This is an appeal against the whole judgment of the Labour Court (the court a quo) which allowed two appeals filed in that court by the first and second respondents in terms of section 98(10) of the Labour Act [Chapter 28:01].

It set aside the two awards made in favour of the appellant, and, in their place, substituted them with an order dismissing the appellant's claims before the arbitrator.

The first respondent is a medical aid society registered in terms of the Medical Services Act [Chapter 15:13]. The second respondent is the investment vehicle of the first respondent. Both respondents are managed by two separate boards of directors.

It is common cause, that, the appellant was the Chief Executive Officer of the first respondent in terms of a contract of employment. He also drew a salary from the second respondent in unclear circumstances.

He attained the retirement age, of 60 years, in December 2013 in terms of the Retirement Policy of the Society 4/2003 of the first respondent.

On 14 March 2013, both boards of directors of the respondents unanimously extended the appellant's tenure of office by a further ten years.

The new contract commenced from 1 January 2014 and would end on 31 December 2024.

At the beginning of 2014, the appellant commenced the extended employment contract. The parties also reached an agreement that the appellant's monthly salary would be US$60,000 per month effective January 2014 along with other benefits. It was later reduced to US$43,000.

Following allegations that the appellant was taking an exorbitant salary of US$92,000 every month, before allowances, without the knowledge of the full Board, other than two of its members, the boards withdrew their earlier decision of extending the appellant's contract of employment.

They relied on the provisions of the Retirement Policy to rescind the extension of the employment contract.

The appellant was thus requested to take a pre-retirement paid leave.

In response, the appellant, through a letter dated 20 February 2014, addressed to the first respondent, claimed that he had a subsisting contract of employment for a period of ten years which commenced on 1 January 2014.

He insisted that the contract had not been terminated in any way, and, consequently, he would abide by it and continue to execute his duties in terms of the same until its expiry.

No such letter was written to the second respondent.

Consequently, a dispute arose between the appellant and the first respondent.

On 17 February 2015, the dispute between the appellant and the first respondent was referred to compulsory arbitration. The terms of reference were as follows:

“(a) To determine whether or not the claimant's (the appellant in this matter) contract of employment was lawfully terminated;

(b) The appropriate remedy.”

On 14 March 2015, a dispute in the matter between the appellant and the second respondent was referred to compulsory arbitration. It is not clear from the record how the dispute had arisen. The terms of reference were as follows:

“(a) Whether or not the appellant's contract of employment was enforceable against the second respondent;

(b) If so, whether or not the claimant's contract of employment was lawfully terminated and the remedy thereof.”

On 14 April 2015, the arbitrator issued awards in respect of both matters.

In the matter between the appellant and the first respondent, the arbitral award was to the effect that the contract of employment between the appellant and the first respondent still subsisted and thus remained in force. He further ordered that the first respondent pay the appellant all salaries and benefits from the date these were last paid at the salary scale of US$92,000 per month.

In the matter between the appellant and the second respondent, the arbitral award was to the effect, that, the appellant's contract of employment was enforceable against the second respondent and that the contract was never terminated thereby rendering the appellant entitled to payment of salaries and benefits as claimed.

Aggrieved, the first and second respondents independently appealed against the two arbitral awards to the Labour Court, under LC/H/348/15 and LC/H/349/15 respectively. The two appeals were consolidated for the sake of convenience.

The first respondent, in its heads of argument before the court a quo, in which it was the first appellant, argued that the arbitrator made a determination that ran foul of the issue presented before him.

It submitted, that, the issue before the arbitrator was whether or not the employment contract between the first respondent and the appellant was lawfully terminated. Thus, it insisted that the arbitrator fell into error when he determined that there was a valid and enforceable contract between the parties whereas it was common cause between the parties that no contract still existed.

The first respondent contended, that, the arbitrator was bound by the terms of reference and had no authority to re-format the issues as presented to him by the parties.

It was also the first respondent's case that no evidence was tendered to justify the amount of US$92,000 per month which was awarded to the appellant by the arbitrator.

The second respondent largely associated itself with the arguments made by the first respondent regarding the arbitrator straying from the terms of reference.

In addition to that, the second respondent submitted that the arbitrator missed the import of the issues referred to him and came to the conclusion that there existed a contract of employment between the appellant and the second respondent.

The second respondent further submitted, that, it was simply the investment vehicle of the first respondent and used to contribute to the appellant's salary at the request or on the instructions of the appellant. Thus, it was the second respondent's submission that these remittances did not make it the appellant's employer.

Per Contra, the appellant submitted that the arbitrator correctly determined the issues before him.

He submitted, that, the issues referred to the arbitrator were whether or not the appellant's contract of employment was lawfully terminated and to determine the appropriate remedy. He further submitted, that, determining whether or not the contract was valid was the first stage of inquiry which would then lead to the conclusion of whether or not the same was lawfully terminated.

Regarding the second respondent, he submitted that the evidence placed before the arbitrator, of termination of the contract in the form of a letter, was not sufficient enough to prove that the same was terminated in terms of the law.

The appellant insisted that a contract of employment could only be terminated by mutual consent, death, dismissal through a formal disciplinary hearing, or resignation.

Thus, he proffered that a valid contract still existed as the second respondent failed to prove termination.

The appellant further submitted, that, the second respondent was his employer, by extension, as management of the same reported directly to him. It followed that his contract of employment with the second respondent was valid and enforceable.

The court a quo examined the terms of reference as placed before the arbitrator by the parties.

With respect to the first respondent, the court reasoned that it was clear in the parties minds that the contract of employment had been terminated and what required determination was whether or not such termination was lawful.

The court further reasoned, that, the arbitrator fell outside the terms of reference by making a determination that the contract of employment still subsisted and remained in force.

The court relied on the case of C Kambuzuma and Ors v The Athol Evans Hospital Home Complex SC118-04 in its reasoning that the arbitrator ought to have confined himself to the terms of reference and not go further than that.

In addition, the court a quo held that the arbitrator, by making a finding that there was still a valid contract in existence between the parties, effectively made a new employment contract for the parties, contrary to the Supreme Court decision in the matter between Kundai Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397.

With respect to the second respondent, the court a quo made a finding, that, as was apparent from the record, the second respondent did not extend the appellants tenure.

It effectively concluded, that, there was nothing to enforce between the appellant and the second respondent as there was never an employment contract between them. Consequently, the court found that there was nothing to terminate and therefore the appellant was not entitled to anything from the second respondent.

In the result, it allowed the appeals and set aside the arbitral awards.

This prompted the appellant to note the present appeal on the following grounds:

“1. The court a quo misdirected itself and erred at law in finding that the decision of the arbitrator, that there was still a subsisting contract of employment between the appellant and the first respondent, was outside the arbitrator's terms of reference.

2. The court a quo erred by making a determination that there was no binding contract of employment between the appellant and the second respondent.”

In addressing the first ground of appeal, counsel for the appellant made the following submissions:

The issue before the court was a question of interpretation of the terms of reference. The terms of reference were quite straightforward and had inherent in them two questions, namely:

1. Has the contract of employment been terminated?

2. If so, was the termination lawful?

A term of reference, in terms of the Labour Act [Chapter 28:01] (the Act) is statutorily regulated and must be interpreted in terms of the scheme under Part XII of the Labour Act.

What has to be resolved is the dispute that was referred to conciliation.

The court a quo fell into error by treating this as voluntary arbitration, in which the terms of reference were as a result of the meeting of the minds of the parties. To the contrary, this was a compulsory arbitration in terms of the Labour Act where the labour officer formulates the terms of reference after taking into account the nature of the dispute between the parties.

A labour officer referring a dispute to compulsory arbitration cannot create a new dispute for the parties as was held in Tafadzwa Sakarombe & Anor v Montana Carswell Meats SC44-20.

As regards the appellant's second ground of appeal, counsel for the appellant made the following submissions:

A resolution by one party to terminate its contractual obligations cannot bind the innocent party to the contract.

It was a serious misdirection by the court a quo, that, the appellant was bound by the decisions of the respondents in respect of the contract between the parties.

Further, a contract need not be in writing. There is no doubt that an oral contract of employment existed between the appellant and the second respondent.

The court a quo relied on the absence of a written contract to determine that there was no contract between the appellant and the second respondent. From the circumstances, including the payment of salary and the duties of the appellant vis a vis the second respondent, there is no doubt that a contract existed between the parties.

Counsel for the respondents submitted:

In respect of ground one, that, the issue before the arbitrator was to determine whether or not the contract of employment was lawfully terminated. The arbitrator went on to determine that there was a valid contract of employment between the parties, which was not an issue placed before him.

The conduct of the arbitrator was tantamount to making a contract for the parties, which he or any court or tribunal cannot do as a matter of law.

As regards the purported contract of employment between the appellant and the second respondent, that the appellant could not point to a single document that suggested that there was a contract between him and the second respondent.

The only contract produced was the one between the appellant and the first respondent.

The argument by the appellant, that there is an oral contract, is startling. He failed to present evidence before the court a quo, and this court, to prove that there was an oral contract. Thus, there was nothing to enforce between the appellant and the second respondent.

1. Whether or not the court a quo erred in finding, that, the arbitrator acted outside his terms of reference in concluding that a contract of employment between the appellant and the first respondent still subsisted.

2. Whether or not the court a quo erred in finding, that, the appellant did not have a binding contract with the second respondent.

The matter before this Court pertains to compulsory arbitration which derives from statute. It only arises after the failure of conciliation and the issuing of a Certificate of No Settlement (L MADHUKU, Labour Law in Zimbabwe...,.). This was provided for in terms of section 93(5) of the Labour Act [Chapter 28.01] before the amendment to the section.

The author, L MADHUKU, Labour Law in Zimbabwe…, puts it this way:

“This new scheme focuses on the nature of the dispute in determining whether or not to refer it to compulsory arbitration. Disputes of interest depend on whether or not an essential service is involved;...,. A dispute of interest, outside the essential service, cannot be referred to compulsory arbitration in the absence of agreement by parties.”

Crucial to mention are provisions of section 98 of the Labour Act. The relevant parts read as follows:

“93 Effect of reference to compulsory arbitration under Parts XI and XII

(1) In this section 'reference to compulsory arbitration' in relation to a dispute, means a reference made in terms of paragraph (d) of subsection (1) of section eighty-nine or section ninety-three.

(2) Subject to this section, the Arbitration Act [Chapter 7:15] shall apply to a dispute referred to compulsory arbitration.

(3) Before referring a dispute to compulsory arbitration, the Labour Court or the labour officer, as the case may be, shall afford the parties a reasonable opportunity of making representations on the matter.

(4) In ordering a dispute to be referred to compulsory arbitration, the Labour Court or labour officer, as the case may be, shall determine the arbitrator's terms of reference after consultation with the parties to the dispute.”

In Ballantyne Butchery (Pvt) Ltd t/a Danmeats v Edmore Chisvinga & Ors SC 2015 (1) 335, SC06-15..., this Court held that:

“Where a dispute is referred to compulsory arbitration by a labour officer, section 98(4) of the Labour Act [Chapter 28:01] enjoins the officer to determine the arbitrator's terms of reference, after consultation with the parties to the dispute.”

The same point was made in Metallon Gold Zimbabwe (Pvt) Ltd & Anor v Collen Gura 2015 (1) 509, HH263-16..., where it was held that:

“However, the procedure for submission is that the matter commences with conciliation before a labour officer in terms of section 93 of the Labour Act. When conciliation fails, the labour officer then refers the dispute to compulsory arbitration in terms of section 98. In doing so, the labour officer consults the parties for the arbitrator's terms of reference to be drawn. The arbitrator is confined to the agreed terms of reference during the arbitral process;..., if the arbitrator goes beyond the terms of reference that may be a ground for objection to the registration of the arbitral award.”

It thus follows, that, in settling the terms of reference for compulsory arbitration, the parties have a role to play. They are consulted by the Labour Court or the labour officer, as the case may be.

It is an established principle that an arbitrator is not allowed to venture outside the terms of reference when making a determination.

The law on arbitration, and terms of references, was succinctly captured at pp10 to 11 in the case of Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Chiedza Mugavha SC62-19 as follows:

“As regards the jurisdiction and powers of arbitral tribunals, it must be emphasised that the arbitration process, generally, is a voluntary and consensual process, both at common law and under the Arbitration Act [Chapter 7:15].

This is made clear by section 4(1) of the Act which stipulates that 'any dispute which the parties have agreed to submit to arbitration may be determined by arbitration'. Moreover, by virtue of section 4(3) of the Act 'the fact that an enactment confers jurisdiction on a court or other tribunal to determine any matter shall not, on that ground alone, be construed as preventing the matter from being determined by arbitration'.

According to BRAND: Labour Dispute Resolution (2nd ed. 2008) at p.163:

'In private arbitration, the arbitration agreement plays a pivotal role. It embodies a description of the dispute to be referred to arbitration, it names the arbitrator, it specifies the terms of reference and arbitrator's powers, it sets out the process before the actual hearing, and, finally, it describes the process to be followed during the hearing.'

In similar vein, as was stated in Total Support Management (Pty) Ltd & Anor v Diversified Health Systems (SA) (Pty) Ltd & Anor 2002 (4) SA 661 (SCA) at 673H-I:

'The hallmark of arbitration is that it is an adjudication, flowing from the consent of the parties to the arbitration agreement, who define the powers of adjudication, and are equally free to modify or withdraw that power at any time by way of further agreement.

It is thus axiomatic that the jurisdiction and powers of an arbitrator are determined by agreement between the disputant parties. The terms of reference define the dispute to be resolved and the manner in which it is to be resolved. The arbitrator's mandate flows from and is limited by the terms of reference.

To put it differently, the arbitrator derives his jurisdiction and powers from the arbitration agreement between the parties.

The position is no different under section 93(1) of the Labour Act.

The jurisdiction and powers of an arbitrator are established and assumed by dint of the agreement of all the parties involved and their voluntary submission to the arbitral process and its jurisdiction. The arbitrator is not endowed with jurisdiction by the labour officer or conciliator. It is the disputant parties themselves who vest the arbitrator with jurisdiction, notwithstanding any preceding or parallel lis or contestatio between them. In other words, it is the voluntary and consensual nature of arbitration that determines the scope of the arbitrator's jurisdiction and powers where any matter is referred to arbitration in terms of section 93(1) of the Labour Act.'”...,.

The above-cited case establishes that the principles applicable to private or voluntary arbitration are the same as those applicable to compulsory arbitration in terms of the Labour Act.

However it must noted, that, there is a slight difference in that in respect of private arbitration there is complete party autonomy with no room for intervention by the arbitrator.

Section 93(2) of the Labour Act, however, gives the Labour Court, or the Labour Officer, the right to intervene and determine the terms of reference - in consultation with the parties.

The arbitrator ought not to mis-characterise the disputes between the parties.

In Alliance Insurance v Imperial Plastics (Pvt) Ltd SC30-17..., the learned MALABA DCJ..., cited with approval the case of Inter Agric (Private) Limited v Mudavanhu & Ors SC09-15 wherein the respondent, alleging unfair dismissal, filed a grievance with a labour officer, and, failing conciliation between the parties, the labour officer referred the matter to compulsory arbitration. MALABA DCJ opined:

“Article 34(2)(a)(iii) of the Arbitration Act states that an arbitral award can be set aside if it contains submissions on matters beyond submissions for arbitration. In Inter-Agric (Pvt) Ltd v Mudavanhu & Ors SC09-15, at p3 of the cyclostyled judgment, GOWORA JA said:

'In addition, at law, the arbitrator was only competent to determine the dispute between such parties as had been referred to him by the labour officer. Thus, he was confined to his terms of reference. He had no mandate beyond that which had been referred to him.'”...,.

See also Augur Investments OU v Fairclot Investments (Private) Limited t/a T & C Construction & Anor SC08-19.

What emerges from the above authorities is that the arbitrator, in determining the dispute referred to him, is confined to the terms of reference settled for him or her by the Labour Court or the labour officer in consultation with the parties.

He is not allowed to stray outside those terms of reference. For emphasis, he has no mandate beyond that which has been referred to him or her.

In essence, the principal issue to be addressed is whether or not the arbitrator exceeded his terms of reference and thereby arrived at the wrong conclusions. Flowing from this is the correctness or otherwise of the decision of the Labour Court in not upholding the arbitrator's award.

The appellant submits, that, the court a quo took a simplistic and fundamentally wrong approach in interpreting the terms of reference. He avers that it is implicit in the terms of reference that what was before the arbitrator were two issues and these are:

1. Has the contract of employment been terminated?

2. If so, is the termination lawful?

Before considering the attack on the arbitrator, that he misconceived the nature of the inquiry and his duties, or exceeded his jurisdiction by venturing outside the terms of reference, it is necessary to determine the nature of the inquiry which was before him.

As mentioned at the outset, the arbitrator had to determine whether or not the contract between the appellant and the first respondent had been lawfully terminated and the remedy thereof.

In my view, what was implicit in the terms of reference is that:

(a) There had been a contract of employment between the appellant and the first respondent.

(b) That the contract was terminated by the employer; and

(c) That the appellant's issue was whether or not the same was lawfully terminated.

This is what the arbitrator had to relate to.

The court a quo was therefore correct in finding, that, the arbitrator had mis-interpreted the terms of reference.

Indeed, the arbitrator erred given the specific terms of reference in proceeding to make the finding, that:

“1. That, the contract of employment between the respondent and the claimant still subsists and remains in force.”

The court a quo correctly opined, that:

“What seems to be coming out of the arbitral award is that, firstly, the arbitrator was not sure of the position of the respondent's employment status. Secondly, the arbitrator was not sure of the propriety of the respondent's salary apart from commenting that the employee was entitled to continue working while the Board made its deliberations. His position was that the contract was never terminated….,.

When parties presented the above as a term of reference, it was clear on their minds that the respondent's contract of employment with the first appellant had been terminated. What required determination was whether or not such termination was lawful.”

Counsel for the appellant had this to say about the above finding, in para 9 of the appellant's Heads of Argument:

“The above misdirection was the source of the court a quo's error. Parties never presented any terms of reference. This was compulsory arbitration. It was the labour officer who formulated the terms of reference, after taking into account the nature of the dispute between the parties.”

He further contended, that, instead of taking into account the nature of the dispute after conciliation, the court a quo applied the wrong principle, namely, taking into account a non-existent 'intention of the parties'.

The dispute was referred to the labour officer for conciliation as follows:

“(i) Whether or not our client's contract of employment was terminated, and, if so, when?”

He concluded by submitting, that, taking into account the nature of the dispute, the arbitrator was correct to include a determination of whether or not the employment had been terminated.

What counsel for the appellant over-looked is the role of the parties to the dispute, in the settlement of terms of reference to be referred to an arbitrator.

Section 98(4) of the Labour Act makes provision for the labour officer 'to determine the arbitrator's terms of reference after consultation with the parties to the dispute.'

Whilst it is the function of the labour officer to determine the terms of reference, he or she does not do it by himself or herself. He has to do so in consultation with the parties. The parties input in the final product: see Ballantyne Butchery (Pvt) Ltd t/a Danmeats v Edmore Chisvinga & Ors SC 2015 (1) 335, SC06-15.

There is no indication on the record that the appellant objected to the terms of reference as presented to the arbitrator at the beginning of the arbitration process.

The arbitrator, in his award, captures the terms of reference as referred to him by the labour officer. It is during the analysis stage that he changes course and starts to deal with whether the appellant's contract had been terminated.

The arbitrator clearly fell outside the terms of reference, contrary to the settled position of the law which states that arbitrators should confine themselves to the presented terms of reference: see Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Chiedza Mugavha SC62-19.

He could not go behind what was before him to ascertain what it is that was referred to the labour officer, as was suggested by counsel for the appellant.

The arbitrator was not asked to determine whether or not the contract between the parties still subsisted, but, was required to determine whether or not the contract between the parties was lawfully terminated.

In light of the foregoing, the court a quo's finding cannot be faulted.

The court a quo further found that equally disturbing is that the arbitrator's conduct was tantamount to making a contract for the parties which neither he nor any court or tribunal can do as a matter of law. It remarked as follows:

“Making contracts for parties is not the duty of an adjudicating authority. An adjudicating authority deals with disputes arising from contracts, or, indeed, interprets terms of contract where parties need interpretation of the terms thereof in the context of disputes between them. They do not make contracts for parties. In the Kundai Magodora case (above) at 403C-D the Supreme Court stated as follows:

'In principle, it is not open to courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted even if they are shown to be onerous or oppressive.'

As is appositely cautioned by CHRISTIE: The Law of Contract in South Africa (5ed.) at p366:

'The fundamental rule that the court may not make a contract for the parties is a salutary one, the principle of which has probably never been seriously questioned. It is unthinkable that the courts should not only tell the parties what they ought to have done but then make them do it by enforcing the court's idea of what the contract ought to have been.'”

Indeed, the arbitrator misdirected himself by concluding, that, the contract was never terminated. It was not within his remit to exceed his mandate. The arbitrator misconceived the whole nature of the inquiry or his duty in connection therewith.

Thus, the first ground of appeal has no merit and must fail.

This is an appeal against part of the judgment of the High Court sitting at Bulawayo, dated 2 May 2019.

The court a quo granted the following order:

1. That, the purported Deed of Sale concluded by the parties on 26 January 2010, in respect of a portion of Umguza 100 Acre Lot 5A be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That, the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That, the plaintiff be and is hereby ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That, the prescribed rate of interest be levied on the amount under (3), supra, with effect from 24 June 2015 to the date of full payment.

5. That, the plaintiff pays costs of suit.

The part under appeal relates to paragraphs 3, 4 and 5 of the order. The appellant is also aggrieved by the court a quo's failure to pronounce itself on the claim for eviction in that order.

The facts that are relevant to this appeal are common cause. The appellant sadly passed away on 24 August 2019, before the appeal was heard. He was, by order of this Court, substituted, on 22 July 2020, by his duly appointed executor dative, who also happens to be his son.

The appellant is the registered title holder of Umguza 100 Acre Lot 5A in the District of Bulawayo measuring 67,2123 hectares held under Deed of Transfer No.74/91 (the immovable property). It is situated in the outskirts of Bulawayo and falls under the administrative jurisdiction of the Umguza Rural District Council.

On 17 August 2000, the appellant sought, but failed, to obtain a sub-division permit for the property into units of less than five (5) hectares. The responsible authority adjudged any plots that were less than five (5) hectares not to be viable for agriculture.

The respondent resided on a fully developed six (6) acre plot in the vicinity of the appellant's immovable property.

On 12 January 2010, in anticipation of an agreement of sale to be consummated with the appellant, the respondent sold his plot for the sum of R225,000.

On 26 January 2010, the parties concluded a written agreement for the sale of 10 acres (4,047ha) of the immovable property (the plot) for the sum of US$20,000.

A deposit of US$10,000 was to be paid before the respondent could take occupation.

The balance was payable at the rate of US$2,000 per month from 1 May 2010.

The other terms and conditions of the agreement were that the respondent would “pay the cost of all transactions connected with the transfer of the property, all charges of capital gains, and draw electric power to the homestead of the seller.”

The respondent duly paid the deposit and took occupation on 1 April 2010.

His building plans were approved by the Umguza Rural District Council on 3 April 2010. He constructed a three bedroom cottage and a four bedroom main house in 2010. In 2011, he installed electricity infrastructure for his two dwellings and the appellant's homestead but only drew electricity to his dwellings. He flushed a borehole previously sunk by the appellant, constructed two (2) septic tanks and two (2) blair toilets. He also put up a perimeter fence around “his” plot.

It was common cause that he expended the total sum of US$34,158=75 and R2,220 on these developments.

The relationship between the appellant and the respondent deteriorated soon after the respondent took occupation of the property.

The appellant refused to accept the instalments tendered by the respondent and demanded that the respondent keep his money while he kept his land.

The respondent tendered the balance of the purchase price, and, when it was rejected, he issued summons for specific performance in HC491/11.

Thereafter, with the help of their legal practitioners, a compromise was reached between the parties but was not honoured.

In the result, the appellant then sued the respondent for the payment of the balance of the purchase price, in the sum of US$10,000, in HC2828/12.

During this tumultuous period, unbeknown to the respondent, the appellant sought to regularize the sale of the plot by applying for a subdivision permit to the department of Physical Planning Offices in Bulawayo on 10 January 2011.

It was only in or about October 2012 that the respondent became aware that the appellant did not have a sub-division permit entitling him to subdivide the immovable property and sell the plot.

On 27 February 2013, acting on the appellant's request, the respondent paid US$550 to the appellant's former legal practitioners for the processing of a belated sub-division permit.

Notwithstanding that the immovable property measured 67,2123ha, a permit for the subdivision of the immovable property into two Stands measuring 4,047 and 37,6961 hectares was duly issued on 29 April 2013.

The permit, however, turned out to be a fake document.

Acting on the erroneous belief that the permit was genuine, on 6 June 2013 and 30 January 2014, the respondent paid US$5,000 and US$4,000, respectively, towards the purchase price.

The respondent, therefore, paid to the appellant a total sum of US$19,000 for the purchase of the plot.

He, in addition, expended US$34,158=75 and R2,220 in the development of the immovable property.

By the time a pre-trial conference was held a quo, both parties had withdrawn their earlier actions against each other.

At the pre-trial conference, the parties agreed, inter alia, that their agreement of sale was invalid and illegal for breaching section 39(1)(i) and section 40 of the Regional, Town and Country Planning Act. This was because it had been concluded without a subdivision permit.

Consequently, the appellant tendered the purchase price of US$19,000 and sought the eviction of the respondent from the plot.

He also claimed an ascertainable amount for unjust enrichment for the period of the respondent's stay to the date of his eviction.

The quantum for the enrichment claim was based on what the appellant perceived to be the reasonable rentals that the respondent would have paid for the occupation of the property.

He, therefore, claimed US$18,000 for the occupation of the plot from March 2010 to April 2015 and “holding over damages at the rate of US$10 per day…, from 1 May 2015 to the date of vacation” and costs on the higher scale.

The respondent contested the action.

He disputed being unjustly enriched and averred, that, he was a bona fide occupier by virtue of the invalid agreement. He also averred, that, in the absence of a lease agreement, the appellant did not have a valid cause of action for the payment of reasonable rentals and holding over damages.

He, in turn, counter claimed for unjust enrichment for the improvements he had made on the immovable property.

He averred that the appellant was enriched at his expense by these improvements.

He further alleged that the appellant was enriched by the payment of US$19,000 towards the purchase price and US$550 for the procurement of the subdivision permit.

The respondent, therefore, sought the repayment of the denominated amounts; a refund of the expenses incurred in erecting the electricity infrastructure; and the depreciated replacement cost (being the current cost of reproduction or replacement of an asset less deductions for physical deterioration, obsolescence and optimization) of the improvements he made on the plot.

He specially entreated the court to award him “such payments as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.”

He also sought interest at the prescribed rate from the date of summons to the date of payment in full and costs on the higher scale.

In his plea to the counter-claim, the appellant, again, tendered the refund of US$19,000.

He disputed to being unjustly enriched by the developments made by the respondent on the immovable property. He averred, that, the respondent had failed to draw electricity to his homestead and had fraudulently facilitated the issuance of the fake permit. He also alleged that the respondent's dwellings were constructed without his authority and that he was therefore a mala fide occupier. Lastly, he stated that these dwellings would not be useful to him.

The two issues referred to trial a quo where whether or not:

1. The appellant was entitled to a reasonable rental arising from the respondent's occupation of the plot; and

2. The defendant has been unjustly impoverished, and plaintiff unjustly enriched, as a result of the alleged developments made by the defendant upon the plot; and, if so, the quantum thereof.

The court a quo confirmed the invalidity of the agreement of sale on the ground that it was contrary to the mandatory dictates of sections 39(1)(i) and 40 the Regional, Town and Country Planning Act.

The confirmation was in accordance with established authority emanating from this Court in such cases as X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S) and City of Gweru v Kombayi 1991 (1) ZLR 333 (S).

This is an appeal against part of the judgment of the High Court sitting at Bulawayo, dated 2 May 2019.

The court a quo granted the following order:

1. That, the purported Deed of Sale concluded by the parties on 26 January 2010, in respect of a portion of Umguza 100 Acre Lot 5A be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That, the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That, the plaintiff be and is hereby ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That, the prescribed rate of interest be levied on the amount under (3), supra, with effect from 24 June 2015 to the date of full payment.

5. That, the plaintiff pays costs of suit.

The part under appeal relates to paragraphs 3, 4 and 5 of the order. The appellant is also aggrieved by the court a quo's failure to pronounce itself on the claim for eviction in that order.

The facts that are relevant to this appeal are common cause. The appellant sadly passed away on 24 August 2019, before the appeal was heard. He was, by order of this Court, substituted, on 22 July 2020, by his duly appointed executor dative, who also happens to be his son.

The appellant is the registered title holder of Umguza 100 Acre Lot 5A in the District of Bulawayo measuring 67,2123 hectares held under Deed of Transfer No.74/91 (the immovable property). It is situated in the outskirts of Bulawayo and falls under the administrative jurisdiction of the Umguza Rural District Council.

On 17 August 2000, the appellant sought, but failed, to obtain a sub-division permit for the property into units of less than five (5) hectares. The responsible authority adjudged any plots that were less than five (5) hectares not to be viable for agriculture.

The respondent resided on a fully developed six (6) acre plot in the vicinity of the appellant's immovable property.

On 12 January 2010, in anticipation of an agreement of sale to be consummated with the appellant, the respondent sold his plot for the sum of R225,000.

On 26 January 2010, the parties concluded a written agreement for the sale of 10 acres (4,047ha) of the immovable property (the plot) for the sum of US$20,000.

A deposit of US$10,000 was to be paid before the respondent could take occupation.

The balance was payable at the rate of US$2,000 per month from 1 May 2010.

The other terms and conditions of the agreement were that the respondent would “pay the cost of all transactions connected with the transfer of the property, all charges of capital gains, and draw electric power to the homestead of the seller.”

The respondent duly paid the deposit and took occupation on 1 April 2010.

His building plans were approved by the Umguza Rural District Council on 3 April 2010. He constructed a three bedroom cottage and a four bedroom main house in 2010. In 2011, he installed electricity infrastructure for his two dwellings and the appellant's homestead but only drew electricity to his dwellings. He flushed a borehole previously sunk by the appellant, constructed two (2) septic tanks and two (2) blair toilets. He also put up a perimeter fence around “his” plot.

It was common cause that he expended the total sum of US$34,158=75 and R2,220 on these developments.

The relationship between the appellant and the respondent deteriorated soon after the respondent took occupation of the property.

The appellant refused to accept the instalments tendered by the respondent and demanded that the respondent keep his money while he kept his land.

The respondent tendered the balance of the purchase price, and, when it was rejected, he issued summons for specific performance in HC491/11.

Thereafter, with the help of their legal practitioners, a compromise was reached between the parties but was not honoured.

In the result, the appellant then sued the respondent for the payment of the balance of the purchase price, in the sum of US$10,000, in HC2828/12.

During this tumultuous period, unbeknown to the respondent, the appellant sought to regularize the sale of the plot by applying for a subdivision permit to the department of Physical Planning Offices in Bulawayo on 10 January 2011.

It was only in or about October 2012 that the respondent became aware that the appellant did not have a sub-division permit entitling him to subdivide the immovable property and sell the plot.

On 27 February 2013, acting on the appellant's request, the respondent paid US$550 to the appellant's former legal practitioners for the processing of a belated sub-division permit.

Notwithstanding that the immovable property measured 67,2123ha, a permit for the subdivision of the immovable property into two Stands measuring 4,047 and 37,6961 hectares was duly issued on 29 April 2013.

The permit, however, turned out to be a fake document.

Acting on the erroneous belief that the permit was genuine, on 6 June 2013 and 30 January 2014, the respondent paid US$5,000 and US$4,000, respectively, towards the purchase price.

The respondent, therefore, paid to the appellant a total sum of US$19,000 for the purchase of the plot.

He, in addition, expended US$34,158=75 and R2,220 in the development of the immovable property.

By the time a pre-trial conference was held a quo, both parties had withdrawn their earlier actions against each other.

At the pre-trial conference, the parties agreed, inter alia, that their agreement of sale was invalid and illegal for breaching section 39(1)(i) and section 40 of the Regional, Town and Country Planning Act. This was because it had been concluded without a subdivision permit.

Consequently, the appellant tendered the purchase price of US$19,000 and sought the eviction of the respondent from the plot.

He also claimed an ascertainable amount for unjust enrichment for the period of the respondent's stay to the date of his eviction.

The quantum for the enrichment claim was based on what the appellant perceived to be the reasonable rentals that the respondent would have paid for the occupation of the property.

He, therefore, claimed US$18,000 for the occupation of the plot from March 2010 to April 2015 and “holding over damages at the rate of US$10 per day…, from 1 May 2015 to the date of vacation” and costs on the higher scale.

The respondent contested the action.

He disputed being unjustly enriched and averred, that, he was a bona fide occupier by virtue of the invalid agreement. He also averred, that, in the absence of a lease agreement, the appellant did not have a valid cause of action for the payment of reasonable rentals and holding over damages.

He, in turn, counter claimed for unjust enrichment for the improvements he had made on the immovable property.

He averred that the appellant was enriched at his expense by these improvements.

He further alleged that the appellant was enriched by the payment of US$19,000 towards the purchase price and US$550 for the procurement of the subdivision permit.

The respondent, therefore, sought the repayment of the denominated amounts; a refund of the expenses incurred in erecting the electricity infrastructure; and the depreciated replacement cost (being the current cost of reproduction or replacement of an asset less deductions for physical deterioration, obsolescence and optimization) of the improvements he made on the plot.

He specially entreated the court to award him “such payments as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.”

He also sought interest at the prescribed rate from the date of summons to the date of payment in full and costs on the higher scale.

In his plea to the counter-claim, the appellant, again, tendered the refund of US$19,000.

He disputed to being unjustly enriched by the developments made by the respondent on the immovable property. He averred, that, the respondent had failed to draw electricity to his homestead and had fraudulently facilitated the issuance of the fake permit. He also alleged that the respondent's dwellings were constructed without his authority and that he was therefore a mala fide occupier. Lastly, he stated that these dwellings would not be useful to him.

The two issues referred to trial a quo where whether or not:

1. The appellant was entitled to a reasonable rental arising from the respondent's occupation of the plot; and

2. The defendant has been unjustly impoverished, and plaintiff unjustly enriched, as a result of the alleged developments made by the defendant upon the plot; and, if so, the quantum thereof.

The court a quo confirmed the invalidity of the agreement of sale on the ground that it was contrary to the mandatory dictates of sections 39(1)(i) and 40 the Regional, Town and Country Planning Act.

The confirmation was in accordance with established authority emanating from this Court in such cases as X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S) and City of Gweru v Kombayi 1991 (1) ZLR 333 (S).

It held, on the authority of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, that a lease agreement could not possibly be extrapolated from the invalid agreement of sale; and, resultantly, dismissed the claim for rentals and holding over damages sought by the appellant in the main.

It is clear from a reading of the judgment, that, the court a quo did not relate the request for reasonable rentals and holding over damages to the appellant's own enrichment claim against the respondent.

The appellant pleaded such a cause of action.

He testified during the trial, that, the respondent derived benefit from the farming activities he conducted on the plot. He also asserted that another benefit that accrued to the respondent was in the form of rental savings that he would have been obliged to pay elsewhere but for his stay on the plot.

These assertions were not, and could not, be controverted by the respondent.

However, it appears that counsel for the appellant misconceived the appellant's case and did not pursue the claim to fruition.

The court a quo, on the basis of credibility findings and the probabilities of the case, further found the respondent to have been a bona fide occupier and the appellant a mala fide seller.

Consequently, it relaxed the in pari delicto rule in favour of the respondent.

It, thus, held that the appellant had been unjustly enriched at the expense of the respondent, who was concomitantly impoverished by the transaction.

The court a quo, therefore, upheld the respondent's counter claim.

In computing the measure of the benefit that accrued to the appellant, the court a quo applied the pari delictum rule.

In the exercise of its broad discretion, it relaxed the pari delictum rule in a bid to do justice between the two protagonists.

It had no difficulties in finding the appellant to have been enriched in the sum of US$19,550 constituted by the payments towards the purchase price and the facilitation of the procurement of the sub division permit.

The correctness of this finding is beyond question.

After all, the appellant did not retract his tender of US$19,000, and conceded the payment of US$550 for the stated purpose.

The parties disagreed on whether or not the respondent was entitled to compensation for the improvements that he made on the immovable property.

The appellant submitted a quo that the respondent was not entitled to the value of the improvements:

(i) Firstly, because the respondent had not properly framed them under the enrichment cause of action in his pleadings.

(ii) The second was that the improvements were not, nor would they be, useful to him.

He, in any event, agitated for their urgent removal from his property.

The court a quo held, that, while on the pleadings, the cause of action for the improvements was poorly and inelegantly framed, the respondent had obliquely included them in his enrichment cause.

Further, that the purported defective pleadings had, in any event, been amplified and cured:

(i) Firstly, by the inclusion of the developments in the second issue referred to trial at the pretrial conference; and

(ii) Secondly, by the overwhelming evidence adduced by the respondent at the trial together with the scope and tenor of the questions asked and answers rendered during cross examination.

The court a quo also held, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S)…, that usefulness was to be measured objectively, and not subjectively, on the basis of added value.

It, therefore, found the improvements to be objectively useful to the appellant. It also found that they could not be removed because they were fixed to the immovable property.

The court a quo estimated the added value of the improvements at $125,000 and not US$132,833=33 claimed by the respondent.

It adopted the lowest depreciated replacement value of $90,000 provided in one of the three valuation reports produced in January 2018. The court a quo then added the depreciated replacement value of the plot, estimated in two of the valuation reports at $35,000, to this figure.

It, therefore, awarded the aggregate amount of $125,000 to the respondent as a fair and equitable amount that adequately represented the enrichment that accrued to the appellant and constituted his concomitant impoverishment.

Lastly, the court a quo declined to immediately evict the respondent from the immovable property on two grounds:

(i) The first was that he had a real improvement lien on the property, dischargeable on full payment of the award.

(ii) The second was that the respondent had invested all the resources he had on the plot.

To evict him from the plot, empty-handed, would not only be intolerable, but, would consign him and his family to the indignity of homelessness and destitution.

I quote below the concluding remarks of the court a quo in this regard. At p15 of its cyclostyled judgment, it stated that:

“This Court firmly believes that this is a proper case to exercise its discretion in the interest of equity and fairness by ordering that the defendant be evicted only upon payment of the full compensation ordered by the court per the defendant's counter-claim. This is mainly because the defendant has a real lien over the portion of the land in issue.”…,.

Notwithstanding the firm belief, the court a quo omitted to make the contemplated order of eviction in the final order that issued.

1....,.

2. The court a quo misdirected itself at law by failing to order either for or against the appellant on a claim of eviction of the respondent from the appellant's land when such a claim was put before the court a quo for determination by that court....,.

Counsel for the respondent..., conceded, in exchanges with the court, that the court a quo failed to capture the conditional eviction of the respondent in the operative part of its order.

In reply, counsel for the appellant conceded that this Court could, in terms of section 22(1)(b)(ix) of the Supreme Court Act, correct the omission to grant the conditional eviction in the operative part of the order of the court a quo rather than remit the case for this to be done....,.

This is an appeal against the whole judgment of the High Court handed down on 1 June 2020 granting an interdict in favour of the first and second respondents (Lilian Timveos and Thabitha Kuhumalo).

On 3 April 2020, the second appellant (Douglas Mwonzora), in his capacity as Secretary General of the first appellant (Movement for Democratic Change-Tsvangirai), sent identical letters to the third and fourth respondents (Speaker of the National Assembly and President of the Senate) recalling the first and second respondents from the Parliament of Zimbabwe.

The reason for the recalls was that they had ceased to be members of the first appellant, Movement for Democratic Change-Tsvangirai (MDC-T).

On 5 May 2020, the third and fourth respondents informed their respective houses of the receipt of the second appellant's letter and vacancies created thereby.

The Zimbabwe Electoral Commission (ZEC) was duly informed of the same so that the electoral process could begin in terms of section 39(3) of the Electoral Act [Chapter 2:13] (herein after referred to as the Act).

The first and second respondents were aggrieved by the recalls. They approached the High Court with an urgent chamber application in a bid to stop the appellants from replacing their seats in Parliament.

The provisional order they sought was couched as follows:

“TERMS OF FINAL ORDER SOUGHT

It is ordered that:

1. It is hereby declared that first, second, and third respondents or anyone acting through them or on their behalf have no power or authority to replace second and third applicants (sic) who are members of the MDC–Alliance as members of the Senate and National Assembly respectively by members of the MDC-T, or any of their appointees and that such replacement of applicants is unlawful.

2. Pending a resolution of the applications in Case Nos. HC2308/20, HC2351/20 and HC2352/20 the replacements of applicants as Members of Parliament by the respondents be and is hereby stayed.

3. Respondents to bear the costs, jointly and severally, the one paying the other to be absolved.

Pending confirmation or discharge of the provisional order, it is ordered that:

1. First, second, and third respondents or anyone acting through them or on their behalf be and are hereby interdicted, barred, and stopped from replacing applicants as members of the Senate and National Assembly, respectively, by members of MDC-T or any of their appointees.

2. Sixth respondent be temporarily interdicted from Gazetting the existence of vacancies in applicants Constituencies for purposes of taking steps to have them filled by nominees of first, second, and third respondents.”

In their founding affidavit, the first and second respondents alleged that they did not belong to (MDC-T) but to Movement for Democratic Change Alliance (MDC-A) led by Nelson Chamisa, a party completely different from MDC-T.

According to them, only MDC-A could recall them from Parliament.

They further alleged that they were nominated to be voted into Parliament under MDC-A.

In opposing the application, the second appellant (Douglas Mwonzora) contended, that, the first appellant (MDC-T) was entitled to replace the first and second respondents as they were voted into office under the MDC-T party.

Further, he averred that the relief sought by the first and second respondents had an effect of interfering with the first appellant's right to replace its own members of Parliament.

He further stated, that, MDC-A is a pre-election pact of seven political parties that were constituted in terms of a Composite Political Agreement. The nominated candidates did not individually belong to the MDC-A, but to their respective political parties which formed the Alliance.

Further, he averred that the matter was not urgent.

The third appellant (Dr. Thokozani Khupe) raised the following preliminary points, that:

(i) The certificate of urgency was defective in that it did not state the date on which the need to act arose;

(ii) The Zimbabwe Electoral Commission ought to have been cited as a party and not citing the Chairperson;

(iii) The matter was not urgent as the founding affidavit did not have a cause of action;

(iv) There was material non-disclosure of the judgment under SC56-20 which nullified the appointment of Nelson Chamisa as president;

(v) The interim and final relief sought was the same;

(v) The court could not grant interim relief as the vacancies should be filled within 90 days.

On the merits, the third appellant associated herself with the arguments raised by the second appellant in as much as the argument that MDC-A is not a political party on its own.

She further averred, that, the first and second respondents have an alternative remedy which was to have the main matter resolved expeditiously.

The third and fourth respondents (Speaker of the National Assembly and President of the Senate) also filed their opposition.

In their opposition, they averred that the matter was not urgent as the alleged urgency was self-created.

They further contended, that, the High Court did not have jurisdiction to entertain the matter as the matter was a constitutional one.

They submitted, that, the first and second respondents case was based on the allegation that Parliament failed to fulfil its constitutional obligations by violating section 129(1)(k) of the Constitution. This allegation therefore placed the matter within the exclusive jurisdiction of the Constitutional Court in terms of section 167(2)(d) of the Constitution.

The court a quo dismissed all the points in limine.

It held that the certificate of urgency was not defective as it contained crucial information relating to the fears of the first and second respondents.

It further held that the matter was urgent.

On the question of non-citation of the Zimbabwe Electoral Commission (ZEC) the court a quo held, that, the citation of the Chairperson of ZEC, instead of the Zimbabwe Electoral Commission was proper.

It reasoned, that, the citation of the Zimbabwe Electoral Commission (ZEC) in legal proceedings is governed by section 14 of the Electoral Act which provides that the State Liabilities Act [Chapter 8:14] applies whenever ZEC is to be cited in legal proceedings.

The State Liabilities Act provides that when suing a Ministry, the Minister is to be cited.

The court held, that, equating the Zimbabwe Electoral Commission (ZEC) to a Ministry, the citing of the Chairperson of ZEC is proper.

In this regard, the court a quo also relied on the case of Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S)...,.

On the issue of material non-disclosure, the court a quo held that judgments of the courts are in the public domain.

It further held that the Supreme Court judgment declared what the position in the MDC was and this did not pertain to the expulsion of the first and second respondents from Parliament.

It also found that the substance of the interim relief sought and the final order sought was not the same.

On the merits, the court a quo found that the first and second respondents had established a prima facie right which must be protected. It thus granted the order on the premise, that, the first and second respondents had established a prima facie case for the grant of the provisional order.

The order granted reads as follows:

“Pending the determination, or disposal by this Court, of the proceedings under the reference case nos. HC2351/20 and HC2352/20, the first, second and third respondents, or anyone acting through them, or on their behalf, shall refrain and desist from, and they are hereby interdicted, barred, and restrained from submitting any nomination papers in terms of section 39(4)(b) of the Electoral Act [Chapter 2:13], or submitting or supplying the names of any other person for the purposes of filling up any perceived vacancies in the Parliament of Zimbabwe in respect of the seats held by the first and second applicants in the Senate and National Assembly, respectively, as at 3 April 2020.”

Dissatisfied with the decision of the court a quo, the appellants noted this appeal. The appellants raised ten (10) grounds of appeal.

In motivating the appeal, counsel for the appellants, on reflection, abandoned the first two grounds relating to findings on urgency. He also seemed to have abandoned grounds 4 and 10 as he did not address these grounds.

The grounds that remained pertained to:

(i) The findings that the joinder of the Zimbabwe Electoral Commission (ZEC) was not necessary;
(ii) That, the interim relief was not the same as the final relief;
(iii) That, the court a quo had jurisdiction to grant the interdict as it did not interfere with the process by the Zimbabwe Electoral Commission (ZEC); and
(iv) That, the respondents had established a case for the interdict.

Before counsel could make detailed submissions on the remaining grounds of appeal, the court drew the attention of counsel for the parties to the order granted by the court a quo and whether such was in sync with the relief the first and second respondents had approached the court for.

In addressing this point, counsel for the appellants submitted that though the grounds of appeal had not succinctly captured this anomaly, grounds 8 and 9, on the interim relief being the same as the final relief, were in fact intended to address the fact that the order granted was not proper as it was final in nature when the respondents had only sought a provisional order.

He further submitted, that, the court a quo erred in granting a final order upon a finding that only a prima facie case had been established.

It was his view that this Court may exercise its powers in terms of section 25 of the Supreme Court Act [Chapter 7:13].

As regards the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) and not ZEC, counsel for the appellants submitted that the court a quo also erred in finding that the joinder of the Zimbabwe Electoral Commission was not necessary and the non-joinder was not fatal.

He also submitted, that, the court a quo erred in law in not finding that it had no jurisdiction to interdict a lawful process, namely, that it could not interdict the filling of vacancies that have arisen by operation of law.

Counsel for the first and second respondents conceded, that, the court a quo erred by granting a final order based on a finding that the first and second respondents had only established a prima facie case.

He submitted, that, the only amendment he made to the interim relief sought was the abandonment of paragraph 2 which sought to temporarily interdict the Zimbabwe Electoral Commission (ZEC) from gazetting the existence of vacancies in their respective constituencies. There was thus no other amendment to their prayer warranting the order that was granted.

He confirmed that what the court a quo granted was not what his clients had approached the court for.

Just as with the appellants counsel, he submitted that he only saw that the court had granted such an order upon reading the judgment.

In the circumstances, he was not averse to this Court exercising its powers in terms of section 25 of the Supreme Court Act in resolving the irregularity.

Regarding the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) instead of ZEC, counsel insisted that the citation or joinder of the Zimbabwe Electoral Commission was not necessary, and failure to do so was not fatal, as no order was made against it.

Counsel for the third and fourth respondents (Speaker of the National Assembly and President of the Senate) had no submissions to make save to indicate that his clients would abide by the decision of the court.

Counsel for the fifth respondent (Chairperson of the Zimbabwe Electoral Commission) indicated that whilst his client would abide by the court's decision, there was, however, an unsatisfactory position of the law regarding whether the Zimbabwe Electoral Commission (ZEC) should have been cited or not.

In this regard, he alluded to section 14 of the Electoral Act as amended by Act 3 of 2012 and Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S).

He juxtaposed these with section 4A of the Electoral Act as amended by Act 3 of 2012 on the corporate status of the Zimbabwe Electoral Commission (ZEC) and the Constitution of Zimbabwe Amendment (No.20) Act of 2013 which provides corporate status for independent commissions, of which ZEC is one.

Upon a careful consideration of the submissions made we are of the view that this appeal may be disposed of on the basis of the order granted.

The issue of citation is only pertinent in as far as it is necessary to bring to the fore the inconsistency alluded to.

The issues for determination may thus be restricted to:

(i) Whether or not the order granted by the court a quo was proper in the circumstances.

(ii) Whether or not the court a quo erred in finding that the citation of the chairperson of the Zimbabwe Electoral Commission (ZEC) was proper and that non-joinder of the Zimbabwe Electoral Commission, as a party, was not fatal to the proceedings as it was not necessary in terms of section 14 of the Electoral Act.

The appellants counsel submitted, that, the order granted by the court a quo was not in sync with the relief that the first and second respondents had approached the court for.

The order was not a provisional order at all and should not have been granted.

The appellants counsel submitted, that, the first and second respondents, in the urgent chamber application, had only established a prima facie case.

Counsel for the first and second respondents conceded, that, whilst his clients approached the court a quo seeking a provisional order, the court a quo granted a final order. He, in effect, conceded that the respondents had set out to establish a prima facie case for the grant of the interim relief.

That, the order granted is not the one the first and second respondents sought is thus common cause....,.

This composite application for condonation and extension of time for leave to appeal, and leave to appeal raises an interesting question.

It is whether an applicant who seeks and is denied condonation for the late filing of an application for leave to appeal in a lower court and therefore fails to make the actual application for such leave in that court, can procedurally seek leave to appeal from a judge of this Court in chambers.

The applicant filed the present application on 25 March 2021.

It seeks condonation and extension of time for leave to appeal and leave to appeal against the original judgment handed down by the Labour Court on 24 February 2017.

The application is opposed by both respondents.

The applicant is a constitutional body established in terms of section 254 of the Constitution of Zimbabwe 2013. It is charged with the responsibility of combating corruption in all its manifestations in Zimbabwe.

The two respondents are former employees of the applicant. The first respondent was a General Manager Finance, Administration and Human Resources and the second respondent was a Chief Accountant.

The two were charged with misconduct, found guilty and discharged from employment on 14 July 2016.

They filed an application for review against the composition and findings of the Disciplinary Committee. The review application was based on 10 grounds. They sought, firstly, the nullification of their suspension, verdict and sentence, and, secondly, their reinstatement to their previous positions on full benefits.

The applicant refuted each and every ground of review.

On 24 February 2017, the court a quo dismissed the first three grounds of review that impugned the procedural propriety of amending the statute under which they were charged from the Anti-Corruption Act [Chapter 9:22] to the Labour (National Employment Code of Conduct) Regulations, 2006, SI15 of 2006 model law.

It found, on the authority of Standard Chartered Bank v Matsika 1996 (1) ZLR 12 (S), that, the amendment of the statute under which they were charged, from the Anti-Corruption Act to the National Employment Code Model, was proper.

The amendment did not alter the charges of domiciling Treasury funds in their own company instead of in the account of the applicant nor was it prejudicial to the two as they were afforded adequate time, of at least a month, within which to respond to the charges and prepare their defences.

The Labour Court, however, upheld grounds 4 and 5, which it found to be dispositive of the review application without considering the remaining grounds of review.

It found that the Disciplinary Committee was improperly constituted, and held, on the authority of Madoda v Tanganda Tea Co. 1999 (1) ZLR 374, that, it was voidable at the instance of the prejudiced respondents. It set aside the proceedings and remitted the matter to a properly constituted Disciplinary Committee.

The remittal was based on the sentiments of MUCHECHETERE JA in Standard Chartered Bank of Zimbabwe Ltd v Chikomwe & Ors SC77/2000, SC77-00 that:

“…, reinstating the respondent in the circumstances implies a finding that respondents were innocent of the charges of misconduct against them by the hearing officers…,. A setting aside of the proceedings of the disciplinary committees should therefore lead the parties to the same position before the hearing in the disciplinary committees - appeals before a properly constituted disciplinary committee.”

The two respondents therefore remained on suspension but on full salary and benefits.

In terms of Rule 36 of the Labour Court Rules SI59/06, the applicant had 30 days from the date of the judgment within which to apply for leave to appeal to the Supreme Court against the judgment of 24 February 2017.

It failed to do so.

On 5 October 2017, it applied for the upliftment of the bar and condonation for late filing of an application for leave to appeal.

It did not co-join this application with an application for leave to appeal.

On 23 February 2018, the Labour Court dismissed the application for upliftment and condonation.

The requirements for such an application were the extent of the delay, the reasonableness of the delay and prospects of success, and the absence of prejudice to the other parties.

The Labour Court found the delay inordinate and the explanation for the delay unreasonable. It was unable to assess whether or not there were prospects of success in the absence of a draft notice of appeal. It reasoned, that, without the draft notice of appeal, it was unable to ascertain whether the grounds of appeal were based on points of law as mandated by section 92F(1) of the Labour Act [Chapter 28:01].

This was despite the fact, that, the applicant had raised substantive points of law impugning the review judgment.

The Labour Court clearly abdicated its responsibility to determine whether, on the averments and arguments submitted in the application for condonation, there were prospects of success.

On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.

It is opposed by the first respondent.

They seek the following relief:

1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.

3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.

4. Each party shall bear its own costs.

The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.

The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).

The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.

The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.

The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.

The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.

The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.

The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.

The first applicant regards the termination to be a retrenchment process.

The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.

He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.

The two applicants were aggrieved by the entire retrenchment process.

They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.

He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.

Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.

He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.

He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.

Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:

(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.

(ii) The second was that it had a reservation arbitration clause.

Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.

The Labour Court confirmed the ruling on 19 May 2017.

It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.

It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.

Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.

The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.

The application for joinder was set down together with the appeal hearing.

At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.

The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.

A further attempt to file another notice of appeal at the Labour Court was declined by the Registrar of the Labour Court on the ground that such a notice was, in terms of section 92F of the Labour Act [Chapter 28:01] (the Act), due at the Supreme Court.

Thereafter, the applicants concerted effort to the Registrars of the Labour Court and Supreme Court, in March 2018, for directions on the appropriate procedure to assail the draft ruling went unanswered.

On 25 September 2018, some seven months after the consensual withdrawals, this Court passed judgment in Drum City (Private) Limited v Brenda Garudzo SC57-18.

In that case, the labour officer entered a draft ruling in favour of the employee and against the employer. The labour officer then sought confirmation of the draft ruling before the Labour Court, in terms of section 93(1) as read with section 93(5a) and (5b) of the Labour Act.

She cited the losing employer as the only respondent, purportedly in terms of section 93(5a) of the Labour Act, which required “the employer or any other person against whom the ruling is made” to be the respondent in the confirmation proceedings.

This Court held, that, the legislature could not have intended to exclude a party with a direct and substantial interest in the confirmation proceedings, such as the employee in whose favour the draft ruling pertained, from participating in such proceedings as a co-respondent.

It accordingly allowed the appeal, set aside the confirmation proceedings, and remitted the matter to the Labour Court for the joinder of the employee and a re-hearing of the confirmation.

However, at paragraphs [12] and [13] this Court, en passant, remarked that:

“[12]…, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss(5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

[13] Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.”

These remarks were jettisoned by MALABA CJ in the Constitutional Court in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CC06-20…,. He pertinently observed that:

“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a draft ruling has been made against the employer that confirmation proceedings would ensue. The remarks were made as obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”

The remarks in [12] and [13] were clearly obiter dictum because they did not relate to the issue that was before the court, which was whether or not the Labour Court could properly hear and determine an application for confirmation in which the employee was not cited.

The remarks answered the question, which was not before the Supreme Court, whether confirmation proceedings could be lodged in respect of a draft ruling that was made against an employee.

Before the Constitutional Court was a contention that the citation of the employer or other person against whom the draft ruling related, to the exclusion of the employee, infringed the employer's right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution.

The Constitutional Court, inter alia, relied on the ratio decidendi of Drum City (Private) Limited v Brenda Garudzo SC57-18, and held that despite the “statutory ambiguity or vagueness” in the words “employer or other person” in section 93(5a) and (5)(c) of the Labour Act, the employee was a necessary party to the proceedings. Further, that, the architecture of the entire provisions of section 93 of the Labour Act required that a draft ruling be subjected to confirmation proceedings irrespective of whether it was in favour of the employer and against the employee, or in favour of the employee and against the employer.

It was on the basis of the reasoning of the Constitutional Court that the applicants lodged the present application on 13 April 2021.

It was opposed by the first respondent on 20 April 2021.

The applicants filed an answering affidavit on 22 April 2021. Thereafter, the applicants filed their heads on 28 April 2021 while the first respondent did so on 12 May 2021.

A court considers the extent of the delay, reasonableness of the explanation for the delay, prospects of success and importance of the case, respondent's interest in the finality of his judgment, convenience of the court, and avoidance of unnecessary delay in the administration of justice.

However, it is trite that the main requirements for an application of this nature are the extent of the delay, the reasonableness of the explanation for the delay, and the prospects of success: see Ester Mzite v Damafalls Investments (Private) Limited SC21-18.

The Labour Court refused to confirm the proceedings on 19 March 2017. Leave to appeal was granted by that court on 9 July 2017. The appeal should have been filed by 15 August 2017.

The present application was filed on 20 April 2021.

It is common cause that this period, which is in excess of three (3) years and eight months, is inordinate.

The real reason for the delay was that the applicants were prevailed upon by this Court to withdraw the appeal on 22 February 2018. The applicants withdrew the appeal because they accepted the misconception that confirmation proceedings that they sought to impugn were a nullity by reason of lack of jurisdiction by the Labour Court to confirm a draft ruling made against an employee by a labour officer.

That view was subsequently affirmed by this Court in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 at paragraphs [12] and [13].

It was, however, authoritatively jettisoned by the Constitutional Court in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 at p25.

The applicants have always been desirous to test the correctness of the judgment appealed against but for the mis-interpretation of the relevant provision of the Labour Act by this Court.

This is demonstrated by their desperate attempt, in March 2018, to appeal the confirmation in the Labour Court under the mistaken belief that it had reverted to being the decision of the labour officer.

I would have accepted the explanation on the misconstruction of the jurisdiction of the Labour Court by this Court to have been a reasonable explanation for the delay had the applicants filed the present application soon after the reasons for judgment were availed in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, in June 2020.

The applicants, however, justified their failure to file the application soon after the Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 judgment on the COVID 19 induced lockdowns.

The endemic lockdowns resulted in the closure of court operations between 30 March 2020 and 11 May 2020 and 5 January 2021 to 1 March 2021. During this period, only urgent matters were set down, heard, and determined.

The courts were, however, in full session between 11 May 2020 and 4 January 2021 and between 1 March 2021 and the date on which the applicants filed the present application on 12 April 2021.

There was no legal impediment against the filing of the application immediately the reasons for judgment were delivered in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20.

The applicants did not proffer any reasonable explanation as to why they failed to lodge the present application during these periods.

My overall finding is, therefore, that the explanation given for the delay was unreasonable.

I agree with counsel for the first respondent, that, the applicants failed to provide a reasonable explanation for the inordinate delay.

The three main factors are not individually decisive in granting the indulgence sought by the applicants.

The remarks of SANDURA JA in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) are worth repeating. He stated that:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

In the present case, strong prospects of appeal may be the determinant factor.

It is common cause, that, the parties did not produce the consensual agreement to the labour officer. The first respondent failed to locate it, and, suggested that it must have been illegally removed from its custody by its former Finance and Human Resources Director, Owen Murumbi, on the subsequent termination of his employment.

The first appellant maintained such an agreement did not exist.

The labour officer, and the court a quo, made positive findings that the agreement was in existence and that the parties and their witnesses had appended their signatures on the agreement.

Counsel for the applicants argued, that, such a positive finding by both the labour officer and the court a quo, in the absence of the agreement, was so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided, would have arrived at it.

He, therefore submitted, that, such a finding constitutes a misdirection which allows this Court to interfere with it.

His contention is based on the authority, amongst others, of TM Supermarket v Mangwiro 2004 (1) ZLR 186 (S); Reserve Bank v Granger & Anor SC34-01; and Zvokusekwa v Bikita Rural District Council SC44-15…,.

Counsel for the applicants further contended, that, the failure to apply the peremptory retrenchment procedures set out in section 12C(11)(a)(i) and (ii) and (b)(i) and (ii) of the Labour Act [Chapter 28:01] before its amendment by the Labour Amendment Act No.5 of 2015 rendered the retrenchment a nullity.

Counsel for the applicants also contended, that, contrary to the finding a quo, the acceptance of their terminal benefits could not properly constitute a waiver of their right to challenge the termination process.

The contention was premised on two grounds:

(i) The first was that the termination was a nullity and could therefore not be waived.

(ii) The second was that at the time they accepted the terminal benefits, they were ignorant of its effect on their right to challenge the termination. They therefore argued that they lacked the requisite appreciation and concomitant intention to found waiver.

Counsel for the applicants submitted, that, the principle of waiver, articulated in Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S)…, was no longer good law. This was because that decision predated the concept of social justice and equity embodied in section 2A of the Labour Act.

This concept was recognized in Stanbic Bank of Zimbabwe Ltd v Charamba 2006 (1) ZLR 96 (S); Madhatter Mining Company v Tapfuma SC51-14…,.; and Delta Beverages (Pvt) Ltd v Murandu SC38-15…,.

Per contra, counsel for the first respondent contended, that, the acceptance and consumption of the terminal packages constituted a waiver of their right to challenge the legality of their respective terminations.

The Constitutional Court authoritatively laid down, inter alia, that the Labour Court's jurisdiction to confirm a labour officer's draft ruling, in respect of a dispute or unfair labour practice, which is a dispute of right, could only be invoked if the labour officer strictly complied with all the prescribed procedural steps and substantive requirements of sections 93(1)(3) and 95(5)(c) of the Labour Act in making the draft ruling.

This principle was derived from the ratio decidendi of Tsvangirai v Mugabe & Anor 2006 (1) ZLR 148 (S), which was that the action or application commencing proceedings must be in accordance with the procedure prescribed by law to bring the dispute before the appropriate court for it to exercise jurisdiction to hear and determine the matter.

At p27 MALABA CJ pertinently held that:

“This means that a matter that is not a product of compliance with the procedural and substantive requirements of these provisions would not fall within the class of matters over which the Labour Court would have jurisdiction in terms of section 93(5a) of the Act. It would not be a matter which would be subject of the procedure for bringing such matters to the court a quo, as prescribed under section 93(5a) of the Act. Bringing such a matter to the court a quo under the guise of invoking the procedure prescribed in the subsection would not validly institute proceedings in that court in terms of section 93(5a) of the Act. The court a quo would not have a valid matter over which to exercise jurisdiction.”

The jurisdiction of a labour officer to deal with a dispute or unfair labour practice, whether in respect of a dispute of interest or a dispute of right is anchored in section 93(1) of the Labour Act.

The dispute or unfair labour practice must have been properly referred to the labour officer.

The propriety is based on four jurisdictional factors identified as the existence of a dispute, emanating from an employment relationship, outside the aegis of an employment code (per section 105(5) and (6) of the Labour Act) and the jurisdiction of an employment council (that is before a Designated Agent in terms of section 63(3b) of the Labour Act) and timeous referral.

The Constitutional Court further held, that, conciliation is a compulsory statutory process of mediation that is separate and distinct from arbitration and adjudication.

At p23, the Constitutional Court poignantly stated that:

“Procedures such as the hearing of oral submissions or the production of written submissions by the parties, and the determination of matters in dispute, typical of the adjudication process, are alien to the conciliation process. During the conciliation process, the labour officer collects information and attempts to settle the dispute between the parties in a friendly manner. It is neither a trial nor a hearing.”

Conciliation therefore constitutes the first consensus-seeking step that is actively, and not passively, presided over by the labour officer but is driven by the disputants.

The proper way of conducting conciliation, which was approved by the Constitutional Court, generally involves the four stage approach that consists of;

(i) The introduction;
(ii) Story-telling;
(iii) Dispute analysis; and
(iv) Problem solving.

These stages were borrowed from the South African labour case of National Union of Metalworkers in SA & Ors v Cementation Africa Contracts (Pty) Ltd (1998) 19 ILJ 1208 (LC)…, (the NUMSA case) and the suggestions of various academic writers in the field such as GROGAN: Labour Litigation and Dispute Resolution 1st ed Juta…,.; BRAND et al Dispute Resolution 5ed Juta…,.; and DARCY du TOIT et al Labour Relations Law a Comprehensive Guide 6ed Lexis Nexis…,.

If the properly conducted conciliation fails to achieve a settlement within thirty (30) days, or any further extension agreed to by the parties, from the commencement of the attempt at settlement, the labour officer issues a Certificate of No Settlement.

The legal effect of such a certificate is that the dispute or unfair labour practice arising from a dispute of right, by operation of law, automatically and specifically proceeds to adjudication before the Labour Court in terms of section 93(3) as read with section 93(5) of the Labour Act and not to compulsory or voluntary arbitration.

Such an application is a sui generis application that is within the contemplation of section 89(1) of the Labour Act.

It is only those disputes that involve disputes of interest for parties engaged in an essential service that take the arbitral route.

At pp22 and 24 of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, it was held that the draft ruling is the exclusive domain of the labour officer that is prepared after issuing a Certificate of No Settlement.

It is based on the information collected and collated by the labour officer during the process of conciliation.

In either case, the draft ruling must then as “a matter of obligation” be subject to the provisions of subsections (5a) and (5b). The draft ruling invokes the application of sub-sections (5a) and (5b) of section 93 of the Labour Act.

It is a provisional ruling that bears no legal force nor is it capable of review or appeal by the parties to whom it relates.

It only derives its life force if it is confirmed by the Labour Court in the automatic application that is lodged by the labour officer to that court.

It was emphatically held, at p11, of Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 that “if a labour officer engages in anything that is not conciliation, it is a nullity.”

Confirmation was adjudged to be a hearing in which the Labour Court examines the correctness of the facts and the law relied upon by the labour officer. The end result being, that, the Labour Court may confirm, set aside or substitute the draft ruling.

It is required to make a correct determination based on its own facts and law.

My understanding of the exposition rendered on the nature of confirmation proceedings is that they constitute a re-hearing in the wider sense in which the Labour Court is not bound by the factual findings and legal expositions of the labour officer.

The founding affidavit of the applicants fails to demonstrate that the conciliation conducted by the labour officer met the requirements set out in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20.

The first respondent averred, in the opposing affidavit, that, following upon the complaint of 31 August 2015, the labour officer issued a Certificate of No Settlement, by agreement of the parties, on 9 November 2015. Thereafter, on an undisclosed date, the applicants filed a statement of claim while the first respondent filed its statement of defence on 9 December 2015. The applicants then filed their reply on 14 December 2015.

It was common cause that the parties proceeded to file written submissions at the behest of the labour officer so as “to enable him to determine the matter.”

It is clear from these pleadings, that, the labour officer failed to conduct the conciliation in the manner stipulated in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20.

A properly conducted conciliation does not require a statement of claim, response, reply, and heads of argument. The labour officer does not make a determination in making his draft ruling.

These features pertain to a hearing.

Rather, he or she utilizes both the oral and written information and documents that he collects and collates from the parties to make a draft ruling.

A draft ruling that emanates from improper procedural steps and substantive requirements is a nullity. It is incapable of invoking the confirmation jurisdiction of the Labour Court.

It is unlikely that the applicants will be able to surpass this hurdle on appeal. This will, therefore, dampen their prospects of success on appeal.

I would dismiss the application for condonation and extension of time within which to appeal on this basis....,.

This is an appeal against the whole judgment of the High Court (court a quo) dated 18 October 2018. The court a quo granted an application for absolution from the instance made jointly by the respondents, granted claims in reconvention, and ordered the appellant to pay costs of the counterclaims on a legal practitioner and client scale.

The court a quo erred in this regard and the appellant was correctly aggrieved by the judgment of the court a quo.

There is no evidence in the record that the first, third, fourth, fifth, sixth, and seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) had filed counterclaims and the court a quo erred in granting counter claims that were not before the court.

Although the second respondent was properly before the court a quo, the requirements for the grant of absolution from the instance were not met.

Accordingly, the judgment must be vacated. I set out hereunder the reasons for this finding.

The appellant is a registered commercial bank operating in Zimbabwe. The first respondent is a private company registered in accordance with the laws of Zimbabwe. The third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) are private individuals who bound themselves as sureties and co-principal debtors in respect of a loan granted to the first respondent. The second respondent is a private limited company duly incorporated in Zimbabwe.

The appellant issued summons against the respondents on 13 March 2017 for the payment of US$368,706=62 being capital and US$20,654=10 being interest on the sum of US$368,706=62 at the rate of 18% per annum, which rate was subject to change from time to time, with effect from 26 November 2016 to date of payment in full and costs of suit on a legal practitioner and client scale.

At the commencement of trial, by consent of the parties, the claim was amended to read as follows:

“(i) By deletion of the capital amount of US$368,706=62 and the substitution thereof with the amount of US$361,034=23.

(ii) By deletion of the interest amount of US$20,654=10 and the substitution thereof with the amount US$28,246=49.”

The total amount claimed by the appellant amounted to US$389,362=72.

In its particulars of claim, the appellant averred that in or around November 2015, the appellant and the first respondent entered into an agreement in terms of which the appellant extended to the first respondent a loan for the sum of US$373,000.

The loan was accessed through the first respondent's operating account and was for the purpose of assisting the first respondent in financing its working capital requirements.

Interest was to accrue on the facility at the rate of 12% per annum subject to change from time to time and 18% per annum in the event of default by the first respondent in making due and punctual payment of any instalment.

The loan advanced was repayable to the appellant as follows:

“(a) US$2,000 on the 30th November 2015;

(b) US$1,500 on the 30th December 2015;

(c) US$2,000 on the 30th January 2016; and thereafter

US$15,200 per month with effect from the 28th of February 2016 until full payment.”

It was a term of the agreement, that, in the event of the first respondent defaulting in making due and punctual payment of any instalment, the total outstanding amount would immediately become due and payable.

The second, third, fourth, fifth, sixth and seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) bound themselves jointly and severally as sureties and co-principal debtors with the first respondent for payment of any and all monies due to the appellant.

The respondents defaulted in making due payment of the loan under the agreement giving rise to the total outstanding amount claimed by the appellant of US$389,362=72.

All the respondents jointly entered an appearance to defend, and, in their plea, denied that the amount claimed by the appellant arose from the agreement dated 2 November 2015.

The first respondent denied owing the appellant any money as it argued that the loan advanced through the loan agreement was repaid in full on the 30th of December 2015. The first respondent further denied owing the appellant any interest under the loan facility and maintained that the appellant actually recovered more interest from it than was lawfully due.

The second to the seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that all the suretyship deeds held by the appellant were void for vagueness as they covered an unlimited liability. They contended, that, a suretyship deed must contain a limit in monetary terms so as to be valid.

The second respondent (Penniwill (Pvt) Ltd) averred that the deed of suretyship between it and the appellant was void as it was not authorised by its Board of Directors.

The first respondent (Formscaff (Pvt) Ltd) further stated, that, the acknowledgment of debt executed by it in favour of the appellant was unenforceable as it was not signed by its representatives.

The second respondent (Penniwill (Pvt) Ltd) also averred, that, it never authorised the registration of a mortgage bond in favour of the appellant over its property known as Subdivision A of Subdivision H of N'Thaba of Glen Lorne situate in the District of Salisbury held under Deed of Transfer number 1998/95 ('the property').

Together with its plea, the second respondent (Penniwill (Pvt) Ltd) filed a claim in reconvention against the appellant and averred, that, the appellant fraudulently procured a suretyship and mortgage bond in its favour over the second respondent's property. The second respondent prayed that the suretyship deed and mortgage bond be cancelled.

The appellant entered a plea against the claim in reconvention and denied all the averments made by the respondents.

On 30 May 2017, the third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) indicated their intention to apply to amend their pleas and file a claim in reconvention at the pre-trial conference.

The amendments sought alleged that all the respondents purported suretyships had expired by effluxion of time, having been signed more than three years before the loan was granted. It was also averred, that, the suretyships were in contravention of section 12 of the Moneylending and Rates of Interest Act [Chapter 14:14] ('the Moneylending Act') and, as such, were invalid and unenforceable.

In the proposed claim in reconvention, the third to seventh respondents sought an order that their respective suretyships be declared null and void.

The second, third and fourth respondents (Penniwill (Pvt) Ltd, Rodney Callaghan and Millicent Callaghan) prayed that the mortgage bonds in their names be cancelled.

There is, however, no evidence in the record that the amendment was ever granted at the pre-trial conference or at the trial.

On 27 July 2017, the parties signed a Joint Pre-Trial Conference Minute and the issues for determination by the court a quo were stated as follows:

“1. Whether 2nd, 3rd, 4th, 5th, 6th, and 7th Defendants Deeds of Suretyship are valid and enforceable.

2. Whether 2nd Defendant's 1st and 2nd Mortgage Bonds (numbers 1557/13 and 1656/13) in favour of Plaintiff are valid and enforceable or whether they should be cancelled.

3.Whether 1st Defendant is indebted to Plaintiff under the Loan Agreement dated 2 November 2015 in the sums of US$368,706=62 as capital and US$20,654=10 as interest, and, was there novation or termination of the loan agreement.

4. Whether 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants, jointly and severally, one paying the others to be absolved, are indebted to Plaintiff as alleged or at all.”

At the trial, the appellant led evidence through two witnesses, namely, Mr. C. Gunundu (Gunundu) the appellant's Account Relationship Manager and Mr. V.S. Nyangulu (Nyangulu) a registered legal practitioner and conveyancer.

Mr. C. Gunundu testified, that, the appellant and the first respondent had a long business history spanning many years. They agreed that the Bank would advance a loan to the first respondent which loan would, in turn, re-finance the existing loan already held by the first respondent.

He further testified, that, the first respondent and its sureties had failed on numerous occasions to fulfil the loan obligations which it owed to the appellant. The new arrangement was meant to assist the respondents.

Gunundu maintained, that, the surety deeds and mortgage bonds made by the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) in the appellant's favour were all valid and properly constituted. He further maintained, that, the sureties were open and unlimited, and, as such, covered all the money obtained through loans by the first respondent from the appellant.

The second witness, Mr. V.S. Nyangulu, testified that the mortgage bonds he registered on behalf of the second respondent (Penniwill (Pvt) Ltd) in favour of the appellant were valid and were registered after due process and Board resolutions had been passed.

At the close of the appellant's case, the first to seventh respondents (Formscaff (Pvt) Ltd, Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) made an application for absolution from the instance.

In making the application, the first and third to seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that the appellant sued the respondents on a cause of action which had already been discharged on 31 December 2015.

They also alleged that their sureties were not valid.

In making its application, the second respondent (Penniwill (Pvt) Ltd) averred that the appellant failed to prove a valid cause of action that the mortgage bonds against its property, registered in favour of the appellant, were valid.

In response to the applications for absolution from the instance, the appellant argued that the applications were frivolous.

It vehemently denied receiving any payment from the first respondent in repayment of the loan. It also maintained that all the documents in respect of the security for the loan were valid and that the obligation of the sureties had not been extinguished by prescription or on any other basis.

The court a quo, in dealing with the matter, found that the appellant's first witness Mr. C. Gunundu (Gunundu) was not a credible witness and that he contradicted himself on material issues.

The court further found, that, the appellant failed to prove a prima facie case against the respondents.

The court went on to find, that, the first respondent repaid the loan of US$350,000 on 31 December 2015 as evidenced by the appellant's own books of account and statements.

The court a quo also found, that, the suretyships made in favour of the appellant by the second to seventh respondents were invalid and unenforceable as they were not in compliance with section 12 of the Moneylending and Rates of Interest Act. Further, that, the sureties did not relate to the 2 November 2015 loan facility, and, as such, could not be relied upon by the appellant in making a cause of action for the repayment of a loan under that facility.

The court a quo further held, that, the mortgage bonds executed in the second respondent's name were invalid as they were not made in compliance with the law and that the sureties and mortgage bonds could not be held to have an unlimited clause to their operation as such a clause was contrary to public policy.

The court concluded, that, as the appellant had failed to prove a prima facie case against the respondents, the respondents claims in reconvention had merit and that there was no need to put the respondents to their defence.

In the result, the court made the following order:

“1. The application for absolution from the instance, made by the defendants, succeeds with costs.

2. The surety ships (sic) in favour of the plaintiff entered into by 2nd, 3rd, 4th, 5th, 6th and 7th defendant and plaintiff be and are hereby cancelled.

3. The mortgage bonds passed by 2nd, 3rd and 4th defendants in favour of plaintiff, namely, Numbers 2416/2011, 4889/2011, 1557/2013 and 1656/2013 be and are hereby cancelled.

4. The plaintiff to pay costs of counterclaim to the defendants on attorney-client scale.”

Dissatisfied with the decision of the court a quo, the appellant noted the present appeal on the following grounds of appeal:

“1. The court a quo erred in holding that any amounts which were due to Appellant under the agreement dated 2 November 2015 were repaid in full and that Plaintiff sued on a cause of action that was discharged in full on the 30th of December 2015, in so doing, the court a quo failed to appreciate that the agreement (dated 2 November 2015) was entered into to enable the 1st respondent to settle previously existing debts.

1.1 The court a quo erred in strictly evaluating and rejecting the appellant's evidence and effectively demanding of it more than a prima facie (sic) as if it had (sic) evidence from defendants.

1.2 The court a quo erred in granting respondents 1, 3 to 7 counter-claims which were not before it.

1.3 The court a quo erred in granting the counterclaims by respondents 1, 3 to 7 when those respondents had not moved it to grant same as at that stage.

1.4 The court a quo erred in itself cancelling the parties agreements when it was not a party thereto and in violation of the sanctity thereof.

2. The court a quo erred in holding that:

(a) The Suretyship agreements executed by 2nd, 3rd, 4th, 5th, 6th and 7th Respondents did not relate to the agreement dated 2 November 2015, and that neither did they cover any amounts due thereunder.

(b) The Suretyship agreements had prescribed. In so holding, the court a quo grossly failed to appreciate that, at law, a Surety's obligations only arise upon demand.

(c) The 2nd, 3rd, 4th, 5th, 6th and 7th Respondents were released from their Suretyship due to material variation of the principal obligation, when this was not pleaded and no evidence proving actual prejudice was placed.

(d) That 2nd, 3rd, 4th, 5th, 6th and 7th Respondents suretyship agreements were void for being contrary to public policy.

3. In agreeing with 2nd, 3rd, 4th, 5th, 6th and 7th Respondents entire submissions on the application for absolution from the instance, the court a quo grossly erred in holding 2nd to 7th Respondents averment that the suretyship agreements are invalid for violation of Section 12 of the Money Lending (sic) and Rates of Interest Act [Chapter 14:14].

4. The court a quo erred in holding that the Mortgage Bond passed by 2nd Respondent, and 3rd and 4th Respondents are invalid and grossly failed to appreciate, that, at law, the Mortgage Bonds are valid as an instrument of both debt and hypothecation.

5. Consequent to the gross misdirection referred to in Paragraph 1, 2, 3 and 4 above, the court a quo erred in granting 1st to 7th Respondents application for absolution from the instance and entering Judgment in favour of Respondents as per their claim in reconvention for cancellation of the suretyship agreements and Mortgage Bonds.

6. The court a quo erred in awarding costs against Appellant in respect of the Respondents claim in reconvention on a higher scale, when there was no legal basis for so doing.”

On the merits, counsel for the appellant argued that it was improper for the court a quo to grant counterclaims that were not filed in terms of Rule 121 of the High Court Rules 1971 ('the High Court Rules').

Counsel further argued, that, the judgment of the court made factual findings without hearing the evidence of the first respondent. The factual findings could only have been made after hearing the defence case.

He also argued, that, the inference drawn by the court in respect of the statement of account was not the only inference in the circumstances of the case, and, in any event did not prove that the debt owed by the respondents had been repaid.

It was also counsel's argument, that, the appellant proved a prima facie case in establishing that the loan facility was disbursed to the first respondent and it was for the respondents to prove that the loan was repaid in full.

He prayed that the appeal be allowed with the matter being remitted to the court a quo for continuation of trial and an order for costs.

Per contra, counsel for the first, third to seventh respondents argued that the court a quo correctly found that the appellant failed to establish a prima facie case as there was no valid cause of action.

Counsel further argued, that, the documentary evidence produced before the court a quo showed that the loan was repaid in full on 31 December 2015, and, as such, the appellant had no basis to sue.

He also argued, that, the appellant's witness, Gunundu, contradicted himself in his evidence, and, as such, a prima facie case could not have had been established by the appellant.

Counsel further argued, that, the purported sureties made in the names of the third to seventh respondents were invalid and void.

Counsel prayed for the dismissal of the appeal.

Counsel for the second respondent also prayed for the dismissal of the appeal and argued, that, the appellant had no cause of action against the second respondent as no loan facility was ever advanced to it.

Counsel submitted, that, the loan was repaid on 31 December 2015 and that the appellant had admitted that this was the position in evidence.

He further submitted, that, there was no valid mortgage bond in the name of the second respondent upon which the appellant could execute. The mortgage bond made by the second respondent, in favour of the appellant, related to a 2011 loan facility and not the 2015 loan facility.

Counsel further maintained, that, the second respondent had only one director in Zimbabwe, and, as such, no valid resolution could have been made in the absence of the second director. As such, counsel argued that the power of attorney and mortgage bond were not properly executed.

It is my view, that, the appellant's grounds of appeal raise a single issue, i.e. whether or not the court a quo erred in granting the application for absolution from the instance.

The cause of action of the appellant, against the first respondent (Formscaff (Pvt) Ltd), was based on a credit facility dated 2 November 2015. It was alleged that the first respondent had failed to repay the loan advanced to it under that facility.

The cause of action as against the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) was based on the various surety and mortgage bonds filed of record which were made in favour of the appellant by the respondents at different times.

The court a quo, in granting the respondents application for absolution from the instance, found that the loan advanced to the first respondent was repaid on 31 December 2015. The basis of this finding was an accounting entry made by the appellant in its statement of accounts, which showed a credit entry in the sum borrowed as having been paid.

On the basis of this entry, the court reasoned that there was no cause of action upon which the appellant could claim as there was no outstanding debt.

The law to be applied in an application for absolution from the instance is well settled. In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…, the Court held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him:” see also Oesthuizen v Standard General Versekeringsmaa & Kappy BPK 1981 (A) 1035 (H)).”

In Gordon Lloyd Page & Associates and Rireira & Another 2001 (1) SA 88 (SCA)…, it was held that:

“The test for absolution to be applied by a trial court at the end of plaintiff's case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H in these terms:

'…, when absolution from the instance at the close of plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff established 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 or ought) find for the plaintiff…,.'

This implies that the plaintiff has to make out a prima facie case in the sense that there is evidence relating to all elements of the claim…,.”

Absolution from the instance is thus granted by the court when an application has been made by a defendant at the close of a plaintiff's case who fails to prove a prima facie case.

A prima facie case was noted in Fillieks and Others v S [2014] ZAWHC 34 as follows:

“Prima facie evidence, in its more usual sense, is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive and the party giving it discharges his onus…,.”

In granting the application for absolution from the instance, the court a quo thus had to be guided by the question of whether or not the appellant made out a prima facie case against the respondents on the basis of which the court could or might have found for the appellant.

The appellant's cause of action was based on the credit facility which it advanced to the first respondent on the 2nd of November 2015 for the sum of US$350,000. The purpose of the facility was to assist the first respondent in financing its working capital requirements.

The facility further provided, under clause 6, that, the security for the amount advanced as the loan was secured by sureties and mortgage bonds registered in the names of the respondents in favour of the appellant.

Under clause 12 of the facility, all previous facility letters advanced to the first respondent, by the appellant, were cancelled.

The accounting statements of the appellant, filed of record, show that on 17 November 2015, under transaction number LD1532460482, and described as “Loan Drawdown” the appellant credited the first respondent's account with the sum of US$350,000. On the 30th of December 2015, under transaction number LD1532460482 and described as “Payment of Principal” the sum of US$350,000 was reversed from the first respondent's account into the appellant's account.

The first respondent remained with a debit balance of US$375,671=35.

The appellant's witness, Gunundu, explained that the first entry meant that the appellant was crediting the first respondent with the proceeds of the loan. The second entry showed that those proceeds were meant to pay off an existing debt that the first respondent already had with the Bank.

It is important to quote the exchange between counsel for the appellant and the witness where he states that:

“Q. If you move further down, you will see that the same $350,000 appears on that page?

A. Yes, the second entry for $350,000 which in this instance now appears as a debit on the borrowers account, was passed on 30th December 2015. The second entry that was passed by the Bank on the 30th of December 2015 for 350,000 entailed that the Bank was now debiting the customer's account to confirm that this was now a new loan agreement with terms as contained in the facility letter offer of 2nd November 2015.”

The first respondent however maintained the argument a quo, and before this Court, that, the loan was repaid on the 30th of December 2015 under the transaction description of “Payment of Principal”.

On the basis of the above exchange, the court a quo found that the witness of the appellant did not establish its claim at all. The court concluded that Gunundu was not a credible witness and found that the appellant had failed to make out a prima facie case upon which the respondents could be placed on their defence.

It is our view, however, that the court a quo fell into error in arriving at this finding.

It should be noted from the onset, that, the appellant and the first respondent have had a long standing relationship of a banking nature.

The record shows, that, from 2011 to 2015, when the credit facility which is the subject of this appeal was entered into, the appellant was advancing the first respondent different loan facilities and overdrafts.

These loan facilities were advanced on the basis of the securities which were made by the second to seventh respondents.

For over five (5) years, the appellant was advancing money to the first respondent on the basis of those securities with no issues arising.

Emails filed of record further show correspondence between the third respondent (Rodney Callaghan), the first respondent's Finance Manager, one Jill Ngwerume Gunundu, on behalf of the appellant, and Nyangulu, which correspondence shows how some of the securities were registered.

Emails between Rodney Callaghan and Darryn Blumears (acting on behalf of the second respondent) are also part of the record which shows the parties acknowledging that certain sums of money were owed and that the respondents would raise money to pay the debts.

Although these emails were written in 2013 to 2014, this confirms the nature of the relationship between the appellant and the respondents, and that, as at 2014, there was a debt owed to the appellant.

Having found that there existed a banking relationship between the appellant and the respondents, the next question relates to the credit facility advanced to the first respondent on 2 November 2015 and whether or not that facility was repaid.

There is no documentary evidence in the record which shows that the first respondent wrote to the appellant seeking a refinancing loan to cover its existing debts.

However, given the history between the parties on how the appellant advanced several loans to the first respondent over the years, it can be taken that the first respondent must have approached the appellant seeking a loan to repay its outstanding debts.

A reading of the appellant's accounting statement shows, that, before the “loan drawdown” was made to the first respondent's account, the account showed a debit balance of US$367,981=74. When the loan sum was deposited, the balance was reduced to US$17,981=74. This means that the loan reduced an existing debt. When the loan was reversed back to the appellant's account on 30 December 2015, the balance returned to US$375,671=35.

This summary shows, that, the loan was advanced by the appellant to refinance an existing debt.

The credit facility, though not clearly labelled as a refinancing loan, appears to have been made in order to give the first respondent time to repay the loan. This explains the creation of a repayment plan on how the first respondent would repay its debt.

In my view, the credit facility, though not specified as a re-financing loan, must have been made for the purpose of extending the period in which the first respondent had to repay its debts.

It is important to borrow the words quoted with approval by GUBBAY CJ in Chikoma v Mukweza 1998 (1) ZLR 541 (SC)…, wherein the Court noted that:

“Not to be overlooked, as well, are the wise words of Lord Wright in Hillas & Co. Ltd v Arcos Ltd [1932] All ER Rep 494 (HL) at 503I; (1932) 147 LT 503 (HL) at 514:

'Businessmen often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is, accordingly, the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary, the court should seek to apply the old maxim of English Law, verba ita sunt intelligenda ut res magis valeat quam pereat.'

See also Burroughs Machines Ltd v Chenille Corp of SA (Pty) Ltd 1964 (1) SA 669 (W) at 670G-H.”

Thus, essentially, what was before the court a quo was a claim for the repayment of a loan.

The appellant had a duty, after all the evidence had been led by both the appellant and the respondents, to prove its case on a balance of probabilities.

The argument in the respondents plea, that the loan was repaid in less than a month, does not carry much weight and is an argument which the respondents had to prove in evidence.

It is important to note, that, there was nothing in the record showing a deposit from the respondents to indicate that the first respondent had paid off the loan.

The court a quo fell into error in making its decision solely on the entry made on 30 December 2015 in the appellant's statement of account.

That entry had to be read in conjunction with all the facts of the matter and the banking history which existed between the parties.

The first respondent never denied owing the appellant, but, rather, denied the sum claimed by the appellant and averred in its plea, that, if at all it owed the Bank, its debit balance was less than US$109,000.

All these are issues which the court a quo could not determine without putting the first respondent to its defence.

The court a quo further erred in making a finding that the appellant's witness was not a credible witness in circumstances when it had not heard evidence from the respondents. This was a clear error as there was nothing upon which the court could measure the appellant's evidence.

In Megalink Investments (Pvt) Ltd v Reserve Bank of Zimbabwe HH04-17…, the court held that:

“I need to point out, too, that, at this stage, the court is not so much concerned with questions of the credibility of the witnesses and the probabilities of the case as there is nothing to measure those aspects against in the absence of the defendant's evidence. The court, at this stage, is presented with only one side of the story which alone must be examined to determine whether the requirements for absolution have been satisfied.”

In the case of Professor Charles Nherera v Jayesh Shah SC51-19, GARWE JA…, quoted the case of Supreme Service Station 1969 (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1, in which BEADLE CJ highlighted some of the considerations that a court, faced with an application for absolution from the instance, ought to bear in mind.

He pointed out, that, the court should always bear in mind that the defendant has not yet given evidence, or been cross-examined. Thus, the court should not dismiss the plaintiff's evidence unless it is glaringly incredible.

The court a quo thus misdirected itself by making a finding on the credibility of the appellant's witnesses in the absence of evidence from the respondents witnesses.

Gunundu explained how the transactions under the credit facilities were made and how they operated. He further explained how the appellant had always worked with the first respondent in trust and on the basis of the securities which had been lodged with the Bank by the first respondent over the years.

It seems to me that his evidence was sufficient to establish a prima facie case for the appellant with regard to whether or not the respondent owed the appellant.

It is common cause that the respondents agreed to be sureties and co-principal debtors in the event that the first respondent failed to repay the appellant. The security documents are part of the record. They have the signatures of the respondents.

In making its claim in reconvention a quo, the second respondent averred that the mortgage bonds in favour of the appellant were fraudulently acquired by the appellant.

Nyangulu testified on how he processed the registration of the mortgage bonds through the Bank. Counsel for the second respondent however put him to task on the effect of the mortgage bonds registered against the second respondent's property in favour of the appellant.

The court a quo reasoned, that, as Nyangulu had admitted, under cross examination, that there may have been shortcomings in the manner in which the mortgage bonds were registered, therefore they were invalid.

However, the record shows, that, as at 29 May 2014, Darryn Blumears, in an email to Rodney Callaghan, was having conversations as to “a figure breakdown for the loan against Pagomo”.

Pagomo was one of the properties upon which a mortgage bond was registered by the second respondent in favour of the appellant.

On the same day, in an e-mail from Rodney Callaghan to Darryn Blumears, he was informed that:

“The total loan is $450,000 to NMB of which $325,000 is against Pagomo and the balance of $125,000 is against Tarlington Road.”

This email is just but one of the correspondence in the record which suggest that there existed debts between the first respondent and the appellant and that those debts were covered by securities in the form of sureties and mortgages.

This evidence, in my view, shows that there was an acceptance by the respondents that the loans were covered by the sureties and mortgage bonds. Thus, any denial of the proposition by the appellant that the mortgage bonds were valid should have been contradicted by the respondents in evidence.

It should also be noted, that, in making their pleas a quo, the respondents jointly made averments with regards to the sureties and mortgage bonds.

Of note, are the material allegations made by the respondents that the surety signed by the second respondent was signed by the daughter of the third and fourth respondents without a valid Board resolution for her to do so. Further, the acknowledgment of debt was not signed by the first respondent and that an official of the appellant fraudulently made the third and fourth respondent's daughter sign as surety on behalf of the second respondent.

It was further averred, that, the appellant thus registered unauthorised mortgage bonds against the second respondent.

All these averments made by the respondents in their pleas raise issues which were disputed by the appellant and therefore needed to be proved by way of viva voce evidence from the respondents.

As such, the court a quo could not grant absolution, as it did, without allowing the respondents to take to the stand to prove their claims.

The court a quo, in making its determination, found that the first and third to seventh respondents made claims in reconvention as to the invalidity of the sureties in their names.

However, as submitted by counsel for the appellant, these respondents did not make any claims in reconvention in their pleas. The claim in reconvention which is in the record relates only to the second respondent.

No amendment to the claim in reconvention was made to show that this was to cover all the respondents.

As such, the court a quo was clearly wrong and made a determination on an issue which was not properly placed before it.

Rule 121(1) of the High Court Rules provides that:

“A claim in reconvention shall be so described and shall be bound and filed with the defendant's plea.”

Only the second respondent properly made its claim in reconvention in its plea. The rest of the respondents only filed a notice of application to amend their pleas and claims in reconvention on the 30th of May 2017.

The respondents notice stated, that, at the pretrial conference, the respondents would apply to amend the pleas and make claims in reconvention. The record does not reflect whether or not the application for an amendment was motivated and if it was granted. More specifically, there is no order in the record to show that the amendment was granted at the pre-trial conference. The Pre Trial Conference Minute is also silent on this issue.

It seems to us that the court a quo could not make any finding on claims which were never raised in the papers before it by the respondents.

A court must determine a matter based on the papers and evidence placed before it by the parties. It cannot go on a frolic of its own: see Nzara and Ors v Kashumba N.O. and Ors SC18-18…,.

The court a quo fell into error when it granted claims in reconvention which were not properly pleaded by the respondents.

The sureties and mortgage bonds were signed by the respondents and they all had a provision for unlimited cover.

The question of whether these sureties and mortgages were valid can only be answered when the issue of whether or not the first respondent owes the appellant the claimed sum of money has been answered.

The invalidity of the security documents is an issue which the respondents should prove in their defence.

In the same way that the appellant made its case, that the security documents were valid as they were always used by the first respondent in acquiring loans over the years and were never questioned by the second to seventh respondents as being invalid, so too must the respondents show that the security documents were invalid and cannot relate to the loan facility dated 2 November 2015.

It is thus imperative that the court a quo makes a determination on whether or not the first respondent is liable to repay the loan advanced to it by the appellant on 2 November 2015.

The determination will deal with the issue of whether or not the suretyships and mortgage bonds in favour of the appellant are valid or invalid.

As long as the suretyships remained signed, with a provision that they are of an unlimited nature, and the appellant remains in possession of the title deeds to the properties under the mortgage bonds, the security documents must be held as being valid.

A final resolution of the matter can only be made after the defence case is heard.

The court a quo misdirected itself in granting the respondents application for absolution from the instance in a case where the appellant had made a prima facie case upon which judgment might or could have been entered in its favour.

The court a quo also erred in cancelling the surety and mortgage agreements in circumstances where there were no counterclaims filed by the third to seventh respondents seeking such relief.

The justice of the case was one which required that the respondents be put to their defence.

The appellant, having succeeded in the appeal, is entitled to its costs.

In the result, it is ordered as follows:

1. The appeal be and is hereby allowed with costs.

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

“The defendants application for absolution from the instance and second defendant's application for its claim in reconvention to be granted at the close of the plaintiff's case be and are hereby dismissed with costs.”

3. The matter is hereby remitted to the court a quo for continuation of trial.

On 7 July 2021, the High Court (“the court a quo”) dismissed an application brought against the respondents by the appellant for want of prosecution with costs. It also ordered the appellant to pay the costs of the application brought by the first and second respondents for the dismissal of the main application.

This appeal is against that judgment.

Both respondents are incorporated in terms of the laws of this country and are sister companies. The second respondent is a medical aid society while the first respondent is its investment vehicle.

For quite some time, the appellant was the second respondent's Chief Executive Officer, a position he vacated prior to the commencement of the proceedings forming the basis of this appeal.

On 27 March 2018, the appellant brought a court application in the court a quo for a declaratory order to the effect that he was the holder of ten million shares, representing a 20% shareholding in the first respondent. He also sought a declaration that the conduct of the first and second respondents, of regarding him as not being a shareholder, was unlawful, null and void and of no force or effect. He also sought costs on the scale of legal practitioner and client.

The basis of the application, as stated in the founding affidavit, was that the appellant had purchased the ten million shares of the first respondent on 29 July 2010. He attached a copy of a share certificate issued to him and signed by two directors of the first respondent whose names are not disclosed in the certificate.

While alleging that he paid for the shares, he did not produce proof of such payment.

According to the appellant, what prompted him to make the application for a declaratory order was the first and second respondents refusal to acknowledge him as the holder of the shares in question. This followed a meeting of the second respondent held on 21 May 2015 which resolved not to ratify the award of the 20% shareholding in the first respondent to the appellant.

On 11 April 2018, the respondents filed opposition to the application for the declaratory orders.

The opposing affidavit was deposed to by Jeremiah Bvirindi, the chairman of the Board of Directors of the second respondent, who denied that the appellant was ever a shareholder of the first respondent.

The respondents also took the view that there were disputes of fact and put in issue the circumstances under which the appellant had purported to acquire the shares at a time he was the Chief Executive Officer of the second respondent.

According to the respondents, the appellant obtained the share certificate he relied on “either illegally, fraudulently, or without following due process” as set out in the first respondent's Regulations.

Significantly, the respondents confirmed that the appellant had deposited a cheque of Z$6,585,672,555=75 into the second respondent's bank account.

The respondents view was that a mere deposition of the above amount in the Bank account was improper and motivated by fraudulent intent on the part of the appellant.

In any event, so the respondents argued, while the payment for the 15% shares (not 20%), should have been made on 25 April 2007, it was only made on 19 March 2008 when the amount had been ravaged by inflation rendering it inequitable to the value of the shares.

It was also the respondents case that the purported sale of the 15% shares and a donation of 5% shares to the appellant was done without the authority of the Board and/or the shareholders. The appellant took advantage of his position as the Chief Executive Officer to influence the sale to their prejudice.

It is common cause that the appellant did not act upon the notice of opposition filed by the respondents within the time allowed by the rules of court or at all. This prompted the respondents to file the initial application for dismissal of the application for want of prosecution under case number HC11129/18.

The application was opposed by the appellant and subsequently set down for hearing in March 2019.

Again, it is common cause that on the date of the hearing, following negotiations between the parties, the respondents withdrew the initial application for dismissal for want of prosecution. This was on the understanding that the appellant would purge his default by filing the outstanding pleadings in the main application and prosecute it.

He did not.

When the appellant did not honour his undertaking to prosecute the main matter for about five (5) months, the respondents filed the second application for dismissal for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules 1971 on 2 August 2019.

It is that application which forms the basis of the present appeal.

In the founding affidavit, again deposed to by the chairman of the Board of Directors of the second respondent, on behalf of both of them, the respondents stated, that, following their filing of their opposition on 11 April 2018, the appellant had neither filed an answering affidavit nor set the matter down for hearing.

The respondents chronicled the appellant's tardiness in the handling of his application which saw him failing to file heads of argument even in the initial application for dismissal.

They stated, that, even after being accorded the second chance to redeem himself, the appellant had snubbed the opportunity and done absolutely nothing until a second application for dismissal was lodged.

After stating that they had elected to file the application for dismissal for want of prosecution instead of setting the main matter down for hearing, as they are entitled to do in terms of the Rule, the respondents ended there.

They urged the court to grant the order for dismissal on that basis alone.

In opposing the application, the appellant took issue with the authority of the deponent of the founding affidavit to represent the respondents.

He contended that one person could not lawfully represent two separate artificial persons and that the resolutions relied upon by the respondents were invalid by reason that the signatories names were not declared.

His only explanation for the delay in prosecuting the application was that, to the knowledge of the respondents, he had “not been feeling well for a long time” which affected his ability to give instructions to his legal practitioners to file an answering affidavit.

The appellant insisted, that, he owns 20% shares in the first respondent and should be allowed to pursue his claim, otherwise his property rights would be infringed.

It is also important to note that the appellant made two assertions which have a bearing on the resolution of this appeal:

In paragraph 6 of his opposing affidavit, in response to the accusation that he had not filed an answering affidavit or taken steps to set the matter down, the appellant stated that:

“6. Ad para 8-9

These averments have been overtaken by events. On 19 August 2019, I filed my answering affidavit and heads of argument in HC2821/18. What remains is for the applicants herein, as respondents therein, to file their heads of argument.”

Regarding the question whether the respondents had made a good case for the relief sought, the appellant stated, at paragraph 8:

“8. Ad para 11-14

8.1. I do not accept that the applicants have met (sic) the case for the order they are seeking.

8.2. The founding affidavit does not advance any grounds for the court to exercise its discretion in favour of dismissal instead of determining the main matter on the merits. The applicants just want a dismissal because they are asking for it.”

The court a quo found that it was both convenient and logical for the deponent of the founding affidavit to represent the respondents as he had knowledge of the shareholding structure of the first respondent. In the court a quo's view a company has the liberty to authorize anyone it deems fit and proper to represent it in litigation.

It found that the delay in responding to the pleadings was evidence of the appellant's non-committal to finalize the matter, because, if it had been of importance to him, the appellant would have pursued the matter with diligence.

In the court a quo's view, the unsubstantiated claims of illness by the appellants were not an acceptable reason for the delay.

It granted the application for dismissal for want of prosecution.

The appellant was aggrieved. He launched this appeal on the following grounds:

1. The court a quo misdirected itself and erred in law in not finding, in limine, that the respondents were not properly before it for the reason that the deponent to the respondents founding affidavit had no lawful authority to institute the proceedings on their behalf.

2. In dismissing the appellant's application under HC2821/18 for want of prosecution, the court a quo improperly exercised its discretion in that it only took into account one factor, namely, the reasonableness of the explanation for inaction, instead of also taking into account other mandatory factors such as possible prejudice to the respondents appellant's (sic), prospects of success on the merits, and the balance of convenience.

3. As an alternative to 2, the court a quo improperly exercised its discretion and erred in law in dismissing the appellant's application under HC2821/18 for want of prosecution without an analysis of, and application of its mind to all the mandatory factors to be taken into account before such dismissal.

4. With the court a quo having refused to take into account the established fact that the appellant's application under HC2821/18 had been ready for set down for a considerable period, its decision to dismiss the application for want of prosecution was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

5. The court a quo's finding that the appellant's explanation for the delay in prosecuting his application was inexcusable, was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

I mention, in passing, that, some of the five (5) grounds of appeal are repetitive and inconcise. They do not meet the threshold set by Rule 44.

As the issue was not raised with the parties at the hearing of the appeal, it shall not be considered in the determination of the appeal.

On 7 July 2021, the High Court (“the court a quo”) dismissed an application brought against the respondents by the appellant for want of prosecution with costs. It also ordered the appellant to pay the costs of the application brought by the first and second respondents for the dismissal of the main application.

This appeal is against that judgment.

Both respondents are incorporated in terms of the laws of this country and are sister companies. The second respondent is a medical aid society while the first respondent is its investment vehicle.

For quite some time, the appellant was the second respondent's Chief Executive Officer, a position he vacated prior to the commencement of the proceedings forming the basis of this appeal.

On 27 March 2018, the appellant brought a court application in the court a quo for a declaratory order to the effect that he was the holder of ten million shares, representing a 20% shareholding in the first respondent. He also sought a declaration that the conduct of the first and second respondents, of regarding him as not being a shareholder, was unlawful, null and void and of no force or effect. He also sought costs on the scale of legal practitioner and client.

The basis of the application, as stated in the founding affidavit, was that the appellant had purchased the ten million shares of the first respondent on 29 July 2010. He attached a copy of a share certificate issued to him and signed by two directors of the first respondent whose names are not disclosed in the certificate.

While alleging that he paid for the shares, he did not produce proof of such payment.

According to the appellant, what prompted him to make the application for a declaratory order was the first and second respondents refusal to acknowledge him as the holder of the shares in question. This followed a meeting of the second respondent held on 21 May 2015 which resolved not to ratify the award of the 20% shareholding in the first respondent to the appellant.

On 11 April 2018, the respondents filed opposition to the application for the declaratory orders.

The opposing affidavit was deposed to by Jeremiah Bvirindi, the chairman of the Board of Directors of the second respondent, who denied that the appellant was ever a shareholder of the first respondent.

The respondents also took the view that there were disputes of fact and put in issue the circumstances under which the appellant had purported to acquire the shares at a time he was the Chief Executive Officer of the second respondent.

According to the respondents, the appellant obtained the share certificate he relied on “either illegally, fraudulently, or without following due process” as set out in the first respondent's Regulations.

Significantly, the respondents confirmed that the appellant had deposited a cheque of Z$6,585,672,555=75 into the second respondent's bank account.

The respondents view was that a mere deposition of the above amount in the Bank account was improper and motivated by fraudulent intent on the part of the appellant.

In any event, so the respondents argued, while the payment for the 15% shares (not 20%), should have been made on 25 April 2007, it was only made on 19 March 2008 when the amount had been ravaged by inflation rendering it inequitable to the value of the shares.

It was also the respondents case that the purported sale of the 15% shares and a donation of 5% shares to the appellant was done without the authority of the Board and/or the shareholders. The appellant took advantage of his position as the Chief Executive Officer to influence the sale to their prejudice.

It is common cause that the appellant did not act upon the notice of opposition filed by the respondents within the time allowed by the rules of court or at all. This prompted the respondents to file the initial application for dismissal of the application for want of prosecution under case number HC11129/18.

The application was opposed by the appellant and subsequently set down for hearing in March 2019.

Again, it is common cause that on the date of the hearing, following negotiations between the parties, the respondents withdrew the initial application for dismissal for want of prosecution. This was on the understanding that the appellant would purge his default by filing the outstanding pleadings in the main application and prosecute it.

He did not.

When the appellant did not honour his undertaking to prosecute the main matter for about five (5) months, the respondents filed the second application for dismissal for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules 1971 on 2 August 2019.

It is that application which forms the basis of the present appeal.

In the founding affidavit, again deposed to by the chairman of the Board of Directors of the second respondent, on behalf of both of them, the respondents stated, that, following their filing of their opposition on 11 April 2018, the appellant had neither filed an answering affidavit nor set the matter down for hearing.

The respondents chronicled the appellant's tardiness in the handling of his application which saw him failing to file heads of argument even in the initial application for dismissal.

They stated, that, even after being accorded the second chance to redeem himself, the appellant had snubbed the opportunity and done absolutely nothing until a second application for dismissal was lodged.

After stating that they had elected to file the application for dismissal for want of prosecution instead of setting the main matter down for hearing, as they are entitled to do in terms of the Rule, the respondents ended there.

They urged the court to grant the order for dismissal on that basis alone.

In opposing the application, the appellant took issue with the authority of the deponent of the founding affidavit to represent the respondents.

He contended that one person could not lawfully represent two separate artificial persons and that the resolutions relied upon by the respondents were invalid by reason that the signatories names were not declared.

His only explanation for the delay in prosecuting the application was that, to the knowledge of the respondents, he had “not been feeling well for a long time” which affected his ability to give instructions to his legal practitioners to file an answering affidavit.

The appellant insisted, that, he owns 20% shares in the first respondent and should be allowed to pursue his claim, otherwise his property rights would be infringed.

It is also important to note that the appellant made two assertions which have a bearing on the resolution of this appeal:

In paragraph 6 of his opposing affidavit, in response to the accusation that he had not filed an answering affidavit or taken steps to set the matter down, the appellant stated that:

“6. Ad para 8-9

These averments have been overtaken by events. On 19 August 2019, I filed my answering affidavit and heads of argument in HC2821/18. What remains is for the applicants herein, as respondents therein, to file their heads of argument.”

Regarding the question whether the respondents had made a good case for the relief sought, the appellant stated, at paragraph 8:

“8. Ad para 11-14

8.1. I do not accept that the applicants have met (sic) the case for the order they are seeking.

8.2. The founding affidavit does not advance any grounds for the court to exercise its discretion in favour of dismissal instead of determining the main matter on the merits. The applicants just want a dismissal because they are asking for it.”

The court a quo found that it was both convenient and logical for the deponent of the founding affidavit to represent the respondents as he had knowledge of the shareholding structure of the first respondent. In the court a quo's view a company has the liberty to authorize anyone it deems fit and proper to represent it in litigation.

It found that the delay in responding to the pleadings was evidence of the appellant's non-committal to finalize the matter, because, if it had been of importance to him, the appellant would have pursued the matter with diligence.

In the court a quo's view, the unsubstantiated claims of illness by the appellants were not an acceptable reason for the delay.

It granted the application for dismissal for want of prosecution.

The appellant was aggrieved. He launched this appeal on the following grounds:

1. The court a quo misdirected itself and erred in law in not finding, in limine, that the respondents were not properly before it for the reason that the deponent to the respondents founding affidavit had no lawful authority to institute the proceedings on their behalf.

2. In dismissing the appellant's application under HC2821/18 for want of prosecution, the court a quo improperly exercised its discretion in that it only took into account one factor, namely, the reasonableness of the explanation for inaction, instead of also taking into account other mandatory factors such as possible prejudice to the respondents appellant's (sic), prospects of success on the merits, and the balance of convenience.

3. As an alternative to 2, the court a quo improperly exercised its discretion and erred in law in dismissing the appellant's application under HC2821/18 for want of prosecution without an analysis of, and application of its mind to all the mandatory factors to be taken into account before such dismissal.

4. With the court a quo having refused to take into account the established fact that the appellant's application under HC2821/18 had been ready for set down for a considerable period, its decision to dismiss the application for want of prosecution was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

5. The court a quo's finding that the appellant's explanation for the delay in prosecuting his application was inexcusable, was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

I mention, in passing, that, some of the five (5) grounds of appeal are repetitive and inconcise. They do not meet the threshold set by Rule 44.

As the issue was not raised with the parties at the hearing of the appeal, it shall not be considered in the determination of the appeal.

From the grounds of appeal and submissions made by counsel only one issue commends itself for determination in this appeal: it is whether the court a quo properly exercised its discretion in granting the application for dismissal for want of prosecution.

At the commencement of the hearing, counsel for the appellant submitted, that, while not abandoning grounds of appeal 1, 4 and 5 for which he stood by heads of argument filed for the appellant, he would motivate the appeal on grounds of appeal 2 and 3. In his view, those two (2) grounds are dispositive of the appeal. In fact, ground 3 is in the alternative to ground 2.

Counsel for the appellant submitted, that, there are three (3) factors which are relevant in considering an application for dismissal of an application for want of prosecution in terms of the old Rule 236(3) or (4) of the High Court Rules. These are:

(a) The length of the delay and the explanation for it;

(b) The prospects of success on the merits; and

(c) The balance of convenience and the possible prejudice to the applicant caused by the delay.

He relied on the authority of Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16.

It was submitted, that, when deciding the matter, the court a quo only considered the reasonableness of the explanation for the delay. Upon concluding that it was insufficient, the court a quo promptly granted the application without more. It did not consider the remaining two (2) relevant factors to be taken into account in exercising its discretion. For that reason, the judgment of the court a quo should be interfered with.

Per contra, counsel for the respondents submitted, that, grounds of appeal 2 and 3 raise brand new points of law not placed before the court a quo, without justification.

She submitted, that, even the case law authority relied upon by the appellant was not placed before the court a quo. Counsel suggested, that, the appellant cannot be allowed to do so as those points were not pleaded.

Counsel for the respondents submitted further, that, even were one to consider the two (2) factors to be taken into account by the court before exercising its discretion to grant or dismiss an application for dismissal for want of prosecution, the onus to set those out is on the appellant, who was the respondent a quo. It is him, according to counsel, who should show the prospects of success of his application and the absence of prejudice over and above providing a reasonable explanation for the delay.

Counsel for the respondents also made the point, that, the filing of an answering affidavit and heads of argument in the main case, by the appellant, was of no moment. He was precluded from doing so upon receiving the application for dismissal for want of prosecution.

In making that submission, counsel relied on the authority of the High Court judgment in Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H).

In Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H) the High Court remarked…,;

“The respondent suggests, that, because it filed an answering affidavit and caused the application for upliftment of bar before this application was dealt with, this application has been overtaken by events.

Rule 236(3) does not state so.

It is not a defence for a respondent who has been served with an application for dismissal for want of prosecution to plead that he subsequently made arrangements for the application to be set down.

Once a litigant has been served with an application for dismissal in terms of Rule 236(3), he cannot file any other process in pursuance of the proceedings under scrutiny. The application for dismissal has to be dealt with first. Once an application for dismissal for want of prosecution has been filed, it must be determined on the merits unless it is withdrawn or the bar is uplifted by consent.

If the courts were to allow a respondent who has failed to comply with the requirements of Rule 236(3)(b), to jump and set down the application complained against to defeat the application for dismissal, this would be tantamount to the courts allowing respondents to pull the carpet from under the feet of applicants.

The action that a respondent takes after an application for dismissal has been made is of no consequence. The only option open to him is to oppose the application for dismissal and let it be dealt with on the merits.”

Unfortunately, the High Court did not cite any authority for the above proposition.

In fact, one of the authorities cited in that judgment is Ndlovu v Guardforce Investments (Pvt) Ltd & Ors 2014 (1) ZLR 25 (H), a judgment which is of no consequence.

More importantly, as shall be seen shortly, the pronouncement by the High Court cited above, sought to overturn the judgment of the Supreme Court in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16.

Rule 236(3) of the High Court Rules (now Rule 59(15) of the High Court Rules 2021) does not set out the factors to be considered by a judge or the court on an application for dismissal for want of prosecution.

CHIDYAUSIKU CJ, however, set out those factors in the case of Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16, at pp5-6, as:

“The discretion to dismiss a matter for want of prosecution is a judicial discretion, to be exercised taking the following factors into consideration -

(a) The length of the delay and the explanation thereof;

(b) The prospects of success on the merits;

(c) The balance of convenience, and the possible prejudice to the applicant caused by the other party's failure to prosecute its case on time.

Dealing with the delay and the explanation for the delay, there is no doubt that there was a delay in this matter.

However, the delay and the explanation thereof in this matter, alone, cannot form the basis for the dismissal. The other factors should also have been considered in determining whether or not to dismiss the application for rescission for want of prosecution. This is a serious misdirection.”…,.

Later in that page, going on to p7, the learned Chief Justice went on to state:

“There is no rule of law which barred the appellant from proceeding with its application for rescission of the default judgment despite the making of the application for dismissal for want of prosecution.

In fact, under Rule 236 of the High Court Rules, when faced with an application for dismissal of an application, the High Court is enjoined to consider options other than dismissing the application for want of prosecution.

The fact that the appellant sat around and did not attend to the setting down of the application for rescission of the default judgment is a factor that weighs against the appellant.

If anything, the chamber application ought to have triggered the appellant to attend to the finalization of the application for rescission of the default judgment. The only way the appellant could have shown that it was serious about the application for rescission was to proceed to have the matter set down after it was served with the chamber application for dismissal for want of prosecution.”…,.

See also Mashangwa & Anor v Makandiwa & Ors SC95-21.

In my view, this completely resolves the present appeal.

The jurisprudence coming out of this Court is completely at variance with that of the High Court.

The judgment in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16 was delivered on 31 May 2016. The one in Melgund Trading (Pvt) Ltd v Chinyama & Partners 2016 (2) ZLR 547 (H) was only delivered on 16 November 2016 - at a time when this Court had already set out the law.

The High Court was bound, by virtue of the stare decisis principle, to follow the judgment of this Court in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16.

See Commercial Farmers Union v Mhuriro & Ors 2000 (2) ZLR 405 (S)…,.

By the same token, the court a quo in the present case was bound to follow the requirements set out in Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16 when it exercised its discretion to dismiss the appellant's application for want of prosecution.

It did not.

Instead, the court a quo only considered the extent of the delay and the reasonableness of the explanation for it. It ignored the prospects of success on the merits and the balance of convenience or prejudice.

By the authority of Guardforce Investments (Pvt) Ltd v Ndlovu & Ors SC24-16, this was a misdirection.

This Court is, therefore, at large on appeal.

The appellant appealed to this Court on five (5) grounds of appeal most of which attacked the factual findings of the court a quo instead of the law as required by section 92F(1) of the Labour Act [Chapter 28:01].

After initially reserving its judgment at the end of the hearing in this matter, the court later allowed the appeal and issued the following order;

“1. The appeal be and is hereby allowed with costs.

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

(1) The first respondent and all persons claiming occupation rights, title and interest through him, shall remove or cause the removal of themselves and all such persons occupying the mining claim, Tigress, held under registration number 10098BM and as identified by the second respondent.

(2) Failing such removal, the Sheriff of Zimbabwe be and is hereby authorised and directed to evict the first respondent and all those claiming occupation, rights, title and interest through and under him from mining claim being Tigress number 100098BM as identified by the second respondent.

(3) The first respondent and all those claiming with or through him are barred from carrying out any mining activities on the mining claim Tigress registration number 10098BM.

(4) The first respondent is ordered to pay the costs of suit on an attorney and client scale.”

The court indicated that full reasons for the judgment would follow in due course. These are they.

This appeal is against the entire decision of the High Court handed down on 31 March 2022 in which the court dismissed the appellant's application for a spoliation order against the respondents.

The appellant and the first respondent have engaged in a litany of disputes in the court a quo, all related to their respective entitlements to the mining claims that they operate on. The two mining claims are situate in Insiza District, Matebeleland South and are adjacent to each other. The appellant is the holder of mining claims known as Tigress, while the first respondent has been conducting mining operations on claims known as Lion West 25.

Sometime in 2021, a boundary dispute arose between the appellant and the first respondent.

The former alleged that the latter had encroached onto its mining location and proceeded to mine gold ore, thereby depleting the finite resource on its mine. At the time that the boundary dispute arose, the first respondent had amassed a substantial amount of gold ore which was stockpiled on the part of the appellant's claim that he was accused of encroaching onto.

In disputing the allegations of encroachment onto the appellant's claim, the first respondent insisted that he had been carrying out mining operations on his mining claim, that is Lion West 25, for the past 17 years without interruption and that no encroachment had taken place.

On 8 March 2021, the second respondent (Provincial Mining Director, Matebeleland South) wrote to the parties to the effect that after attending at the disputed claims to ascertain the co-ordinates of the parties mining claims, as ordered by the High Court at the instance of the appellant (HC276/21), his finding was that the first respondent had indeed encroached onto the appellant's mining claim.

The second respondent went on to direct the first respondent to vacate the appellant's claim and revert to his own coordinates.

The latter did not comply, prompting the appellant to later on request the second respondent's intervention.

The second respondent subsequently advised the appellant of his failure to prevail upon the first respondent to vacate the part of the appellant's claim that he had encroached onto. He consequently suggested that the appellant could seek an interdict against the first respondent, from the court a quo, since the court was already seized with the matter.

It is pertinent to note that both the appellant and the first respondent attended at the mining claims together with the second respondent, in compliance with the order of the court.

An interdict sought by the appellant was subsequently granted against the first respondent under case number HC884/21. This was after the first respondent, who had consented to the provisional order sought against him, failed to oppose the confirmation of the final order interdicting him from further encroaching onto the appellant's claim.

Faced with imminent eviction from the appellant's claim, the first respondent sought to have the interdict rescinded but later withdrew the application. This circumstance led to the enforcement of a Warrant of Ejectment by the Deputy Sheriff that saw the first respondent being evicted from the part of the appellant's claim onto which the encroachment had taken place.

The appellant submits that this action, conducted by the Deputy Sheriff on 1 February 2022, restored it to its peaceful and undisturbed possession of the disputed part of its claim, as well as the stockpiles of gold ore that the first respondent had 'unlawfully' extracted therefrom.

The appellant further averred, that, on 16 February 2022, the first respondent recruited a mob of about twenty (20) men who forcibly removed it and its workers from the same portion of its mining claim from which the first respondent had been evicted barely two weeks earlier.

It is not disputed that the first respondent, thereafter, and despite the presence of the police to whom the appellant had appealed for assistance, loaded and removed around 400 truckloads of gold ore from the same stockpile that he had left on the disputed part of the appellant's claim upon his earlier eviction therefrom.

The estimation of the quantity of the gold ore carried away by the first respondent was given in a sworn statement deposed to by an eye witness to the event.

The appellant claims that the first respondent thereafter took the gold ore to a stamp mill.

In evicting the appellant and its workers from the same place that he had been evicted from two weeks earlier, the first respondent acted on the strength of a spoliation order granted against persons other than the appellant, on 16 February 2022, in case no HC190/2022.

The appellant's workers, who had earlier been served with a copy of the court order in question, correctly pointed out, firstly, that the order was issued in a matter in which the first respondent had not cited the appellant, but other parties unknown to it, and therefore having no connection to the appellant's claim.

Secondly, that the order related to the first respondent's mining claim Lion West 25, and not Tigress, the appellant's claim from which the first respondent had earlier been evicted.

The appellant submits further, that, the invasion of and eviction of its workers from the disputed part of Tigress, its claim, had been carried out without the assistance of the Deputy Sheriff of Zimbabwe, and so was a case of self-help by the first respondent.

It then emerged, that, unbeknown to the appellant, the first respondent, after being evicted from the appellant's claim, had successfully filed an urgent application for spoliation against parties other than the appellant.

It is also evident from the order in question, that it was granted in default, as those cited as the perpetrators did not appear in court.

The appellant wrote urgent letters of protest to the first respondent's legal practitioners, urging them to stop the first respondent from invading its claim under the guise of enforcing a spoliation order that in any case, did not cite the appellant as a respondent.

The appellant received a delayed response denying that the first respondent had despoiled the appellant of any part of its mining claim.

The first respondent echoed this denial in his defence to the spoliation proceedings in casu.

While not expressly disputing that the appellant had not been cited as a party to the proceedings in HC190/22, he denied that any violence had been perpetrated against the appellant's workers.

His contention was that all he had done was to obtain an order to evict persons who had violently taken over his own mining claims. Further, that the removal of such invaders from his claims was therefore properly orchestrated, the order in question having restored Lion West 25 claims into his possession.

The first respondent reiterated that he was still operating from the same mining location he had been working on since 2005.

The first respondent advanced the further defence, that, in any case, it was trite law that the holder of base metal registration certificates, such as the appellant, could not seek to interfere with the exclusive gold mining rights that he himself held. That being the case, he further contended, he had applied for a declaratur under case number HC373/2022, which was still pending before the court.

He did not articulate a response as to why he had acted on the basis of a court order not issued against the appellant, nor concerning its mining claim, to access its claim, and cart away the very same mining ore that he had been prevented from taking away upon his eviction from what was ruled to be a part of the appellant's mining claim.

In determining the merits of the matter, and after properly citing the law on spoliation, the court a quo found, that, the appellant had failed to satisfy the essential elements for the relief of the spoliation order that it sought.

This, so the court reasoned, was because the appellant and the first respondent had competing interests in the mining location in question, and, further, that the former had not shown by clear proof that it was forcibly dispossessed of the disputed part of the alleged mining claim.

The court found, that, the appellant held certificates to base minerals and had been extracting nickel on its own claims. On the other hand, the first respondent had exclusive gold mining rights and had been extracting gold ore at its mining location for close to 20 years.

The court found, further, that the parties mining rights were mutually exclusive.

Having opined that the matter concerning the determination of those mining rights was not before it, the court a quo noted that the first respondent was in any case armed with an extant order of the court (HC190/22) in terms of which Lion West 25 mining location was restored to him.

The court did not advert to the order, also extant and coincidentally issued by the very same judge, in terms of which the first respondent had earlier been evicted from the same claim from which he had evicted the appellant and its workers. Nor did the court comment on the propriety or otherwise of the situation where an order authorising the eviction of persons other than the appellant from the first respondent's mining claim, Lion West 25, was used to evict the appellant from its own claim, Tigress.

Be that as it may, the court ultimately found against the appellant and dismissed its application for a spoliation order.

Irked by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

“1. The court a quo erred and contradicted itself in holding, that, the appellant had not established a clear right for the grant of a mandament van spolie on the basis that appellant and first respondent had competing interests in the mining location in question;

2. The court a quo erred and grossly misdirected itself in finding that appellant had failed to satisfy the elements for the grant of a mandament van spolie on the basis that appellant had not shown clear proof that it had been forcibly deprived of possession when the evidence presented showed a contrary position.

3. The court a quo erred grossly in failing to find that the appellant had been unlawfully or wrongfully deprived of possession when the evidence from the first respondent clearly confirmed that he had dispossessed the appellant by taking the law into his own hands.

4. The court a quo erred in law in holding that appellant had failed to show 'clear proof” that it had been despoiled when the law only requires a party to show proof on a balance of probabilities.

5. The court a quo erred in holding appellant had not shown a clear right for the relief sought on the basis that there was an extant order of court under HC190/22 restoring Lion West 25 mine to 1st respondent when in fact the spoliation complained of took place at a different location, being Tigress Mine, and the cited parties were distinct from appellant.

6. The court a quo erred and grossly misdirected itself in failing to acknowledge that there was an extant order of court under HC884/21 which had already determined the boundaries of appellant's mines and further caused the vacation of first respondent from the appellant's mine.”

There is no dispute between the parties, nor between the parties and the court a quo, as to the essential elements and import of an order of mandament van spolie. This is evidenced by the citation of apposite authorities by both parties and the court.

The point of departure, as is clear from the evidence, was the application of the principles of spoliation, established in the cited authorities, to the facts of the matter before the court.

The court a quo, in its judgment, appositely cited the following passage from the case of Diana Farm (Pvt) Ltd v Madondo N.O. & Anor 1998 (2) ZLR 410 (H)…,.;

“The law relating to the basis on which a mandament van spolie will be granted is well settled. In Davis v Davis 1990 (2) ZLR 136 (H) at 141, Adam J quoted with approval the following statement by Herbstein J in Kramer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C) at 753:

'…, two allegations must be proved, namely:

(a) That applicant was in peaceful and undisturbed possession of the property; and
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.'…,.

The onus is on the applicant to prove two essential elements set out above. Past the second element is lack of consent.

In Botha & Anor v Barrett 1966 (2) ZLR 73 (S) at 79-80, it was said by Gubbay CJ:

'It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are;

(a) That the applicant was in peaceful and undisturbed possession of the property;
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.'”

These excerpts need no elaboration as they clearly postulate the law on spoliation.

The facts of the matter that are not seriously disputed, are salient, or based on cogent documentary evidence comprising court orders, co-ordinates, maps, and sworn affidavits, are the following;

(i) Pursuant to a dispute between the parties concerning the coordinates of their adjacent mining claims, the court a quo, at the instance of the appellant, ordered the second respondent, together with the parties, to attend at the disputed claims and ascertain the parties respective co-ordinates (HC276/21).

(ii) The second respondent thereafter determined, that, the first respondent had indeed encroached onto the appellant's claim, Tigress, but his direction to the former to vacate the area encroached upon was defied. The first respondent continued extracting gold ore from the appellant's claim;

(iii) The appellant thereafter successfully obtained a final order interdicting the first respondent from further encroaching onto its location and mining ore from it (HC884/21). Execution of this order by the Deputy Sheriff resulted in the first respondent being evicted from the disputed part of the appellant's mining claim, leaving behind the stock piles of gold ore that it had mined from it;

(iv) The effect of the first respondent's eviction from Tigress was to restore the appellant to full possession thereof, including control of the gold ore previously extracted by the first respondent;

(v) Sixteen days later, on the basis of a spoliation order in HC190/22, obtained by the first respondent against persons unknown to the appellant, and concerning the first respondent's claim, Lion West 25, not Tigress, a gang of some 20 people forcefully dispossessed the appellant's workers of the part of the appellant's claim from which the first respondent had been evicted.

(vi) This included substantial amounts of the gold ore that was stockpiled at the location, which, on the instruction of the first respondent, was carted away in truck loads.

(vii) Efforts by the appellant to get the first respondent to desist from despoiling it thus yielded no results, leading to the unsuccessful filing by it of the urgent application in casu for spoliation against the first respondent.

From the facts of the matter as outlined, the sole issue arising for determination in this appeal, in the court's view, is the following:

The court will now consider this issue.

The appellant contends, in its heads of argument, that, the court a quo erred in three main respects:

(i) Firstly, although accepting that in spoliation proceedings the substantive rights of the parties are not relevant, since the court is only concerned with the restoration of the status quo ante, it nevertheless went on to improperly determine that there were “competing interests” in the mining location in question.

(ii) Secondly, that, on the basis of those competing interests, the court a quo held that the appellant had failed to establish a clear right to an order for spoliation.

(iii) Thirdly, that, the court erred in failing to acknowledge that there was an extant order of the same court under HC884/21 which had already determined the boundaries of the appellant's mining location, and, further, led to the eviction of the first respondent therefrom.

This court finds that there is merit in the appellant's contentions, as the following excerpts from the court's judgment make abundantly clear;

“Applicant alleges that the order was served on certain individuals not connected to it. I am mindful of the fact that the facts disclose competing claims over the mining locations of the respective parties. In spoliation proceedings the court does not concern itself and must not delve into the substantive rights of the parties. The simple point made is that there are competing interests. The applicant does not have a clear right to an order for a mandament van spolie. The alleged spoliation is denied.”...,.

Later in the same judgment, specifically the Disposition, the court stated as follows;

“The point was made that applicant holds certificates to base minerals and has been extracting nickel on its own. First respondent has been extracting gold ore on its mining location for close to 20 years. The mining rights of the parties are mutually exclusive....,.

To the extent that first respondent is armed with an extant order of this Court which has not been set aside, under case number HC190/22, wherein Lion West 25 mining location was restored to first respondent, Applicant has not established a clear right for an order for a mandament van spolie....,.”

The excerpts cited above, which in effect constitute the ratio decidendi of the judgment of the court a quo in dismissing the appellant's application for a spoliation order, serve to illuminate the court's misdirection in its determination of the matter before it.

On the basis of the court's own correct interpretation of the requisite law on spoliation, an applicant must prove;

(i) That the he or she applicant was in peaceful and undisturbed possession of the property; and

(ii) That the respondent deprived him or her of the possession forcibly or wrongfully against their/his consent.

Instead of applying the law to the proven facts of the case, the court did exactly as it had noted should not be done, that is, concern itself with the substantive rights of the parties.

Competing interests, in the court's view, go to the root of the dispute concerning the parties rights or lack thereof, in the subject of the dispute. Their existence may in fact properly found an application for a determination on the substantive rights of the parties to or in the subject matter of the dispute.

In other words, the type of application for a declaratur, that the first respondent submits it has already filed with the court in HC373/22.

The law, as cited above, is clear that spoliation is concerned only with restoring the status quo ante pending a determination on the merits of the main dispute between the parties.

The existence or otherwise of competing interests in the subject matter of the dispute was therefore, in casu, not relevant to a decision on whether or not spoliation had taken place.

In the same vein, the court delved into matters concerning the parties substantive rights by declaring that such rights were 'mutually exclusive.'

Based on the same reasoning, the court also held, that, as the first respondent had regained possession of his mining location pursuant to HC190/22, the appellant had not established a clear right to the spoliation order that it sought.

It is thus evident, that, in order to reach its determination in casu, the court a quo went beyond the parameters constituting just cause for a mandament van spolie.

Its pronouncements in this respect had the effect of pre-judging the application said to be pending before the same court, for a declaratur in HC373/22, concerning the parties substantive rights in the disputed mining claim.

Alternatively, the court may have improperly traversed and ruled on issues already determined in the proceedings leading to the final interdict issued against the second respondent in HC884/21. Not having been rescinded or appealed against, this order has final effect.

The court a quo did this in circumstances where the applicant had not, and properly so, founded its claim for spoliation on any other ground except that it had been wrongfully and forcibly despoiled of its peaceful and undisturbed possession of the mining claim in question.

In this respect, the Court finds no merit in the contention by the first respondent, that, the court a quo dismissed the appellant's application, not because of the existence of the competing interests or the mutual exclusivity of their mining rights that it referred to, but, on the basis that the appellant had not established a clear right to the spoliation order that it sought.

This submission, in the Court's view, misses the point that it is not necessary, in spoliation proceedings, for one to establish a clear right.

Further, that in spoliation proceedings, the court is not called upon to consider or make a pronouncement on the existence or otherwise of the parties competing or mutually exclusive interests in the object of the dispute - much less base its decision on such a pronunciation. That pronouncement should properly be left to any subsequent proceedings in terms of which the parties substantive rights would be determined.

This position is clearly articulated as follows in HERBSTEIN & Van WINSEN “The Civil Practice of the Supreme Court of South Africa, 4th Ed...,.:

“A mandamente van spolie is a final order although it is frequently followed by further proceedings between the parties concerning their rights to the property in question. The only issue in spoliation applicant whether there has been a spoliation. The order that the property be restored finally settles the issue between the parties.”...,.

Accordingly, the finding by the court a quo that the appellant had not established a clear right to a mandament van spolie due to (i) the existence of competing interests and (ii) the fact that the parties rights in the disputed mining claim were mutually exclusive; was both wrong at law and a misdirection which cannot be allowed to stand.

More damning is the court a quo's improper reliance on an order in favour of the first respondent, which concerned neither the appellant nor its mining location, to reach the finding that the appellant had failed to prove a case for the mandament van spolie that it sought against the first respondent.

The reliance on that order in HC190/22 was non sequitur and thus improper.

As a fact relevant to the proper determination of the spoliation proceedings before the court a quo, the appellant submits in any case, that, the issue of any competing interests in the disputed location had already been put to rest.

This was supported by the court order which resulted in the eviction of the first respondent and also by ample documentary evidence on record showing that the co-ordinates and boundaries of the parties mining locations had been determined by the second respondent in the presence of both the first respondent and the appellant's representatives.

Further, that on the basis of these reports, whose existence the first respondent did not dispute, and which remained extant since they had not been set aside, all doubt was removed as to the reality of the first respondent's encroachment onto the appellant's Tigress mine.

That being the case, the first respondent, who was thereafter directed to revert to his own Lion West 25 claim, should not have openly defied that directive and continued to mine and stockpile gold ore on the appellant's claim.

The Court thus finds, on this basis, that the first respondent's defiance of the directive to vacate the appellant's location was done with full knowledge that he was forcefully working on the appellants claim, not his.

The first respondent's defiance was further compounded by the fact that he continued mining on the appellant's claim even after the latter obtained a final order under HC884/21 interdicting him from further encroaching onto and mining from the appellant's location. The continued defiance of even this order led to him finally being evicted by the Deputy Sheriff from the appellant's mining location.

It is pertinent to note, that, the order was extant at the time the court a quo heard and determined the application in casu and remains extant to this day. Significantly, the order was extant at the time of the alleged spoliation.

The facts outlined in paragraph 15 above are what the court a quo should properly have taken into account in determining the first of the two issues that the applicant before it was enjoined to prove ie: that it was in peaceful and undisturbed possession of the property when it was despoiled.

Had the court done so, it would perforce have had to accept as proved (since the documentary and actual evidence to that effect was not challenged or disproved) that, indeed, the appellant was in peaceful and undisturbed possession of its claim, Tigress, until the events leading to the alleged spoliation took place.

It was, in the court's view, somewhat of a puzzle that despite full evidence establishing these facts having been tendered before it, the court, in its judgment, totally disregarded it.

The evidence crucially included the learned judge's own earlier judgment in HC884/22, interdicting the respondent from further encroaching onto the appellant's claim.

Instead, the court placed reliance for its determination in casu, on a judgment (HC190/22) in favour of the first respondent that neither cited the appellant nor was concerned with its claim, Tigress.

The second factor that the appellant had to prove in its application for a spoliation order against the first respondent was that it was wrongfully or forcefully, and against its consent, deprived of its possession of the mining claim in question.

The court a quo did not directly address the evidence adduced by the appellant in this respect. Had it done so, it would have found that the appellant had indeed proved its case in so far as that issue was concerned.

It is not in dispute, that, in its application for a mandament van spolie (HC190/22), the first respondent cited persons unrelated to the appellant and having no connection with Tigress. The proceedings in question culminated in an order granted in default of appearance by the alleged despoilers of the first respondent (HC190/22).

It has already been noted, that, the warrant of ejectment thereafter obtained by the first respondent in terms of this order, was, firstly, and with no explanation, served on the appellant's workers at Tigress, and then unlawfully used by the first respondent, and not the Sheriff, with the aid of some 20 or so persons, to evict the appellant's workers from its claim.

It is pertinent to note that the first respondent, who in reality could not dispute obtaining the inapplicable order in question, or its service on the applicant's workers, offered a bare denial to the assertion that violence had been employed and threatened against the appellant's workers by the 'mob'of 20 or so persons.

This, in effect, was an admission that such a mob did illegally invade the appellant's claim.

The respondent's repeated defence to the spoliation proceedings against him, which the court accepted, was that:

(i) He had been mining on his claim, Lion West 25, for over 17 years without disturbance, and the appellant, who was the holder of certificates to base minerals and has been extracting nickel on its own claims, did not have the right to interfere with his operations;

(ii) That, he was properly armed with an extant court order (HC190/22) which he had used to secure the restoration of his mining claim, Lion West 25, which he had been despoiled of; and

(iii) In relation to the admitted self-help in re-possessing the appellant's claim after evicting them therefrom, that his alleged despoilers had voluntarily left his mining claim, a circumstance that rendered nugatory the services of the Deputy Sheriff.

What is immediately evident from the defence proffered by the first respondent is that he does not dispute the essential elements of a mandament van spolie that the appellant relied on for its claim, that is;

(i) That, it was in peaceful and undisturbed possession of its claim, Tigress, courtesy of the court order in HC884/21 and his consequent eviction therefrom by the Deputy Sheriff on 1 February 2022; and

(ii) That, on the strength of a court order and warrant of ejectment in HC190/22, which neither cited the appellant nor was related to its claim, Tigress, the first respondent, with the aid of a gang of some 20 people, forcibly evicted the appellant's workers from Tigress; and

(iii) That, having done so, the first respondent promptly commenced an operation that lasted many hours, to load and drive away around 400 truckloads of gold ore from the stockpile that he had been forced to leave behind upon his eviction from Tigress by the Deputy Sheriff.

The 'defence' that the first respondent put up was thus, in the court's view, and given the evidence before it, nothing short of a red herring:

Firstly, it ignored the fact that while he may indeed have been mining for 17 years on what he believed to be his mining claim, Lion West 25, a delineation of the boundaries of the parties claims had revealed that he had been encroaching onto the appellant's claim all that time.

Secondly, the fact that he had wrongfully mined gold ore on the appellant's claim for a long time did not legitimise his encroachment onto the appellant's location.

The same defence repeatedly referred to an order obtained in a matter between the respondent and persons other than the appellant, as the basis for despoiling the latter of its lawful possession of the disputed mine location.

As for the self-help resorted to in this respect, the first respondent does not explain why, following the supposed voluntary departure of his alleged despoilers from his mining claim, he then turned his attention to a different mining claim, the appellant's, and different 'despoilers.'

Having enlisted the services of 20 or so persons, violence or the threat of violence, was then used by them to drive the appellant's workers off their mining location.

How the first respondent, and, for its part, the court a quo, could have conflated matters in this manner beggars belief.

Realistically, therefore, given these circumstances, the appellant's cause of action in the proceedings a quo, as well as the evidence supporting it, were not challenged or disproved.

The court a quo should have accepted, that, for all intents and purposes the appellant did prove its case against the first respondent, that is, that he deprived it of its possession of the claim, Tigress, forcibly or wrongfully against its consent.

What can reasonably be deduced from the first respondent's conduct is that he wished to continue mining gold ore on the appellant's mining location at any cost and against all possible odds. He thus defied orders to vacate the disputed part of the appellant's claim despite the co-ordinates and boundaries having been properly, and in his presence too, delineated. He went on to defy a provisional court order that he had himself consented to, and continued to do so even after the interdict against him was confirmed.

Realising that he had irretrievably lost the chance to have the order in HC884/21 set aside, the first respondent, it seems, decided to change tactics.

There is little doubt that this was driven by his continued desire to mine gold ore from the appellant's mining claim, Tigress.

As has been established by the evidence before the court, the first respondent's changed tactics entailed the successful filing, some two weeks after his eviction from Tigress, of the urgent spoliation proceedings against persons totally unrelated to the appellant, and its claim, Tigress.

Armed with the court order granted in this case, HC190/22, the first respondent, in an act of self help, and aided by a group of some 20 or so persons, executed the order on a location (Tigress) and against persons totally different from those cited in the case in point.

Given this conduct, the court's view is that it is not unreasonable of the appellant to conclude that the proceedings under HC190/22 were 'nicodimusly' instituted for the sole purpose of circumventing the order in HC884/21, and its effect, in order to give the first respondent's re-invasion of the appellant's claim some semblance of legitimacy.

The first respondent, and the court a quo in upholding the first respondent's defence, seem to have missed the point that an earlier, extant order of the court, and its import, could only be circumvented on the basis of the law and procedures specially laid down for that purpose and properly applied.

Crucially, it was important for the first respondent to appreciate that it is not legally permissible for one to take the law into their own hands in order to regain possession of a location from which one was legally evicted.

The fact that all this was done under the guise of enforcing an order of the court, when such order was totally unrelated to the location in question, and its legal occupier, only served to compound the impropriety of the first respondent's conduct.

The whole exercise, taken as whole, smacks of a deliberate scheme to subvert and abuse court processes in order to achieve an end that was palpably unlawful and prejudicial to an opponent who was only trying to protect its own property.

The court frowns upon such conduct.

Additionally, the Law Society of Zimbabwe may rightly be concerned that the first respondent was legally represented in all processes filed on his behalf in securing the order in HC190/22, and in having it executed against a person neither cited in the case nor occupying the property cited therein.

Against this background, it is in the Court's view quite ingenious of the first respondent to steadfastly cling to the mantra, that, all it had done was to ensure the eviction from his own mining claim, Lion West 25, of those who had invaded and wrongfully despoiled him.

The first respondent made this assertion without explaining how it was that the only eviction that had taken place was of the appellant's workers who were peacefully in occupation of the appellant's claim.

It is also quite confounding that the court a quo accepted the totality of the first respondent's defence, and premised its determination of the matter before it, thereon. This was after the court turned a blind eye to the reality that the spoliation in question had occurred not at the mining location cited in HC190/22, but on the appellant's mining claim.

The upshot of all this is that the court, for all intents and purposes, treated the matter before it as if it was the first respondent, rather than the appellant, who had presented his case for spoliation against the appellant.

The court a quo's misdirection in this respect cannot be gainsaid.

In view of the foregoing, the Court found that the appeal had merit, and, consequently, that the entire order sought by the appellant a quo should have been granted.

As the evidence before the court has demonstrated, the court a quo failed to properly determine the application for a mandament van spolie that was before it.

Accordingly, the Court granted the order cited at the beginning of this judgment.

Dismayed by the respondent's outright refusal to deliver to it outstanding fuel in terms of an agreement of sale entered into between the parties, the appellant filed a claim for specific performance in the High Court (“the court a quo”).

The appellant sought judgment compelling the respondent to deliver 120,000 litres of diesel purchased from the respondent.

By judgment delivered on 31 March 2021, the court a quo dismissed the claim and issued the following order:

“Accordingly, I order as follows:

1. The plaintiff's claim is dismissed.

2. The contract entered into between the parties, whereby the plaintiff purchased 150,000 lrs of fuel from the defendant, be and is hereby cancelled.

3. The defendant be and is hereby is (sic) ordered to pay the plaintiff the sum of $159,300 representing the plaintiff's partial performance of the contract.

4. The plaintiff be and is hereby ordered to pay the defendant's costs of suit.”

This is an appeal against that whole judgment of the court a quo.

The background facts are largely common cause.

The appellant is a transporter of note while the respondent is a fuel monger. They have a long standing business relationship whereby the respondent has been supplying the appellant with bulk fuel over the years.

On 1 November 2018, the parties entered into a sale agreement in terms of which the respondent sold and the appellant purchased 150,000 litres of diesel.

On 2 November 2018, the appellant paid the purchase price of $201,000 in terms of the invoice presented to it by the respondent but did not take delivery of the diesel in question. In fact, it was not until 28 November 2018 that the respondent delivered only 30,000 litres of the diesel on the instructions of the appellant.

This left a balance of 120,000 litres of diesel which is the subject of the present litigation involving the parties.

Problems started in January 2019 when three events occurred in quick succession:

(i) First, the Minister of Finance and Economic Development gazetted the Customs and Excise (Tariff) (Amendment) Notice (No.7, 2019) as S.I. 9 of 2019. The Statutory Instrument came into operation on 13 January 2019. It was enacted to amend Part II of the Second Schedule of the Customs and Excise (Tariff) Notice, 2017 which was published in Statutory Instrument 53 of 2017.

(ii) Second, and subsequently to that, the Petroleum (Petroleum Products Pricing) Regulations S.I.10 of 2019 were gazetted. Section 3 thereof made it clear that they applied to “petroleum products prices in relation to wholesaling and retailing activities.” Section 5 provided the formulas that were to be applied by the Zimbabwe Energy Regulatory Authority (“ZERA”) in calculating the price of any petroleum product.

It is significant to note, that, the amount of duty imposed by S.I 10 of 2019 appears to have been equivalent to the amount fixed by S.I 9 of 2019, which, as I have stated, specifically stated that it came into operation on 13 January 2019 without in any way suggesting that it had retrospective effect.

(iii) Third, and obviously in response to the imperatives of the Statutory Instruments referred to above, the Zimbabwe Energy Regulatory Authority (ZERA) issued a directive requiring all oil companies to declare their fuel stocks as of midnight on 12 January 2019. The directive was contained in a circular dated 17 January 2019 which reads in relevant part:

“RE: DECLARATION OF OIL COMPANY FUEL STOCKS AS OF MIDNIGHT 12TH JANUARY 2019

Pursuant to the meeting held at the Ministry of Finance on the 16th January 2019 between Ministry of Energy and Power Development, Ministry of Finance, Zimbabwe Energy Regulatory Authority and Oil Companies, the authority requires that Oil Companies declare the details of the following:

1.0 Stockholding of diesel, petrol and paraffin held by the Oil Company at depot or at NOIC (old duty paid) as of midnight 12th January 2019 before the new pricing (Statutory Instrument 10 of 2019) came into effect.

2.0 Outstanding coupons (yet to be redeemed) as of midnight 12th January 2019, indicating products, category of customers, volumes and value, as well as special conditions attaching to coupons.

Oil Companies are further advised that they are required to pay the difference in duty between the old duty and new duty to ZIMRA on the stock referred to in 1.0 as the fuel will be sold in terms of S.I 10 of 2019.”…,.

Following these developments the appellant moved quickly.

On 24 January 2019, it demanded the immediate delivery of the balance of 120,000 litres of diesel.

The respondent was unmoved.

Citing an increase in duty, the respondent refused to deliver until the appellant paid additional duty on the outstanding diesel.

By email of 24 January 2019, the respondent tabled three options available to the appellant. The respondent wrote:

“…, we wish to provide you with below three options.

1. Lonrho pay the difference of duty amounting to $1=65.

2. Lonrho can draw down at the current price of fuel to exhaust your prepayment with us.

3. RAM Petroleum can refund Lonrho the total amount prepaid.”

The appellant would have none of it.

Calling the respondent's proposal “nonsense” it emotionally put its case across that the Zimbabwe Energy Regulatory Authority (ZERA) directive did not apply to the diesel that had already been sold.

With the battle lines drawn, the appellant enlisted the services of its legal practitioners whose letter of demand to the respondent yielded nothing.

On 7 February 2019, the appellant sued out a summons against the respondent seeking an order directing the respondent to deliver the outstanding diesel.

The claim was contested by the respondent.

In a long winding plea characterized by a number of alternative averments, the respondent pleaded the existence of a tacit term of the agreement that the appellant should have taken delivery within seventy two hours after effecting payment.

In addition, it asserted that section 230(1) of the Customs and Excise Act [Chapter 23:02] constituted an implied term that it was entitled to recover from the appellant any amount by which duty was increased.

Some of the pleas raised by the respondent related to fictional fulfilment of the contract in the sense that it had tendered delivery of the diesel which the appellant refused.

Also, that by failing to accept delivery, the appellant had repudiated the contract thereby entitling the respondent to cancel it and tender the sum of $159,300 being the difference.

Following a full trial, the court a quo found that the contract became perfecta when the parties agreed on the thing sold (the merx), the price (pretium) and showed they had the requisite animus to contract.

It was the court a quo's finding, that, the contract was perfected when the respondent accepted the payment for the 150,000 litres of diesel.

Regarding transfer of ownership of the diesel, the court a quo remarked:

“It is evident to me that in the present matter, transfer of ownership of the fuel in question happened by way of constitutum possessorium without actual delivery of the thing and by means of a mere change in the parties intention regarding animus domini. The change in animus in this matter repeatedly took place each time the plaintiff paid for the fuel and the defendant accepted payment for the fuel. By that exchange, the plaintiff acquired ownership in the fuel, when looking at the facts in the present matter means that ownership of the 150,000 litres transferred to the plaintiff in early November 2018.”

Notwithstanding those findings, the court a quo went on to find that the burden for paying for the increase in duty passed to the appellant.

Further, it found that by failing to accept delivery, the appellant repudiated the contract of sale.

In disposing of the matter, other than dismissing the appellant's claim, the court a quo also granted positive relief to the respondent, namely, the cancellation of the contract and the return of the purchase price paid by the appellant.

The appellant remained aggrieved. It noted this appeal on the following grounds of appeal:

1. Having come to the conclusion, that, the contract between the parties had become perfecta and ownership passed to the appellant, the court a quo erred in not concluding that provisions of Statutory Instrument 10 of 2019 were, on the circumstances of the matter, not engaged in that:

(a) The duty chargeable under and in terms of that Statutory Instrument was not meant to, and did not, affect transactions that had already been concluded.

(b) Respondent did not place before the court any evidence tending to show that it had been required to and had in fact paid additional duties on fuel already purchased by the appellant.

2. The court a quo erred, at any rate, in concluding that the increase of duty on future sales was a risk which the appellant was required to bear by operation of law.

3. Consequently, the court a quo erred in not finding that the respondent had breached the agreement between the parties by reason of its failure to deliver diesel that had been purchased by the appellant.

4. The court a quo seriously misdirected itself on the facts, such misdirection amounting to an error in law in not finding, at any rate, that there was no agreement between the parties on the delivery timelines and that the respondent had, at all times, been prepared to effect delivery of the fuel to the appellant.

5. The court a quo erred in granting the respondent positive relief on the basis of averments made in its plea.

The over-arching issue commending itself for determination from the foregoing grounds is whether the appellant's consignment of diesel was subject to additional duty under SI10 of 2019. Also, whether there were any timelines for the delivery of the diesel, and whether the court a quo erred by granting relief to the respondent.

Counsel for the appellant submitted that S.I.10 of 2019 was not applicable in the circumstances of this case, it having come into effect on 13 January 2019 and not having retrospective effect.

In counsel's view, and for that reason, the directive to oil companies given by the Zimbabwe Energy Regulatory Authority (ZERA) only applied to fuel that was still to be sold and not the fuel, like the 120,000 litres of diesel, that had already been sold.

The fuel that had already been sold could not be subjected to further taxation and did not carry such risk.

Counsel submitted, that, the respondent had no business subjecting the appellant's fuel to the directive issued by the Zimbabwe Energy Regulatory Authority (ZERA).

Regarding the applicability of section 230(1) of the Customs and Excise Act, counsel for the appellant took the view, that, the section was not engaged. There was no evidence, so it was argued, that the respondent had been requested to, and did pay, any additional duty as envisaged by section 230(1) of the Customs and Excise Act.

On repudiation, counsel for the appellant submitted, that, the court a quo's findings were not supported by any evidence at all. There was nothing in the conduct of the parties suggesting that delivery was to be made within 72 hours. Neither was there evidence of any delivery timelines or any tender of delivery.

Per contra, counsel for the respondent contended, that, the appellant's reference to S.I.10 of 2019 was not only a false premise, it was also irrelevant. This is because the additional duty was imposed by SI9 of 2019.

In counsel's view, it was a fallacy that the directive by the Zimbabwe Energy Regulatory Authority (ZERA) imposed a duty on fuel.

Counsel further contended, that, section 230(1) of the Customs and Excise Act constituted a term imposed by law which transferred liability to pay duty onto the appellant.

Finding it difficult to defend most of the findings made by the court a quo, which appeared contradictory, counsel for the respondent submitted that the court a quo arrived at a correct conclusion on wrong reasons.

Given that a party does not appeal against the reasons for judgment, so it was argued, the respondent could not do anything about the situation....,.

It is curious that the court a quo granted an order in favour of the respondent cancelling the sale and directing the respondent to refund the balance of the purchase price.

That relief was granted on the strength of a plea and nothing more. The respondent had not filed a counter-claim.

The point is made in Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Anor 2015 (2) ZLR 40 (S)…, that:

“A plea is a defence, and, as such, can be likened to a shield. It is not a weapon or a sword. No relief can attach to a party through a plea.”

Unfortunately, that is precisely what the court a quo granted in this case.

However just the court a quo may have considered the respondent's tender of the sum of $159,300 to be, it was plainly incompetent for it to ratify it through an unsolicited court order.

Doing so was a gross misdirection.

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 9 September 2020 in which it ruled that the arbitral award granted against the first respondent be set aside and the matter be referred to a different arbitrator.

The appellant and the first respondent entered into a consultancy contract which commenced on 1 January 2013 and was expected to terminate on 31 July 2013.

Although the contract was not signed by the first respondent, the parties were agreed that the contract regulated their relationship.

The purpose of the contract was to transform the appellant from being a building society into a commercial bank.

On 28 February 2013, the Managing Director of the appellant wrote a letter to the first respondent advising that it was not renewing the contract. It thus terminated the contract and tendered to pay the first respondent cash in lieu of notice.

Aggrieved by the contents of the letter, the first respondent referred the matter to arbitration.

The first respondent's contention before the second respondent (the arbitrator) was that the appellant had no right, in terms of clause 7.1 of the contract, to unilaterally, and without reason, terminate the contract. It argued, that, the appellant should have given it notice to cure the breach and/or an opportunity to defend itself.

It claimed that the contract should be reinstated failing which it be paid damages in the sum of US$1,744,451=50.

The appellant argued that it exercised its rights to terminate the contract on notice in terms of clause 7.1 of the contract. It argued that termination of the contract, in terms of clause 7.1, did not require the existence of a breach or fault as a pre-condition to invoke the clause. It further argued that it was therefore not obliged to justify or give the first respondent reasons for the termination.

The appellant further argued, that, the first respondent had breached the contract as it had failed to implement the project successfully within the agreed time frame and budget.

It contended, that, in order to mitigate its losses, it engaged another consultant to complete the project. It argued that it suffered contractual damages in the sum of US$1,648,169=91 as a result of the breach and filed a counterclaim for damages in the stated sum.

The appellant conceded, that, a monthly payment of US$23,517 for the month of March 2013 was due to the first respondent in terms of clause 4 of the contract.

The first respondent denied that it had breached any terms of the contract. It argued that the damages claimed by the appellant were wrongly calculated and incompetent.

The arbitrator made a finding, that, the termination of the contract was in compliance with clause 7.1 of the contract which clause permitted termination of the contract without giving reasons for the termination.

The arbitrator dismissed the first respondent's claim that the cancellation of the contract be declared a nullity and that the contract be reinstated.

He also dismissed the first respondent's claim for damages.

The arbitrator awarded the first respondent the sum of US$23,517 being the monthly payment for the month of March 2013 due to the first respondent from the appellant.

The arbitrator further held, that, the appellant had not established its entitlement to the damages in the sum of US1,648,169=91. He therefore dismissed the appellant's counterclaim.

Aggrieved, the first respondent applied to the High Court to have the arbitral award set aside in terms of Article 34(2)(b)(ii) of the Uncitral Model Law, Schedule to the Arbitration Act [Chapter 7:15] (the Model Law).

The first respondent argued that the arbitrator misdirected himself in his interpretation of the contract.

It was argued, that, the arbitral award offends the principles embodied in our public policy as the arbitrator was biased in his decision. It was submitted that the possibility of bias arose from the fact that the arbitrator and Kevin Terry, the Managing Director of the appellant, were known to each other. It was contended that the two engaged in a conversation at the hearing during which the arbitrator expressed more than a casual interest in the life of Kevin Terry. It further contended, that, the two had a prior relationship, and, as a result, the conversation was likely to give rise to a reasonable apprehension of bias on the part of the arbitrator and he ought to have recused himself.

The first respondent further argued that the arbitrator, in an opposing affidavit which he filed in response to the application before the court a quo, used intemperate and unacceptable language towards the first respondent. It was submitted, that, the language used was evidence that the arbitrator was supporting the appellant in proceedings in which he ought to have been neutral.

In response, the appellant submitted that the conversation between Kevin Terry and the arbitrator was done in the presence of all the parties. It was further submitted, that, the conversation did not relate to the subject matter of the arbitral proceedings. It was argued that the conversation was innocuous, and, therefore, there was no basis for the apprehension of bias.

The appellant further argued, that, the allegations relating to the intemperate language in the arbitrator's opposing affidavit were not the basis for the first respondent's apprehension for bias as they were contained in the answering affidavit and not the founding affidavit.

The court a quo was urged to disregard the arbitrator's opposing affidavit.

The court a quo found, that, the arbitrator's interpretation of the contract, though it was faulty, did not render the award contrary to public policy.

The court a quo held, that, the conversation between the arbitrator and Mr Kelly was innocuous and did not raise a reasonable apprehension of bias. It found that the first respondent did not raise the allegations of bias with the arbitrator during the arbitration process. The allegations were only raised after the decision of the arbitrator. It therefore concluded, that, the first respondent had not established reasonable apprehension of bias in the making of the award.

The court a quo, however, found that the arbitrator's post award averments, in the opposing affidavit, created an impression that he was “pitching camp” with the appellant.

It found that the averments were intemperate, disparaging, and unacceptable in judicial proceedings. The court a quo held, that, disparaging averments taken in conjunction with the conversation between the arbitrator and Mr Terry, and the faulty interpretation of the contract, gave a reasonable apprehension of bias.

Consequently, it ruled that the arbitral award be set aside and the matter be remitted to a different arbitrator.

Aggrieved by the court a quo's decision, the appellant noted the present appeal.

The appellant noted the appeal on the following grounds:

“(1) The court a quo erred and grossly misdirected itself on the facts and evidence in holding that the degree of fault in the arbitrator's reasoning in the award, and his alleged acquaintance with Kelvin Terry, gave rise to a reasonable impression and apprehension of bias on part of the arbitrator, and that, consequently, the award was contrary to the public policy of Zimbabwe.

(2) The court a quo erred and misdirected itself, and, in any event, in considering the factual basis of the alleged bias which allegedly took place three months after the granting of the award and therefore could not invalidate the prior award on the basis of the alleged bias.

(3) The court a quo erred in placing reliance on the opposing papers in finding that there was an impression of bias as opposed to the founding papers upon which the application ought to have succeeded or failed.

(4) The court a quo erred and acted without jurisdiction in referring the dispute between the parties to be determined by a different arbitrator.”

The grounds of appeal raise two issues for determination:

1. The first three grounds of appeal raise one issue: whether the court a quo misdirected itself in holding that there was a reasonable apprehension of bias warranting the setting aside of the arbitral award.

2. The second issue is raised in the fourth ground of appeal. In that ground, the appellant seeks to challenge the order of the court a quo to remit the dispute between the parties for determination by a different arbitrator on the basis that the High Court is not reposed, by the Arbitration Act, with the power to make an order for remittal.

Counsel for the appellant submitted, that, the judgment of the court a quo was irregular in that it set aside the award on a basis other than the one alleged by the first respondent in its founding affidavit.

He submitted that the first respondent, in the proceedings a quo, alleged, in its founding affidavit, bias of the arbitrator during the arbitral proceedings. He argued that an application stands or falls on its founding affidavit.

He further argued that the court a quo was therefore called to answer whether there was bias on the part of the arbitrator during the making of the award.

He submitted, that, the court a quo correctly concluded that the first respondent did not establish bias and hence the application ought to have failed on that basis.

Counsel for the appellant argued, that, the court a quo however placed a lot of emphasis on the arbitrator's opposing affidavit to the application instead of the first respondent's founding affidavit.

Counsel for the appellant further submitted, that, the court a quo made a finding that both the substance of the award and the manner of the making of the award were not contrary to public policy. Counsel for the appellant argued that the court a quo therefore misdirected itself in relying on the arbitrator's affidavit which was filed three months after the issuance of the award.

He also argued that the court a quo erred in making contradictory findings and thus reviewed itself.

He submitted, that, the court a quo found that the conversation between Kevin Terry and the arbitrator did not constitute a reasonable apprehension of bias. He argued that the court a quo, later in the same judgment, found that the same conversation constituted bias if it is read together with the arbitrator's opposing affidavit.

He submitted that the court a quo misdirected itself by taking into account factors it had rejected earlier in its judgment.

Counsel for the first respondent submitted, that, the court a quo could not be faulted for accepting the evidence adduced by the first respondent in support of its claim that the arbitrator was biased.

He argued that the issue of bias was raised in the first respondent's founding affidavit.

He submitted that the adverse averments in the arbitrator's opposing affidavit were alluded to in the answering affidavit to illuminate the allegations of bias in the founding affidavit.

He submitted, that, the court a quo did not misdirect itself in considering the arbitrator's conduct post the award. He submitted that the court a quo did not review itself but considered the arbitrator's pre-award conduct together with the post-award conduct.

It is trite that an application stands or falls on its founding affidavit.

The founding affidavit sets out the case that a respondent is called upon to answer.

The principle was aptly set out in Austerlands (Pvt) Ltd v Trade & Investment Bank Limited & Ors SC92-05. CHIDYAUSIKU CJ remarked…, as follows:

“The general rule that has been laid down in this regard is that an application stands or falls on the founding affidavit and the facts alleged in it. This is how it should be, because the founding affidavit informs the respondent of the case against the respondent that the respondent must meet. The founding affidavit sets out the facts which the respondent is called upon to affirm or deny.”

The first respondent alleged, in its founding affidavit in the court a quo, that the conversation between the arbitrator and Mr Terry was the basis for its apprehension of the bias of the arbitrator and the reason why the arbitrator arrived at a wrong decision.

It stated, in paragraph 9.10 of the founding affidavit, that:

“Finally, the inexplicable findings of the Honourable Arbitrator as illustrated above could only be understood in the contest (sic) of some other influence. I am constrained to give that influence as the unusual familiarity between the Honourable Arbitrator and Kelvin Terry the managing director of the 1st respondent.”

The appellant disputed that the conversation was a cause for an apprehension of bias.

The court a quo held that there was no basis for any reasonable person to have an apprehension of bias.

It remarked, at p10, that:

“I agree with the observations made by the respondent in its heads of argument. These are that the discussion forming the basis of the applicant's case was held in the presence of both parties and within hearing distance. There was nothing to hide. A biased arbitrator would have been more circumspect. The discussion centred not on the arbitral proceedings themselves but on Mr. Terry's pending relocation to Kenya on transfer. The timing of his relocation was relevant from a case management point of view in the event that oral evidence was required.”

Further down, at p11, the court stated that:

“I am satisfied that the discussion between him and the arbitrator arose as a result of that communication by the respondent's legal practitioners and that the Arbitrator's sole interest in Mr Terry's imminent departure was legitimate. No reasonable person could perceive bias under these circumstances. Further, no allegation has been made that the prior dealings referred to by the applicant were in any way connected to the matter under arbitration.”…,.

The court a quo agreed with the appellant's submissions, and, in essence, concluded that the first respondent had not established bias.

The court a quo therefore ought to have dismissed the application following its finding.

The court a quo however proceeded to consider the first respondent's contention that the remarks by the arbitrator, in his opposing affidavit, gave credence to the first respondent's assertions of the arbitrator's bias.

It remarked that:

“In my view, the applicant's case hinges on the following factors: the degree of faultiness in the arbitrator's reasoning, the fact that the arbitrator and Kevin Terry are acquaintances, and the fact that in response to the present application, the arbitrator has attacked the applicant's intelligence and its legal practitioners professional standing.

Do these three factors, taken together, give rise, in the mind of a reasonable litigant in the applicant's position, to a reasonable apprehension of bias on the part of the arbitrator?

In my view, that question should be answered in the affirmative.

The arbitrator's post award comments in particular give the impression that he is 'pitching camp with, or rendering assistance to one of the contestants to the dispute before him'.”…,.

The court a quo misdirected itself in three respects when it took into account the arbitrator's averments in the opposing affidavit.

(i) Firstly, the first respondent's allegations of the arbitrator's bias, as contained in the founding affidavit, were based on the conversation between the arbitrator and Mr Terry during the arbitral proceedings.

The arbitrator's averments in the opposing affidavit were not pleaded in the founding affidavit. They found their way into the answering affidavit.

The first respondent therefore raised fresh allegations of bias in the answering affidavit instead of confining itself to its allegations in the founding affidavit.

The first respondent could not make out a case against the appellant on the basis of the answering affidavit.

The court a quo therefore misdirected itself when it made a decision relying on the fresh allegations in the answering affidavit.

The order of the court a quo was therefore not on the basis upon which the application had been brought in the founding affidavit.

(ii) Secondly, the court a quo had earlier on in its judgment concluded that the allegations of bias, based on the conversation between the arbitrator and Mr Terry, were without merit.

It thus misdirected itself when it relied on the same conversation to arrive, in the same judgment, at a contrary conclusion that the arbitrator was biased.

In so doing, it contradicted its earlier findings and essentially reviewed its own earlier determination.

It could only have relied on the averments in the answering affidavit to bolster its findings on the first respondent's case as pleaded in the founding affidavit. It could not use the averments in the answering affidavit to take away findings made on the basis of the founding affidavit.

Regard is given to the fact, that, when the court a quo made its pronouncement on the issues raised in the founding affidavit, the first respondent's answering affidavit and heads of argument addressing the arbitrator's opposing affidavit were both before it.

(iii) Thirdly, the court took into account factors which occurred after the award in order to find bias during proceedings leading to the award.

The arbitrator's opposing affidavit was filed long after the arbitration proceedings had been terminated. It could not therefore be a basis for a finding of bias during the making of the award.

The judgment of the court a quo is irregular on the basis that it set aside the arbitral award on a basis other than that sought by the first respondent.

It is also untenable on the basis that the court a quo relied on an opposing affidavit that had no bearing to the making of the award.

(iv) Lastly, before it contradicted itself, the court a quo had found in favour of the appellant on the two issues that had been placed before it in the founding affidavit.

The resultant order ought to therefore have been the dismissal of the application by the first respondent.

In view of the above findings, it is therefore not necessary to consider the second issue raised in the fourth ground of appeal.

The appeal has merit. The judgment of the court a quo cannot therefore stand. It must be set aside.

The appellant prayed, in the notice of appeal, for costs on the legal practitioner and client scale.

It however did not motivate for such costs in its heads of argument or oral submissions.

There is no basis advanced for granting the punitive costs. An order for ordinary costs is therefore appropriate.

Accordingly, it is ordered as follows:

1. The appeal be and is hereby allowed with costs.

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

“The application be and is hereby dismissed with costs.”

The exception was dismissed on 12 January 2018 by MANGOTA J who ordered that the appellants amend their declaration in respect of claims five and six, that the respondents file their plea, and that the matter proceeds in terms of the Rules.

As directed, the appellants amended their declaration in respect of claims three, five, and six....,.

Rules 137 and 141 of the High Court Rules regulate the procedure to be followed in raising exceptions and the court's powers thereto respectively.

In terms of Rule 137(1)(b) of the High Court Rules, a party can except to the whole pleadings or the specific offending parts. Rule 141(a)(ii) of the High Court Rules empowers the court to make an order striking out or allowing the amendment of the matter contained in a pleading.

In HERBSTEIN & Van WINSEN's The Civil Practice of the High Courts of South Africa, the purpose of an exception procedure was elucidated as follows:

“The taking of an exception is a procedure which is interposed before the delivery of a plea on the merits by a defendant or before the delivery of a replication or joinder of issue by a plaintiff. It is designed to dispose of pleadings which are so vague and embarrassing that an intelligible cause of action or defence cannot be ascertained or to determine such issues between the parties as can be adjudicated upon without the leading of evidence.”…,.

What constitutes a vague and embarrassing pleading was considered in Trope & Ors v The South African Reserve Bank 1992 (3) SA 208…, where the court quoted with approval the lower court's statement that:

“And, if the pleadings lack sufficient clarity to enable the defendant to determine those facts and hence the case he has to meet, the pleadings are vague and embarrassing.”

The test applicable in deciding exceptions based on vagueness and embarrassment arising out of lack of particularity are as summarised by Erasmus Superior Court Practice…, as follows;

“(a) In each case, the court is obliged to first of all consider whether the pleading does lack particularity to an extent amounting to vagueness. Where a statement is vague, it is either meaningless or capable of more than one meaning. To put it simpler, the reader must be unable to distil from the statement a clear single meaning.

(b) If there is vagueness in this sense, the court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him or her by the vagueness complained of.

(c) In each case, an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. A point may be of the utmost importance to the case, and the omission thereof may give rise to vagueness and embarrassment, but, the same point may, in another case, be only a matter of detail.

(d) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced.”

See also Sammys Group (Pvt) Ltd v Bourchier Meyburgh N.O. & Ors SC45-15.

From the cited authorities, it can be noted that an exception relates to the formulation of a claim.

A claim must be articulated with sufficient particularity such that it discloses an intelligible cause of action failing which it may be termed vague and embarrassing.

However, the court may set aside the pleadings, and, upon request, grant the plaintiff leave to file an amended pleading within a certain period.

Dismissal at this stage is a drastic remedy, thus, the courts have inclined towards the grant, where an exception is upheld, of leave to the plaintiff to amend the offending pleadings....,.

I pause momentarily and digress to note, that, there is case law to the effect that it is a misdirection for a court to dismiss an exception taken and simultaneously allow a party to amend their pleadings.

In Chimakure & Anor v Mutambara & Anor SC91-20, the court held that:

“[23] 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.”…,.

In Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land Affairs) 1993 (2) SA 593A…, the court remarked:

“As far as I am aware, in cases where an exception has successfully been taken to a plaintiff's initial pleading, whether it be a declaration or the further particulars of a combined summons, on the ground that it discloses no cause of action, the invariable practice of our courts has been to order that the pleading be set aside and that the plaintiff be given leave, if so advised, to file an amended pleading within a certain period of time.”…,.

In light of this, this court finds that it was a misdirection for MANGOTA J to dismiss the respondents exception on all claims and grant the appellants leave to amend claims 5 and 6.

As a result of runaway inflation and the sliding value of the local currency, in February 2009 the Government of Zimbabwe adopted the multi-currency regime as a mode of conducting financial transactions.

Salaries that had been pegged on the local currency lost buying power in the hands of the recipients. It became necessary to re-negotiate salaries and benefits across the board with the unions representing the appellant's employees.

In casu, the parties were unable to agree on a minimum wage and allowances. It was resolved to submit the dispute to voluntary arbitration through the Commercial Arbitration Centre.

On 13 January 2010, the Commercial Arbitration Centre in Harare appointed M.P. Mahlangu ('the arbitrator') to arbitrate the dispute between the parties.

After hearing the parties, on 23 February 2010 the arbitrator issued an award in the following terms:

“For the period between 1 May and 31 August 2009, the salary of the lowest earning employee of the respondent company should receive an adjustment of US$25 in respect of each month, and for the period between 1 September and 31 December 2009 a further US$25 adjustment should be effected. The effect of this on the lowest earning employee of the respondent is that, in total, the back-pay payable to him or her will be US$300.

In doing this, I realise that further financial strain will be added to the respondent but believe that this is necessary in fairness to the claimant.”…,.

The appellant was aggrieved by the award, and, on 17 May 2010 it filed a Court Application in the High Court.

Attached to the court application, under separate cover, was what was termed an Application For Review. One of the grounds upon which the review was sought was “that the arbitral award was in conflict with the public policy of Zimbabwe.”…,.

The respondent filed papers in opposition in which it raised a number of preliminary issues on alleged procedural irregularities appearing on the papers.

When the matter was heard, the High Court upheld the objections raised by the respondent, and, on 1 December 2010 the court a quo dismissed the application without determining the merits of the dispute.

This appeal is against the dismissal.

In the court a quo, the respondent relied on the following points in limine:

1. That, the application was fatally defective in that it was not clear whether or not it was a court application or an application for review;

2. That, in the event that it was an application for review, the application did not comply with the provisions of Order 33 of the rules of the High Court and the court should find that it was filed out of time;

3. That, if it was a review the arbitrator ought to have been cited as a party to the proceedings;

4. That, in any event, an arbitral award is not subject to review and the High Court lacks the jurisdiction to review an arbitral award outside the provisions of the Arbitration Act [Chapter 7:15] (the “Act”).

In upholding the preliminary issues, the learned judge in the court a quo said:

“In the instant case, the application, as already pointed out above, was one for review of the arbitral award up until the stage of the applicant's Heads of Argument when a u-turn was made in a vain endeavour to clothe it with a semblance of one made in terms of Article 34 of the Model Law. Indeed, the respondent avers that there is even an application before this Court in Case No. HC4120/10 seeking condonation for the late filing of this review.

I did not hear the applicant to dispute this assertion. It goes without quarrel that a wrong form for this application was adopted.

Even assuming that the application was permissible in terms of Order 33 of the High Court Rules, it would still fail to scale the insurmountable difficulty besetting it for flagrantly flouting provisions of Order 33.

Rule 256 of Order 33 makes it imperative by the use of the word 'shall' for an applicant to 'direct' the application to, inter alia, the person whose decision is to be reviewed, viz, the arbitrator.

The applicant in casu did not cite the arbitrator. This omission is fatal to a review application.

In para 4.3 of its answering affidavit, applicant lamely tried to defend this omission saying 'citing the arbitrator is not a rule cast in concrete. Such non-joinder is not fatal to the proceedings. In any event, the relief sought is against the respondent only.'

Further, an application for review in casu would also have been hamstrung by being lodged outside the 8 week period permitted by the rules.

The application does not comply with the requirements for an application for review in that it does not state, shortly and clearly, the grounds upon which an application for review would be sought in terms of Order 33 of the Rules of the High Court.”

The criticism that the learned judge in the court a quo placed more emphasis on form rather than substance cannot be denied.

It is true that the format adopted in launching the application does indeed cause confusion.

The applicant appears to have merged two applications into one. There is a court application to which is annexed an application for review, thus creating the impression that the applicant to the process is not confident of what form the intended proceedings should take.

Nevertheless, the application for review lists as one of the grounds of the application that the arbitration award was in conflict with the public policy of Zimbabwe.

That is a ground for review which is peculiar to the Arbitration Act, and, in particular, Article 34(2)(b)(ii) of the Model Law incorporated in the Arbitration Act.

To show the confusion under which the appellant's counsel was labouring under; in the answering affidavit, it is averred that the application is one for review in terms of the said Rules.

It was only in the heads of argument that reference was made to the Model Law.

Notwithstanding reliance by the appellant on the Model Law as a basis for the application, the court a quo was persuaded to find, that, what was before it was an ordinary review which had been brought in defiance of the provisions of Order 33 of the rules of the High Court.

Order 33 does not set out the grounds upon which a review may be launched. It merely sets out the form an application should take and sets out time limits for bringing such application.

The grounds upon which a review may be brought are set out in the High Court Act [Chapter 7:06], in particular section 27 thereof which reads in relevant part:

“27 Grounds for Review

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal, or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals, or authorities.”

An examination of the additional grounds upon which the applicant sought reliance for relief points to those grounds as being an amplification of the first ground rather than grounds of review under Order 33 of the rules of the High Court.

None of those grounds are such as contemplated by the High Court Act as being grounds upon which the court could set aside any decision on the basis of its powers of review.

The conclusion by the court a quo, to the effect that what was before it was an ordinary review was therefore a misdirection.

This is a partial appeal against the judgment of the Labour Court (the court a quo) LC/H/2/19 dated 7 February 2019. The appeal is against the court a quo's ruling on the question of citation of the parties and the arbitrator's failure to award damages as an alternative to reinstatement....,.

The 56 appellants were employed by the respondent, Freda Rebecca Mine Holdings Limited, in various capacities at its mine in Bindura. Owing to virulent economic hardships at the time, the respondent ceased its mining operations sometime in 2008 without terminating the appellants respective contracts of employment.

Sometime in 2009, the respondent sought to resuscitate its mining operations.

In doing so, it unilaterally sought to re-engage the appellants on inferior contracts different from those obtaining as at the time it ceased operations in 2008.

A dispute then arose concerning the appropriate terms of employment upon resumption of mining operations.

Following failure to resolve the dispute, the respondent arbitrarily wrote to the appellants terminating their original contracts of employment.

The termination letters were written on a standard letterhead bearing the name FREDA REBECCA GOLD MINE. The letters were signed by one T Chivonivoni who designated himself/herself as the GENERAL MANAGER-FREDA REBECCA GOLD MINE.

Dissatisfied by the turn of events, the appellants took the dispute to the Designated Agent.

The Designated Agent referred the dispute to conciliation.

Upon failure of the conciliation process, the conciliator issued a Certificate of No Settlement and completed a Reference to Arbitration on a standard form in which he designated the parties as “Freda Rebecca Mine alleged unfair labour practice of E Mapondera and 60 others.”…,.

The reference form is dated 12 May 2010.

It is common cause that the proper citation of the respondent, as a party to legal proceedings, ought to have been Freda Rebecca Gold Mine Holdings Limited.

The arbitrator's terms of reference were “to determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”

At the hearing before the arbitrator, the respondent took the preliminary objection, that, apart from Edmond Mapondera, the rest of the remaining appellants had no locus standi because their names had not been listed as claimants and E. Mapondera was not authorised to represent them.

Counsel for the appellants argued, that, the respondent had always been aware that the case involved 61 employees whose identities had not been placed in issue at conciliation stage. It was only at the arbitration stage that the respondent belatedly sought to make it an issue.

During the course of the arbitration proceedings, the arbitrator was then provided with a list of the concerned employees comprising a total of 58 claimants. The list of the claimants who were party to the proceedings was availed to the respondent.

The arbitrator dismissed the objection in limine on the ground, that, the appellants had a real and substantial interest in the matter and that right from the initiation of the legal proceedings the respondent knew the identity of its adversaries.

Having dismissed the preliminary objection, the arbitrator proceeded to make an award in favour of E. Mapondera and 57 others on 12 January 2011. The award was couched in the following terms:

“1. That, the claimants are hereby reinstated to their positions without loss of salary and benefits with effect from the date of unlawful dismissal.

2. Each party to meet its own costs.”

Dissatisfied with the arbitral award, the respondent appealed to the court a quo with partial success. It took the following four (4) grounds on appeal:

“1. The Honourable arbitrator unprocedurally accepted evidence submitted by the claimants subsequent to the arbitration hearing in respect of the purported hearing in respect of the purported identity of the innominate (sic) 60 other claimants who had not been included by name in the original claim.

2. The Honourable arbitrator fundamentally misdirected himself in finding, that, since the alleged 60 other employees had a substantial interest in the matter they did not need to be identified and to be made parties in arbitration proceedings before him. The fact that the employees have any kind of interest in the matter did not dispense with the entitlement of the appellant to know who the said appellants were at the commencement and during the course of the proceedings. The production of the names of the employees subsequent to the hearing, and without an opportunity for the appellant to challenge the accuracy of the names and the positions so stated for the employees, violated the appellant's right to a fair hearing before an independent and impartial tribunal.

3. The Honourable Arbitrator fundamentally misdirected himself in failing to find that the contracts of employment for the said employees, E. Mapondera & 60 Others, had terminated by operation of law and the appellant could only re-engage the employees in terms of new contracts of employment. The said former employees, having refused to sign new contracts of employment, the appellant lawfully confirmed the termination of their contracts of employment by operation of law on the 5th of March 2010.

4. The Honourable arbitrator fundamentally misdirected himself in ordering the reinstatement of E. Mapondera & 60 other employees without affording the Appellant an opportunity to pay damages in lieu of reinstatement. The order of reinstatement, without the alternative for the payment of damages, is not consistent with the ordinary rules of the law of contract and the specific circumstances of the appellant.”

On the basis of the above grounds of appeal, the appellant sought the following relief:

“(i) That the claimant's claim be and is hereby dismissed.

(ii) Alternatively, that, in the event that the Honourable court finds that the contracts of employment for the Respondents were not lawfully terminated, that the Appellant is hereby directed to pay the Respondents damages in lieu (sic) of reinstatement.

(iii) The Respondents shall pay the costs of suit.”

Upon consideration of the facts and the law, the court a quo found that the arbitration proceedings were a nullity at law because the claimants had cited a non-existent person and that the 2nd to 60th employees were not a party to the arbitration proceedings.

It also found, that, the arbitrator had no discretion to award reinstatement without an alternative of payment of damages for unlawful dismissal. It therefore ordered as follows:

“It is accordingly ordered that -

1. The appeal be and is hereby allowed on grounds 1, 2, 4 and 5.

2. The appeal falls on ground of appeal 3.

3. Overly, the appeal succeeds as the proceedings were a nullity due to wrong identity of the employer.

4. Each party to bear its costs.”

Aggrieved by the above order, the appellants appealed to this Court challenging the court a quo's order on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that the citation of the respondent, through its trade name 'Freda Rebecca Mine' was such an irregularity whose effect rendered the entire proceedings a nullity.

2. The court erred at law in finding that 2nd to 61st appellants were not properly cited before the Arbitrator and that the extent of the impropriety was such that they were all not party to the arbitration proceedings.

3. The court a quo erred at law in finding that the Arbitrator has no power to order an employer to reinstate an unlawfully dismissed employee without giving the same employer the option to pay damages in lieu of reinstatement to the employee.”

On the basis of the above grounds of appeal, the appellants prayed for the following relief:

1. That the appeal succeeds with costs.

2. That the judgment of the court a quo is partially overturned and the order substituted with the following:

“(a) The preliminary point raised by the Appellant relating to its mis-citation be and is hereby dismissed.

(b) The preliminary point raised by the Appellant relating to the proper citation of the 2nd to the 61st Respondents be and is hereby dismissed. The 2nd to 61st Respondents are hereby held to be properly before the court.

(c) The appeal be and is hereby dismissed with costs and the arbitration award be and is hereby upheld.”

The grounds of appeal raise the following three cardinal issues for determination:

1. Whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.

2. Whether or not the appellants were properly before the Arbitral Tribunal.

3. Whether or not it was proper for the Arbitral Tribunal to order reinstatement of the appellants without an alternative of payment of damages in lieu of reinstatement.

It is pertinent to note at this juncture, that, the judgment appealed against in this case is, to a large extent, grounded on legal technicalities.

A lot of industry has been expended by learned counsel in placing reliance on procedural legal technicalities that are best suited for courts of law rather than arbitral tribunals.

It is trite that the object of arbitral tribunals is to do simple justice for the common person without being shackled by legal technicalities and formalities pertaining to an ordinary court of law. To this end, in arbitration, the rules of procedure are often relaxed and the arbitrator has a wide discretion provided that justice can be attained without doing violence to the basic tenets of natural justice.

Likewise, section 90A of the Labour Act [Chapter 28:01] is meant to unshackle the court a quo from the vice grip of rigid legal rules, formality, and technicalities. It provides as follows:

“90A Procedure and evidence in the Labour Court

(1) The Labour Court shall not be bound by the strict rules of evidence, and the court may ascertain any relevant fact by any means which the presiding officer thinks fit and which is not unfair or unjust to either party.

(2) Evidence may be adduced orally or in writing in any proceedings in the Labour Court, at the discretion of the presiding officer.

(3) The parties or their representatives to any proceedings in the Labour Court shall be entitled to question or cross-examine each other or any witness.

(4) It shall be the responsibilities of the presiding officer to ascertain the facts in any proceedings in the Labour Court, and, for that purpose, he or she may —

(a) Call any party or his or her representative;

(b) Question or cross-examine any party or his or her representative or witness; and

(c) Put any question to a party or his or her representative or witness which is suggested to him or her by any party.”

It is self-evident that section 90A of the Labour Act distinguishes ordinary courts of law from the Labour Court as a special court. The law maker therefore saw it fit to confer the court a quo with a wider discretion than that obtaining in the ordinary courts of law in order to do simple industrial justice.

Because of their legal training and the involvement of lawyers, Labour Court judges often stray into the morass of legal jargon and technicalities much to the bewilderment of the unsophisticated litigants. This unwelcome tendency has the undesirable effect of mystifying industrial legal proceedings thereby clouding the dispensation of industrial justice. It therefore acts as a barrier to accessing industrial justice.

This prompted McNALLY JA in Dalny Mine v Banda 1999 (1) ZLR 220 (S) to remark that:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that such irregularities should be put right.”

In Edmore Taperesu Mazambani v International Trading Company (Private) Limited and Anor SC88-20 MATHONSI JA had occasion to make similar remarks when he said:

“This is a court of justice which is required to resolve the real issues between the parties. It should not dabble too much into small technicalities.”

It is therefore clear from the authorities, that, the primary function of the court a quo is to do simple justice between the parties without dwelling too much on legal technicalities. It is also self-evident that the general courts of law are beginning to mellow and drift towards the idea of correction of simple procedural errors in order to do real and substantial justice.

When interpreting statutes and codes of conduct, the court a quo should endeavour to give a broad liberal interpretation that is not embroiled in flimsy legal technicalities in order to achieve social justice based on equitable labour standards.

On that score, I now proceed to determine whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.

Generally speaking, it is undisputable and a matter of trite elementary law, that, one cannot sue a non-existent person.

In the leading case of Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) the High Court had occasion to remark that:

“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.”

That proposition of law was cited with approval by this Court in Fadzai John v Delta Beverages SC40-17 and a host of other cases cited by the respondent from both local and foreign jurisdictions. It is thus settled law and a matter of common sense that one cannot sue a non-existent person.

The main distinguishing feature in this case is that arbitral proceedings are different from trial proceedings in courts of law.

Sight should therefore not be lost that trial proceedings in a court of law are commenced by summons drafted by the plaintiff. On the other hand, arbitral proceedings are commenced by a reference drafted by the conciliator in terms of the Labour Act. The claimant has no control over the drafting of the reference to arbitration whereas the plaintiff has full control over the drafting of the summons.

It would therefore seem unfair and unjust to penalise the claimant for the sins of the conciliator in crafting the reference.

Counsel for the appellants further argued, that, where there is a person who actually exists who is sued in their colloquial, nickname, or some other informal name, an amendment is permissible to formalise or regularise the citation.

For that proposition of law, he placed reliance on the South African case of Four Tower Investments (Pty) Ltd v Andre's Motors 2005 (3) SA 39 (N) among others.

In that case, shortly before the hearing of the appeal it was discovered, that, in the summons and particulars of claim, the plaintiff had been incorrectly cited and referred to as a company called Four Tower Investments (Pty) Ltd whereas it had been at all times a close corporation called Four Tower Properties CC. In the lease agreement, which was the subject of the dispute between the parties, it was also referred to as a company.

The letting agent was responsible for the mis-description.

Following an application for an amendment to regularize the citation, the court held that under the circumstances, an amendment was permissible. The headnote reads:

“An application for an amendment would always be allowed unless it was made mala fide or would cause prejudice to the other party which could not be compensated for by an award of costs or by some other suitable order such as a postponement: (At 43H).

Held, further that there had been a gradual move from an overly formal approach, and, in line with this approach, courts should be careful not to find prejudice where none really exists: (At 44I-J).

Held further, that the fact, on its own, that the citation or description of a party happened to be of a non-existent entity should not render the summons a nullity.

Held further, that in the present case the citation of the plaintiff had been nothing more than a mis-description and the application for amendment had to be allowed: (At47F).”

It is needless to say that Four Tower Investments (Pty) Ltd v Andre's Motors 2005 (3) SA 39 (N) is on all fours with the instant case. The judgment is grounded on sound logic and meets the ends of justice between litigants.

Back home, in Muzenda v Emirates Airlines & Others HH775-15 the Emirates Airlines had been mis-described as Arab Airlines. In allowing the amendment to regularize the name, MATANDA MOYO J had this to say:

“I am of the view that the description of a party to a suit does not immutably determine the nature and identity of a party. The Law Reports are full with instances where the correct description of a party was allowed, in the absence of prejudice to the other party involved. This would be done after an application to amend.

The plaintiff herein was not diligent.

After being advised of the wrong citation of first defendant, all she had to do was apply for amendment. I would have granted such amendment as I am of the view that there was no prejudice to first defendant.

However, the court can only do so upon asking. The court cannot mero motu grant orders not sought.

Without such amendment, the first defendant remains wrongly cited: see ZFC Ltd v Taylor 1999 (1) ZLR 308 and Order 20 Rule 132 and 134 of this court's rules; Commercial Union Assurance Company Limited v Waymark NO 1995 (2) SA.”

The learned judge beautifully articulates the law in circumstances that are on all fours with the case at hand.

In the same vein, in Masuku v Delta Beverages 2012 (2) ZLR 112 (H) the same court held that:

“…, generally, proceedings against a non-existent entity are void ab initio and thus a nullity. However, where there is an entity which, through some error or omission, is not cited accurately, but where the entity is pointed out with sufficient accuracy, the summons would not be defective.”

I could go on and on, but, the principle of law established by case law is clear.

Where an existing entity is inadvertently mis-described in judicial proceedings it is permissible to apply for correction of the anomaly in good faith provided that there is no irreparable prejudice to the other party.

It is common cause, that, taking a cue from laid down precedent, the appellants successfully applied to the court a quo, before the same judge, for an amendment of the citation of the respondent's name. He granted the order on 31 May 2018 under order number LC/MD/ORD/78/2018. It reads:

“It is ordered that:

1. The application to amend the citation of the respondent be and is hereby granted.

2. Each party is to bear its own costs.”

It is amazing, that, when the matter came up for hearing on the merits, the same judge held that the proceedings before the arbitrator were a nullity because the appellants had sued a non-existent person.

This was clearly a serious misdirection considering that the honourable judge was bound by his earlier order that had regularised the incorrect citation of the respondent.

This is a partial appeal against the judgment of the Labour Court (the court a quo) LC/H/2/19 dated 7 February 2019. The appeal is against the court a quo's ruling on the question of citation of the parties and the arbitrator's failure to award damages as an alternative to reinstatement....,.

The 56 appellants were employed by the respondent, Freda Rebecca Mine Holdings Limited, in various capacities at its mine in Bindura. Owing to virulent economic hardships at the time, the respondent ceased its mining operations sometime in 2008 without terminating the appellants respective contracts of employment.

Sometime in 2009, the respondent sought to resuscitate its mining operations.

In doing so, it unilaterally sought to re-engage the appellants on inferior contracts different from those obtaining as at the time it ceased operations in 2008.

A dispute then arose concerning the appropriate terms of employment upon resumption of mining operations.

Following failure to resolve the dispute, the respondent arbitrarily wrote to the appellants terminating their original contracts of employment.

The termination letters were written on a standard letterhead bearing the name FREDA REBECCA GOLD MINE. The letters were signed by one T Chivonivoni who designated himself/herself as the GENERAL MANAGER-FREDA REBECCA GOLD MINE.

Dissatisfied by the turn of events, the appellants took the dispute to the Designated Agent.

The Designated Agent referred the dispute to conciliation.

Upon failure of the conciliation process, the conciliator issued a Certificate of No Settlement and completed a Reference to Arbitration on a standard form in which he designated the parties as “Freda Rebecca Mine alleged unfair labour practice of E Mapondera and 60 others.”…,.

The reference form is dated 12 May 2010.

It is common cause that the proper citation of the respondent, as a party to legal proceedings, ought to have been Freda Rebecca Gold Mine Holdings Limited.

The arbitrator's terms of reference were “to determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”

At the hearing before the arbitrator, the respondent took the preliminary objection, that, apart from Edmond Mapondera, the rest of the remaining appellants had no locus standi because their names had not been listed as claimants and E. Mapondera was not authorised to represent them.

Counsel for the appellants argued, that, the respondent had always been aware that the case involved 61 employees whose identities had not been placed in issue at conciliation stage. It was only at the arbitration stage that the respondent belatedly sought to make it an issue.

During the course of the arbitration proceedings, the arbitrator was then provided with a list of the concerned employees comprising a total of 58 claimants. The list of the claimants who were party to the proceedings was availed to the respondent.

The arbitrator dismissed the objection in limine on the ground, that, the appellants had a real and substantial interest in the matter and that right from the initiation of the legal proceedings the respondent knew the identity of its adversaries.

Having dismissed the preliminary objection, the arbitrator proceeded to make an award in favour of E. Mapondera and 57 others on 12 January 2011. The award was couched in the following terms:

“1. That, the claimants are hereby reinstated to their positions without loss of salary and benefits with effect from the date of unlawful dismissal.

2. Each party to meet its own costs.”

Dissatisfied with the arbitral award, the respondent appealed to the court a quo with partial success. It took the following four (4) grounds on appeal:

“1. The Honourable arbitrator unprocedurally accepted evidence submitted by the claimants subsequent to the arbitration hearing in respect of the purported hearing in respect of the purported identity of the innominate (sic) 60 other claimants who had not been included by name in the original claim.

2. The Honourable arbitrator fundamentally misdirected himself in finding, that, since the alleged 60 other employees had a substantial interest in the matter they did not need to be identified and to be made parties in arbitration proceedings before him. The fact that the employees have any kind of interest in the matter did not dispense with the entitlement of the appellant to know who the said appellants were at the commencement and during the course of the proceedings. The production of the names of the employees subsequent to the hearing, and without an opportunity for the appellant to challenge the accuracy of the names and the positions so stated for the employees, violated the appellant's right to a fair hearing before an independent and impartial tribunal.

3. The Honourable Arbitrator fundamentally misdirected himself in failing to find that the contracts of employment for the said employees, E. Mapondera & 60 Others, had terminated by operation of law and the appellant could only re-engage the employees in terms of new contracts of employment. The said former employees, having refused to sign new contracts of employment, the appellant lawfully confirmed the termination of their contracts of employment by operation of law on the 5th of March 2010.

4. The Honourable arbitrator fundamentally misdirected himself in ordering the reinstatement of E. Mapondera & 60 other employees without affording the Appellant an opportunity to pay damages in lieu of reinstatement. The order of reinstatement, without the alternative for the payment of damages, is not consistent with the ordinary rules of the law of contract and the specific circumstances of the appellant.”

On the basis of the above grounds of appeal, the appellant sought the following relief:

“(i) That the claimant's claim be and is hereby dismissed.

(ii) Alternatively, that, in the event that the Honourable court finds that the contracts of employment for the Respondents were not lawfully terminated, that the Appellant is hereby directed to pay the Respondents damages in lieu (sic) of reinstatement.

(iii) The Respondents shall pay the costs of suit.”

Upon consideration of the facts and the law, the court a quo found that the arbitration proceedings were a nullity at law because the claimants had cited a non-existent person and that the 2nd to 60th employees were not a party to the arbitration proceedings.

It also found, that, the arbitrator had no discretion to award reinstatement without an alternative of payment of damages for unlawful dismissal. It therefore ordered as follows:

“It is accordingly ordered that -

1. The appeal be and is hereby allowed on grounds 1, 2, 4 and 5.

2. The appeal falls on ground of appeal 3.

3. Overly, the appeal succeeds as the proceedings were a nullity due to wrong identity of the employer.

4. Each party to bear its costs.”

Aggrieved by the above order, the appellants appealed to this Court challenging the court a quo's order on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that the citation of the respondent, through its trade name 'Freda Rebecca Mine' was such an irregularity whose effect rendered the entire proceedings a nullity.

2. The court erred at law in finding that 2nd to 61st appellants were not properly cited before the Arbitrator and that the extent of the impropriety was such that they were all not party to the arbitration proceedings.

3. The court a quo erred at law in finding that the Arbitrator has no power to order an employer to reinstate an unlawfully dismissed employee without giving the same employer the option to pay damages in lieu of reinstatement to the employee.”

On the basis of the above grounds of appeal, the appellants prayed for the following relief:

1. That the appeal succeeds with costs.

2. That the judgment of the court a quo is partially overturned and the order substituted with the following:

“(a) The preliminary point raised by the Appellant relating to its mis-citation be and is hereby dismissed.

(b) The preliminary point raised by the Appellant relating to the proper citation of the 2nd to the 61st Respondents be and is hereby dismissed. The 2nd to 61st Respondents are hereby held to be properly before the court.

(c) The appeal be and is hereby dismissed with costs and the arbitration award be and is hereby upheld.”

The grounds of appeal raise the following three cardinal issues for determination:

1. Whether or not the alleged improper citation of the respondent rendered the entire proceedings a nullity.

2. Whether or not the appellants were properly before the Arbitral Tribunal.

3. Whether or not it was proper for the Arbitral Tribunal to order reinstatement of the appellants without an alternative of payment of damages in lieu of reinstatement.

It will be remembered, that, the arbitrator's terms of reference were “to determine whether the dismissal of E. Mapondera and 60 others was lawful or not.”

It is trite, that, an arbitrator is bound by the given terms of reference. He has no jurisdiction outside the terms of reference.

The respondent's objection sought to amend the terms of reference by limiting the terms of arbitration to E. Mapondera to the exclusion of the 60 other employees.

This the arbitrator could not do as it would amount to a violation of his terms of reference.

Placing reliance on the High Court cases of Panganai and 20 Others v Kadir and Sons (Private) Limited HH26-95 and Prosser and 35 Others v Ziscosteel Company Limited HH201-93, the learned judge a quo held that apart from E. Mapondera the other 60 employees were not properly before the arbitrator. He reasoned, that, this was because the arbitrator had not been provided with a list of their names and they had not filed affidavits professing joinder to the arbitral proceedings.

It is rather ironic, if not irrational, that, the respondent sought validation of dismissals that were carried out in the name of a non-existent person styled Freda Rebecca Gold Mine which it disowns.

It was therefore a serious misdirection, that, after holding that the proceedings before the arbitrator were a nullity, the learned judge proceeded to determine the appeal on the merits.

This was despite his ruling that there was no respondent before him....,.

This is an appeal against the entire judgment of the High Court delivered on 5 February 2020.

The court a quo held that eighty-five percent (85%) of Number 16 Hawkshead Drive, Borrowdale, also known as Lot 1 of Lot 4 of Lot FA Quinnington situate in the District of Salisbury, measuring 1,2770 Morgen held under Title Deed 3999/96 be awarded to the respondent as her sole and absolute share with the appellant being awarded the remaining 15 per cent share.

The appellant and the respondent married in terms of the Marriage Act [Chapter 5:11] in 1996. Both parties were business partners involved in the property sector. The appellant was into property development and the respondent was into real estate management. Both were directors of a company called Bern-win Development Company.

This company was liquidated, and the parties lost everything.

They were advised, by their lawyers, to separate their business properties from their family assets by forming Trusts.

Consequently, Mai-Kai Property Development Trust was formed in January 2000 and Paradza Trust in July 2000. The beneficiaries of both Trusts were Tsitsi Mutanga, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and Rusiya Mutekenya, who is the appellant's mother.

It was the intention of both parties that Paradza Trust be the asset holding Trust while Mai-Kai Property Development Trust would be the property selling Trust.

The proceeds of the business were pooled together and used to buy assets for the family which were registered under Paradza Trust.

Unfortunately for the parties, their marital relationship broke down and the respondent issued summons for divorce in which she cited irretrievable breakdown of the marriage as the cause for divorce. She further sought an order for distribution of the assets of the parties.

During the proceedings in the court a quo, the parties agreed on all ancillary issues including custody and maintenance of their children save for the distribution of one immovable property which is No.16 Hawkshead Drive, Borrowdale (hereinafter referred to as the property).

According to the appellant, the property was not an asset of the spouses.

He claimed, that, the property belonged to a private company called Brabourn Investments (Private) Ltd and that the company was wholly owned by Brabourn Trust of which the respondent was neither a trustee nor a beneficiary.

The appellant further claimed, that, the reason why the property could not be distributed in terms of section 7 of the Matrimonial Causes Act was that Paradza Trust had failed to raise the purchase price and hence the sale was not perfecta.

He also claimed that it was at that point that Brabourn Trust purchased the shares in Brabourn Investments (Private) Limited.

He however failed to produce evidence to the effect that Paradza Trust had failed to raise the purchase price and that the contract had been cancelled.

According to the evidence adduced by the respondent during the trial, the property was acquired through the purchase of shares in Brabourn Investments (Private) Limited by Paradza Trust.

Paradza Trust purchased 100 per cent paid up shares in Brabourn Investments (Private) Limited which represented ownership of the property. The effect of such acquisition was that the property now vested in Paradza Trust in which the appellant, the respondent, their children, and the appellant's mother were beneficiaries.

The respondent claimed that the property in dispute was an asset owned by both parties, and, as such, was distributable in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13].

The respondent further testified, that, Brabourn Trust which was purported to own Brabourn Investments (Private) Limited, was fraudulent.

She highlighted to the court, that, the Trust Deed creating Brabourn Trust was null and void as it did not have the mandatory protocol number; that the dates in the Deed were inconsistent with the sequence of events; and, lastly that the legal practitioner who purported to have drafted and registered the Trust Deed was still at law school at the time of such registration, and, as such, was not yet practicing law.

Basing on the evidence placed before it, the court a quo held that No.16 Hawkshead Drive, Borrowdale was an asset that belonged to Paradza Trust.

It further held that the property was distributable in terms of section 7 of the Matrimonial Causes Act.

It also held that Brabourn Trust was a stratagem by the appellant to thwart the respondent's claim to the property.

The property was then distributed, with the respondent being awarded an 85 per cent share in the property while the appellant received the remaining 15 per cent share.

Aggrieved by the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds:

1. The court a quo misdirected itself in finding that number 16 Hawkshead Drive, Borrowdale was a family asset and registered in Paradza Trust that could be distributed, a finding which is contrary to the evidence presented.

2. The court a quo misdirected itself in finding that the Brabourn Trust Deed was null and void.

3. The court a quo erred at law when it concluded that Paradza Trust was the original purchaser of Brabourn Investments (Private) Limited with 100 per cent paid up shares, being the only one with a claim to number 16 Hawkshead Drive, Borrowdale.

4. The court a quo erred at law when it concluded, that, the respondent was entitled to a share of number 16 Hawkshead Drive, Borrowdale, not just as a spouse but as a beneficiary of Paradza Trust, when there was no evidence that Paradza Trust acquired the property.

5. The court a quo misdirected itself in granting an order that number 16 Hawkshead Drive, Borrowdale also known as Lot 1 of Lot 4 FA Quinnington situate in the District of Salisbury held under title deed number 3999/96 measured 1,2770 Morgen instead of 1,0938 hectares.

The appellant's counsel argued, that, the property in dispute did not belong to the appellant individually, and that it had not been purchased by and was not owned by Paradza Trust. He submitted, that, it did not fall under the ambit of property that was distributable under section 7 of the Matrimonial Causes Act as it was owned by a third party, which is Brabourn Investments (Private) Limited.

He further argued, that, besides the agreement of sale of the 100 per cent shares in Brabourn Investments (Private) Limited, there is no proof of transfer to Paradza Trust, which further clarifies the position that the property belonged to Brabourn Trust.

Counsel for the respondent, per contra, argued that the property belongs to Paradza Trust.

She submitted that the parties lived on the premises until the time they decided to lease it out.

She further submitted that to date, the property belongs to Paradza Trust and all monies derived from that property go to the beneficiaries of the Trust, who, at the time of registration were Rusiya Mutekenya (appellant's mother), their two children, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and the respondent herself.

As will become apparent shortly, both counsels were asked to address this Court on the non-joinder of the trustees of Paradza Trust.

Counsel for the appellant submitted, that, the trustees of Paradza Trust should have been joined in the proceedings a quo. On the other hand, counsel for the respondent submitted that the issue of joinder was defeated by the appellant's claim that the property belonged to Brabourn Trust. That is why the chairman of the Trust was subpoenaed to testify before the court a quo.

Counsel for the respondent also placed reliance on section 7 of the Matrimonial Causes Act which provides that a court can direct that property of one spouse be transferred to another spouse.

In view of the non-determination by the court a quo of an issue that was argued before it, this appeal stands to be disposed of on that very issue.

It therefore becomes unnecessary to advert to the appellant's grounds of appeal....,.

In terms of section 25 of the Supreme Court Act [Chapter 7:13], the Supreme Court has certain powers that are vested in it which include the power to review proceedings and decisions of lower courts.

Of particular importance is subsection (2) which provides, that, the powers to review can be exercised whenever it comes to the attention of a judge or the Supreme Court that an irregularity has occurred in any proceedings notwithstanding that such proceedings or decision is not the subject of appeal.

It has come to this Court's attention, that, there was an irregularity in the proceedings of the court a quo, and, such irregularity is not the subject of appeal. The irregularity pertains to the court a quo's omission to determine the issue of joinder despite the fact that such issue was argued before the court a quo....,.

On 6 April 2022, after hearing a contested urgent application for an interdict made by the first respondent, the High Court (“the court a quo”) granted a final order in the following terms:

“Accordingly, it is ordered as follows:

(a) Pending the finalisation of the applicant's claim under case number HC5227/21 the first respondent is hereby interdicted from dealing in any manner with the immovable property known as number 2 Glynde Avenue, Mabelreign, Harare held under Deed of Transfer number 2120/2017 registered in the name of the first respondent that may cause encumbrances or dispose by selling it to any third party.

(b) The first respondent be and is hereby ordered and directed not to alienate or remove any such improvement made on the property specified in para (a) until the matter under case number HC5227/21 is finalised.

(c) The second respondent, pending the finalisation of the applicant's claim under case number HC5227/21, be and is hereby ordered and directed to place a caveat on the property specified in para (a).

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

This appeal is against the whole judgment of the court a quo.

The appellant, a female adult, and the first respondent, a male adult, entered into an unregistered customary union in August 2015 and were delighted to commence living together as husband and wife about October 2015.

During the subsistence of their customary union, they acquired both movable and immovable property, including House Number 2 Glynde Avenue, Mabelreign, Harare which is solely registered in the name of the appellant.

The mortgage finance sourced to acquire the house was secured in the appellant's name and in her account.

The first respondent however alleges, with significant assertiveness, that he also directly contributed to the acquisition of the property and the repayment of the loan. He further asserts that he added improvements to the house which enhanced its value.

The customary union broke down in February 2021.

As a result, the first respondent sued a summons against the appellant in the court a quo, under case number HC5227/21, seeking an order for the division of the parties property acquired during the subsistence of the customary union.

In his declaration, the first respondent pleaded, in part, thus:

“3. The plaintiff and the defendant entered into an unregistered customary union on or around the first of August 2015; with the traditional rites having been done, they began to reside together as husband and wife from November 2015. In terms of the tacit universal partnership;

(a) Each party worked independently and contributed individually to the acquisition of the property, both movable and immovable, for the joint ownership of the union.

(b)…,.

(c)…,.

4. Pursuant to the establishment of a tacit universal partnership by the parties, the parties acquired both movable and immovable property as shall appear in Annexure A attached.

5….,.

6….,.

7….,.

8. Pursuant to the universal tacit partnership, the plaintiff went on to further contribute by way of making improvements to the property, being complete renovation of the kitchen, painting the interior and exterior of the main house, gate, garage and external rooms, re-wiring of the whole house electrical system, plumbing of the kitchen, bathroom, servant's quarters, storage/laundry room, installation of solar geyser, water tank and pump, installation of the security system and planting of lawn around the yard, installation of a back-up power solution on the main gate, which renovations cost a total of USD16,000…, thereby increasing the market value of the said property as well as making it habitable for the parties.”…,.

The appellant entered appearance to defend the claim and filed a plea.

As the matter was pending before the court a quo, the parties engaged each other through correspondence as they bickered over the distribution of the immovable property, among other issues.

It was during the course of their engagement that the appellant admitted part of the averments made by the first respondent.

By letter dated 10 December 2021, to the first respondent's legal practitioners, the appellant's legal practitioner stated:

“RE: ANDREW ZIGORA v SAMANTHA NHENDE CASE NO. HC5227/21

Reference is made to the above and to your letter dated 26th November 2021, which we received on 30th of November 2021, the contents of which have been noted….,.

Further, our client disputes yours claim for improvements amounting to US$16,000.

We are advised that your client only contributed to the painting of the house and some kitchen renovations of which our client is prepared to offer US$2,500. Our client further advises that she believes that the other improvements, including solar system, alarm system, electric gate motor, and water tank are fixtures and fittings which can be removed and the plaintiff can collect same….,.“…,.

According to the first respondent, in February 2022, he got to know that the appellant intended to sell the immovable property forming the subject of the pending summons action.

His concerns were registered in a letter addressed to the appellant's legal practitioners which drew the attention of the appellant and her legal practitioner to the fact that he had become aware that she was sourcing agents and prospective buyers.

The letter entreated the appellant to assure the first respondent that the property was safe.

In response, the appellant did not give any such assurances. In fact, the letter written in response thereto was vague and unhelpful.

In the wake of those developments, the first respondent moved swiftly, filing an urgent chamber application on 24 February 2022.

In his founding affidavit, the first respondent attested to a reasonable apprehension that the appellant would dispose of the house, given that it is registered in her name only, in order to defeat his claim for division of the universal partnership property. He implored the court a quo to grant him protection from “the whims and decisions” of the appellant.

To the application, the first respondent attached a draft provisional order, the grant of which was motivated. It reads in relevant part:

“TERMS OF FINAL ORDER SOUGHT

1. Pending the finalisation of the applicant's claim under case number HC5227/21 the first respondent is hereby interdicted from dealing in any manner with the immovable property that may cause encumbrances and/or dispose by selling it to any third party.

2. The first respondent be and is hereby ordered and directed not to alienate or remove any such improvements made on the immovable property until the matter under case number HC5227/21 is finalised.

3. First respondent shall pay costs of suit on an attorney-client scale only if it (sic) opposes this application.

The second respondent, pending the finalisation of the applicant's claim under case number HC5227/21, be and is hereby ordered and directed to place a caveat on the immovable property, mainly, Stand Number 2 Glynde Avenue, Mabelreign, Harare held under Deed of Transfer number 2120/2017 registered in the name of Samantha Nhende, the first respondent herein.”

The application was strenuously opposed by the appellant who raised quite a substantial number of points in limine.

The appellant protested that the matter was not urgent; that the first respondent had not established a causa, having failed to plead the choice of law; and, finally that the relief sought was incompetent.

On the merits, the appellant argued that the first respondent had not presented any evidence to show that she intended to dispose of the house.

She rounded off by submitting that she, as the registered owner of the house, had exclusive rights over it unlike the first respondent who could not possibly claim any share to it.

The court a quo found, that, the application passed the test of urgency.

Regarding the objection that the application did not disclose a cause of action as it sought to import general law into a dispute governed by customary law, the court a quo found that the issue was not before it.

In the court a quo's view, that was an issue to be resolved when determining the claim for division of property in HC5227/21. The court a quo refused to be drawn to “pre-empt the dispute” in the main action.

The objection relating to the competency of the relief sought was also dismissed on the basis that the court had the discretion to grant an order that was competent and established by the case before it.

On the merits of the application, the court a quo found that indeed the first respondent was labouring under a reasonable apprehension that the appellant may dispose of the house before the finalization of the main claim. It took the view, that, those fears were bolstered by the unsatisfactory response to his enquiries given by the appellant.

As already stated, the court a quo granted final relief in favour of the first respondent. In doing so, it reasoned:

“With respect to the nature of the relief, there is no need of having terms of final order since there is no need for the return day. The provisional order has its final sunset clause being the finalisation of the matter under case number HC5227/21. Once the dispute for the division of the property has been finalised, the caveat will be no longer necessary.”

It is significant to note, that, the relief that the court a quo granted is what was set out both in the terms of the final order sought and the interim relief of the draft provisional order.

The appellant was discontented by the judgment of the court a quo. She noted an appeal to this Court on the following grounds:

“1. The court a quo grossly erred at law in and misdirected itself in fact in granting an interdict (sic) as regards appellant's immovable property in circumstances where there was no evidence or at all that the appellant intended to alienate the property.

2. The court a quo erred at law in granting an interdict where the requirements of such relief had not been met, particularly where a clear right had not been established.

3. The court a quo grossly misdirected itself and erred in failing to consider that the issue of the choice of law was crucial in the determination of whether or not there was a cause of action against the appellant.

4. The court a quo grossly misdirected itself in fact in ordering appellant not to remove improvements on the property where no evidence or indications of the said improvements were made or proved by the respondent.

5. The court a quo misdirected itself in fact and subsequently erred at law in granting a final order in an urgent chamber application where an interim relief had been sought thereby denying the appellant the opportunity to make representations on the return date.”

At the hearing of the appeal, both counsel were in agreement that the grounds of appeal raise only three issues for determination in this appeal. These are:

1. Whether the requirements of an interim interdict were satisfied.

2. Whether the court a quo erred in refusing to determine the choice of law question; and

3. Whether the court a quo was correct in granting a final order.

Counsel for the appellant adopted a three-pronged approach in motivating the appeal:

(i) Firstly, on the choice of law, he submitted that the first respondent ought to have pleaded the application of general law for him to sustain a valid cause of action. For that reason, so it was argued, the court a quo fell into error by proceeding to determine the application despite the first respondent's failure to plead a choice of law.

(ii) On the evidence placed before the court a quo, counsel for the appellant submitted, that, it did not sustain the relief that was sought.

In counsel's view, the first respondent did not substantiate his suspicion that the appellant intended to dispose of the house. In that regard, the requirements for the grant of a final interdict were not satisfied, and, as such, the application should have been dismissed.

(iii) Finally, counsel for the appellant strongly submitted, that, the court a quo misdirected itself in mero motu granting a final relief where the application had been one for interim relief and a case was not made for the grant of a final one. Counsel for the appellant insisted, that, by so doing, the court a quo also deprived the appellant the opportunity to contest the terms of the final order sought on the return date.

Counsel urged the court to intervene, bearing in mind the irrational manner in which the court a quo exercised its discretion to grant final relief.

Counsel for the first respondent defended the judgment of the court a quo.

In his view, the fact that there was a pending matter between the parties, in which the first respondent lay a claim to the house, which claim would be prejudiced if the status quo ante was not preserved, meant that a good case was made for the grant of an interdict. The choice of law argument was not before the court a quo and could not detract from the need to grant an interdict.

Counsel for the first respondent took the view, that, the moment the appellant failed to give the first respondent assurance that the house would not be disposed of, a basis for the issuance of an interdict arose because there was a reasonable apprehension of irreparable harm or prejudice.

Regarding the appellant's complaint against the grant of a final order, counsel for the first respondent submitted, that, there is room for the court a quo to grant it in the exercise of its discretion. This is so because such final relief is granted in spoliation proceedings. As such, nothing could stop the court a quo from granting it in the present case.

The starting point is to make the observation that all that the first respondent sought in his application was the interim relief of the placement of a caveat on the title deed to the house in dispute.

I am aware that in paragraphs 19 and 20 of his founding affidavit the first respondent made remarks in support of a final order for an interdict to be granted against the appellant.

However, a close reading of those remarks clearly shows that he was motivating what was sought as the terms of the final order which the court would have only related to on the return date of the provisional order had it been granted.

This is in line with the civil practice and procedure for urgent applications.

Earlier in this judgment, I reproduced the draft provisional order which the first respondent sought. It bears testimony that the court a quo was requested to grant the interim relief of the placement of a caveat - nothing more.

It is a relief which may be termed an interim interdict pendente lite. Briefly, its requirements are that:

(i) The right which is the subject matter of the main action is clear or prima facie established though open to some doubt;

(ii) If the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he or she ultimately succeeds in establishing the right;

(iii) The balance of convenience favours the granting of interim relief; and

(iv) The applicant has no other satisfactory remedy.

See Airfield Investments (Private) Limited v Minister of Lands & Ors 2004 (1) ZLR 511 (S)…,.

From the above requirements, there must be evidence establishing a prima facie right, even though it may be open to some doubt.

The evidence before the court a quo showed, that, the first respondent had made a claim for the sharing of property - including the house in dispute. I have cited verbatim the pleadings he placed before the court. It shows that he specifically pleaded the existence of a tacit universal partnership and his contribution to it.

Prima facie, therefore, the first respondent established a right, which may be subject to some doubt. Should that right be proved in the main case, there is a well-grounded apprehension of irreparable harm to him if it is not protected. For that reason, the balance of convenience favoured the grant of interim relief.

It was not suggested that there was any other remedy available to the first respondent other than that which was sought.

From the foregoing, I conclude that the requirements for the grant of the relief that was sought, with minor amendments, were satisfied.

It is however not the relief that the court a quo granted. I shall return to that issue shortly....,.

The High Court Rules 2021 set out a procedure for the filing and determination of urgent applications.

They also provide a form for a provisional order which litigants approaching the court under that procedure are required to adhere to as well as to attach to the urgent chamber application.

In terms of Rule 69(9) of the High Court Rules:

“(9) Where, in an application for a provision order, the Judge is satisfied that the papers establish a prima facie case, he or she shall grant a provisional order either in terms of the draft filed or as varied.”…,.

There is a reason why the Rule is couched that way.

Firstly, in an urgent application, the applicant is usually granted interim relief on the basis of a prima facie case, as the applicant would not have proved his or her case. The procedure allows a litigant which can show a prima facie right to be accorded interim relief that usually protects the status quo ante until the return date of the provisional order: see Kuvarega v Registrar General & Anor 1998 (1) ZLR 188.

After the grant of interim relief, in the form of a provisional order, the matter does not end there.

The procedure is that the respondent is allowed to file a full dossier of opposition to the confirmation of the provisional order, which confirmation takes the form of granting the terms of the final order sought in the prescribed form of the provisional order.

After the provisional order is granted, the full procedure of a court application, including the filing of a notice of opposition, answering affidavit, and heads of argument, kicks in.

It is a procedure which allows the applicant to fully prove his or her case, and the respondent to disprove it, without the pressure of urgency.

On the return date of the provisional order, a fully-fledged opposed application is set down and heard on the opposed roll.

Following that hearing, the court may either confirm or discharge the provisional order. It confirms it by granting the terms of the final order sought.

Having said that, I must reiterate what this Court stated in Nzara & Ors v Kashumba N.O. & Ors 2018 (1) ZLR 194 (S)…, that, the court cannot grant an order that has not been sought by a party.

The point is also made in Chiwenga v Mubaiwa SC86-20, that, the purpose of provisional relief is to preserve the status quo pending the return day. At p13 of the cyclostyled judgment, the court stated:

“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.”

I have had to give a detailed account of the procedure for provisional relief because there appears to be a signal failure or lack of appreciation, at the moment, at the High Court, that, when approached on an urgent basis, except where spoliatory relief is sought, in which case the court grants final relief, the court is required to issue interim or provisional relief in the form of a provisional order.

Given that, by its very nature, an urgent application requires the applicant to establish a prima facie case for the grant of interim relief, the jurisdiction of the court to grant final relief is not triggered.

In this case, the court a quo completely ignored the draft provisional order that was presented to it by the applicant, and related to the matter as if it was an ordinary application, where its jurisdiction to grant final relief would have been triggered.

It had not.

Doing so was a misdirection which resulted in a gross irregularity.

What is even more unfortunate is that the first respondent had made a case for the interim relief that he sought.

The fifth ground of appeal ought to succeed.

The first respondent made a case for the placement of a caveat on the title deed to the property in dispute as interim relief. The court a quo elected to grant the relief which it ought to have related to on the return date, and not on an urgent basis. As a result, the court granted relief which was not sought by the parties.

This was a misdirection and ought to be interfered with....,.

In the result, it be and is hereby ordered as follows:

1. The appeal succeeds, in part, with each party to bear its own costs.

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

“1. The application is granted in terms of the draft provisional order as amended.

2. The interim relief granted is amended to read:

'INTERIM RELIEF GRANTED

Pending the return date of this provisional order, the second respondent is directed to place a caveat on the immovable property known as Stand Number 2 Glynde Avenue, Mabelreign, Harare held under deed of transfer number 2120/2017 registered in favour of the 1st respondent.'”

On 24 July 2013, the High Court granted judgment in favour of the respondent herein. Consequent thereto, the court ordered that the appellant vacate premises known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare and pay the sum of USD22,730=99 being arrear rentals, and holding over damages in the sum of USD5,000 together with operating costs from 1 November 2011 to the date of eviction.

The court ordered the appellant to pay interest on the abovestated sums at a rate that is 5 percent above the lending rate of commercial banks, and costs of suit at the ordinary rate.

The appellant was aggrieved and noted an appeal against the whole judgment.

The respondent was equally unhappy with part of the judgment and noted a cross-appeal against the finding by the court that it was required to give the appellant fifteen (15) days notice of cancellation of the lease in the event of failure by the appellant to pay rent on due date.

In addition, the respondent particularly appealed against the finding by the court, that, the letter dated 26 September 2011 by the respondent did not constitute a cancellation of the agreement.

The appellant and the respondent are private limited companies duly registered as such under the laws of Zimbabwe and carrying on business as such within the country.

On or about 30 March 2010, the respondent and the appellant entered into a written agreement of lease in terms of which the former leased to the latter commercial property known as Shops 1 and 2 Benhay Art House, situated at 120 Chinhoyi Street, Harare.

The agreement was initially for a period of six months and was terminable on 31 August 2010.

Although the lease agreement suggests that it commenced on 30 March 2010, evidence from the appellant during the trial reveals that it first occupied the premises sometime in 2005.

This fact is, however, of no moment as it was never disputed that there was a subsisting lease between the parties.

It is worth noting, that, while there is no specific clause providing for the renewal of the lease, clauses in the agreement suggest that it was to endure beyond the stated period of six months.

Indeed, when the dispute erupted, the appellant had been in occupation of the premises for over twelve months.

After the lease period expired, the parties continued with the lease on the same terms and conditions.

This is because the accepted sum due as rental, at that stage, was USD5,000 - an amount far in excess of the USD1,000 stated in the original written lease.

Moreover, from the manner in which the proceedings in the court below were conducted, it can be inferred that the lease was still subsisting.

The terms and conditions of the lease agreement are the bone of contention between the two.

The terms of the agreement that are pertinent to the dispute are to be found in clauses 3 and 12 of the agreement and relate to the payment of rentals and operating costs.

The parties agreed that the appellant would pay monthly rentals within the first seven days of each month, together with operating costs at agreed rates.

The respondent alleged, that, the appellant was in breach of a material term of the agreement by failing or neglecting to pay monthly rentals and operating costs within the time stipulated in the lease agreement.

Due to the breach, the appellant allegedly incurred arrear rentals in the sum of US$22,730=99.

As a consequence of the breach, the respondent averred that it had cancelled the lease agreement, demanded vacant possession of the leased premises, and payment of the arrear rentals and operating costs.

The respondent posits, that, it did so by letter dated 26 September 2011 from its legal practitioners to the appellant cancelling the said agreement.

On 12 October 2011, the respondent issued summons against the appellant in which it claimed the following relief:

“(a) An order for the eviction of the defendant together with its tenants, assignees, invitees, and all other persons claiming occupation through it from the plaintiff's premises known as Shops 1 and 2 Benhay Art House, located at 120 Chinhoyi Street, Harare.

(b) Payment of the sum of USD22,730=99 in respect of arrear rentals.

(c) Payment of holding over damages at a monthly rate of USD5,000 together with operating costs from 1 November 2011 to the date of eviction.

(d) Payment of interest on the sums of money claimed herein at a rate which is 5 percent above the commercial bank minimum lending rate per month, or part thereof, calculated from due date to date of payment in full.

(e) Payment of costs at the scale of legal practitioner and client.”

It is common cause that the parties thereafter attempted to enter into without prejudice negotiations.

A Deed of Settlement was drafted which required the appellant to acknowledge its indebtedness in the sum of US$16,980 and to discharge its indebtedness at the rate of US$2,500 a month with effect from 1 November 2011.

Further, the appellant was to continue to pay monthly rentals of US$5,000 in accordance with the terms of the lease agreement.

The respondent's legal practitioners signed the draft Deed of Settlement. The appellant's legal practitioners did not.

As it had threatened, the respondent proceeded with the suit culminating in the holding of a pre-trial conference before a judge in chambers.

At the pretrial conference, the matter was referred to trial on the following issues:

1.1 Whether or not the respondent properly cancelled the lease agreement in respect of Shops 1 and 2 Benhay Art House, No.120 Chinhoyi Street, Harare.

1.2 Whether or not any agreement for the out of court settlement of this matter was concluded between the parties.

1.3 If so, what were the terms of the agreement?

2.1 Whether or not the respondent was entitled to an eviction order.

For the purposes of the trial, the court a quo formulated the issues that were before it for determination as:

1. Whether the respondent gave adequate notice of intention to cancel the lease agreement before the agreement was cancelled.

2. Whether there was a valid cancellation of the lease agreement between the parties.

3. Whether the parties entered into a separate agreement relating to the outstanding rent.

The court a quo found in favour of the respondent and issued the order referred to above.

In arriving at its decision, the court a quo noted that clause 3.2 of the lease agreement stipulated that rent was to be paid monthly in advance, at the latest by the seventh day of the month.

It also found, that, clause 12 stipulated that if rent was not paid as agreed, or where the tenant breached any other condition of the agreement and remained in default for a period of fifteen days after being given notice in writing by the landlord, then, the landlord could cancel the lease forthwith and retake possession of the premises without prejudice to any claim for damages.

The court also found, that, in the light of these clauses, the letter dated 26 September 2011 did not effectively cancel the lease agreement.

The court noted, that, instead, the letter gave the appellant three days to rectify the breach and that this period was contrary to the agreement which allowed for a period of fifteen days to remedy a breach.

The letter in question was delivered to the appellant on 27 September 2011. The court, therefore, found that, that is when the fifteen days contemplated by clause 12 began to run.

Consequently, the court concluded, that, the appellant had up to 12 October 2011 to remedy the breach.

Accordingly, the court a quo found, that, by 12 October 2011, when the respondent issued summons, it did so in compliance with the lease agreement as the fifteen days from the date the appellant received the letter had elapsed.

The court further found that the letter of 26 September 2011, by which the respondent said it cancelled the lease agreement, had the effect of placing the appellant in mora.

Thereafter, the court reasoned, the appellant had fifteen days from the date of being placed in mora to remedy the breach, failing which the respondent had the right to cancel the agreement.

The court further determined, that, there was no compromise agreement as, by the appellant's own admission, it failed to sign the Deed of Settlement.

The court a quo, therefore, granted the respondent's claim in its entirety.

The appellant has noted the present appeal on the following grounds:

“1. The court a quo erred in granting an order for the monetary claim as made out in the summons when it was apparent from the evidence that this money had been cleared.

2. The court a quo erred by extending the time of notice after it had made a finding that there was insufficient notice given.

3. The court a quo erred in finding, as it did, that notice, though insufficient, was given, when, in actual fact, the respondent cancelled the agreement of lease without giving the notice required in terms of the agreement.

4. The court a quo misdirected itself as it made a finding that there was no compromise reached by the parties because the Deed of Settlement was not signed by the appellant, yet, the Deed was for proof purposes only as the agreement had already been reached.

5. The court a quo erred, generally, by ordering eviction after the compromise and when the arrears had been cleared.

6. The court a quo erred by making a finding that the appellant's witness was not credible when he gave straight forward evidence.”

In its heads of argument, the respondent has conceded that its cross appeal was ill-founded. As a consequence, it was not proceeding to argue the same.

The concession is proper.

The cross-appeal sought to challenge findings of fact made by the court a quo without a corresponding prayer to alter the judgment itself.

The concession leaves only the main appeal for determination.

In my view, the remaining issues for determination, therefore, are the following:

(i) Whether the lease was properly cancelled;

(ii) Whether the court a quo should have ordered the eviction of the appellant from the premises;

(iii) Whether the parties reached a compromise; and

(iv) Whether the court a quo was correct to grant the monetary claim in its entirety.

The appellant contends, that, the court a quo fell into error in three respects:

(i) The first, it argues, is that the court found that the respondent was required, in terms of the agreement of lease, to give notice to the appellant to rectify its breach and that the former did in fact give the notice aforesaid.

The appellant argues, that, the respondent was obliged to give it fifteen days notice before it could validly cancel the lease. Instead, the respondent only availed it notice amounting to three days.

As a consequence, there was no notice and the finding by the court a quo, that there was notice and a valid cancellation consequent thereto, was erroneous.

A lease comes into being once the landlord and the tenant have agreed on the formalities that form the basis of their contract.

There must be a property available for lease and the rent in respect thereof must be settled.

The lessor's obligation is to make the property's occupation, use, and enjoyment available. In fulfilling this obligation, he has to refrain from disturbing the lessee in the enjoyment of the property leased and he must maintain the property in the condition agreed upon. In addition, the property must be fit for the purpose for which it is being let. Further, he must warrant the lessee against eviction by a third party with better title.

The primary obligations of the lessee are to pay the rent and incidental costs, and the charges incidental thereto, at the proper time and place agreed in the agreement, and, at the time of termination of the lease, to restore the property in the same condition he would have found it.

In casu, it is not in dispute that the appellant fell behind in the payment of its rent and accumulated arrears.

The breach is admitted.

The accumulation of arrear rentals is the cause of the conflict between the parties.

The respondent cancelled the lease after alleging a breach on the part of the appellant.

Cancellation of a contract is a legal act that delineates the relationship between the parties to the contract at a specific moment. Not every breach entitles the injured party thereto to cancel the contract.

The trite position is that, unless otherwise agreed, it is only that breach that goes to the root of the contract that can give rise to a right to cancel. In other words, it is a breach that goes to the root of the contract that entitles the aggrieved party to cancel.

The court a quo agreed with the appellant on the question of notice.

It found, however, that, the respondent had given notice to the appellant to rectify its breach when summons was issued for the eviction of the appellant and its assignees. The court reasoned as follows:

“In my view, the letter of 23 September 2011, did not effectively or adequately cancel the lease agreement. It gave the defendant 3 days within which to rectify its breach. Clause 3.2 as read with clause 12.2 of the lease agreement clearly stipulates that fifteen days be given to the defendant within which to rectify the breach.

That letter was delivered to the defendant on 27 September 2011. That is when the fifteen day period began to run. The defendant had up to 12 October 2011 to remedy the breach.

Letters were exchanged between the parties, on a without prejudice basis, in settlement negotiations.

On 3 November 2011, well after 12 October 2011 when the defendant was legally obliged to remedy its breach, the plaintiff indicated that the defendant should sign the draft deed of settlement. The defendant did not do so, by its own admission.

It is my view, that, by 12 October 2011, when the plaintiff issued summons for eviction and for recovery of arrear rentals, it did so in compliance with the provisions of the lease agreement. The stipulated period within which the defendant ought to have remedied its breach had lapsed.

After 12 October 2011, the plaintiff became entitled to cancel the lease agreement, and to re-enter its premises. By coincidence, summons for eviction was issued on 12 October 2011, which I accept constituted notification of intention to cancel the lease agreement at common law.”

Although the respondent has not persisted with the cross-appeal, it does not support the finding by the court that notice was required before the contract could be cancelled.

It persists with the contention that the lease was validly cancelled. The respondent contends that the lease did not require such notice.

The manner of cancellation was the cause of contention between them, the critical issue being whether or not the respondent was obliged to give the appellant fifteen days notice to rectify its admitted breach and pay the arrears before the lease could lawfully be cancelled.

Where the parties to a contract have settled a procedure for the termination of the agreement, they are bound by that procedure.

This was the dictum in Minister of Public Construction v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S), wherein this Court said…,.:

“I do not understand the above quotation to mean that the appellant was not entitled to terminate the contract. The appellant may well have been entitled to do so, but, where parties to a contract have agreed upon procedures for terminating an agreement, they are bound by the provisions spelling out those procedures as if they had been imposed upon them by law; and, a departure from the agreement procedures will not result in an effective termination of the contract. All that was required of the appellant was, if there was justification for terminating the contracts, to terminate them in compliance with the procedures spelt out in clause 20(a).”

There is ample authority for the proposition, that, in the absence of an agreement to the contrary, a party who wishes to exercise his right to cancel a contract must convey such decision to the other party before the cancellation can become effective.

There is also authority to the effect, that, this applies equally to a notice calling upon the defaulting party to purge his default.

The ratio for the proposition is that termination of a contract has significant and over-reaching consequences upon the reciprocal rights and duties of the parties to the contract.

In Swart v Vosloo 1965 (1) SA 100 (A), HOLMES JA said the following:

“…, it must be taken as settled, that, in the absence of agreement to the contrary, a party to a contract who exercises his right to cancel must convey his decision to the mind of the other party, and cancellation does not take place until that happens.”

Generally, as in this case, the payment of rent for leased premises must be effected within a stipulated timeframe. Where the parties have fixed a time for performance, and the debtor does not perform accordingly, the debtor is in mora.

In this scenario, the creditor does not need to demand performance from the debtor. In legal terms, this is said to be in mora ex re; that is, mora from the transaction itself.

Reliance for this proposition may be found in a paragraph to that effect by the learned authors HUTCHINSON, Van HEERDEN, VISSER & Van Der MERWE in their book Willes Principles of South African Law, 8ed…, to the following effect:

“If the time for performance has been fixed, performance must be made by the time agreed upon. If the debtor has culpably failed to perform his obligations by such time, he is automatically in default or in mora (debitoris). Mora, in this case, is known as mora ex re for no notice to the debtor is necessary, the rule being dies interpellatio pro homine.

Where the time for performance has not been fixed by the contract, the general rule applies; namely, that, performance may be demanded immediately or within a reasonable time depending on the nature of the obligation and the surrounding circumstances; provided, of course, that the party making the demand is himself able and willing to perform his own obligations.

Although the performance may be due and claimable forthwith, the debtor need not perform until he is called upon by the creditor to do so.

Only when a specific time for performance has been set can the debtor's default possibly constitute a breach of contract.

Thus, the creditor must make a demand calling upon the debtor to perform by a date reasonable in the circumstances, and, if the debtor fails to comply with the demand by the specified date, he will fall into mora.

This form of mora is known as mora in persona, since it arises as a result of the personal intervention of the creditor.

The demand or interpellatio may be made either judicially, that is, by means of a summons, or extra-judicially, by means of a letter of demand. But, no formal demand is required, and it may be made orally…,.”

See Noel v Cloete 1972 (2) SA 150.

The principle of law related above was discussed in the South African case of Legagote Development Co. v Delta Trust & Finance Co. 1970 (1) 584 TPD wherein VILJOEN J opined at p587C-E:

“In my view, this was an unnecessary onus which the plaintiff assumed. The plaintiff relied on a term of the agreement in which a date for performance had been fixed, and it would have been sufficient to allege that the defendant had not performed before or on that day and that the plaintiff suffered damages as a result.

In expressing this view, I have not lost sight of the statement by Wessels, Law of Contract, 2nd ed, para 2858, that, before there can be mora, the failure or delay must have been due to the culpa of the debtor; but, Steyn, Mora Debitoris (to whom Wessels refers) makes it clear at p42 what type of culpa he postulates, namely, that the debtor must or should have been aware of his obligation to perform timeously and of the nature of the performance.

See also Victoria Falls Power Co. Ltd v Consolidated Langlaagte Mines Ltd 1915 AD 1 at p31; West Rand Estates Ltd v New Zealand Insurance Co. Ltd 1926 AD 173 at p195.”

It is settled, therefore, that, where the contract itself does not fix the time for performance, a creditor may fix the time for performance by making demand for the due performance of the obligation by the debtor by a certain date; the demand in this particular instance being interpellatio.

If the debtor fails to perform once demand has been made, the debtor is in mora, justifying cancellation.

Whether or not a party to a contract has the right to cancel, based on a breach, depends on the agreement between the parties as to what entitles the aggrieved party to exercise the right to cancel and if the right has been exercised properly.

The parties intention, expressed in the contract, is at the heart of the decision to exercise the right.

In his book, The Law of Contract in South Africa, 3ed the learned author RH CHRISTIE says the following…,:

“It is undoubtedly correct, that, if the contract contains an express forfeiture clause permitting cancellation for a specified breach, the court will not investigate the materiality of the breach but will give effect to the clause however hard the result.

But, the flaw in Greenberg J's reasoning seems to be a mis-application of the concept of a tacit term.

The question the officious bystander ought to be asking is not: 'Do you both intend there should be forfeiture for any breach of this term however trivial?' to which he would probably receive conflicting answers; but 'Do you both intend there should be forfeiture for such a breach of this term as to strike at the root of the contract?' which would almost certainly result in his dismissal with a common 'Oh, of course.'”

The appellant contends, that, the agreement required the respondent to place it in mora before it could lawfully cancel the lease.

It argues that the notice required in the contract was fifteen days.

The appellant contends, that, the lease provided for such notice and that the cancellation was invalid absent such notice.

It posits that the respondent, in complete defiance of the terms of the lease, gave it, the appellant, three days to remedy the breach.

It contends further, that, the respondent paid no regard to the terms of the lease agreement and proceeded to exercise a right that the agreement did not provide for.

Further, the appellant suggests that the termination of the lease by the respondent was summary and not permissible in law.

It further suggests, that, the lease agreement in the present matter provided for a notice period and that the demand or notice could not have been made by means of a summons as posited by the respondent. It argues that the court should find the cancellation was invalid in this scenario.

My considered view is that, as evinced in the agreement, the parties intention guides the court.

On a consideration of the principles set out above, it is evident that the correctness of the finding by the court a quo, that the lease was cancelled lawfully, can only be considered by construing the clause relating to the payment of rent against the one dealing with breach.

The clause that delineates breach is clause 12, which reads as follows:

“12. Breach

If -

12.1 Any rent is not paid on due date; or

12.2 The tenant commits any breach or fails to observe or perform any of the terms and conditions of this agreement and remains in default for a period of fifteen (15) days after the giving of notice in writing by the landlord drawing attention to the breach or omission requiring it to be remedied;
the landlord may forthwith cancel this lease and re-enter upon and take possession of the premises without due prejudice to any claim for damages which the landlord any have against the tenant for any breach of the lease by the tenant.”

In turn, the clause providing for rent reads as follows:

“3. Rent

3.1 The rental for the remaining period of this lease shall be the sum of USD1,000 per month.

Any other market-related figure may be agreed between the parties from time to time in writing.

3.2 The rental shall be paid monthly, in advance, within the first seven (7) days of the month, free of bank charges whatsoever on or before the first day of the month throughout the period of this lease and any renewal and extension thereof.

3.3 Any overdue rent or any other monies, including operating costs, which the tenant fails to pay on time shall attract interest calculated at 5 percent (five percent) above the commercial bank minimum lending rates per month or part thereof from due date until payment in full.”

Thus, the critical consideration is whether the finding by the court a quo, that the respondent was required to give notice to the lessee, and, in fact, gave the requisite fifteen days notice to remedy its mora, was the correct finding in light of the terms of the contract and the surrounding circumstances.

The clause relating to breach is in two parts. The critical issue for consideration is whether the construction placed on the clause by the court a quo can pass scrutiny.

In casu, the contract of lease provided that if rent was not paid on due date as agreed, or if the tenant did not rectify any breach after fifteen days notice to do so, then, the landlord was entitled to cancel the lease immediately and take possession of the premises.

The issue in contention is whether, in the present case, the breach by the appellant of its obligations entitled the landlord to cancel the agreement immediately upon failure to pay the rent.

I find that the court's construction a quo of the clause on breach was incorrect. It went against established principle.

The clause is in two parts with 'or' joining the parts. The word 'or' is the determining factor in the construction of the clause.

The first part provides for failure to pay rent, with the second providing for breaches in general.

The latter part, relating to general breaches, is the one calling for notice to be given to the lessee to rectify the breach within fifteen days from the date of issuance of the notice by the lessor.

What was at issue in casu did not relate to general breaches. It was concerned with the sole failure to pay rent - a material breach going to the root of the contract.

The clause should be construed in a manner that gives effect and meaning to “or” such that the two parts are read to be disjunctive as opposed to conjunctive.

Within this jurisdiction, the meaning to place on the word 'or' has been determined in the case of S v Ncube & Ors 1987 (2) ZLR 246. At p264E, GUBBAY CJ, commenting on the word 'or' had this to say:

“In the first place, the word 'or' is usually treated as disjunctive unless there is a compelling indication that in its context, it means 'and': see Colonial Treasurer v Eastern Collieries Ltd 1904 TS 716 at 719; Hayward, Young and Co. (Pty) Ltd v Port Elizabeth Municipality 1965 (2) SA 825 (AD) at 829B; Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board & Ors 1982 (4) SA 427 (AD) at 444C-D.”

In turn, in Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board & Ors 1982 (4) SA 427 (AD), the court opined that:

“That conclusion rests on an interpretation of section 15(2)(a) with which I cannot agree, viz that paras (i),(ii), (iii), and (iv) of section 15(2)(a) are to be read conjunctively.

No glaring absurdity or other compelling reason for disregarding the ordinary meaning of language suggests itself for construing 'or' conjunctively in the several places where it occurs in section 15(2)(a).

On the contrary, there are weighty considerations which, in my view, point to an intention to attribute to the word 'or' its normal meaning rather than an intention to treat 'and' as a substitute for 'or.'

The first consideration is that a conjunctive interpretation would necessarily require proof of paras (ii) and (iv) in every case whereas these paragraphs concern issues which may often be irrelevant. The second consideration is this: in contra-distinction to the use of 'or' between paras (i)-(iv), the word 'and' links paras (i)-(iv) with para (v); a clear indication that the Legislature had no intention of deviating from the ordinary meaning of two words which are in daily use.”

The Oxford Dictionary defines 'or' as a disjunctive that connects two or more alternatives. It also connects words, phrases, or clauses with the same grammatical meaning.

It was therefore imperative that the court a quo interpret the whole clause, as it was duty bound to do, in order to give meaning to the word 'or' in the clause.

A perusal of the judgment leaves one with the impression, that, the court a quo paid scant or no attention to clause 12.1. Instead, the court focused on clause 12.2.

The court, to that extent, did not interpret the whole clause.

Instead, it placed attention on the clause relating to default in general. The critical clause on rent remained untouched, and, as a result, the decision was reached based on an erroneous reading of the clause....,.

After hearing counsel in this matter, we allowed the appeal with costs and issued an order in the following terms:

“IT IS ORDERED THAT:

1. The appeal succeeds with costs.

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

'The application is hereby granted in terms of the draft order.'”

We intimated that our reasons would follow in due course. These are they.

The appellant (hereinafter referred to as 'Portland') and the second respondent (hereinafter referred to as 'Bak Logistics') are private companies duly registered as such under the laws of this country. Portland is a producer of cement which is sold both locally and externally. Bak Logistics provides warehousing and bulk storage services to the general public.

The first respondent (hereinafter referred to as 'Tupelostep') is a company registered under the laws of South Africa. It has its headquarters in that country. It provides extensive haulage freight services throughout Southern Africa.

At the beginning of 2012, Portland obtained orders for the export of cement to Mozambique. Sometime in February or March 2012, Portland engaged Tupelostep to arrange the transportation of cement into Mozambique on its behalf.

The terms of the contract obliged Portland to convey the cement to Tupelostep by rail. In turn, Tupelostep would arrange for the storage of the cement pending receipt of export documents from Portland.

In order to comply with its obligations under this contract, Tupelostep entered into an agreement with Bak Logistics for storage and warehousing of the cement pending its conveyance to Mozambique.

On receipt of clearance documents from Portland, Tupelostep would then arrange for the transportation of the cement by road. The process would, on occasion, entail the hire of vehicles from third parties. There was, however, no contract between Portland and Bak Logistics, and Portland was not privy to the contract between Tupelostep and Bak Logistics.

In September 2012, Portland transported a consignment of 1,270 tons of cement to Tupelostep by rail. It was stored with Bak Logistics.

A dispute then arose between Portland and Tupelostep regarding charges claimed by the latter in the discharge of its obligations and services under the contract. The parties attempted to settle the dispute but failed.

In December 2012, Tupelostep advised Portland that it would no longer allow movement of stock from the warehouse unless it was paid certain sums of money being claimed by it for demurrage and transportation costs.

On 16 January 2013, Portland gave notice to Tupelostep of its intention to terminate the mandate for storage and transportation of the cement.

On 29 January 2013, Portland addressed an email to Tupelostep demanding the release to it of documentation availed to Tupelostep in respect of the consignment of cement under its control and in the possession of Bak Logistics.

In turn, Tupelostep responded by refusing to release the documents in its custody for a number of reasons which are not germane to the resolution of this dispute.

On 4 February 2013, Portland filed an urgent application with the High Court in respect of which it sought relief expressed as follows:

“INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief;

1. That 1st and 2nd Respondent be and are hereby ordered to release to applicant the applicant's cement being 1,270 tons of cement held by 1st and 2nd respondent at 2nd respondent's premises at 106 Dartford Road, Willowvale Industrial Area, Harare.

2. That the proceeds of sale of the cement be held at a trust account in the law firm of Messrs Gill, Godlonton & Gerrans of 7th Floor, Beverly Court, 100 Nelson Mandela Avenue.

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

1. That the proceeds of the cement held by Messers Gill, Godlonton & Gerrans in their trust account be disbursed in terms of an order of this Honourable Court confirming the entitlement of either party to such proceeds.

2. That the costs of this application be borne by the party succeeding in the anticipated litigation between the parties. (sic)”

The application was opposed by both respondents.

The High Court heard the parties on the question of urgency and decided that the application was not urgent.

The court then dismissed the application with costs on the basis of lack of urgency.

This appeal is against that decision.

It was contended that the High Court erred in the exercise of its discretion, and that, to that extent, it had misdirected itself.

Portland approached the High Court for urgent relief on the premise that Tupelostep was holding on to cement which belonged to the former and that its actions were illegal and unjustified.

It was also alleged, in the certificate of urgency, that, cement, by virtue of its hygroscopic nature, had a limited lifespan and that any continued delay in its release to Portland would result in financial loss to Portland.

Whilst accepting that commercial interests can be advanced as a basis for urgency, the learned judge in the court a quo found that the urgency in the matter before him was self-created. This is what the learned judge stated:

“I am however persuaded by counsel for respondents argument, that, the urgency pleaded by the applicant is self-created. In the first place, it was not denied that the cement has been with the respondents since September 2012. If, therefore, cement has a short shelf life, why did the applicant not seek its release much earlier? Secondly, the argument that it tends to attract moisture is as relevant now as it was from the onset of the rainy season. The need to act was ever present from the onset, taking into account the nature of the product that is in dispute. In other words, the matter cannot assume more urgency towards the end of the shelf life of a product whose delicacy has never been in doubt.”

It seems to me that the court a quo determined the matter on facts which were not before it.

The consignment of cement was sent to the warehouse in September 2012, but, the record shows that there was movement of stocks from the warehouse without hindrance. The problem arose on 16 January 2013 when Tupelostep wrote an email to Portland advising that a halt had been placed on the movement of the product from the warehouse on its instructions.

That is when in fact the need to act arose and not in September 2012 as stated by the learned judge in the court a quo.

This fact is confirmed by the opposing affidavit filed on behalf of Tupelostep in which the statement is made that:

“Up until 15 January 2013, the first respondent never prevented the removal of cement.”

It is therefore accepted by Tupelostep that cement was being moved up until that date.

If Portland had the right to remove cement up until that date, it follows that the need to act cannot, by any stretch of the imagination, have arisen prior to that date.

In its judgment, the court accepted that what triggered the application was the negation, on 31 January 2013, of an agreement by the parties allowing the removal of the cement by Portland.

The application was filed on 4 February 2013 - a mere four days after the agreement was negated by Tupelostep.

The suggestion that the cement should have been removed in September 2012 is therefore not supported by the record, as, the storage in September was for purposes of facilitating its transportation. The storage was part and parcel of the modus operandi of the contract by the parties.

I am satisfied that the matter ought to have been dealt with on the basis of urgency. No delay had been established on the respondents papers.

Portland also alleged urgency on the premise that cement had a limited shelf-life and that any delay in access to the product, for purposes of sale, would result in economic loss.

Whilst accepting that the law recognised economic loss as a factor for urgency, the court rejected an argument for the granting of relief on this basis on the grounds that the cement had been with Tupelostep and Bak Logistics since September 2012 and that its release should have been sought earlier.

Again, the learned judge fell into error in his assessment of the evidence before him.

The Court placed reliance on the date when the consignment was sent to Bak Logistics and fell into the error of regarding that date to be the time at which it should have sought its removal from storage. The court a quo failed to appreciate, that, the cement was destined for export orders and that any failure on the part of Portland to deliver would cause it harm in the eyes of its external customers.

In addition, the refusal to release export documents would place Portland at cross purposes with the exchange control authorities through its failure to acquit CD1 export forms.

These factors, although adverted to in the application, were not dealt with by the court a quo.

Tupelostep is a peregrinus, a fact which was not disputed before the court a quo.

It was contended on behalf of Portland, that, the fact that Tupelostep is resident in South Africa would tend to complicate issues as the suit would have be instituted in that country. It was contended further, that, in the event that it was sued in this country, any judgment obtained as a result would have to be registered there.

All this entails a lot of litigation and the remedy of damages then becomes theoretical.

The court a quo however felt persuaded that there was an alternative remedy available to Portland, and, consequently, there was no urgency to the application.

The practical difficulties attendant upon such a process for recovery should have been obvious to the court. The failure by the court to appreciate these factors was a clear misdirection warranting the interference by this Court with the exercise of its discretion.

However, over and above these criticisms, the High Court, having decided to determine the matter on the issue of urgency, dismissed the application on the basis that it was not urgent.

This was not the proper course to follow.

Instead, it should have removed the matter from the roll on the basis that it lacked urgency.

Such a course would have left the door open for the appellant to place the matter before the court for determination as an ordinary court application.

In Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust SC71-14, ZIYAMBI JA remarked as follows:

“However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.”…,.

I respectfully associate myself with the dicta by her Ladyship. It follows, that, the dismissal of the application for want of urgency is improper.

It is also contended on behalf of Portland, that, in addition to this, the court fell into further error by commenting on the merits of the case.

It is contended that even if this court were to remit the matter for hearing before the High Court, a plea of res judicata could be successfully raised by the respondents.

I agree, in Purchase v Purchase 1960 (3) SA 383, CANEY J had this to say:…,.

“…,. He submitted, that, that dismissal of an application had the effect of an absolution; he likened that to dismissal of an action, which is an absolution from the instance. Becker v Wertheim, Becker and Leveson, 1943 (1) P.H.F 34 (A.D.). I am disinclined to agree with him, for I think that dismissal and refusal have the same effect, namely, a decision in favour of the respondent.”

This principle was approved in African Farms & Townships v C.T. Municipality 1963 (2) SA 555 by STEYN CJ where he stated as follows:…,.

“Counsel for the appellant further argued, that, the order in the original proceedings, which as such is an order dismissing the application, is to be equated with absolution from the instance, leaving the issue undecided.

In my view, there is no substance in that argument.

As Sande, De Diversis Regulis ad L 207, points out, the res judicata is not so much the sentia, the sentence, or the order made, as the lis or negotium, the matter in dispute or question at issue about which the sentia is given, or the causa which is determined by the sentia judicis.

As pointed out in Purchase v Purchase 1960 (3) SA 383 (N) at p385, dismissal and refusal of an application have the same effect, namely, a decision in favour of the respondent.

The equivalent of absolution from the instance would be that no order is made, or that leave is granted to apply again on the same papers.

In Commissioner of Customs v Airton Timber Co. Ltd 1926 CPD 351 at p359, WATERMEYER J draws a distinction between the actual judgment and the reasons for judgment, and the question is not necessarily determined by the judgment, the matter is not res judicata.”…,.

Being a Court of Appeal, this Court cannot interfere with the exercise of judicial discretion by a lower court except in very limited circumstances.

Counsel for the parties in this case have advocated two approaches to the manner of determining the appeal.

The approach favoured by counsel for the appellant is set out in Crouch v Dube 1997 (1) ZLR 427 (S). At 436D-437F KORSAH JA described it as follows:

“Learned counsel were in agreement that the remedy provided under Rule 359 was of a discretionary nature, but, they differed as to the category of the discretion which the court of first instance exercised under Rule 359. The reason for their disagreement is exemplified in the following statement by STEGMAN J in Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd 1989 (4) SA 31 (T) at 35I-36H:

'…, when the exercise of a discretionary power by a court of first instance is taken on appeal, the court of appeal is faced with at least two distinct tasks. The first task relates to the general characterisation of the discretionary power in question in the case. The purpose is to determine whether the function of the court of appeal is to re-examine any aspect which the parties may seek to re-argue on the existing record; or whether such court's function is limited to an enquiry into the question whether the court below exercised its discretion judicially.

When that task of characterisation has been performed, the second task (if it arises at all) relates to the examination of the particular exercise of the discretionary power by the court of first instance, and the decision whether or not to interfere with it. The nature of such second task varies according to the characterisation of the discretionary power in terms of the first task.

There are at least two categories to one or other of which the discretionary powers exercised by courts of first instance may be assigned.

The first of such categories relates to matters having the character of being so essentially for determination by the court of first instance that it would ordinarily be inappropriate for a Court of Appeal to substitute its own discretionary power for the exercise thereof decided on by the court of first instance.

The first matters identified as falling within this category were those discretionary powers that related to a judge's control of the conduct of the business in his own court. Later, the first category was broadened to include certain other discretionary powers.

The second category relates to matters having the character of being equally appropriately determinable by the court of first instance and the court of appeal.

When a particular discretionary power has been found to be of the character which places it in the first category, the Court of Appeal has no jurisdiction to substitute its own exercise of discretionary power for that decided upon at first instance, unless it has been made to appear that the exercise of the power at first instance was not judicial. That can be done by showing that the court of first instance exercised the power capriciously, or upon a wrong principle, or with bias, or without substantial reasons.

When a particular discretionary power has been found to be of the character which places it in the second category, the Court of Appeal has jurisdiction to substitute its own exercise of the discretion for that decided upon at first instance without first having to find that the court of first instance did not act judicially. Sufficient reason for the Court of Appeal to do so must be shown, but, the reason need not reflect on the judiciality of the decision at first instance. The Court of Appeal may interfere on the simple basis, that, it considers its own exercise of the discretionary power to be wiser or more appropriate in the circumstances.'”

Counsel for the respondents, however, has placed reliance on Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S). At p62F-63A, the learned GUBBAY CJ stated:

“The attack upon the determination of the learned judge, that there were no special circumstances for preferring the second purchaser above the first – one which clearly involved the exercise of a judicial discretion: see Farmers Co-operative Society (Reg.) v Berry 1912 AD 343 at 350.

These grounds are firmly entrenched.

It is not enough that the Appellate Court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, it if it mistakes the facts, if it does not take into account some relevant consideration, then, its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution, provided always it has the materials for so doing.”

The substance of the principles in the authorities relied upon by both counsel is the same.

What was at issue in the lower court was whether or not the court, in the exercise of its discretion, considered the application placed before it to constitute urgency justifying the matter being heard and determined outside the normal roll.

In the case of Crouch v Dube 1997 (1) ZLR 427 (S) it was held by the court, that, this category of exercise of discretion by an Appeal Court cannot be interfered with unless it has been made to appear that the exercise of the power at first instance was not judicial.

Both counsel are agreed, that, the case in point is not one where the Appeal Court is in as good as the court of first instance of being equally able to determine the matter and substitute its own discretion for that of the court of first instance.

An Appeal Court cannot interfere with an exercise of judicial discretion unless it can be shown, that, some error was made in the exercise of that discretion or that the court acted on a wrong principle or allowed extraneous or irrelevant material to guide or affect its decision.

Although purporting to dismiss the application on the basis that it lacked urgency, the court a quo did make pronouncements on the merits of the application. At p2 of the judgment, the learned judge states:

“A perusal of the papers convinced me that there was no basis for granting the interim relief sought and I declined to set the matter down.”

Later on in the judgment…, the learned judge again comments on the merits of the application and states:

“I would have held the same in the present case, save that the reasons advanced for seeking interim relief cannot be sustained.”

And later at p3:

“If the respondents are owed substantial sums of money by the applicant, they would be entitled to a right of retention over the applicant's goods. There is nothing unlawful about such retention as claimed by the applicant. It seems the applicant is basing illegality on the respondents refusal of the security that is being offered. But, as contended by Mr Uriri, no adequate security arrangements have been made by the applicant. For example, he highlighted that security equivalent to the value of the goods is far less than what is owed to the respondents. He further pointed out that there has not been payment of transport costs acknowledged by the applicant.”

As a consequence of the comments by the learned judge as to the merits of the dispute, I am not persuaded by the argument advanced by counsel for the respondents, that, the learned judge in the court a quo did not deal with the matter on the merits.

The judgment has specific findings on the merits of the application, which findings are not confined to the issue of urgency.

The judgment speaks to the security being offered by the applicant being less than what is allegedly owed as transport costs. It mentions that no costs had been paid even though the sum due was acknowledged by the applicant.

It is for the above reasons that the court determined that the appeal had merit and granted the same with costs.

This is an appeal against the judgment of the High Court (“the court a quo”) which effectively held that a dispute over which party, between the appellant and the first respondent, owned certain mining claims, registered in the appellant's name, was incapable of resolution on the papers.

At the hearing of the appeal, the Court found that the decision of the court a quo was incorrect, for the reason that it failed to appreciate the evidence of registration of the mining claims in the appellant's name.

The appeal was allowed with costs and the judgment of the court a quo set aside.

The Court indicated that reasons for the decision would be given in due course. These are they.

The facts giving rise to the appeal are largely common cause. They may be summarised as follows:

The appeal revolved around mining claims at Wendale 43 Block situated in Domboshava registered under certificate no.18007. The parties were all registered companies, having been registered in terms of the company laws of Zimbabwe.

In February 2018, the first respondent wrote to the appellant, seeking from it a tribute arrangement in respect of the mining location in issue.

The request was rejected.

Despite the rejection, on 30 May 2018, the first respondent was observed exploiting minerals at the appellant's mining location. When confronted, the first respondent indicated that it had partnered with the second respondent in a mining venture for the exploration of minerals in the area in dispute.

The appellant contended, that, it was the registered holder of the said mining claims, as evidenced by a certificate of registration filed of record.

It was alleged by the respondents, that, the Minister of Mines and Mining Development (“the Minister”) had gazetted the area in dispute as a reserved area. They further alleged, that, the reservation of the area by the Minister had a profound effect on the status of the mining area, in that title over mining claims vested in a party only through the issuance of special grants. It was alleged that the legal status of the mining claims changed as a result of the reservation.

As holders of a special grant in the mining area, it was alleged that the respondents were the rightful owners of the mining claims in question.

The appellant approached the court a quo, in an application for a provisional order, in which it sought an interdict against the respondents and any person acting under their authority, preventing them from carrying on mining activities on the disputed mining claims. It further sought an order that the respondents, and any person acting under their authority, vacate the mining claims and remove all mining equipment belonging to them. The appellant sought an order declaring it to be the holder of title over the mining claims in dispute.

The respondents raised two points in limine in opposing the provisional order sought:

(i) The first point was that the Minister had not been joined in the proceedings.

(ii) The second point was that there was a material dispute of fact.

The import of the first objection was not understood, as the respondents were not claiming that they had the right to exploit the mineral resources at the mining location in dispute.

Regarding the second preliminary objection, the nature of the dispute was not identified. As such, the court granted a provisional order pending the determination of the matter on the return day whereupon the respondents were called upon to show cause why the appellant should not be declared the rightful holder of title over the mining claims in dispute.

On 15 June 2018, the appellant filed an application for confirmation of the provisional order granted.

The respondents opposed the application.

They persisted with the two points in limine, namely, that, there was material non-joinder of the Minister, and that there was a material dispute of fact which could not be resolved on the papers.

The court a quo upheld the two points in limine and dismissed the application.

The court a quo was of the view, that, the dispute of fact as to which party was the rightful owner of the mining claims was apparent to the appellant before the application was instituted. It said that it should have been clear to the appellant that the dispute would require the involvement of the Minister, as it related to title of a mining claim. The court a quo said at pp2-3 of the judgment:

“The Minister of Mines and Mining Development clearly has a direct and substantial interest in the subject matter of this matter because he is the authority responsible for giving title to mining claims, including the one in dispute….,.

The respondents allege that the mining claim no longer belongs to the applicant because it was forfeited by the Minister responsible for Mines and Mining Development.

This dispute of fact as to who holds title cannot be resolved on papers….,.

It would also have been clear to the applicant that this dispute would require the involvement of the Minister of Mines and Mining Development to resolve as it pertains to title to a mining claim. It would be untidy to refer the matter to trial on the bulky papers filed and in circumstances where an interested party has not been joined….,.

It seems to me that it is appropriate, given that the dispute of fact was obvious, to dismiss the application….,.”

Dissatisfied with the decision of the court a quo, the appellant noted the appeal on three grounds, which essentially raised one issue for determination:

The issue was whether there was a material dispute of fact.

It was argued, that, the court a quo misdirected itself in dismissing the application for the confirmation of the provisional order on the basis that there was a material dispute of fact.

At the hearing of the appeal, counsel for the appellant submitted, that, the appellant has held title over the mining claims since 1974, as evidenced by the certificate of registration.

It was alleged that the same was inspected by the Minister, who confirmed the ownership of the mining claims by the appellant.

It was argued, that, mineral rights are real rights and once acquired they remain effectual until lost in terms of the Mines and Minerals Act [Chapter 21:05].

The certificate of title was filed of record and it was submitted that it was current.

It was also argued, that, the Ministry of Mines and Mining Development did not reserve the block over which the appellant had mining rights: therefore, the appellant's rights were never lost.

The appellant relied on the case of Chase Mineral (Pvt) Ltd v Madzikita 2002 (1) ZLR 488 (H)…, where the court said:

“It will be seen, therefore, that the applicant, as the holder of the registered claims, has the exclusive rights of mining the claims under dispute. Such rights are protected by section 379 of the Act…,. It is thus submitted that the respondent has been, in fact, working on the applicant's claims (and) he is therefore guilty of contravening section 379 of the Act. To suggest that the eviction order be suspended or stayed pending appeal…, so as to enable the respondent to continue mining, amounts to authorising the contravention of section 379 of the Act. That would create an untenable situation in which this court would not only be condoning, but authorizing, the criminal conduct of the respondent in breach of the provisions of the Act.”

Counsel for the respondents submitted that the finding by the court a quo, that there was a material dispute of fact incapable of resolution on the papers, was correct.

He argued that the area containing the mining claims had been reserved and that title to the mining claims could only be by way of a special grant, which was not granted to the appellant.

He also argued that both parties claimed to have obtained title to the mining claims through the Ministry of Mines and Mining Development.

The question as to which party held title, between the holder of the special grant or the certificate of registration, raised a material dispute of fact.

The respondents relied on the case of Anjin Investments (Pvt) Ltd v Minister of Mines and Mining Development and Ors HH228-16, where the court held that no person can claim any right in a mining claim falling under a reserved area without a special grant.

It was also held, that, it was for the Minister to confirm whether the appellant's title to the area, notwithstanding the reservation and subsequent special grant in favour of the second respondent, still existed.

Lastly, counsel for the respondents submitted that the appeal was without merit and ought to be dismissed.

The finding by the court a quo, that there was a material dispute of fact, is being tested as a matter of misdirection.

It is a settled principle of law that an Appellate Court will not readily interfere with the findings of fact made by a lower court.

In Beckford v Beckford 2009 (1) ZLR 271 (S)…, the following was stated:

“In any event, an Appellate Court would not readily interfere with the findings of fact made by a trial judge.”

It is trite that for an Appellate Court to interfere with factual findings of a lower court, gross misdirection must be alleged and established. This was enunciated in TM Supermarkets v Mangwiro 2004 (1) ZLR 186 (S)…, where the following was stated:

“I am also persuaded by the contention, that, the court a quo, in this particular respect, misinterpreted the evidence before it….,. The evidence makes it clear this was not so. The misdirection of the court is thus evident.”

The grounds on which the finding of the court a quo is being challenged have to be looked at from the point of view of the sequence of events.

The first issue that has to be considered relates to the issues that were before the court a quo: the main issue was whether there was a dispute of fact.

It was the respondents contention, that, there was a dispute of fact in respect to which a robust approach could not be adopted for its resolution. The appellant argued that there was conclusive evidence on record to prove that there was no dispute of fact.

What a dispute of fact entails was well articulated in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H)…, where the court said:

“A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

In Pignons S.A. de Mecanique de Precision v Polaroid Corporation 657 F 2d 482, the United States Court of Appeals had this to say regarding material disputes of fact:

“A factual dispute is material if it affects the outcome of the litigation, and genuine if manifested by substantial evidence going beyond the allegations of the complaint.”

In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence.

From the decided cases, it is evident that a dispute of fact arises where the court is left in a state of reasonable doubt as to which course to take in resolving the matter without further evidence being led.

The alleged dispute of fact, in the present case, pertained to the ownership of the mining claims where the respondents had commenced mining activities.

They averred that they were digging where they had lawful authority to dig, on the basis that a special grant had been given to them by the Mining Commissioner. They claimed, therefore, that they had rights over the mining area in dispute.

It was the same mining area that the appellant has held title over the mining claims in question since 1974 and has never ceased to hold such title.

The existence of the alleged dispute of fact, regarding the ownership of the mining claims, was not supported by the evidence on record.

The Court was called upon to test what the claim by the respondents entailed.

They alleged they had legal title over Wendale Block 43, which was granted to them by the Ministry of Mines and Mining Development through a special grant.

It is therefore critical to look at the special grant, as it was a legal document which gave the respondents authority to explore a specific mining area.

Looking closely at the appellant's certificates of registration, it is evident from the record, that, the appellant was the registered holder of claims that were specifically identified as Wendale 42 Block under registration number 18006B.M. Darwendale and Wendale 43 Block under registration number 18007B.M. Darwendale, issued in 1974.

The special grant being referred to by the respondents, as proof of title over the mining claims in dispute, was identified as relating to “an area situated within RAMSW003 Darwendale” and this area was depicted on the Ministry of Mines and Mining Development map.

The mining claims referred to in the special grant clearly differed from the location of the appellant's mining claims.

It is a misrepresentation of fact by the respondents that they had legal rights over Wendale 43 Block under registered certificate number 18007B.M. Darwendale.

The respondents mining activities were encroaching onto the appellant's claims, yet, as the evidence on the map clearly showed, the respondents should have been on a different location on the ground.

The court a quo failed to appreciate the evidence placed before it.

The appellant's rights were conferred in terms of the law and there was precedent evidence in the record proving that the appellant has always been there since 1974.

The appellant also had a letter dated 22 June 2018, filed of record, from the Ministry of Mines and Mining Development, confirming that it was the rightful owner of the mining claims in dispute. The letter reads as follows in relevant part:

“Please be advised, according to records held by this office, Wendale 43 chrome mine Registration Number 18007 BM is owned by Rio Zim Limited. The block was inspected under Inspection Certificate Number 235014P….,.”…,.

The above documentary evidence is clear and unambiguous.

A written proof of title is indispensable evidence as regards proof of ownership.

At the conclusion of the hearing of an appeal noted to the Labour Court by the appellant, the Labour Court upheld the point in limine taken by the respondent, that, the appeal was improperly before the court as it sought to impugn findings of fact rather than law.

As a consequence of that finding, the court a quo dismissed the appeal with costs.

It is against that order that the appellant has now approached this Court seeking an order setting aside that finding and remitting the matter to the court a quo for a determination of the matter on the merits.

The respondent was employed by the appellant as its Finance Director. Although both the arbitrator and the court a quo say that she was employed on fixed term contracts which were periodically renewed, the record, in fact, shows that she was employed in that capacity on a fixed three-year contract which commenced on 8 June 2009 and was set to expire on 7 June 2012.

For the duration of the contract period, either party had the right, in terms of the contract, to terminate the contract upon giving six months notice in writing of such termination.

On 27 March 2012, less than three months before her contract was set to expire, the appellant's Human Resources Committee held a meeting at which all the members present (excluding the respondent, who had been asked to recuse herself) recommended that her contract be renewed, subject to approval by the Council of the appellant.

A special executive committee of the Council met two days later and also “strongly and unanimously” recommended that the respondent's contract of employment as Finance Director be renewed for a further period of three years, on the same terms and conditions, subject to approval by the Minister.

On 7 June 2012, the date on which her contract was set to expire, the Vice-Chancellor of the appellant, a Dr P. Kurasha, wrote to the respondent advising that the Council of the appellant had decided to appoint her in an acting capacity from 9 June 2012 “until further notice”.

Pursuant to that communication, the respondent continued offering her services as Finance Director until 27 June 2013, over a year later, when she received a letter from the chairman of the Council.

The letter advised that the Council was now in a position to make a substantive appointment of a Finance Director.

In the letter, the chairman gave the appellant notice of termination of her contract of employment, effective 30 September 2013.

It bears mention, at this stage, that, as a matter of fact, the chairman of Council gave her three calendar months notice of the termination of her employment.

The letter also requested that she vacates her office immediately and that she carries out a handover-takeover of assets and records with the Acting Finance Manager.

Unhappy with the sudden turn of events, the respondent lodged a complaint of unfair dismissal with a labour officer.

Having failed to conciliate the dispute between the parties, the Labour Officer (then) referred the matter to an arbitrator to determine whether she had been unlawfully dismissed, and, if that was the case, the appropriate remedy.

In proceedings before the arbitrator, the appellant disputed that the respondent could have entertained a legitimate expectation of her contract being renewed. It argued that the respondent could not rely on a mere recommendation of a committee of the Council.

The appellant also argued, that, the respondent had accepted her termination, and, pursuant thereto, had vacated her office and accepted her terminal benefits.

In his findings, the arbitrator rejected the contention that the respondent had waived her right to appeal.

The arbitrator agonised over the status of the respondent between 7 June 2012 and 27 June 2013 when her employment was formally terminated.

He noted that the acting appointment did not “mention an extension of the fixed term contract…,.; nor does it specify the basis for such acting appointment or the duration of the same.”

He concluded that this was a contract without limit of time as there could not be an employment relationship “on a temporary basis.”

He expressed the view that the nature of the employment relationship that subsequently subsisted between the parties was one of a contract without limit of time.

Notwithstanding that conclusion, the arbitrator proceeded to determine whether the respondent had a legitimate expectation of being re-engaged.

He noted that the position that she had previously occupied had been filled by someone else in an acting position. He concluded, that, the respondent may have had a legitimate expectation of her contract being renewed, taking into account the favourable recommendation made by both the Human Resources Committee and the Special Executive Committee of Council, and the fact that she was appointed to act in the same position, albeit for an indefinite period.

Consequently, he determined that the respondent had been unfairly dismissed and that she should be reinstated to her position without loss of salary or benefits, or, alternatively, that the appellant pays damages in lieu of reinstatement.

Aggrieved by the above arbitral determination, the appellant appealed to the Labour Court. It did so on a number of grounds of appeal.

As the determination of the Labour Court was predicated on the validity of those grounds of appeal, it is necessary to set these out in full. I cite them verbatim:

“1. The Honourable Arbitrator erred at law in exploring and making a finding on the nature of the contract entered into between the parties with effect from 9 June 2012 when such was not an issue before him.

2. The Honourable Arbitrator erred, grossly, on the facts, in finding that the contract entered into between the parties, with effect from 9 June 2012, was a contract without limit of time. The Honourable Arbitrator's findings in this respect is not supported by any evidence and is so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

3. The Honourable Arbitrator made a finding to the fact, that, the respondent had legitimate expectation of renewal of a contract based on recommendations made during Council meetings.

4. The Honourable Arbitrator erred at law in relying on the proceedings and resolutions in those meetings.

The Honourable Arbitrator erred, grossly, on the facts, in finding that respondent was legitimately entitled to expect the renewal of her contract. The Arbitrator's findings in this regard are so grossly unreasonable such that no reasonable person, properly applying his mind to the matter, would have arrived at such a decision.

4.1 The Honourable Arbitrator also made a finding that the fact that the Executive Committee made its decision subject to the approval of full Council or the Minister did not deny respondent a legitimate expectation since her appointment on 7 June 2012 was not blessed with Council or Ministerial approval.

The Arbitrator's finding in this regard is grossly unreasonable as:

(a) Whether or not the consent of Council or the Minister was asked for and/or obtained for the 7 June 2012 appointment was never an issue; in any event, the 7 June 2012 appointment was a temporary appointment (sic) while the appointment allegedly expected is a three (3) year appointment;

(b) Further and any event, it is the employer's prerogative to choose which appointment to subject to approval and which not. Once one is informed that a specific appointment is subject to approval, then, without such approval, no legitimate expectation can arise.

(c) The Arbitrator also made a finding that a year's delay in obtaining Council or Ministerial approval entitled respondent to legitimately expect that her three year (3) fixed term contract will be renewed. This finding by the Arbitrator is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive to such a decision.

4.3 The Arbitrator also held that no proof of a negative decision from the decision maker was furnished, and, as a result, respondent was entitled to legitimately expect that her contract will be renewed. The Arbitrator's decision in this respect is so grossly unreasonable such that no person, properly applying his mind to the matter, would arrive at such a decision.”

In its submissions a quo, the appellant stated as follows:

1. First, that the arbitrator made a finding on an issue that was not before him and in respect of which no evidence had been led. In particular, the appellant submitted that the nature of the contract that subsisted between the parties, from 7 June 2012, was not an issue before the arbitrator, and, therefore, his finding that there existed a contract without limit of time was irregular.

2. Second, that the crux of the matter revolved around the question of legitimate expectation. The recommendation to extend her contract had not been communicated to her. It had been made by the appellant's Executive Committee of Council, not to her, but to the appellant. The respondent could not, therefore, rely on a representation that was never made to her. In any event, no representation was ever made by the appellant so as to induce her to legitimately expect that her contract was to be extended.

3. Third, the recommendation made by Council was subject to acceptance or rejection by the appellant. That recommendation was therefore “not clear, unambiguous, and devoid of relevant qualifications” as required by the law.

4. Lastly, the submission was made that criminal conduct, involving abuse of trust, had been unearthed in the finance department, and the respondent's innocence was therefore questionable. She could not therefore have expected her contract to be extended given that circumstance.

In her submissions before the Labour Court, the respondent argued that the arbitrator had correctly found that she had a legitimate expectation to be re-engaged as Finance Director. It being common cause that another person had been engaged in her place, she had therefore been unlawfully dismissed.

The respondent also took the point, that, the appeal had been noted against findings of fact and not law. No real question of law had been ventilated.

She therefore prayed that the appeal should fail on that basis and that costs be awarded in her favour.

At the hearing of the appeal, the court a quo, quite correctly, decided to determine the point in limine raised by the respondent, that the appeal was not properly before the court as it did not implicate any issues of law.

The first and second grounds of appeal were abandoned by the appellant at the commencement of the hearing. The court a quo accordingly confined its enquiry to the remaining grounds of appeal.

The court found, that, the third ground of appeal raised a factual finding since no allegation had been made that the arbitrator's reasoning was so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided would have arrived at such a conclusion.

It also found the fourth ground to have been similarly afflicted.

Whilst in this ground the appellant had alleged that the arbitrator's finding had been grossly unreasonable, the court found, that, on a perusal of the record, it was apparent that the issue whether or not the recommendation had been communicated to her had not been raised before the arbitrator. It accordingly found, that, it was improper for the appellant to have raised this issue for the first time on appeal; the issue raised before the arbitrator having been whether the respondent could rely on a recommendation made by a Committee of Council to found a claim for legitimate expectation.

The court also considered the submission by the appellant, that, the Executive Committee of Council had made its decision to recommend the re-appointment of the respondent subject to approval by the full Council and the Minister, and that, in the circumstances, no legitimate expectation could have arisen.

The Court accepted the respondent's submission, that, a legitimate expectation can arise from a representation made by, or the conduct of, the employer.

It determined, that, the placement of the respondent in an acting position, coupled with the recommendation by the Executive Committee of Council that her contract of employment be extended, gave rise to that expectation. Therefore, the arbitrator could not be faulted for relying on previous conduct by the appellant, regard being had to the fact that the two meetings that recommended her re-engagement were held before she was re-appointed in an acting capacity.

It found that the arbitrator's reasoning in this regard could not be termed outrageous or irrational.

The court also considered the attack against the arbitrator's finding, that a year's delay in obtaining a determination from the Council or the Minister, on the recommendations previously made, was a basis for legitimate expectation.

It considered, that, in the absence of a further averment that the finding was so grossly unreasonable that no person properly applying his mind to the fact would have arrived at such a decision, the attack remained one on a factual finding.

Lastly, the court a quo found that the attack against the finding by the arbitrator that “no proof of a negative decision from the decision maker was furnished” and, consequently, that the respondent legitimately expected that her contract would be renewed, did not elaborate in what way the finding was grossly unreasonable. Merely stating that the decision was grossly unreasonable does not suffice.

The court accordingly found, as it had done with the other grounds, that the appeal was improper as it sought to impugn factual findings.

Having found that all the grounds of appeal were impugning factual findings, the court a quo upheld the point in limine. Consequently, it dismissed the appeal with costs.

Hence the appeal to this Court.

The appellant seeks an order setting aside the judgment of the court a quo and remittal of the matter to the Labour Court for a determination of the dispute between the parties on the merits.

“1. The court a quo erred in finding that the grounds of appeal relied upon by appellant did not raise points/issues of law either in the primary or secondary sense of the expression.

2. The court a quo erred in finding that grounds of appeal which attack factual findings made by a Labour Arbitrator fail by that circumstance to disclose points/issues of law as required by statute.

3. The court a quo erred in failing to appreciate the distinction between the validity of grounds of appeal, on the one hand, and the sufficiency thereof, on the other, and, so erred in finding that there were no valid grounds of appeal based on the view it took to the effect that the grounds were meritless.

4. Having found, at any rate, that there were no valid grounds of appeal, the court a quo erred in -

(a) Relating to the substantive issues raised in the grounds which it had found to be non-existent; and

(b) In dismissing the appeal instead of striking it off the roll.

5. Alternatively, the court a quo erred in finding that the Arbitrator had properly come to the conclusion that respondent had a legitimate expectation of continued employment with appellant and that appellant's failure to so employ her constituted unfair dismissal.”

In its submissions before this Court, the appellant has argued, that, in large part, the determination of the court a quo was predicated on a finding that the grounds of appeal had no merit.

This, the appellant submitted, was an incorrect approach.

The court a quo was limited to an assessment of the phraseology of the grounds of appeal, without reference, at that stage, to the merits. Instead, the court assessed the merits of the grounds of appeal in order to determine whether or not they properly raised issues of law. It was for that reason that the court a quo remarked at one stage that it found “…, the arbitrator's reasoning cannot be termed outrageous or irrational.”

The merits were not a relevant consideration in determining the validity of the grounds of appeal.

Therefore, the court a quo conflated the two processes, namely, the assessment of the validity of the grounds of appeal and their sufficiency.

Further, the appellant submitted, that, if, indeed, there were no valid grounds of appeal before the court a quo, the court should have found that there was no valid appeal before it. Consequently, it should have simply struck the matter off roll instead of dismissing it.

A dismissal would ordinarily suggest that the matter was considered on the merits and was then dismissed.

The appellant has further argued, that, there was no legitimate expectation that the contract would be renewed. No evidence of the expectation was given.

Moreover, the resolution on which the respondent's claim was predicated was never officially communicated to her by the full Council of the appellant. In any event, the resolution remained a mere recommendation which meant that Council was at liberty either to accept or reject it.

Lastly, the appellant submitted, that, having found that the respondent was not on a fixed term contract, but, was on a contract without limit of time, the question of legitimate expectation did not, therefore, arise.

Since the acting appointment did not provide for the duration of the contract, she became a permanent employee whose tenure could be terminated on notice as enunciated in the case of Nyamande & Anor v Zuva Petroleum SC43-15.

The arbitrator could not, therefore, apply section 12B of the Labour Act which applies to a person on a fixed term contract.

In her response, the respondent has submitted, that, the court a quo was correct in finding that the grounds of appeal were impugning factual findings and that they were, therefore, not valid.

It is not sufficient, in formulating grounds of appeal, to merely assert that a judicial officer erred at law. The particular mistake of law should be stated, and, unless substantiated, such a ground remains one of fact.

The respondent further argued as follows:

Since the sole issue for determination before the court a quo was whether the arbitrator's findings on the issue of legitimate expectation could be impugned, that issue could only be dealt with by considering the merits.

In any event, a court can interrogate the record of the proceedings in order to resolve the question whether there is substance to the grounds themselves. Having found that the grounds raised factual issues, and that the grounds had no merit, the court a quo correctly dismissed the appeal.

Further, the court a quo was correct in finding that the respondent had a legitimate expectation that her contract would be extended.

Lastly, the submission made by the appellant, that, the contract was terminated on notice was not an issue before the court a quo and cannot, therefore, be an issue before this Court.

On a consideration of the record of the proceedings, and the submissions made by both parties before this Court, it seems to me that three issues arise for determination by this Court:

(i) The first relates to the correct approach in determining whether a ground of appeal raises an issue of law, and whether, in so determining, it is permissible for a court to have regard to the merits of the matter in order to make that determination.

(ii) The second is whether the grounds of appeal before the Labour Court raised questions of law, i.e. whether they were valid grounds of appeal.

(iii) The third is whether the court a quo was correct in dismissing the appeal once it found, as it did, that the grounds of appeal were not valid.

I consider each of the issues in turn.

There is a dispute in this matter on the correct approach by a court in determining whether a ground of appeal raises an issue of law. There is, therefore, need to clarify the correct approach in assessing whether a ground of appeal complies with the legal requirement that it must be predicated on an issue of law.

The term “question of law” is used in three distinct, though related, senses:

(i) First, it means a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit;

(ii) Second, it means a question as to what the law is; and

(iii) Third, any question which is within the province of the judge instead of the jury or assessors;

See Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S)…,.; Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10.

Used in the three related senses referred to above, the term causes no difficulty.

It is, however, used in a fourth sense, that is: where the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person, who has applied his mind to the question to be decided, could have arrived at such a conclusion.

The nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.

A serious misdirection on the facts amounts to a misdirection in law: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC)…,.

The dispute in this case centres around how an appellant, who alleges a misdirection on the facts, should formulate such a ground in his Notice of Appeal.

To answer this question, I proceed to look at cases previously decided by this Court on the subject.

In Reserve Bank of Zimbabwe v Granger & Anor SC34-01, MUCHECHETERE JA remarked as follows:

“An appeal to this Court is based on the record. If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person, who applied his mind to the facts, would have arrived at such decision. And a misdirection of facts is either a failure to appreciate a fact at all, or a finding that is contrary to the evidence actually presented….,.”

In Zvokusekwa v Bikita Rural District Council SC44-15, this Court further added:

“(22)…,. The remarks in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying, that, to constitute a point law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person, properly applying his mind, would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form….,.

What is important, at the end of the day, is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.”

The pertinent question in the present case is this: in determining whether a ground of appeal raises an issue of law, should a court be confined to the wording of the ground of appeal only or should it, additionally, have recourse to the record or the merits of the case?

In Chinyange v Jaggers Wholesalers SC24-04 GWAUNZA JA…, writing for the court, stated at page 2 of the cyclostyled judgment:

“…,. The appellant must, in other words, not only allege, but, also show, that the Labour Court misdirected itself on a point of law.”

At page 3, the learned judge continued:

“The appellant has not alleged, nor shown, that the Labour Court misdirected itself, nor that such misdirection, being based on findings of fact, was so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.”

In Mutsuta and Anor v Cagar (Private) Limited SC47-09 SANDURA JA stated at page 6 of the cyclostyled judgment:

“Applying the principles set out in the three cases cited above, I have no doubt in my mind that the appeal raises questions of law. There are allegations in the grounds of appeal that the Labour Court committed misdirections on the facts which are so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. The appeal is, therefore, properly before the court.”

In Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, this Court remarked at page 5 of the judgment:

“The first ground of appeal is that the Labour Court erred on a question of law in holding that the disciplinary committee was improperly constituted. It is the respondent's submission that this question is one of fact and not law. I agree with the respondent's submission in this regard.”

And at page 7:

“There is no suggestion by the appellant that the court a quo misdirected itself on the facts in coming to the conclusion that the committee was not properly constituted and that such misdirection constitutes a question of law. I would agree with the respondent that this ground of appeal raises a question of fact and not law.”

It is correct, that, in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10, the impression was created that a court can have regard to the merits in order to determine the validity of a ground of appeal.

It is clear, however, on a proper reading of the case, that, in fact, the court determined the validity of the grounds of appeal based only on the specific allegations made in the grounds of appeal and not the merits of the matter.

Everything considered, therefore, the correct approach, in my view, is that, in determining whether a ground of appeal raises an issue of law, a court will confine itself to the wording of the ground of appeal only and not to the merits of the matter.

The merits of the matter only become relevant if a ground of appeal is found to be valid.

Whether or not an appellant's case has merit and whether or not the appeal should succeed are issues to be determined separately - and only after a finding on the validity of the grounds of appeal.

A ground of appeal which attacks findings of fact must, therefore, not only allege that the lower court misdirected itself on the facts, but, must go further and show how that misdirection came about.

Merely alleging a misdirection, without further substantiation, would not be enough, as the attack would remain one against a factual finding.

In other words, in alleging a misdirection on the facts, the ground of appeal must also show in what way those findings of fact are irrational.

To the extent, therefore, that the decision of this Court in Sable Chemical Industries Ltd v David Peter Eastenbrook SC18-10 may have created an impression to the contrary, it does not reflect the correct approach and should therefore, to that extent, not be followed.

This is really the crux of the matter.

To answer the question, it is necessary to look at the individual grounds that were considered by the court.

The judgment of the court a quo reflects that grounds one and two were abandoned at the hearing of the matter. Essentially, therefore, there were three grounds of appeal before the court a quo. The court a quo found that these attacked factual findings.

I proceed to consider each of these in turn.

The third ground of appeal before the Labour Court was couched in the following manner:

“3 The Honourable Arbitrator made a finding to the fact, that, the respondent had legitimate expectation of renewal of the contract based on the recommendations made during council meetings. The Honourable Arbitrator erred at law in relying on the proceedings and resolutions of these meetings.”

Whilst the ground could have been more elegantly phrased, there is no doubt in my mind that it did, in fact, raise the question whether the arbitrator could base his finding, that the respondent had a legitimate expectation of re-engagement, on proceedings and resolutions of a Council meeting.

As stated in Zvokusekwa v Bikita Rural District Council SC44-15, one should be guided by the substance rather than the form.

I am satisfied, that, the court a quo was wrong in treating this ground as one attacking a finding of fact.

The fourth ground of appeal before the court a quo read as follows:

“The Honourable Arbitrator erred grossly on the facts in finding that the respondent was legitimately entitled to expect the renewal of her contract. The arbitrator's findings in this regard are so grossly unreasonable such that no reasonable person properly applying his mind to the matter would have arrived at such a decision.”

The gross aberration on the facts was not articulated. It remained a bald allegation impugning findings of fact. It did not state how and in what way the arbitrator grossly erred in reaching the conclusion that was sought to be impugned.

In these circumstances, it remained an attack against a simple finding of fact, and, clearly, does not raise any issue of law.

Ground 4.1 read:

“4.1 The Honourable arbitrator made a finding that the fact that the Executive Committee made its decision subject to the approval of full council or the Minister did not deny respondent legitimate expectation since her appointment on 7 June 2012 was not blessed with council or ministerial approval. The arbitrator's finding in this regard is grossly unreasonable as:

(a) Whether or not the consent of Council or the Minister was asked for and/or obtained for the 7 June 2012 appointment was never an issue;

(b) In any event, the 7 June 2012 appointment was a temporary appointment while the appointment allegedly expected is a 3 (three) year appointment;

(c) Further, and any event, it is the employer's prerogative to choose which appointment is subject to approval and which not (sic). Once one is informed that a specific appointment is subject to approval, then, without such approval, no legitimate expectation can arise.”

The difficulty with this ground was its lack of particularity and precision. It sounded argumentative.

Unlike in appeals from the High Court, there has not been a requirement, in labour cases, that the grounds of appeal must be clear and concise.

However, the Labour Court Rules 2017, in LC4, now require grounds to be clear and concise.

This was not a requirement at the time the present appeal was argued before the Labour Court.

In my view, the ground, though not formulated with precision, did indeed raise an issue of law.

What the ground says, in a nutshell, is that, whilst the recommendation that the respondent's contract be renewed was subject to approval by both the Council and the Minister, this did not affect the decision of the appellant to appoint her in an acting position for an indefinite period.

The appellant was further saying, that, the issue whether or not the consent of the Council or Minister was sought and obtained was not an issue before the arbitrator, and that, in any event, the appointment was temporary.

Lastly that, once an employee is advised that a re-engagement is subject to approval, then, without such approval, no legitimate expectation of re-engagement can, in this situation, arise.

I am satisfied, that, properly considered, ground 4.1 did in fact raise issues of law and that the court a quo was wrong in reaching a contrary conclusion.

Ground 4.2 stated, and I quote:

“4.2.The arbitrator also made a finding that a year's delay in obtaining council or ministerial approval entitled respondent to legitimately expect that her three (3) year fixed term contract will be renewed. This finding by the arbitrator is so grossly unreasonable such that no person properly applying his mind to the matter would arrive at such a decision.

4.3 The arbitrator also held that no proof of a negative decision from the decision maker was furnished, and, as a result, respondent was entitled to legitimately expect that her contract will be renewed. The Arbitrator's decision in that respect is so grossly unreasonable such that no person applying his mind to the matter would arrive at such a decision.”

What the appellant sought to challenge in the court a quo was the conclusion reached by the arbitrator on the facts which were before him.

The appellant was saying delay, on its own, could not have led the respondent to believe that her employment would be extended by a further three years and that a conclusion to that effect would be irrational.

The court a quo was therefore wrong in coming to the conclusion that grounds 4.2 and 4.3 did not raise any questions of law.

In all the circumstances, therefore, I am satisfied, that, save for the fourth ground of appeal, the court a quo was not correct when it non-suited the appellant on the preliminary point raised; that the appeal before that court was not predicated on issues of law.

This is an appeal against the whole judgment of the Labour Court handed down on 11 November 2022 wherein it dismissed the appellant's appeal against a decision of a Designated Agent of the National Employment Council for Rural District Councils.

The respondent was employed by the appellant as a Housing Officer. He was indicted for a disciplinary hearing on 11 November 2017 before the appellant's Disciplinary Committee. He was charged with 'committing any act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment' in terms of clause 8(d) of Statutory Instrument 87/2017; specifically, that, he unilaterally and unlawfully exempted some council tenants from paying rentals which resulted in the appellant losing revenue.

The Disciplinary Committee found in favour of the employer and dismissed the respondent.

He then appealed the decision to the Internal Appeals Committee which upheld the decision of the Disciplinary Committee.

Aggrieved by the decision, the respondent again appealed to the National Employment Council Exemptions Committee (“the Exemptions Committee”) which set aside the decision of the Internal Appeals Committee and referred the matter back to the Disciplinary Committee, for a hearing de novo, on the basis that the Disciplinary Committee was not properly constituted when it presided over the matter.

The matter was heard again by the Disciplinary Committee and it reached the same verdict and penalty. The respondent then appealed to the Internal Appeals Committee which, again, upheld the dismissal.

On 13 March 2018, he further appealed the dismissal to the National Employment Council Exemptions Committee (the Exemptions Committee) which heard the matter on 14 March 2018.

On the basis that the Exemptions Committee failed to conclude the matter within the time stipulated in section 14 of SI 87/17, and on 26 November 2018, the respondent wrote to the Designated Agent advising him of that fact.

Consequent to the respondent writing to the Designated Agent complaining about the failure by the National Employment Council Exemptions Committee to determine the matter within 30 days, the Exemptions Committee handed down reasons for its determination on 4 December 2018.

On 11 March 2021, the respondent filed an appeal with the Labour Court under cover of case number LC/H/57/19 seeking a referral of his appeal in accordance with clause 14(c) of SI 78/17.

He was seeking that the appeal be disposed of by the Designated Agent due to non-observance of the timelines and the lack of jurisdiction of the National Employment Council Exemptions Committee (the Exemptions Committee).

The grounds of appeal were couched as follows:

1. The Exemptions Committee erred at law in determining a matter without jurisdiction outside the prescribed thirty (30) working days and after the matter had been referred to the Designated Agent for disposal.

2. The Exemptions Committee erred at law in making a determination without providing reasons for such determination.

The respondent sought the following relief:

'(a) That the appeal succeeds with costs.

(b) That the decision of the Exemptions Committee be set aside.

(c) That the matter shall be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the appellant on 26 November 2018.'

On 22 May 2020, the Labour Court allowed the appeal under case number LC/H/57/19. It granted the following order:

“(a) That the instant appeal succeeds with costs.

(b) That the decision of the Exemptions Officer be set aside.

(c) That the matter be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the respondent.”

The respondent then approached the Designated Agent on the basis of this order of the Labour Court.

On 21 June 2021, the parties attended proceedings before the Designated Agent who advised the parties that he would proceed in terms of section 63(3a) of the Labour Act (the Act).

The parties were invited to file written submissions and the Designated Agent proceeded to pronounce on the matter on 19 October 2021.

In his determination, he made a finding that he lacked the requisite jurisdiction to preside over the matter as it raised review grounds. He, however, went on to deal with the substantive aspects of the matter and ultimately gave an order reinstating the respondent.

Disgruntled by the determination of the Designated Agent, the appellant appealed to the court a quo on 17 November 2021. The court found that the Designated Agent properly dealt with the matter.

It found that the issue of grading was before the Designated Agent and that he properly disposed of it. In addition, it found that the reinstatement of the respondent was proper as reinstatement could be ordered where the merits of the matter have not been entertained. In the result, the court a quo dismissed the appeal.

It is against this judgment that the present appeal was noted.

At the hearing of the appeal, the court asked counsel for the appellant to address the question of whether section 63(3a) as read with section 93 of the Labour Act confer appellate jurisdiction on a Designated Agent in view of the referral of an appeal to him by the Labour Court.

Counsel for the appellant submitted, that, the matter was referred for hearing before the Designated Agent as an appeal. He contended that the National Employment Council Exemptions Committee (the Exemption Committee) was seized with an appeal that it failed to conclude within the prescribed 30 days hence the appeal was then placed before the Designated Agent.

He submitted that section 63(3a) of the Labour Act does not confer appellate jurisdiction on Designated Agents, but, that a provision in SI 87/17 allows for matters not determined within the stipulated timeframe to be referred to a Designated Agent.

He asserted that Designated Agents have no such powers to hear appeals.

It was his submission that the Labour Court ought to have presided over the matter instead of deferring it to the Designated Agent. He relied on section 14 of SI 87/17 which provides that an appeal against the determination of the National Employment Council Exemptions Committee (the Exemptions Committee) lies with the Labour Court.

Counsel submitted that if a matter is not concluded within 30 days, it is then supposed to be referred to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act.

On the merits, counsel submitted that the court a quo erred in upholding the decision of the Designated Agent when he had conceded that he did not have jurisdiction, but, nonetheless, went on to deal with the substance of the matter.

In addition to this, it was his contention that the court a quo misdirected itself by upholding the appeal and reinstating the respondent without having dealt with the merits of the matter.

In this light, he moved that the matter be remitted to the Labour Court to deal with the matter on the merits and that the decision of the Designated Agent be set aside.

He also stated, that, if the respondent's contention was that his matter was not heard within 30 days, the correct procedure available to the respondent was to file an application for review and not launch an appeal as he did.

Conversely, the respondent submitted that his appeal lay with the Designated Agent in terms of section 14 of SI 87/17 given that the matter was not heard and concluded by the National Employment Council Exemptions Committee (the Exemptions Committee) within 30 days.

He was convinced that the determination of the Designated Agent, despite the absence of jurisdiction, was proper as well as the accompanying order for reinstatement. He believed that the Designated Agent has powers conferred upon him to give redress in matters such as his.

Section 63(3a) of the Labour Act provides as follows:

“(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

It is common cause that the provision that confers power on the Designated Agent to give redress to parties is section 63(3a) of the Labour Act.

The role of a Designated Agent was explained in the judgment of Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 wherein the court remarked as follows…,.:

“Section 63(3a) of the Act allows a designated agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention. That is the case where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered.

Section 63(3b) of the Act expressly ousts the jurisdiction of a labour officer where a designated agent is authorised to redress any dispute or unfair labour practice in terms of section 63(3a) of the Act….,.

What is key in understanding what a designated agent can or cannot do is to understand the meaning of the phrase 'redress any dispute' used in section 63(3a) of the Act.

When used as a verb, the word 'redress' according to the Oxford English Dictionary, means to remedy or set right an undesirable or unfair situation. A designated agent authorised by the Registrar of Labour redresses a dispute referred to him or her. He or she offers a remedy or sets right an unfair situation.”

In as much as the above case discusses the role of a Designated Agent, it does not expressly deal with whether or not a Designated Agent has any powers conferred upon him to deal with appeals.

From a reading of the provision, there is nothing suggesting that a Designated Agent has appellate jurisdiction.

To have an appreciation of the powers bestowed upon a Designated Agent, one has to examine what it is that the Designated Agent has to do in redressing or attempting to redress a dispute.

In Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20…, it was stated;

“A designated agent may only exercise one power over a dispute. He or she may redress the dispute or attempt to redress it. He or she cannot do both. If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot, at the same time, attempt to redress the dispute.

It is clear from the provisions of section 63(3a) as read with section 93(1) of the Act that a designated agent can only proceed in terms of section 93 of the Act if he or she has not redressed the dispute.

He or she would be attempting to settle the dispute through conciliation.

There can be no attempt to settle a dispute which has been redressed.

The provisions of section 93 of the Act would apply when the power to be exercised by the designated agent is an attempt to redress the dispute through conciliation.”

From the above, it is clear that a Designated Agent can do one of two things, that is;

(i) Redress a dispute by hearing and determining the issues in dispute; or
(ii) Attempt to redress the dispute through conciliation.

He cannot do both.

What is coming up from the above-quoted excerpts from Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 is that the Designated Agent will be redressing or attempting to redress a dispute in a fresh hearing.

Given the above, it is apparent that a Designated Agent does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

In casu, the matter was referred to the Designated Agent by the Labour Court in terms of section 14(c) of S.I. 87/17 which provides as follows:

“Appeals to the NEC

14. The Exemptions Committee of the National Employment Council shall hear and conclude appeals referred to it within seven working days;

(a)…,.

(b)…,.

(c) An appeal against the decision of the Exemptions Committee shall lie with the Labour Court;
if a matter is not determined or concluded within 30 working days, the employee or employer concerned may refer such matter to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act [Chapter 28:01].”

The 'matter' being referred to in subsection (c), in the context of the present matter, is an appeal against the determination of the Appeals Committee.

In other words, the above provision purports to give the Designated Agent power to 'redress or attempt to redress' the determination of the Appeals Committee.

This Court, in a line of authorities, has spoken on this, that, a Designated Agent cannot preside over a matter where a determination has been made: see Watyoka v Zupco (Northen Division) SC87-05; Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19; and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

These matters were analysed in the recent case of Nicholas Mukarati v Pioneer Coaches (Private) Limited SC34-22 where MATHONSI JA concluded on the issue as follows:

“The reasoning in Mabeza, supra, rhymes with that in Sakarombe N.O. & Anor v Montana Carswell Meats (Pvt) Ltd SC44-20 where the court was called upon to consider the ambit of the jurisdiction of a Labour Officer under section 93 of the Act where a matter is referred to him or her in terms of section 8(6) of the National Code of Conduct.

It concluded that under section 93(1) of the Act, a Labour Officer is only mandated to preside over a fresh hearing where a complaint has been lodged. The Labour Officer does not preside over any matter where a determination has been made or one in which completed disciplinary proceedings were conducted at the workplace.”

Although the above authorities were dealing with the powers of a labour officer, the same principle applies with equal force to a Designated Agent, as, in terms of section 63(3a) of the Labour Act “the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

Section 8(6) of the National Code, which was under discussion in these cases, is similarly worded to section 14(c) of SI 18/17.

Further down on the same page, MATHONSI JA observed the following:

“In fact, in Living Waters Theological Seminary v Chikwanha, supra, the court went further to state that the provisions of section 8(6) of the National Employment Code are rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.”

The same can be said about section 14(c) of S.I. 87/17.

It is rendered inoperative by being ultra vires and inconsistent with the provisions of sections 63(3a) and 93 of the Labour Act.

In casu, the Designated Agent presided over a matter over which he did not have jurisdiction.

When there is a determination on the merits of a dispute, a Designated Agent has no jurisdiction, under section 93 of the Labour Act, to redress or attempt to redress such a dispute.

The ramifications of what the Designated Agent did in this situation are clear.

There is no power conferred upon him to hear appeals in terms of the Labour Act.

The matter was improperly referred to him, and, consequently, the proceedings before him and the resultant appeal before the court a quo were a nullity.

There was therefore no proper appeal before both the Labour Court and this Court.

Regarding costs, the appellant had prayed for costs of the appeal. In view of the fact that the matter turned on the interpretation of section 14 of SI 18/17 it would be in the interests of justice that there be no order as to costs.

Given the irregularities deliberated in this judgment; in the result, it is ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of this Court's review powers in section 25(1) of the Supreme Court Act [Chapter 7:13] the proceedings before the Designated Agent and the Labour Court are hereby set aside.

This is an application for leave to appeal against a judgment of the Supreme Court handed down on 10 June 2022. The Supreme Court judgment determined two consolidated appeals against the applicant with an accompanying order of costs.

The applicant was the Chairman of the National Social Security Authority (NSSA), a public body set up by statute. The first respondent is the Auditor General, the holder of a public office created by the Constitution, and which, at the request of the Government, can carry out special audits of any statutory body or government–controlled entity. The second respondent is a private firm of Chartered Accountants.

On 28 February 2018, the first respondent appointed the second respondent, under contract, to carry out a forensic investigation of the affairs of the National Social Security Authority (NSSA) for the period 1 January 2015 to 28 February 2018.

In due course, the second respondent produced an audit report detailing its findings.

The report produced by the second respondent was adverse to and highly critical of the applicant as Chairman of the National Social Security Authority (NSSA).

Chagrined, the applicant took the report on review before the High Court.

In the review application, he cited both respondents. It was his contention, in the main, that, the audit of the National Social Security Authority (NSSA) by the second respondent, in the circumstances of the matter, was an administrative act or conduct subject to judicial review at common law and under the provisions of the Administrative Justice Act [Chapter 10:28].

He was successful.

In its judgment, the High Court set aside the audit report on a number of bases that are not material to the determination of this application.

In setting aside the report, and, germane to this application, the High Court held that the audit report, authored by the second respondent, on behalf of and under contract with the first respondent, was an administrative act for the purposes of the Administrative Justice Act.

It was its specific finding, and in its own words, that the report was that of the “first respondent acting through the auditors she had appointed.”

In setting aside the report, the High Court affirmatively answered the following three issues that it had set up for itself, and which I paraphrase:

1. Whether, when the second respondent acted for and on behalf of the first respondent, it exercised administrative or public power;

2. Whether the forensic investigation by the second respondent constitutes reviewable action/conduct or decision; and

3. Whether the grounds of review alleged by the applicant were established.

The net effect of the decision of the High Court was to hold that the audit of the National Social Security Authority (NSSA) by a private firm of Chartered Accountants, acting under contract for and on behalf of the first respondent, was an exercise of public power, and, consequently, was subject to judicial review.

The High Court effectively upheld the applicant's main contention, that, a contract audit by the first respondent is an exercise of public power under agency.

Unhappy with the judgment, the respondents filed two appeals, under separate cover, to the Supreme Court.

Although it is common cause that both respondents filed separate notices of appeal, only the grounds of appeal by the second respondent are reproduced and adverted to in the judgment of the Supreme Court.

The consolidated judgment is also a determination of these grounds. They read:

“1. The High Court erred in finding that the appellant's carrying out of a forensic audit on the National Social Security Authority (NSSA) at the behest of the Auditor-General (second respondent) constituted an administrative action which is subject to review at the first respondent's instance and on the alleged grounds.

2. The High Court erred in finding that the appellant, in its report under consideration, exhibited bias against the first respondent when there was no evidence supporting such a finding.

3. The High Court erred in concluding that the appellant did not apply its mind to the issues before it in the absence of any evidence controverting the findings made in the audit report.

4. The High Court erred in concluding that the audit report was unfair against the first respondent in circumstances where he had been given an opportunity to respond to the allegations against him and his responses had been taken into consideration before drawing any conclusions, and, which such conclusions are not only supported by the evidence availed to the appellant but were properly explained in the audit report.

5. The High Court erred in setting aside the report in all aspects pertaining to the first respondent in the absence of evidence demonstrating bias or incompetence or unfair treatment or pointing to any irregularities in every such aspect.”

It was the view of the Supreme Court, that, the two appeals before it could be disposed of by the determination of the first ground of appeal reproduced in full above. The judgment indicates that the court proceeded to set out for its determination the following issue:

“Whether the court a quo misdirected itself in holding that the appellant was exercising public authority subject to judicial review when it carried out the forensic audit for and on behalf of the second respondent.”

Relying on the South African case of Chirwa v Transnet 2008 (4) SA 367 (CC) which discussed the attributes and characteristics that define and identify administrative authorities, and on its interpretation of section 3 of the Administrative Justice Act, the Supreme Court came to the conclusion, that, the second respondent was not an administrative authority, and, therefore, the audit report it authored was not reviewable.

It proceeded, further, to dismiss the argument that the second respondent was an administrative authority as it was the duly appointed agent of a public authority.

In doing so, the Supreme Court then interpreted section 309 of the Constitution that sets up the office of the first respondent and provides for its functions. After setting out the constitutional provision in full it was the Court's finding, that, the Constitution does not confer upon the first respondent the power to, in turn, confer administrative authority on any person.

In the ultimate, the Supreme Court upheld the two appeals and set aside the decision of the High Court.

The applicant now approaches this court for leave to appeal against the decision of the Supreme Court.

In motivating the application, the applicant contends that the judgment a quo raises a constitutional matter in that it purports to interpret the provisions of section 309 of the Constitution in determining the appeals that were before the Supreme Court.

The respondents opposed the application and jointly argued that no constitutional issue arose in the High Court and that the appeals to the Supreme Court were specifically on the jurisdiction of the High Court in terms of the Administrative Justice Act, a non-constitutional matter.

The reference to and interpretation of section 309 of the Constitution by the Supreme Court in its judgment must therefore be regarded as obiter, the respondents proceeded to argue.

Counsel for the second respondent went as far as suggesting, that, the part of the judgment referring to and interpreting the Constitution could in fact be excised from the rest of the judgment without impacting on the fullness of the judgment.

He is probably correct.

In further engagements with the Court, all counsel agreed that the judgment of the Supreme Court could have, and therefore should have, avoided an interpretation of section 309 of the Constitution.

The non-constitutional matter that was before the Supreme Court was capable of resolution on the basis of the law of agency and an interpretation of the statute that authorizes the first respondent to farm out its duties to private audit firms.

The Supreme Court did not, however, avoid the Constitution.

The law on when leave of this court to appeal against a decision of a lower court may be granted has been discussed in a number of decisions of this Court: see Bonnyview Estate (Private) Limited v Zimbabwe Platinum Mine (Private) Limited & Another CC06-19; Cold Chain (Pvt) Limited t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC); Chombo v National Prosecuting Authority & Others CC08-22; Ismael v St John's College & Ors CC19-19; TBIC Investments (Private) Limited v Mangenje & Ors CC15-20; Magurure & Others v Cargo Carriers International Hauliers CC15-16; and Chani v Justice Hlekani Mwayera and Others CC02-20.

Leave to appeal is granted if the intended appeal is against a decision of a subordinate court on a constitutional matter.

There is a growing body of law from this Court spelling out that a decision of a subordinate court is on a constitutional matter if the litigation in that court is unavoidably predicated on such a matter. Put differently, the resort to the interpretation, enforcement or protection of the Constitution in resolving the dispute between the parties must have been unavoidable, taking into account the respective applications of the principles of subsidiarity, avoidance, and ripeness.

In addition, this Court has specifically held that the constitutional matter must have been pleaded in the court of first instance, such that the constitutional matter stands out clearly from such pleadings.

Thus, the mere reference to the provisions of the Constitution in the judgment of the lower court, either in passing or as buttressing a common law position or statutory provision, does not trigger the appellate jurisdiction of this Court.

Therefore, where the provisions of the Constitution are resorted to in the judgment a quo as bulwarking or strengthening a common law position or an interpretation of a statute, such reference to the provisions of the Constitution does not, and cannot, thereby form the ratio decidendi of the judgment of the matter.

The ratio decidendi remains the non-constitutional position at common law or as provided for by statute - albeit finding some support from the Constitution.

Finally, and in any event, where the constitutional matter is not specifically pleaded in the court of first instance, but arises during those proceedings or before any other subsequent court, the provisions of section 175(4) of the Constitution set out the procedure by which the matter may be referred to this Court for the purposes, not of determining the matter, but for answering the requisite constitutional question that will assist in the determination of the matter: see Nyika and Another v Minister of Home Affairs and Another CC05-20.

In casu, it is common cause that the cause of action before the High Court was not predicated on a provision of the Constitution. It was rooted in Administrative Law in terms of which the applicant sought to have reviewed what he alleged was administrative conduct by the first respondent through the agency of the second respondent.

Accordingly, the pleadings did not raise a constitutional matter.

Put differently, the pleadings before the High Court did not call upon that court to interpret, enforce or protect the provisions of the Constitution. Instead, the pleadings sought to establish a basis for having the audit report by the second respondent, under contract from the first respondent, reviewed and set aside.

Because no such matter had been pleaded before it, it stands to reason that the High Court did not decide a constitutional matter.

As is evident from its judgment, the High Court did not invoke any provisions of the Constitution in arriving at its determination on the non-constitutional matter that was before it. The ratio decidendi of its judgment, on the preliminary points alleging fatal misjoinder of the second respondent, was rooted in the contract Law of Agency. It was its finding that the first respondent, a public authority, performed the audit of National Social Security Authority (NSSA) through the agency of the second respondent.

The ratio decidendi of its judgement on the substantive issues raised in the application for review was based on the application of the principles of Administrative Law.

From the foregoing, it follows that no constitutional matter fell for determination on appeal on the basis of the proceedings that had unfolded before the High Court, and, as a result of the judgment of the High Court.

The grounds of appeal that the Supreme Court relied upon for the determination of the two appeals that were before it did not raise any constitutional matter.

This is common cause.

Further, the record of the appeal proceedings does not indicate that a constitutional question arose during the appeal hearing. Had one arisen, the Supreme Court would have been obliged to invoke the provisions of section 175(4) of the Constitution to refer the question arising for answering by this Court.

In the circumstances, and in view of the fact that no constitutional matter was determined by the High Court, that no constitutional matter was the subject of appeal before the Supreme Court, and that no constitutional matter arose during the appeal proceedings, the text of the Constitution should not have been interpreted by the Supreme Court.

And, in the ordinary course of constitutional litigation in this jurisdiction, no appeal should lie to this Court.

There is, however, one disconcerting aspect of this matter which exercises the mind.

As argued by all counsel, the Supreme Court purported to decide the appeals that were before it, and unnecessarily so, by interpreting the provisions of the Constitution.

This purported but unnecessary interpretation of the Constitution remains extant. It also raises two possible debates:

(i) Firstly, the resort to the Constitution, in a matter that did not require such an approach, may arguably constitute a procedural irregularity in the proceedings of the Supreme Court.

(ii) Secondly, and more importantly in my view, if the Supreme Court decided a non-constitutional matter by invoking the Constitution, against the principles of subsidiarity, avoidance, and ripeness, then, it may have fallen into a grave error, which error can only be corrected by this Court.

In this regard, it may be pertinent to note, that, before it went into an interpretation of the Constitution, the court a quo did not at any stage advert to and discount these principles.

It is not desirable that I debate the correctness or otherwise of judgment of the Supreme Court in any detail. This is so in view of the order that I intend to make in this application.

I however wish to highlight that a reading of the Supreme Court judgment, prima facie, suggests that the court a quo intended the interpretation of section 309 of the Constitution to be the ratio decidendi of its judgment as this is the only definitive and dispositive part of the judgment.

This is so because it is this interpretation of the Constitution that purports to be in direct answer to the issue that the court had to determine.

The other debate, on the characteristics of the second respondent as a private entity, was neither here nor there, as the identity of the second respondent, as an agent of the first respondent, was never in issue at any stage of the proceedings.

I make the above observations mindful that I could be mistaken in my reading of the Supreme Court judgment. In this regard, it matters not that all counsel agree with my understanding of the resort to the Constitution by the Supreme Court, which we collectively believe was unnecessary.

I further believe that such resort to the Constitution could be misleading both in procedure and in content.

There is, however, the real possibility that this Court, sitting quorate, may understand the Supreme Court judgment very differently.

The absence of clarity in the matter is, in my mind, sufficient to trigger the appellate jurisdiction of this Court to clarify the correctness of the position that the Supreme Court took or ought to have taken in the matter.

I am therefore inclined to grant leave to appeal in this matter. In my view, it is eminently in the interests of justice that leave be granted to bring this matter before the Court.

For the avoidance of doubt, the order that I make is not an acknowledgment or acceptance that the matter before the Supreme Court was constitutional in nature. The order is made on the basis, that, in determining a non-constitutional matter, the Supreme Court resorted substantively to the provisions of the Constitution to resolve the dispute. It may have erred in this regard.

Regarding costs, there is no justification that any of the parties be mulcted with an order of costs.

In the result, it is ordered that:

1. The application for leave to appeal be granted with no order as to costs.

2. The applicant is to file his notice of appeal within 10 days of this order.

This matter was placed before the full bench of this Court for confirmation of an order of constitutional invalidity pursuant to Rule 31 of the Constitutional Court Rules 2016 (hereinafter “the Rules”) as read with section 175(1) of the Constitution, against the judgment of the High Court (hereinafter “court a quo”) in the case of Penelope Douglas Stone & Anor v Central Africa Building Society & Ors HC4243/21.

At the end of the proceedings, the Court made an order, the operative part of which read as follows:

“1. The confirmation of the order of the court a quo is declined.

2. The order of the court a quo is set aside in its entirety.

3. There shall be no order as to costs.

4. Reasons for the decision are to follow in due course.”

What follows are the reasons for that order.

The applicants before this Court are partners in an architectural enterprise. The first respondent is Central African Building Society (CABS). The second respondent is the Reserve Bank of Zimbabwe (RBZ), with the third respondent being the Minister of Finance and Economic Development.

The applicants applied to the court a quo, purportedly in terms of section 85(1) of the Constitution. They sought a declarator to the effect, that, Exchange Control Directive No. RT120/2018, issued by the second respondent, was unconstitutional due to an alleged violation of the right to property enshrined under section 71 of the Constitution.

In addition, the applicants sought a declaration to the effect, that, the same directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI109 of 1996, and was accordingly invalid.

The constitutionality of sections 44B(3)-(4) and 44C of the Reserve Bank Act [Chapter 22:15] was also impugned on the premise that the provisions in question violated section 71 of the Constitution.

A similar declaration was sought with respect to sections 21(1)(b), 22(2), 22(4)(a) and 23(1)-(3) of the Finance (No.2) Act of 2019 for allegedly violating the aforementioned section 71 of the Constitution.

Consequent to the above, the applicants sought a further declaration that the conversion of their USD142,000 to RTGS142,000 was unconstitutional and violated section 71 of the Constitution. They therefore sought an order compelling the first respondent to reimburse them the sum of USD142,000.

The genesis of the dispute stemmed from the applicants inability to access funds in USD from an account maintained by them with the first respondent.

The applicants are architects and are partners in an architectural firm. The firm operates bank accounts with the first respondent. On 17 October 2018, they demanded the release to themselves of the sum of USD142,000 from one of their accounts.

By letter dated 4 October 2018, the first respondent responded to the demand and indicated that it was unable to pay them that amount as the account was now denominated in the RTGS currency following a directive from the second respondent, the Reserve Bank of Zimbabwe (RBZ).

The first respondent advised them that the requested sum could not be paid out in United States Dollars on the basis of the Exchange Control Directive RT 120/2018, which essentially converted the pre-existing sum to RTGS denomination.

This was confirmed in correspondence between the parties on 24 October 2018.

The applicants do not accept that the conversion of that account was lawful, and, as a consequence, contend that a constitutional issue arose from the fiction of equating the United States Dollar with the local RTGS by the authorities.

It was submitted on their behalf, that, the Government itself had recognised the superficiality of the parity argument between the United States Dollar with the local RTGS currency. Contrary to its stated position, on the argument of parity between the USD and the local currency, Government had insisted on payment of certain obligations be made exclusively in United States Dollars. To cement their argument, the applicants made reference to the exclusive levy of fuel prices in United States Dollars.

It was contended, that, the first respondent would be unjustly enriched at their expense due to this legal fiction of parity.

They submitted before the court a quo, that, the impugned legislation served to deprive them of their rights under section 71 of the Constitution and could not be justified under the limitation clause in section 86 of the Constitution.

The applicants argued, that, section 71(3) of the Constitution sets out the standards for the compulsory acquisition of property, which requirements were not satisfied by the impugned legislation.

It was further submitted, that, the law of general application which authorizes compulsory deprivation must also entitle claimants to apply for compensation, which was not satisfied by the impugned law.

Further to this, the applicants contended, that, their application was properly before the court, regard being had to the judgment by the Supreme Court involving the same parties.

They contended, that, the remarks in the judgment had given them the conviction that they could succeed in suing the respondents once they had impugned the parent statute that had given birth to the Exchange Control Directive in question.

For these reasons, they contended that Exchange Control Directive No. R120/2018, sections 44B(3)-(4) and 44C of the Reserve Bank Act and sections 21, 22 and 23 of the Finance (No.2) Act of 2019 violated section 71 of the Constitution, and, that, as a consequence, the first respondent was obliged to reimburse them the sum of USD142,000.

The application was opposed by all the respondents in the court a quo.

The first respondent raised the preliminary issue that the relief sought was defective. It argued that a declaration of constitutional invalidity could not give rise to any automatic positive rights on behalf of the applicants, and further, that, it could not be compelled to effect payment in a constitutional matter until such proceedings were confirmed by the Constitutional Court.

On the merits, it maintained that its actions in the matter were guided by validly promulgated laws.

The first respondent contended, that, the impugned directive only mandated the deposit of foreign currency from offshore sources into Nostro accounts. However, the funds in the account maintained by the applicants had emanated from local deposits and were therefore excluded from this category.

The first respondent further submitted, that, there could not be a claim for unjust enrichment against it because, as a Building Society, its funds were deposited with the second respondent, the Reserve Bank of Zimbabwe.

It noted that the second and third respondents had the requisite legal authority to regulate monetary and fiscal matters in terms of the Reserve Bank Act.

The first respondent also submitted, that, the plea of res judicata was applicable in casu as the matter had been argued to finality in the Supreme Court.

In turn, the second respondent also submitted that the matter was res judicata as the Supreme Court had dealt with the same matter on appeal from the court a quo.

On the merits, it submitted that the impugned legislation did not violate section 71 of the Constitution.

The third respondent also associated itself with the arguments by the first and second respondents, and, further submitted that the impugned legislation did not take away any of the applicants rights.

Counsel for the third respondent suggested that the applicants ought to have joined Parliament to the proceedings as they had sought to impugn acts done in terms of a valid statute.

In response, the applicants submitted, that, after the operationalisation of the Directive, the funds in their account with the first respondent, when converted at the official exchange rate, amounted to a mere US$1,604=52 which they suggested constituted a violation of section 71 of the Constitution.

They sought to counter the allegation that the issue had not been properly taken, regard being had to the doctrine of res judicata, on the basis that there had been no determination on the constitutionality of the exchange control directive by either the High Court or the Supreme Court.

Although the court a quo agreed that the subject matter in the dispute before it was the same as that previously litigated upon, it concluded that the matter was not res judicata because the question regarding the constitutionality of the impugned legislation remained in issue. As a consequence, it dismissed the preliminary point.

It also disregarded the preliminary point raised on the principle of subsidiarity, terming the point in limine “pedantic and a miscarriage of justice.”

On the merits, the court a quo held that it would determine the constitutionality of the Exchange Control Directive separately from the issue that it was ultra vires section 35(1) of the Exchange Control Regulations, 1996.

Although its constitutional validity was not an issue for determination before it, the court a quo found that section 35(1) of the Exchange Control Regulations 1996 was not ultra vires section 71 of the Constitution.

Thereafter, the court a quo concluded that paragraphs 2.5 and 2.6 of the Exchange Control Directive RT120/2018 were ultra vires section 35(1) of Exchange Control Regulations 1996. It further determined, that, Exchange Control Directive RT 120/2018 was impeachable along with the other impugned legislative provisions in the sense that they interfered with the contractual rights of the parties, and, in turn, breached section 71 of the Constitution. The provisions were held to invade property rights protected under section 71(2) of the Constitution.

Consequent thereto, it issued an order which is now subject to confirmation by this Court. The order reads as follows:

“(i) Paras 2.5 and 2.6 of the Exchange Control Directive RT 120/2018, dated 4 October 2018, are ultra vires section 35(1) of the Exchange Control Regulations 1996, SI 109 of 1996, and are hereby set aside.

(ii) Subject to section 175(1) of the Constitution of Zimbabwe -

1. The conversion of the amount of USD142,000 standing to the credit of the applicants savings account No.1005428905 with the first respondent, as at 28 November 2016, violated section 71 of the Constitution.

2. Paras 2.5 and 2.6 of the Exchange Control Directive RT120/2018 aforesaid violate section 71 of the Constitution.

3. Section 22(1)(b) and (d) and section 22(4)(a) of the Finance Act (No.2) Act No.7 of 2019 violate section 71 of the Constitution and are hereby set aside.

4. The first respondent shall pay the applicants the sum of USD142,000 together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment.

5. The respondents shall pay the costs of suit jointly and severally, the one paying the others to be absolved.”

At the onset of proceedings, the parties were directed to address the Court on whether the matter was properly before the court a quo.

Counsel for the applicants submitted, that, the matter was properly before the court a quo.

He argued that the applicants rights, under section 71 of the Constitution, had been violated by the impugned laws. He suggested that the co-joining before the court a quo of constitutional and non–constitutional issues was not improper.

To that end, he made reference to several authorities that he contended provided exceptions to the principle of constitutional avoidance, and, in this particular respect, submitted that the conflation of issues was held to be non-fatal in the seminal case of Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs NO & Ors CC12-15, now reported as M & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC).

Counsel for the applicants submitted, that, the principle of res judicata was inapplicable in casu because the aforementioned constitutional issues were not determined in previous litigation.

Therefore, his view was that the matter was properly before the court a quo.

Per contra, counsel for the first respondent submitted, that, the matter was not properly before the court a quo.

Counsel contended that the matter, as pleaded by the applicants, went beyond the confines of an application within the contemplation of section 85(1) of the Constitution.

In addition, it was contended on behalf of the first respondent, that, the applicants pleadings lacked the specificity required by the Rules and that the court a quo, mero motu, had identified paragraphs 2.5 and 2.6 of Exchange Control Directive RT128/2018 as being impeachable, and, therefore, unconstitutional.

Counsel for the first respondent further argued, that, the court a quo over-reached its jurisdictional ambit by determining a constitutional issue once it had dealt with a non–constitutional issue.

In addition, it was his contention that the principle of res judicata was applicable in casu since there was previous litigation concerning the same subject matter between the same parties, and, critically, premised on the same cause of action.

He further submitted, that, the court a quo fell into error when it invalidated section 22 of the Finance Act [Chapter 23:04] because that piece of legislation sought to be impugned had only come into effect after the applicants cause of action had allegedly arisen.

In turn, counsel for the second respondent associated himself with and concurred with submissions made on behalf of the first respondent, that, the constitutional jurisdiction of the court a quo was not properly invoked.

He made specific reference to Rule 107 of the High Court Rules 2021 as indicative of the appropriate procedure to be followed in constitutional matters before the High Court.

Counsel for the second respondent submitted, that, the applicants reliance on section 85(1) of the Constitution placed an obligation on the applicants to establish the violation of a fundamental right. He pointed to the applicants reliance on exceptions to the general rule of constitutional avoidance as an admission that the matter was principally non–constitutional in nature.

Consequently, counsel for the second respondent submitted, that, the judgment of the court a quo ought to be set aside in its entirety.

Counsel for the third respondent also buttressed the point, that, the matter was improperly before the court a quo.

He submitted that the constitutional relief sought before the court a quo was merely tangential to the motive of the applicants, which was the recovery of USD142,000.

He submitted that there must be specificity in the pleadings when declarations of constitutional invalidity are sought in order to preserve the principle of the separation of powers.

It was his submission that the relief sought should not be granted.

Section 175(1) of the Constitution provides, that, where a court makes an order concerning the constitutional invalidity of any law or the conduct of the President or Parliament, the order has no force or effect unless it is confirmed by this Court. Thus, the order of constitutional invalidity by a subordinate court does not bind the Constitutional Court.

It must itself conduct an examination into the constitutionality of the impugned conduct or statute as it is the sole court with the jurisdiction, under the Constitution, to declare such conduct or statute as being unconstitutional or invalid.

As a consequence, the law requires that the Constitutional Court must itself be satisfied as to the invalidity of the law or conduct being impugned.

It is trite that under section 175(1) of the Constitution any declaration is subject to the over-arching jurisdiction and supervisory role of the Constitutional Court.

In this enquiry, it must first decide whether the challenge to the constitutional validity of the law or impugned conduct was properly before the court a quo.

By operation of law, the confirmation proceedings before this Court are, in essence, a process of review of the proceedings before the court a quo.

The principles which are applicable in confirmation proceedings are settled:

(i) Firstly, given the limited jurisdiction of the Constitutional Court as a special court, it has to be determined whether there was a constitutional matter before the subordinate court.

(ii) Secondly, the constitutional matter which would have arisen in the subordinate court must have been properly before that court, and that court must have had the competence to deal with the matter.

The power of this court, in confirmation proceedings, takes the form of a review of the constitutional matter to satisfy itself that the order of constitutional invalidity was correctly made: see S v C (A Juvenile) (Justice for Children's Trust and Zimbabwe Lawyers for Human Rights Intervening as Amici Curiae) 2019 (2) ZLR 12 (CC) and Mupungu v Minister of Justice Legal & Parliamentary Affairs CC07-21.

In Makamure v Minister of Public Service, Labour and Social Welfare and Anor CC01-20 MALABA CJ pertinently posited the following:

“The Court is also not bound by the order of constitutional invalidity made by the court a quo. In S v Chokuramba CC10-19, the Court held at p6 of the cyclostyled judgment as follows:

'The Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is inconsistent with the Constitution. It must conduct a thorough investigation of the constitutional status of the law or conduct of the President or Parliament which is the subject-matter of the order of constitutional invalidity. The Court must do so irrespective of the finding of constitutional invalidity by the lower court and the attitude of the parties.'”

The Court therein noted, that, the invalidity of the law or conduct was a legal consequence of a finding of inconsistency between the law and conduct which the Court might not necessarily be in agreement with.

Thus, the Constitutional Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is indeed inconsistent with the Constitution.

See also Phillips and Anor v Director of Public Prosecutions and Ors 2003 (3) SA 345 (CC)…,.

Given the foregoing, it seems to me that three issues arise for determination:

(i) The first is whether the court should have found that the matter was res judicata, and, as a consequence, declined exercising its jurisdiction in determining the application.

(ii) The second, but quite fundamental issue, is whether a proper constitutionally based cause of action was placed before the court a quo justifying its assumption of jurisdiction and the order that it made.

The respondents contend, that, the lack of specificity in pleading the cause of action should have non-suited the applicants before the court a quo.

(iii) The third is whether the court a quo should have declined to consider the alleged unconstitutionality of the Directive based on the doctrine of subsidiarity, as argued by the respondents.

The applicants a quo approached the court in terms of section 85(1)(a) of the Constitution.

The procedure in section 85(1)(a) of the Constitution is a direct enforcement procedure for the enforcement of fundamental rights and liberties. It is meant to secure constitutional remedies.

It cannot be invoked in respect of non-constitutional remedies.

The applicants founded their locus standi to institute legal proceedings in terms of section 85(1)(a) of the Constitution on the premise of an allegation of the violation of the right to property as enshrined under section 71 of the Constitution.

What the applicants filed in the High Court can best be described as a hybrid application.

They claimed locus standi to approach the court for a declaration of invalidity on an alleged violation of a right and in that respect invoked section 85(1) of the Constitution.

A court that is approached in terms of section 85(1)(a) of the Constitution cannot exercise its jurisdiction on any other matter besides matters that seek redress for direct and actual infringements or likely infringements of fundamental rights and freedoms set out in the Bill of Rights.

Thus, where the court is approached in terms of section 85(1)(a) of the Constitution, it must not involve itself in the determination of non-constitutional issues.

It is evident that the proceedings a quo went beyond the enforcement of fundamental rights and freedoms contained in Chapter 4 of the Constitution.

It is common cause that the application for constitutional relief was conjoined with a cause of action based on non-constitutional relief.

It is also not in dispute that the applicants sought the declaration of invalidity of the Exchange Control Directive on the basis that it violated the right to property as enshrined in section 71(2) of the Constitution.

Further to this, a declarator was prayed for to the effect, that, the conversion of USD142,000 to RTGS142,000 was unconstitutional and invalid as it violated section 71(2) of the Constitution.

The order sought further included a declarator to the effect, that, the Directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, Statutory Instrument 109 of 1996. This relief is not available under section 85(1) of the Constitution upon which they sought to establish locus standi for approaching the court a quo.

The order was not concerned with a violation of a constitutional right.

It has been emphasised in a plethora of judgments of this Court, that, once a litigant pleads their locus standi under the ambit of section 85 of the Constitution, the application must meet certain requirements.

The specificity in pleading locus standi is of prime consideration.

In Zimbabwe Human Rights Association v Parliament of Zimbabwe and Ors CC06-22, PATEL JCC advanced the following:

“In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. section 85(1) and section 167(2)(d). This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC15-21, at p.17, para. 38, where GWAUNZA DCJ observes that:

'..., an application under section 85 of the Constitution should not be raised as an alternative cause of action...,. Section 85(1) is a fundamental provision of the Constitution and an application under it, being sui generis, should ideally be made specifically and separately as such.'”...,.

See also Law Society of Zimbabwe v Parliament of Zimbabwe & Ors CC10-23.

In casu, it is evident that the applicants conflated the constitutional application under section 85 of the Constitution with a non-constitutional cause of action.

The link between the two is impermissible, in that, in conjunction with a declaration of invalidity, they sought a declaration that Exchange Control Directive No. R120/2018 be declared grossly unreasonable and ultra vires its enabling provision, section 35(1) of the Exchange Control Regulations 1996.

The latter did not envisage the enforcement of a fundamental right under section 85(1) of the Constitution as pleaded in the founding affidavit establishing locus standi.

I have no hesitation in stating, that, not only is this impermissible but the procedure adopted was grossly irregular.

Further to the above, the applicants application, purportedly made in terms of section 85(1)(a) of the Constitution, did not specifically plead an infringement of any of their fundamental rights and freedoms.

The law is settled, that, in constitutional litigation, the constitutional issue to be decided by the court must be specifically pleaded. The requirement of specificity in constitutional litigation cannot be overlooked.

The procedural requirement for specificity in pleading requires that the challenged legislation and the grounds of such challenge be properly raised in pleadings.

There is need for accuracy in pleading in constitutional litigation and the required accuracy in pleading cannot be overlooked. It is critical in the determination of the issues to be decided by the court: see Philips & Ors v National Director of Public Prosecutions 2006 (1) SA 505 (CC)…, and Shaik v Minister of Justice & Constitutional Development 2004 (3) SA 599.

The failure to plead a cause of action with the required accuracy and specificity in the matter a quo was fatal.

Despite the irregularity and the inherent conflict, the court a quo found that the Directive was not grossly unreasonable but still granted an order declaring it ultra vires the Exchange Control Regulations.

It also found, that, the Reserve Bank was empowered to issue Directives under the Regulations.

By eschewing fundamental constitutional principles, the court a quo determined an application that was improperly placed before it.

It must be reiterated that issues regarding the cause of action are rooted in law and not abstract personal convictions.

Thus, the court a quo, by failing to recognise the sui generis nature of an application whose genesis emanates from section 85 of the Constitution grossly misdirected itself by assuming jurisdiction over two conflicting causes of action, the determination of which was reposed under different species of the law.

On this score alone, the order granted by the court a quo cannot be confirmed by this Court as the conflated application was not properly before it.

As regards the Directive, the court a quo considered both issues, the constitutional and the non-constitutional.

First, it declared paragraph 2.5 and paragraph 2.6 of the Directive as being ultra vires section 35(1) of the Exchange Control Regulations S.I.109/1996. It then proceeded to set the provisions aside.

Effectively, therefore, the paragraphs in question were no longer of any force or effect.

Unlike a declaration of constitutional invalidity, a declaration that a provision is ultra vires its parent statutory provision does not require confirmation by this Court.

It stands to reason, therefore, that, once the court a quo made this declaration, the paragraphs were no longer law. They ceased to exist.

Notwithstanding the declaration of invalidity, and the consequential setting aside of the paragraphs in question, the court a quo then proceeded to declare that the same paragraphs violated section 71 of the Constitution.

The court could not logically declare invalid a provision that it had already set aside.

An inherent theme in constitutional litigation is the consideration of whether there is a constitutional matter requiring adjudication by the Court. In the absence of an identifiable constitutional issue, the jurisdiction of this Court, in any suit before it, is not triggered.

This point was emphasized in the case of Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC)…, wherein the following was reiterated:

“The import of the definition of a 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection, or enforcement of the Constitution.”

The learned authors MAX du PLESSIS, GLENN PENFOLD and JASON BRICKHILL, 1st ed…, also state that:

“The quintessential example of a constitutional matter is one that involves the direct application of the Bill of Rights, that is, a constitutional challenge to law or conduct based on an unjustified infringement of a fundamental right. This includes challenges to the constitutionality of:

(i) An Act of Parliament, a local government by-law or conduct of a State functionary; and
(ii) A rule of the common law or customary law.”

The same definition of a constitutional matter is to be found in section 332 of the Constitution.

This requirement also extends to other courts that, in certain respects, enjoy concurrent constitutional jurisdiction with this Court excluding those matters that are explicitly within the exclusive jurisdiction of this forum.

The genesis of the impugned Exchange Control Directive No. R120/2018 is section 35(1) of the Exchange Control Regulations 1996. The provision is worded as follows:

“35. Authorised dealers and other persons to comply with directions

(1) Authorised dealers shall comply with such directions as may be given to them by an exchange control authority relating to —

(a) The exercise of any functions conferred on them by or under these regulations;

(b) The terms on which they are to exchange foreign currency for Zimbabwean currency;

(c) The offer of foreign currency in their possession for sale to the Reserve Bank.”

The law is settled, that, where there is a statute or law designed to provide effective redress, litigants must find redress in that law rather than approaching the court pleading a constitutional issue: see Zinyemba v Minister of Land and Rural Resettlement and Anor 2016 (1) ZLR 23 (CC)…,.; South African National Defence Union v Minister of Defence and Others 2007 ZACC 10 (CC); MEC for Education, Kwa-Zulu Natal and Others v Pillay 2008 (1) SA 474; and Chani v Mwayera & Ors.

The twin concepts of constitutional avoidance and the principle of subsidiarity are part of our law.

In terms thereof, where redress can be afforded in subsidiary legislation, and without pleading constitutional issues, such remedies must be exhausted before approaching the court on a constitutional premise: see Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd CC15-16; Majome v Zimbabwe Broadcasting Corporation and Ors 2016 (2) ZLR 27 (CC).

In Moyo v Sergeant Chacha & Ors 2017 (2) ZLR 142 (CC), the Court held that:

“Where the question for determination is whether conduct the legality of which is impugned is consistent with the provisions of a statute, the principle of subsidiarity forbids reliance on the Constitution, the provisions of which would have been given full effect by the statute.

The principle of subsidiarity has been explained in the cases of Majome v Zimbabwe Broadcasting Corporation and Ors CC14-16 and Boniface Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd CC15-16.

It states, that, a litigant who avers that his or her constitutional right has been infringed must rely on legislation enacted to protect that right and may not rely on the underlying constitutional provision directly when bringing action to protect the right, unless he or she wants to attack the constitutional validity or efficacy of the legislation itself.

Norms of greater specificity should be relied upon before resorting to norms of greater abstraction.”

It was the applicants argument, that, Exchange Control Directive No. R120/2018 was ultra vires its parent provision.

However, they did not seek to challenge the constitutional validity of section 35(1) of the Exchange Control Regulations 1996 and, in its remarks, the court a quo confirmed that section 35(1) of the Exchange Control Regulations 1996 did not violate section 71 of the Constitution.

The applicants in fact concede the validity of the provision.

In view of this concession, they cannot challenge the constitutional validity of the Directive.

On the doctrine of subsidiarity, therefore, their constitutional challenge to the Directive is ill-founded and baseless. I am fortified in this view by the remarks of the Court in Makanda v Magistrate Sande N.O. & Ors CC03-21.

In Majome v Zimbabwe Broadcasting Corporation and Ors CC14-16, the Court stated:

“According to the principle of subsidiarity, litigants who aver that a right protected by the Constitution has been infringed must rely on legislation enacted to protect that right and may not rely on the underlying constitutional provision directly when bringing action to protect the right, unless they want to attack the constitutional validity or efficacy of the legislation itself. See AJ van der Walt: 'Constitutional Property Law' 3ed Juta p66; MEC for Education, KwaZulu Natal v Pillay 2008 (1) SA 474 (CC) paras 39-40; Chirwa v Transet Ltd 2008 (2) SA 24 (CC) paras 59, 69.”

Regulations are subordinate legislation. When subordinate regulations are under consideration, however, it is necessary to consider them in relation to the empowering provisions under which they have been made.

It is a trite principle, that, the doctrine of subsidiarity serves as a gate keeping function to guard against the hearing of constitutional matters on an ad hoc basis. It ensures that the courts apply a general principle to all cases, and that, in that manner, the courts are protected from criticism with regard to their decisions on which matters they consider as appropriate to determine.

The principle thus ensures that there is certainty in the law and that the principle of constitutional consistency and validity, required by the Constitution in the law, is upheld: see Boniface Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd CC15-16 and Berry (nee Ncube) & Anor v Chief Immigration Officer & Anor 2016 (1) ZLR 38 (CC).

On the basis of the above authorities, it is evident that the doctrine of ultra vires, as pleaded by the applicants, has no comity with the remedy envisaged in respect of an application under section 85 of the Constitution.

It is on this basis, that, the court a quo ought not to have proceeded to determine a constitutional question once the applicants had a remedy provided for under general law.

Given the finding in favour of the applicants on a non-constitutional basis, namely, on the ultra vires argument, it was not competent for the court a quo to have proceeded to determine issues of constitutional validity.

The court a quo was not content with merely setting aside the Directive.

It considered that the task before it was to “locate the particular legislative provision, or provisions, in the whole gamut that has been impugned which the respondents relied on as the basis for that conversion, in contravention of section 71(2) of the Constitution.”...,.

It then proceeded to issue an order declaring section 22(1)(b) and section 22(4)(a) as being in violation of section 71(2) of the Constitution.

It gave no specific reason for the declaration.

In its concluding paragraph, it stated that paragraphs 2.5 and 2.6 were impeachable because, among other things, they, together with the legislative provisions specifically singled out, were collectively the device by which the second and third respondents improperly interfered with the contractual rights and obligations between the applicants and the first respondent.

The court said that this interference resulted in the deprivation of the applicants property.

Given my conclusion with regard to the absence of a constitutional issue based on the Directive, it becomes unnecessary to comment further on this issue.

The applicants took this issue and argued it before the court a quo as a preliminary point. The respondents contend, that, the court a quo should have declined jurisdiction on the ground that the matter before it was res judicata, or, that alternatively, issue estoppel applied.

However, the court a quo disregarded this procedural issue on the basis that the reasoning of the High Court, in the earlier dispute between the parties, was vacated by the Supreme Court under SC15-21 and hence the constitutionality of Exchange Control Directive No. R120/2018 remained unresolved as an issue for determination.

The court a quo found, or alternatively observed, that, the first and second applicants had previously litigated on the same subject matter, involving the same respondents “in the main impugning Exchange Control Directive RT120/2018.” The court a quo further found that the said applicants were “now back again in this court, their cause of action having been re-formulated.”

The learned author, ISAACS, in his text Beck's Theory and Principles of Pleading in Civil Actions, specifies in what respects a previous judgment may be res judicata. At p171, he states as follows:

“The previous judgment is only res judicata as regards matters between the parties which the judgment actually affects and when the plea is raised, it therefore becomes essential to determine whether the present claim is actually affected by the previous judgment.”...,.

See also Wolfenden v Jackson 1985 (2) ZLR 313 (S)...,.

An authoritative discussion on the requirements of res judicata was set out by SANDURA JA in Banda & Ors v Zisco 1999 (1) ZLR 340 (S), wherein the court affirmed the dicta in several decided authorities on the issue. The court stated:

“The requisites of the plea of res judicata have been set out in a number of previous cases. In Pretorius v Barkly East Divisional Council 1914 AD 407 at 409, Searle J set them out as follows:

'As to the first point, the requisites for a plea of res judicata have several times been laid down in this court.

The three requisites of a plea of res judicata, said the Chief Justice in Hiddingh v Denyssen & Ors (1885) 3 Menz 424, quoting Voet (44.2.3), are that the action in respect of which judgment has been given must have been between the same parties or their privies, concerning the same subject matter, and founded upon the same cause of complaint as the action in which the defence is raised…,.

In order to determine the cause of complaint, the pleadings, and not the evidence, in the case must be looked at.'

Subsequently, in Mitford's Executor v Ebden's Executors & Ors 1917 AD 682 at 686, Maasdorp JA said the following:

'The question now arises whether that decision was given under circumstances which preclude the plaintiff from bringing his present action. Are the first defendants entitled to set up that decision as res judicata in the present action? To determine that question, it will be necessary to enquire whether that judgment was given in an action -
(1) With respect to the same-subject matter;
(2) Based on the same ground; and
(3) Between the same parties.'”

From the above authorities, the following essential elements of the plea may be distilled as follows:

(1) The two actions must be between the same parties or their privies;
(2) The two actions must concern the same subject-matter; and
(3) The two actions must be founded upon the same cause of action.

The first two elements of the plea are common cause. The parties in the suits under discussion are the same.

In its judgment, the court a quo made the finding that the subject matter was the same as that of the case which culminated in the appeal under SC15-21.

The third element is that both actions are founded on the same cause of action - this is related to the legality of the legislation in question.

This last is the issue that the court a quo decided to determine.

The court a quo decided to hear the matter on the premise that it could legitimately do so on the “basis that the issue of the constitutionality of the Directive, and of those legislative provisions, was not determined, either to finality or at all.”

The court a quo specifically found, that, the plea did not apply because the earlier judgment by the High Court, which had discussed the Directive, had been set aside by the Supreme Court. The court said:

“[15] I disagree, that, in the present application, issue estoppel or res judicata can be invoked successfully for the reason that the Supreme Court has determined that the consideration of the constitutionality of the Exchange Control Directive RT120/2018 had not been properly motivated before this court in those proceedings and had therefore been improperly decided. The decision of this court on that point has been vacated. Manifestly, it remains open. In other words, the question of the constitutional validity of the Exchange Control Directive RT120/2018 and of section 44B(3) and (4) of the Reserve Bank Act has not been determined.”

The following passage of the court a quo's judgment perfectly encapsulates the essence of the applicants cause of action as follows:

“[22] Holistically, what the applicants want in these proceedings is the impeachment of the device by which the monetary authorities managed to convert their USD142,000 bank balance into an RTGS bank balance, and, thereafter, to be able to stop the applicants from accessing the amount in the original currency of the deposit.”

It is a settled principle, that, where a matter is res judicata, no court can competently re-open it.

In Wolfenden v Jackson 1985 (2) ZLR 313 (S)…, the court held as follows:

"The exceptio rei judicatae is based principally upon the public interest that there must be an end to litigation and that the authority vested in judicial decisions be given effect to, even if erroneous: see Le Roux en 'n Ander v Le Roux 1967 (1) SA 446 (A) at 461H.

It is a form of estoppel and means, that, where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies (or, in the case of a judgment in rem, any other person) are not permitted to dispute its correctness."

In casu, the High Court proceeded to hear the matter in the face of spirited objections from the respondents. They contended, that, the court was procedurally barred from hearing the parties on the specific application before it.

By parity of reasoning, a finding by the High Court that the matter before it was res judicata would have disposed of the dispute at that stage.

The respondents have raised the same issue before this Court, arguing that the High Court ought to have upheld the objection by withholding its jurisdiction.

Notwithstanding the allegation of a plea of res judicata, the Constitution provides, in section 175(1), that where a court makes an order of constitutional invalidity, such order has no force and effect unless and until confirmed by the Constitutional Court.

Since confirmation proceedings are in the nature of constitutional review, the court is enjoined to carry out an independent investigation as to whether the proceedings which resulted in the order of constitutional invalidity of legislation now before it, for confirmation or variation, followed the adjectival or procedural tenets of constitutional litigation before confirming or declining to confirm the proceedings as required by section 175(1) of the Constitution.

The High Court proceeded with the matter and this renders the question of issue estoppel as being moot.

Whether the matter was res judicata is of no moment in view of the role of the Constitutional Court in confirmation proceedings following a declaration of invalidity of any law. The Constitutional Court would be seized with the matter irrespective of the plea of res judicata.

A finding that the matter was res judicata would not be dispositive of the dispute nor would it satisfy the requirements set out in section 175(1) of the Constitution which oblige the Constitutional Court to undertake a review of the proceedings resulting in the order of invalidity.

As I have concluded above, there was no constitutional issue for determination before the High Court. In the circumstances, it becomes unnecessary to consider the content of the right to property under section 71 of the Constitution.

The proceedings in the court a quo were procedurally deficient.

The applicants approached the court in terms of section 85(1)(a) of the Constitution. The procedure contemplated in section 85 of the Constitution is a direct enforcement procedure for the enforcement of fundamental rights and freedoms.

The provision cannot be invoked in respect of non-constitutional remedies.

The cause of action seeking the invalidation of the Exchange Control Directive R120/2018 on the basis that it is ultra vires section 35(1) of the Exchange Control Regulations 1996 had no relationship with the protection and enforcement of fundamental rights and freedoms contained in the Declaration of Rights.

The same applies to the cause of action seeking the payment of USD142,000.

To the extent that the application comprised two composite causes of action, on the one hand, constitutional and the other non-constitutional, it was therefore improperly before the court a quo.

By a combination of imprecise pleading and improper conflation of constitutional and non-constitutional issues in one application, there was no valid constitutional application before the court a quo.

The fact that it was contended by the applicants that the Exchange Control Directive R120/2018 is ultra vires section 35(1) of the Exchange Control Regulations 1996 is evidence that there was no ripe constitutional question.

The law is settled, that, where there is a statute or law designed to provide effective redress, litigants must find redress in that law rather than approaching the court pleading a constitutional issue.

The court a quo ought to have avoided the purported constitutional question before it.

In the light of these reasons, judgment was entered as afore-stated.

The applicants are importunate. They want back their money, $142,000, all in the currency of the United States dollars [USD].

If the first respondent, their banker, will not pay, then the second and third respondents, collectively the monetary authorities, should.

The applicants allege these monetary authorities are partly the reason the first respondent will not pay.

The applicants want a whole range of some financial legislation, and certain monetary policies or directives, set aside on the grounds of constitutional invalidity.

They first came to this court in 2019. The subject matter was the same. This court ruled in their favour. It directed the first respondent to pay: see Stone & Anor v CABS & Ors HH287-20.

The first respondent did not pay.

All the respondents appealed separately. The appeals succeeded. The judgment of this court was vacated: see CABS & Ors v Stone & Ors SC15-21.

That was in March 2021.

In August 2021, the applicants were back in this court. It is still the same subject matter. But the thrust is now different. They seek the following orders:

(i) That, Exchange Control Directive No. R120/2018 issued by the Reserve Bank [is] unconstitutional and invalid as it violates section 71 of the Constitution;

(ii) That, the Exchange Control Directive No. RT120/2018 is grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI 109 of 1996, and is invalid;

(iii) That, section 44B(3) and (4) of the Reserve Bank Act are unconstitutional and invalid as they violate section 71 of the Constitution;

(iv) That, section 22(1)(b) and (d), section 22(4)(a) and section 23(1) and (2) of the Finance (No.2) Act of 2019 are unconstitutional and invalid as they violate section 71 of the Constitution;

(v) That, the conversion of the applicants USD142,000 to RTGS142,000 is unconstitutional and invalid as it violates section 71 of the Constitution;

(vi) That, the first respondent should pay to the applicants the amount of USD142,000;

(vii) That, the first respondent is to pay interest on the aforestated amount at the rate of 5% per annum from 28 November 2016 to the date of payment; and

(viii) That, the respondents must pay costs of suit, jointly and severally, the one paying the other[s] to be absolved.

The first respondent is a building society. It is a bank or an authorised dealer for the purposes of exchange control regulations.

At all relevant times, the applicants were in business as architects. They banked with the first respondent. As at 28 November 2016 the balance in their account was $142,000. The designation of the account was USD.

That designation was in line with the currency regime in force at the time. At the time, the national economy was on a multi-currency system. That had been the situation since 2009.

In terms of that system, the currencies of other countries, specifically the British pound, the euro, the USD, the South African rand and the Botswana pula had been made legal tender in Zimbabwe, courtesy of an amendment to the Reserve Bank Act [Chapter 22:15]: see section 17 of the Finance (No.2) Act No.5 of 2009.

The local currency would float and find its own level in the basket of all these other currencies.

Over the years, the local currency depreciated in value so much that it practically became non-existent. In 2015, the State President officially demonetized it through statutory instrument S.I.70 of 2015: see Reserve Bank of Zimbabwe (Demonetisation of Notes and Coins) Notice 2015, SI70 of 2015.

After the demonetization as aforesaid, there followed some rapid developments in the monetary system.

These were achieved through policy pronouncements and legislative changes by the State President in terms of the Presidential Powers (Temporary Measures) Act [Chapter 10:20], or via the second respondent, as the Central Bank, and the third respondent, as the Minister in charge of finance.

Among other such changes, the third respondent, was empowered in 2016, through a statutory instrument, to reintroduce some form of local currency: see Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2016, SI133 of 2016.

Such currency would comprise what would become known as 'bond notes' and 'bond coins'.

It would become legal tender. It would be exchangeable at par value with any specified currency. Each unit of a bond note would be exchangeable for one USD. The bond notes and coins eventually came into operation in March 2017. This was achieved through an amendment to the Reserve Bank Act: Reserve Bank Amendment Act No.1 of 2017.

The amendment practically reproduced S.I.133 of 2016. But, there were two significant additions:

(i) The amendment was deemed to have come into operation on 31 October 2016 (section 1 thereof) the date of SI 133 of 2016; and

(ii) The bond note would be backed by a guarantee extended to the Reserve Bank by one or more international financial institutions: see section 44B(1) of the Reserve Bank Act.

In a press statement on 4 May 2016, the second respondent had disclosed the extent of that financial guarantee. It was in the sum of USD$200 million. It had been issued by the African Export-Import Bank [Afreximbank].

The next significant development was on 4 October 2018.

On that date, the second respondent issued the Exchange Control Directive RT120/2018. The second respondent is empowered to issue such directives by section 35(1) of the Exchange Control Regulations 1996, SI 109 of 1996.

The background to the Exchange Control Directive RT120/2018 is this.

At that time, the economy was still operating in the multi-currency system. Bank accounts were all Nostro foreign accounts. “Nostro” is an accounting term used by banks and monetary authorities. A bank in Zimbabwe will operate a Nostro account with a foreign or correspondent bank in the world financial centres where a float of money designated in foreign currency is maintained. The Nostro account is for settling foreign obligations of the local bank.

The local bank account transactions are replicated or “mirrored” in the Nostro account of the correspondent bank.

Of the basket of currencies in use, the USD was the most predominate. Thus, most Nostro foreign currency accounts were predominantly in USD.

The intrinsic provision of the Exchange Control Directive RT120/2018 directed banks to separate foreign currency accounts into two categories, namely, Nostro foreign currency accounts [Nostro FCAs] and Real Time Gross Settlement [RTGS] foreign accounts [RTGS FCAs].

For the present narrative, RTGS would be the new form of the local currency.

It would eventually be brought into circulation by the Central Government via SI33 of 2019. Its effective date was 22 February 2019: see the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars) Regulations 2019, SI 33 of 2019.

Exchange Control Directive RT120/2018 was directed at authorised dealers, principally banks.

It addressed a number of issues. It said its purpose was to “operationalise” the measures which had been incepted earlier on to strengthen the multi-currency system to enhance business viability and price stabilization; to increase export generation capacity and to improve market confidence.

It explained, further, that, the measures were aimed at encouraging diaspora remittances, the banking of foreign currency into the Nostro FCAs and to eliminate the co-mingling effect or dilution of Nostro FCAs by RTGS balances.

It was further stated, that, the relationship between the two categorise of the foreign currency accounts would continue to be at parity in order to preserve value for money for the banking public and the investors during the transition to a more market-based foreign currency allocation system. The market based foreign currency allocation system would be implemented once the economic fundamentals had become appropriate.

Before this court, the third respondent has provided some further insights into the thought process behind the implementation of the measures above, particularly the split of people's bank balances into Nostro FCAs and RTGS FCAs.

In summary, and as I have understood him, the multi-currency regime had come with its own problems.

Market distortions, liquidity crunches, cash shortages, and so on, dogged the economy. Public confidence became difficult to maintain. Pressed by international financial institutions, such as the Bretton Woods, it became imperative to initiate currency reforms. Key amongst such reforms would be the adoption of a domestic currency.

As at 1 October 2018, the currencies in use in the economy were both the USD and another which had been created by the State, through borrowing from the second respondent, and the issuance of treasury bills. The latter currency was at first nameless even though it continued to pass off as USD. It was not a physical currency. It was a currency that could only be transacted through the RTGS system.

It was not a genuine USD currency.

The third respondent further explains, that, the purpose of borrowing by Government from the Central Bank, and the issuance of treasury bills, had been to cover the domestic debt of State-owned entities.

So, to achieve the intended reforms, particularly the currency reforms, it became necessary to separate the two types of currencies in use. In pursuance of that policy, and through the second respondent's monetary statement of 1 October 2018, financial institutions had been directed to separate their customers bank accounts into two categories:

(i) Those holding actual dollars of the United States; and
(ii) Those holding this other nameless currency still passing off as USD.

Banks would open Nostro FCAs into which genuine dollars of the United States would be deposited. That other non-United States dollar currency would remain as the existing customers accounts.

Such process of separation would take about ten days. The modalities would be left to the financial institutions themselves. They would use their own data bases, such as the Know Your Customer [KYC] principles, to determine the source of the deposits in their individual customers accounts. Henceforth, deposits or remittances from sources outside the country would be channelled into the Nostro FCAs which would automatically be created by the banks at no cost to their customers. All other deposits would continue to be channelled into the existing accounts.

The separation of the FCAs in terms of the Exchange Control Directive RT120/2018 entailed that foreign currency realized from offshore or foreign currency cash deposits would be credited into individual or corporate Nostro FCAs. The sources specifically listed in these regards included export proceeds, offshore loan proceeds, offshore funds from foreign investors, diaspora remittances, and so on.

On the other hand, all RTGS or mobile transfers and deposits in bond notes or coins would be credited into individual or corporate RTGS FCAs.

The third respondent eventually gave the nameless currency a name. This was through SI 33 of 2019 aforesaid.

That currency would be called the RTGS dollar.

SI33 of 2019 empowered the second respondent to issue the RTGS dollar as an electronic currency. It would be legal tender in Zimbabwe. The RTGS balances, expressed in USD immediately before the effective date, would be, from that date, deemed to be opening balances in RTGS dollars at par with the USD at a rate of one-to-one.

Thereafter, any variance in parity would be determined by market forces on a willing-seller willing-buyer basis.

Bond notes and coins in circulation at the time would continue to be legal tender exchangeable at parity with the RTGS dollar on the same ratio of one-to-one.

All the aforesaid changes and reforms would formally be incorporated into the statute books, primarily through appropriate amendments to the Reserve Bank Act. The details are not important for the moment, save just to mention that this is the gamut of the legislation the applicants want knocked down.

They aver that watching those changes from 2016, they feared the value of their deposit would devalue significantly. To them, the unfolding situation was not without precedence.

They cite the bearer cheque dispensation of 2007 and 2008 when inflation had risen phenomenally. Money would be counted in quintillions of dollars.

When the economy had dollarized, people's savings had been wiped out.

Therefore, to avert another disaster, the applicants say they instructed the first respondent, on 28 November 2016, to “freeze” their account so that no deposits or withdrawals from it would be effected except upon the written instructions by the authorised signatories.

It did not work.

The first respondent cited the policy and legislative changes above and said it had to comply.

The applicants aver that their bank account, which previously reflected a balance of USD142,000 now reflected the same figure - but in RTGS.

Due to the movement of the exchange rate between the USD and the RTGS dollar and the depreciation of the RTGS dollar against all the other major currencies, the applicants allege that their deposit has become a minuscule fraction of its original value.

They submit that this cannot be right. They will not accept it. Apparently, neither will so many other customers: As a matter of fact, there has been persistent litigation over the same subject matter since the changes in the monetary regime.

So, in 2019 the applicants sued the first respondent, their Bank, on the basis of the banker-customer principles of the common law. In the alternative, they sued the monetary authorities, the second and third respondents, in the main impugning Exchange Control Directive RT120/2018.

As mentioned at the beginning of this judgment, the applicants cause found favour with this court. But, they lost on appeal. They are now back again in this court, their cause of action having been re-formulated.

But, inevitably, and quite characteristically in matters such as this, the court has been called upon to first determine the numerous points in limine which have been raised by the respondents.

These are dealt with below, not necessarily in the order that they have been raised in the affidavits, but rather on the basis of their individual likelihood or potential to dispose of the entire application without going into the merits.