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

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

On 7 November 2016, we, after reading documents filed of record and hearing counsel's submissions, upheld the appellant's appeal and granted the following order:

“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 application is dismissed with costs.”

We indicated that detailed reasons for granting that order would follow. These are they.

The appellant (Lifort Toro) is a beneficiary of the Land Reform Programme. He was allocated an A2 Farm Subdivision 1 of Beatrice Central.

The first respondent, Vodage Investments (Pvt) Ltd, is a company registered in terms of the laws of Zimbabwe. Despite several suspicious details in the agreement on which it relies, it claims to be a holder of a lease to buy agreement entered into between it and Manyame Rural District Council (the second respondent), in respect of the same piece of land allocated to the appellant.

The third respondent is the Minister of Lands and Rural Resettlement. He allocated the land in dispute to the appellant.

The land in dispute was, by Proclamation 3 of 2012, S.I. 115 of 2012 incorporated into Beatrice Urban area which is administered by the second respondent.

By letter dated 10 June 2013, the third respondent handed over the land in dispute to the Minister of Local Government, Rural and Urban Development.

It is now urban land which cannot be allocated for agricultural purposes.

It is common cause, that, the third respondent conceded that he no longer has authority over the disputed land. It is obvious that the appellant will, eventually, have to leave that piece of land. The third respondent has, in view of the changed circumstances, offered him another piece of land.

The first respondent issued summons in the Magistrate's Court for the eviction of the appellant. The appellant entered appearance to defend. The first respondent applied for summary judgment which the appellant opposed.

The appellant's opposition was premised on the first respondent's lack of locus standi to evict him.

He argued, that, the first respondent, being a lessee who had not taken occupation, had no locus standi to evict him.

In determining the application for summary judgement, the magistrate, at pp4 to 5 of his judgment, said:

“Based on that authority, I agree that the applicant does not have the locus standi to evict the second respondent but that it is the acquiring authority who (sic) does. I therefore feel that the application for summary judgment should not be granted, as applicant does not have the locus standi to institute these proceedings.”…,.

After the tag of incapacity to institute eviction proceedings had been placed on it, the first respondent made a subsequent application to the High Court for the eviction of the appellant.

The appellant opposed the application on the basis, that, the dispute between them was res judicata, that, there were material disputes of fact which could not be resolved through the application procedure, and, that the applicant did not have locus standi to institute eviction proceedings against him.

The High Court held, that, the issue of the appellant's eviction by the first respondent was not res judicata, and that, the first respondent had locus standi to evict the appellant.

It granted the first respondent's application for eviction without determining whether or not there were material disputes of fact which could not be resolved through the application procedure.

The appellant appealed against that decision to this court. He, in his grounds of appeal, submitted that the court a quo erred in the following respects:

1. In holding, that, the issue of his eviction by the first respondent was not res judicata.

2. In holding, that, the first respondent had locus standi to evict him.

3. By not determining the issue of there being material disputes of fact which cannot be resolved through the application procedure.

I deal with each ground in turn.

1. RES JUDICATA

Counsel for the appellant submitted, that, the Magistrate's decision, that the first respondent did not have locus standi to evict the appellant, extinguished the first respondent's claim to evict the appellant. She relied on the cases of Nyaguwa v Gwinyayi 1981 ZLR 25 and Chimponda & Anor v Muvami 2007 ZLR (2) 326.

Counsel for the first respondent supported the court a quo's decision, that, the Magistrate's decision was “founded purely on adjectival law, regulating the manner in which the court is to be approached for the determination of the merits of the matter.”

I do not agree.

The tag of incompetence placed on the first respondent by the Magistrate is definitive and final until set aside by a competent court. The High Court had no authority to set it aside as it was not sitting as a Review or an Appellate Court.

In Nyaguwa v Gwinyayi 1981 ZLR 25 PITMAN J…, said:

“I was of the opinion, that, in this country, each court is a creature of statute, and its powers are created and defined by statute. The function of every Civil Court is to recognize what it believes to be the rights of the parties before it. Once a Civil Court has given such recognition, that recognition must be accepted by each of the other courts, whatever its relative position in the hierarchy of courts may be, unless authority to overrule such recognition has been conferred upon it by statute. If one court were to claim that it has some inherent power to overrule another court, instead of a power specifically created by statute, in effect it will be claiming the power to nullify the body of statute law which specifically relates to the establishment and powers of each of the civil courts in the country. As no power to over-rule the decisions of magistrate's courts has been vested in the General Division of the High Court, I considered that this court could not grant the order sought by the petitioner.”

The High Court, sitting as a court of first instance, does not have authority to disregard or overrule extant decisions of the Magistrates Court.

The court a quo should therefore have declined to determine the already determined issue of the first respondent's locus standi to evict the appellant while the decision of the magistrate remained extant.

The court a quo failed to appreciate, that, the first respondent's application was aimed at seeking a re-determination of the first respondent's locus standi to evict the appellant or the avoidance of the magistrate's determination of that issue.

The failure to appreciate the nature of the application led to its failure to realize, that, it had no authority to overrule the magistrate's definitive finding that the first respondent had no locus standi to evict the appellant.

In the case of Chimponda & Anor v Muvami 2007 ZLR (2) 326 MAKARAU JP…, said:

“The requirements for the plea of res judicata are settled. Our law recognizes, that, once a dispute between the same parties has been exhausted by a competent court, it cannot be brought up for adjudication again as there is need for finality in litigation. To allow litigants to plough over the same ground hoping for a different result will have the effect of introducing uncertainty into court decisions and will bring the administration of justice into disrepute.

For the plea to be upheld, the matter must have been finally and definitively dealt with in the prior proceedings.

In other words, the judgment raised in the plea as having determined the matter must have put to rest the dispute between the parties, by making a finding in law and/or in fact against one of the parties on the substantive issues before the court or on the competence of the parties to bring or to defend the proceedings. The cause of action as between the parties must have been extinguished by the judgment.

A judgment founded purely in adjectival law, regulating the manner in which the court is to be approached for the determination of the merits of the matter, does not, in my view, constitute a final and definitive judgment in the matter. It appears to me that such a judgment is merely a simple interlocutory judgment directing the parties on how to approach the court if they wish to have their dispute resolved.”…,.

A determination by the magistrate on the competence of the first respondent to institute eviction proceedings against the appellant is not a finding in adjectival law regulating the manner in which the court is to be approached for the determination of the merits of the matter. It is a final and definitive determination barring the first respondent from instituting proceedings on the same cause of action against the appellant. Such a finding finally and definitively determines the capacity of a litigant to institute or defend the same cause of action before the courts.

The court a quo failed to distinguish between the magistrate's dismissal of the application for summary judgment, which could be interlocutory, from the reason for the dismissal, which is definitive and finally closes the door to the first respondent due to legal incompetence to litigate over the appellant's eviction.

The magistrate's judgment remains extant.

The first respondent could not, therefore, be entertained by any court on this issue, except on appeal or review, against the magistrate's decision that it had no locus standi to evict the appellant.

2. Whether the first respondent has locus standi to evict the appellant

The issue of locus standi was improperly before the court a quo because it was res judicata. It had been finally and definitively determined by the Magistrate's Court, and remains so determined until that decision is upset by a properly constituted Review or Appellate Court.

The court a quo should not have made a determination on that issue.

This Court, sitting as an Appellate Court over the High Court's decision, cannot pronounce itself over a matter which is not properly before it and over which there is an extant judgment which has not been appealed against.

The court a quo therefore erred when it determined an issue which was res judicata.

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

The purpose of litigation is for the court to determine disputes placed before it by the parties.

The court must therefore give reasons stating how it resolved all the disputes placed before it, unless the determination of one or some of the issues clearly renders the determination of one or other issues unnecessary.

The issue of whether or not there were disputes of fact was critical as to whether or not the respondent had used the correct procedure.

It could have established that the application procedure was inappropriate. That, in turn, would have left the court a quo with the option of either dismissing the application or referring it to trial. There would, in either of the two options, have been no need to determine the other issues.

Therefore, the issue of whether or not there were material disputes of fact should have been determined before the court could determine other issues. The court a quo, therefore, erred when it failed to determine this critical issue.

In the case of Gwaradzimba v C.J. Petron and Company (Pvt) Ltd SC12-16 GARWE JA said:

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

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

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

It was in view of these findings that we upheld the appeal and granted the order set out on page 1 of this judgment.

Appealed
SC65-14 : AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

This is an appeal against a judgment of the High Court dismissing with costs an urgent application brought by the appellants for the release from 'attachment and execution' of certain motor vehicles and other assets attached by the second respondent (“the Deputy Sheriff”) on the appellants premises on 12 April ...

THE BACKGROUND

The first and second appellants are companies duly incorporated according to the laws of Zimbabwe and whose registered office and principal place of business is situate at the Harare Airport.

The first respondent is an ex-employee of the second appellant. Sometime in October 2010, an arbitral award for outstanding salary and benefits was made in his favour.

No appeal was lodged against the decision of the arbitrator, and the award was registered with the High Court on 5 September 2012.

On 19 October 2012, he caused to be issued a writ of execution on the strength of which the Deputy Sheriff attached and removed twenty–nine vehicles which were found on the appellants premises at the Harare Airport.

The appellants alleged, that, interpleader notices were filed to 'safeguard the claimants interests, which notices are still pending.'

Indeed, it appears that interpleader proceedings in the name of the first appellant, as claimant, and the first respondent, as judgment creditor, were commenced in the High Court on or about 15 November 2012 and not concluded. (I pause here to observe, that, in terms of the High Court Rules, inter-pleader proceedings in respect of property attached in execution are required to be brought by the Deputy Sheriff, as applicant, and the person(s) claiming ownership of the attached property as claimant(s)…,.

The appellants further alleged, that, in December 2012, section 8 of the Finance Act (No.2) of 2012 (“the Finance Act”) was enacted with the sole purpose of protecting, from attachment or execution, the property of the appellants, as the successor companies of the Air Zimbabwe Corporation, and that following this enactment, and in February 2013, the first respondent released the attached motor vehicles subject to the appellants paying to the Deputy Sheriff storage fees which had accumulated in the sum of US$10,000.

The appellants were therefore surprised, when, on 12 April 2013, the Deputy Sheriff returned with the same writ of execution and attached the same motor vehicles which had previously been released from attachment.

They alleged, that, by virtue of the provisions the Finance Act (No.2) of 2012 (the Finance Act) as read with the State Liabilities Act [Chapter 8:14] the attachment of the appellants property to satisfy debts owed by either the first or the second appellant is in violation of the law and therefore illegal.

In the premises, they urged the court to intervene, as a matter of urgency, to prevent the removal of the assets, set for 22 April 2013 for public auctioning, and so put an end to the illegality perpetrated by the respondents.

Failure by the court to intervene and save the attached motor vehicles would result in paralysis of the business operations of the first appellant in a dispute to which it is not a party.

It is of interest to note here, that, notwithstanding the alleged urgency, the application was filed on 22 April 2013, the day scheduled for the removal of the attached property, and served on the first respondent the following day at 4:20pm.

In opposing the application, the first respondent raised two preliminary issues:

(i) Firstly, that the matter was not urgent; and

(ii) Secondly, that, the application was defective by reason of its non-compliance with Rule 241(1) of the High Court Rules which requires the applicant to set out the facts of his application in Form 29B.

No mention was made of the second issue in the judgment, and it is not raised in the Notice of Appeal.

With regard to the first point raised in limine, it was averred by the first respondent, that, the appellants had shown no satisfactory reason, whether in the certificate of urgency or their founding affidavits, as to why the matter should be heard as a matter of urgency.

In particular, there was no disclosure as to when the alleged urgency arose, regard being had to the fact that the writ was issued on 19 October 2012; that, when the Finance Act (No.2) of 2012 (the Finance Act) on which the appellants rely was enacted, in December 2012, no action was taken by the appellants; and that the appellants had concealed from the court an earlier attempt by the Deputy Sheriff, on 10 April 2013, to attach their property before the actual attachment took place on 12 April 2013.

In addition, there was no explanation from the appellants as to why they failed to file this application before 22 April 2013.

In the premises, the urgency was self-created.

As to the merits of the matter, the first respondent averred, that, the property attached belonged to the second appellant (Air Zimbabwe Holdings) which was not protected by the provisions of the Finance Act (No.2) of 2012 (the Finance Act), such protection having been afforded only to the first appellant (Air Zimbabwe (Pvt) Ltd).

While admitting that he had ordered the Deputy Sheriff to release the attached motor vehicles, it was averred, that, the release was not on account of the provisions of the Finance Act but was in consequence of a tender by Air Zimbabwe Holdings of a payment plan in terms of which the latter promised to pay the debt owed to the first respondent in agreed instalments.

When that commitment was not honoured, the Deputy Sheriff was instructed to re-attach and remove the goods formerly released, hence the attempt at attachment on 10 April 2013.

The learned Judge, having heard the matter, dismissed it on the basis that it lacked both urgency and merit.

The following grounds of appeal were relied on by the appellants:

GROUNDS OF APPEAL

1. The court a quo erred in declining to hear and determine the matter on an urgent basis by the exercise of its discretion on whether to hear and determine the matter on an urgent basis on a wrong premise, such wrong premise amounting to an irregular exercise of judicial discretion.

2. The court a quo erred in not holding, that, upon a proper construction of section 9A of the Air Zimbabwe Corporation (Repeal) Act (No.4) of 1998, as inserted by section 8 of the Finance Act (No.2) of 2012, both appellants are successor companies to the Air Zimbabwe Corporation.

3. The court a quo erred in not holding, that, judicial attachment and sale in execution of any property belonging to either of the appellants is proscribed by section 9A of the Air Zimbabwe Corporation (Repeal) Act (No.4) of 1998, as read together with the provisions of section 5(2) of the State Liabilities Act [Chapter 8:14].

The first ground of appeal makes no sense because the court a quo did not decline to hear the matter.

Indeed, having found that the matter was not urgent, it nevertheless proceeded to hear and determine it on an urgent basis.

In so doing, the court a quo contradicted itself.

What it should have done once a finding of lack of urgency was made, was to strike or remove the matter from the roll of urgent matters and not proceed to hear the merits; for, once a hearing has taken place, and a decision made on the merits, the question of urgency becomes irrelevant.

For this reason, a determination on the first ground of appeal would be unnecessary.

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

The appellants, on 21 August 2013, brought an application in the High Court, on a certificate of urgency, seeking a provisional order in the following terms:1. It is hereby ordered and declared, that, the management of Eaglesvale School vests in the Management of the Board of Governors of Eaglesvale School ...

The appellants, on 21 August 2013, brought an application in the High Court, on a certificate of urgency, seeking a provisional order in the following terms:

1. It is hereby ordered and declared, that, the management of Eaglesvale School vests in the Management of the Board of Governors of Eaglesvale School and the School Development Committees of the High School and Junior School respectively.

2. The First and Second respondents are not empowered to dissolve the Management Board of Governors and the School Development Committees of the High School and Junior School and any such acts are declared to be unlawful.

3. The unauthorised payment of any money from the school to the First and Second Respondents and/or any of their officers is unlawful.

4. Consequently, the First, Second, and Third Respondents be and are hereby restrained and interdicted from interfering, unlawfully, in the Applicants management of the administrative and financial affairs of Eaglesvale School.

5. The First, Second, and Third Respondents are ordered to pay the costs of this application.

INTERIM RELIEF GRANTED

6. Pending the final determination of this matter, the First and Second Respondents be and are ordered forthwith not to interfere and/or involve themselves in any manner in the administration and/or finances of Eaglesvale School.

7. The Board of Governors of Eaglesvale School, and the School Development Committee, shall continue to manage the school and its finances.

8. Third Respondent is ordered to take instructions concerning the administration and finances of school from the Applicants and not from the First and Second Respondents.

9. The Applicants and/or its legal practitioners be and are hereby authorised to serve this provisional order on the Respondents.

The learned Judge before whom the matter was placed dismissed the application with costs on the grounds, that, the appellants had no locus standi to bring the application, and, further, that the matter was not urgent.

Against this judgment, the appellants have appealed on grounds, inter alia, that, the court erred on both grounds.

It was prayed, on appeal, that, the judgment of the court a quo be set aside and substituted with an order granting the provisional order sought with costs....,.

The main question faced by a Judge presented with an 'urgent application' is to decide whether or not to give priority to the application by dealing with it on an urgent basis. In arriving at a decision on this issue, he or she is called upon to exercise discretion. Such discretion must be exercised judicially, taking into account the factors urged in favour of, and against, an urgent hearing.

If, on perusal of the papers, the Judge comes to the conclusion that the matter is urgent enough to merit an urgent hearing, then, he or she conducts a hearing and gives such order as he thinks fit.

But, if the conclusion is reached, however, that the matter is not urgent, he or she must refuse to hear the application and remove it from the roll, in which event the applicant has the option of enrolling his matter for hearing on the ordinary roll of court applications.

It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi, for the latter basis indicates that a decision on the merits of the application has been made...,.

The learned Judge, in giving his reasons for finding that the matter was not urgent, made certain findings of fact which involved the merits.

For example, he found that the appellants Board was dissolved on July 12, a fact of which the appellants claim they were unaware, and that the appellants had not established locus standi to act for the Board or to seek the remedy sought in the draft provisional order.

Those issues went to the heart of the matter. In proceeding to determine them, and to make those findings of fact, the court misdirected itself.

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

This application is made in terms of Article 34 of the Uncitral Model Law which is a schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award issued by the arbitrator, K. Segula, on 29 July 2014, in terms of which she quantified the respondent's damages in lieu of reinstatement as $87,640 made up of:

(i) $1,400 May 2003 salary;
(ii) $50,400 damages;
(iii) $35,000 pension contributions; and
(iv) $840 cash in lieu of leave.

The applicant employed the respondent as a Personal Assistant to its President and Chief Executive Officer from 2 September 2002. The relationship between the parties deteriorated when the respondent complained of sexual harassment by her immediate superior. The employment contract was terminated giving rise to a labour dispute which eventually went to arbitration.

On 24 March 2014, the arbitrator issued an arbitral award, the import of which was that the respondent had been unfairly dismissed.

It is not clear from the papers why the matter took almost 10 years to finalise if indeed the respondent had been dismissed on 19 June 2003.

Whatever the case, the applicant did not reinstate the respondent, necessitating a second hearing before the arbitrator for purposes of quantification of damages due to the respondent.

The quantification hearing occurred on 10 June 2014, but not before the applicant had, on 17 April 2014, noted an appeal against the initial award to the Labour Court.

At the conclusion of oral submissions, the parties agreed to make written closing submissions.

The applicant's legal practitioner undertook to submit his on 16 June 2014 after which the respondent was to submit hers. The period was later extended by the arbitrator as a result of which the applicant's submissions were to be filed by 25 June 2014 with the respondent obliging on 30 June 2014.

The closing submissions were eventually filed by both parties and the arbitrator quantified the damages and delivered her award aforesaid on 29 July 2014.

Problems started again.

The applicant appealed against the second award to the Labour Court. The applicant also launched this application for the setting aside of the award.

In its founding affidavit, deposed to by its Finance Manager, McShaman Kembo, the applicant stated that the award ought to be set aside on two (2) grounds, namely:

(i) That, it deals with a dispute not contemplated by or not falling within the terms of the arbitration, or contains decisions on matters beyond the scope of the arbitration in that while the arbitrator was only seized with the issue of damages in lieu of reinstatement, she had gone beyond her mandate by dealing with and awarding a sum of $35,000 in respect of pension contributions.

(ii) The second ground is that the award is in conflict with the public policy of Zimbabwe in the sense, that, there was a breach of the rules of natural justice, in particular, the audi alteram partem rule, in that, after the parties had made oral submissions, the arbitrator allowed the respondent to produce further evidence which she went on to rely upon without according the applicant an opportunity to respond.

The evidence was in the form of a lengthy document with the title “Application in support of quantification of damages.” The write up itself is ten (10) pages to which is attached another eight (8) paged document called 'Zimbabwe All Industry Salary Survey.'

The applicant complains, that, the documents contain evidence which was not made available at the oral hearing of 10 June 2014, and that, as a result, it did not respond to it. Significantly, the arbitrator went on to rely on that un-rebutted evidence in awarding the respondent damages in lieu of reinstatement and $35,000 as pension contributions.

The respondent opposed the application, and, in her lengthy opposing papers, she complained about the non-joinder of the arbitrator in the proceedings and disputed having introduced new evidence to the prejudice of the applicant.

According to her, all that is contained in her submissions dated 30 June 2014, which I have already cited, was available at the hearing on 10 June 2014.

If the applicant had chosen not to address those issues in its closing written submissions, that should certainly not be her problem.

To the respondent, the application is another ruse being employed by the applicant to deny her justice and to wear her down.

At the hearing, the respondent, however, conceded that the issue of pension contributions was not only outside the scope of the arbitration, it had also not been brought up at the hearing on 10 June 2014.

That notwithstanding, the arbitrator made an award for it....,.

Regarding the existence of an appeal to the Labour Court, I agree with counsel for the applicant, that, an Article 34 application is available to a litigant outside the appeal procedure and now that section 171(1)(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on labour matters which had been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01] there is nothing stopping me from exercising jurisdiction.

Section 171(1)(a) of the new Constitution provides:

“The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

To the extent that the Constitution overrides any Act of Parliament, there can scarcely be any doubt that section 171(1)(a) of the Constitution overrides section 89(6) of the Labour Act.

What this means is that, by clear constitutional provision, this court has original jurisdiction over all matters, including those of a labour nature, where prior to the new constitutional order, the Labour Court enjoyed exclusivity.

Considering that this matter has been set down and argued before me, while the appeal is still pending in the Labour Court, it is expedient that I indulge the parties and determine the matter.

In terms of Article 34(2)(a)(ii) of the Uncitral Model Law:

“An arbitral award may be set aside by the High Court only if the party making the application furnishes proof that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not submitted, only that part which contains decisions on matters not submitted to arbitration may be set aside.”

That Article allows a severance of the offending part of the award where appropriate. It is therefore apparent that this court is empowered to set aside a portion of an award and uphold another portion in appropriate circumstances.

The respondent has conceded that the issue of pension fell outside the terms of reference of the matter to arbitration; the arbitrator having only been requested to determine the respondent's damages in lieu of reinstatement.

Indeed, pension contributions cannot, by any measure, be regarded as falling within the ambit of damages, which Van WINSEN J…, in Myers v Abramson 1952 (3) SA 121 (C)…, (quoted with approval by GUBBAY CJ in Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (S)…,.) defined as:

“The measure of damages accorded such employee (a wrongfully dismissed one) is, both in our law and in English law, the actual loss suffered by him, represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.”

In my view, the concession made by the respondent, in respect of the award for pension contributions, was proper.

I would otherwise set aside only that part of the award, but, there is also merit in the submissions made by counsel for the applicant regarding the evidence which was allowed by the arbitrator post hearing of the matter.

As I have said, after the parties had agreed to make written closing submissions, the respondent went on to submit further evidence, including documentation attached to the written submissions.

There was really nothing wrong with that, considering that she was self-acting and a lay person. It was, however, incumbent upon the arbitrator, having taken such evidence, to allow the applicant to respond.

She did not. Instead, the arbitrator went on to rely upon such evidence in determining the matter.

A whole array of correspondence was thrown in after the hearing, including allegations of publication of the matter in the Daily News of 6 September 2002 and other issues relating to outstanding leave.

I do not agree with the respondent, that, all this information was already available at the time of the hearing. If it was, there would have been no need to re-submit it via the written closing submissions.

Article 34(5) of the Model Law seeks to clarify what would be regarded as being in conflict with the public policy. It provides:

“For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if -

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

One of the basic tenets of the rules of natural justice is the audi alteram partem rule, which enjoins every adjudicating authority to hear the other side before determining the matter.

There can be no doubt that the arbitrator fell foul of that rule. To that extent, there is no alternative but to interfere with the award.

I must, however, express my profound disappointment at the unacceptable delays that have occurred in this matter.

This dispute started more than 10 years ago and is still simmering now. Surely, there can be no excuse for delaying a labour dispute for such a lengthy period of time.

The respondent, who I must add, presented very sound and reasoned arguments, which, on any day, may turn a lot of legal practitioners green with envy, complains bitterly about the delay which she says has been orchestrated by the employer to frustrate her into abandoning her claim.

She has drawn my attention to the sentiments made in Khoza v Sasol Ltd where the court stated:

“I am satisfied, that, Mr Hinds and his office were grossly remiss, and that the employee, who all of this time was wallowing in poverty and in unemployment, was more than justified in approaching this court for relief rather than wait for the rusty old train of Sasol that takes its own time in its delivery of justice. I have yet to encounter a worse case where there is a more callous disregard of the prejudice that an employee suffers when the wheels of justice are deliberately slowed down by a resort of obfuscation by those who flaunt their financial muscle in what appears to be an obscene game of cat and mouse in which the only loser can be the employee.

In the unequal contest between a multi-billion rand empire that the employer is, and an unemployed person, as was submitted by Mr Spoor, all you have to do is to wear down the resolve of your less endowed opponent, tire him out and hope that he will go away, his quest for justice abandoned. Delay the day when he can get justice, and you can then thereby deny him justice.

I disagree.

As long as the courts are open, and as long as they purport to be the arbiters of fairness and justice between the powerful and the relatively powerless, so long will they not allow the sort of conduct displayed by the employer in this case to go without consequences.”

I associate myself fully with those remarks.

This matter ought to be brought to finality without further delay. The respondent has done everything within her power to achieve that, including the binding of the record, the application for set down, and payment of security for service of the notices of set down - as if she was the applicant. Throughout all that process, the applicant remained unconcerned, giving credence to the view that the applicant would like to perpetuate the matter endlessly.

The basis of setting aside of the award cannot be blamed on the respondent. She therefore cannot be visited with costs. The arbitrator, who is to blame, was not cited.

In the result, IT IS ORDERED THAT:

1. The arbitral award issued by the arbitrator K. Segula, dated 17 July 2014, is hereby set aside.

2. The quantification of damages in lieu of reinstatement is hereby remitted to the same arbitrator for a hearing de novo within fourteen days of this order.

3. Each party shall bear its own costs.

View Appeal
SC12-16 : AFARAS GWARADZIMBA vs C. J. PETRON & COMPANY (PROPRIETARY) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

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

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

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

This appeal is against that judgment.

FACTUAL BACKGROUND

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

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

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

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

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

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

PROCEEDINGS IN THE HIGH COURT

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

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

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

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

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

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

The court reached the conclusion, that, the decision to refuse leave was wrong, unfair, and in breach of section 3 of the Administrative Justice Act.

The court consequently set aside the decision.

The court considered it unnecessary to decide whether or not the decision refusing leave was grossly unreasonable “in the Wednesbury sense”. The court was also of the view, that, this was a proper case for it to grant the leave which the appellant had refused. Consequently, the court granted such leave in paragraph [2] of the operative part of its judgment.

APPELLANT'S SUBMISSIONS ON APPEAL

In submissions before this Court, the appellant has argued, that, the court a quo erred in failing to determine the question whether the application filed by the respondent was properly before it, and, in particular, whether the application complied with the requirements of Order 33 of the Rules of the High Court.

He further submitted, that, the fact that the court a quo proceeded to deal with the merits of the application suggests a tacit acceptance by the court that the matter was properly before it.

The absence of reasons for such tacit acceptance, and the failure by the court to expressly deal with the issue, constitute a serious misdirection.

He has further submitted, that, on the authority of Minister of Local Government, Rural and Urban Development & Anor v Silas Machetu & 3 Ors SC34-12, there is little doubt this was an application for review. The present application, having been filed some three months after the making of the decision, was therefore not properly before the court.

The appellant also submitted, that, the refusal to grant leave was not unreasonable, unfair, or wrong.

Lastly, he submitted, that, in terms of the Administrative Justice Act, it is not permissible for the court itself to substitute its own decision in place of that of the administrator.

RESPONDENT'S SUBMISSIONS ON APPEAL

In submissions before us, the respondent has argued, that, the Administrative Justice Act, in effect, created a new jurisdiction not only in respect of the obligations of an administrative authority, but, also, in respect of the manner in which challenges to such administrative authority could be made.

In the absence of a provision in the Administrative Justice Act requiring applicants to comply with Order 33 of the High Court Rules, no obligation arises to comply with the various provisions under Order 33. To the contrary, it is the provisions of Order 32, and, in particular, Rule 226 of the High Court Rules 1971, which are applicable.

Consequently, in the absence of any period stipulated by the Minister in terms of section 10(2)(b) of the Administrative Justice Act, no time limits apply to applications in terms of section 4 of the Administrative Justice Act.

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

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

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

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

ISSUES FOR DETERMINATION BEFORE THIS COURT

A number of issues arise from the heads of argument and oral submissions made by counsel. However, it is essential to deal, first, with the submission whether the court a quo erred in not dealing with the preliminary point taken by the appellant in the Court a quo, that, the application before it, having been one of review, was not properly before it.

That this submission was made by the appellant in argument before the court a quo is not in dispute.

Indeed, in its judgment, the court a quo confirms that the appellant had argued that “the application failed to satisfy the requirements for review.”

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

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

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

However, this is subject to the rider that the issue that is determined in these circumstances must be one capable of finally disposing of the matter.

In the present case, the substantive issue that was determined by the court a quo did not dispose of the matter. The question still remained whether the application was, in the first instance, properly before the court.

This was not an issue that the court a quo could ignore or wish away. The court was obliged to consider it and decide whether the matter was properly before it.

It was, in short, improper for the court to proceed to determine the substantive factual and legal issues without first determining the propriety or otherwise of the application itself.

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

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

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

Although it is apparent in this case, that, the judge in the court a quo may have considered the question whether the matter was properly before him when he considered the merits, a large portion of those considerations remained stored in his mind instead of being committed to paper.

In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity: S v Makawa & Anor 1991 (1) ZLR 142.

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

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

DISPOSITION

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

In the result, this court makes the following order:

1. The appeal is allowed, with the costs of the appeal being in the cause with those in Case No. HC13496/12.

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

3. The matter is remitted to the court a quo for a determination of the preliminary point taken by the appellant, and, thereafter, if need be, the substantive issues raised by the parties.

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

This is a Chamber application in which the applicant, the Zimbabwe Open University (hereinafter referred to as "the University"), seeks the following relief –

(a) An order that the appeal, SC25-12, be heard on an urgent basis; and

(b) A stay of the sale in execution of the University's property, attached in pursuance of an arbitration award it has appealed against.

The first respondent is Gideon Magaramombe (hereinafter referred to as "Magaramombe"). The second respondent is the Deputy Sheriff of Harare.

Magaramombe was formerly employed by the University as a lecturer.

The University terminated Magaramombe's contract of employment. Magaramombe now disputes the termination of employment and contends it was unlawful. The disputed termination was referred to an arbitrator for determination. The dispute was determined in favour of Magaramombe and the arbitrator ordered that Magaramombe be reinstated, or that, alternatively, he be paid damages in lieu of reinstatement.

The University appealed to the Labour Court against the arbitrator's decision in terms of section 98(10) of the Labour Act [Chapter 28:01] (hereinafter referred to as "the Act"). The University also applied to the Labour Court for an order suspending the arbitral award pending the hearing of the appeal. That application was made in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act.

Magaramombe elected to be paid damages in lieu of reinstatement and requested the arbitrator to quantify the damages due to him.

During the quantification proceedings, the University unsuccessfully applied for the stay of proceedings, on the grounds, that, it had applied to the Labour Court for the suspension of the arbitral award pending the appeal.

The application for the stay of proceedings was turned down by the arbitrator on the ground, that, an appeal against an arbitral award and an application for interim relief do not have the effect of suspending an arbitral award.

The arbitrator thereafter awarded Magaramombe the sum of $77,302 as damages.

On 26 September 2011, the University appealed against the award of damages and also applied for a review of the award.

On 27 September 2011, Magaramombe applied to the High Court for registration of the arbitral award.

The University did not oppose the application for registration, as it was of the view that there was no need to oppose the application for registration since it had already applied for the suspension of the award to the Labour Court.

The University assumed, that, the execution of the award was dependent on the outcome of the application to the Labour Court.

The Labour Court granted the University a stay of execution of the arbitral award pending the hearing of the appeal on 3 November 2011.

The High Court registered the arbitral award on or about 14 November 2011.

After the registration of the arbitral award with the High Court, Magaramombe sought to execute the award despite the suspension of the award by the Labour Court.

The University launched an urgent application to stay the execution to the High Court.

The basis of the University's urgent application was that the arbitral award that was executed had been suspended by the Labour Court pending the hearing of an appeal against that award by the Labour Court.

The High Court dismissed the Chamber application.

The University noted an appeal against the dismissal.

The University now applies, in Chambers, for the appeal to be set down on an urgent basis and for an order staying execution pending the determination of that appeal.

In dismissing the urgent application, the learned Judge had this to say at pp4-5 of the cyclostyled judgment (HH61-12):

"The last preliminary point was that the matter was not urgent….,. Ms Mberi submitted, that, the applicant sat on its laurels and only acted when the day of reckoning was at hand. She contended, that, the applicant should have acted on 27 November 2011 when it was served with the notice of registration of the award.

Mr Mpofu made contradictory submissions on the failure to oppose registration.

The first was that the noting of (the) appeal in the Labour Court against the arbitral award automatically suspended the award. The second was that it was hopeless to oppose without first obtaining interim relief from the Labour Court stopping the implementation of the arbitral award.

If the applicant believed that it was on (a) firm footing on the first ground, then, all the more reason for it to oppose registration on that point. But, as events that transpired after it obtained interim relief shows (sic), the applicant believed that implementation could only be stayed by obtaining relief from the Labour Court.

Mr Mpofu did not dispute Ms Mberi's submission, that, the applicant was aware of the judgment of Dhlodhlo supra, that the Labour Court judgment could not stop a High Court order because the latter is a court of superior jurisdiction…,.

I agree with Ms Mberi, that, at the very least, with this foreknowledge, the applicant, knowing that the first respondent was seeking registration of the arbitral award, should have diligently searched for the outcome of the application, especially after it received the interim relief it sought in order to forestall it. It was aware that the purpose of seeking registration was to execute. Armed with the interim order, the applicant was duty bound to either oppose the registration, which was granted on 15 November 2011, or to file an application such as the present one soon thereafter.

I find that it waited until the day of reckoning precipitated by the attachment of 26 January 2011 (2012?) to stay the execution. It did not act with diligence. It sat on its laurels and did not act when the time to act presented itself."

My understanding of the above excerpts of the judgment is that the court a quo made the following two determinations –

(a) The matter was not urgent; and

(b) The execution of the arbitral award could not be stayed because the award had became a High Court judgment whose execution cannot be suspended by the Labour Court.

In this Chamber application, counsel for the University essentially argued, that, execution of the award of the arbitrator was suspended by the Labour Court, which preceded the registration of the award in the High Court. Consequently, Magaramombe could not execute the award, despite its registration with the High Court, as the execution of the award had been suspended by the Labour Court by the time it was registered.

In other words, the award that was registered was a suspended award which could not be executed.

Counsel for Magaramombe, on the other hand, initially raised two preliminary points.

She submitted, that, the Supreme Court had no jurisdiction to hear the Chamber application because there was no valid appeal before the Supreme Court.

She argued, that, the court a quo simply ruled that the matter was not urgent, and, such ruling was interlocutory. She contended, that, the University had not obtained the leave of the court a quo to appeal. Leave to appeal not having been sought and granted, there can be no valid appeal before the Supreme Court.

It was also counsel for Magaramombe's submission, that, on the authority of Dhlodhlo v The Deputy Sheriff for Marondera and Three Ors HH76-11, even if the order issued by the Labour Court had stayed execution of the award, such an order was of no force and effect because the award had since been registered with the High Court and thus became a High Court order which cannot be suspended by an order of an inferior court, namely, the Labour Court.

The learned Judge in the court a quo was probably correct in concluding, that, the University had authored the urgency of the matter before him by delaying the launching of the urgent application until the last minute.

I also accept the submission of counsel for Magaramombe, that, a determination of whether or not a matter is urgent is interlocutory. An appeal against such a determination would certainly require the leave of the court a quo. If such leave were granted, the superior court can only interfere with such a ruling on the basis of a misdirection or gross unreasonableness.

In casu, as I have already stated, the learned Judge went beyond ruling on the urgency or otherwise of the matter.

The court a quo determined, that, the execution of the arbitral award could not be stayed on the basis of a suspension order issued by the Labour Court. The learned Judge reasoned, that, the Labour Court was inferior to the High Court. Consequently, the Labour Court could not suspend a judgment of the High Court. He concluded, that, once a judgment is registered in the High Court it becomes a judgment of the High Court and cannot be interfered with by the Labour Court.

This determination by the court a quo is not interlocutory. It is a definitive and final determination and therefore appealable by the University without the need for leave of the court a quo.

On this basis, I am satisfied, that, the Supreme Court is properly seized with the matter and that the relief sought in this Chamber application relates to a matter with which the Supreme Court is properly seized.

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

On 8 January 2020, the High Court ordered the appellant to pay to the first respondent:

1. The sum of US$877,435 being the outstanding meteorological weather services fees (Met fees) for the period January 2006 to 30 April 2014;

2. All and further outstanding meteorological weather service fees (Met fees) from 1 May 2014 to the date of final payment;

3. Interest on the above sums at the prescribed rate from the date of the service of summons to date of final payment; and

4. Costs of suit on a legal practitioner and client scale.

The appellant appeals against this order.

THE FACTS

The appellant is a South African public company registered in terms of section 4(3) of the South African Airways Act 2007. It operates an international airline service with flights to and from Zimbabwe.

The first respondent is the Minister of Environment, Water and Climate (the Minister). He administers the Meteorological Services Act [Chapter 13:12] and its subsidiary legislation, the Meteorological Services (Aviation Weather Services) Regulations 2005, Statutory Instrument 32/2005.

The second respondent is the Civil Aviation Authority of Zimbabwe (CAAZ). It is a statutory corporation, established on 1 January 1999, in terms of section 4 of the Civil Aviation Act [Chapter 13:16]. At the material time, it managed all the airports and aerodromes in Zimbabwe.

The Meteorological Services Department (MSD) was established in 1925. It is mandated, by legislation, to produce aeronautical weather services in Zimbabwe for the benefit of the general public and private players.

On 2 April 2004, the Meteorological Services Act mandated the Meteorological Services Department (MSD) to charge private players, amongst whom was the aviation industry, for the provision of these services on a cost recovery basis. The modalities for implementing the cost recovery measures were instituted, in consultation and by agreement, with the Airline Operators Committee between 13 June 2004 and 15 September 2004. The resultant tariffs were based on the cost and life span of the equipment used and the cost of providing the service.

These aeronautical weather services were predicated upon the International Civil Aviation Organization (ICAO) and the World Meteorological Organization specifications and guidelines. They were categorized as landing, en-route or over flight, and departure fees. They were to be availed to the aviation industry through the Civil Aviation Authority of Zimbabwe (CAAZ).

The set tariffs were operationalized on 1 May 2005.

On 23 June 2006, the Meteorological Services Department (MSD) concluded an agreement with the Civil Aviation Authority of Zimbabwe (CAAZ). In terms of clause 7.1 of the agreement, CAAZ became the collection agent for the cost recovery fees chargeable to the individual airlines which serviced the local air space.

Thereafter, CAAZ charged individual airlines for its own specified services in terms of the Aviation (Aeronautical Telecommunications and Information Services Regulations 2004; Aviation (Air Traffic Services) Regulations 2010; Aviation (Air Navigation) Regulations 2004; and Aviation (En-route Navigation Facilities) (Fees) Regulations, SI 67/1997.

It combined services supplied by the Meteorological Services Department (MSD) in a composite invoice but under the single and distinct rubric of “Met Fees”.

The appellant, and a few select airlines, paid the specified Civil Aviation Authority of Zimbabwe (CAAZ) fees but declined to pay for the meteorological weather service fees (Met Fees).

The recalcitrant airlines sought the resolution of the impasse through the mediation of IATA and ICAO between 26 July 2006 and 26 July 2010. Notwithstanding the breakdown of the fees by type and cost of each respective service by CAAZ to the mediators, the negotiations failed.

By an act of State, the Meteorological Services Department (MSD) was transferred from the Minister of Transport and Infrastructural Development to the first respondent (the Minister of Environment, Water and Climate) on 7 February 2014.

An adverse audit report by the Auditor-General prompted the Minister of Environment, Water and Climate (the Minister) to issue summons against the appellant on 20 August 2014 seeking the payment of the amounts that form the subject matter of this appeal. The summons was served on 22 August 2014.

The appellant entered its plea on 9 June 2015.

It, inter alia, raised a special plea in bar of prescription (in terms of section 15(c)(ii) of the Prescription Act [Chapter 8:11]) to the claims preceding 22 August 2008.

It admitted, firstly, in paragraphs 2.2-2.4 of its plea, that, the Civil Aviation Authority of Zimbabwe (CAAZ) was a collection agent of the Minister of Environment, Water and Climate (the Minister) at all material times; and, secondly, that, it had indeed received the aeronautical services.

It, however, sought to avoid the claims on the main basis, that, it had discharged all its obligations; and, in the alternative, that, if it was found liable, then, it should be reimbursed the putative judgment debt by the Civil Aviation Authority of Zimbabwe (CAAZ).

At its instance, the Civil Aviation Authority of Zimbabwe (CAAZ) was, by consent, joined to the proceedings a quo as the second defendant, on 8 March 2016.

On 7 August 2016, the Civil Aviation Authority of Zimbabwe (CAAZ) pleaded that it was enjoined by sections 45, 45(1)(o) of the Civil Aviation Act as read with sections 3(1) and (4) of SI 67/97 and Article 15 of the Chicago Convention on International Civil Aviation to charge, for its own account, boarding fees, bussing fees, parking fees, landing fees and navigation or en route fees for the use of its airport facilities and air space.

In addition to these charges, it levied the airlines the similarly named landing, en route, and departure fees under the acronym “Met fees” on behalf of the Meteorological Services Department (MSD) for the use of the aeronautical weather services provided to the airlines by the MSD.

To wit, the appellant averred that the Met fees levied on the globalized invoice constituted a duplication of the separate and distinct line items of the same name charged for the account of the Civil Aviation Authority of Zimbabwe (CAAZ).

THE ISSUES REFERRED TO TRIAL A QUO

The court a quo was required to determine whether the claims prior to 22 August 2008 had prescribed, and, whether the appellant was indebted to the Minister of Environment, Water and Climate (the Minister) in the amount claimed or in any lesser amount.

In determining the second issue, the court a quo was enjoined to decide whether there had been any duplication of the landing, en route, and departure fees chargeable for the account of the Civil Aviation Authority of Zimbabwe (CAAZ) and the unpaid Met fees sought by the Minister.

THE EVIDENCE

The monthly tax invoices issued to the appellant between 2009 and 2016 show, that, the meteorological weather service fees (Met fees) constituted between 4 percent and 7 percent of the similarly named fees charged for the account of the Civil Aviation Authority of Zimbabwe (CAAZ). The number of airline operators in Zimbabwe during the 2006 to 2016 period ranged between a minimum of 45 and a maximum of 85 airlines. An average of 60 percent of the airlines paid the Met fees.

The appellant produced proof of monthly payments of the fees charged less the disputed Met fees for the period November 2008 to January 2017. It declared, in its respective remittances, that, it would not pay the Met fees until the dispute was resolved.

The Minister of Environment, Water and Climate (the Minister) called the oral testimony of his former Meteorological Services Department (MSD) Fund Administrator, Morris Vengesai Sahanga.

He narrated the consultations and agreement reached with the airlines for the levying of the meteorological weather service fees (Met fees). He asserted, that, at the time, all the airlines appreciated the distinction between the similarly named prospective charges sought by the MSD. The aviation weather services provided to airlines encompassed temperature, wind direction and speed, and atmospheric pressure forecasts to the airlines flying over, landing in, and departing from Zimbabwe.

The information was relayed through the Civil Aviation Authority of Zimbabwe (CAAZ).

He produced the monthly schedules and the invoices of the amounts billed, paid, and unpaid by the appellant during the period from 1 January 2009 to the date of summons.

He asserted, that, the Met fees due to the MSD were distinct from those of a similar name charged by CAAZ for its own account. The Met fees were for the provision of the aviation weather services that he narrated while those for the account of CAAZ were for the use of CAAZ's infrastructure and the Zimbabwe air space.

The Permanent Secretary, Grace Tsitsi Mutandiro, testified that the Meteorological Services Department (MSD) was transferred to the Minister of Environment, Water and Climate (the Minister) with all its assets and liabilities.

The Civil Aviation Authority of Zimbabwe (CAAZ) charges were for the use of the local airspace and its landing and take-off infrastructure and not for the utilization of weather information.

The appellant's application for absolution from the instance was dismissed in a separate judgment, issued as HH173-19, on 6 March 2019.

Thereafter, it dispensed with the calling of oral evidence in preference to the documentary evidence produced by consent at the commencement of trial.

The Civil Aviation Authority of Zimbabwe (CAAZ) declined to participate in the trial, opting to abide by the order of the court.

THE CONTENTIONS A QUO

It was common cause, that, the amounts sought for the period January 2006 to 21 August 2008 is in the total sum of US$274,944 consisting of US$104,085 for 2006; US$96,637 for 2007; and US$74,222 for the period commencing 1 January 2008 to 21 August 2008.

The appellant contended, that, the claims preceding 22 August 2008 constituted a debt owed to the State, which, in terms of section 15(c)(ii) of the Prescription Act, prescribes after six (6) years.

It further argued, that, the claimed meteorological weather service fees (Met fees), subsequent to 22 August 2008, duplicated landing and en route fees charged for the account of the Civil Aviation Authority of Zimbabwe (CAAZ), which it discharged in full.

It also argued, that, the Minister of Environment, Water and Climate (the Minister) lacked locus standi to sue for the fees in question on the following bases:

(i) Firstly, that, the claim arose before the Meteorological Services Department (MSD) was assigned to him.

(ii) Secondly, that, an unspecified section of the Meteorological Services Act conferred the exclusive right to sue or be sued on the Director of the Meteorological Services Department (MSD).

(iii) Lastly, that, sections 6(1)(d), 45(1) and 47 of the Civil Aviation Act, which came into effect on 1 January 1989, imbues the Civil Aviation Authority of Zimbabwe (CAAZ) with the sole and exclusive power to provide aeronautical information services and charts of aerodromes, air traffic control, meteorological services, hazards to air navigation, and the right to levy fees and charges.

In its closing submissions, the appellant also argued, that, the Minister of Environment, Water and Climate (the Minister) did not have a cause of action against it.

Per contra, the Minister of Environment, Water and Climate (the Minister) contended, that, the meteorological weather service fees (Met fees) constituted a tax, which, in terms of section 15(a)(iii) of the Prescription Act, only prescribed after a period of 30 years.

He also contended, that, the appellant did not pay any Met fees, which were demonstrably distinct from the similarly named fees paid to the Civil Aviation Authority of Zimbabwe (CAAZ) for the use of its own facilities and infrastructure.

In regards to locus standi, he contended, that, as the Minister in charge of the Meteorological Services Department (MSD), who assumed its assets and liabilities on assignment, he had the necessary legal standing to recover its debt in terms of section 3 of the State Liabilities Act [Chapter 8:14] as read with section 39 of the Interpretation Act [Chapter 1:01].

The Minister also contended, that, he had not only a statutory cause of action but also a contractual one.

THE FINDINGS OF THE COURT A QUO

The court a quo found against the appellant on all the issues that were referred to trial. It held, that, the Minister of Environment, Water and Climate (the Minister), as the authority assigned to administer the Meteorological Services Department (MSD) and its constituent legislation, had the requisite statutory locus standi to sue for the recovery of the debt notwithstanding that some of it had been incurred when the MSD fell under the auspices of the Minister of Transport and Infrastructural Development.

It further held, that, the Meteorological Services Department (MSD) was neither autonomous nor imbued with legal capacity, but, falls under the aegis of the Minister assigned to administer the Meteorological Services Act when action is instituted.

It reasoned, that, the provisions of sections 3, 4, 6 and 8 of the Meteorological Services Act gave the Minister a direct and substantial interest and over-arching control in the operations of the Meteorological Services Department (MSD).

It also held, that, the Minister of Environment, Water and Climate derived his locus standi from the common cause fact, that, the Civil Aviation Authority of Zimbabwe (CAAZ) was an agent of the Meteorological Services Department (MSD).

It further found, that, the Minister's cause of action against the appellant, and his legal right to sue for any debts accrued before the Meteorological Services Act was assigned to him.

On prescription, the court held, that, the debt was in the nature of a tax and would therefore prescribe after a period of 30 years. It further held, that, the essential factors that constitute a tax, which were enunciated in Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S)…, were fully met.

The court a quo reasoned, in its judgment, at p899 of the appeal record, that:

“In casu, we are dealing with some levies that the first defendant is obligated to pay under the relevant enactments, especially the MSA. For that reason, this is not only a debt due to the State but also levied under some enactments. It would not be correct to strictly interpret that the debt is owed to the State only and disregard statutory obligations. I would therefore agree, that, the debt in casu is also covered under section 15(a), and, for that reason, part of the debt is not prescribed.”

THE GROUNDS OF APPEAL

The appellant is aggrieved by the findings of the court a quo. It appeals to this Court on the following grounds:

“1. The court a quo erred and misdirected itself in law in failing to find, that, the first respondent's claim, in so far as it related to the period prior to 22 August 2014, had prescribed by dint of the provisions of section 15(c)(ii) of the Prescription Act [Chapter 8:11].

2. Having found, as it did, that, the administration of the Meteorological Services Act [Chapter 13:21] was assigned to the 1st respondent on the 7th February 2014, the court a quo erred in law in finding, as it did, that, the 1st respondent had a statutory claim against the appellant retrospectively, to wit, from January 2006.

3. The court a quo erred and misdirected itself in law in failing to find, that, by dint of the provisions of section 6(3) of the Meteorological Services Act [Chapter 13:21], the 1st respondent had no direct statutory nexus with the appellant in respect of the provisions of the meteorological weather services and could therefore not sustain a statutory claim against the appellant.

4. The court a quo erred and misdirected itself in failing to find, that, by dint of the provisions of sections 6(1)(d), 45 and 47 of the Civil Aviation Act [Chapter 13.16], the statutory duty to provide meteorological services to the appellant, and other airlines, exclusively reposed in the Civil Aviation Authority of Zimbabwe (the second respondent herein).

5. By extension, the court a quo further erred in then failing to find, that, only the Civil Aviation Authority of Zimbabwe could institute a claim for meteorological services against the appellant.

6. It being common cause, that, the appellant had, during the material period, paid the meteorological services to the Civil Aviation Authority of Zimbabwe (2nd respondent herein) the court erred in failing to find, that, the claim by the 1st respondent constituted a duplication of the same statutory claim.

7. Overall, having found as it correctly did, that, the disposition of this matter turned on questions of law only, the court a quo erred and misdirected itself at law by failing to determine the question of the establishment of a cause of action by the 1st respondent by reference to the applicable statutory provisions.

8. The court a quo erred in granting an order for costs on a legal practitioner and client scale in situations where there was no basis for such punitive costs.”

It seeks the success of the appeal with costs and the setting aside of the judgment and its substitution with a dismissal of the first respondent's claim with costs.

THE ISSUES ON APPEAL

These eight grounds of appeal raise the following three issues:

1. Whether or not the respondent had locus standi to institute proceedings and had a cause of action against the appellant.

2. Whether or not the court a quo erred when it held, that, part of the claim had not prescribed.

3. Whether or not the court a quo could properly impose costs on a higher scale.

THE SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted, that, the question of whether or not the Minister had established a cause of action as against the appellant could be dispositive of the appeal.

In this regard, he contended, in the main, that, notwithstanding that the Meteorological Services Department (MSD) was the ultimate source of the meteorological services, the Civil Aviation Authority of Zimbabwe (CAAZ), and not the Minister, had, in terms of sections 6(1)(d), 45 and 47 of the Civil Aviation Act, the exclusive statutory duty to provide meteorological services to the appellant.

He also took the alternative point, that, such a statutory duty could possibly fall on the Director of the Meteorological Services Department (MSD) and not his Minister.

He premised the alternative contention on the provisions of section 6(3) of the Meteorological Services Act, which reposes on the Director the power to make suitable financial arrangements for the provision of meteorological services with other State entities.

He resultantly conceded the validity of the agreement executed between the Meteorological Services Department (MSD) and the Civil Aviation Authority of Zimbabwe (CAAZ) on 23 June 2006.

He however contended, tongue in cheek, that, the effect of that agreement was that the MSD could only seek recompense from CAAZ and not the appellant.

He, therefore, nailed his contentions on the mast of the Civil Aviation Act and submitted, that, as the Meteorological Services Act did not expressly confer the Minister with the requisite right of action as against the appellant, it was remiss of the court a quo to find that he had both the locus standi and the concomitant cause of action to sue the appellant.

Regarding the question of prescription, he submitted, that, it was not necessary for the appellant to lead evidence to establish the existence of prescription. This was because the facts from which the issue of prescription could be determined were correctly found by the court a quo to have been common cause.

He therefore contended, that, the claims prior to 22 August 2008 had been extinguished by prescription. He strongly argued that these claims constituted an ordinary debt owed to the State and were not in the nature of a tax. They had, thus, prescribed after a period of six years and would not do so after thirty years.

Counsel for the Minister made the contrary contentions, which we summarize in this paragraph and in paragraphs [24] and 25].

The failure by the appellant to lead evidence on the existence of prescription or the prescribed amounts was fatal to its special plea.

The requirement to lead evidence to establish a special plea is enunciated in Van Brooker v Mudhanda & Anor and Pierce v Mudhanda & Anor SC05-18…, and in HERBSTEIN and Van WINSEN: The Civil Practice of the High Courts of South Africa, 5th ed…,.

The question of the Minister's entitlement to sue for the debt owed to the Meteorological Services Department (MSD) was asserted in paragraphs 3 to 5 of his declaration.

It was not disputed by the appellant, in paragraph 3.2 of its plea, which was never subsequently amended. It is therefore taken to have been admitted.

The appellant also expressly admitted, that, the Civil Aviation Authority of Zimbabwe (CAAZ) was the Minister's duly authorized collecting agent to whom it had paid the claimed amounts.

It could, therefore, not properly argue against the Minister's causa or locus standi without amending its pleadings or leading any evidence.

The date of assignment to the Minister could not, and did not, retrospectively affect the existence of the cause of action nor his legal capacity to claim the debt.

The assignment of functions did not create a new law nor extinguish extant obligations that arose before the assignment.

This position is codified by section 39 of the Interpretation Act [Chapter 1:01], which, in essence, equates an assignment with a cession.

The statutory cause of action is to be found in the Meteorological Services Act and the Meteorological (Aviation Weather Services) Regulations SI 32/2005.

These two pieces of legislation impose an obligation upon the appellant to pay for the services that it enjoys when its aeroplanes use Zimbabwean's airspace and airports. These extant pieces of legislation, and the administrative acts made under them, enjoy a presumption of validity, remain lawful and binding, bidding obedience from all subjects of the law - inclusive of the appellant.

ANALYSIS

The second, third, fourth and fifth grounds of appeal raise the sole issue of whether or not the Minister had the legal standing to sue the appellant in respect of the provision of the aeronautical weather services.

The seventh ground of appeal deals with the question of whether he had a cause of action as against the appellant. Aligned to it is the sixth ground, which relates to the duplication between the claimed “Met fees” and the landing and over flight fees paid to the Civil Aviation Authority of Zimbabwe (CAAZ).

The first ground deals with the issue of prescription, while the last ground questions the propriety of the court a quo's costs order....,.

WHETHER COSTS ON THE HIGHER SCALE WERE APPROPRIATE A QUO

The imposition of costs is always in the discretion of a court seized with the matter.

The court a quo did not justify the imposition of costs on the higher scale. The failure constitutes a misdirection: see Barros v Chimphonda 1999 (1) ZLR 58 (S) and PG Industries (Zimbabwe) Ltd v Mark Bvekerwa & Ors SC53-16…,.

We are therefore at large.

We take the view, that, the issues raised a quo were neither frivolous nor vexatious. They did not constitute an abuse of court process, but, raised important legal issues concerning the Minister's legal standing in the light of the provisions of both the Civil Aviation Act and the Meteorological Act, and the determination of whether or not the fees constituted a tax.

In our view, the suitable order for costs a quo should have been on the ordinary scale.

The last ground of appeal is meritorious and must succeed....,.

1. The appeal be and is hereby allowed in part.

2. The judgment of the court a quo be and is hereby amended in paragraph 4 to read:

“The first defendant shall pay the plaintiff's and the second defendant's costs of suit on the ordinary scale.”

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

This is an appeal against the entire judgment of the Labour Court (“the court a quo”), sitting at Harare, wherein it dismissed the appellant's appeal and upheld the decision of the respondent's disciplinary authority dismissing the appellant from employment.FACTUAL BACKGROUNDThe appellant was employed by the respondent as a Deputy General ...

FACTUAL BACKGROUND

The appellant was employed by the respondent as a Deputy General Manager on 1 November 2014. During the course of his employment, he was appointed as Acting General Manager during the following periods:

(i) 6 to 22 January 2016 (16 days);

(ii) 21 to 25 August 2017 (4 days);

(iii) 10 to 11 July 2018 (1 day);

(iv) 15 to 16 August 2018 (1 day); and

(v) 11 to 21 January 2019 (10 days).

The appellant was later charged with two counts of contravening section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006 (“the Regulations”), that is, committing any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract.

On the first count, the appellant was charged with failing and/or neglecting to advise the Board of Directors of the respondent (the Board) of the various problems and challenges that the company was facing in implementing its projects during the periods that he was employed as the Deputy General Manager, and, in particular, during the above-mentioned periods when he was the Acting General Manager.

On the second count, it was alleged, that, during the appellant's employment as Deputy General Manager, from 1 November 2014 to 22 March 2019 (when he was placed on mandatory leave), he attended PetroZim Board meetings and failed and/or neglected to advise the Board of the various problems and challenges that the company was facing in implementing its projects, in particular, the items numbered A to A(v) below:

“A. The following are the incidences you failed and/or neglected to report to the Board when you were Acting General Manager and during Board meetings as Deputy General Manager:

A(i) You failed and/or neglected to advise the Board that the Company had purchased two DRA skids from Kaltrade amounting to US$610,000. The purchase order was for new DRA skids. Kaltrade failed to deliver the skids. On their failure to deliver, Kaltrade then offered to sell to the Company the two used demo DRA skids. The Company accepted the old demo skids (which were bought as test kits against a deposit of US$35,000), as a replacement for the new skids that Kaltrade had failed to supply. Despite the skids being previously used, the Company accepted them at the price of US$610,000 that had been quoted for the supply of new skids by Kaltrade.

A(ii) You further failed and/or neglected to advise the Board that the Company had irregularly accepted a purported 5-year warranty on the demo skids from Kaltrade for the period 2013 to 2019. Despite the demo skids being purported to be on a 5-year warranty, the Company subsequently approved the purchase of DRA skid spares at a cost of US$91,082=30.

A(iii) You also did not advise the Board, that, despite various outstanding orders from Kaltrade, including 2 outstanding DRA skids which had been paid for in 2013, as late as September 2018, the Company went ahead and authorised the payment of US$267,760 to Kaltrade for the supply of another DRA skid. To date this has still not been delivered.

A(iv) You did not report to the Board that the ethanol project that had been purported to be commissioned as 100% functional was actually operating at 50% capacity due to the fact that only 3 out of 6 pumps had been installed, and, you failed and neglected to ensure delivery of the remaining 3 pumps from Kaltrade (Private) Limited despite having paid, in advance, the full purchase price.

A(v) You failed to advise the Board that the tank gauging system at Feruka was not working since its failure in 2017. Further, you did not advise the Board that the Company was relying on tank readings from the customer, NOIC, which compromised the Company's efficiency and systems.”

A disciplinary hearing was subsequently held.

It was the respondent's case, that, the material non-disclosures by the appellant, during the course of his employment, created the impression that everything was in order when, in fact, there were serious operational challenges that threatened the company's capacity to deliver on its mandate. The respondent averred, that, the appellant had failed to perform his duties in line with the dictates of his job description which was stipulated in the contract of employment. The contract required the appellant to report on overall company performance and provide input for Board meetings.

The appellant denied the charges.

He argued, that, he was never appointed as the Acting General Manager of the respondent and that the affairs of the company were regulated by a joint venture agreement between Lonrho and NOIC, which agreement reserved the right of appointment of a General Manager to Lonrho.

The appellant also claimed, that, in terms of the company organogram, no subordinates reported to him in his capacity as the Deputy General Manager. He further stated, that, all employees reported to the General Manager.

In addition, the appellant submitted, that, he had previously informed the Board that none of the other employees, including the Chief Engineer and the Accountant, were reporting to him, and, further, that he was being left out of project meetings and appraisals. The Board did not resolve this anomaly, but, instead, passed a resolution that only the General Manager was to communicate with the Board on all issues.

The Disciplinary Authority found, that, the evidence before it established that the appellant, as the Deputy General Manager, had been periodically appointed as the Acting General Manager of the respondent, in terms of the joint venture agreement.

It also found, that, the appellant, by virtue of being the next senior person available as the Deputy General Manager, would automatically be the Acting General Manager in the absence of the substantive General Manager when she either travelled or was on leave.

It further found, that, this evidence was conceded to by the appellant during cross-examination.

Furthermore, the appellant's contract of employment and job description showed, that, he was required to know and be responsible for the day-to-day monitoring of company operations and projects.

Regarding the question of whether the appellant had an obligation to report to the Board or the Board chairperson, it found that there were no Board meetings held during the time that the appellant was Acting General Manager. There was thus no way that the appellant could have reported challenges being faced by the company to the Board.

Nevertheless, it found, that, despite there being no meetings, the appellant was still expected to update the Board chairman on operational issues.

However, the Disciplinary Authority observed that the substantive General Manager, one Mrs Katsande, who the appellant would stand in for as the Acting General Manager, deliberately withheld information from the appellant such that this had an effect on his capacity to perform his duties as Acting General Manager.

It was also found, that, despite being excluded, the appellant was still aware of the challenges concerning the prover loop and metering project.

In light of the above, the Disciplinary Authority concluded, that, the appellant was aware of his responsibilities as stipulated in his contract of employment and the joint venture agreement.

It further held, that, the appellant had an obligation to report to the Board, through the chairperson, to inform it of the prover loop metering project problems and the other problems that he admitted to being aware of, because, as the Acting General Manager, he was the “gateway to the Board.”

The Disciplinary Authority ruled, that, the appellant was guilty, on both counts, of contravening of section 4(a) of the Labour (National Employment Code of Conduct) Regulations 2006. Consequently, the appellant was dismissed from his post as Deputy General Manager of the respondent on 14 August 2020.

Aggrieved by the decision of the Disciplinary Authority, the appellant filed an appeal in the court a quo.

SUBMISSIONS BEFORE THE COURT A QUO

At the hearing of the appeal, the court a quo struck out grounds of appeal one and two because they were improper. The appeal was, therefore, heard on the basis of the remaining three grounds of appeal.

The appellant submitted, that, the Disciplinary Authority erred at law by making wrong factual considerations and failing to consider factual evidence presented at the hearing which absolved the appellant from the allegations of misconduct.

It further erred at law by failing to consider, as it should have done, that the admission by the respondent, that, only the General Manager was permitted to report to the Board resolved the matter before it in favour of the appellant.

Having noted the admission by the respondent, that, there were no Board meetings convened during the period in which the appellant was accused of misconduct, the Disciplinary Authority erred in proceeding to find that the appellant was guilty of the misconduct alleged in that he should have reported to the Board Chair.

Finally, he argued that the Disciplinary Authority erred in failing to consider, as it should have done, that the respondent had failed to prove, on a balance of probabilities, that, the appellant was guilty of the alleged misconduct.

Per contra, the respondent argued, that, the appellant had a duty to report to the Board, which duty he was well aware of and did not perform.

It contended, that, the appellant had numerous occasions to report to the Board on the challenges faced by the company, even when it was not sitting, as he communicated with the Board Chairman on various occasions. The respondent was of the view, that, the appellant was the Acting General Manager at the material times in issue and had a duty to protect his employer's property and interests, hence, he could not escape liability for failure to act.

FINDINGS OF THE COURT A QUO

The court a quo opined, that, the appellant was an expert who had an obligation to perform his job for the benefit of the respondent. In view of this, the court a quo held, that, the appellant had a duty to report any anomalies concerning the functioning of the company, especially during the periods he was the Acting General Manager.

In relation to the grounds of appeal, the court a quo held, that, they had no merit.

It reasoned, that, in the absence of the General Manager, the appellant was the Acting General Manager who had a duty to report to the Board. It was also the court's view, that, even when the Board did not convene, the appellant still had access to the Board Chairman whom he should have advised of any challenges bedevilling the company.

The court a quo thus concluded, that, there was no need for it, as an Appellate Court, to interfere with the findings and the exercise of discretion by the Disciplinary Authority as there was no misdirection on its part, taking into account the evidence that was before it.

In the result, the court a quo dismissed the appeal and upheld the decision of the disciplinary authority.

Irked by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred in law in not finding, that, the principle lex non cogit ad impossibilia applied to the appellant's circumstances, that is to say, that, objective impossibility of discharging a legal duty is always a defence when the type of the conduct charged is an omission.

2. A fortiori the court a quo erred and grossly misdirected itself on the facts and the evidence, such misdirection amounting to a misdirection in law, in not finding as it ought to have done, that, it was objectively impossible for the appellant to perform the obligation in respect of which the omission charged was alleged because on the common cause facts and evidence:

(i) There was no Board meeting that took place or a properly convened and constituted Board meeting that sat at all to deal with the affairs of the respondent during the period the omission is alleged to have taken place; and

(ii) There was an extant instruction from the Board of Directors directing that all communication to the Board, in relation to the affairs of the respondent, was to be through the General Manager only of which the appellant was not; and

(iii) There was no way appellant could have known of the operation challenges faced by the respondent in circumstances where it was clear, that, as a senior managerial employee who was not always on the ground, none of the subordinates with which (sic)? such information reported to him as they all reported directly to the substantive General Manager; and

(iv) In terms of his contract of employment, the appellant had no subordinate who reported to him.

3. The court a quo erred and grossly misdirected itself in law in finding, that, reporting to or advising the Board Chair in respect of issues meant for the whole Board of Directors, at a properly convened and constituted meeting, was enough to comply with the requirement to inform the Board and that appellant's failure and/or neglect to report the Board Chairman, as opposed to the Board, was fatal as to go to the root of his employment contract.

4. The court a quo having found, that, appellant's interpretation of the emails he received from the General Manager is correct, erred and grossly misdirected itself in any event in finding, that, he was appointed the Acting General Manager with duties and responsibilities of advising the Board of Directors on the operational challenges of the company.

5. The court a quo erred in law in considering, that, it was being asked to interfere with the exercise of a discretion (sic) in circumstances wherein the appellant impugned findings of fact.

6. The court a quo erred and misdirected itself, in any event, in not finding that there existed the jurisdictional facts upon which the court a quo could interfere with the factual findings of the disciplinary authority and in not interfering with the same.”

The appellant prays, that, the appeal be allowed with costs and that the decision of the court a quo be set aside and substituted with one allowing the appeal and setting aside the decision of the Disciplinary Authority....,.

Counsel for the appellant further contended, that, a further complaint by the appellant is that the court a quo erred in law in considering that it was being asked to interfere with the exercise of a discretion in circumstances wherein the appellant impugned findings of fact.

It is submitted, that, the record is clear that the appellant's grief a quo related to the disciplinary authority's findings of fact. The appellant clearly pointed out how impossible it was, on a careful application of the law to the facts, for the Disciplinary Authority to find him guilty of the charges he faced.

The fact that the court a quo went on to frame the appellant's grounds of appeal as impugning the exercise of discretion by the Disciplinary Authority, was a question that the court a quo invented for itself and answered.

In Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)..., GWAUNZA JA said:

“The appellant argues, in the light of all this, that, the action of the court a quo, in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.

I am, for the reasons outlined below, persuaded by this argument....,.

The misdirection on the part of the court a quo is left in no doubt. It is my view so serious as to leave this Court with no option but to interfere with the determination of the lower court.”

I associate myself with the above sentiments. The court a quo created its own ground of appeal and answered it, which was a misdirection on its part.

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

The appellant appeals against the whole judgment of the Labour Court (the court a quo), which was handed down on 9 January 2015. The court a quo dismissed his appeal against the determination of the disciplinary authority, which found him guilty of misconduct and dismissed him from employment.The FactsThe appellant ...

The Facts

The appellant was employed by the respondent as a Sales Distribution Services Manager. He was suspended from employment without any salary or benefits on 13 December 2010. On 4 January 2011, he was charged, by the disciplinary authority, with an act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in contravention of section 4(a) of the Labour (National Code of Conduct) S.I.15/2006 (the National Employment Code).

He was alleged to have authorized the dispatch of seed maize valued at US$931,735=06 on credit to Nelmah Holdings (Pvt) Ltd (the agro-dealer) in violation of the requisite internal procedures of the respondent.

He contested the charge, but, was subsequently convicted thereof, on 13 January 2011, and dismissed with effect from the date of suspension.

He was legally represented at the hearing.

He raised two defences:

(i) The first was that he was verbally authorized by his immediate supervisor, Ivan Craig, to dispatch the seed maize to the agro-dealer.

(ii) The second was that the respondent's electronic credit management system broke down and disabled him from detecting the breach of the credit limit of the agro-dealer and stop the sales transactions in real time.

He, however, conceded that he was well versed with the respondent's manual pre-credit check system.

The disciplinary authority found his “evidence to be full of inconsistencies” and his “conduct reckless”. It held, that, Ivan Craig did not authorize him to dispatch the seed maize to the agro-dealer.

It was common cause, that, the appellant did not conduct any pre-credit checks. It was also common cause, that, the manual pre-credit checks preceded the credit sales and the electronic notification of the breach of a credit sale. It was further common cause, that, the respondent's electronic sales management system was down and could not, therefore, alert the Sales Office of any credit limit breach in real time.

The disciplinary authority found, that, by virtue of his seniority, the appellant knew the manual, internal pre-credit checking procedures required of him before he could authorize the sale of seed maize on credit. It, therefore held, that, the failure of the electronic system to flag the breach would not absolve him from physically verifying the credit limit and status of the agro-dealer before authorizing the sale.

Lastly, it found that even though the electronic warning system was down, he ignored the verbal warning given to him by the Credit Controller, one Thomas Mavhurumutse, on 22 October 2010 and on 28 October 2010, that, the agro-dealer had exceeded its credit limit. He, therefore, failed to stop any further deliveries to the prejudice of the respondent.

He was thus convicted of misconduct and duly dismissed from employment.

Aggrieved by the determination of the disciplinary authority, he filed an appeal and an application for review in the court a quo, raising 15 grounds of appeal against conviction, an additional 5 grounds against the penalty, and, a further, 4 grounds of review.

The Contentions a quo

In the court a quo, counsel for the appellant impugned the disciplinary authority's factual findings on the basis, that, they constituted a gross misdirection, which amounted to a misdirection of law to which no sensible court applying its mind to the facts would have made.

He contended, that, the disciplinary authority incorrectly found that the appellant had mero motu authorized the dispatch of seed maize to the agro-dealer. He argued, that, the appellant had acted, as he was wont to do, on the verbal instruction of his immediate supervisor.

He contended, that, the contrary finding of the disciplinary authority ignored the testimony of Thomas Mavhurumutse and the contents of the input credit application forms submitted by the agro-dealer for its respective winter wheat and summer maize programs.

He argued, that, Thomas Mavhurumutse and the agro-dealer's representatives confirmed, that, Ivan Craig had verbally authorized the appellant to sell seed maize on credit.

He further argued, that, Ivan Craig's signature, for and on behalf of the respondent, on the summer maize application form signified two things:

(i) Firstly, the execution of a binding contract between the agro-dealer and the respondent.

(ii) Secondly, the written authorization by Ivan Craig to sell maize seed to the agro-dealer on credit.

He also contended, that, Bramwell Bushu, who replaced Ivan Craig as his immediate supervisor, had prior knowledge of the agro-dealer's credit transaction. This, so he argued, was demonstrated by the letter written to the agro-dealer by Bramwell Bushu on 6 October 2010. In the letter, Bramwell Bushu affirmed the respondent's ability to supply the agro dealer's seed maize requirements, specified in its letter dated 5 October 2010.

Counsel further argued, that, the failure by the respondent's electronic sales management system to block the excessive credit sales led the appellant to believe, that, it had an extant credit limit that had not yet been reached.

The appellant did not motivate any of his grounds of review in his main written heads of argument a quo. He was prompted to do so in his supplementary heads, which he filed in response to the respondent's heads.

He, therein, strenuously argued, that, his references to the conduct of Bramwell Bushu, which only came to his attention after the disciplinary proceedings, established his four grounds for review.

The only relevant ground for review was that Bramwell Bushu was an interested and biased party, who, for that reason, could not have represented the respondent as the complainant in the disciplinary proceedings. This was because he had concealed his letter of 6 October 2010 from the disciplinary authority.

The other three grounds for review related to the subsequent fraud charges levelled against Bramwell Bushu after the hearing, and the recovery efforts the appellant purportedly initiated and negotiated with the agro-dealer, after the misconduct came to light.

Per contra, the respondent made the following contentions in its written heads of argument a quo.

The application for review was fatally defective in that it sought to introduce new evidence which was not before the disciplinary authority.

This evidence, comprised the arrest of Bramwell Bushu for fraud, arising from the same transactions, subsequent to the disciplinary proceedings, and his letter of 6 October 2010.

The letter did not constitute a credit guarantee letter but was a supply guarantee letter.

In any event, the new evidence was not only irrelevant to the resolution of the dispute before the disciplinary authority but also negated the hallowed principle of finality to litigation.

It was improper for the appellant to seek to try out new issues on fresh facts simply because the first set of facts had proved inadequate.

The remaining grounds of review did not impugn the manner in which the disciplinary proceedings were conducted. They raised mitigatory factors, which rightly fall into the ambit of an appeal against sentence rather than the legality, procedural propriety, and rationality of the hearing.

Regarding the appeal, it argued that the determination was rationally linked to the facts and evidence and could not be interfered with on appeal. It submitted, that, the appellant was correctly convicted and rightly dismissed, because, the offence went to the substratum of and destroyed the employment relationship between the parties.

The findings of the court a quo

The court a quo reduced 15 grounds of appeal to a single issue of whether the hearing officer grossly misdirected himself by convicting the appellant on the evidence that was placed before him. Likewise, the issue raised against sentence was whether or not the sentence of dismissal was appropriate.

It held, that, the review grounds did not constitute proper grounds of review.

It however regarded them as abandoned as they had not been motivated, but, did not make a determination on the application.

Regarding the appeal, the court a quo held, that, the appellant authorized credit sales above the agro-dealer's US$20,000 limit. He did so without adhering to the prevailing manual procedures - which were known to him. He was required to follow them before authorizing the sale. The electronic credit sales management system would only be activated subsequent to the mandatory manual pre-credit checks. The malfunctioning of the electronic system did not, therefore, absolve him from making the manual pre-credit checks.

It also upheld the factual findings of the disciplinary authority, that, Ivan Craig did not authorize any sales in excess of the agro-dealer's credit limit. The findings were supported by the oral and written testimonies of Ivan Craig, Thomas Mavhurumutse, Melody, Locadia Marongwe and Muzadzi who all interacted with the appellant at all material times.

They were also confirmed by the documentary evidence and the probabilities.

It further found, that, the agro-dealer could not have concluded a summer seed maize credit sale contract with the respondent, as suggested for the first time on appeal by the appellant, without submitting the required credit insurance cover.

The court a quo further found, that, the probabilities demonstrated that the appellant's conversation with Ivan Craig, over the Zimbabwe Farmers Union (ZFU) seed maize voucher program, could not reasonably be construed as constituting the disputed verbal authorization. The court a quo, therefore, held that the appellant had disingenuously authorized the credit sale for the benefit of the agro-dealer in lieu of the ZFU voucher program.

By consent, the parties called, on appeal, the evidence of Ivan Craig and Bramwell Bushu and produced the letter written by the agro-dealer on 5 October 2010 and Bramwell Bushu's 6 October 2010 reply.

It found, that, Bramwell Bushu's reply did not constitute the requisite authority to open a credit sales trading account; its absence at the disciplinary hearing did not prejudice the appellant and its production thereat would have served no useful purpose.

The court a quo, consequently, dismissed the appeal with no order as to costs. It, however, did not pronounce itself on the application for review.

The grounds of appeal

Irked by the decision of the court a quo, the appellant appeals to this court on the following grounds of appeal:

“1. The court a quo erred at law in confirming the appellant's dismissal when there was no evidence that the appellant acted in a manner inconsistent with the fulfillment of the express or implied conditions of his contract of employment.

2. The court a quo erred at law in confirming the appellant's dismissal contrary to the evidence of Ivan Craig and Bramwell Bushu which exonerated the appellant of any wrongdoing.

3. The court a quo erred at law in confirming the appellant's dismissal for misconduct, yet the record clearly shows that appellant sought authorization before dispatching seed to Nelmah.”

He seeks the success of the appeal with costs, the vacation of the court a quo's judgment, and its substitution with an order granting both the appeal and the application for review with costs, his reinstatement with salary and other benefits, alternatively, damages, which may be computed by the Labour Court, if the parties fail to agree thereon within 30 days of the substituted order.

At the commencement of the hearing, counsel for the appellant moved for the addition of two other grounds of appeal. After some initial opposition, counsel for the respondent conceded to the addition thereof.

Consequently, the following two grounds of appeal were, by consent, added to the notice of appeal as numbers:

(4) The court a quo erred in finding, that, the appellant's first ground of review, alleging interest in the cause, did not raise a review ground, and, a fortiori, having heard new evidence on review, in failing to record the full evidence given by the parties and to determine the effect of the new evidence on that review ground; and

(5) The court a quo erred in groundlessly commenting, that, the review application had been abandoned and in leaving the same hanging and undetermined.

The contentions before this Court

The preliminary applications

At the commencement of the hearing before this Court, counsel for the appellant took two preliminary applications:

(i) Firstly, he sought the vacation of the judgment of the court a quo and the remittal of the matter before a different judge.

This was because of the common cause fact, that, the transcript of the proceedings and notes of the presiding judge a quo could not be located after diligent search. The transcript and the notes could also not be reconstructed due to the 5-year time lapse between the dates on which judgment was handed down and the request for reconstruction was made.

(ii) Secondly, he sought the amendment of the notice of appeal by the addition of the two grounds that are set out in paragraph (18), above.

After interacting with the Court, counsel for the appellant abandoned the first application. He conceded, that, it was in the interests of the due administration of justice that there be finality to this matter, which has been raging between the parties for the past decade. It was therefore dismissed.

The second application was, however, granted by consent.

The substantive contentions on the merits

On the merits, counsel for the appellant contended, that, the conviction was not established by the evidence called at the disciplinary hearing.

He argued, that, Ivan Craig and Bramwell Bushu exonerated the appellant of any wrongdoing.

He strenuously argued, that, the court a quo did not properly assess the common cause evidence of the telephonic conversation between Ivan Craig and the appellant, which took place when the appellant was in the company of Nyathi and the agro-dealer's Mahupete.

He submitted, that, a proper consideration of the evidence would have led to the inevitable conclusion, that, Ivan Craig had verbally authorized the sales transaction and resulted in the appellant's acquittal.

He also argued, that, an acquittal would also have followed from the correct appreciation of the minutes of the meeting held at Wild Geese Lodge on 15 December 2010 between the top management of the respondent and the agro-dealer.

Regarding the two additional grounds of appeal, counsel for the appellant argued, that, they raise the issue of whether or not the review application was dealt with and the manner of its disposal.

The review grounds concerned the alleged interest and bias of Bramwell Bushu, who acted as the complainant at the hearing. Counsel argued, that, the non-disclosure of Bramwell Bushu's letter of 6 October 2010, and of his arrest for fraud ex post facto the hearing, constituted a gross misdirection by the disciplinary authority.

He, however, failed to articulate how the disciplinary authority's failure to consider evidence that was never placed before it could ever amount to a misdirection.

He also argued, that, the failure to make a substantive order on the application for review was a misdirection which would be subject to correction by this Court.

Counsel for the respondent made the following contrary submissions.

The evidence on record confirmed, that, the appellant was guilty of the misconduct for which he was charged with. The evidence of Ivan Craig, Bramwell Bushu, Muzadzi and Locadia Marongwe implicated him of wrong doing. The tele conversation between Ivan Craig and the appellant, on 19 October 2010, which preceded the first dispatch of seed maize, and the minutes of the meeting at the Wild Geese Lodge, did not exonerate him of any wrong-doing. His assertion that he did not have access to the credit limit modules was controverted by Melody and Thomas Mavhurumutse. In any event, it was common cause, that, he never conducted the pre-creditworthiness checks required of him before authorizing the dispatch of the seed maize.

He further submitted, that, the two additional grounds of appeal could not properly be related to by this Court in view of the finding a quo, that, the appellant had abandoned the application for review.

He submitted, that, the court a quo dealt with the application for review and concluded that it had been abandoned.

He argued, that, the court a quo only assessed the evidence of the two witnesses that were called before it in the context of an appeal and not of an application for review.

He further contended, that, the appellant's failure to assail the finding on abandonment is fatal to his case.

He therefore implored the Court to dismiss the appeal in its entirety.

The Issues

The two issues that arise from the grounds of appeal are;

(i) Firstly, whether the court a quo correctly upheld the conviction of the appellant, which resulted in his dismissal from employment; and

(ii) Secondly, whether the application for review was abandoned and a substantive order pronounced a quo.

Analysis

Whether the application for review was abandoned and whether the court a quo pronounced a substantive order thereon

Counsel for the appellant's submission, that, the application for review was not abandoned runs contrary to the findings of the court a quo. It remarked thus in its judgment, at p143 of the appeal record:

“It will be noted, that, the application for review appeared to have lost its way and was not heard of in the addresses. The issues that were clearly pursued were those of the appeal. In fact, these are not review issues except for the first one, if it can be proved. If it can be proved it would fall under the appeal grounds as facts which can show that the hearing officer grossly misdirected himself on the facts proved. Therefore, there was no review case at all. None was genuinely pursued. There was no need to have a separate case for review.”

In our view, the correctness of this finding is affirmed by the fact, that, the appellant did not assail these findings in its written heads of argument, or even in the additional grounds of appeal. This was in spite of the categoric assertion advanced by the respondent in paragraph 2.5 of its written heads of argument that:

“The court a quo found, that, the same was not pursued at the hearing as the appellant only pursued the appeal. See page 143 of the record, last paragraph. This finding by the court a quo has not been challenged in the present appeal and the issue of the review is, therefore, resolved.”…,.

We also agree with counsel for the respondent's submission, that, the appellant's failure to impugn the finding was fatal to the appeal.

In our view, the appellant could not properly appeal against a review that it had abandoned. In the circumstances, we would dismiss the fourth ground of appeal.

We, however, agree with counsel for the appellant, that, the application for review was before the court a quo.

It is trite, that, where a party fails to motivate a ground of appeal, it is regarded as abandoned. An abandoned ground of appeal is struck out: see Colcom Foods Ltd v Taruva SC107-20…, and Equity Properties (Pvt) Ltd v Al Sham Global BVI Limited SC101-21…,..

In our view, where, as in this case, an application for review is enrolled before a court and is regarded as abandoned, it ought to be dismissed.

We, therefore, agree with counsel for the appellant, that, the court a quo ought to have pronounced itself on the application for review.

In terms of section 22(1)(a) of the Supreme Court Act [Chapter 7:13], this Court:

“Shall have power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.”…,.

We believe, that, this is a proper case to invoke the power vested in this Court by the closing phrase of section 22(1)(a) of the Supreme Court Act, that is “to give such judgment as the case may require.”

We will, therefore, amend the order a quo by inserting an additional paragraph 2 to the effect that: “the application for review be and is hereby dismissed.”

The net effect of the amendment is that the initial paragraph 2 will therefore become paragraph 3.

In view of the finding in paragraph [34] above, the fifth ground of appeal partially succeeds....,.

1. The appeal succeeds in part.

2. The appeal against conviction is dismissed in its entirety.

3. The judgment of the court a quo is amended by the insertion of paragraph 2, so that it reads:

“2. The application for review be and is hereby dismissed.

3. Each party shall bear its own costs.”

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

The High Court (the 'court a quo') granted an application filed by the first respondent, on an urgent basis, for spoliatory relief. The appellant, disgruntled by the decision, appealed to this Court.

At the commencement of the hearing, counsel for the appellant raised a point in limine, that, the second respondent's heads of argument were improperly before the court as they were filed in support of the appeal. He thus prayed that they be struck out with no order as to costs.

Counsel for the second respondent was not opposed to the striking out of the heads of argument. As a result, an order by consent was issued striking out the second respondent's heads of argument.

There was, therefore, no appearance for the second respondent before the court.

FACTUAL BACKGROUND

The first respondent is the holder of an offer letter for subdivision 6 of Braemar Farm in Seke District (the farm) under the jurisdiction of the Manyame Rural District Council. The farm was allocated to him on 17 November 2009 and is 122,540ha in extent. The farm had been gazetted on 3 September 2004 in the Government Gazette Extraordinary Vol. LXXXII, No. 72.

The acquisition of the farm by Government is still extant.

On 10 May 2022, the first respondent filed an urgent chamber application for a spoliation order against the appellant.

The first respondent alleged, that, on 5 May 2022, at around 3:00pm, the appellant instructed his workers to build a two roomed house and a surrounding wall in his cattle grazing area. The appellant proceeded to dig trenches for the wall and completed building the two-roomed house.

Upon enquiring from the appellant about the reason why he had built a structure on his farm, the appellant responded, that, he had been allocated the piece of land by the second and third respondents for the purpose of constructing a school.

The first respondent requested for a meeting with the appellant as a means to iron out the issue, but, the appellant declined to attend.

The first respondent reported the invasion by the appellant to the police, but, did not get much assistance. The first respondent, thereafter, made an application for a spoliation order in a bid to recover the portion of the farm that had been taken by the appellant.

The appellant opposed the application.

In his opposing affidavit, he raised five preliminary objections:

(i) Firstly, he alleged, that, the first respondent had no cause of action against him.

It was the appellant's position, that, he was entitled to occupy and possess the portion of the farm as it was now Stand Number 7727 Nyatsime Township (the 'Stand'). The appellant further stated, that, he acquired the Stand through a lease agreement entered into between him and the second respondent.

He further stated, that, the Stand was not part of a farm but was a planned urban settlement which fell under the jurisdiction of the Manyame-Chitungwiza Joint Committee.

The appellant also stated, that, the land on which the first respondent was entitled to occupy was different from where his Stand was situated as evidenced by the layout plan and site plan for the area;

(ii) The second preliminary point was that the remedy of spoliation was wrongly sought. It was the appellant's view, that, any charge against the appellant should have been for trespass and not spoliation;

(iii) The third point was that the application was made using the wrong form thus failing to comply with the rules of court;

(iv) The fourth point was that the matter was not urgent; and finally

(v) That the first respondent ought to have joined the Minister of Local Government and Public Works as well as the Manyame-Chitungwiza Joint Committee to the proceedings.

On the basis of these preliminary points, the appellant sought an order that the application be dismissed.

On the merits of the matter, the appellant denied sending his workers onto the first respondent's farm. He argued, that, the piece of land belonged to him and that he was developing it in order to build a school. He maintained, that, the first respondent was never in peaceful and undisturbed possession of the land where the appellant built his structure as such piece of land did not belong to him. The appellant further averred, that, the first respondent was mistaken in thinking that the Stand was part of his farm as evidenced by the lease agreement.

The second respondent opposed the application and raised a preliminary point, that, the application was not urgent.

On the merits, the second respondent averred, that, the gazetted land, on which the farm stood, had since been placed under the jurisdiction of the Manyame-Chitungwiza Joint Committee as established under S.I. 211/21.

The second respondent averred, that, the Stand was allocated to the appellant lawfully with all processes duly followed.

It was also the second respondent's averment, that, the offer letter issued to the first respondent had since been withdrawn by the fourth respondent.

The second respondent thus prayed for the dismissal of the application.

The third respondent also opposed the application and raised two preliminary points:

(i) The first point being, that, there was non-joinder of the Manyame-Chitungwiza Joint Committee; and

(ii) Secondly, that, the matter was not urgent.

On the merits of the matter, the third respondent averred, that, the first respondent failed to furnish any proof that he was in peaceful and undisturbed possession of the land occupied by the appellant. Further, that, the first respondent failed to fulfil the requirements to be satisfied in an application for spoliation.

Not to be outdone, the fourth respondent also opposed the application and raised the preliminary point, that, the matter was not urgent.

On the merits, the fourth respondent averred, that, the offer letter giving the first respondent authority over the farm was withdrawn on 7 February 2015 and the land was subsequently parceled out to the Ministry of Local Government and Public Works.

Thus, the fourth respondent suggested that the offer letter in the possession of the first respondent was null and void and therefore he had no legal right to be on the farm.

DETERMINATION BY THE COURT A QUO

The court a quo, in dealing with the application, found no merit in the preliminary points raised. The court a quo held, that, an application for spoliation is urgent by its nature and thus the application was properly before it. It also found, that, there was a valid cause of action before it as the first respondent had an offer letter in his possession which gave him a right to be on the land. It held further, that, the form which had been used by the first respondent was not the correct one but found that there was substantial compliance with the Rules. It further found, that, non joinder of a party to proceedings did not necessarily vitiate the proceedings.

With regards to the merits of the case, the court a quo found, that, the land occupied by the first respondent was a commercial farm held by the fourth respondent. As it was a commercial farm, it fell outside the jurisdiction of the Ministry of Local Government and Public Works, the second, and third respondents. They thus had no mandate over the farm.

The court found, that, the Minister of Local Government and Public Works had no power or authority to establish or expand an urban settlement. The court held, that, the second and third respondents could not come on the first respondent's farm and impose conditions on that land.

It held further, that, the appellant had no legal basis to take the land from the first respondent as this was the sole prerogative of the President.

The court a quo noted, that, the actions by the second respondent, in issuing a lease agreement to the appellant, amounted to an exercise of authority reposed only in the President and that such actions were therefore illegal and criminal.

The court a quo accordingly found, that, the first respondent was despoiled of his farm and granted the application for spoliation against the appellant. It also ordered, that, the appellant, and all those claiming occupation through him, must vacate the farm. It made a further order, that, the appellant must remove all structures which he had constructed and refill all the trenches that he had dug on the farm.

Aggrieved by the decision of the court a quo, the appellant appealed to this Court on the following grounds of appeal;

“(1) The court a quo erred in finding, that, the requirements for spoliation were satisfied in circumstances where the 1st respondent failed to establish that the appellant was in occupation of subdivision 6 of Braemar Farm Plot thereby despoiling him.

(2) The court a quo erred in granting spoliatory relief in circumstances where there was no evidence before it that the appellant's lease agreement with 2nd respondent related to a farm and not a designated Stand.

(3) The court a quo erred in affording the relief of spoliation in circumstances where there existed material dispute of fact as to which land belonged to the appellant and which land belonged to the respondent.

(4) The court a quo erred in holding, that, the matter was urgent in circumstances where the urgency was self-created by the 1st respondent.

(5) The court a quo erred in determining, that, the appellant had a cause of action against the appellant in circumstances where they were in occupation of different pieces of land.

(6) The court a quo erred in ordering the appellant to pay costs of suit on a higher scale in the absence of evidence on record justifying such a course.”...,.

With regards to costs granted a quo, it is apparent that the court granted costs on a legal practitioner and client scale without giving the reasons for the order.

The court fell into error in this regard.

It is trite, that, while the award of costs is in the discretion of the court, a court that awards costs on a legal practitioner and client scale must establish a legal basis for doing so. These are punitive costs, and, the court must justify why the party so saddled with this cost has raised the ire of the court.

Whilst the award may have been justified, unfortunately, the reasons for this decision remained embedded in the mind of the judge.

In the absence of such reasons, the order of costs made by the court a quo cannot stand and all that can be done is to substitute the award to an award on the ordinary scale.

In this regard, the appeal will succeed only to the extent that the order for costs on a higher scale is set aside....,.

1....,.

2. Paragraph 3 of the order of the court a quo is set aside and substituted with the following:

“3. The first respondent shall pay costs on an ordinary scale.”

Appealed
SC49-23 : PETROMOC EXOR (PVT) LTD vs KUDZANAI CHIMEDZA and CRANDID PETROLEUM (PVT) LTD and MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE and SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

The appellant brings an appeal against the judgment of the High Court (the court a quo) handed down on 21 July 2021. The reasons for judgment were delivered on 28 September 2021 under judgment number HH533-21.

The order struck off the appellant's application to be declared the lawful lessee and occupier of Duncombe Service Station (the service station) situate at Duncombe Farm, Mazowe District in Mashonaland Central Province.

The appellant further sought the eviction of the first and second respondents from the premises, together with all those claiming the right of occupation and use through them.

BRIEF SUMMARY OF THE FACTS

The appellant and the first and second respondents are wrangling over the right of lease and occupation of the service station.

The service station is situate at Duncombe Farm which has since been acquired by the Government under the land reform programme.

The first respondent is the current occupier of the service station. He claims lawful occupation through a 5 year lease granted to him by the third respondent in his capacity as the land owner through the Mazowe District Council.

He also claims legitimate expectation to lawful occupation and use of the service station pursuant to certain verbal promises made to him by the third respondent's officers.

The second respondent did not oppose the appeal, giving the impression that it will abide by the decision of the court.

On the other hand, the appellant claims the lawful right to occupy and use the service station through a 5 year lease granted to it by the third respondent on 17 July 2019.

Before the court a quo, both contesting parties made claims and counterclaims disparaging the basis of each other's claim to legitimate lease and occupation of the service station.

The first respondent, in turn, countered the appellant's application with an application for review seeking to invalidate the appellant's lease agreement with the third respondent.

Having heard both parties, the learned judge a quo determined the appellant's application on the merits but ended up with an order striking off the matter from the roll.

On the merits, the learned judge a quo found, that, the appellant's lease agreement was invalid because it had been signed by an Under-Secretary who had no authority to sign.

At p5 of the cyclostyled judgment, this is what the learned judge a quo had to say:

“It goes without saying, that, the lease which the Under Secretary issued is not valid. It has no legal force or effect. It violates clear provisions of the law. The Under-Secretary cannot issue any lease to anyone, let alone to the applicant. The Minister has neither the power nor authority to allow the Under Secretary to issue the lease to the applicant. He cannot delegate the responsibility which is reposed in him to the Under-Secretary. The mandate to issue the offer letter or lease lies with no one else but the Minister.”

Having determined the merits of the appellant's application, the learned judge a quo noted that the application was fraught with serious procedural irregularities warranting the striking off of the matter so that it could be heard afresh.

In coming up with that conclusion, the learned judge a quo made the following remarks, at the same page of his judgment:

“It is for the mentioned reason, if for no other, that the first respondent was quick to cast doubt on the authenticity of the lease which the applicant attached to its application. The fact that the lease was not legible from pp13 to 18 did not work in the applicant's favour at all. As the dominus litis party, the applicant should have availed to me a lease whose contents were/are legible. It should not have availed to me a document the contents of which made no sense and expected me to make sense out of them. The lease was/is after all the backbone of its case. It should, therefore, have allowed it to make sense to the decision maker.

I mention in passing, that, a matter which is not sustainable on a balance of probabilities, but which is not so hopeless so as to warrant an outright dismissal is more often than not struck off the roll. It is struck off because it is fatally defective. The fatal defects which are inherent in it leave the court with no choice but to treat it as such.”

Having said that, the learned judge a quo proceeded to strike the matter off the roll with remarks that the appellant could approach the court again, within 90 days, after putting its house in order.

ANALYSIS AND DETERMINATION

It is plain to the Court, that, the learned judge a quo's line of reasoning is rather convoluted and littered with gross irrationality so as to amount to fatal procedural irregularity. I am of the firm view, that, once the learned judge had found on the merits, that, the appellant's lease agreement was a nullity and unenforceable, that should have been the end of the matter.

No rights or obligations can flow from a nullity.

It was therefore not within his discretion to proceed beyond that finding on the basis of spurious technical grounds.

The learned judge struck the matter off from the roll on the basis, that, the appellant had tendered an illegible lease agreement.

Again, it is plain and a matter of common sense, that, once the learned judge had held the lease agreement to be void and unenforceable, it did not matter whether or not it was legible. It was therefore irrational for the learned judge to strike the matter off the roll in the vain hope that the appellant would, again, approach the courts with a legible but void lease agreement.

It is unfathomable how the learned judge thought he was going to use a lease agreement which he had held to be void and unenforceable to determine the merits of the case which he had already determined.

Tendering a defective exhibit in evidence in court cannot, in my view, amount to a fatal procedural irregularity. It merely affects the weight and credibility of evidence. It is not a fatal procedural irregularity warranting the matter to be struck off the roll.

The learned judge, therefore, fell into error and strayed into fatal procedural irregularity when he struck the application from the roll on the basis, that, the appellant had tendered in evidence an illegible lease agreement.

Faced with a defective document or exhibit, a judicial officer should not take the easy way out by striking the matter off, the roll.

The judicial officer should first of all look at the relevance and admissibility of the exhibit tendered. If it is relevant and admissible, then, one looks at whether the situation can be saved by calling for rectification where possible. A brief postponement may be allowed to effect rectification with a suitable award of costs.

Judicial officers should always bear at the back of their minds, that, their primary function is to dispose of matters on the merits and not flimsy technicalities.

This prompted SCHREINER JA, in Trans-African Insurance Co. Ltd v Maluleka 1956 (2) SA 273 (A)…, to remark that:

“No doubt, parties and their legal advisers should not be encouraged to become slack in the observance of the Rules, which are an important element in the machinery for the administration of justice. But, on the other hand, technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious, and, if possible, inexpensive decision of cases on their real merits.”…,.

As previously stated, it was grossly irregular for the learned judge to first determine the merits of the case and then proceed to strike off the matter on a technicality.

The court a quo's decision is therefore confusing in that it provides an irreconcilable contradiction as to whether it determined the matter on the merits or a technicality.

That irregularity can only be corrected by invoking the provisions of section 25 of the Supreme Court Act [Chapter 7:13]. The section provides as follows:

“25 Review Powers

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

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

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

The section undoubtedly confers review jurisdiction on this Court whenever it comes to its attention, that, there has been a procedural irregularity in a lower Court as happened in this case.

The gross procedural irregularity warrants the intervention of this Court, on review, by quashing the proceedings a quo and ordering a trial de novo. As the trial judge has already taken a stance on the merits of the case, it is necessary that the retrial be placed before a different judge.

As neither party is to blame for the learned judge's error, each party is to bear its own costs. It is accordingly ordered as follows:

1. That, the proceedings in the court a quo be and are hereby quashed and set aside.

2. That, the matter be and is hereby remitted to the court a quo for a trial de novo before a different judge.

3. That, each party bears its own costs.

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

Whatever is done contrary to the provisions of the law is a nullity....,.Proceedings and decisions of a court of law are validated by their being conducted or made in terms of the law. Proceedings and decisions made contrary to the provisions of the law are clearly wrong and are a ...

SC91-23 : OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED vs CHRISTMAS MAZARIRE and RETRENCHMENT BOARD
Ruled By: BHUNU JA, CHATUKUTA JA and MUSAKWA JA

It is trite that reliance on the wrong law does not yield a valid judgment: see Madzokere Ors v The State SC71-21.

SC109-23 : MTHOKOZISI NDIWENI vs LINDA MAGWARO
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Bulawayo, dated 21 April 2022, in terms of which the court a quo granted the application by the respondent for the variation of clause 2(e)(i) of the parties consent paper and paragraph 4 of the divorce order granted by the court a quo on 27 March 2014 under HC125/14, providing for the post-divorce maintenance of the parties two minor children.

The order of the court a quo reads:

“It is ordered that:

1. Clause 2(d)(e)(i) and paragraph 4 of the consent order be and are hereby amended by;

(a) The plaintiff shall pay the sum of US$400 for each of the two minor children, per month, payable in cash or into the applicant's nostro account or the RTGS equivalent thereof at the bank rate prevailing on the date that payment is made until the children attain the age of 18 years or become self-supporting, whichever comes first.

2. This order shall be effective from March 2021.”

Aggrieved by the decision of the court a quo, the appellant has noted the present appeal.

At the close of submissions in this matter, this Court made the following order:

“The respondent having conceded, that, there is merit in grounds of appeal number 5 and 6:

It is ordered as follows:

1. The appeal succeeds in part.

2. The judgment of the court a quo is amended by the deletion of paragraph 2 thereof.

2. Each party shall bear its own costs.”

We indicated that our reasons for doing so would follow. They are as follows:

THE FACTS

The parties were married on 5 July 2005 in terms of the Marriages Act [Chapter 5:11]. The marriage was blessed with two children.

Nine years into the marriage, the appellant instituted divorce proceedings in the court a quo on the grounds, that, the marriage had irretrievably broken down. He did so under case number HC125/14.

To curtail the divorce proceedings, the parties negotiated, and agreed, the terms of the consent paper that would govern their affairs after divorce. It was on the basis of that consent paper that divorce was granted by the court a quo.

Paragraph 2(e) of the consent paper provided for the maintenance of the parties two minor children. It reads as follows:

“(e) Maintenance of the Minor Children

(i) The parties have agreed, that, by way of maintenance, the plaintiff (the present appellant) shall pay US$500 for each of the minor children, per month, as monthly maintenance until they attain the age of 18 years or become self-supporting, whichever occurs first….,.

(ii) Plaintiff shall pay all school fees, inclusive of levies and other related ancillary education costs, purchase school uniforms, stationery, and all other school requirements until they finish tertiary education.”

The above quoted paragraph 2(e) of the consent paper was incorporated into the divorce order dated 27 March 2014 as paragraphs 4 and 5.

The appellant “religiously” paid the sum of US$500 per month, per each child, making a total of US$1,000 maintenance per month. He did so from 2014 until 2019 when Statutory Instrument No. 33/19 was promulgated.

This instrument decreed that all assets and liabilities, including judgment debts, denominated in United States dollars on or before 19 February 2019 (the effective date) shall be deemed to be values in RTGS dollars at the rate of one to one to the United States dollar.

The appellant, whose liability for maintenance was now deemed to be in RTGS dollars at the rate of 1 to 1 to the United States dollar, would now be liable to pay a total of RTGS $1,000 per month for both children.

However, realizing that this amount would fall short of the children's needs, the appellant, at his own volition, and unilaterally, decided to pay RTGS$1,500 per month for both children. The respondent found that amount awfully inadequate and proposed that the appellant pays the sum of US$320 per month per child.

The appellant refused to budge and persisted with his offer of RTGS$1,500 per month for both children.

At one stage and, again, unilaterally, the appellant decided to pay the sum of US$50 per month per child.

However, the respondent avers that between January 2021 and May 2021 the appellant did not pay any maintenance at all.

Dissatisfied with that state of affairs, the respondent approached the court a quo armed with an application for variation of the maintenance clause embodied in the divorce order granted under HC125/14. She asked the court a quo to set the rate of maintenance at US$500 per month per child in conformity with the order of the court a quo of 27 March 2014.

In opposing the application in the court a quo, the appellant submitted that the respondent wished to live a lavish life out of moneys paid out as maintenance for the children, and that her claim was based on figures plucked from the air. He also submitted that his financial circumstances had changed since 2014 in such a way that he was unable to pay US$500 per month per child.

Despite these submissions by the appellant, the court a quo granted the application and issued the order captured on the first page of this judgment.

Although this order is inelegantly drafted, its import is clear – that with effect from March 2021, the appellant was obliged to pay maintenance at the rate of US$400 per month per child or its equivalent in local currency determined at the prevailing bank rate.

It is this order that the appellant appeals against on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred in varying the maintenance payable towards the minor children whilst disregarding the circumstances of the appellant.

2. The court a quo, in varying the maintenance order, misdirected itself on the meaning of good cause for variation.

3. A fortiori, the court a quo erred in rejecting that appellant's finances had been drastically changed negatively, due to lack of employment and the subsequent re-marriage.

4. The court a quo erred and fell into error in not considering the US$100 appellant had been paying consistently as maintenance towards the minor children.

5. The court a quo misdirected itself in granting a retrospective order when none of the parties prayed for such an order.

6. The court a quo misdirected itself in granting an order that was retrospective when the circumstances did not warrant such.”...,.

ISSUES FOR DETERMINATION

The grounds of appeal only raise four issues, namely;

1. Whether the court a quo erred in varying the maintenance payable towards the minor children.

2. Whether the quantum of the variation is justifiable.

3. Whether the appellant has the financial capacity to fund the variation.

4. Whether the court a quo erred in granting a retrospective order....,.

The court a quo backdated the variation to March 2021.

The appellant is up in arms against this. He argues that the court a quo misdirected itself in granting a relief which neither of the parties had asked for.

At the hearing of this appeal, the respondent conceded that the variation should not have been backdated, and that, accordingly, grounds of appeal number 5 and 6 had merit....,.

On the whole, the appellant has failed to prove any misdirection on the part of the court a quo, save for the order backdating the variation, which the respondent conceded was not warranted.

For that reason, paragraph 2 of the order of the court a quo, backdating the variation to March 2021, must be set aside....,.

1. The appeal succeeds in part.

2. The judgment of the court a quo is amended by the deletion of paragraph 2 thereof.

3. Each party shall bear its own costs.

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.

At the conclusion of the hearing in this matter, the court issued an order in these terms:

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

2. The judgment of the court a quo be and is hereby set aside;

3. The matter is remitted to the court a quo for it to determine the case that was before it; and

4. The matter is to be placed before a different judge for determination.

The first and second respondents have requested full reasons for this order, and these are they.

FACTUAL BACKGROUND

The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.

The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.

In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.

The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.

In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.

The order reads as follows, in the relevant part:

“IT IS ORDERED THAT:

1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.

2….,.

3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.

4….,.”

Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.

In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.

In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).

The court a quo held that it was proper that the first respondent be restored to the farm.

The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.

The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.

The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.

The court then granted the order sought by the first and second respondents.

Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:

1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.

ISSUE FOR DETERMINATION

The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:

Whether or not the court a quo erred in determining a matter that was not properly before it

The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.

In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.

THE LAW AND APPLICATION THEREOF TO THE FACTS

It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.

Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:

“TERMS OF FINAL ORDER SOUGHT

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

1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.

2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.

INTERIM RELIEF GRANTED

Pending determination of this matter, the applicant is granted the following relief:

3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.

4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.

5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.

6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.

7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”

Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.

Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.

The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.

In other words, was the matter properly before it?

A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:

“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.

Equally, the point raised that there is no cause of action is without basis.

The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.

The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.

The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.

This obtains herein, hence, it is justified that the applicant be restored to the farm.

The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.

The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.

It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.

This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.

In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:

“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”

Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.

On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.

This is the matter that was properly before the court.

That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:

“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”

Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.

Spoliation proceedings are determinable on completely different legal principles.

To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.

It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.

In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.

These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:

“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”

In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.

They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.

The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.

On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.

In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.

The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.

DISPOSITION

Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.

prev 1 2 3 4 5 6 next

Back Main menu

Law Portal
Zimbabwe

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

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

Appealed
SC65-14 : AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

View Appeal
SC12-16 : AFARAS GWARADZIMBA vs C. J. PETRON & COMPANY (PROPRIETARY) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

Appealed
SC49-23 : PETROMOC EXOR (PVT) LTD vs KUDZANAI CHIMEDZA and CRANDID PETROLEUM (PVT) LTD and MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE and SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

SC91-23 : OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED vs CHRISTMAS MAZARIRE and RETRENCHMENT BOARD
Ruled By: BHUNU JA, CHATUKUTA JA and MUSAKWA JA

SC109-23 : MTHOKOZISI NDIWENI vs LINDA MAGWARO
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

Categories

Law Portal Zimbabwe

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

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

Appealed SC65-14 : AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF OF ZIMBABWE Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA Ruled By: MATHONSI J

View Appeal SC12-16 : AFARAS GWARADZIMBA vs C. J. PETRON & COMPANY (PROPRIETARY) LIMITED Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

Appealed SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O. Ruled By: CHIDYAUSIKU, CJ

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

Appealed SC49-23 : PETROMOC EXOR (PVT) LTD vs KUDZANAI CHIMEDZA and CRANDID PETROLEUM (PVT) LTD and MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE and SHERIFF OF ZIMBABWE Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

SC91-23 : OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED vs CHRISTMAS MAZARIRE and RETRENCHMENT BOARD Ruled By: BHUNU JA, CHATUKUTA JA and MUSAKWA JA

SC109-23 : MTHOKOZISI NDIWENI vs LINDA MAGWARO Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

Categories

Your Donation.

Law Portal
Zimbabwe

SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PVT) LTD and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

Appealed
SC65-14 : AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD vs STEPHEN NHUTA and DEPUTY SHERIFF HARARE and SHERIFF OF ZIMBABWE
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

SC71-14 : EDWARD MADZA and OTHERS vs THE REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and THE REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and THE DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

View Appeal
SC12-16 : AFARAS GWARADZIMBA vs C. J. PETRON & COMPANY (PROPRIETARY) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

Appealed
SC20-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and DEPUTY SHERIFF HARARE N.O.
Ruled By: CHIDYAUSIKU, CJ

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC40-23 : JOHANNES MANYENGA vs PETROZIM (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, MAKONI JA and CHITAKUNYE JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

Appealed
SC49-23 : PETROMOC EXOR (PVT) LTD vs KUDZANAI CHIMEDZA and CRANDID PETROLEUM (PVT) LTD and MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE and SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

SC91-23 : OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED vs CHRISTMAS MAZARIRE and RETRENCHMENT BOARD
Ruled By: BHUNU JA, CHATUKUTA JA and MUSAKWA JA

SC109-23 : MTHOKOZISI NDIWENI vs LINDA MAGWARO
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA