. A death or illness in the family could constitute such good cause.

In an effort to access the owed amount, the applicant applied to the Reserve Bank for the amount of US$3,500 attaching a burial order of one Sidubi D Moyo, his grandfather. The burial order was fake. The Reserve Bank reported the matter to the respondent, a sister company, which, acting on the report, charged the applicant with an act of misconduct. The applicant was convicted and thereafter dismissed from employment. He appealed to the Labour Court which, as stated above, dismissed the appeal.

It is the applicant's intention to appeal against the decision of the Labour Court.

I cite here, in full, the grounds of the intended appeal. They are framed as follows:

1. The court a quo erred on a point of law by upholding the charge against the appellant when such a charge was founded on the requirement by the Reserve Bank that its former employee apply to it for payment of their arrear salaries and terminal benefits, which condition is unlawful and nullity. (sic).

2. The penalty imposed on the appellant was a nullity in that there was no compliance with the respondent's Code of Conduct requiring that the Worker's Committee be consulted before such a penalty is imposed.

3. Alternatively, the court a quo erred on a point of law in that it was at large to interfere with the penalty of dismissal because there was no compliance with the respondent's Code of Conduct requiring that the Workers' Committee be consulted before a penalty of dismissal is imposed.

4. Alternatively, the court a quo misdirected itself on a point of law in refusing to interfere with the penalty of dismissal upon a finding that the circumstances of the matter merited a less severe penalty.

The application for leave to appeal was opposed on the basis that the intended grounds of appeal did not disclose any basis upon which the refusal by the Labour Court to interfere with the penalty imposed by the employer could be challenged or could be regarded as an error at law. Accordingly, and in short, it was argued that the appeal had no prospects of success.

At the hearing of the application, without abandoning the other grounds, counsel for the applicant restricted his argument to the last ground of appeal as one that might enjoy some prospects of success on appeal.

I pause to note, in passing, that counsel for the applicant was wise in not expending his energies on the first three grounds of the intended appeal.

The first ground is ill-conceived as it seeks to challenge the validity of an administrative policy by the Reserve Bank of Zimbabwe to limit access to the arrear salaries and benefits of its former employees. This issue, even though raised before the Labour Court, was not an issue properly before that court in appeal proceedings in which the Reserve Bank of Zimbabwe not only lacked interest, but was not a party.

The second and third grounds of appeal are inter-related, not only because they are raised in the alternative but also because they seek to raise the same issue. This is in relation to the irregularity allegedly attendant upon the imposition of the penalty of dismissal.

It was alleged by the applicant, and denied by the respondent, that the Worker's Committee was not consulted before the penalty of dismissal was imposed.

For the purposes of this application, it is not necessary that I determine whether the Workers Committee was consulted or not before the applicant was dismissed. This is so because not only was this an issue that should have been properly brought in an application for review before the Labour Court, but, more importantly, it was never brought to the attention of the court, which, as a result, did not make any findings on it.

Therefore, the court could not have erred as alleged or at all in respect of an issue that was not before it and one that it did not determine.

SSC67-20 : PROSECUTOR GENERAL OF ZIMBABWE vs INTRATEK ZIMBABWE PL and WICKNELL CHIVAYO and L NCUBE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

This is an appeal against the whole judgment of the High Court handed down on 20 March 2019, quashing the charges that the first and second respondents were facing in an ongoing criminal trial before the third respondent and acquitting them on all the charges.Background FactsThe facts giving rise to ...

Background Facts

The facts giving rise to this appeal are common cause. The first and second respondents appeared before the third respondent, a Regional Magistrate, facing four counts as follows:

1. Two counts of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9.23], fraud;

2. One count of contravening section 5(1)(a)(ii) of the Exchange Control Act [Chapter 22.05]; and

3. One count of contravening section 5(1)(a)(i) of the Exchange Control Act [Chapter 22.05].

They pleaded not guilty, and, at the same time, excepted to the charges as not disclosing the alleged offences or any other offence.

Relying on the provisions of section 146 of the Criminal Procedure and Evidence Act [Chapter 9.07], the third respondent found that the charges captured the essential averments and allegations required by law. Accordingly, he ruled against the exception which he dismissed.

Unhappy with the ruling, the first and second respondents approached the court a quo, on review, seeking an order setting aside the decision of the third respondent and substituting it with one upholding the exception, quashing the charges, and acquitting them on all the charges. They raised one ground of review. They alleged that the third respondent's decision to dismiss the exception was grossly unreasonable and patently contrary to law such that no reasonable judicial officer who had applied his mind to the facts of the matter would have reached the same decision.

The application for review was opposed.

In opposing the application, the appellant argued, in the main, that this was not a proper case for the court a quo to exercise its discretion to review un-terminated proceedings in a lower court.

Pending determination of the review, the first and second respondents applied to the court a quo for an order staying the proceedings before the third respondent.

By an order issued on 31 December 2018, the application was granted in respect of the fourth count only with trial in respect of the remaining three counts ordered to continue. It was the opinion of the court granting the interdict that the first and second respondents had no prospects of success on review in respect of the remaining counts.

Dismissing the opinion of the court granting the interdict as not binding on it, the court a quo granted the application as indicated above. The decision a quo, as a basis for granting the application in the manner that it did, the court a quo found as follows:

“It is therefore clear that the second respondent misdirected himself when he dismissed the exception because he dealt with an issue that was not before him. He decided whether the charges disclosed an offence or not yet what he had been asked to adjudicate upon was whether the facts, as stated in the Outline of the State Case, disclosed any offence or not. This misdirection, in my view, goes to the root of the matter.

Having found that there was a misdirection what is left for the court to decide is whether if the court had decided the correct issue the court would have arrived at the same findings…,.”

Thus, the ratio of the decision a quo was the finding that the third respondent misdirected himself when he dismissed the exception because he dealt with an issue that was not before him. As a result of this alleged misdirection, the court a quo felt at large to substitute its own discretion for that of the third respondent - which it proceeded to do.

Dissatisfied with the acquittal of the first and second respondents, the appellant noted this appeal, having obtained leave in terms of section 44(6) of the High Court Act....,.

I now turn to the merits of the appeal.

The Appeal

In the main, the appellant argued that the court a quo erred in interfering with unterminated criminal proceedings in a case where there were no exceptional circumstances warranting such interference and particularly where the trial had commenced and evidence was being led before the subordinate court.

In addition, the appellant raised three other grounds attacking the court a quo's finding to the effect;

(i) That the facts alleged in the outline of the State case did not disclose an offence;

(ii) That the facts of the matter gave rise to a civil matter only to the exclusion of criminal proceedings; and

(iii) That the second respondent ought not to have been charged in his personal capacity.

The Issue

The sole issue that arises in this appeal is whether the court a quo erred by interfering with the unterminated proceedings before the third respondent.

The Law

The general rule on when a superior court may interfere with the un-terminated proceedings of a lower court was settled in Attorney-General v Makamba 2005 (2) ZLR 54 (S) where MALABA JA…, had this to say…,:

“The general rule is that a superior court should interfere in uncompleted proceedings of the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In settling the rule thus, the court referred to the South African case of Ishmael & Ors v Additional Magistrate Wynberg & Anor 1963 (1) SA 1 (A) where it was similarly observed that a superior court should be slow to intervene in unterminated proceedings in a court below and should confine the exercise of its power to those cases where grave injustice might otherwise result or where justice by other means may not be obtained.

Thus, put conversely, the general rule is that superior courts must wait for the completion of the proceedings in the lower court before interfering with any interlocutory decision made during the proceedings.

The exception to the rule is that only in rare or exceptional circumstances, where the gross irregularity complained of goes to the root of the proceedings, vitiating the proceedings irreparably, may superior courts interfere with on-going proceedings.

The rationale for the general rule may not be hard to find.

If superior courts were to review and interfere with each and every interlocutory ruling made during proceedings in lower courts, finality in litigation will be severely jeopardised and the efficacy of the entire court system seriously compromised. Further, it is not every irregular and adverse interlocutory ruling or decision that amounts to an irreparable miscarriage of justice. Some such lapses get corrected or lose import during the course of the proceedings; and, in any event, as observed by STEYN CJ in Ishmael & Ors v Additional Magistrate Wynberg & Anor 1963 (1) SA 1 (A), it is not every failure of justice which amounts to a gross irregularity justifying intervention before completion of trial. Most can wait to be addressed on appeal or review after final judgment.

Analysis

Whilst the general rule on when a superior court may interfere in ongoing proceedings in a lower court was common cause to the parties, the court a quo appeared to have been oblivious of the correct approach to adopt in the matter. Instead of finding a reason for departing from the general rule, as settled in the authorities and legal texts, the court a quo was content to find that the third respondent had misdirected himself by dealing with an issue that was not before him as a basis for interfering with the on-going trial of the first and second respondents.

The decision of the court a quo cannot be saved.

The court a quo fell into grave error in one or two respects;

(i) Firstly, the court a quo did not adopt the correct approach of when to exercise its review powers in ongoing proceedings, which approach has been discussed above. It did not establish those rare or exceptional circumstances in the matter that called for its intervention and which circumstances could not wait until the trial was completed.

The first and second respondents had in fact indicated, in their founding affidavit, that such circumstances would be advanced at the hearing of the matter. If these circumstances were indeed revealed to the court a quo, they did not form part of its reasoning, and, more importantly, the basis of its decision to grant the application. The net result was that the court a quo did not find, as it ought to have, that this was a rare case in which the irregularity complained of was not only gross but vitiated the proceedings irreparably before it interfered with the ongoing trial. Instead, the court a quo proceeded on the wrong footing. It found a misdirection on the part of the third respondent, a finding that was neither material nor adequate to justify its interference.

This is so even if the alleged misdirection was conceded to by the appellant.

The power of the court a quo to interfere with on-going proceedings is not conferred upon the court by the consent of the parties. Even where the parties agree, as in casu, that there had been a misdirection by the lower court, this did not absolve the court a quo from judiciously assessing whether this was a proper case for it to interfere and not to allow the proceedings in the lower court to run their full course. Had the court a quo done this it would have found that this was clearly not a proper case for interfering with the unterminated proceedings before the third respondent.

(ii) Secondly, and in any event, the first and second respondents having raised a specific ground of review, the court a quo was duty bound to make a finding on the alleged gross irregularity.

There was thus a wide and patent disconnect between the ground alleged in the application for review and the ratio of the decision a quo. The first and second respondents had alleged irrationality in the interlocutory decision, which allegation the court a quo did not determine, let alone advert to in its judgment.

It is therefore my finding that the court a quo erred in interfering with the unterminated criminal proceedings before the third respondent. It erred by failing to make a finding that the ground of review raised by the first and second respondents had been proved and that having been so proved, it brought out a miscarriage of justice that not only went to the root of the matter and vitiated the entire proceedings but could not wait to be redressed after the completion of the trial. More particularly, the court a quo erred in taking the wrong approach in the matter.

Disposition

The appeal must be allowed and the judgment of the court a quo set aside. The trial of the first and second respondents, before the third respondent, must proceed.

This being an appeal by the Prosecutor-General in terms of section 46 of the High Court Act, it is just and equitable that each party be made to bear its own costs of this appeal.

In the result, I make the following order:

1. The appeal is allowed with each party bearing its own costs.

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

“1. The application for review is dismissed with each party bearing its own costs.

2. The trial of the second and third respondents, under case number CRB114-5/18, before the third respondent, is ordered to proceed.”

Appealed
SC188-20 : GERALD CHIGWADA vs PENELOPE CHIGWADA and SHEPHERD KUSADA N.O. and MASTER OF THE HIGH COURT
Ruled By: MALABA CJ, GARWE JA, MAKARAU JA, GOWORA JA and BERE JA

This is an appeal against the whole judgment of the High Court.

The question for determination is whether the law governing the property rights of married persons, or the law of testamentary disposition of estates, binds a testator to bequeath his or her right in an estate to the husband or wife.

The Court holds as follows;

The law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act [Chapter 5:12] which provides that, since 1929, marriages in Zimbabwe are out of community of property. Parties to a marriage out of community of property are legally entitled to own and dispose of property in their individual capacities.

The law of testamentary disposition in Zimbabwe recognises the doctrine of freedom of testation and does not oblige a testator to bequeath his or her property to the surviving spouse.

The law of testamentary disposition, which is based on the universal principle of equality of men and women, gives a right to a person married out of community of property to dispose of his or her estate, by will, to whomsoever he or she chooses.

Decisions of the High Court, to the effect that a testator is, in the circumstances, bound to leave his or her property to the husband or wife and declaring testamentary disposition to the contrary to be void are inconsistent with the law. They should no longer be followed.

The reasons for the decision of the Court now follow.

FACTUAL BACKGROUND

The facts are common cause. The first respondent was married to the late Aaron Chigwada (“the deceased”) in 1971 in terms of customary law. In 1975, the parties had the union solemnised in terms of the Marriage Act [Chapter 5:11]. Before marrying the first respondent, the deceased had been married to the appellant's mother. They had divorced.

The deceased had six children with his first wife, the appellant being the fifth child and the youngest son.

During the subsistence of their marriage, the first respondent and the deceased acquired a house, Stand No.28181 Harare Township of Salisbury Township Lands, also known as No.85 Vito Street (“the immovable property”). The immovable property, which became the matrimonial house, was registered in the joint names of the husband and wife. Each spouse owned half of the beneficial interest in the house.

On 20 September 2007, the deceased made a will, in terms of which he bequeathed his half share of the beneficial interest in the immovable property to his son, the appellant. He appointed the second respondent as the executor to give effect to the testamentary disposition. The deceased died on 19 July 2011.

The will surfaced after the deceased's death.

The first respondent, who is the surviving spouse, approached the High Court (the court a quo) challenging the right of the appellant to succeed to the half share of the beneficial interest in the immovable property left to him by the deceased in terms of the will.

The first respondent believed, from teachings at her church, that the surviving spouse had a right to inherit the estate of the deceased husband or wife regardless of the existence of a will disposing of the property to a person other than the surviving spouse. Motivated by the belief she held, she thought that had it been the testator's intention to bequeath the property to his child, he ought to have bequeathed it to all the children that survived him.

During the proceedings in the court a quo, the only issue that remained for determination was whether the will was valid under the Wills Act [Chapter 6:06].

The other grounds for disputing the will were abandoned.

Initially, the first respondent sought an order declaring the will void on the allegation that the deceased lacked mental capacity to execute the will. She had also alleged fraud and undue influence. The first respondent eventually settled on the allegation that the will was invalid because the disposition did not leave the testator's estate to her as the surviving spouse.

The contention addressed the question of the essential validity of the will by making the allegation that the law of testamentary disposition binds a spouse to leave his or her entire estate to the husband or wife.

THE QUESTION FOR DETERMINATION IN THE COURT A QUO

The question for determination was whether there was a law which binds a spouse desirous of disposing of his or her estate, by will, to leave the property to the surviving spouse. If the correct finding by the court a quo was that there was such a law, the disposition by the deceased of his estate by will, to the appellant, would be void on account of failure to comply with an essential requirement of validity.

The question for determination by the court a quo was not one of construction of any of the provisions of the Wills Act. The learned Judge identified what she believed to be the law binding a spouse intending to make a disposition of his or her property by will to leave the estate to the surviving spouse as section 3A of the Deceased Estates Succession Act [Chapter 6:02].

The law in question addressed matters of succession to an intestate estate and had nothing to do with the question of the right of a testator to dispose of his or her property to whomsoever he or she chooses.

The learned Judge, nonetheless, found that section 3A of the Deceased Estates Succession Act [Chapter 6:02] was the law referred to in section 5(3)(a) of the Wills Act as the “law governing the property rights of married persons”, to which the validity of the disposition of property by will is made to be subject.

In what can only be described as an unusual process of reasoning, the learned Judge concluded that section 3A of the Deceased Estates Succession Act binds a married person to dispose of his or her estate, by a will, to his wife or her husband. She held that the deceased's will was void for contravening section 3A of the Deceased Estates Succession Act because it gave effect to a disposition of his estate to a person other than the surviving spouse.

The court a quo set aside the deceased's will, leaving the estate to be disposable in terms of the law of intestate succession.

The appellant was aggrieved by the court a quo's decision, against which he appealed to the Court.

The interpretation and application of section 5(3)(a) of the Wills Act has given rise to conflicting judgments in the High Court. The conflicting decisions of the High Court, on the question whether a person married out of community of property in Zimbabwe enjoys freedom of testation or is bound to dispose of his or her estate, by will, to the surviving spouse have caused confusion and created uncertainty in the minds of members of the public as to the correct legal position.

A five-member Bench of the Court had to be constituted to answer the divisive question once and for all.

CONFLICTING DECISIONS OF THE HIGH COURT

It is prudent to set out the cases which support the two different schools of thought in order to appreciate the nature and source of the conflicting decisions rendered by different Judges of the High Court on the matter.

In Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H)…, (“the Wakapila decision”) KUDYA J had this to say:

“The argument advanced by Mr Matimba, that the surviving spouse is vested with rights in a deceased estate, in which a testamentary disposition has been made at the time of death, is fallacious for three reasons;

(i) The first is that the divested property, subject to acceptance by the beneficiary, no longer belongs to the testator.

(ii) The second being that giving such a meaning to the provision in issue would result in so radical an alteration of the common law power of a spouse to dispose of his or her property to whomsoever he or she wishes.

If the lawmaker intended such a radical departure from the common law it would have said so in clear language.

It would be absurd to allow the spouse to dispose of his or her property during his or her lifetime but take away that power from him or her to dispose of it by will.

(iii) The third, being that a wife married under customary law can only inherit from her husband's estate if he dies intestate. Where he has disposed of his estate by a will, she does not inherit and thus has no rights in any property belonging to his estate.”

In Roche v Middleton HH198-16 CHITAKUNYE J held that the Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) decision was based on the correct interpretation and application of section 5(3)(a) of the Wills Act. The court intimated that it would be absurd to hold that a person who could dispose of his or her property without the other spouse's consent would lose the right to dispose of it by will to whomsoever he or she chooses. The court further held that if the Legislature intended such a radical departure from the common law it would have enacted express provisions to that effect.

The reasoning championed by Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) was to be rejected in later decisions of the High Court where the position adopted was that a will which does not bequeath the matrimonial house to the surviving spouse is void.

The departure from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) was registered in Chimbari NO v Madzima and Ors HH325-13, where the court held that section 5(3)(a) of the Wills Act prohibits a testator from disinheriting a surviving spouse. The court, in that case, held that the provisions of section 5(3)(a) were put in place to safeguard the rights that accrue to a surviving spouse at the death of the testator.

In Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) (“the Chiminya decision”) the court expressed the view that the purpose of section 5(3)(a) of the Wills Act was to cure the mischief by testators who wanted to disinherit their surviving spouses. The reasoning of the court was based on the assumption that the surviving spouse has a “right of inheritance” which is protected by section 5(3)(a) of the Wills Act. The court relied on section 3A of the Deceased Estates Succession Act which it said prescribed inheritance principles regarding surviving spouses.

The court adopted the reasoning, notwithstanding the fact that section 3A of the Deceased Estates Succession Act applies where the deceased died intestate whilst section 5(3)(a) of the Wills Act addresses requirements for the validity of disposition of estates of married persons by will.

The reason given by the court, for relying on section 3A of the Deceased Estates Succession Act, was that the provision was in conformity with section 56 of the Constitution which prohibits discrimination based on marital status and promotes equality before the law.

The reasoning, with respect, is not logical, as there was an admission of the fact that section 3A of the Deceased Estates Succession Act was irrelevant to the matter under discussion. The attempt to draw similarities between the purpose of section 5(3)(a) of the Wills Act and that of section 3A of the Deceased Estates Succession Act was unnecessary.

The court had this to say at 453E-G:

“I am alive to the fact that the Deceased Estates Succession Act [Chapter 6:02] deals with intestate succession. Suffice to mention, at this stage, that I have alluded to it in so far as it is in conformity with the Constitution and insofar as it recognises the surviving spouse's right to inheritance. In the same manner, the Wills Act [Chapter 6:06] recognises the surviving spouse's rights by having provisions such as section 5(3)(a) which recognise rights of a surviving spouse and seek to protect inheritance right of a surviving spouse even where the other spouse dies testate.”

The approach adopted in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) was followed in Majuru v Majuru HH404-16 where the court held that a will that disinherited a surviving spouse was in contravention of section 26 of the Constitution which recognises equality of spouses during marriage and at dissolution either through death or divorce. The court held that disinheriting a spouse was contrary to public policy and prejudiced the surviving spouse's right to inherit the deceased's estate.

This is also a judgment based on the wrong premise that section 5(1) of the Wills Act, which gives every person, possessed of the capacity to do so, a right to dispose of his or her estate by will to whomsoever he or she pleases, is not based on the principle of equality of men and women.

The reasoning in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) was also adopted in Nyamnshanya and Ors v Nyamnshanya and Ors HH693-17.

The court held that a will which disinherited a surviving spouse was void for the reason that it contravened section 5(3)(a) of the Wills Act and section 3A of the Deceased Estates Succession Act. The court further held that the surviving spouse's right to inherit the deceased spouse's estate was guaranteed by the statutory provisions and that the will ran foul of the law by bequeathing the matrimonial house to a person other than the surviving spouse.

Needless to say, the decision was also based on the erroneous proposition that there is a correlation between the provisions of section 5(3(a) of the Wills Act and those of section 3A of the Deceased Estates Succession Act.

The departure from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) to Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) is predicated on the presumed applicability of section 3A of the Deceased Estates Succession Act in the interpretation of section 5(3)(a) of the Wills Act.

Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) is to the effect that the rights of the surviving spouse, protected by section 5(3)(a) of the Wills Act, are those that the surviving spouse holds at the time that the will is executed. In other words, the rights must flow from a law which governed the rights of the deceased spouse and the surviving spouse while they were both alive. On the other hand, Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) holds that section 5(3)(a) of the Wills Act protects the rights that a surviving spouse holds under section 3A of the Deceased Estates Succession Act.

Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H) suggests that the rights which flow from section 3A of the Deceased Estates Succession Act entitle a surviving spouse to inherit the matrimonial house. This is a departure from Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H).

REASONING OF THE COURT A QUO

The court a quo adopted the reasoning in Chiminya v Estate Late Chiminya and Ors 2015 (1) ZLR 450 (H). It held that the testator's will, which bequeathed his half share of the beneficial interest in the matrimonial house to the son, was invalid because it had prejudiced the surviving spouse's right to inherit the whole beneficial interest.

The court a quo stated that section 3A of the Deceased Estates Succession Act is the law governing the property rights of married persons. It held that if the deceased had died intestate, the surviving spouse would have been entitled to inherit the matrimonial house in terms of section 3A of the Deceased Estates Succession Act. The view of the court a quo was that she could not be prejudiced merely because the deceased had executed a will. The court a quo further held that the fact that section 3A of the Deceased Estates Succession Act applied to spouses who died wholly or partly intestate was indicative of the intention of the Legislature to protect surviving spouses even in situations where there was a will. The effect of the judgment was that the overriding factor was that the person affected was a surviving spouse.

The learned judge had this to say at p3 of the cyclostyled judgment:

“The fact that section 3A above includes situations where part of the estate is covered by a will as evidenced by the use of the phrase 'dies wholly or partly intestate' is an indication that the intention of the Legislature was to protect such spouses even in situations where there is a will.

Section 3A of the Deceased Estates Succession Act [Chapter 6:02] is part of the law referred to in section 5(3) of the Wills Act which would have made the plaintiff obtain 50% of the house from the testator's estate if the bequest to the first defendant had not been made by the testator in his will.

This means that the bequest of 50% of the matrimonial home to the first defendant in the will by the late Aaron Chigwada is the obstacle which is now prejudicing the plaintiff from the enjoyment of the only home she has ever known since she got married.

In my view, this is the mischief which the legislature intended to cure when it enacted section 5(3) of the Wills Act [Chapter 6:06]. The intention was to intervene in situations where surviving spouses would be rendered homeless by the wills of their deceased partners in situations where the will bequeathed the spouses' home, or part of it, to a third party as in the present situation.”…,.

The view of the court a quo cannot be the correct interpretation of the provisions of section 5(3)(a) of the Wills Act.

The effect of the approach adopted by the court a quo, in interpreting section 5(3)(a) of the Wills Act, is one which abrogates the right of testation given under section 5(1(a) of the Wills Act. The words “wholly or partly intestate” do not refer to property disposed of by a will. They refer to property not covered by a testamentary disposition.

At law, property is disposed of by a will or it is not.

RELEVANT STATUTORY PROVISIONS GOVERNING THE DISPOSITION OF DECEASED ESTATES

It is necessary to set out the statutory provisions at the centre of the divergent opinions of the High Court.

Section 5 of the Wills Act

“5 Power to make dispositions by will

(1) Subject to this Act, and any other enactment, any person who has capacity in terms of section four to make a will may, in his will -

(2) Subject to this Act, and any other enactment, a will shall not be invalid solely because the testator has disinherited or omitted to mention any parent, child, descendant or other relative or because he has not assigned any reason for such dis-inheritance or omission.

(3) No provision, disposition, or direction made by a testator in his will shall operate so as to vary or prejudice the rights of —

(a) Any person to whom the deceased was married to a share in the deceased's estate or in the spouses' joint estate in terms of any law governing the property rights of married persons.”…,.

Section 3A of the Deceased Estates Succession Act

“3A The surviving spouse of every person who, on or after the first of November 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate:

(a) The house or other domestic premises in which the spouses or surviving spouse, as the case may be, lived immediately before the person's death; and

(b) The household goods and effects which immediately before the person's death were used in relation to the house or domestic premises referred to in paragraph (a); where such house, premises, goods and effects form part of the deceased's estate.”

SUBMISSIONS ON APPEAL

The appellant's submissions

The submissions by counsel for the appellant were largely based on Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) and the reasoning therein. He argued that the first respondent had not been prejudiced in relation to any of her rights in the property. His argument was that the deceased owned a half share of the beneficial interest in the house and the first respondent owned the other half. The deceased did not bequeath any part of the first respondent's half share. Realizing that he owned half of the beneficial interest in the immovable property, the deceased bequeathed the estate that belonged to him. As a result, the first respondent's property rights were not varied or prejudiced as she remained the sole owner of her half share of the beneficial interest in the matrimonial house.

Counsel for the appellant submitted that the property rights referred to in section 5(3)(a) of the Wills Act are rights which exist at the time that the will is executed. The appellant's argument was that had the deceased bequeathed the first respondent's half share of the beneficial interest in the matrimonial house the bequest would have been void on account of the operation of section 5(3)(a) unless she would have consented to the variation of her rights.

He further submitted that to give to section 5(3)(a) of the Wills Act the meaning given by the court a quo would result in a radical alteration of the common law. The argument was that if Parliament intended to make such a radical departure from the common law principle of freedom of testation it would have done so through express provisions.

The first respondent's submissions

Counsel for the first respondent submitted that the first respondent was entitled to receive the deceased's half share of the beneficial interest in the matrimonial house because she is the surviving spouse. She contended that the will that had been executed by the deceased prejudiced the surviving spouse's right to inherit his estate. She argued that the right to inherit the deceased's estate was based on section 3A of the Deceased Estates Succession Act. Her argument was predicated on two legal assumptions;

(a) The first assumption was that a surviving spouse has a right to inherit the deceased's estate.

(b) The second assumption was that the law governing property rights of married persons, referred to in section 5(3)(a) of the Wills Act, is section 3A of the Deceased Estates Succession Act.

Counsel went further and submitted that the fact that most of the challengers of wills in cases of this nature are women betrays the reality of gender issues in Zimbabwe. She argued that a decision that allowed a testator to dis-inherit the surviving spouse of the matrimonial house, whilst gender neutral on the face of it, has adverse effects on women. She further contended that due to gender inequality men are the property holders. According to counsel, the decision in favour of the appellant would lead to the perception of discrimination against women on the ground of gender.

Counsel for the first respondent submitted that the Court should take cognisance of the fact that Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) was made in 2008 before the current Constitution came into effect.

The contention was that Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H) is inconsistent with the provisions of the Constitution which place emphasis on respect for gender equality, protection of vulnerable members of society, and promotion of family values.

Counsel further submitted that the rules of Constitutional interpretation include a presumption that Zimbabwe does not intend to abrogate its obligations under international law. The point made was that Zimbabwe is party to several international conventions that prohibit discrimination against women. To buttress the point, counsel made reference to the Convention on the Elimination of all forms of Discrimination Against Women (1979) (“CEDAW”) and General Recommendation 29, which speak of property rights of spouses. Reference was also made to Article 21 of the Protocol To The African Charter On Human and Peoples Rights On The Rights Of Women In Africa (“the Maputo Protocol”). She further submitted that, in terms of section 326 of the Constitution, the Court should adopt an interpretation that honours Zimbabwe's obligations under international law.

The first amicus curiae' s submissions

Ms Mahere argued that the court a quo erred in awarding the property in question to the first respondent contrary to the express intention of the testator. For this proposition she made reference to section 5(1)(a) of the Wills Act, which underscores the doctrine of freedom of testation. She said that the testator was at large to dispose of his property, by will, to whomsoever he chose. She quoted from De WAAL and MALAN "Law of Succession" (4ed, Juta & Co Ltd, Cape Town 2008) in which the learned authors state…, that, although strict formalities attach to the execution of a will, its contents are left to the discretion of the testator.

Ms Mahere also made reference to an article by EDRICK ROUX titled ''Freedom of Testation - Can a person disinherit a spouse?" DR, November 2013:48 [2013] DEREBUS 225. The writer states that freedom of testation goes beyond the testator distributing his or her assets to his or her surviving family members. He emphasizes that the assets can be distributed to whomsoever the testator chooses.

Ms Mahere further argued that the doctrine of freedom of testation is entrenched by section 71(2) of the Constitution, which provides that:

“(2) Subject to section 72, every person has the right, in any part of Zimbabwe, to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others."…,.

She submitted that the right to private property, guaranteed under the Constitution, includes the right to decide how one's property is disposed of during one's lifetime and after death.

De WAAL and MALAN "Law of Succession" (4ed, Juta & Co Ltd, Cape Town 2008), the learned authors, postulate that the Constitutional protection of the right to freely determine how one's estate is to be distributed after death protects the principle of freedom of testation that supports it. Ms Mahere argued that the right to property enshrined in section 71(2) of the Constitution, and, by extension, the right of testation, is a fundamental right.

She further quoted from De WAAL and MALAN "Law of Succession" (4ed, Juta & Co Ltd, Cape Town 2008) where…, the learned authors say:

“Nobody has a right to inherit. Leaving someone out of a will as a beneficiary therefore does not amount to an encroachment upon or taking away of an existing right. A potential beneficiary has, at most, a so-called spes or hope.”

The contention by Ms Mahere was that a court's prerogative is not to write a will for the deceased but to give effect to the testator's intention. She submitted that section 5(3)(a) of the Wills Act places a limitation on the exercise of the right of testation. The limitation is that the testator must not vary or prejudice the property rights of the person to whom he or she is married. She submitted that the first respondent had to illustrate that a right that she held in the property had been prejudiced by the testator's disposition of his own half share of the beneficial interest in the matrimonial house.

Ms Mahere emphasised the point that the property rights that are protected from possible prejudice, flowing from a disposition by the deceased, are the rights which the surviving spouse holds at the time the will is executed and not future or contingent rights.

She argued that the marriage to the deceased did not endow the first respondent with any proprietary rights in the deceased's half share of the beneficial interest in the immovable property. The contention was that the proprietary rights the first respondent had in the immovable property accrued to her as a result of the registration of her own half share in the beneficial interest as a joint owner of the matrimonial house. The deceased continued to exercise dominion over his share of the matrimonial house. Consequently, the contention that the first respondent's rights were prejudiced by the disposition by the deceased of his own property rights, by will, was not supported by the facts.

Ms Mahere further argued that the court a quo was wrong to rely on section 3A of the Deceased Estates Succession Act. It conflated instances where one died testate with instances where one died intestate.

The contention was that what determined the applicable law was the answer to the question whether the deceased died intestate or testate. The determinant factor was not the marital status of the deceased.

Her argument was that the court a quo failed to take into account the fact that marriages in Zimbabwe are out of community of property. As a result, there has to be a clear law prohibiting testamentary disposition of a matrimonial house before a court can hold that the surviving spouse's rights or interests have been prejudiced or interfered with by a disposition by the deceased of his or her estate in the matrimonial house, by will, to a person other than the surviving spouse.

On the argument by counsel for the first respondent that women ought to be protected as vulnerable members of society, Ms Mahere made the observation that the first respondent was a property holder who owned a half share in the property in question. She owned the property in her personal capacity in terms of the law governing the property rights of married persons. Consequently, the first respondent could not be deemed to be economically disadvantaged.

The second amicus curiae's submissions

The submissions made by Mr Uriri were in support of Estate Late Wakapila v Matongo & Ors 2008 (2) ZLR 43 (H). Mr Uriri submitted that section 5(3)(a) of the Wills Act does not create proprietary rights. It relates to existing rights. These rights must be provided for in terms of a law governing the property rights of married persons. He submitted that the law governing the property rights of married persons in Zimbabwe is the Married Persons Property Act [Chapter 5:12], which provides that all marriages in Zimbabwe are out of community of property. The contention was that the import of the provision of the Married Persons Property Act is that spouses are equal partners, each with the capacity and freedom to hold and dispose of property independent of the other.

Mr Uriri argued that section 5(1)(a) of the Wills Act embodies the principle of freedom of testation. He argued that the wording of section 5(3)(a) of the Wills Act is clear and requires no interpretation. He said that, in its literal sense, section 5(3)(a) of the Wills Act proscribes prejudice to the surviving spouse's rights held in terms of the law governing the property rights of married persons.

Mr Uriri contended that the purpose of section 5(3)(a) of the Wills Act is to safeguard the respective spouses' rights acquired under the Married Persons Property Act; the object of which was to abolish the matrimonial power of the husband under the community of property legal regime.

Having chosen to be married under a specific matrimonial regime, neither party requires protection from the known legal consequences of their own choice. The known consequence of marriage out of community of property is the existence of separate and divisible estates between the spouses. The contention was that property acquired by a spouse in his or her own right belongs to that spouse. The parties jointly own property by agreement.

ANALYSIS OF THE ISSUES

The first respondent based her case on the premise that the disposition by the deceased of his half share of the beneficial interest in the matrimonial house ran foul of section 5(3)(a) of the Wills Act, in that it allegedly contravened section 3A of the Deceased Estates Succession Act which entitles the surviving spouse to inherit the matrimonial house and goods in it.

A reading of section 3A of the Deceased Estates Succession Act reveals that it is not any spouse who is entitled to inherit the matrimonial house and the chattels in it. It is the spouse of a person who died wholly or partly intestate.

The first respondent is a surviving spouse of a person who died testate. She is not eligible to the benefits of entitlements that flow from section 3A of the Deceased Estates Succession Act because there was a valid will executed by the deceased.

It should follow that where there is a valid will, section 5(3)(a) of the Wills Act cannot be said to have been contravened by the disposal of a matrimonial house and the chattels therein.

The purpose of section 5(3)(a) of the Wills Act is to provide protection for the property or estate belonging to the other spouse from being disposed of by the testator, by will, as if it is part of his or her own estate. The effect of section 5(3)(a) of the Wills Act is that, if the property belongs to the other spouse, in terms of the law governing the property rights of married persons, the execution of the will disposing of that property is a nullity.

For the first respondent to benefit from the provisions of section 5(3)(a) of the Wills Act, she had to allege, and prove, that the deceased made a will by which he sought to dispose of her property.

She, however, accepted that the half share of the beneficial interest in the immovable property the deceased disposed of, by the will, belonged to him.

She claimed a right to the immovable property on the sole ground that she was the surviving spouse.

Section 5(3)(a) of the Wills Act could not be invoked to assist her cause. Subject to the condition that a disposition of an estate by will must not have the effect of varying or prejudicing the property rights of a spouse under a law governing property rights of married persons, section 5(3)(a) of the Wills Act does not subtract from the right of testation provided for in section 5(1).

Section 5(2) is important in that it provides that a will shall not be invalid solely because the testator has disinherited or omitted to mention any relative or because he or she has not assigned any reason for such disinheritance or omission.

The subject matter of section 5 of the Wills Act, as a whole, is the provision, disposition, or direction made by a testator in his or her will. The testamentary power given to a testator under section 5(1) of the Wills Act relates to these subject matters.

The effect of section 5(3)(a) of the Wills Act is that the testator must not include in the disposition by will property belonging to the other spouse except with his or her consent. He or she must include in the disposition by will assets consisting of his or her own estate. Including in the disposition of the estate by will assets belonging to the other person to whom the testator is married, without his or her consent, would render the will void. Such a disposition by will would inevitably have the effect of varying or prejudicing the property rights of the other spouse, contrary to section 5(3)(a) of the Wills Act.

Section 5(3)(a) of the Wills Act cannot be understood to mean that a testator has no right to dispose of his or her estate to whomsoever he or she chooses. Such a view of section 5(3)(a) the Wills Act would ignore the provisions of subsection (1) of section 5, which is the root to the provisions of the other subsections. The only qualification to the right of testation, provided for in sub-section (1) by section 5(3)(a), is that the testator must ensure that the assets he or she intends to have disposed of by will to whomsoever he or she chooses belong to him or her. Section 5(3)(a) of the Wills Act is not concerned with the status of the person to whom the testator intends to have his or her estate disposed upon his or her death.

The issue is not that the person to whom the testator was married is dis-inherited. A surviving spouse can be a subject of disinheritance by a will complying with the formalities of a valid will as well as with the requirements for essential validity such as are prescribed under section 5(3)(a) of the Wills Act.

Once a will complies with all the requirements of validity, its terms and conditions determine the question of succession to the deceased's estate. Section 5(3)(a) of the Wills Act should not be read to mean that a husband or wife cannot disinherit the surviving spouse by a will. The requirements for the essential validity of the will are not to the effect that the testator must leave his or her estate to the surviving spouse.

The reference to section 3A of the Deceased Estates Succession Act in the interpretation of section 5(3)(a) of the Wills Act was an attempt at finding justification for a decision to set aside an otherwise valid will. The purpose was to imbue a surviving spouse in a testate succession with the same benefits that accrue to a surviving spouse under intestate succession.

There is no legal basis for the adoption of such an approach....,.

A will, as a legal document, derives its validity from compliance with the provisions of the statute prescribing the requirements of a valid will. A will which complies with all the requirements of validity cannot be set aside on the basis of extraneous matters, such as that its execution has the effect of disinheriting the surviving spouse. The law of wills imposes an obligation on all who deal with the deceased's property, including the surviving spouse, to give effect to the intention of the deceased regarding the disposition of his or her property as expressed in a valid will.

A court is bound to act in terms of the law.

It cannot set aside a valid will because it thinks that the testator ought to have bequeathed his or her property to the surviving spouse.

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

When this matter was called, counsel for the appellant applied to amend the grounds of appeal.

Counsel for the respondent was not averse to the application.

The matter was stood down to allow counsel to confer on the proposed amendments. When the matter resumed the parties indicated that they had agreed on the amendments. The grounds were, as a consequence, amended by consent.

The facts of this matter can only be described as tragic.

On 15 February 2015, the appellant, who was the plaintiff in the court a quo, proceeded to OK Mart in Hillside. He was accompanied by his wife and their daughter then aged 4 years 7 months. The family proceeded to shop. The child was within reach of her parents. At some stage during the shopping excursion a soccer ball display cabinet was observed to have fallen onto the floor. The minor child was underneath the cabinet. It is common cause that she sustained the following injuries as a result of the accident: fractured right femur; fractured left femur; tenderness and swelling of the pelvis and swelling of the ankle joints. As result of the injuries, she was hospitalized for more than a month whilst receiving treatment.

Following upon the injuries, the appellant, as father and guardian of the minor child, instituted proceedings against OK Zimbabwe, the respondent in this case, for a total sum of USD51,982=93 for shock, pain and suffering, permanent disability and loss of amenities as well as past and future medical expenses.

In its plea, OK Zimbabwe denied liability and the matter proceeded to trial.

At the close of the appellant's case, as plaintiff, OK Zimbabwe applied for absolution from the instance which the court granted.

The appeal before us is against the grant by the court a quo of the application for absolution. The grounds of appeal, as amended, are the following:

1. The court a quo erred in fact and in law in finding that the appellant failed to establish that the respondent, OK Zimbabwe, had been negligent.

2. The court a quo erred and misdirected itself by failing to consider documentary exhibits 2, 4, 5A and 5B which established that OK Zimbabwe had created an unsafe environment.

3. The court a quo misdirected itself in fact and in law by making the aspect of whether or not the minor child climbed the shelf decisive of the case.

4. The court a quo misdirected itself in making definitive factual findings that the area where the shelf was positioned was not covered by C.C.T.V. when in fact it was.

5. The court a quo erred in fact and in law in finding that it was unforeseeable that a child of about five (5) years would climb onto a display shelf where children's soccer balls of various colours were displayed.

In submissions, however, counsel for the appellant abandoned the fourth ground of appeal.

APPELLANT'S SUBMISSIONS ON THE MERITS

The argument presented by counsel for the appellant went as follows. He commenced his argument by moving the last ground. He contended that the court was wrong to find, as it did, that it was unforeseeable that a child of five would shop on her own. He submitted that it was not correct that the child was shopping on her own.

He suggested that, at all times, she was with her parents, and that, at her age, it was foreseeable that she would be fascinated by the display of soccer balls. As a result of the colours, a child would reach for the balls, and, if not within reach, would try and climb the display shelf containing the balls.

He argued that the court a quo further misdirected itself in making the question of whether or not the child climbed the shelf decisive of the case. He added that whether or not the child climbed the shelf did not absolve OK Zimbabwe of liability. He contended that OK Zimbabwe had created an unsafe environment and that the court was guilty of a grave misdirection in deciding the question of absolution on the premise that the child had climbed the shelf. He submitted that this was impossible as the shoes she was wearing did not enable her to do this.

He submitted that one of the issues agreed during the pre-trial conference was whether or not OK Zimbabwe had breached a legal duty to provide a safe environment. He added that the documents tendered into evidence, by the appellant, proved that OK Zimbabwe breached its duty of care in this respect.

He contended that the court a quo erred in finding that the appellant had not met the onus required at the close of his case. He submitted that the appellant established a prima facie case and that the evidence tendered, at that stage, met the required standard.

ARGUMENTS TENDERED ON BEHALF OF THE RESPONDENT

Counsel for the respondent, OK Zimbabwe, countered the appellant's argument mainly on three bases. He contended that the abandonment by the appellant of the fourth ground was fatal to his cause. He said that this was because there was a concession in the abandonment of that ground that the child had tampered with the shelf. He suggested that once the concession was made it destroyed the appellant's case which was premised on the allegation that the shelf had collapsed on its own accord.

He challenged the contention by the appellant that the shelf had collapsed due to one of its legs being corroded with rust. He contended that the appellant had alleged specific grounds of negligence but had failed to lead evidence to substantiate them.

He submitted that the appeal lacked merit and that the judgment of the court a quo granting absolution should be upheld.

I turn now to the ratio decidendi by the court a quo.

THE COURT'S REASONING ON THE APPLICATION FOR ABSOLUTION FROM THE INSTANCE

The court was alive to the fact that the child was injured. She was undoubtedly injured by the shelf. It is common cause that the shelf collapsed. The missing evidence was how the shelf fell and injured the child. In disposing of the application moved by OK Zimbabwe, for absolution from the instance, the court reasoned:

“What is critical in this case is that no one knows why the shelf fell at the material time. It cannot be far-fetched to assume that the unsupervised child was fascinated by the balls that were being displayed on the shelf in question (and) climbed on the shelf causing the same to succumb to the minor's weight and collapsed.

If the area in question had been covered by the CCTV this could have solved our problem. It cannot be said for sure that the shelf just fell on its own when the child was passing by or standing there. While it is regrettable that the child was injured, the plaintiff did not, in my view, manage to prove that the shelf fell due to the negligence of the defendant. It was unforeseeable that a child of that age would shop on her own and a child of that age would climb the shelf.”…,.

THE COURTS APPROACH TO APPLICATIONS FOR ABSOLUTION FROM THE INSTANCE

There exists, within this jurisdiction, a plethora of authorities on how a court should consider an application for absolution from the instance at the close of the plaintiff's case.

Crucially, the test to be applied is not whether or not the evidence for the plaintiff establishes what would finally be required to be established to obtain judgment. The evidence required, at this stage, is whether or not the plaintiff has made out a prima facie case to prove the claim. The correct approach to an application for absolution from the instance was set out in Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88…, by HARMS JA. He stated:

“The test for absolution to be applied by a trial court at the end of a plaintiff's case; the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff; Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).'

This implies that a plaintiff has to make out a prima facie case; in the sense that there is evidence relating to all elements of the claim, to survive absolution, because without such evidence no court could find for the plaintiff; Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 37G-38A; Schmidt Bewysreg 4th ed at 91-92.

As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one (Schmidt at 93). The test has, from time to time, been formulated in different terms, especially it has been said that the court must consider whether there is 'evidence upon which a reasonable man might find for the plaintiff' (Gascoyne (loc cit)) - a test which has its origin in jury trials when the 'reasonable man' was a reasonable member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue.

The court ought not to be concerned with what someone else might think; it should rather be concerned with its own judgment and not that of another 'reasonable' person or court.

Having said this, absolution, at the end of a plaintiff's case, in the ordinary course of events, will nevertheless be granted sparingly, but, when the occasion arises, a court should order it in the interest of justice.”

At the end of the day, the prime consideration in the exercise is whether or not there is sufficient evidence upon which a reasonable court might find for the plaintiff. But, that is not all that the court hearing the application must consider. As stated by BEADLE CJ in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) 1 at 5-6:

“Before concluding my remarks of the law on this subject, I must stress that rules of procedure are made to ensure that there is justice between the parties, and, so far as is possible, courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not be lightly deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance.

I might usefully quote here what was said by SUTTON J in Erasmus v Boss 1930 CPD 204 at 207:

'In Theron v Behr 1918 CPD 443, JUTA J, at p451 states that according to the practice in this court in later years judges have become very loathe to decide upon questions of fact without hearing all the evidence on both sides.'

We, in this territory, have always followed the practice of the Cape courts. In case of doubt at what a reasonable court might do, a judicial officer should always, therefore, lean on the side of allowing the case to proceed.”

See also Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)…,.; Bailey NO v Trinity Engineering (Pvt) Ltd & Ors 2002 (2) ZLR 484 (H)…,.

In paragraph 4 of the declaration the appellant alleged the following:

“At all material times (the) plaintiff was supervising and monitoring the movements of the minor child. A soccer ball display cabinet fell on the minor child who was standing close to it and injured her.”

OK Zimbabwe did not file a bare denial to this allegation. It responded in a plea in which it made positive averments. The response, in paragraph 2 of its plea reads:

“The contents of this paragraph are denied and (the) plaintiff is put to strict proof of the same. Defendant avers that:

2.1 The plaintiff left the minor child concerned unsupervised as he went around doing his shopping. Consequently, the child, who appears to have been fascinated by the balls that were being displayed on the shelf in question, climbed on the shelf causing the same to succumb to the minor's weight and collapsing.

2.2 At all material times, the shelf concerned was properly mounted in accordance with its specifications.

2.3 Before the child climbed on the shelf, as stated above, same was carrying less weight than that which its carrying capacity allows. It would have remained standing if the minor child had not climbed on it as stated above.

2.4 Not being the manufacturer of the shelf in question, the defendant is unaware of the allegation that the materials used to manufacture the same are cheap and not durable. Defendant does not accept that allegation and puts plaintiff to strict proof thereof.”

It seems to me that by pleading in the manner that it did, OK Zimbabwe alleged that it had knowledge of facts surrounding the collapse of the shelf. It pleaded that the child had climbed the shelf. It stated that the shelf collapsed due to the weight of the child. In my view, it has offered a defence as to why the child got injured.

The stance by OK Zimbabwe was that none of the witnesses called by the appellant saw what happened. That is correct. The declaration never suggested that the appellant's witnesses saw what happened. It was OK Zimbabwe who contended that the child had climbed the shelf causing the collapse.

In determining the application for absolution from the instance, the court a quo stated that no one knew why the shelf fell at the material time that the child got injured. This statement by the court appears to contradict the defence as contained in the plea which places an obligation on OK Zimbabwe to explain how the child got injured. OK Zimbabwe said that the child climbed the shelf causing it to fall, and, in the process, injuring the child.

Having said that no one knew why the shelf fell at the material time that the child also got injured, the court, in an apparent contradiction of the earlier statement, adopted the stance of OK Zimbabwe, as set out in the plea. The learned judge then went on to state that the unsupervised child, fascinated by the display, climbed onto the shelf causing it to fall.

There was no evidence before the court, at that stage, pointing to the child having climbed the shelf. This was a statement in the plea. The learned judge then, again in the absence of evidence to that effect, stated that if one of the legs of the shelf had broken, it did so due to either the sheer weight of the child or the fall. Again there was no evidence before the court to justify either of the scenarios so postulated.

It is evident that, by making findings of fact which were not supported by any evidence, the court a quo was guilty of a gross misdirection on the facts. A court is permitted to reach an inference based on the evidence before it.

The court did not undertake an analysis of the evidence and reach a conclusion based on inferences. At that stage OK Zimbabwe had not yet adduced evidence. The court ignored the positive statement in the plea that the child had climbed the shelf, and, further that the collapse occurred as a result of the child's weight. In addition, completely ignoring the pleadings, it then surmised its conclusions of fact, based, not on any evidence, but on what had been pleaded by OK Zimbabwe. In fact, it is fair to say that the court a quo went on a frolic of its own.

It stated, at p6 of the cyclostyled judgment:

“…,. The shelf, from the evidence, was not overloaded with balls since the father confirmed that some of the compartments were empty. If at all one of the legs of the shelf broke it, could have broken due to either sheer weight of the child or the fall….,.

I agree with counsel for the defendant that this is not a strict liability case.”

It seems to me that the statement from the court was premised on the defence mounted by OK Zimbabwe in the plea. If OK Zimbabwe had evidence establishing that the child in fact climbed the shelf and caused it to collapse it should have been put on its defence to adduce such evidence.

It is not for the court to reach a conclusion as to what happened based on an averment in a plea without calling the pleader to prove its allegations.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.

The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties' disputed properties.

Although the parties were also quarrelling about the respondent's right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant's favour. That issue consequently falls away.

The respondent has, in turn, abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.

CHOICE OF LAW

Although the parties were married under Customary Law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of General Law; section 3(b) of the Customary Law and Local Courts Act [Chapter 7: 05].

It is convenient that their dispute be regulated and determined in terms of General Law because of their sophisticated way of life and ownership of immovable private property.

As the concept of private ownership of immovable property is unknown at Customary Law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than General Law. Thus, the appropriate applicable law in this case is the General Law. See Mandava v Chasekwa 2008 (1) ZLR 300…,.

BRIEF SUMMARY OF THE CASE

The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest, Tendai Dominique Chiwenga, is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years, and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.

During happier times, the parties resided at their matrimonial home situate at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage, the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects, and other paraphernalia.

It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as 'gupuro'.

In her papers before this Court, and in paragraph 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant's wife. The divorce issue therefore appears not to have been resolved.

The appellant has nevertheless now issued summons against her in the court a quo under case number HC9837/19 claiming custody of the three minor children in terms of section 4 of the Guardianship of Minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage.

The current proceedings and the parties' relationship are severely strained, acrimonious, and discordant. This is mainly because of the respondent's arrest on multiple charges of attempted murder of the appellant, fraud, money laundering, and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning three (3) weeks, from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession, and administration of her personal property and effects.

At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent's arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects, and other paraphernalia.

His conduct in this respect was perfectly lawful and undisputed at the material time.

On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison, on bail, she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home.

The same scenario played out when she sought access to Orchid Gardens which was also guarded by State security guards. They also denied her access to the premises.

She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.

THE RESPONDENT'S CLAIM A QUO

Under the circumstances, the respondent submits that she had no option but to approach the appropriate court, on an urgent basis, for relief. To that end, she lodged an urgent application in the court a quo for a 'provisional spoliation order' directing the appellant to grant her the following interim relief on a prima facie basis pending the return date for a final order:

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the three (3) minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff, with the assistance of the police, to execute the court a quo's order forthwith.

In the final order, the respondent sought the following relief:

9. That the appellant be interdicted and restrained from interfering with the respondent's use and enjoyment of the matrimonial home and her business premises at Orchid Gardens pending the conclusion of the matrimonial proceedings under case number HC9837/19.

10. That the appellant be restrained from removing the three (3) minor children of the marriage from the applicant's custody.

11. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent's complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children, and property.

THE APPELLANT'S DEFENCE A QUO

The appellant objected to the respondent's claim that the matter was urgent.

He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children's Court which is specifically conferred with the jurisdiction in terms of section 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart.

He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison.

The appellant denied having given the guards at the matrimonial home, and Orchid Gardens, any orders to deny the respondent access to the premises.

His submission, to the effect that he had no control over the guards, was not rebutted.

Placing reliance on the South African case of Fraser v Children's Court, Pretoria North 1997 (2) SA 261, the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children.

It was his further submission that throughout the whole episode, he acted lawfully as a diligent pater familias. At paragraph 3(c) of his opposing affidavit, in the court a quo, the appellant makes the valid point that, as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred, further, that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient.

THE COURT A QUO'S FINDINGS AND DETERMINATION

On the basis of the above summation of evidence and arguments, the court a quo found that:

(a) The matter was urgent mainly because of the welfare of the minor children. It also found that the matter was urgent because the respondent was arbitrarily evicted from the matrimonial home without a court order. It also found that spoliation matters are, by nature, urgent; and

(b) Notwithstanding that the respondent was in prison, she was unlawfully despoiled of the custody of her children and property.

The court a quo proceeded to make the following final order despite the fact that the respondent had asked for a provisional order on a prima facie basis:

“1. The respondent (Constantino) is hereby ordered to restore custody of the minor children, namely, Tendai Dominique Chiwenga (born 4 November 2011), Christian Tawanazororo Chiwenga (born 5 November 2012), and Michael Alexander Tadisiswa Chiwenga (born 13 February 2014) to the custody of the applicant (Marry) within 24 hours of this order.

2. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as 614 Nick Price Drive, Borrowdale, Harare.

3. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as Orchid Gardens, Domboshawa, Harare.

4. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the motor vehicles, namely, Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).

5. Respondent (Constantino) is interdicted and restrained from interfering with applicant's (Marry) access and/or possession of her clothing.

6. The respondent (Constantino) is ordered to pay applicant's (Marry) costs of suit.”

GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION

Aggrieved by the above order, the appellant appealed to this Court on ten (10) grounds of appeal which in fact raise only three issues for determination by this Court on appeal. It is cumbersome to regurgitate all the ten (10) grounds of appeal. It is however convenient to dwell on the three issues raised by the grounds of appeal. These are;

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether or not it was competent for the court a quo to grant a final interdict when the respondent had asked for a 'provisional' spoliation order.

3. Whether the court a quo had jurisdiction to determine the question of custody of the three (3) minor children in light of the provisions of section 5 of the Guardianship of Minors Act [Chapter 5:08].

APPLICATION OF THE LAW TO THE FACTS...,.

The court now turns to determine the appeal on the remaining two issues.

WHETHER OR NOT IT WAS COMPETENT FOR THE COURT A QUO TO GRANT A FINAL ORDER IN THE FORM OF AN INTERDICT?

Despite the respondent having asked for a 'provisional' spoliation order based on a prima facie case, the learned judge in the court a quo went on to grant an interdict which neither party had asked for nor pleaded.

The two critical questions to be answered are:

1. Was it competent, at law, for the court a quo to grant the respondent a final order when her claim was for a 'provisional' spoliation order? In any case, was the provisional order sought a competent remedy?

2. What were the parties' rights of custody of their three minor children at the time of separation?

The court now proceeds to deal with the two questions in turn.

(a) Whether it was competent at law for the court a quo to grant the respondent an interdict when she had asked for a 'provisional' spoliation order?

In answering this question, it is necessary to set out the applicable law in some detail as it is apparent that both the court a quo and the respondent's legal practitioners were labouring under some serious mis-apprehension of the law in this regard.

THE APPLICABLE LAW

The answer to this question is a well beaten path at home, regionally, and abroad. In this judgment, the word 'injunction' is used interchangeably with the term 'interdict' with reference to English and Roman Dutch Law, respectively.

The respondent approached the court a quo seeking a 'provisional' spoliation order on a prima facie basis. It is however trite that a spoliation order, being final in effect, cannot be granted as an interim order on the evidence of a prima facie right, as happened in this case. See Blue Ranges Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 370…,.

On this basis, the respondent's quest for a 'provisional' spoliation order was misplaced and bad at law.

The court expects legal practitioners to place before it, cases that are founded on sound substantive and procedural law. The court cannot, and should not, be expected to make a case for the parties. Its role is to determine the dispute put before it, on the basis only of the applicable law and procedure.

The definition and purpose of a provisional order is diametrically different from that of a final order. C. B. PREST in his book, The Law and Practice of Interdicts, 9th ed Juta & Co (Pty) Ltd…, defines and explains the purpose of a provisional order as follows;

“A provisional order is a remedy by way of an interdict which is intended to prohibit all prima facie illegitimate activities. By its very nature, it is both temporary and provisional, providing (interim) relief which serves to guard the applicant against irreparable harm which may befall him, her, or it, should a full trial of the alleged grievance be carried out. As the name suggests, it is provisional in nature, as the parties anticipate certain relief to be made final on a certain future date upon which the applicant has to fully disclose his, her or its entitlement to a final order that the interim relief sought was ancillary to.”

In the South African case of Development Bank of Southern Africa (Ltd) v Van Rensburg NO and Ors [2002] 3 All SA 669 (SCA) the court clarified that its purpose is to preserve the status quo pending the return day.

Australia has intrinsically the same definition and purpose. In Re Brian Charles Gluestein; Exparte Anthony [2014] WASC 381 the court said:

“Relatively, the purpose of an interlocutory injunction is to preserve the position until the rights of the parties can be determined at the hearing of the suit. A plaintiff seeking an interlocutory injunction must be able to show a sufficiently arguable claim to a right to the final relief in aid of which the interlocutory relief is sought.”

Under English Law, the law remains virtually the same. In Attorney General v Punch Limited and Anor [2002] UKHL 50, the court held that:

“The purpose for which a court grants an interlocutory injunction can be stated quite simply. In American Cyanamid Co v Ethicon Ltd [1975] AC 396, 405D LORD DIPLOCK described it as a remedy which is both temporary and discretionary. Its purpose is to regulate, and, where possible, to preserve, the rights of the parties pending the final determination of the matter which is in issue by the court.”

The purpose of a provisional order is the same in our jurisdiction as in the other jurisdictions stated above.

The purpose of a final order is different from that of a provisional order in that a final order is conclusive and definitive of the dispute. It finally settles the issues and has no return date. Once a final order is given the court issuing the order becomes functus officio and it cannot revisit the same issues at a later date.

It is settled law that the standard of proof for a provisional order is different from that of a final order.

A provisional order is established on a prima facie basis because it is merely a caretaker, temporary order pending the final determination of the dispute on the return date. The parties have an opportunity to argue the matter again on the return date.

On the other hand, a final order is obtained on the higher test of a clear right because it is final and definitive as it has no return date.

It so happens that lawyers often seek a final order disguised as a provisional order as happened in the well-known case of Blue Ranges Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 368 and in this case.

That case lays down the test for distinguishing a provisional order from a final order despite the presentation of a final order disguised as a provisional order. In that case MALABA DCJ…, had this to say…,.:

“To determine the matter one has to look at the nature of the order and its effect on the issues or cause of action between the parties and not its form. An order is final and definitive because it has the effect of a final determination on the issues between the parties in respect of which relief is sought from the court…,.

For an order to have the effects of an interim relief it must be granted in aid of, and as ancillary to the main relief which may be available to the applicant on final determination of his or her rights in the proceeding.

…,. The test is whether the order made is of such a nature that it has the effect of finally determining the issue or cause of action between the parties such that it is not a subject of any subsequent confirmation or discharge.”

In the South African case of Pretoria Racing Club v Van Pietersen 1917 TS 687…, SMITH J had occasion to remark that:

“In order to decide whether such an order is final or not I think the test must be arrived at by considering what the object of the proceedings is as a matter of substance. See the Judgment of ROMER LG in RE Herbet Reeves & Co [1902] 1 Ch 29.”

The respondent's object and purpose in filing the urgent chamber application was to obtain custody of her minor children, access to the matrimonial home and repossession of the disputed property.

It is self-evident that the interim relief she sought was crafted in such a way that if granted she would get the primary relief sought. Through the interim relief, she would have obtained access to the matrimonial home, custody of her children, and disputed property.

Such an order does not fit the definition of an interim order. It is nothing other than a final order disguised as a provisional order.

The learned judge a quo, perhaps having realized that the interim order sought fitted the definition of a final order, apparently threw caution to the wind and granted a final order that had not been sought by the respondent.

By going on a frolic of his own and determining issues not placed before him, the learned judge fell into grave error and misdirected himself.

The net result was that the respondent was granted a final interdict when she had asked for a provisional order after pleading a prima facie right.

In Nzara & Ors v Kashumba NO & Ors SC18-18…, this Court held that:

“It is clear from the court a quo's orders that some of the orders it granted had not been sought by the other party. It is also clear that parties had not made any submissions for and against those orders. They were granted mero motu by the court a quo. It did so without seeking the parties' views on those orders. There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence lead.

The function of the court is to determine the disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court's mind but has not been raised by the parties or addressed by them either in their pleadings, in evidence, or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.”

It is therefore settled law that a judicial officer is strictly bound by the issues pleaded by the parties. Going on a frolic of his/her own and determining issues not pleaded or raised by the parties constitutes a fatal procedural irregularity.

When this is taken together with the fact that the respondent sought relief that was incompetent at law, in respect of her claims to property and custody of the children, there can be no doubt that the entire proceedings before the court a quo were a nullity ab initio.

The appropriate remedy would, therefore, have been to strike out the entire chamber application without any further ado....,.

In granting the respondent a final interdict which she had not asked for in respect of her claims, the learned judge a quo fell into grave error and misdirected himself;

(i) Firstly, because he had neither the jurisdiction nor the discretion to award the respondent relief that she had not asked for.

A judicial officer who acts without jurisdiction acts without authority, and, to that extent, illegally.

The court was at fault in that it determined a matter that was not before it; and without hearing argument on the question of whether or not to grant a final interdict. The matter that was before it was whether or not to grant the 'provisional' spoliation order. The question of the final interdict was supposed to be argued and determined on the return day, which, however, never saw the light of day....,.

In determining the issue mero motu, without hearing argument from both parties, the court a quo was in fundamental breach of the audi alteram partem rule which forms the backbone of our adversarial legal system....,.

It appears that the learned judge a quo was overwhelmed by the status of the appellant, as Vice President of the country, and the intensity of the conflict. His vision was apparently clouded by the dust of the conflict, prompting him to wade into its murky waters in aid of the respondent, and granting her relief that she had not asked for.

Such conduct was injudicious and an affront to the time honoured tenets of justice, fairness, and equality before the courts.

In the absence of any evidence of abuse of office, the appellant ought to have been treated like any other citizen before the court a quo....,.

As the respondent's claim was incompetent and a nullity at law, the court a quo ought to have found that the application was not properly before it and struck the matter off the roll.

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

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

BACKGROUND FACTS

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

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

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

This appeal is against that judgment.

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

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

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

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

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

“A. No cause of action disclosed.

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

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

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

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

B. Vague and embarrassing

1.5 Plaintiff alleges in para 9 of the declaration that -

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

In paragraph 11 they allege -

'The article contained falsehoods of a venomous type'.

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

1.7 The claim is consequently vague and embarrassing.

C. Application to strike out

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

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

PROCEEDINGS BEFORE THE COURT A QUO

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

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

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

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

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

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

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

The court a quo reasoned as follows:

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

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

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

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

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

'A pleading shall -

…,.

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

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

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

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

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

THE APPEAL

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

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

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

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

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

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

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

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

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

ARGUMENTS ON APPEAL

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

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

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

ANALYSIS OF THE DISPUTE ON APPEAL

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

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

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

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

Section 175(6)(b) of our Constitution empowers every court, “when deciding a constitutional matter within its jurisdiction”, to “make any order that is just and equitable.”...,.It is necessary to apply the pivotal criteria of reasonableness and flexibility in balancing competing interests so as to arrive at an appropriate order that is ...

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD
Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

On 12 October 2015, the first respondent declined jurisdiction to quantify the appellant's retrenchment package upon the termination of his employment with the second respondent.

Aggrieved by the decision, the appellant brought a review application before the Labour Court, seeking among other relief, to have the first respondent's decision set aside. He was unsuccessful.

This is an appeal against the entire judgment of the Labour Court handed down on 4 November 2016 dismissing, with costs, the application for review.

Background Facts

The appellant was employed by the second respondent as General Manager (Risk). By letter dated 6 March 2014, the second respondent advised the appellant of its intention to terminate his services by way of retrenchment. The termination of services was to be effective on 31 March 2014.

A dispute arose between the parties as to the package payable to the appellant upon retrenchment. On 3 April 2014, the second respondent referred the dispute to the first respondent.

The first respondent heard the referral on 26 June 2014. It declined to determine the matter which it referred back to the employer, the second respondent. The first respondent's reasons for declining jurisdiction and referring the dispute back to the employer are not on record. They are not necessary for the determination of this appeal.

Subsequently, the second respondent issued the appellant with a “notice to retrench” after reinstating his salary in full. The dispute relating to the package payable to the appellant upon retrenchment remained unresolved and was referred back to the first respondent. Through a process that has not been fully explained in the papers filed of record, the matter was escalated to and was resolved by the Minister of Public Service, Labour and Social Welfare who, on 2 March 2015, authorised the second respondent to retrench the appellant. It is common cause that before approving the retrenchment of the appellant, the Minister received recommendations from the first respondent.

It is further common cause that the appellant's retrenchment was approved on condition the second respondent paid a gratuity equivalent to one month's salary for every year of service, a stabilisation allowance equivalent to two month's salary and a severance payment equivalent to 13,5 month's salary.

In implementing the retrenchment, the second respondent used the appellant's pensionable salary to quantify the total package payable. This dissatisfied the appellant who contended that the second respondent ought to have used his total guaranteed monthly salary as the basis of the quantification. He referred the matter back to the first respondent, seeking determination of the dispute as to what would constitute an accurate computation of his package.

This referral would constitute the third referral of the dispute to the first respondent.

The first respondent did not set the matter down for hearing. In a letter addressed to the parties, and dated 12 October 2015, it declined jurisdiction in the following terms:

“Kindly be advised that the Retrenchment Board has no jurisdiction over disputes arising from terms and conditions of employment. Please refer the matter to a labour officer as per section 93 of the Labour Act Chapter 28.01.”

Contending that the first respondent had acted irregularly in abdication of its statutory duty by declining jurisdiction in the matter, the appellant filed an application for review in the court a quo. As indicated above, the court a quo dismissed the application with an appropriate order of costs.

The proceedings a quo

In his application for review, the appellant alleged that the first respondent had acted irregularly in, inter alia, declining jurisdiction in the matter when the statute setting it up empowered it to act as requested. It was his argument that the issue of the correct formula to be used in computing his retrenchment package had remained undetermined notwithstanding that it was one of the deadlocked positions that had been referred to the first respondent in March 2015 before the Minister approved the appellant's retrenchment. It was his further contention that the first respondent had irregularly and incompetently directed that the dispute be referred to a Labour Officer, who, in the circumstances of the matter, had no jurisdiction over the retrenchment of the appellant.

The first respondent did not oppose the application.

The second respondent did.

It contended that the first respondent was correct in declining jurisdiction in the matter. In the main, and against the main thrust of the appellant's contentions, it contended that once the first respondent had made its recommendations to the Minister, on the retrenchment package, it became functus, having discharged its statutory duties. It further argued that the decision to retrench was ultimately that of the Minister, and, if the appellant was unhappy with the implementation of the Minister's decision, his relief lay in appealing against or bringing that decision on review.

After finding that the grievance by the appellant was against the Minister, who made the final computation of the retrenchment package, the court dismissed the application for review with an appropriate order of costs.

Aggrieved by that decision the appellant noted this appeal.

The Appeal

The appellant raised two grounds of appeal as follows:

1. The court a quo grossly erred and misdirected itself on the facts and the law by failing to determine whether or not the first respondent's decision to decline jurisdiction was proper.

2. The court a quo erred on a point of law and further grossly erred and misdirected itself on the facts which error amounts to an error of law by dismissing the appellant's application for review, inter alia, on the following grounds:

“(a) That the Minister had made '…, the final computation of the package…,' on the recommendations of the first respondent, hence, it was the Minister's decision which should have been challenged;

(b) That the decision which the applicant is not happy with is that of the Minister when it is common cause that the appellant was not happy with the second respondent's unilateral interpretation of the word 'salary' and upon representations thereto, the first respondent declined jurisdiction.”

The issue that arises in this appeal is, therefore, whether the court a quo erred in failing to determine the issue that was before it, or, alternatively, in determining the issue after misdirecting itself on the facts.

The Law

It is a settled position at law that failure to determine a material issue that is before the court is a gross irregularity that vitiates the decision made.

The broad position of the law was recognised by UCHENA JA in Nzara and Ors v Kashumba and Ors SC18-18 where he had this to say:

“A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.”

Thus, the general and trite position of the law, that requires no further debate, is that a court cannot go on a frolic of its own and determine the dispute before it by raising its own issues or facts and resolving the dispute on such.

Looking at the basic role of the court from a slightly different angle, GOWORA JA, in PG Industries v Bvekerwa SC53-16, observed that:

“The position is settled that where there is a dispute on a question, be it 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.”

Whilst GOWORA JA, in PG Industries v Bvekerwa SC53-16, was dealing with a case where the lower court had failed to deal with a preliminary issue that arose in the matter before it, the position still holds that even where there is a sole issue to be determined and the court does not determine that issue, but focuses on irrelevant or incorrect issues, the failure to deal with the correct issue is fatal to the proceedings.

There are a number of other legal principles that converge to discourage a court from going on a frolic of its own and determining a matter on an issue that is not raised by the parties in their papers and arguments. These include the duty of the court, where it is of the view that a certain factual or legal position is dispositive of the matter before it, to invite the parties to address it on the point before resolving the dispute wholly or partly on the point. A detailed discussion of this and other principles is not necessary in this appeal as there was no dispute as to the applicable law.

Analysis

As stated above, the issue before the court was whether the refusal by the first respondent to exercise jurisdiction in the third referral of the dispute to it by the appellant was irregularly made.

A reading of the judgment a quo indicates that the court appears to have laboured under the erroneous understanding that the review before it related to the second referral of the matter to the first respondent, which led to the Minister of Public Service, Labour and Social Welfare Minister stepping in and approving the retrenchment of the appellant on 2 March 2015. This appears from the passage in the judgment a quo containing the ratio of the decision, which reads:

“Page 154-155 of the record shows that the Minister eventually made a decision after the Retrenchment Board recommendation. Section 12(8) of the Labour Act states that even where the Board fails to make a recommendation, the Minister can still get relevant documentation and still make a decision. In this case, it is the Minister who made the decision after recommendations from the Board. It is this court's view that the grievance in this case is against the Minister who made the final computation of the package…,. The Minister made the decision and thus the complaint should be raised against the Minister and not the Board which merely made recommendations.”…,.

With respect, the decision of the first respondent that was under the spotlight was not on the second referral of the matter in March 2014 but on the third referral, which decision was communicated to the parties on 12 October 2015.

I note that the court a quo does not, at any stage, advert to this decision in its judgment.

Having made this first error, the court a quo fell into the second and more serious error which vitiates its decision. It formulated its own issues for determination.

(a) Firstly, it formed the view that the issue before it was “the computation of the retrenchment package” due to the appellant.

Whilst the computation of the package was at the centre of the dispute between the parties, it was not the immediate issue that fell to be determined in the review application a quo. As indicated above, the immediate issue to be determined was whether the second denial of jurisdiction by the first respondent over the matter was properly arrived at.

(b) Secondly, and as building up to its ratio, the court a quo raised and determined an issue that was not an issue for the parties.

It made a finding that the final package had been computed by the Minister. This finding was against the common position of both parties. It was common cause that the computation of the package had been done by the second respondent and not by the Minister. Therefore, the identity of who made the final computation of the appellant's retirement package was not in issue and was therefore not a point on which a finding by the court was necessary.

I further note, in passing, that had the court a quo canvassed with counsel its view of the turning point in the application for review and the facts which it thought were in dispute between the parties, an eminently prudent practice for any court, this appeal may have been obviated.

However, this was not so.

I find merit in the appellant's grounds of appeal. The court a quo failed to determine the issue that was before it. It raised its own and gravely misconstrued the facts giving rise to the dispute in resolving the issue it had raised for itself.

Disposition

Having fallen into error in not only formulating the incorrect issue for its determination but in basing its decision on incorrect facts, the decision of the court a quo cannot stand. It must be set aside and the matter remitted for fresh determination.

Costs of this appeal will follow the cause. I see no reason for departing from this general position in this appeal.

In the result, I make the following order:

1. The appeal is allowed with costs.

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

3. The matter is remitted to the court a quo for determination de novo.

HH495-16 : TETRAD HOLDINGS LTD vs MASTER OF THE HIGH COURT, HARARE and THE FORMER PROVISIONAL JUDICIAL MANAGER OF TETRAD INVESTMENTS BANK LTD – W. MILITALA and DEPOSIT PROTECTION CORPORATION
Ruled By: MANGOTA J

On 29 January 2015, the court appointed the second respondent [“Militala”] in the position of provisional judicial manager for Tetrad Investment Bank Limited [“the Bank”]. The appointment was at the instance of Tetrad Investment Bank Limited (the Bank).

On 16 March 2015, Militala submitted to Tetrad Investment Bank Limited his fee note of $144,900. The note was for the work which he, through his company - Petwin Executor and Trust (Pvt) Ltd, performed for Tetrad Investment Bank Limited in February 2015.

On 1 April 2015, the applicant, which claimed to be the beneficial owner of Tetrad Investment Bank Limited (the Bank), raised an objection with the first respondent. The objection related to Militila's fee note for February 2015.

Following the objection, the first respondent invited the applicant and the second respondent to a meeting at its offices. The meeting took place on 15 June 2015. At the meeting, the first respondent agreed with the applicant that Militala should produce an itemized bill of costs which pertained to the work he did for Tetrad Investment Bank Limited in February 2015.

On 18 June 2015, Militala submitted, to the first respondent, an itemized bill of costs for February 2015.

On 25 June 2015, the first respondent handed down a ruling, in which the applicant's objections notwithstanding, it approved of Militala's fee note for February 2015.

On 4 May 2015, Militala presented to Tetrad Investment Bank Limited (the Bank) four invoices. These were for work which he said he did for the Bank in March, April, May, and June 2015. The four invoices had a total of $274,563.

The first respondent's ruling, of 25 June 2015, remained a cause of concern to the applicant. It, therefore, applied to the court for a review of the same. Its grounds for review were, in essence, that the first respondent acted grossly unreasonably and irrationally:

(a) In accepting Militala's February invoice without requesting proper proof of how Militala allocated his time to his work given the fact that he neglected to draft a proper bill of costs;

(b) In authorizing payment to Militala when the latter was illegally appointed by the Bulawayo High Court in contravention with section 57 of the Banking Act;

(c) In failing to apply its mind to the matter and accepting that Militala could have provided meaningful services to the Bank;

(d) In accepting that the fees which Militala charged were reasonable “when there were only 160 working hours in February and only 672 in the entire month”;

(e) In failing to provide proper reasons for its decision and failing to justify why it dismissed the applicant's objection.

It insisted that Militala failed to comply in any meaningful respect with Statutory Instrument 107/2011. He did not provide a taxed bill of costs, it said. It, accordingly, moved the court to:

(i) Set aside the first respondent's decision of 25 June 2015;

(ii) Order Militala to refund $144,900 it paid to him with interest of 5% per annum calculated from the date of his receipt of the money to the date of payment of the same;

(iii) Interdict the first and third respondents from making any further payment to Militala without a court order;

(iv) Order the respondents to pay, jointly and severally, the one paying the others to be absolved, costs of this application on a higher scale.

The first respondent did not oppose the application. It, however, made comments on the applicant's grounds for review. These form part of the record.

The third respondent supported the application in part and opposed it in part.

It opposed the applicant's prayer which called upon it to pay the costs of the application, let alone on a punitive scale. It moved the court not to order it to pay costs of the application on whatever scale.

The second respondent opposed the application in a strenuous manner.

He submitted that the first respondent applied its discretion properly and judiciously to the case which was then before it. He insisted that the applicant's grounds for review were without foundation and were misconceived. He stated that his decision to resign from the position of Provisional Judicial Manager for Tetrad Investment Bank Limited (the Bank) was not as a result of the suit which the applicant filed seeking his removal. He said his decision in the mentioned regard was guided by his personal and professional considerations which were not relevant to the application.

He made reference to Annexure D which the applicant attached to the application. He also referred to Annexure F which he said clarified the contents of Annexure D. He said the time sheets for February, 2015, Annexure F, showed the amount of time which each director, consultant, and clerk spent on the judicial management work of Tetrad Investment Bank Limited and the sum of money which was due to each for February 2015.

The first respondent, he argued, considered the contents of the annexure against the objections of the applicant and properly allowed payment of his fees.

He insisted that the contents of the invoices for March, April, May and June 2015 should be disregarded because they did not relate to the first respondent's decision which the court was called upon to review. He submitted that the court properly and lawfully appointed him as Tetrad Investment Bank Limited's provisional judicial manager. He said he acted as such until the day that he opted to resign. He stated that it was inconsiderate for the applicant to remain oblivious to the fact that several persons performed the work of judiciously managing Tetrad Investment Bank Limited (the Bank).

He averred that S.I.107 of 2011 did not apply to the first respondent or to judicial managers. The instrument, he said, related to legal practitioners and the latter's work.

He submitted that the application was frivolous, vexatious and an abuse of court process. He moved the court to dismiss it with costs on a punitive scale.

The unlawfulness or otherwise of Militala's appointment as Provisional Judicial Manager does, in a large measure, depend on the circumstances which led to the same. It is evident that Militala did not move the court to appoint him to the position of Provisional Judicial Manager. It is equally evident that the court did not mero motu appoint him to the same. Tetrad Investment Bank Limited (the Bank) petitioned the court to appoint Militala as its Provisional Judicial Manager. In moving the court as it did, the Bank was not oblivious to the existence of section 57 of the Banking Act [Chapter 24:20] [“the Act”]. It was, in the court's view, thoroughly aware of the section. Its knowledge of the section notwithstanding, the Bank petitioned the court to appoint Militala, not in terms of section 57 of the Banking Act, but in terms of section 302 of the Companies Act [Chapter 24:03].

Reference is made in this regard to paragraph (b) of the order which falls under case number HC219/15.

The applicant stated that it was the beneficial owner of Tetrad Investment Bank Limited (the Bank). It did not explain itself on what it meant by the statement “beneficial owner of the Bank”. However, if its relationship with the Bank was that of the owner and the owned, as it would have the court understand, the Bank would not have moved in the direction which it did. It would not, in other words, have petitioned the court to appoint Militala as its Provisional Judicial Manager before it consulted, and agreed with, the applicant in respect of Militala's appointment to the position. It is apparent that the Bank did not consult the applicant when it (the Bank) petitioned the court to appoint Militala. If the applicant was consulted in regard to the appointment, the applicant would have advised the Bank to petition the court and have the Provisional Judicial Manager appointed in terms of section 57 of the Banking Act and not in terms of section 302 of the Companies Act as occurred in casu.

The apparent absence of consultation of the applicant by Tetrad Investment Bank Limited (the Bank) tends to place the applicant's claim, as to its relationship with the Bank, into some doubt.

The court appointed Militala to the position of provisional judicial manager on 29 January 2015. He, in line with his mandate, convened the first meeting of creditors of Tetrad Investment Bank Limited on 22 and 24 April 2015 in Harare and Bulawayo respectively. The applicant, it was observed, did not, at that stage or at any stage before those dates, raise any issue about the lawfulness or otherwise of Militala's appointment as provisional judicial manager for the Bank. The only matters which the applicant raised with the first respondent then were in the letter which it addressed to the first respondent on 1 April 2015. The matters referred to Militala's alleged incompetence and inexperience in working as a provisional judicial manager for the Bank. Other matters which the applicant raised in the letter related to what it termed Militala's intention to work for short term personal gains and/or his being “inappropriately qualified to take the institution into the future.” The letter also raised concerns about Militala's first fee note of February 2015.

It said nothing about the lawfulness or otherwise of Militala's appointment as provisional judicial manager for Tetrad Investment Bank Limited (the Bank).

As Militala's appointment had not been placed into issue, the first respondent's ruling was conspicuously silent on it. The ruling cannot, therefore, be faulted. The applicant's ground for review which related to the appointment of Militala was misplaced. It sought to criticize the first respondent on a matter which had not been placed before the first respondent for determination. The criticism was unfair, unjustified, and unreasonable under the circumstances.

The first time that the applicant placed the appointment of Militala into question was in the letter which it addressed to the first respondent on 16 July 2016. It wrote the letter through its legal practitioners, Venturas & Samukange. The letter reads, in part, as follows:

“We refer to your ruling CRI/15 dated 25 June 2015. As you aware the Reserve Bank of Zimbabwe appointed the Depositor's Protection Corporation in terms of the Banking Act [Chapter 24:20] section 65A to be the Judicial Managers for Tetrad Holdings (Private) Limited after Winsley Militala had been illegally appoint outing (sic) provisional judicial manager by the High Court, Bulawayo. We are advised that the former judicial manager….,.

Our instructions, from the shareholders of Tetrad Holdings, are that you should reject any further claim on the following basis:

(i) Mr Militala was unlawfully and wrongfully appointed as a judicial manager.

(ii) He was not appointed in terms of the amendment to the Banking Act; section 65(a) 2012.

(iii) The High Court Bulawayo was misled.

(iv) It is subject of investigation why Mr Mlotshwa and Mr Militala decided to use the High Court in Bulawayo considering that all parties are in Harare….,.”

The applicant repeated the same allegation in the letter which its legal practitioners, Venturas & Samukange, addressed to the third respondent on 7 August 2015. The letter, which the applicant attached to the application as Annexure J, reads, in part, as follows:

“As was explained to you at our meeting with Mr Samukange and Mr Venturas at our offices on 13 July 2015 Militala was illegally appointed and his fees are hence unlawful and illegal. There is no basis for these fees given the contravention of the Banking Act, section 57, in his appointment…,.”

The issue which related to Militala's appointment as provisional judicial manager for Tetrad Investment Bank Limited (the Bank) fell outside the four corners of the matters which the court was moved to consider and determine.

HHH15-20 : MARY MUBAIWA vs THE STATE
Ruled By: KWENDA J

IntroductionThe appellant is a female adult. She is the wife of the Vice President of Zimbabwe. The couple live together in an unregistered customary law union. The union is blessed with children who are all minors. They live in the Borrowdale Brooke in Harare. She is a successful business person ...

Introduction

The appellant is a female adult. She is the wife of the Vice President of Zimbabwe. The couple live together in an unregistered customary law union. The union is blessed with children who are all minors. They live in the Borrowdale Brooke in Harare. She is a successful business person in her own right.

On the 16th of December 2019 the appellant appeared before the Deputy Chief Magistrate charged with six counts of exporting currency in contravention of section 5(1)(a) of the Exchange Control Act [Chapter 22:05] as read with section 20(1)b of the Exchange Control Regulations Statutory Instrument 109/1996. She is also charged with five counts of Money Laundering in contravention of section 8(2) of the Money Laundering & Proceeds of Crime Act [Chapter 9:24].

She also faces a charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

She applied for bail pending trial.

The Deputy Chief Magistrate, who presided, dismissed the application for bail on the 19th of December 2019. The appellant has therefore remained in custody since her arrest on the 14th of December 2019.

On the 18th December 2019, the appellant appealed against the refusal of bail in terms of section 121(1) of the Criminal Procedure and Evidence Act [Chapter 9:07]....,.

The court a quo considered the appellant's suitability for bail pending trial on the various charges in one hearing.

At the hearing, which commenced on the 16th December 2019, the State began by stating the grounds for opposing bail....,.

The State also alleged that the appellant was likely to undermine or jeopardise the objectives or proper functions of the criminal justice system – including the bail system. According to the State, there is a very unfortunate narrative doing the rounds that people are being arrested in order to be released. The prosecutor…, put it as follows in the court a quo:-

“We are looking at a situation where (suspects) are arrested, granted bail, they never come back to court either because they have been given back their passports or not. The bail system is becoming a laughing stock. It is not a secret that there are other accused persons similarly placed to the accused person. The moment they are granted bail they wave their hands to Zimbabwe…, there is need to put a stop to that. Accused persons, if they are not suitable candidates for bail must remain in custody for the proper administrative of justice in this country.”...,.

Ruling by the Court a Quo

The ruling by the court a quo, on the 16th December 2019, is contained in four (4) pages. I take the view that the ruling could have been longer if the court a quo had fully considered all submissions on the facts and the law presented by the opposing sides…,.

In its ruling, the court a quo observed that the bail application came up…, “at a time when the nation is in the middle of a concerted anti-corruption drive where there has been a buy in from (all sectors) of the nation. There has also been, understandably, a dose of scepticism…,; the court must, at all times, be alive to national policies than are relevant to the administration of justice and dealing with certain crimes and a court dealing with anti corruption matters must give voice to such and a court is not only able to support the drive by renovating courtrooms and putting televisions in the courtroom but by making appropriate rulings in appropriate cases, so that the scepticism…, can be stemmed.”

At the appeal hearing the State conceded that the statement by the court a quo quoted immediately above amounted to a misdirection.

However, the State argued that it was not the basis upon which bail was denied so miscarriage of justice resulted.

I reject that argument.

The finding was an acceptance by the court of the State's submission summarised earlier in this judgment. The State submitted there was a perception of catch and release. The State suggested that the perception arose from the fact that persons facing corruption charges, who were admitted to bail, absconded trial after their passports were returned to them, and, in some cases, without passports. The submission by the State, in the court a quo, which was accepted and adopted by that court, constituted the kind of megaphone posturing or grandstanding not only misplaced and unfortunate, but which must be avoided by an officer of the court.

It is not fair for a court official to mislead the public by blaming the bail system for the inertia in the fight against corruption. A stakeholder in the fight against corruption should self-introspect and resist the temptation to locate reason for the inertia in combating the scourge elsewhere except oneself.

The State is the dominant litigant in the prosecution of cases at public instance. It is in charge of investigation and timeous prosecution of crime. There is no point in commencing a prosecution without the necessary seriousness to start the trial. Trials have been delayed by postponements to complete investigations or failure to prefer correct charges or add alternative charges or failure to serve the person accused with relevant State papers or attending to interlocutory matters that could be anticipated by the State.

The fight against corruption cannot be achieved through detention without trial or pre-trial incarceration.

Any person who is accused of an offence in Zimbabwe is presumed innocent until proved guilty; see section 70(1) of the Constitution.

The presumption of innocence started as a common law principle and is now enshrined in the Constitution. Accordingly, it is inappropriate for the State to argue for pretrial incarceration as a matter of policy to deal with the problem of corruption. Such a policy would be invalid due to inconsistence with the Constitution.

The court a quo erred when it accepted the argument….,.

I therefore find that the court a quo misdirected itself when it failed to place weight on the submission that the interests of justice in this matter (Government fight against corruption) justified pre-trial incarceration.

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

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

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

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

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

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

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

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

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

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

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

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

The failure to comply with a court order has the effect of injuring the rights of the other party.

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

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

HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE
Ruled By: PATEL J

Before spelling out the order of this Court, I am constrained to register my deep concern about the quality of counsel for the defendants legal representation of the defendants.Quite apart from his unhelpful and shabby performance in court, his closing submissions qualify as the most appalling that I have seen ...

SC35-12 : CANESIUS CHIPANGURA vs ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: OMERJEE AJA

This is an application for leave to appeal. The background relevant to the determination of this matter is as follows:

The applicant was employed by the respondent as Finance and Administration Manager. He was the head of the Finance Department. On 21 October 2009, the applicant was suspended from duty following allegations that the finance department could not account for US$15,607=25. The applicant directly supervised this department. It is not clear from the record what charge the applicant was facing but it is clear that a hearing was conducted in terms of S.I.15 of 2006. The applicant was found guilty and dismissed from employment.

The applicant's internal appeal was dismissed on 25 November 2009, leading to a referral of the matter to a Labour Officer for conciliation. On 1 March 2010, the Labour Officer issued a Certificate of No Settlement and referred the matter for compulsory arbitration.

The arbitrator, in his findings, accepted that there were some procedural irregularities in the way the hearing was conducted and set aside the employer's decision to dismiss the applicant. He ordered that the applicant be reinstated without loss of salary and benefits as from the date of dismissal pending the outcome of a hearing de novo. The arbitrator also set out guidelines to be followed by the respondent in the event of a hearing de novo. The respondent complied with the arbitral award.

On 7 May 2010 the respondent re-instituted disciplinary proceedings against the applicant. On 11 May 2010 the applicant appealed to the Labour Court against the determination of the arbitrator. In his Notice of Appeal the applicant averred that the arbitrator misdirected himself and erred at law when he permitted the respondent to conduct a hearing de novo.

The appeal was heard on 10 March 2011 and it was dismissed on 6 May 2011.

On 13 May 2011 the applicant approached the court a quo with an application for leave to appeal to this court. The application was dismissed on 12 July 2012 - some 14 months after the application was made. There has been an inordinate delay between the date of hearing of the application for leave to appeal and the date when the determination was made. No reasons were furnished for the refusal to grant leave or for the delay.

This is unacceptable.

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

This is an appeal coupled with a cross-appeal against the judgment of the Labour Court.

Both appellants, in the main appeal, and the respondent in the cross appeal, Emmerson Pamire, were employed by the respondent. Following leakages of confidential information at the work place, the respondent ordered them to sign declaration of secrecy forms. They wilfully disobeyed that order and were suspended from employment pending disciplinary action.

As managerial employees, the first and second appellants had been issued with motor vehicles by their employer. Upon suspension, they were ordered to return the motor vehicles. They both wilfully refused to return the motor vehicles as ordered by the employer.

All the three (3) employees were eventually charged with wilful disobedience to lawful orders before the Disciplinary Authority. They were all found guilty as charged and dismissed from employment on 28 November 2013.

Disgruntled by their dismissal from employment, they approached the Labour Officer, who, in turn, referred the dispute for arbitration in terms of section 93 of the Labour Act [Chapter 28:01].

The terms of reference before the arbitrator, branded, “CLAIMANTS' ISSUES FOR DETERMINATION” were as follows:

“Whether or not the dismissal of the three claimants was fair and lawful?

1. Whether or not the employer was entitled, at law, to institute fresh disciplinary proceedings without complying with the Supreme Court order of 16 July 2013 ordering them to reinstate the claimants without loss of salary and benefits?

2. Whether or not it was lawful for the employer to charge first and third claimants with wilful disobedience of lawful orders arising out of their failure to handover vehicles when the matter of ownership and possession of the vehicles was sub judice (the subject of a legal dispute) which is still pending in the High court in case numbers HC6419/2010, HC6420/10, HC4233/10 and HC4258/2010 which cases were all consolidated under case number HC4258/2010 for purposes of trial?

3. Whether the labour dispute leading to the disciplinary proceedings instituted by the respondent against claimants on 17 July 2013 had prescribed in terms of section 94 of the Labour Act Chapter 28:01 and whether the respondent had a right to charge the claimants for misconduct over the events that allegedly occurred on August 2009?”

The arbitrator, on the basis of the terms of reference placed before her, found that the employer's orders were lawful as they were meant to advance the employer's business. She accordingly upheld the claimants' conviction. She, however, overturned the penalty of dismissal and substituted it with a lesser penalty of final written warning.

The award reads:

“AWARD

1. The Respondent, Zimbabwe Manpower Development Fund (ZIMDEF), be and is hereby ordered to substitute the dismissal penalty with a final written warning valid for twelve (12) months.

2. Respondent be and is hereby ordered to reinstate the claimants without loss of pay and benefits from the date of dismissal.

3. If reinstatement is no longer tenable parties may negotiate for damages in lieu of reinstatement failure of which either party my approach the arbitrating authority for quantification.”

Dissatisfied with the above order reinstating the three (3) respondents, the employer appealed to the Labour Court. The respondents did not, however, cross-appeal against the arbitrator's award upholding the Disciplinary Authority's verdict convicting them of dismissible acts of misconduct as charged.

The second respondent, in the court a quo, Emmerson Pamire, was, however, partially successful in that Court. The court a quo set aside the arbitrator's award and upheld the decision of the Disciplinary Authority dismissing the first and third respondents from employment as prayed for by the employer.

The appeal against the reinstatement of the second respondent, in the court a quo, was, however, unsuccessful in that the court a quo upheld the arbitrator's order of reinstatement. The court a quo's order reads:

“WHEREFORE IT IS ORDERED THAT:

1. The appeal be and is hereby allowed.

2. The arbitration award issued by arbitrator C K Kadenga dated 8 December 2015 is set aside.

3. The dismissal from employment of 1st and 3rd respondents (Tendayi Tamanikwa and Frank Tinarwo) by appellant is upheld.

4(a) The appellant shall reinstate the 2nd respondent Emmerson (Emmerson Pamire) without loss of salary and benefits; or

(b) If reinstatement is no longer tenable, appellant shall pay 2nd respondent damages in such (sic) either agreed by the parties or assessed by this court.”

Unhappy with the Court a quo's judgment, ordering their dismissal from employment, the first and second appellants, in the main appeal, Tendayi Tamanikwa and Frank Tinarwo, appealed against part of the court a quo's judgment upholding their dismissal from employment....,.

Turning to the cross appeal, the appellant is appealing against the reinstatement of the respondent, Emmerson Pamire, to his former employment.

The main appeal was dismissed with costs at the legal practitioner client scale leaving the concerned parties to argue the cross-appeal.

I now proceed to consider the cross-appeal.

The facts giving rise to the cross appeal are by and large common cause. The undisputed facts are that the disciplinary authority convicted the respondent of wilful disobedience to a lawful order to sign declaration of secrecy forms and ordered his dismissal from employment. He appealed to the arbitrator who upheld the conviction but reduced the penalty of dismissal to one of final written warning. The arbitrator then ordered his reinstatement without any loss of salary or benefits. In the alternative, the court a quo ordered damages to be assessed in the event that reinstatement was no longer possible.

The appellant appealed to the court a quo against the order to reinstate the respondent. The respondent did not, however, cross-appeal against the arbitrator's verdict upholding the disciplinary authority's verdict of guilty.

The respondent's failure to cross appeal against conviction can only mean that he accepted his guilt as charged. All he was challenging in the court a quo was the severity of punishment and not his conviction. His plea in the court a quo was one for mercy rather than a denial of misconduct as alleged.

As none of the parties questioned the correctness of the guilty verdict, and, in the absence of a cross-appeal, the appeal in the court a quo fell to be determined on the basis of the issues raised by the appellant in its grounds of appeal which were laid down before the court as follows:

“1. The arbitrator erred, on a question of law, by substituting the employer's discretion to impose a dismissal penalty.

2. The arbitrator erred on a question of law by not realising that the respondent(s') misconduct went to the root of their employment contract(s) thereby justifying a dismissal penalty.

3. The arbitrator grossly erred and misdirected himself that she had no jurisdiction on the second count against the respondents as per section 4(2)b of the Arbitration Act.

4. The arbitrator grossly erred and misdirected herself at law by failing to find that the appeal to the internal appeals officer was filed out of time.”

From the above grounds of appeal it is self-evident that the question of liability was not one of the issues to be determined by the court a quo as that issue had already been conclusively determined by the lower adjudicating authorities. It was therefore remiss of the court a quo to determine an issue that was not before it when it held at page 3 paragraph 5 of its cyclostyled judgment that:

“5. All respondents were not guilty of the charge related to the secrecy document.”

By framing and determining its own issue not raised by the parties, the court a quo erred and strayed into the wilderness of illegality.

CC03-20 : LOVERAGE MAKOTO vs T.K. MAHWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MALABA CJ

The Constitutional Court is loathe to offer opinions which at the end of the day do not assist in the resolution of disputes in the lower courts.If a remedy is available to a party, whether it is a factual or a legal remedy, courts will not normally consider a constitutional ...

CC03-15 : BERNARD MANYARA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

The applicant in this matter seeks a permanent stay of prosecution in respect of a charge that arose more than eight (8) years ago. He claims that his right to a fair trial within a reasonable time, as enshrined in section 18(2) of the former Constitution, has been violated.

The applicant was arrested in November 2005 on a charge of converting to his own use a sum of ZW$760,000,000= that was given to him by the complainant to purchase 30,000 litres of diesel and 8,000 litres of petrol. According to the submissions filed on his behalf before the Magistrates Court on 27 June 2011, he was detained but later released and then arrested again in November 2007. At the end of 2008 he was taken off remand because the State was not ready to proceed. Following his further arrest, in May 2011, he was summoned to appear in court on 20 June 2011, when he gave notice of his intention to apply for the matter to be referred to the Supreme Court in terms of section 24(2) of the former Constitution. The matter was then so referred by the Magistrates Court sitting at Harare on 8 July 2011.

It is averred, on behalf of the applicant, that the inordinate delay of six (6) years in bringing the matter to trial was due to the State's lack of preparedness. It is also averred that he has been prejudiced by the passage of time, the inflation of the Zimbabwe dollar, and the subsequent changeover to the United States dollar.

The State opposed the application for referral on the grounds set out in its response filed before the magistrate on 6 July 2011. It further opposed the request for permanent stay of proceedings in its heads of argument before this Court.

In essence, it is averred that the matter is not properly before this Court because it consists only of the submissions filed in the Magistrates Court. There was no affidavit or evidence adduced in that court, nor was any hearing conducted before it, to enable the magistrate to determine whether or not the application was frivolous or vexatious. Additionally, no documentation was attached to the application to support the applicant's averments as to what transpired between 2005 and 2011. Consequently, neither the prosecutor nor the magistrate could test the veracity of the applicant's allegations....,.

Counsel for the applicant accepts that neither party filed affidavits or gave evidence before the Magistrates Court in relation to the factual and legal requirements to justify or negative a permanent stay of prosecution. The magistrate only considered the written submissions filed on behalf of the applicant before referring the matter to the Supreme Court....,.

Where an accused person alleges any infringement of his or her right to a fair trial within a reasonable time, the factors that are to be ventilated and determined are now well settled. They are:

(i) The length of the delay;

(ii) The reason or explanation and responsibility for the delay;

(iii) The assertion of his or her rights by the accused; and

(iv) Prejudice to the accused arising from the delay.

See In re Mlambo 1991 (2) ZLR 339 (S); S v Nhando & Others 2001 (2) ZLR 84 (S); S v Nkomo SC52-06.

In order to enable a proper evaluation of the above-mentioned factors it is essential that evidence be led, primarily by the accused person, as to what transpired from the date of the charge to the date when referral of the alleged violation of rights is sought. The reasons for this were clearly articulated by GUBBAY CJ in S v Banga 1995 (2) ZLR 297 (S)…, as follows:

“Regrettably, the manner in which the legal practitioner requested the referral was totally misconceived. It was wholly insufficient to make a statement, from the bar, and then to point solely to the length of the delay. He was obliged to call the applicant to testify to the extent to which, if at all, the cause of the delay was his responsibility; to whether at any time before 16 August 1994, he had asserted his right to be tried within a reasonable time; and, even more importantly, to whether any actual prejudice had been suffered as a result of the delay. Such a fundamental omission on the part of the defence is fatal to the success of the application….,.

Moreover, the absence of viva voce evidence completely disables findings to be made that the long delay has been the cause of mental anguish and disruption to the business and social activities of the accused, particularly where, as here, his liberty was not interfered with; and that it has impaired his ability to exonerate himself from the charge due to the death, disappearance or forgetfulness of potential witnesses. See In re Mlambo supra at 352G and 354D-E; S v Demba SC194-94; S v Marisa supra at p9.

I trust that I have made it clear that it is essential for an accused, who requests a referral to this court of an alleged contravention of the Declaration of Rights, to ensure that evidence is placed before the lower court. It is on that evidence that the opinion has to be expressed as to whether the question raised is merely frivolous or vexatious. It is on that record that the Supreme Court hears argument and then decides if a fundamental right had been infringed. Only in exceptional circumstances will an applicant be permitted to supplement the record of the proceedings before the lower court by the production of affidavits. Cogent reasons will have to be provided as to why the further evidence was not presented to the lower court.”

This reasoning has been subsequently adopted and applied by the Supreme Court on several occasions; see Sivako v Attorney-General 1999 (2) ZLR 271 (S); S v Njobvu 2007 (1) ZLR 66 (S), and, more recently, by this Court in Sengeredo v The State CC11-14, per CHIDYAUSIKU CJ....,.

I advert, firstly, to the notice of application for referral, filed on 27 June 2011, wherein it is stated that “the applicant's affidavit and annexures will be used in support of the application.” It is common cause that no such affidavit was ever filed. All that was attached to the notice were the submissions prepared by his legal practitioners, the request for remand, a bail deposit receipt, the charge sheet, and the complainant's statement.

Following the application cum submissions, the State filed its opposing response, dated 6 July 2011, highlighting the procedural and evidential deficiencies besetting the application.

Despite this, on 8 July 2011, the learned trial magistrate proceeded to issue his ruling (comprising a total of 4 lines) granting the application for referral to the Supreme Court. He did this without hearing argument from the parties or affording them an opportunity to present evidence on the factual circumstances bearing upon the application.

The only “evidence” from the applicant that was before the Magistrates Court consisted of the allegations and assertions contained in the written submissions attached to the application.

According to those submissions, the applicant was first charged in November 2005 and only summoned to court for trial in June 2011.

The obvious implication is that he was available to attend trial throughout that period.

As against this are the averments contained in the complainant's statement, dated 8 May 2011, to the effect that the applicant had run away to South Africa in 2005 and only returned to Zimbabwe in 2011. As pointed out by counsel for the respondent, this appears to tally with the police docket which shows that the applicant could not be located between 2005 and 2011.

There can be no doubt that all of the above assertions and counter-assertions should have been ventilated through viva voce evidence in order to determine the reasons and responsibility for the delay in bringing the applicant to trial.

Equally necessary was the evidence necessary to demonstrate that the applicant did in fact assert his right to a speedy trial, that he has been prejudiced by the delay, and the specific manner in which he has been prejudiced.

Moreover, in respect of all of these factors, the State should have been given the opportunity to test the veracity of the applicant's position through cross-examination, in addition to being given the opportunity to adduce its own evidence to rebut that position.

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application in which the applicants seek to set aside an order by HUNGWE J. The order sought to be set aside provides that the learned Judge's judgment will not be suspended by the noting of an appeal. The order of the court a quo provides as follows:

“I therefore issue the following order:

1. The African Consolidated Resources P/L claims issued to the third, fourth, fifth and sixth applicants within the area previously covered by Extension Prospecting Order 1523 held by Kimberlitic Searches P/L are valid and have remained valid since the date they were originally pegged.

2. The right granted to the third respondent by virtue of the Special Grant shall not apply in respect of the African Consolidated Resources P/L claims area as indicated on annexure 'B' to the papers. In that regard, it is hereby ordered that the third respondent cease its prospecting and diamond mining activities in the said area.

IT IS FURTHER ORDERED AS FOLLOWS:

3. That the second respondent return to the applicants possession of the 129,400 carats of diamonds seized from the applicants' offices in Harare on 15 January 2007.

4. The second respondent return to the applicants all diamond(s) acquired by the second respondent from the African Consolidated Resources (P/L) claims area using the register kept by the second respondent in compliance with the Kimberley Process Certification Scheme.

5. That the fourth respondent be and is hereby ordered to direct (the) police to cease interfering with the applicants' prospecting and mining activities.

6. That the first, second and third respondents (pay) the applicants' cost(s) on a legal practitioner and client scale, the one paying the other to be absolved.

7. Any appeal noted against this order shall not suspend the operation of the order.”

Paragraph 7 of the above order authorises the respondents to execute the judgment despite the noting of an appeal against that judgment.

The applicants are dissatisfied with the order, and, having noted an appeal against the judgment, have filed this Chamber application.

The applicants contend that HUNGWE J misdirected himself in ordering execution of his judgment despite the noting of an appeal. They submitted that the grant of such an order, prior to the noting of an appeal, was irregular and should be set aside.

The applicants' case is set out in paragraphs 13-15 of the founding affidavit, which provide as follows:

“13. During argument, the respondents, who were the applicants in that matter, indicated to the court a quo that they would be amending their draft order to include a seventh paragraph to the effect that any appeal noted against that order would not suspend its operation.

14. Although no submissions were made by the first to the sixth respondents to justify the proposed amendment it was submitted, on the applicants' behalf, that such order was incompetent at this stage. It was also submitted that an applicant's recourse would be to apply for leave to execute pending appeal. It was further submitted that it is only after judgment has been delivered that any proper assessment can be made whether there has been any misdirection or not and that sometimes the aggrieved party may even easily show, to the satisfaction of the court, that indeed there has been such (misdirection).

15. The court a quo, in its judgment handed down later that day (the 24th of September 2009), granted the order as amended such that the appeal that the applicants subsequently filed, under Case No. SC230/09, did not suspend the operation of that order. A copy of the operative part of the judgment is attached hereto and marked 'A' and the yet to be typed full judgment as ANNEXURE 'B'.”

The respondents did not file any opposing affidavits.

Counsel for the first to the sixth respondents (hereinafter referred to as “the respondents”), during the course of his submissions, made averments to the effect that the application for execution of judgment despite the noting of an appeal was made during the course of the main hearing before judgment was given.

He, however, did not give details of the application. I will assume no detailed basis for the application was submitted to the court a quo.

The law on the effect of the noting of an appeal against a judgment is well settled.

At common law, the noting of an appeal against a judgment suspends the operation of that judgment. It is also trite that, at common law, the court granting the judgment enjoys inherent jurisdiction to order the execution of that judgment despite the noting of an appeal.

In the leading case of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) CORBETT JA…, had this to say:

“Whatever the true position may have been in the Dutch Courts, and, more particularly, the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks and Anor 1961 (2) SA 118 (T) at pp120-3), it is today the accepted common law rule of practice in our Courts that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and no effect can be given thereto - except with the leave of the Court which granted the judgment.

To obtain such leave, the party in whose favour the judgment was given must make special application. See, generally, Olifants Tin 'B' Syndicate v De Jager 1912 AD 377 at p481; Reid and Anor v Godart and Anor 1938 AD 511 at p513; Gentiruco A.G. v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA (Pty) Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746.

The purpose of this rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to the intending appellant, either by levy under a writ of execution or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from (Reid's case supra at p513).

The Court to which application for leave to execute is made has a wide general discretion to grant or refuse leave, and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (see Voet 49.7.3; Ruby's Cash Store (Pty) Ltd v Estate Marks and Anor supra at p127). This discretion is part and parcel of the inherent jurisdiction which the Court has to control its own judgments (cf. Fismer v Thornton 1929 AD 17 at p19).

In exercising this discretion, the Court should, in my view, determine what is just and equitable in all the circumstances, and, in doing so, would normally have regard, inter alia, to the following factors:

(1) The potentiality of irreparable harm or prejudice being sustained by the appellant on appeal (the respondent in the application) if leave to execute were to be granted;

(2) The potentiality of irreparable harm or prejudice being sustained by the respondent on appeal (the applicant in the application) if leave to execute were to be refused;

(3) The prospects of success on appeal, including, more particularly, the question as to whether the appeal is frivolous or vexatious or has been noted not with the bona fide intention of seeking to reverse the judgment but for some indirect purpose, eg. to gain time or harass the other party; and

(4) Where there is the potentiality of irreparable harm or prejudice to both (the) appellant and (the) respondent, the balance of hardship or convenience, as the case may be.

See in this connection Ruby's case supra at pp127-8; also Rood v Wallach 1904 TS 257 at p259; Weber v Spira 1912 TPD 331 at pp333-4; Rand Daily Mails Ltd v Johnston 1928 WLD 85; Frankel v Pirie 1936 EDL 106 at pp114-6; Leask v French and Ors 1949 (4) SA 887 (C) at pp892-4; Ismail v Keshavjee 1957 (1) SA 684 (T) at pp688-9; Du Plessis v Van der Merwe 1960 (2) SA 319 (O).

Although most of the cases just cited dealt with the exercise of the Court's discretion under a statutory provision or Rule of Court, the statute or Rule concerned did not prescribe the nature of the discretion except in broad general terms (e.g. secs 36 and 39 of Proc. 14 of 1902 (T) empower the Court to give directions as 'may in each case appear to be most consistent with real and substantial justice') and the same general approach would be appropriate to the exercise of a discretion under the aforementioned rule of practice.”

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) is clear authority for the proposition that before a court can exercise the discretion to order execution despite the noting of an appeal, the successful party has to make a special application for such relief.

For the court to be able to exercise this discretion properly, the special application must set out, in some detail, the basis for seeking such relief.

The respondent is entitled to an opportunity to respond to the application.

It is common cause that none of the respondents (then the applicants) in this case made a special application for leave to execute. They simply applied to amend the draft order to include paragraph 7 at some stage in the course of proceedings before judgment.

This, in my view, is totally inadequate because the court was not provided with details necessary for the proper exercise of its discretion.

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) sets out, in some detail, the factors that a court takes into account in determining whether to grant or refuse the relief of execution despite the noting of an appeal.

There is no indication on the record, in particular in the reasons for judgment, that the learned Judge in the court a quo gave consideration to these or any other factors. The reasons for judgment do not indicate what the learned Judge took into account and what he did not take into account in arriving at the conclusion that there should be execution despite the noting of an appeal. Without reasons, it is impossible to understand the learned Judge's reasoning.

Failure to give reasons in an application to execute despite the noting of an appeal is a serious misdirection justifying the setting aside of such a determination.

On this ground alone, I would set aside the court a quo's order that there should be execution despite the noting of an appeal....,.

The applicants' right to be heard by the highest court in the land was rendered nugatory without any semblance of due process. No reasons were given. The failure to give reasons in this case smacks of arbitrariness and the ruling cannot be allowed to stand.

SC21-20 : ZB BANK LIMITED vs TIRIVANHU MARIMO
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

This is an appeal against the whole judgment of the Labour Court, which upheld the decision of the Appeals Board of the National Employment Council Banking ("NEC") to the effect that the charge preferred against the respondent was inappropriate and that he had been unfairly dismissed.FACTUAL BACKGROUNDThe respondent was employed ...

FACTUAL BACKGROUND

The respondent was employed by the appellant as an Administrative Clerk and was also the chairperson of the workers committee. The management of the appellant and the workers' committee had been in a dispute over salary increments of the employees for some time. In August 2010, the dispute was referred to a conciliator, who, in September 2010, issued a Certificate of No Settlement.

Thereafter, between 8 and 15 September 2010, the respondent sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees' salaries. He also stated that the workers' committee had decided to embark on a collective job action to press their interests. The emails were sent through the appellant's IT facility to more than ten recipients at a time.

On 23 September 2010, the respondent was charged with misconduct for contravening section 11(1) of S.I.273 of 2000 (“the Code"), it being alleged that he had acted in a manner which was inconsistent with the fulfilment of the express or implied conditions of his contract.

The basis of the charge was that the respondent had generated offensive emails to a group of staff members against the Bank's standing policy contained in its Information Security Management Policy Document (“IT Policy Document”), particularly sections 4.4 and 4.4.1.

It was also alleged that the contents of the emails were inflammatory and contained confidential information. Further, that the responses that the e-mails generated from staff members who received them ended up congesting the network, thus, interrupting normal business communication in the Bank.

A disciplinary hearing was held in October 2010.

The respondent was found guilty of the misconduct with which he was charged and dismissed from his employment. He appealed to the Grievance and Disciplinary Committee whose proceedings ended in a deadlock. The matter was then referred to a second Grievance and Disciplinary Committee which also ended in a stalemate.

Thereafter, the matter was placed before the National Employment Council Banking Appeals Board, which held that the conduct complained of did not constitute an offence in terms of the charge that had been preferred against the respondent. Accordingly, it held that the charge preferred against the respondent was inappropriate. It stated, further, that although the respondent exceeded the limit of the number of emails allowed by the respondent's IT Policy Document, thereby breaching the appellant's standing policy, the e-mails were neither inflammatory nor offensive, and that no confidentiality had been breached.

It also stressed that the respondent's conduct was in pursuit of a right to represent workers and that the emails were meant to call for collective job action, or, at least, put pressure on the appellant to accede to the workers' wage demands. Consequently, the National Employment Council Banking (NEC) Appeals Board ordered that the respondent be reinstated to his former employment without loss of salary or benefits.

Significantly, it did not order an alternative of damages in lieu of reinstatement in terms of section 89(2)(c) of the Labour Act [Chapter 28:01].

Aggrieved by the decision of the National Employment Council Banking (NEC) Appeals Board, the appellant appealed to the Labour Court. It averred that the Appeals Board erred in failing to find that a Category D offence had been committed, that the penalty of dismissal was appropriate in the circumstances, and that, alternatively, and in any event, it erred in failing to afford to the appellant any alternative to reinstatement.

Per contra, the respondent submitted that the appellant had failed to establish the conduct that allegedly constituted the offence in question. He also contended that the National Employment Council Banking (NEC) Appeals Board was not mandated to give an alternative for damages in lieu of reinstatement. Further, that it was not bound by section 89(2)(c) of the Labour Act because that provision only relates to the Labour Court in the exercise of its functions and not internal structures such as the National Employment Council Banking (NEC) Appeals Board.

The court a quo took the view that as the employees were considering going on strike over the wage dispute, the respondent acted within the bounds of his official duties as the chairman of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court however stated that although the respondent may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal.

Consequently, the appellant 's appeal was dismissed.

The appellant was aggrieved by the decision of the court a quo and appealed to this Court on the following grounds, viz:-

1. Having come to the conclusion that the respondent's conduct was in breach of the appellant's IT policy, in that he had sent emails to more than the maximum permissible number of recipients at a time, the court a quo erred in concluding that such conduct did not amount to a dismissable misconduct;

2. The court a quo erred in failing to appreciate that the respondent's conduct, in violating the standing regulation, was a breach of his privileges as the representative of the workers' committee and could therefore not be excused;

3. Having come to the faulty conclusion that the respondent was to be reinstated, the court a quo erred in not providing for an alternative of damages as is required under the statute.

I will now consider the grounds of appeal in light of the evidence before the court.

Whether the court a quo erred in concluding that the misconduct, of sending emails to more than the maximum permissible number of recipients at a time, did not amount to dismissable misconduct

It is pertinent, in order to determine this issue, to consider the charges preferred against the respondent.

He was charged with contravening section 11(1) of S.I. 273/2000, namely:

"Any serious act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract where such is not provided for under Category 'A', 'B' or 'C'."

The particulars of the charge were stated as follows:-

"Between 8 and 15 September 2010, you generated some offensive emails to a group of staff members against the Bank's standing policy on Information Security Management Policy document section 4.4 and 4.4.1. Besides the contents of the email being inflammatory and confidential, the responses you asked from staff members ended up congesting the network affecting normal business communication in the process."

The first ground of appeal addresses the finding of the National Employment Council Banking (NEC) Appeals Board, expressed thus in its judgment:-

"The Appellant obviously exceeded the limit of number of recipients allowed by the bank IT policy. The limit was 10 people per email."

This finding was upheld by the Labour Court which described the respondent's conduct in this respect as amounting to him having "gone overboard by breaching (the) Respondent's standing policy."

Counsel for the appellant took the view that having found that the respondent exceeded the maximum number of 10 emails at a go, the National Employment Council Banking (NEC) Appeals Board, and the court a quo, erred in not finding him guilty.

Counsel for the respondent, on the other hand, submitted that the particulars of the charge did not speak to exceeding the permitted number of e-mails to be sent at a time. Accordingly, he contends further, the respondent could not have been found guilty of a charge that had not been preferred against him.

In response, it was the appellant's submission that charges are crafted by lay persons and not lawyers. To this end, he contended that the respondent ought not to be spared a conviction on the basis of what was in effect a technicality, given that labour matters generally ought not to be determined on the basis of technicalities.

I am persuaded by the respondent's submissions.

He clearly was not charged with violating any standing policy forbidding the dispatch of more than 10 emails at a time using the appellant's server. As correctly contended for him, the appellant's IT Policy Document specifically provides for this infraction in its clause 4.4.5.

A closer look at the relevant portions of the clauses which the respondent was accused of breaching, that is 4.4 and 4.4.1 is instructive.

Clause 4.4 proscribes the accessing or distribution of inappropriate or offensive material which may harm the reputation of ZB Financial Holdings Ltd "both internally and externally.”

Clause 4.4.1 underlines the fact that its communications systems are for business purposes only, and states that any employee found abusing such facilities would be subjected to disciplinary action in accordance with the applicable Code of Conduct.

These provisions, and the charges based on their alleged violation by the respondent, clearly do not speak to the specific issue of dispatching more than 10 emails at a time.

While it may conceivably be argued that sending more than 10 e-mails at a time amounts to abuse of the appellant's electronic communication system, the fact that the latter saw it fit to remove this particular conduct from the ambit of abuse in general, in my view, evinces the intention to keep the two offences separate and distinct.

Clearly, therefore, the National Employment Council Banking (NEC) Appeals Board determined this aspect of the dispute on the basis of a matter not properly before it.

The respondent could not be found guilty of sending an email to more than 10 people at a time as that was not the charge that had been preferred against him, nor did it form the particulars of the charge the respondent was called upon to answer.

This finding stands notwithstanding that the respondent may, and appears to have, indeed acted contrary to the instruction as provided under 4.4.5 of the Information Security Policy.

That, however, was not the charge that he was facing. It was therefore not open to the National Employment Council Banking (NEC) Appeals Board to substitute the charge put to the respondent with another charge.

The National Employment Council Banking (NEC) Appeals Board therefore misdirected itself.

In its turn, the Labour Court, by upholding the same finding by the Appeals Board, also fell into error.

The law is clear, that, it is not open to the court or a tribunal to substitute a charge laid against an employee with another one and proceed to make a determination based thereon.

Appealed
SC87-19 : PRECIOUS CHIPUNZA vs MOSLEY MASHINGAIDZE
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

The relief sought by the appellant is that the judgment appealed against be set aside and substituted with an order staying the matter in Case No. HC11588/11, pending the resolution of the question of ownership in Case No. HC2469/13....,.

Pendency of Case No. HC2469/13

The gist of the appellant's position a quo was that there was an action pending in Case No. HC2469/13 to determine the true ownership of the property in question and that the interests of justice, convenience, and finality to litigation demanded that the real substance of the dispute, i.e. ownership of the property, be ventilated and determined first.

In essence, the appellant raised the defence of lis alibi pendens.

The defence or objection of lis alibi pendens is usually invoked in litigation where a civil suit is already pending between the parties and another suit is instituted involving the same parties in relation to the same cause of action and in respect of the same subject matter. See HERBSTEIN and Van WINSEN: The Civil Practice of the Superior Courts in South Africa (3rd ed.)…,.

As is pointed out by the learned authors, it lies within the discretion of the court to allow or decline the defence. This point is aptly elaborated in D.W. Hattingh & Sons (Pvt) Ltd v Cole N.O. 1991 (2) ZLR 176 (SC)…, as follows:

“The court has a discretion to order or refuse a stay of proceedings on the grounds of lis alibi pendens, and, in the exercise of that discretion, it will have regard to the equities and to the balance of convenience in the matter.”…,.

What emerges from this passage is that the court seized with a request for the stay of proceedings must have regard to all the relevant circumstances of the case. In short, considerations of fairness and convenience are decisive in the exercise of the court's discretion. Thus, it is not an immutable rule that the matter or suit which was commenced first should be proceeded with and determined before the matter that is instituted at some later stage. The particular facts and issues involved in both matters must be taken into account in granting or refusing a request for the stay of proceedings.

In dismissing the appellant's objection in limine to the continuation of the proceedings a quo, the learned judge reasoned as follows:

The instant matter was filed in 2011 well before the matter in Case No. HC2469/13. At that time, there was no similar matter pending between the parties. The defence of lis alibi pendens applies to a pending earlier matter involving the same parties, the same subject matter and the same cause of action. Therefore, the action which was first commenced should be decided first. The defence raised by the appellant was an afterthought. In any event, although the instant claim was for eviction, it still required the court to determine the question of ownership of the property. Consequently, the learned judge dismissed the point in limine and proceeded to find that the appellant had no recognisable defence to an actio rei vindicatio or to the claim for holding over damages.

Having regard to what I have stated earlier, the learned judge was clearly wrong in taking the position that the defence of lis alibi pendens only applies to a pending earlier matter and that the action which was commenced first should be decided first.

In my view, the correct principle to be applied in the case of dual or multiple proceedings is not that of “first come first adjudicated”. Rather, it is one of having regard to all the relevant circumstances and balancing the interests of justice and convenience to all the parties involved as well as the court system.

The court a quo failed to do so and misdirected itself by applying the wrong principle in the exercise of its discretion in determining whether or not to stay the instant proceedings.

Equally significantly, the learned judge appears to have committed a further critical error in her adjudication of the question of ownership.

At an early stage during the trial a quo the appellant's counsel applied for a postponement of the trial on the ground that there was a pending chamber application for the consolidation of the two matters in question. It was argued that it was convenient for both matters to be heard at the same time.

The learned judge declined the application for postponement on the basis that the application for consolidation was belated and had been overtaken by events.

While the learned judge cannot be faulted for having taken this robust approach, it seems to me that she could not have been in any position to make conclusive findings on the question of ownership without having examined the record in Case No. HC2469/13. That is the matter in which the issues of ownership and several transfers of title in the disputed property are to be fully ventilated.

It is not in dispute that neither Gildastone Holdings nor Lalapanzi Properties have filed any notice of opposition to the appellant's claim in that matter. It is also not in dispute that the principal player in the purported loan-cum-sale arrangement over the property, ie Frank Buyanga, has been evasive hitherto but has since been served with process by edictal citation pursuant to a court order dated 4 April 2019.

In short, the proceedings in Case No. HC2469/13 have progressed to a stage where they can be expedited by the parties themselves, or, if necessary, by appropriate directions from the court.

As I have already noted, the appellant did initially raise the question of lawful title and ownership in October 2012. However, these issues were omitted from the joint pre-trial conference minute filed in February 2013, at the time when the appellant was not legally represented. Subsequently, he issued summons in Case No. HC2469/13 on the basis that he was still the legal owner of the property.

His uncontroverted averment in this regard is that he did so pursuant to the indications of the judge presiding at the pre-trial conference, to the effect that it was not meaningful for him to challenge the last transfer to the respondent without challenging the initial transfer.

That being so, it cannot be said, as was rather unfairly found by the court a quo, that the defence raised by the appellant was merely an afterthought.

It is common cause that the appellant possessed initial title in the disputed property. His position is that he inadvertently signed what he was led to believe and understood to be simply a loan agreement and that he did not sign anything else relating to the transfer of the property.

At present, title to the property is registered in the respondent's name.

However, it is trite that a title deed is not conclusive proof of ownership.

In casu, the presumption of ownership being vested in the respondent has been challenged and possibly dislodged by the absence of evidence proving the various transfers of title from the appellant to Lalapanzi Properties and then to Gildastone Holdings and eventually to the respondent.

In the final analysis, I am satisfied that the court a quo erred and misdirected itself in declining to stay the proceedings before it pending the disposition of Case No. HC2469/13, notwithstanding that the latter case had been instituted after the former.

In the exercise of its discretion, the court acted on the wrong principle. Moreover, it failed to take into account crucially relevant facts pertaining to title in and ownership of the property.

If the judgment a quo were to be enforced, resulting in the appellant being evicted from his only home, he would no doubt be rendered destitute pending the possible restoration of the status quo ante. Conversely, if the eviction of the appellant were to be delayed pending the finalisation of Case No. HC2469/13 and if the respondent were to succeed in that matter, the latter could be compensated by an award of holding over damages coupled with an order of punitive costs, if appropriate, and would therefore suffer minimal prejudice. In other words, the balance of convenience clearly favours the appellant.

Disposition

In the premises, I take the view that the real dispute between all of the parties involved is still pending in Case No. HC2469/13.

In this particular instance, the matter that fully and definitively resolves the issues of ownership and title should be heard and determined first. This would resonate not only with the interests of justice and the balance of convenience between the parties but also with the need to bring finality to the protracted contestation in this matter.

The court a quo should have exercised its discretion accordingly and its decision to the contrary cannot be allowed to stand.

As regards costs, I have earlier indicated that the appellant was prepared, in the event that the appeal succeeds, to forego the costs a quo as well as the costs of the appeal. It is accordingly ordered as follows:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

“(i) The matter be and is hereby stayed pending the determination of Case No. HC2469/13.

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

View Appeal
SC66-17 : DORICA MUZONGONDI vs CALISTO MUZONGONDI
Ruled By: GARWE JA, GOWORA JA and PATEL JA

The parties were formerly married in terms of the law; they are no longer married having been divorced by the High Court on 3 February 2013. This is an appeal against part only of a judgment granting the decree of divorce.

The parties concluded a customary union in 1995, and, on 31 March 2000, their union was formally solemnized in terms of the Marriage Act [Chapter 5:11]. The union did not produce any issue.

On 8 April 2011, the respondent, alleging irretrievable breakdown of the union, instituted divorce proceedings. At a pre-trial conference held before a judge, in chambers, the parties agreed that the marriage had broken down irretrievably and that a decree of divorce should be issued by consent.

They also agreed that the respondent should be ordered to pay the sum of USD20 per month to the appellant as maintenance.

The distribution of the movable assets of the parties was agreed between the two.

The parties were unable to agree on the manner of distribution of the two immovable properties, being Stand 6071 Unit J Chitungwiza, and a Stand in Norton, as well as an F13 pick-up truck, which were held over for trial. Also for determination before the trial court was whether an undeveloped Stand in Kwekwe Marshlands formed part of the matrimonial assets of the parties and was therefore liable for division, apportionment, or distribution in terms of the Matrimonial Causes Act [Chapter 5:13] ('the Act').

The trial court made a factual finding that the Kwekwe Marshlands stand constituted matrimonial property.

It then proceeded to dispose of the dispute as follows:

The respondent was awarded the Kwekwe Marshlands stand, a 70 per cent share in Stand 6071 Unit J Chitungwiza, and the F13 pick-up truck. The appellant was awarded the undeveloped Stand in Norton as well as 30 per cent share in Stand 6071 Unit J Chitungwiza.

The appellant was aggrieved and has noted this appeal on a number of grounds. Essentially, the appellant seeks to challenge the exercise of discretion by the learned judge in the manner in which he disposed of the dispute with regard to the immovable assets.

In his disposition, the learned trial judge properly took into account the duration of the union of about fifteen years. The trial judge gave due credit to the appellant for the role that she had played as wife to the respondent. Indeed, the respondent himself said, in evidence, that the appellant had performed her wifely duties and had contributed by caring for his welfare and well-being. He also considered that she had provided other contributions, which, according to the respondent, had contributed to the matrimonial estate. Nevertheless, the respondent was unable to credit her for contributing to the matrimonial estate on the premise that she was not gainfully employed during the marriage. He offered her a 30 percent share of the matrimonial home in Chitungwiza and the undeveloped Stand in Norton.

The trial judge took the view that the appellant had not directly contributed to the matrimonial estate and awarded her the property that the respondent had offered her in his claim. Aside from the issue relating to the contribution, the trial judge gave no other reason for his disposition of the assets. In the view of the learned trial judge, an award of the Norton Stand and a 30 percent share in the matrimonial home would meet the justice of the case.

The exercise of discretion by an appropriate court, as required in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13] has been the subject of scrutiny by the courts within this jurisdiction.

It is trite that, in giving effect to the broad discretion bestowed to it, under section 7(1) of the Matrimonial Causes Act, the court must have regard to the factors set out in section 7(4) which are:

(a) The income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

(b) The financial needs, obligations, and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

(c) The standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;

(d) The age and physical and mental condition of each spouse and child;

(e) The direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;

(f) The value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;

(g) The duration of the marriage.

The Matrimonial Causes Act further provides that, in so doing, the court shall endeavour, as far as is reasonable and practicable, and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.

In Gonye v Gonye 2009 (1) ZLR 232…, MALABA JA…, remarked:

“It is important to note that a court has an extremely wide discretion regarding the granting of an order for the division, apportionment or division of the assets of the spouses in divorce proceedings. Section 7(1) of the Act provides that the court may make an order with regard to the division, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other. The rights claimed by the spouses under section 7(1) are dependent upon the exercise by the court of the broad discretion”.

As a consequence, in the exercise of its jurisdiction, in making an order for the division, apportionment, or distribution of matrimonial property under the Matrimonial Causes Act, a court is enjoined to have regard to all the circumstances of the case.

In casu, the learned trial judge was alive to the need to have regard to the factors set out in section 7(4) of the Matrimonial Causes Act. The court was alive to the fact that the appellant was not employed and had never been formally employed during the union. The court commented:

“The above guiding factors make it clear that the indirect contributions must be considered in the distribution of assets between the spouses. The issue might thus be what weight to put on such indirect contribution. This will of course vary from case to case. There may be cases where the indirect contribution is not considerable. And also cases where indirect contribution is very significant.”

It is appropriate to have regard, at this stage, to the dicta in Gonye v Gonye 2009 (1) ZLR 232.

The discretion enjoyed by an appropriate court, under section 7 of the Matrimonial Causes Act, is extremely wide, and, a court should be loathe to fetter that discretion. In such exercise, every factor referred to in section 7(4) of the Matrimonial Causes Act is important in the determination of the disposition of the matrimonial estate. That is to say, that weight should be placed on all the factors such that the exercise of discretion should not appear to be based on any one factor to the exclusion of others.

Needless to say, the exercise of a discretion must be concomitant to the power to exercise such a discretion. This power is to be found in section 7(1) and (2) of the Matrimonial Causes Act, which read:

“(1) Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to —

(a) The division, apportionment, or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;

(b) The payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage.

(2) An order made in terms of subs (1) may contain such consequential and supplementary provisions as the appropriate court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between the spouses and may, in particular, but without prejudice to the generality of this subsection —

(a) Order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order;

(b) Confer on any trustees of any property which is the subject of the order such powers as appear to the appropriate court to be necessary or expedient.”

In the exercise of the discretion referred to in the above provisions, it is important that an appropriate court not lose sight of the overriding principle enshrined in the provisions, that at the end of the day the court is enjoined to ensure that, in its disposition of the matter, it is bound to achieve equity between the parties.

As a result, a lot of authorities, in construing the provisions of section 7 of the Matrimonial Causes Act, as a whole, refer to the need to achieve an equitable distribution of the assets of the spouses consequent upon the grant of a decree of divorce.

Therefore, it is not surprising that the provision itself has specified, in no uncertain terms, those assets of the parties which may not be subject to division, apportionment, or distribution under the section. This exclusion is to be found in subsection 3 which reads:

“(3) The power of an appropriate court to make an order in terms of paragraph (a) of subs (1) shall not extend to any assets which are proved, to the satisfaction of the court, to have been acquired by a spouse, whether before or during the marriage —

(a) By way of an inheritance; or

(b) In terms of any custom, and which, in accordance with such custom, are intended to be held by the spouse personally; or

(c) In any manner, and which have particular sentimental value to the spouse concerned.”

Having made a finding that all the property being claimed by the parties to the dispute before it was liable to division, apportionment, or distribution in terms of the Matrimonial Causes Act, it behoved the court a quo to make a specific finding on whether or not it should make a disposition in respect of each of the items being claimed, the rationale behind its finding, and the manner of disposition.

This the court did not do.

It merely remarked that the indirect contribution by the appellant would justify an award in respect of the Norton Stand and a 30 percent share in the house in Chitungwiza, which was the matrimonial home of the parties.

The parties' customary law union was concluded either in 1994 or 1995. Prior to that the parties had cohabited from about 1990. It is common cause that neither party had, at that stage, any property worthy of mention. Whilst the respondent had acquired a degree in Agricultural Engineering, the appellant had no skills. It was due to the encouragement and efforts of the respondent that she went to school and acquired a certificate as a tailor.

In 1995 or 1996, the parties acquired the Stand in Chitungwiza, on which was a dwelling comprising three small rooms. It is not evident whether or not it had ablution facilities. It is logical to assume that it had. As at the time the matter was heard, the parties had improved it considerably to such an extent that they are in a position to rent out part of the dwelling to tenants. It is from these rentals that the appellant is earning a living. It is also this property that the appellant sought as her portion from the matrimonial estate.

In addition to the above property, the parties also acquired two undeveloped Stands, one in Kwekwe Marshlands area and the other in Norton. Both bear the name of the respondent.

Apart from the acknowledgment by the parties of the purchase of the Stands, no other details were furnished to the court with regard to the proper description, correct location, extent, or value of the properties in question.

Despite the absence of these material details, the court a quo was disposed to order a distribution of the immovable properties.

I am not convinced that this was the correct manner of dealing with such a contentious issue.

However, the difficulty that I see in the manner of disposition is related to the absence of reasons by the court a quo, apart from a vague reference to the duration of the marriage and the parties' respective contributions to the matrimonial estate.

It seems that in disputes of this nature, trial courts place undue emphasis on the parties' contributions to the exclusion of other factors. The ambit of section 7 of the Matrimonial Causes Act, as a whole, must be considered and given effect to in the determination of the dispute at hand.

In my view, a court that merely focuses on a number of issues, without regard to the requirements set out in the section, as a whole, is guilty of a misdirection.

In casu, it was evident that whilst the respondent was well educated and in gainful employment, the appellant was devoid of any skills that would enable her to obtain gainful employment. At the time of divorce, she was aged 45 and it was accepted that her chances of remarriage were non-existent. She said that her inability to bear a child made it difficult for her to get a companion willing to commit to marriage. The respondent, on the other hand, was already in a relationship from which he had a child.

Over and above this, the respondent admitted that the appellant had played her role as a wife. His evidence was that she had contributed immensely in looking after him, cooking for him, washing his clothes and making sure that he went to work looking presentable.

That a wife's indirect contribution to the family cannot be disregarded is beyond question.

It is evident that the court a quo was alive to the weight to be placed on such contribution in considering the apportionment of the assets of the parties. The court had regard to the dicta by ZIYAMBI JA in Usayi v Usayi 2003 (1) ZLR 684, wherein…, the learned judge stated:

“The Act speaks of direct and indirect contributions.

How can one quantify, in monetary terms, the contribution of a wife and mother, who, for 39 years faithfully performed her duties as a wife, mother, counsellor, domestic worker, house keeper, day and night nurse for her husband and children? How can one place a monetary value on the love, thoughtfulness, and attention to detail that she puts into all the routine and sometimes boring duties attendant on keeping a household running smoothly and a husband and children happy? How can one measure, in monetary terms, the creation of a home and the creation of an atmosphere therein from which both husband and children can function to the best of their ability?

In the light of these and many various duties, how can one say, as is often remarked: 'throughout the marriage she was a housewife. She never worked.'

In my judgment, it is precisely because no monetary value can be placed on the performance of these duties that the Act speaks of the 'direct or indirect contributions made by each spouse to the family including contributions made by looking after the home and caring for the family and any other domestic duties.'

A fair approach is set out by PROFESSOR NCUBE in his book Family Law in Zimbabwe.”

I respectfully agree with the comments of the learned judge.

In my view, the above dicta set out the correct approach to be followed by an appropriate court in the admittedly difficult task of determining the respective contributions of the parties. Had the learned judge followed this approach, he would not have been misdirected. He chose to overlook not only the authorities but the clear provisions of the Matrimonial Causes Act.

As stated previously, the appellant is unlikely to remarry. She has no means to acquire any property due to her lack of skills. She was awarded an amount of USD20 per month as maintenance which would not enable her to meet her personal expenses let alone provide her with the means to acquire any property to live in. It would also be unlikely, in the circumstances, that she would be able to raise sufficient funds to construct a dwelling on the Norton stand.

The ambit of the Matrimonial Causes Act, as a whole, is to leave the parties in a position that they would have been had the marriage relationship continued.

Sadly, in this case, it is evident that the respondent has been left in a much better off position than the one he would be in if he and the appellant were still married. The appellant, on the other hand, is worse off. She is now homeless. She cannot, under any stretch of the imagination, buy or construct a dwelling. She will be unemployed and will thus be rendered destitute.

In my judgment, the learned judge in the court a quo failed to properly exercise his discretion under the Matrimonial Causes Act.

He failed to consider all the factors upon which such an enquiry should be made. More importantly, he made dispositions on immovable properties in the absence of any proper valuations of the said properties.

The prejudice, especially to the appellant, cannot be gainsaid.

It is only proper, therefore, that the matter be remitted for a proper consideration of the dispute in terms of the Matrimonial Causes Act and for the adduction of evidence on the values of the properties in dispute.

Accordingly, it is ordered as follows:

1. The appeal is allowed with costs.

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

3. The matter is remitted for a proper consideration of the matter in accordance with the provisions of the Matrimonial Causes Act [Chapter 5:13] and for the adduction of evidence on the values of the immovable properties.

SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

Where a court has declined jurisdiction, there cannot be proceedings before it thereafter.

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

It is seldom that a judge finds himself having to contend with listening to academic presentations on law made for no other purpose than perhaps to simply satisfy the ego of the presenter. A judge, unfortunately, does not engage in debate with the parties or their legal practitioners. The judge ...

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

This dispute came before me as a trial matter. The parties agreed to dispense with the need to call oral evidence there being no disputes of fact arising from the facts. Thereafter, the parties filed heads of argument and a Statement of Agreed Facts. After argument, the court granted the ...

HH562-14 : WORLD EDUCATION vs PHANUEL KAPFUDZARUWA
Ruled By: TSANGA J

The courts cannot just act like mere robots in applying the law but must do so in a way that meets the justice of the case in light of both the law and the circumstances of a given case.

HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT
Ruled By: CHIGUMBA J

This is a matter in which I was called upon to decide whether section 89(6), as read with section 89(1)(d1) of the Labour Act [Chapter 28:01] ousts the review jurisdiction of the High Court over matters that the Labour Court has exclusive jurisdiction over.

The question for determination is whether the High Court has jurisdiction to entertain an application for review of a labour matter at first instance.

It appears to me, that, by its very nature, the Labour Court is frequently seized with matters whose conduct evokes the biblical David and Goliath pathos. David, being the employee litigants that appear before it, and, Goliath, being represented by the more powerful employer. It is important that labour practitioners pay heed to the need to protect and promote the powers and remedies provided by the Labour Act. This involves becoming intimately acquainted with these provisions, and utilizing them as frequently as possible, in order to streamline them and to provide room for their improvement.

Labour practitioners should not lose sight of the fact that the cost of litigation is cheaper in the Labour Court. Surely, this assists our biblical David in his puny attempts to make Goliath pay what is due and owing to him on termination of employment.

This court should be loathe to collude with and to assist Goliath to bully David into submission, into giving up the enforcement of his rights, simply because Goliath has the financial wherewithal, a bottomless pit, that enables him to go forum shopping, to hop from one court to the next, looking for a suitable remedy with which to hit David on the head with, knock him out, and delay, or avoid, paying what is due at any cost.

Time has come for labour practitioners to recognize that, as officers of the court, they must show respect to the Labour Court and not run to the High Court at the drop of a hat because it is perceived as being more expeditious in disposing of these matters, or because they are more familiar with its rules and procedures.

This matter came to me via the Urgent Chamber Book.

After perusing the application and the opposing papers filed of record, I formed the preliminary view that the applicant had not exhausted domestic remedies, and that the High Court should decline jurisdiction.

I invited the parties to attend on me in Chambers, and to address me solely on that point.

I was not persuaded to change my preliminary view.

I dismissed the application with costs for lack of jurisdiction.

The applicants have now written to me and asked me to provide my reasons for holding such a view.

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

On 21 July 2015, I registered an arbitral award in favour of the applicant which was in the following terms:“It is ordered that;1. The arbitration award attached hereto, and granted in favour of the applicant on the 29th of October 2014, be and is hereby registered as an order of ...

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

The applicant is a company duly registered in terms of the laws of Zimbabwe. The second respondent is its employee with whom it has had labour disputes leading to this application.The second respondent was suspended from employment pending the resolution of the dispute between her and her employer.The first respondent ...

The applicant is a company duly registered in terms of the laws of Zimbabwe. The second respondent is its employee with whom it has had labour disputes leading to this application.

The second respondent was suspended from employment pending the resolution of the dispute between her and her employer.

The first respondent is an arbitrator who was duly appointed to arbitrate in the labour dispute between the applicant and the second defendant.

The applicant and the second respondent filed written submissions with the first respondent.

The first respondent thereafter called them for a hearing which was not finalised. He called them again to clarify the issue of whether or not the second respondent had secured employment during the period of her suspension.

On 26 June 2007, while counsel for the second respondent was making submissions at the hearing, the first respondent said the second respondent had “told him about how she suffered during the years.” The applicant's counsel asked him to clarify where this conversation took place, but the first respondent did not respond to that inquiry.

That hearing was adjourned without a clarification of the first respondent's comments.

The applicant's counsel followed it up by letter to the second respondent's counsel dated 27 June 2007. The letter was copied to the first respondent. It reads as follows:

“We refer to the arbitration hearing before Mr Gabilo on 26 June 2007.

As you will no doubt be aware, the arbitrator made some remarks indicating that he had granted audience to the claimant and heard certain evidence from the claimant outside the framework of a hearing. The writer sought an explanation as to how this had occurred and the arbitrator gave no response.

Our client is concerned that the arbitrator may have acted improperly as a result of which his impartiality may be in doubt. In this regard, the respondent is entitled to impeach the arbitrator and have the matter referred to another arbitrator.

Please can we have your client's explanation in this regard not later than 29 June 2007.”

The second respondent's counsel did not respond within the stipulated period. The first respondent did not respond even though the letter was copied to him.

The applicant's counsel then wrote to the first respondent on 4 July 2007. The letter reads as follows:

“We refer to our letter of 27 June 2007 addressed to the claimant's legal practitioners and copied to you. We have not heard from the claimant's legal practitioners.

Our client has instructed us, in the circumstances, to address its request for your recusal as arbitrator in this matter on the grounds that the respondent entertains serious doubts as to your impartiality or independence as arbitrator. As indicated in our letter of 27 June 2007, the respondent believes that you have entertained representations from the claimant outside the framework of the arbitration hearing. When we requested that you explain the circumstances in which the claimant had made representations to you, you did not answer that question.

In the circumstances, the respondent seeks your recusal as arbitrator immediately.

Accordingly, you are to refer the matter to the Labour Officer who referred the matter to you for a fresh appointment of an arbitrator. Regrettably, should you not recuse yourself, the respondent shall seek the intervention of the High Court.”…,.

The first respondent did not respond to the challenge, but proceeded to make an award without first rejecting the challenge.

The applicant thereafter applied to this court for an order terminating the first respondent's mandate to arbitrate, and ordering that fresh arbitration proceedings be held within a fortnight.

The applicant is being represented by Mr Shoko, the Group Chief Executive of Trust Holdings Limited. The applicant is a subsidiary of Trust Holdings.

The first respondent did not oppose the application.

The second respondent opposed the application, and raised two points in limine:

(i)...,.

(ii) She also claimed that the applicant's application does not comply with the provisions of Article 13 of the Arbitration Act [Chapter 7:15] (hereinafter called “the Act”)....,.

Compliance with Article 13 of the Arbitration Act

Counsel for the second respondent also raised the issue of procedure arguing that the applicant's application does not comply with Article 13 of the Arbitration Act. He submitted, that, in terms of Article 13(1), the parties should have agreed on the procedure to be used in challenging the arbitrator. He also submitted that the notice of challenge was defective because no evidence was attached to it. He therefore argued that the application does not comply with the procedure through which a challenge to the arbitrator's appointment can be brought to this court.

He further submitted that the arbitrator has already made his award, and, in the circumstances, the applicant should have proceeded in terms of Article 34 of the Arbitration Act.

He submitted that the applicant could not apply to this court in terms of Article 13 of the Arbitration Act because the parties had not agreed on the procedure for challenging the arbitrator.

Counsel for the applicant argued that the application was properly made in terms of Article 13 of the Arbitration Act, as failure to agree on the challenging procedure is not a bar to any challenge arising from what happens during the arbitral proceedings. He further submitted that the letter to the first respondent contains all the information which should be in a statement of challenge and should therefore be accepted as a valid challenge to the arbitrator.

Article 13 of the Arbitration Act [Chapter 7:15] provides as follows:

“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of para (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in Article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of para (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”

The wording of paragraph (1) of Article 13 of the Arbitration Act favours counsel for the applicant's interpretation.

It states that the parties are free to agree on a procedure for challenging the arbitrator. It does not say that they have to.

It further states that the provision is subject to paragraph (3) of this Article. Article 13(3) mentions two procedures which can be used for challenging the arbitrator:

(i) They can use the agreed procedure; or

(ii) The procedure prescribed by paragraph (2). Article 13(2) provides for a procedure to be followed if the parties do not agree on a procedure to be followed. It specifically states that “failing such agreement, a party who intends to challenge an arbitrator shall…,.”

This means that paragraph (2) procedure is an alternative procedure to be used if the parties do not agree on the procedure to be used.

I would therefore agree with counsel for the applicant that the application does not depend on whether or not the parties agreed on the challenging procedure. It, in my view, depends on whether or not the applicant correctly followed the procedure prescribed by paragraph (2) of Article 13 of the Arbitration Act.

An analysis of Article 13(2) of the Arbitration Act reveals the requirements which should be complied with before a party can request this court to decide on a challenge. They are as follows:

1. The party who seeks to challenge the arbitrator must, within fifteen days of becoming aware of the reason for the challenge;

2. Send to the tribunal or arbitrator a written statement;

3. Stating the reasons for the challenge;

4. The challenged arbitrator can withdraw from his office, or the other party can agree to the challenge; and

5. If the arbitrator does not withdraw, and the other party does not agree with the challenge, then the arbitrator must decide on the challenge.

In terms of Article 13(3) of the Arbitration Act, the rejection of the challenge by the arbitrator leads to the following:

1. The challenging party may, if he is not satisfied by the rejection;

2. Within thirty days of the rejection, request the High Court;

3. To decide on the challenge.

While the challenge is pending in the High Court, the challenged arbitrator or tribunal can continue with the arbitral proceedings and make an award.

In this case, the arbitrator did not respond to the challenge, but proceeded to make an award without dealing with the challenge.

In terms of Article 13(2) of the Arbitration Act, he was bound to decide on the challenge.

Counsel for the applicant argued that, that entitles this court to hear the applicant's application.

Counsel for the second respondent argued that once the award is made it can only be set aside by the High Court in terms of Article 34(2)(b)(ii) of the Arbitration Act.

As already indicated, the procedure under Article 13(2) of the Arbitration Act does not require the parties to first agree on the challenging procedure. The words “failing such agreement” in Article 13(2) means in the absence of an agreement. The applicant's application cannot therefore be dismissed just because the parties had not agreed on the challenging procedure.

The application must however comply with the alternative procedure under Article 13(2) and (3) of the Arbitration Act, which requires the applicant to, within fifteen days of becoming aware of the circumstances on which the challenge is premised, to send a written statement to the tribunal in which the reasons for the challenge will be stated.

Counsel for the second respondent submitted that the applicant's statement was not accompanied by reasons for the challenge. Counsel for the applicant submitted that the letter the applicant wrote to the arbitrator satisfies the requirements of Article 13 of the Arbitration Act.

I agree with counsel for the applicant, as a reading of the Article gives the impression that what is required is a simple statement which informs the tribunal or arbitrator of the reasons why its or his recusal is being sought.

If the intention was for the challenging party to submit an application accompanied by an affidavit in which the reasons for recusal would be stated the legislature would have required the challenging party to apply for recusal instead of sending a statement.

The letter to the first respondent clearly states why his recusal was being sought. It therefore satisfies the requirements of Article 13 of the Arbitration Act. I am therefore satisfied that the applicant's application cannot be dismissed for failure to give separate reasons for the arbitrator's recusal.

On receipt of a challenge, the arbitrator can either withdraw from his office or decide on the challenge.

The other party can agree to the challenge in which case the arbitrator cannot proceed with the arbitration proceedings.

The tribunal or arbitrator cannot ignore the challenge and proceed with the arbitral proceedings as if its or his appointment has not been challenged.

If the challenge is not successful, the challenging party must, within thirty days of receiving the arbitrator's determination on the challenge, request the High Court to decide the challenge.

In this case, the applicant sent a statement of his challenge to both the arbitrator and the other party within the stipulated period. The other party did not agree, and the arbitrator did not respond.

Article 13(3) of the Arbitration Act does not provide for an application to this court until after the arbitrator has given the challenging party notice of his decision rejecting the request to recuse himself.

This therefore means the applicant's application does not comply with the provisions of Article 13(3) of the Arbitration Act [Chapter 7:15].

The Arbitrator has already made an award which the applicant wants to be declared null and void because of the alleged impartiality.

Article 13(2) and (3) of the Arbitration Act permits the arbitrator to continue with the proceedings in spite of the challenge which he will have rejected and the challenging party's request that the High Court determines the challenge.

In this case, he proceeded without first rejecting the applicant's challenge.

This was an irregularity on his part as Article 13(3) of the Arbitration Act allows an arbitrator to continue with the proceedings after notifying the challenger of the rejection of the challenge.

Counsel for the applicant submitted that the award should be set aside on the basis that it does not even deal with the challenge.

I agree with him that the arbitrator was required to deal with the challenge before proceeding with the proceedings before him, but, the issue in this case is whether or not the applicant is properly before this court.

This court can, in terms of Article 13(3) of the Arbitration Act, only decide on a challenge after its rejection by the arbitrator.

In this case, the failure by the arbitrator to reject the challenge before making the award makes the Article 13 procedure inapplicable, as this court can only be requested to intervene when the challenge has been rejected.

I am therefore satisfied that counsel for the second respondent's submission, that the applicant is not properly before this court, is correct.

The applicant is however not without a remedy.

Counsel for the second respondent correctly pointed out that in the circumstances of this case the applicant should have applied for the setting aside of the award in terms of Article 34(2)(b)(ii) of the Arbitration Act.

The applicant could ordinarily have taken the arbitrator's failure to decide on the challenge on review, but, Article 5 of the Arbitration Act [Chapter 7:15] provides that “no court shall intervene except where so provided in this Model Law.”

This means this court's intervention in terms of Article 13 of the Arbitration Act must be strictly in compliance with the provisions of that Article.

The Arbitration Act does not provide for review, and, Article 34(1) of the Arbitration Act provides that an application to set aside is the only available remedy.

Article 34(1) of the Arbitration Act [Chapter 7:15] provides as follows:

“Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paras (2) and (3) of this article.”

This means, in the circumstances of this case, an application in terms of Article 34(1) of the Arbitration Act is the only procedure through which the applicant can seek a remedy from this court.

Article 34(2)(b)(ii) of the Arbitration Act provides for the setting aside of the award on the ground that it is contrary to the public policy of Zimbabwe. Article 34(5) defines the circumstances under which an award can be said to be contrary to the public policy of Zimbabwe. It provides as follows;

“For the avoidance of doubt, and without limiting the generality of para (2)(b)(ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if -

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

The applicant's grounds for applying for the recusal of the first respondent, and the setting aside of his award, is that he heard submissions from the second respondent outside the arbitral proceedings.

That, if proved, would be contrary to the rules of natural justice and entitle the applicant to the setting aside of the award in terms of Article 34 of the Arbitration Act.

I am therefore satisfied that the applicant should, in the circumstances of this case, have applied for the setting aside of the award in terms of Article 34(2)(b)(ii) of the Arbitration Act. Its application, in terms of Article 13 of the Arbitration Act [Chapter 7:15] must therefore be dismissed.

In the result, the applicant's application is dismissed with costs.

prev 1 2 3 4 5 6 next

Back Main menu

Law Portal Zimbabwe

Final Orders re: Approach iro Functions, Powers, Obligations, Judicial Misdirections and Effect of Court Orders

Appealed HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE Ruled By: MAKONI J

View Appeal SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED Ruled By: MAFUSIRE J

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH Ruled By: MUREMBA J

HHH177-12 : MUNYARADZI GWISAI and FIVE OTHERS vs THE STATE Ruled By: MATHONSI J

HH222-15 : ELIOT ROGERS vs PUWAYI CHIUTSI Ruled By: MAFUSIRE J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD Ruled By: MANGOTA J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD Ruled By: MANGOTA J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD Ruled By: MANGOTA J

SC85-14 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED and MAHOMED IQBAL MAHMED and REZANA EBRAHIM and JOHN MOTSI vs SECURITIES COMMISSION OF ZIMBABWE Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC03-20 : ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED vs N.R. BARBER (PRIVATE) LIMITED and THE SHERIFF FOR ZIMBABWE Ruled By: MALABA CJ, MAVANGIRA JA and MATHONSI JA

Appealed SC04-20 : NICKOLAS VAN HOOGSTRATEN vs TAPIWA NELOMWE Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati) Ruled By: PATEL JA, BHUNU JA and BERE JA

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MOYO J

Appealed SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC39-20 : ANJIN INVESTMENTS PL vs MINISTER OF MINES AND MINING DEVELOPMENT and MINISTER OF HOME AFFAIRS and THE COMMISSIONER – GENERAL OF THE ZIMBABWE REPUBLIC POLICE Ruled By: BERE JA

SC40-20 : STUTTAFORDS REMOVALS (PRIVATE) LIMITED vs GODFREY NYAMAZUNZU Ruled By: MAKARAU JA, GOWORA JA and BERE JA

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

Appealed SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH Ruled By: GARWE JA, BHUNU JA and MAKONI JA

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT Ruled By: CHAREWA J

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

Appealed SC58-20 : YUSUF GAIBIE and MILLY GAIBIE N.O. vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED Ruled By: MAKARAU JA

SSC67-20 : PROSECUTOR GENERAL OF ZIMBABWE vs INTRATEK ZIMBABWE PL and WICKNELL CHIVAYO and L NCUBE Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

Appealed SC188-20 : GERALD CHIGWADA vs PENELOPE CHIGWADA and SHEPHERD KUSADA N.O. and MASTER OF THE HIGH COURT Ruled By: MALABA CJ, GARWE JA, MAKARAU JA, GOWORA JA and BERE JA

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED Ruled By: GARWE JA, GOWORA JA and BERE JA

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

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

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

HH495-16 : TETRAD HOLDINGS LTD vs MASTER OF THE HIGH COURT, HARARE and THE FORMER PROVISIONAL JUDICIAL MANAGER OF TETRAD INVESTMENTS BANK LTD – W. MILITALA and DEPOSIT PROTECTION CORPORATION Ruled By: MANGOTA J

HHH15-20 : MARY MUBAIWA vs THE STATE Ruled By: KWENDA J

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

HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE Ruled By: PATEL J

SC35-12 : CANESIUS CHIPANGURA vs ENVIRONMENTAL MANAGEMENT AGENCY Ruled By: OMERJEE AJA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

CC03-20 : LOVERAGE MAKOTO vs T.K. MAHWE N.O. and THE PROSECUTOR GENERAL Ruled By: MALABA CJ

CC03-15 : BERNARD MANYARA vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS Ruled By: CHIDYAUSIKU CJ

SC21-20 : ZB BANK LIMITED vs TIRIVANHU MARIMO Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

Appealed SC87-19 : PRECIOUS CHIPUNZA vs MOSLEY MASHINGAIDZE Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal SC66-17 : DORICA MUZONGONDI vs CALISTO MUZONGONDI Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O. Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian) Ruled By: CHITAPI J

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN Ruled By: DUBE J

HH562-14 : WORLD EDUCATION vs PHANUEL KAPFUDZARUWA Ruled By: TSANGA J

HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT Ruled By: CHIGUMBA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND Ruled By: TSANGA J

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA Ruled By: UCHENA J

Categories

Your Donation.

Law Portal
Zimbabwe

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

View Appeal
SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HH208-15 : GOOD LIVING REAL ESTATE PL vs ADAM AND COMPANY PL and SGI PROPERTIES PL and HONOURABLE JUSTICE SMITH
Ruled By: MUREMBA J

HHH177-12 : MUNYARADZI GWISAI and FIVE OTHERS vs THE STATE
Ruled By: MATHONSI J

HH222-15 : ELIOT ROGERS vs PUWAYI CHIUTSI
Ruled By: MAFUSIRE J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

SC85-14 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED and MAHOMED IQBAL MAHMED and REZANA EBRAHIM and JOHN MOTSI vs SECURITIES COMMISSION OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC03-20 : ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED vs N.R. BARBER (PRIVATE) LIMITED and THE SHERIFF FOR ZIMBABWE
Ruled By: MALABA CJ, MAVANGIRA JA and MATHONSI JA

Appealed
SC04-20 : NICKOLAS VAN HOOGSTRATEN vs TAPIWA NELOMWE
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

SC10-20 : ZIMBABWE SCHOOL EXAMINATIONS COUNCIL vs VICTOR MUKOMEKA (on behalf of a minor Charmaine Mukomeka) and CHINGASIYENI GOVHATI (on behalf of a minor Anesu Govhati)
Ruled By: PATEL JA, BHUNU JA and BERE JA

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

Appealed
SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC39-20 : ANJIN INVESTMENTS PL vs MINISTER OF MINES AND MINING DEVELOPMENT and MINISTER OF HOME AFFAIRS and THE COMMISSIONER – GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: BERE JA

SC40-20 : STUTTAFORDS REMOVALS (PRIVATE) LIMITED vs GODFREY NYAMAZUNZU
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

SC48-20 : EMMA KUNDISHORA vs ZIMBABWE RED CROSS SOCIETY
Ruled By: HLATSHAWO JA, MAKONI JA and BERE JA

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

HH384-17 : NEWTON DONGO vs BABNIK INVESTMENTS (PVT) LTD and MESSENGER OF COURT
Ruled By: CHAREWA J

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

Appealed
SC58-20 : YUSUF GAIBIE and MILLY GAIBIE N.O. vs ALEXANDER CASTANHEIRA and RACHEL CASTANHEIRA
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

SSC67-20 : PROSECUTOR GENERAL OF ZIMBABWE vs INTRATEK ZIMBABWE PL and WICKNELL CHIVAYO and L NCUBE
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAVANGIRA JA

Appealed
SC188-20 : GERALD CHIGWADA vs PENELOPE CHIGWADA and SHEPHERD KUSADA N.O. and MASTER OF THE HIGH COURT
Ruled By: MALABA CJ, GARWE JA, MAKARAU JA, GOWORA JA and BERE JA

SC84-20 : TIZAI CHISWANDA (in his capacity as father and guardian of CHIDOCHASHE CHISWANDA) vs OK ZIMBABWE LIMITED
Ruled By: GARWE JA, GOWORA JA and BERE JA

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

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

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD
Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

HH495-16 : TETRAD HOLDINGS LTD vs MASTER OF THE HIGH COURT, HARARE and THE FORMER PROVISIONAL JUDICIAL MANAGER OF TETRAD INVESTMENTS BANK LTD – W. MILITALA and DEPOSIT PROTECTION CORPORATION
Ruled By: MANGOTA J

HHH15-20 : MARY MUBAIWA vs THE STATE
Ruled By: KWENDA J

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

HH39-11 : BLUMO TRADING (PVT) LTD vs NELMAH MILLING COMPANY (PVT) LTD and NELSON MAHUPETE
Ruled By: PATEL J

SC35-12 : CANESIUS CHIPANGURA vs ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: OMERJEE AJA

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

CC03-20 : LOVERAGE MAKOTO vs T.K. MAHWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MALABA CJ

CC03-15 : BERNARD MANYARA vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, PATEL JA and GUVAVA JA

SC01-10 : ZIMBABWE MINING DEVELOPMENT CORPORATION and MINERALS MARKETING CORPORATION OF ZIMBABWE vs AFRICAN CONSOLIDATED RESOURCES PLC and OTHERS
Ruled By: CHIDYAUSIKU CJ

SC21-20 : ZB BANK LIMITED vs TIRIVANHU MARIMO
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

Appealed
SC87-19 : PRECIOUS CHIPUNZA vs MOSLEY MASHINGAIDZE
Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal
SC66-17 : DORICA MUZONGONDI vs CALISTO MUZONGONDI
Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

HH562-14 : WORLD EDUCATION vs PHANUEL KAPFUDZARUWA
Ruled By: TSANGA J

HH600-14 : DELTA BEVERAGES (PVT) LTD vs FREEDOM CHIMURIWO and CLERK OF THE MAGISTRATES COURT FOR THE PROVINCE OF MASHONALAND IN HARARE N.O. and MESSENGER OF COURT
Ruled By: CHIGUMBA J

HH813-15 : STANLEY MACHOTE vs ZIMBABWE MANPOWER DEVELOPMENT FUND
Ruled By: TSANGA J

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J