For this Court to interfere with the exercise of discretion by the court a quo, it had to be shown that one of the grounds upon which an Appellate Court may interfere with the exercise of discretion by a trial court existed.

In Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) GUBBAY CJ…, said:

“These grounds are firmly entrenched. It is not enough that the Appellate Court considers that if it had been in the position of the primary court it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution provided always it has the materials for so doing. In short, this Court is not imbued with the same broad discretion as was enjoyed by the trial court.”

A principle has now been firmly established to the effect an Appellate Court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.

In this case, the Labour Court did not even appreciate that it was dealing with a case of an exercise of discretion by the arbitrator. The Labour Court merely substituted its own discretion for that of the arbitrator - without finding any recognisable misdirection on the part of the arbitrator.

This is an appeal against the decision of the High Court dismissing with costs the appellant's claim for delivery of two hundred heifers and two hundred steers.

The background to this matter is as follows;

At the relevant time, Nuanetsi Ranch (Pvt) Ltd (“the respondent”) was one of the largest cattle breeders in the country. During 2003, the respondent experienced acute cash flow problems as a result of which a decision was taken, by management, to dispose of some of the cattle in order to raise money. On or about 7 May 2003 the respondent entered into a written agreement with the appellant in terms of which the respondent sold to the appellant a total of four hundred cattle consisting of two hundred heifers and two hundred steers. The purchase price was agreed at Z$450 per kilogram for the heifers and Z$500 per kilogram for the steers.

The appellant paid the agreed deposit of Z$15 million on 8 May 2003. In terms of the agreement, the balance of the purchase was payable “on Monday 12 May 2003 or after the animals have been weighed and delivered whichever occurs later.”

The cattle were not weighed by 12 May 2003, and, consequently, the balance was not paid by that date.

In June 2003, the respondent then advised the appellant that it could collect one hundred and twenty steers which the respondent said was equivalent to the deposit of Z$15 million previously paid.

At the hearing of the matter before the court a quo, the court found that the cattle had been weighed on 16 May 2003, and, that although the appellant had been advised of this fact no payment had been forthcoming despite numerous visits and telephone calls by the respondent's Managing Director. The court also found that the respondent had cancelled the contract and that it had done so by implication. Consequent upon these findings, the court a quo dismissed the appellant's claim with costs.

It is against this order that the appellant has appealed to this Court.

In its grounds of appeal, the appellant has raised various issues. These are that the court a quo erred:

(1) In finding that the cattle were weighed on 16 May 2003 and that the appellant was advised of this fact and the need to pay.

(2) In finding that the respondent cancelled the contract between the parties by implication....,.

I propose to deal with the first two grounds together as they are inter-related and arise from the same set of circumstances.

There is a dearth of evidence as to what happened exactly after the payment of the deposit of Z$15 million was made. The respondent says the cattle were weighed on 16 May 2003 after which the appellant was then advised of the fact. How the appellant was advised was never clarified during the trial. The witnesses who gave evidence for the respondent told the court a quo that the invoice was faxed to the appellant.

A copy of the fax slip was, however, not produced to confirm this.

The witnesses further told the court that the invoice had been sent by fax and the original by post and that one Betty Mudenge had done so. Betty Mudenge was not called to testify to this fact.

At the end of the day, therefore, all that was before the court a quo was an unsubstantiated claim that an invoice had been forwarded to the appellant on or about 16 May 2003.

On the basis of such evidence, the court a quo had no basis for finding that the invoice was forwarded to the appellant on or about 16 May 2003 and that the appellant, having seen the invoice, failed or refused to pay. Clearly, there was no such evidence before the court a quo.

There was evidence, however, that there were numerous visits and telephone calls by the respondent's Managing Director to the appellant's offices. I agree with the trial court that the cattle were in fact weighed at some stage and that, as a result, the respondent's Managing Director then made numerous calls in order to get payment.

It is unlikely that the respondent's Managing Director would have behaved in such a fashion if in fact the cattle had not been weighed. However, it is unclear when he made the calls or paid visits to the appellant's offices.

The evidence on record shows that what next happened was that the respondent wrote to the appellant on 12 June 2003. In that letter, the respondent advised the appellant that the deposit it had paid was equivalent to one hundred and twenty steers and that an invoice to that effect was attached to that letter. The letter was received and responded to by Mr D G Lupepe, the appellant's Managing Director. In his response, Mr Lupepe accepted the one hundred and twenty steers but rejected the suggestion that there should be a fresh quotation in respect of the remainder of the cattle.

I am prepared to find, on the evidence, that the cattle must have been weighed and the appellant notified on an unknown date but before 12 June 2003. The appellant, it is common cause, did not pay.

The question that now arises is whether the contract was properly cancelled.

It was the evidence of the respondent's Managing Director that the cancellation was implied from the letter of 13 June 2003. In other words, it was accepted that the respondent did not explicitly cancel the contract.

In its submissions, the appellant says cancellation by implication is unknown at law. The respondent disagrees.

It is clear that in its letter of 13 June 2003 the respondent was suggesting that it was prepared to let the appellant take delivery of one hundred and twenty steers against the deposit of $15 million previously paid. The remark by the respondent that “if you need more cattle, you are free to contact us and we give you a fresh quotation” suggests that the respondent considered, at that stage, that the contract was no longer in existence.

The appellant's immediate reaction was that the contract was still in force and that the respondent should comply with that contract.

The position is now settled that:

“Notice of cancellation must be clear and unequivocal and takes effect from the time it is communicated to the other party…,.”

R H CHRISTIE, The Law of Contract in South Africa, 3ed…,. See also Du Plessis v Government of the Republic of Namibia 1995 (1) SA 603…,.

A notice of intention to cancel must be such that the other party is or ought to be aware of its nature, but it is not necessary to use the word “cancellation.” The intention to cancel may be made sufficiently clear in other ways; KERR, The Principles of the Law of Contract, 4ed…,.

On the evidence, the respondent did not cancel the agreement in clear and unequivocal terms. Indeed, this is common cause. The respondent's evidence was that the cancellation was implicit from its letter of 13 June 2003.

In that letter the respondent wrote:

“Find attached your receipt for the 120 steers which you purchased from Nuanetsi Ranch. If you need more cattle, you are free to contact us and we give you a fresh quotation.”

This letter clearly implied that the contract was no longer in existence and that if the appellant required to purchase more cattle a fresh quotation would have to be provided.

Indeed, the appellant understood the letter to mean that the contract was no longer in existence, and, for that reason, wrote back to say that as far as the appellant was concerned the contract was still binding.

The question that now arises is whether, in law, a contract can be cancelled by conduct. Although the appellant has submitted that cancellation by implication is unknown to law, the question really is whether cancellation can be by conduct.

In Du Plessis v Government of the Republic of Namibia 1995 (1) SA 603…, the Namibian High Court accepted that a summons claiming damages was an implied notice of cancellation. The decision to cancel a contract may also be by conduct – see KERR, Principles of the Law of Contract, 4ed…,.

Indeed, repudiation of a contract by the defaulting party may be by words or conduct justifying cancellation by the aggrieved party; KERR, Principles of the Law of Contract, 4ed…,.

If the defaulting party can repudiate by words or conduct, surely, the aggrieved party should be able to terminate the contract by conduct too.

Suppose that the defaulting party has evinced an intention to repudiate the contract. Suppose too that the aggrieved party accepts such repudiation, and, by his conduct, clearly evinces his view that the contract has terminated. Would one not talk of termination in such a case? The answer, in my view, is in the affirmative.

As in all cases, the circumstances must be such that that is the only reasonable inference that may be reached. In such a case, I would have no difficulty in describing the contract as having been terminated by conduct.

Considering the circumstances of this case, I would have no difficulty in concluding that the respondent's Managing Director was in fact saying the contract had come to an end and that if the appellant wished to buy more cattle, then it would have to enter into a new agreement. I find, therefore, that the respondent did, in fact, cancel the agreement although it did not do so expressly.

Grounds two and four can be determined on the same basis.

Since the court cannot be faulted in its finding that by obtaining permanent employment the applicant had repudiated his employment contract, the prospects of the Supreme Court holding that the Labour Court erred in concluding that only damages in lieu of reinstatement were due to the applicant are remote. Leopard Rock Hotel Company (Pvt) Ltd v Van Beek 2000 (1)ZLR 251 (S)…,.

Ground three alleges a gross misdirection on the facts which amounts to a misdirection in law. National Foods Limited v Magadza SC105-95.

In view of the evidence led in the court a quo, it cannot be said that the finding by the Labour Court was so irrational that no tribunal applying its mind to the matter would have arrived at the conclusion reached by the court a quo. Indeed, the court a quo gave clear and sound reasons for its conclusion having heard evidence from the Ministry of Agriculture that the applicant was permanently employed there and had been promoted to the post of Senior Accountant.

This appeal is sorely based on a dispute of fact rather than law. The law is clear on the basis or grounds upon which the appellate court would interfere with the exercise of judicial discretion on a dispute of fact. These grounds are set out in the case of Barros & Another v Chimponda 1999 (1) ZLR 58 (S)..., in which the learned CHIEF JUSTICE GUBBAY had this to say:

"The attack upon which the determination of the learned Judge that there are no special circumstances for preferring the second purchaser above the first-one which clearly involves the exercise of judicial discretion- may only be interfered with on limited grounds. These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court it would have taken a different course. It must appear that some error had been made in the exercise of the discretion. If the primary court acts upon wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellant court may exercise its own discretion in substitution, provided always it has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court." See also Hatendi v Hatendi 2001 (2) ZLR 530 (S), especially the remarks by SANDURA JA...,.   

I now proceed to apply the principles set out above to the facts of this case. I should consider whether the court a quo made findings of fact based on the evidence adduced. This is important in determining whether there is any misdirection on the part of the court a quo and, therefore, the basis of interference by this court....,.

While I agree that the issue of credibility is important in the case, I find no basis to fault the learned Magistrate's approach and findings. I am fortified in this view by the remarks made by KORSAH JA in Kombayi v Berkhout 1988 (1) ZLR 53 (S)...,-

"In the main, the case involved a credibility finding by the learned Trial Judge, and he gave a well-reasoned and extensive explanation as to his findings of the credibility of witnesses...,. Where the question on appeal from a decision of a judge is one of credibility, the interests of the parties cannot but affect their testimonies even where the story told by either party may be true, or the probabilities do not appear to favour one party more than the other, the appellate court would loathe to reverse the conclusions arrived at by the trial judge, who had seen and heard the witnesses, unless, it is clearly demonstrated that he had fallen into error."

The above comments apply with equal force in this case. The learned Magistrate assessed the credibility of the witnesses and made findings in that regard.

I find no error made in exercising his discretion. There is therefore no valid criticism which can meaningfully be made into the manner he assessed the evidence and exercised his discretion. The learned Magistrate did not act on wrong principle, neither can it be said the learned Magistrate allowed extraneous or irrelevant matters to guide or affect the findings made. There is, therefore, no misdirection on the part of the learned Magistrate.

The appellant contended that the learned trial magistrate erred in making a finding that the appellant should handover the four cattle to the respondent.

It is common ground that..., the respondent purchased four herd of cattle from the appellant...,. The total purchase price was paid in full. However, the respondent did not immediately collect the beasts, as he preferred to do so in the presence of the appellant...,. It is common ground that..., the respondent selected four animals. The parties' versions differ on the ages, sizes and colour of the animals...,. The appellant's story changed as the trial progressed...,. The respondent and his witness..., were categoric on the animals they bought from the appellant...,. The appellant appeared to be confused about the beasts he sold. On the other hand, the respondent and his witness were clear on what they bought from the appellant.

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

MALABA DCJ: I have read the opinion expressed by the learned CHIEF JUSTICE. I regret that I am unable to agree with the decision that section 39(2) of the Constitution, as read with Standing Order No.6 of the House of Assembly Standing Orders ("Standing Order 6"), by implication, compels the nullification of the election upon proof that the Clerk of Parliament ("the Clerk"), who was under the obligation to conduct the election of the Speaker of the House of Assembly ("the Speaker") by a secret ballot, unlawfully counted invalid votes as secret ballots.

This case came to the Supreme Court by way of an appeal against the judgment of the High Court. The court a quo dismissed with costs an application for an order declaring that the election of the second respondent as the Speaker of the House of Assembly ("the House") on 25 August 2008 is null and void and set aside.

The applicants, who are members of the House who had taken part in the election of the Speaker, disavowed the application as an application for review. The substance of the relief sought and the reliance on the provisions of section 4(1) of the Administration of Justice Act [Chapter 10:28], however, show that it was an application for review.

The applicants alleged, in effect, that the Clerk who, as the administrative authority, was given the power to conduct the election of the Speaker by a secret ballot, in accordance with the machinery prescribed under section 39(2) of the Constitution, as read with Standing Order 6, failed to act in accordance with the requirements of the rule against counting invalid votes as secret ballots, and, as a result, affected their rights or legitimate expectation in the election.

A perusal of the papers filed in support of the application shows that the relief was sought on two grounds:

(i) The first ground was that there was "noise, utter chaos, and disorder" in the Chamber of the House at the time appointed by the Clerk for the holding of the election of the Speaker such that the environment never became conducive for conducting the election by a secret ballot.

(ii) The second ground was that, in violation of the secrecy of the ballot, and in defiance of the procedure laid down by the Clerk, some members of the MDC-T party came out of the polling booth with ballot papers, on which they had marked their votes, unfolded. The allegation was that they displayed the ballot papers to others to disclose for whom they had voted before folding the ballot papers and depositing them in the ballot boxes.

As part of the second ground, it was alleged that the Clerk was under a duty to stop or prevent the members of the MDC-T party from doing what they did, but, in disobedience of his duty, failed to do so.

It was not the applicants' case that the election of the second respondent, as the Speaker of the House, should be declared null and void because the Clerk counted invalid votes as secret ballots, thereby distorting the result of the election. The reason is that to do so would have involved an admission by the applicants of the fact that there was counting of secret ballots produced by the electoral process the applicants alleged had not taken place.

As the learned CHIEF JUSTICE arrived at the conclusion, with which I disagree, on the ground that the Clerk counted invalid votes as secret ballots, I will deal with the question whether in the machinery for the election of the Speaker, prescribed under section 39(2) of the Constitution, as read with Standing Order 6, the unlawful conduct of the Clerk, in counting invalid votes as secret ballots, automatically nullifies the election.

My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.

Before determining the question whether the applicants established the grounds on which they sought the relief from the court a quo, I set out and construe the law in terms of which the election of the Speaker, by a secret ballot, was required to be conducted.

It is for the Legislature to make provision, by legislation, for matters relating to elections to office in institutions of a democratic Government. All matters relating to the organisation and procedure for election to the office of the Speaker of the House must be determined on the construction of the broad terms of the legislation enacted for the purpose by Parliament.

Section 39(1) of the Constitution imposes on the House an obligation to elect a presiding officer, to be known as the Speaker, at its first meeting after dissolution of Parliament and before proceeding to transact any other business. The election must therefore be held at the time prescribed under section 39(1) of the Constitution.

It is required to be an election by a secret ballot - only a secret ballot under the statute can give rise to a "result of the election."

The right to vote in the election of the Speaker, where more than one person is proposed for the post, is given to members of the House who would have subscribed the oath of loyalty and are present in the Chamber of the House at the time the election is called by the Clerk.

By section 39(2) of the Constitution, as read with Standing Order 6, the Clerk is appointed as the official to conduct the election required by section 39(1) where more than one person is proposed as Speaker. By the same provisions, the Clerk is enjoined to conduct the election of the Speaker by a secret ballot.

When the members elect a Speaker from candidates nominated they do so in their individual capacity. They are not acting as representatives of the people who elected them to the House.

Where the words "conduct the election" are used as they are used in section 39(2) of the Constitution, as read with Standing Order 6, in respect of a situation where more than one person is proposed for election for a post, it is clear that the word "election" is used with the intention that it should be understood to mean the whole combined and continuous process for bringing about the result of the election. It is a process consisting of a number of material steps prescribed by law, beginning with the call for the election and ending in the declaration of the result of the election.

For the purposes of section 39(2) of the Constitution, as read with Standing Order 6, all these steps were driven by the free exercise of the right to vote by the electors directed by the Clerk entrusted with the responsibility of conducting the election by a secret ballot.

The words "conduct the election" compendiously describe the number of duties the Clerk would be expected to carry out to ensure that members who were desirous to elect the Speaker by means of a secret ballot did so freely. So, to "conduct the election" in the context of section 39(2) of the Constitution, as read with Standing Order 6, denotes the concept of legality, in the sense that it contemplates the making of decisions or the taking of actions in the performance of duties, the effect of which is to direct or manage the activities of the voters according to the prescribed requirements of the law to achieve the object or purpose of ensuring the election of the Speaker based on universal, equal, direct, and personal vote freely expressed by a secret ballot.

In construing section 39(2) of the Constitution, as read with Standing Order 6, it is important to bear in mind that the right to vote vested in the members present and voting at the first meeting of the House is not affected by the requirement that the election should be conducted by a secret ballot. The statute relates to procedure alone and directs the mode in which the right to vote is to be exercised by the electors.

The Legislature chose the secret ballot for its optimum benefits and prescribed it as the only method by which the elector would validly exercise his or her right to vote for the Speaker. At the same time, it imposed on the Clerk the general obligation to provide the mechanisms and procedures for the recording, processing, and protection of the secret ballot to bring about the election of the Speaker.

Every voter was entitled to express his or her will on the candidates by voting "for" or "against" through the legally permitted form of voting.

As section 39(2) of the Constitution, as read with Standing Order 6, prescribes a secret ballot and its attendant requirements as a condition the elector has to perform if he or she is desirous to give a valid vote for a candidate in the election of the Speaker, it is addressed to both the voter and the Clerk who has to conduct the election by a secret ballot. The validity of a vote and of any act performed by the Clerk must be measured in terms of its conformity with the requirements of a secret ballot prescribed as the essence of the election of the Speaker.

In my view, it is wrong to place on section 39(2) of the Constitution, as read with Standing Order 6, a narrow construction which views it as directed at the Clerk only. The Clerk does not vote. He does not produce the result of the election. His functions are managerial. The elector is the driver of the election by a secret ballot. The Clerk and the voter must be viewed in the context of the legal relationship of the rights and duties they have to exercise or discharge to achieve the statutory objective or purpose.

The prescription of a secret ballot, as the method for the election of the Speaker, is based on the acceptance of the principle that it promotes and protects freedom of expression of choice of a preferred candidate without undue influence, intimidation, and fear of disapproval by others. The elector is given the right to mark the choice of one candidate from another, or others, in secret. The words "secret ballot" are used in the wide and narrow sense to mean the process by which the ballot is recorded, processed, and protected, as well as the ballot in which there is complete and inviolable secrecy designed to drive away the fear of disclosure and secure to the voter freedom from undue influence, intimidation, and fear of disapproval by others.

A "secret ballot" is therefore a ballot cast freely by a voter, in secret, when no other person is present and aware of what is happening.

The ballot is secret to the voter, in the sense that he or she is the only person who knows for whom he or she is voting.

Whilst the caster of the vote remains unknown, the secrecy of the ballot is maintained and the vote has been effectively cast in the election of the Speaker. It is the valid vote to be counted to ascertain the result of the election of the Speaker by a secret ballot.

To maintain the secrecy, made to be extremely material as the foundation to the validity of the vote itself, the voter must meet certain conditions.

He or she is required not to put on the ballot paper, on which the vote is given, any writing or mark by which his or her identity as the voter can be known by any other person looking at the ballot paper. The voter is also required not to display or expose the ballot paper after he or she has given the vote so as to disclose to any other person for whom he or she voted before depositing the ballot paper in the ballot box.

So essential is the secrecy of the ballot to its validity that any departure by the voter from these conditions, designed for the purpose of ensuring the maintenance thereof, must render the vote void.

The mandatory obligation imposed on the Clerk was to perform the duties put on him to provide the mechanisms and procedures that enabled the voter who was desirous to exercise the right to vote by a secret ballot to do so. The duties he had to perform were to ensure that the vote, given in secret, was recorded, processed, protected, and counted, to bring about the election of the Speaker.

The primary object of any act performed by the Clerk in the discharge of the obligation to conduct the election of the Speaker by a secret ballot would have been the maintenance of the secrecy of the ballot given by the voter, unless the voter himself or herself failed to observe, strictly, the conditions essential to the validity of the vote as a secret ballot. The Clerk, as the official appointed by the Legislature, and given the responsibility of conducting the election of the Speaker by means of a secret ballot, was under an absolute duty not to do anything in the execution of his duties that would have the effect of compelling the voter to violate the secrecy of the ballot.

Although it does not say in express terms that the Clerk cannot record the vote in some other way, it is clear that section 39(2) of the Constitution, as read with Standing Order 6, makes the prescribed manner of recording the ballot by means of a ballot paper, properly drawn up and with the names of the candidates and the appropriate spaces where the mark by which the vote would be given, the only manner in which a secret ballot was to be given.

The Clerk has no discretion as to how the election should be conducted. He must conduct it by a secret ballot.

The valid vote in an election had to be one given for a candidate by means of a secret ballot. It was, therefore, the duty of the Clerk to provide the official ballot papers. It was his duty to put in place the polling booth in which the voters would mark the ballot papers, screened from observation by other potential voters. It was his duty to provide sealed and translucent ballot boxes in which the voters would deposit the marked ballot papers for safekeeping before counting.

The Clerk discharged these duties in accordance with the requirements of the law. He put in the Chamber of the House the polling booth and two ballot boxes and provided the ballot papers.

It was also the Clerk's duty to provide the procedure by which the secret ballot was to be recorded, processed, protected, counted, and results of the election based on it declared.

He, again, complied with this requirement.

The Clerk explained to the members that the voter would only mark his or her vote on a ballot paper delivered by him just before proceeding to the polling booth and that the ballot paper had to have an official stamp marked on the back. Upon receipt of the ballot paper, the member was to go immediately into the polling booth and there mark his or her ballot paper to express his or her choice. The voter was then required to fold the ballot paper up whilst in the polling booth, so as to conceal the vote, and then go and deposit the ballot paper, so folded up, into the ballot box. The voter was required to exhibit to the Clerk the official stamp on the back of the folded ballot paper before dropping it into the ballot box.

The procedure met the purpose of the legislation of ensuring equality of conditions for election to the office of Speaker for the candidates and the occurrence of an election based on universal, equal, direct, and personal suffrage freely expressed by a secret ballot.

It was the duty of the Clerk to monitor the proceedings and keep a continuous oversight of the actions of the voter as he or she moved from the polling booth to drop the ballot paper into the ballot box. In that way he would be able to detect conduct inconsistent with the exercise by the voter of the right to elect the Speaker in accordance with the procedure prescribed to ensure the maintenance of the secrecy of the ballot.

Once he detected such conduct, it was the Clerk's duty to act judicially and determine that the conduct of the voter had stripped the ballot of secrecy and declare the vote invalid and not to be counted.

At the end of the poll, the Clerk was required to open the ballot box in the presence of the agents of the candidates. It was his duty to empty the ballot box and open each and every folded ballot paper and inspect it to ensure that only those ballot papers which were not contrary to the provisions and spirit of section 39(2) of the Constitution, as read with Standing Order 6, as to secrecy, were counted in the election of the Speaker.

Before counting the valid ballot papers, the Clerk was required to group and arrange them under the names of the respective candidates by placing, in separate parcels, those which were secret ballots opposite the name of the same candidate and rejecting all invalid ballot papers.

The results of the election to be declared by the Clerk in an election of the Speaker conducted in terms of section 39(2) of the Constitution, as read with Standing Order 6, would not be the number of votes cast. The reason is that some of the votes would have lost their secrecy as they moved through the process, from the time they were given on the ballot paper in the polling booth to the time they were canvassed after the opening of the ballot box. The result of the election, under section 39(2) of the Constitution, as read with Standing Order 6, is the outcome of secret ballots counted as such.

The result of an election cannot include invalid votes because it is unlawful to count invalid votes as secret ballots. Courts do not ordinarily nullify that which has been done lawfully. Nullification is a remedy intended to be used to redress a wrong.

There is yet another important aspect of the right to secrecy of the ballot which needs to be considered before the determination of the question whether the applicants established the grounds on which they sought relief in the court a quo.

It is that the right to secrecy of the ballot, protected under section 39(2) of the Constitution, as read with Standing Order 6, is subject to the principle that everyone has a right to waive an advantage of a law made solely for his or her benefit and protection in his or her private capacity. He or she may dispense with the benefit or advantage, provided he or she does so without infringing any public right or public policy. See MAXWELL on The Interpretation of Statutes 12ed…,.

There is no legal obligation that a voter must vote by secret ballot.

The requirement of a vote by a secret ballot is justified on the principle which, without unacceptably encroaching on the rights of the persons concerned to stay out of the prescribed system of election, fosters the values of honesty, freedom, and reliability that should characterise electoral choice. As the voter must exercise the right to vote for the Speaker by a secret ballot given on the ballot paper freely, he or she can waive the right to the secrecy of the ballot at the time the vote is cast or at any time before he or she deposits the ballot paper in the ballot box.

The right to vote by a secret ballot includes the right of the voter to disclose to any other person for whom he or she voted. He or she can, in the exercise of that freedom, decide to put a writing or mark on the ballot paper at the time he or she casts the vote by which he or she can be identified as the voter and for whom he or she voted. He or she may decide to display to others the ballot paper so as to share the knowledge for whom he or she voted. So, a voter can, of his or her own free will, inform whomsoever he or she chooses for whom he or she voted. A secret ballot is not compulsory insofar as the voter who is not desirous of taking part in the election by a secret ballot is concerned.

The rule that there should be no writing or mark put by the voter on the ballot paper by which his or her identity as the voter can be revealed, and that the ballot paper should not be displayed to any other person so as to disclose for whom the vote was given, prescribes a condition of the validity of the vote.

The question whether there is a secret ballot for the purposes of the validity of the vote will depend for its answer on the actions of the individual voter.

In Jenkins v Board of Elections 180 NC 169 (1920), cited by Mr Chaskalson, it is correctly stated by BROWN J that:

"…, voting by ballot, as distinguished from viva voce voting, means a secret ballot, and…, the elector, in casting his ballot, has the right to put it in the box and to refuse to disclose for whom he voted and that he cannot be compelled to do so. But, this privilege of voting a secret ballot has been held to be entirely a personal one. The provision has been generally adopted…, for the protection of the voter and for the preservation of his independence in the exercise of this most important franchise. But, he has the right to waive his privilege and testify to the contents of his ballot."

In State Ex Rel. Hutchins v Tucker et al 106 Fla 905 (1932), also cited by Mr Chaskalson in argument, BUFORD CJ quoted from COOLEY Constitutional Limitations 7ed…, where the learned author states:

"The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases and that no one is to have the right or be in a position to question his independent action either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted; and, for the same reason, we think others who may accidentally or by trick or artifice have acquired knowledge on the subject should not be allowed to testify to such knowledge or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it, his ballot is absolutely privileged."

I turn now to determine the question whether the applicants established the grounds on which they based the application for the relief sought.

On the first ground, the first applicant, in the founding affidavit, said that there was "too much noise in the House" at the beginning of the process for the election of the Speaker.

The intention was to show that the Clerk was unable to manage the activities of the members according to the prescribed procedure for the achievement of the purpose of the electoral law.

He said the noise was caused by members belonging to MDC-T party who were pacing up and down the Chamber conferring noisily with each other in support of the second respondent. He said that was done "in a manner that created utter disorder and raised very serious tensions in the House."

After describing how the Honourable Biti displayed the ballot paper, after he had cast his vote in the polling booth, so as to disclose to others for whom he had voted, before folding the ballot paper up and depositing it into the ballot box, the first applicant said, in paragraph 32 of the founding affidavit:

"Honourable Biti's shocking and unprecedented conduct caused more than a fracas in the House as Honourable Members started shouting objections and counter objections, including trading insults, at the top of their voices, while the voting process degenerated into total disorder…,."

In paragraphs 3.9, 3.10, 3.15, 5, 6, and 11 of the opposing affidavit the Clerk said:

"3.9 The mood and atmosphere in the House of Assembly, on the occasion, was neither unique nor unprecedented. Members of the House of Assembly were meeting together for the first time after a fiercely contested general election. As can be expected, under the circumstances, the conversation was lively and the exchanges exuberant. There was a fair amount of good-humoured raillery, including political taunting, verbal sparring and bantering, all done by Members from all the political parties represented in what appeared to be a good spirit of joviality. This kind of conduct is not unusual in our Parliament or any other Parliament for that matter, and, accordingly, I did not consider it a cause for concern on this occasion.

3.10 It is my submission that what has been described by (the) applicant as 'gross disorder, chaos or fracas' in the House was actually nothing more sinister than increased hustle and bustle in the House, in turn the result of the increase in number of Members of the House (an increase in the membership from 150 to 210 as a result of Constitutional Amendment No.18)…,.

3.15 Notwithstanding the environment in the House that I have described in paragraphs 3.9 and 3.10 of this affidavit I was able to manage the entire proceedings of the day according to my present programme without a hitch of any kind. It is, therefore, my submission that quite contrary to (the) applicants' allegations of 'utter disorder and fracas' the proceedings progressed exceptionally smoothly…,.

5. I deny that at the time immediately before the elections took place there was too much noise and there existed a state of utter disorder in the House. I also totally deny witnessing any manifestation of serious tensions. What I did witness in the House was the atmosphere that I have described in paragraphs 3.9 and 3.10 of this affidavit.

6. Save to confirm that I did call the House to order whenever I deemed it necessary, and, by so doing, achieved a continuing level of order which enabled me to discharge my obligation and safeguard the progress and integrity of the voting process as well as all other proceedings of that day the contents of this paragraph (25 of the founding affidavit) warrant no comment….,.

11. I totally deny that there was total disorder in the House which I failed to control. If such a state of disorder had existed, the process of voting would have been impossible - which it was not. Generally, Members remained in their places, heard their names being called, followed the order on the list, approached, took possession of the ballot papers, and proceeded to vote privately. After voting they resumed their places without impediment in an exceptionally orderly manner given their numbers and the congestion in the Chamber."

The court a quo found, on the facts, that there was not so much noise as to cause chaos or utter disorder, as described by the first applicant.

The finding was justified by the evidence.

The relevance of raising the issue of noise was to show that the Clerk was disabled from performing his duties to conduct the election of the Speaker by a secret ballot. The applicants did not refer to specific duties the Clerk failed to perform because of the noise. To the contrary, the facts showed that all the Members who were present and desirous to vote did so.

Each of the two hundred and eight members received a ballot paper from the Clerk and went into the polling booth where he or she marked his or her vote on the ballot paper in secret. Some of the members came out of the polling booth with their ballot papers folded to conceal the vote and dropped the ballot papers into the ballot boxes after exhibiting the official stamp on the back to the Clerk. Other members came out of the polling booth with their ballot papers unfolded and displayed them to others so as to disclose for whom they had voted before folding them and dropping the ballot papers into the ballot box.

All the members responded to the alphabetical order in which their surnames were called.

They could not have done that in the context of the environment of chaos or utter disorder described by the applicants.

The first applicant conceded, in paragraph 25 of the founding affidavit, that the Clerk occasionally intervened to restore order when it was necessary to do so.

It was indeed the duty of the Clerk to maintain order during the electoral process.

By that admission, the first applicant corroborated the Clerk, who said that he was able to act and control the situation when he considered that the noise would interfere with his ability to conduct the election by a secret ballot as required by the law.

The Clerk was not a mere moderator. He was the governor of the electoral process for the purposes of securing the proper conduct of the election. As such, his evidence had to be accorded appropriate weight, where it was supported by that given by the applicants.

It is of interest to note that the Minister of Youth Development, Indigenisation and Empowerment, the Honourable Kasukuwere, and the Honourable Member, Mr Zhuwawo, admit, in the affidavits filed in support of the applicants, that when they called out to draw the attention of the Clerk to the objections they were raising to what they considered was a violation of the requirements of a secret ballot by members of the MDC-T party, who displayed their ballot papers to others so as to disclose for whom they had voted, the Clerk told them not to make noise.

According to the two members, what was shouted were objections to the conduct of displaying ballot papers. The objections were not intended to obstruct the Clerk in the conduct of the election. They were not the confused and undesirable sounds characteristic of noise. The environment cannot be accurately described as characterized by complete absence of order.

In view of the fact that all the two hundred and eight members went through the process by which they gave their votes on the ballot papers and dropped them into the ballot boxes, with some displaying their ballots to others so as to show for whom they had voted, the allegation that there was so much noise that the atmosphere was not conducive for conducting the election of the Speaker by a secret ballot was not substantiated. The atmosphere was characterised by the factors described by the Clerk, which enabled him to conduct the election of the Speaker fairly and efficiently.

The first ground on which the application for relief was based was not proved.

The second ground was based on the allegation that it was unlawful for the members of the MDC-T party who displayed their ballot papers to do so and for the Clerk not to stop or prevent them from doing what they did.

The intention was to show that the actions of the voters concerned, and the failure to act by the Clerk, undermined the process by which the object of the electoral law was to be achieved, thereby violating the rights of the applicants to elect the Speaker, or be elected as the Speaker, by a secret ballot. In that regard, the first applicant said, in the answering affidavit:

"100: It is particularly notable that (the) second respondent himself was one of the Honourable Members from the MDC-T party that unlawfully opened and displayed their marked ballot papers and this fact alone, which is captured in the DVD evidence, is enough to show that his claim to be Speaker is legally vacuous….,.

103. The fact that some Honourable Members, actually most of them belonging to (the) second respondent's MDC-T party including (the) second respondent, defiantly opened and displayed their marked ballot papers simply means that there was no lawful election and (the) second respondent is wishfully wrong to claim that he was lawfully elected from an election that was in fact unlawful."…,.

The applicants invariably described the conduct of the members of the MDC-T party, in displaying their ballot papers to others so as to disclose for whom they had voted, in terms which show that they considered the conduct unlawful.

They said it was "shocking behaviour"; "a brazen violation of the secret ballot"; a "deliberate and defiant violation of the election procedure"; "open and defiant violation of the secret ballot"; "blatant misconduct"; "the failure to observe and respect a fundamental Parliamentary Rule in the election of (the) Speaker"; "the rampant and systematic violation of the secret ballot"; "the failure to conduct the votes in secret as required"; and "an irregularity which is a grave breach of the Rules of Parliament."

The effect of the contention advanced by counsel for the appellants, on appeal, was that the members of the MDC-T party, who displayed the ballot papers to others so as to disclose for whom they had voted, had no right to do so.

In paragraph 6 of the answering affidavit, the first applicant emphasised the fact that he considered the failure by the Clerk to stop or prevent the members of the MDC-T party who displayed their ballots from doing so as unlawful. He said:

"6. His failure principally arose from his inability or unwillingness, for whatever reasons, to ensure that no Member left the polling booth, after voting, with an unfolded ballot paper, and that no Member openly displayed his or her marked ballot paper to any other Member for whatever reason."

In paragraph 178 of the answering affidavit, the first applicant summarized the issue for determination by the Court as follows:

"At issue is only the unchallenged fact in the papers, namely, that unfolded and marked ballot papers were displayed by many Honourable Members of the MDC-T party, including (the) second respondent, outside the polling booth during the election and that this was in violation of the procedure that marked ballot papers should be folded in the polling booth and (the) first respondent did nothing to stop this violation."

Counsel for the appellants argued, on appeal, that the failure by the Clerk to prevent or stop the members of the MDC-T party from displaying their ballot papers was evidence of breach by him of the duty to conduct the election of the Speaker by a secret ballot.

The court a quo found, on the facts, that only six members of the MDC-T party were shown to have come out of the polling booth with unfolded ballot papers and to have displayed the ballot papers to others so as to disclose for whom they had voted.

The finding was, again, justified.

Although the first and second applicants had alleged, in their affidavits, that "many" members of the MDC-T party had displayed their ballots, no evidence was produced to support the allegation.

The use of the word "many", in a case in which they were not able to state the number of the members of the MDC-T party who acted in the manner alleged, suggests that there was an element of exaggeration.

This is particularly so when regard is had to the fact that the applicants also said "some" members of the MDC-T party displayed their ballot papers so as to disclose to others for whom they had voted.

Given the fact that the applicants were seeking an order of nullification of the election, it was necessary that their case be based on clear evidence of the number of voters who displayed their ballot papers. The legal consequence would have been that the voters concerned had disenfranchised themselves by their own conduct.

Proceeding as the parties did on appeal, on the basis that six members displayed their ballots so as to disclose for whom they had voted, did the applicants show that those voters acted unlawfully? Did they ipso facto show that the Clerk acted unlawfully in failing to stop or prevent those voters from behaving in the manner they did?

I must add that the only reasonable inference from the circumstances of the case is that the six members displayed their ballot papers to other members of the MDC-T party to disclose to them that they had voted for the second respondent.

All members, including the six who displayed their ballot papers, had the right to waive the right to the secrecy of their votes.

In displaying the ballot papers to others, the six members exercised their right to share with any other person the knowledge for whom they voted.

As long as they were not coerced or compelled to expose their ballot papers to others, the voters acted lawfully. The power conferred on the Clerk, to conduct the election of the Speaker by a secret ballot, is limited by the right of the voter not to maintain the secrecy of his or her ballot.

The Clerk was not under any duty to stop or prevent the voters from voluntarily displaying their ballot papers to others so as to disclose for whom they had voted.

Whilst the duty on the Clerk, to maintain the secrecy of the ballot given by the voter, requires that he should refrain from doing anything that would compel the voter to disclose to any other person how he or she voted, it cannot be relied upon to justify conduct by which the voter would be prevented from freely exercising the right to disclose to whomsoever he or she chooses for whom he or she voted because the secrecy of the ballot is protected under the law for the benefit of the voter.

The Clerk owed the duty not to do anything to compel the voter to disclose for whom he or she voted to the voter. He cannot discharge the duty to the detriment of the interests of the voter by preventing or stopping him or her from exercising the right of disclosure of information as to how he or she voted.

It is clear that the duty on the Clerk was not to interfere with the recording, processing, and protection of a secret ballot as long as the voter maintained the secrecy of the ballot.

The applicants did not show that the Clerk acted unlawfully by not stopping or preventing the six members from displaying their ballot papers to others so as to disclose that they had voted for the second respondent. His duty was to manage and direct the activities of the electors in accordance with the rules designed to ensure a free and fair election by a secret ballot.

The applicants failed to establish the two grounds on which they sought the relief from the High Court by way of an order declaring the election of the second respondent as the Speaker of the House null and void and set aside.

The application ought to have been dismissed at that stage of the proceedings.

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

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

“PART X

COLLECTIVE BARGAINING AGREEMENTS NEGOTIATED BY TRADE UNIONS AND EMPLOYERS ORGANIZATIONS

74 Scope of Collective Bargaining Agreements

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

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

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

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

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

(b) Benefits for employees;

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

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

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

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

(g) The conditions of employment for apprentices;

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

(i) The requirements of occupational safety;

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

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

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

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

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

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

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

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

THE BACKGROUND

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

“Dear Sir

RE: DISPUTE HOUSING ALLOWANCE AND EDUCATIONAL ASSISTANCE

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

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

We wait to hear from your office.”

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

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

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

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

(c) The effective date of such award.

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

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

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

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

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

The Arbitrator appeared to accept this reasoning. He said:

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

He then went on to find:

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

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

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

The Labour Court dismissed the appeal. Its concern was:

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

ISSUES ON APPEAL

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

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

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

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

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

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

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

There is nothing wrong with that approach.

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

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

It is, therefore, ordered as follows:

1. The appeal is allowed with costs.

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

'The appeal is allowed with costs.

The Arbitrator's decision is set aside.'

It is trite that where the trial court has reached no findings at all on the credibility of witnesses to vitally important incidents, the appellate court has to do its best on such material as it has before it - Van Aswegen De Clercg 1960 (4) SA 875 (A)….,. 

I now revert to the merits of the application.

What can be gleaned from the record of proceedings is that the allegations at the police trial were the following. On 9 October 2009, police (CID Minerals) Bulawayo arrested one Makadzange Mazarire for illegal dealing in gold. Although the applicant was not stationed at CID Minerals he somehow became aware of the arrest. He is alleged to have approached Lovemore Sibanda, a registered miner. He requested the latter to include Makadzange Mazarire's name in his mining register so as to facilitate his release from police custody. As alluded to above, the applicant was convicted by a single officer and his appeal to the Commissioner General was unsuccessful. In this application, he seeks review of the decision of the Commissioner General of Police. He is challenging the Commissioner General's confirmation of the single officer's judgment. The gravamen of his application is that he was convicted on the testimony of a single witness. Factually, this is incorrect because the State called two witnesses i.e. Lovemore Sibanda and Detective Assistant Inspector Ndabezinhle Mdlongwa of CID Minerals. It is clear that the applicant does not seem to appreciate the legal concept of “single witness.” Be that as it may, the single officer made a finding of fact that these two witnesses were credible.

It is trite law that assessment of the credibility of a witness is the province of the trial court i.e. the single officer in casu.

On appeal, the Commissioner General could only have interfered with the findings of the trial officer in this regard if he was satisfied that such a finding of facts defies reason and common sense. There has to be something grossly irregular in the proceedings to warrant such interference. The appellate court must never overlook that the trial officer's living through a drama of a case is in a unique position to evaluate the evidence in its proper perspective. Questions of credibility are par excellence the province of the trial court – Mbanda v S SC184-90….,.; S v Mlambo 1994 (2) ZLR 410 (S)….,.; Shoko v S SC118-92; Zulu v S HB52-03 and Marx v S [2005] 4 ALL SA 267 (SCA).

It is stated, further, in the above quoted judgment, that the appellant said that she had been informed that she was to appear in court after 30 days and that if this was so, then she was to have appeared in court sometime in April 2013 and not in May as she alleged.

In her affidavit, the appellant said that she was informed that she was to appear in court after 30 working days. That would have meant that she would have had to attend court on 9 May 2013 and not around 15 May as she claims. She apparently took no action until 14 May 2013 when she became aware of the warrant of execution.

It is tempting to view her obviously wrong calculation, which takes her to 15 May 2013, as being a convenient excuse on her part to explain her inaction. Yet, the fact is that she is a self-actor. It is also a fact that she did take action by ensuring that someone attended court on 28 March 2013 for the purpose of advising the court of her admission in hospital and her consequent inability to attend in person. The documentary proof that was brought for exhibition to the court was ruled impermissible by the court. She did not, as said in the lower court's judgment, fail to show that she was not in wilful default. Had the court examined the medical book, and after perusing it, come to the conclusion that the appellant was in wilful default, it might have been possible for a different view to be taken of the court's finding on 28 March 2013 that the appellant was in wilful default. In the circumstances, the appellant could not be said to have been in wilful default. To this extent, the appellant's right to a fair hearing was infringed. The infringement is, in my view, of such seriousness as to warrant or justify this court coming to the assistance of the appellant as the decision of the lower court was based on an unjustified earlier finding that the appellant was in wilful default when a perusal of the record does not support such a finding. By the same token, the respondent's counsel's submissions quoted above are not based on any facts borne out by the record.

I am also mindful of the fact that at no point during the proceedings in the Magistrate's Court did the applicant present any defence on the merits which include the fact that he has not been paying rent; a point in which the Magistrate made a finding. 

He was content to fashion a defence merely on the single point that the first respondent was not properly cited; the plaintiff having been cited as the Ministry as opposed to the Minister. Surely, that is as trivial an argument as it is an exercise in futility. The court would have been entitled to condone that little error and that still left the applicant, a civil servant based in Bulawayo who wants to continue occupying Government property located in Masvingo without paying rent, still without a defence.

The learned Judge, after full consideration of the matter, reasoned as follows:

“The onus is also on the applicant to justify the granting of the claim that she seeks. In casu, the onus is particularly pertinent as regards the quantum of such maintenance. No direct or concrete evidence has been adduced to justify the contribution sought from the respondent. The respondent accepts the need for the variation of the maintenance order and has, in fact, proposed the amount that he should be ordered to pay. But he has not taken the court into his confidence and divulged/stated how much income he gets, albeit from the occasional jobs that he says he does from time to time. It cannot also be ignored that his responses to the factors cited by the applicant as indicators of the lifestyle that he is leading are far from convincing. The respondent is eager to portray himself as someone without adequate means even for his own upkeep. It is not possible to miss the undertones of his responses, which, in a number of instances, reveal some level of resentment towards the applicant.”

In arriving at the determination which she made, the learned Judge exercised a judicial discretion.  See Hinwood v Hinwood SC61-99.

There is nothing on the papers to show that her discretion was wrongly exercised. Indeed, the conclusion arrived at by the learned Judge is inescapable on the papers. It would be naïve to accept the picture painted by the appellant of a businessman content to sponge off relatives and friends for a living. The appellant has not disclosed his income or given, in his affidavit, any information which would assist a court in ascertaining a fair maintenance for Graydon judging by the earnings of both parents. He pleaded poverty and inability to pay 500 dollars per month for the maintenance of his child yet the evidence shows that he has managed to enjoy a fairly luxurious life, albeit at the expense of others, as he would have the Court believe….,.

The respondent also filed a cross appeal, not against the final order made, but against the findings by the court a quo that the other breaches of the lease agreement had not been proved and that the respondent had not shown it genuinely required the premises for its own use.

At the hearing of the matter before this Court, counsel for the respondent conceded that since the cross appeal was not directed at the substantive order, the cross-appeal was not properly before the court and should be struck off.

This concession was made in the light of the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S). Although the cross appeal is no longer the subject of this appeal, it has, in my view, raised a fundamental question on whether the decision in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) is entirely correct….,.

I feel obliged, as already indicated, to express my personal view on the correctness or otherwise of the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S). I confess that I do so without the benefit of argument from both counsel.

Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) is authority for the proposition that in order to be valid, a notice of appeal must be directed to the whole or part of the order made by the court a quo and not to its reasons for making the order in question. GUBBAY JA…, remarked…, -

“…, what this Court is being asked to do is not to reverse the order of the learned judge but to cure the procedural defects by either considering the merits of the application itself or remitting the matter for the learned judge to do so. Once that is done, the appellant will be content whatever the outcome should happen to be. That this is the approach is evident from the wording of the so-called prayer to the notice of appeal, which omits to seek an order that the application brought in terms of Rule 18 be dismissed.”

I am prepared to accept that, as a general rule, the above remarks correctly reflect the law of this country. To the extent, however, that the judgment suggests that this is a hard and fast rule I am inclined to differ. There may well be cases, such as the present, where the slavish adherence to the above principle would not only cause prejudice but would result in a certain degree of absurdity. I revert to the facts of this case to justify why I am of this opinion.

In the court a quo, the respondent approached the court seeking the eviction of the appellant as well as holding over damages. It had several causes of action. The main was that it required the premises for its own use. In the alternative, it alleged several breaches of the lease agreement. These were that the appellant had, without authority, sublet a portion of the leased premises; that the appellant had constructed a permanent structure without authority; that the appellant had failed to maintain the premises in a state of repair; and, lastly, that the appellant had failed to pay the rental due. It will be apparent from the above that each breach alleged by the respondent constituted a separate cause of action which, if proved, would have justified either singly or cumulatively, the eviction sought in the prayer.

The court a quo rejected the respondent's claim that it required the premises for its own use. It also rejected all but one of the respondent's claims that the appellant had breached the agreement. Having accepted that the appellant had failed to pay the rent due the court then ordered the eviction of the appellant as well as holding over damages. However, the appellant appealed to this Court against that order. It was at this stage that the respondent had to make a difficult decision.

If the appeal filed by the respondent were to succeed, then the order of eviction and holding over damages would fall away. Since the issue before the Supreme Court would be only whether the court a quo was correct in holding that the appellant had failed to pay the rent due, there would be no basis for the respondent to attack the other findings by the court a quo, which findings could also justify the order of eviction and payment of holding over of damages, unless the respondent also cross appealed against those findings. 

This is what the respondent…, did. 

However, faced with the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S), the respondent was forced to concede that the cross-appeal did not comply with the law as it did not seek any relief on the substantive order made. My understanding of the respondent's position was that in the event the main appeal succeeded, this Court should revisit the finding made by the court a quo in dismissing the other causes of action and in the event that any one of them succeeded then the eviction and holding over damages would stand.

On the first issue, it was the submission of counsel for the appellant that the court a quo misdirected itself in finding, on the evidence adduced, that the appellant was a mala fide purchaser.  

This was a finding of fact.

It is trite that an appellate court will not interfere with a decision of a trial court based on findings of fact unless there is a clear misdirection or the decision reached is irrational. In the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA stated the following:

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

The onus to prove that the appellant was a mala fide purchaser rested upon the first respondent in the court a quo. A careful analysis of the evidence of Virginia Chikadaya, the first respondent, in her capacity as executrix in the estate of the late Cyril Chikadaya, reveals that this witness failed to discharge the onus upon her. She was unable to give reasons for claiming that the appellant was aware of the legal wrangle between her husband and the second respondent over the said property. The trial Judge correctly found that the first respondent had failed to prove that the appellant had been a tenant at the property prior to the purchase of the same.

The court a quo, however, found that the probabilities confirmed that the appellant must have been aware of the claims by the first respondent's husband to the property.

There was no evidence, whether direct or circumstantial, to establish that the appellant knew or should have known of the legal dispute between the first respondent's late husband and his brother over the property. There was a mere suspicion that he could have known about it but nothing more. Furthermore, the appellant's assertion that he was not aware of the legal wrangle over the property was supported by the evidence of Chiedza Chimere who was a tenant at the property at the time. She testified that she never brought this issue to the appellant's attention at any time but confirmed seeing the appellant inspecting the property.

The first respondent failed to prove that the appellant was a mala fide purchaser. She only relied on what she had been told by her husband, and this was regarded as first hand hearsay by the court a quo. That court admitted such evidence despite the fact that the late Chikadaya was an interested party and had an interest in this matter. The appellant's evidence that he was unaware of the legal dispute as to the rights in the property was supported and corroborated by two tenants who were residing at the property at the relevant time.

Having regard to the evidence adduced on record, it is clear that the first respondent failed to discharge the onus to prove that the appellant was a mala fide purchaser. The court a quo erred and misdirected itself in coming to such conclusion on the evidence led. The appellant, on the evidence on record, was a bona fide purchaser.

The arbitrator made a finding of fact that the University was closed during the period in question, i.e. from October 2008 to August 2009.

It is contended, on behalf of the appellant, that the learned President in the court a quo suggests no justifiable basis for impugning the arbitrator's finding on fact.

It is evident that the court a quo took a different view to that of the arbitrator on the alleged absence of the respondent from duty during the relevant period. The court a quo substituted its own discretion in place of the arbitrator and proceeded to make findings of fact contrary to those found established by the arbitrator on the papers before the court. The court a quo could only have upset the findings of fact by the arbitrator if the exercise of his discretion by the arbitrator was irrational on the evidence placed before him. As was stated by KORSAH JA in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664…,:

“The general rule of law as regards irrationality is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education & Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671E-H; CCSU v Min for the Civil Service supra at 915A-B; PF-ZAPU v Min of Justice (2) 1985 (1) ZLR 305 (S) at 326E-G.”

The learned President found that the department in which the appellant had been employed had been operational and that the respondent had absented himself from his employment from October 2008 to August 2009 and that the respondent had been justified in stopping his benefits. The court also made a finding that on the evidence presented before the arbitrator the appellant could not claim constructive dismissal because he had not rendered services to the respondent which entitled the latter to cease payment of the salary and benefits….,.

It was contended by counsel for the respondent that the failure by the appellant to attend at his place of employment during the period in question amounted to a repudiation of his contract of employment. It was contended, further, that the appellant was amongst a group of employees of the respondent which had found employment in Ethiopia during the period in question.

These averments were placed before the arbitrator who found that although the respondent raised these issues it had failed to substantiate them.

Counsel for the respondent did not invite us to find that the findings by the arbitrator that the department had been closed during the requisite period amounted to a misdirection inviting intervention by this court or the Labour Court. Likewise, there was no suggestion that the evidence of such employment in Ethiopia had been established before the arbitrator.

An appeal to the Labour Court is on a point of law.

THE NINETY FIVE (95) HERD OF CATTLE AT THE INYATHI FARM AND THEIR PROGENY

The appellant claims that the court a quo misdirected itself by apportioning 50% of the cattle to the respondent “without any basis for such an award.” He further claims that in any case, most of the cattle belonged to his daughter Nomalanga as they had been bought following the sale/barter of trucks bought by her in the United Kingdom.

It was not in dispute that some of the cattle were bought from proceeds of the sale of a truck or trucks (the evidence is not too clear on how many), bought in the United Kingdom in the name of Nomalanga. While she gave evidence for the appellant, the court a quo was, however, not impressed by Nomalanga as a witness, and concluded that she was being untruthful when she said that she had bought the cattle for herself through her father. This, after she conceded in court that she had no knowledge of how many cattle had been bought on her behalf, how such acquisition was made nor how and to what extent some of the cattle had been disposed of by the parties. She conceded that the appellant had slaughtered some of the cattle and allowed his mistress to collect others and sell them, without her, (Nomalanga's), knowledge. The court a quo found that further doubt had been cast on Nomalanga's evidence that she had provided funds for the purchase of the trucks that were eventually exchanged for cattle, by the following facts, admitted by her, that;

i) One of trucks was actually registered in the name of the respondent;

ii) It was the appellant who had, from his resources, paid customs duty to clear the vehicles in Zimbabwe as well as procure local registration for them; and

iii) None of the cattle were registered in her, Nomalanga's, name.

In contrast to the evidence of Nomalanga and the appellant, the court a quo found that the testimony of the respondent on the issue of the cattle, was credible. The court accepted her evidence that there, initially, were approximately two hundred and fifty (250) herd of cattle at the couple's two leased farms at Shangani and Nyathi. The majority of the cattle had thereafter been relocated from Shangani to the Inyathi farm. The court a quo considered further evidence from the respondent, who had “figures, dates and explanations as to where the cattle were acquired, the disposal of some of the cattle, the multiplication of the cattle” as well as the logistics of their removal from Shangani to Inyathi. It then found that she had credibly established that all the cattle, having been bought from family funds, were assets of the parties as husband and wife, and that none belonged to Nomalanga. The court accepted that the parties disposed of some of the cattle and used the proceeds for family needs. This they did without reference to any of the children. The appellant, according to the respondent, never told her that any of the cattle had been bought for or by any of the children.

The court also accepted the respondent's evidence, which, in reality, was not disputed, that when she checked on their number in 2010 (three years after the parties' separation) she found there were only ninety five (95) cattle left, out of the original two hundred and fifty (250).

Regarding credibility of witnesses, it is a settled principle of our law that the appeal court will not lightly interfere with a trial court's findings on a witness' credibility. 

In argument before us, the appellant's counsel urged this Court to depart from this general principle and find that Nomalanga was a credible witness.

Given the shortcomings in Nomalanga's evidence, alluded to above, I am persuaded by the submission made on behalf of the respondent that in casu, the level required for interfering with the findings of the court a quo on the credibility of Nomalanga has not been met. Such level is eloquently articulated in the case of Moses Chimbwanda v Irene Chimbwanda SC28-02…, where the court, after re-stating the settled position already outlined above, went on to say:

“The exception to this rule is where there has been a misdirection or a mistake of fact or where the basis on which the court a quo reached its decision was wrong.”

The trial court had the privilege of observing and listening to the witnesses, including Nomalanga, giving their evidence and being cross-examined on it. Having considered the evidence placed before the court a quo by Nomalanga and its assessment thereof, I do not find that there was any mistake of fact, nor has the appellant alleged one. I am also unable to find that there was any misdirection on the part of the learned judge a quo in this respect.

I find, therefore, that there is no cause to interfere with the court a quo's findings on, and its assessment of, the credibility of Nomalanga as a witness.

While the learned judge a quo awarded the respondent 50% of the remnant ninety five (95) cattle and their progeny, the appellant argues she is entitled to only 25% of whatever number would be left after Nomalanga's share has been deducted. As stated above, the court a quo correctly dismissed Nomalanga's evidence regarding any claim to the cattle or part thereof.

The court a quo accepted the evidence that the respondent played an active role in the acquisition, upkeep and general care of the two hundred and fifty (250) cattle. This included alternating with the appellant to visit the farms every other weekend for this purpose, and having cattle pens and other necessary infrastructure built. I find, given this background, that there could be merit in the submission made on behalf of the respondent, that the appellant, in effect, “came out the winner” given the fact that the court awarded her only forty-seven (47) or so of the cattle, out of an original two hundred and fifty (250). However, since the respondent has not challenged this award through a cross appeal, the matter will not further be considered.

As regards the findings on the first respondent's suitability, MAKONESE J's judgment, as shown above, is very clear on the reasons he came to that conclusion.

I would add that, in my view, the matter is simply that the first respondent has not produced an account of how the funds were utilized over the years he has been the provisional liquidator. He has failed, despite numerous demands and requests to produce bank statements or accounts for the fifth respondent. 

In light of this, what are the first respondent's chances that the Supreme Court will uphold his appeal? 

In my view, they are none….,.

The last and sixth ground of appeal criticizes the appointment of Barbra Lunga as provisional liquidator.

The court has a discretion to appoint a liquidator.

An appeal court may not interfere unless there is a mis-direction. In casu, there is no such misdirection.

For these reasons, I find that the appeal is frivolous and vexatious and has been noted without the bona fide intention of seeking to reverse the judgment but to harass the applicant.

Consequently, the interim relief is hereby granted in terms of the draft order.

THE EVIDENCE

The respondent's evidence was to the effect that he had known the first appellant since 2002 through his football club, the second appellant. Initially, he was a supporter of the second appellant but later became the treasurer of the second appellant for almost five years until 2008 when the first appellant broached the idea of him buying shares in the second appellant. The idea was attractive to him and the first appellant invited him to lodge a written application; which he did, on 27 December 2008. The application was written on his company's letterhead and expressed in the following terms:

“Re: APPLICATION TO BUY 49% STAKE IN DOUGLAS WARRIORS FOOTBALL CLUB

I submit my application to buy 49% stake in Douglas FC through my company LED Travel & Tours – coming in as the sponsor.

The value of the shares is USD49,000=, and, as agreed in our meeting of 27 December 2008, the payment plan is as follows:

Year 2009 – 40%

·         USD10,000= to be paid by 5 January 2009 subject to availability of foreign bank account.

·         USD5,000= by mid to end of January 2009.

·         Payment of balance to be spread over a period of 10 months and mode of payment will be finalized in due course.

Year 2010 – 9%

·         As agreed, the remaining 9% will be reserved for me in 2010 at same value. By then the team will be in Premier League.

My stake will be registered under my wife Gracious Mawungwa, and, in future, will be managed by my two sons Bernard Gwarada Jnr and Lawrence Gwarada.”

In response, the first appellant wrote to him on 5 January 2009 in the following terms:

“Re: APPLICATION FOR A 49% STAKE IN DOUGLAS WARRIORS FOOTBALL CLUB.

The above matter refers and I acknowledge receipt of your application requesting for a 49% stake in Douglas Warriors Football Club.

I am pleased to notify you that your request has been accepted of which the conditions would be spelt out in the agreement document which will be availed to you upon receipt of the first instalment of USD10,000=.

I would want to express my appreciation for showing interest of running Douglas Warriors Football Club jointly with the current administration.

I look forward to a cordial working relationship.”

The cash payment of $10,000= was made and receipt thereof acknowledged by the first appellant. In the letter acknowledging payment of the deposit, the first appellant stipulated how the balance was to be paid. A balance of $5,000= was to be paid on or before 31 January, thereafter the remainder of $25,000= was to be paid thus:

“USD5,000= cash on or before 31 March 2009.

USD5,000= cash on or before 31 May 2009.

USD5,000= cash on or before 31 July 2009.

USD5,000= cash on or before 30 September 2009.

USD5,000= cash on or before 30 November 2009.”

The final 9% stake was to be paid on or before 31 January 2010.

The respondent faithfully made payment until November 2009 when the deal collapsed.

Regarding the conclusion and signature of the Agreement of Sale, he told the court that the document given to him by the first appellant, and which contained the terms of the agreement, was drafted by Mr Gigima, the legal practitioner for the appellants. Once he had perused the document, he was called to Mr Gigima's office to sign the Agreement. He went with his legal practitioner, Mr Mujeyi, signed the Agreement and left it with Mr Gigima who was going to procure the first respondent's signature thereon. That was the last time he saw the document as it was never returned to him or to Mr Mujeyi. He produced a letter from the second appellants' administrator acknowledging receipt of the payments made by him as claimed in the summons.

Mr Mujeyi gave evidence confirming the respondent's evidence that he had perused the agreement.  Though he was of the view that it was inelegantly drafted, he was satisfied that it expressed the intention of the parties as communicated to him by the respondent. He confirmed that he accompanied the respondent to Mr Gigima's offices where the respondent signed the Agreement.  The first appellant was not present but Mr Gigima promised to procure his signature and thereafter send a signed copy of the Agreement to his offices for transmission to the respondent. The Agreement was never sent to him. Subsequently, in or about November 2009, the respondent reported to him that the agreement had fallen through and he needed assistance to recover his money. He advised the respondent to seek independent legal advice.

The Agreement signed by the respondent was an exact replica of the one produced by the respondent in evidence.

The background facts, as recounted by the respondent, were largely common cause. Where the parties differed was on the tenure of the Agreement.

The respondent said that in terms of the agreement the tenure of the partnership was indefinite whereas the appellants' stance was that the partnership was to endure for the 2009 season only and that if the second appellant made it to the Premier League the respondent would have the option to purchase a further 9% of the shareholding in the second appellant. 

The appellants took the view that it was the respondent who had reneged on the agreement hence the counterclaim for the unpaid balance outstanding on the shares as well as the administration expenses for the 2009 season.

Mr Gigima was called to give evidence on the appellants' behalf.

He sought to corroborate the first appellant's testimony but made a bad impression on the Court which found him to be contradictory and disbelieved his evidence. He told the court that the Agreement was drafted at his office and it was indeed to endure for one season only. As to the document which was signed by the respondent, he averred that he sent it to the first appellant for signature and it was returned to him and sent to the respondent so that the latter would alter the date of signature from January to November 2009. Thereafter he did not see the Agreement again.

The court found the evidence of the respondent to be not only credible but in accordance with the probabilities of the matter. 

I agree.

It also found that the first appellant had, by fraudulent misrepresentation, induced the respondent to enter into the Agreement of partnership and part with his money when it was clear from his evidence and that of his legal practitioner, Mr Gigima, that there were never any shares for sale.

That finding is supported by the evidence.

The draft agreement which the respondent was given to sign clearly tendered a 49% shareholding in the second appellant valued at $49,000=. The first appellant received some $36,000= of that money and pocketed it. In addition, the first appellant received some $37,000= by way of contribution to the administrative expenses of the second respondent.

Where a court at first instance makes findings of fact with regard to the credibility of the parties and their witnesses, an appellate court will be loathe to interfere with such finding in the absence of a misdirection by the lower court. Beckford v Beckford 2009 (1) ZLR 271 (S).

Not only has no misdirection been proved to exist but the finding of the court accords with the probabilities. For example, it is highly improbable that the respondent would expend such a large sum of money in the first appellant's club for one season only and with no return on his investment. The very fact that the respondent's infant child and his wife were mentioned as the persons who would own the shares in future as well as the provision for disposition of the shares, first to family members, suggests this was meant to be a long term enterprise.

We are therefore of the view that the appellants established no valid basis for interference by this court with the judgment of the court a quo.

In any event, Rule 449 involves the exercise of a discretion. 

On 25 July 2011, the High Court at Harare granted an order in the following terms:

“FINAL RELIEF SOUGHT

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

1. Pending the determination of the dispute between the parties by the process of Arbitration in terms of the provisions of the Arbitration Act, the first respondent shall not take any steps neither shall it act in any such manner as is inconsistent with the rights of the applicants arising from the agreement between the parties (as amended), and shall not act in such a way unless entitled to so act in terms of any Arbitral Award that may be handed down.

2. The costs of this application shall be costs in the envisaged arbitration proceedings.

INTERIM RELIEF GRANTED

That pending determination of this matter on the return date, applicants are granted the following relief:-

1. The first respondent is directed to restore to the first applicant the internet-based reporting links and all access to Trustco mobile hardware and software, thus enabling it to monitor and process airtime purchase transactions and otherwise perform its obligations in terms of the agreement; and

2. The first respondent be directed to refrain from undertaking and implementing a competing, infringing service to that provided by the first applicant in terms of the agreement.”

Dissatisfied with the order, the appellant filed a notice of appeal with this Court.

In essence, the appellant seeks an order setting aside the decision of the court a quo and substituting it with one dismissing the application with costs.

BACKGROUND

Econet Wireless (Pvt) Ltd (“the appellant”) is a mobile network operator carrying out its operations in Zimbabwe. On 17 August 2010, the appellant concluded an agreement with Trustco Mobile (Proprietary) Ltd, (“the first respondent”), a Namibian-based company and subsidiary of Trustco Holdings, whose core business is micro-insurance, financial services and the provision of various wireless application services through mobile telephony.

In terms of the agreement, the first respondent was to provide certain software and support services to facilitate the provision of free life cover to Zimbabwean cellular phone users and customers of the appellant against the purchase of cellular airtime from the appellant. In terms of the agreement, life cover was to be underwritten by First Mutual Life Assurance Company of Zimbabwe (“First Mutual”) at no cost to the appellant's customers but against payment of a fee by the appellant to the first respondent calculated in terms of the agreement. First Mutual was to underwrite life cover against payment of a premium which was to be subtracted from the amounts due to the first respondent by the appellant. The project came to be known in Zimbabwe as “Ecolife”.

The project was to be facilitated by a transaction facilitation system, which allowed communication between users seeking insurance, their mobile service provider and insurance underwriter. The system would record all the transactions that took place. A subscriber would only be entitled to life cover if he purchased airtime in excess of three dollars ($3=) over a period of a month. For life cover to be retained, further airtime of more than three dollars had to be purchased. All subscribers who spent more than three dollars would then be accepted for insurance by First Mutual.

The project was presented on the basis that it would result in a substantial increase in the appellants' airtime sales. It was a term of the agreement that the same was to endure for an initial period of eighteen months and that the appellant was to refrain from performing an act contesting, impairing any part of the rights and infringing, copying, duplicating or passing off any of the first respondent's rights. It was also a term of the agreement that in the event of a breach not remedied within fourteen days of notice of such breach, the innocent party was entitled to cancel the agreement without prejudice to any other rights it may have had.

In February 2011, a dispute arose in regard to the first respondent's entitlement to certain royalties.  Whilst the appellant agreed to pay a portion of the royalty fee, it, however, maintained that no fees would be paid in respect of customers whose details were not completely captured. On 26 May 2011, the appellant wrote to the first respondent also expressing its concerns over what it regarded as violations of the agreement by the first respondent.

What happened thereafter is what gave rise to the proceedings the subject of this appeal.

On 31 May 2011, the first respondent sent a letter to the appellant, the contents of which triggered the dispute that is the subject of this matter. That letter reads, in relevant part:

“The current situation is unbearable. Econet, as a registered insurance broker, is holding out to 1.85 million subscribers that they in fact have life insurance while the true state of affairs is that the insurer is not obliged to pay any claim while its premiums are outstanding. Trustco cannot be associated with such a state of affairs.

Therefore, be advised that all obligations of Trustco will be suspended 3 June 2011 at 12h00 Namibian time if all overdue payments are not received by then….,.

Kindly be further advised that if all overdue amounts, of which you have been advised, are not received within 14 days from date hereof Trustco will deem the contract cancelled in terms of Clause 17.1 of the agreement”….,.

The appellant responded the following day, 1 June 2011, in the following terms:-

“We acknowledge receipt of your letter dated 31^st May 2011 regarding the above. Your intention to terminate the agreement has been noted and accepted.

Econet maintains that it has discharged all its obligations under our agreements with you. We repeat our averment that royalties are only payable in respect of subscribers who buy airtime of a value exceeding $3= per month. Those subscribers who buy airtime amounting to $3=, but do not buy any additional airtime are not entitled to cover. Consequently, no royalties are payable in respect of such subscribers …,.”…,.

In a letter dated 3 June 2011, the day it had threatened to suspend all obligations if all overdue payments were not received, the first respondent wrote in the last paragraph thereof:-

“Legal advice received indicated that we are not entitled to switch off the system until 14 working days have lapsed since 31 May 2011. Hence the system will remain operative until then.”

The appellant, in a letter dated 5 June 2011, stated:-

“We refer to your letter of 3 June 2011 and advise that we stand by our letter of 1 June 2011 in terms of which we accepted your notice of termination of our agreement. Therefore, we consider the agreement terminated. We shall proceed to make arrangements to ensure that our subscribers are not prejudiced by the termination of the agreement that was initiated by you….,.”

The appellant further advised that in view of the decision it had taken on the matter, it had commenced the steps necessary to discontinue the use of the Trustco Mobile Concept and would not use the system with effect from 14 June 2011.

On 5 June 2011, the appellant severed links with the first respondent's system.

By letter dated 8 June 2011, the first respondent's lawyers, Messrs Rudolph Bernstein & Associates wrote to the appellant advising that the letter of 31 May 2011, indicating an intention to cancel the agreement, was never intended to constitute an invitation to the appellant for the consensual termination of the agreement and that by purporting to accept such termination, the appellant's conduct constituted an attempt to repudiate the agreement. The letter further made it clear that the first respondent would not accept such repudiation and that it had no intention of cancelling the agreement pending the resolution of the dispute between the parties. The letter further gave the appellant until 9 June 2011 to restore all links failing which urgent injunctive relief would be sought.

As a result of this impasse, the first respondent filed, on 24 June 2011, an urgent chamber application in the High Court in which it sought the relief in the terms already indicated.

After hearing argument, the court a quo made the following findings:

(a) That a reasonable explanation had been tendered for the delay in the filing of the application and that the matter was urgent.

(b) That the relief sought in the interim was restoration of the status quo ante and on the return day a show cause why the first respondents' rights should not be preserved pending determination of the dispute by arbitration.

In other words, the relief sought on the return day was dissimilar to the interim relief sought.

(c) That the requirements for an interdict had been met, and, in particular, the balance of convenience favoured the respondents.

(d) That the notice to terminate issued by the first respondent was in the future and not ex nunc and therefore invalid. In the circumstances, there was no cancellation which the appellant could note and accept, and, consequently the agreement remained valid.

Consequent to the above findings, the court a quo granted an order in terms of the draft filed. That order is the subject of the present appeal.

It is perhaps pertinent to mention at this juncture that the first respondent thereafter successfully applied for an order allowing execution notwithstanding the noting of the appeal.

From the submissions made by counsel, it is apparent that the parties have been engaged in arbitration proceedings pursuant to the order granted by the court a quo.

The appellant has attacked the decision of the court a quo on several bases. Since a point in limine has been taken in respect of the propriety of the notice of appeal itself, it becomes necessary to quote the grounds of appeal in toto. The appellant's grounds of appeal are:

“1. The learned Judge in the court a quo erred, in fact and at law, by finding that the matter was urgent and in so finding, failed to pay due regard to the background to the matter, the activities of respondents prior to the filing of the application, to the submissions made and numerous authorities cited by appellant and to the matters raised by appellant in its opposing papers.

2. The learned Judge in the court a quo erred, in fact and at law, in finding that the relief sought in the amended provisional order did not suffer from the same defect as the provisional order originally filed and erred in finding that the interim and final reliefs prayed were not the same or not substantially similar.

3. The learned judge in the court a quo erred in failing to appreciate that by granting the interim relief, as amended, the order granted has the effect of a final order.

4. The learned judge in the court a quo erred, in fact and at law, by failing to appreciate, and disregarding case authorities drawn to his attention that the process of arbitration to which the final relief prayed for refers relies (sic) on an arbitration clause in the agreement which does not oblige the parties to have any dispute determined by the process of arbitration and in so finding took away the appellant's discretion to adopt other dispute resolution methods that are permissible at law, and under the agreement.

5. Having regard to the hostility between the parties that was evident on the papers, the protests by appellant's subscribers over abuse of the appellant's system through unsolicited messages sent by the respondents, the fixed term nature of the contract between the parties, and the declaration by the respondents herein that they did not wish to honour their side of the contract, the learned judge in the court a quo erred in finding that respondents had established all requirements for the grant of a temporary interdict, and, in particular, erred in finding:

5.1 That the respondents fear that the appellant had infringed its concept was well grounded, such finding having been erroneously arrived at in view of the appellant's averment that such infringement was not in fact possible because the appellant does not have access to the source code of the respondents system.

5.2 That the balance of convenience favoured the granting of the interdict; and

5.3 That no other adequate remedy was available to the respondents.

6. Having regard to the same factors referred to in paragraph 5 above, the learned Judge in the court a quo erred in exercising his discretion to grant specific performance of the agreement in all the circumstances.

7. Generally, the learned judge in the court a quo did not apply himself to the facts of the matter before him as a result of which he made the following findings of fact that are not supported by the facts of the matter before him, namely:

7.1 That the agreement between the parties required the first respondent to procure free life cover for the appellant's subscribers from First Mutual Insurance Company when the agreement contained no such requirement at all, and the facts before the judge showed that the first respondents would not have been able to do so as it was appellant that sought and obtained approval from the Commissioner of Insurance to obtain insurance cover for its subscribers and pay for such cover on behalf of its qualifying subscribers.

7.2 That the “business model for the provision of free life cover as against the purchase of airtime amounts to an intellectual property” when the agreement between the parties did not so provide.

7.3 That “copyright and international patent had been applied for” when the agreement stipulated, falsely, that the first respondent already was a holder of International patent over the “Trustco Mobile Concept”, and the undisputed facts on record showed that such patent had been sought and declined on the basis the Trustco Mobile Concept was not novel and was thus not patentable, facts that the first respondent kept hidden from the appellant.

7.4 That “substantial revenue running into millions of US dollars was reaped from it (the system) to the benefit of the three parties to the agreement” thereby adopting the first respondent's bald and disputed assertions without question and in the absence of evidence to that effect.

8. More specifically, the learned judge in the court a quo based his judgment on the letter dated 31 May 2011 written by the first respondent and found that the contents thereof was a mere expression of an intention to terminate the agreement after 14 days, which intention the first respondent was entitled to withdraw on the following selective quotation of the first respondent's letter of 31 May 2011:

“Therefore, be advised that all obligation of Trustco will be suspended on 3 June 2011 at 1200 hours Namibian time if all overdue amounts, of which you have been advised, are not received by then….,. Kindly be further advised that if all overdue amounts, of which you have been advised, are not received within 14 days from the date hereof Trustco will deem the contract cancelled in terms of clause 17.1 of the main agreement.”

Had the learned judge a quo considered the full text of the relevant part of the letter, which reads as follows:

“Therefore, be advised that all obligations of Trustco will be suspended on 3 June 2011 at 1200 hours Namibian time if all overdue amounts, of which you have been advised, are not received by then.

We expect yourselves to appraise the Postal & Telecommunications Regulatory of Zimbabwe (Potraz), the Insurance and Pension Commission, as well as the Reserve Bank of the status quo of Eco Life with immediate effect. On Monday 6 June 2011 Trustco will advise the Zimbabwean Press and its shareholders via SENS of the status quo of Ecolife as required by the regulatory environment Trustco operates in.

Kindly be further advised that if all overdue amounts, of which you have been advised, are not received within 14 days from the date hereof Trustco will deem the contract cancelled in terms of clause 17.1 of the main agreement.”

he would have come to the inevitable conclusion:

a. That the letter was an unequivocal expression by the first respondent of an intention not to discharge its obligations under the agreement with effect from 3 June 2011 prior to the expiry of the 14 days; and

b. That such conduct, at law, constitutes anticipatory breach of contract, or repudiation of contract from which the first respondent was not entitled to approbate particularly as such repudiation was accepted and acted upon by the appellant in notifying the regulatory authorities and its subscribers of the situation before the 3 June 2011, and proceeding to disconnect the first the respondent's system from its network.

c. That such repudiation had been accepted by the appellant in writing, or by the appellant's conduct in disconnecting the first respondent's system from its network.

The learned judge in the court a quo thus erred both in fact and in the application of the law.

9. The learned judge in the court a quo erred, in fact and at law, by rejecting the submission that the facts of the matter before him related to repudiation of contract, or anticipatory breach and was thus distinguishable from the case of Waste Management Services (Pvt) Limited that he relied upon in his judgment.

10. The learned judge in the court a quo erred, in fact and law, in failing to attach weight to various threats by the first respondent to suspend its obligation under the contract and by creating the impression that the Trustco Mobile Concept worked flawlessly for nine months when the facts on the record showed repeated failures that were well documented and were not disputed.

11. In any event, the learned judge in the court a quo erred in granting relief to the second respondent in the absence of a finding that the second respondent has a substantial interest in the matter particularly as the second respondent was not a party to the agreements between the parties in this matter.”

In their heads of arguments, the respondents also took a number of points in limine. Most were not persisted in save for two. These are:

(1) Whether the grounds of appeal are concise, and, if not, whether the appeal is fatally defective for that reason.

(2) That the appeal is not directed at the order but the reasoning of the court a quo.

It was contended on behalf of the respondents that a decision by the Administrative Court, in terms of section 38 of the Regional Town and Country Planning Act [Chapter 29:12] involves the exercise of a discretion and that this Court, as an appeal court, could only interfere with the exercise of a discretion by a lower court in limited circumstances none of which were present in this case.

Section 38 of the Regional Town and Country Planning Act [Chapter 29:12] provides, in part, as follows:

“38 Appeals

(1) Any person -

(a) Who is aggrieved by any decision made, or deemed to have been made, by a local planning authority in connection with an application for-

(i) A permit or preliminary planning permission; or

(ii)…,.

(iii)…,.;

may, within one month from the notification of such decision; or

(b)…,.;

(c)…,.; 

or such longer period as the President of the Administrative Court may, in writing, authorize, appeal to the Administrative Court in such manner as may be prescribed in rules and the Administrative Court may make such order as it deems fit.”…,.

A wide discretion is conferred on the Administrative Court by this provision.

DISCRETION

An appeal court will only interfere with a decision which involves the exercise of discretion by a lower court in very limited circumstances. These were set out by this Court in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…, where the Court said:

“The attack upon the determination of the learned judge that there were no special circumstances for preferring the second purchaser above the first – one which clearly involved the exercise of a judicial discretion – may only be interfered with on limited grounds. See Farmers' Co-operative Society (Reg.) v Berry 1912 AD 343 at 350. These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it mistakes the facts, if it does not take into account relevant some consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always has the materials for so doing. In short, this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

Contrary to the appellant's allegation that the learned President misdirected himself, it would appear to me that the court a quo was alive to the principles to be applied in a matter such as this and went on to apply those principles. For example, it was guided by the judgment in Doves Morgan (Pvt) Ltd v The City of Salisbury 1973 (1) RLR 50 which set out the applicable principles to be the following:

“…, the special consent procedure is inserted in town planning schemes to allow an obtrusive activity to be carried on in an area if the applicant can establish that there is a need for the use in that area, in the sense that the members of the public who are in that area would suffer serious disadvantage if such activity is not allowed to be carried out in that area.”

The learned President took into account that Stand 76 Groombridge Township 2 of Lot 39A Mount Pleasant otherwise known as 162 The Chase, Mt Pleasant, Harare is located in an area set aside primarily for residential houses; that motor cycle showrooms are prohibited in that area; and that use of buildings in that area for other purposes may be permitted with the special consent of the local planning authority - the respondents. He found that “conversion of the appellant's residential property into a motor cycle showroom and offices would constitute disharmonious development in the area.” Such a development, the President found, would have disrupted the harmonious and co-ordinated development of properties in that area as there would be more noise and motor cycle traffic than would be the case in a quiet residential area. He took into account that the respondents have an obligation, in terms of the Regional Town and Country Planning Act [Chapter 29:12], to formulate policies for the co-ordinated and harmonious development of the use of land in its area of jurisdiction, and, therefore, concern themselves with the interests of the members of the public in the area as opposed to individual interests….,.

The court found that not only had no need been proved but that there was adequate office space provided at Mount Pleasant and Arundel Business Parks which were designed for that very purpose.

In the final analysis, this Court is unable to interfere with the judgment of the learned President unless there has been a misdirection, as set out in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S). I find no such misdirection in the judgment of the learned President. He took into account all the relevant factors and was alive to the law applicable in such cases.

Before considering the appellant's grounds of appeal in detail, it is pertinent to note that in arriving at the various awards that it made, in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13], the court a quo used its discretion.

It is in this respect correctly argued, for the respondent, that it is a firmly entrenched principle of our law that the discretion exercised by a trial court, in dividing property in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13] cannot be interfered with on appeal unless the trial court exercised the discretion erroneously, acted on a wrong principle, mistook facts, or did not take into account some relevant consideration. 

Indeed, in Shenje v Shenje (2001) (2) ZLR (160) the same principle was emphasized differently as follows;

“…,. All in all, the legislation gives the courts a very broad discretion to achieve the fairest possible settlement. There are only a few limits on the court's power to distribute property…,.”

See also Hatendi v Hatendi (2001) (2) ZLR 530 (SC).

In Ncube v Ncube (1993) (1) 39 (S)…, the point was stressed that;

“…, in circumstances where factors exist that are not easily quantifiable in terms of money, the determination of the strict property rights of each spouse is invariably a theoretical exercise for which the courts are indubitably imbued with a wide discretion.”

Indirect contribution in the context of the Matrimonial Causes Act [Chapter 5:13], in my view, would fall into the category described in this excerpt.

Being a Court of Appeal, this Court cannot interfere with the exercise of judicial discretion by a lower court except in very limited circumstances.

Counsel for the parties in this case have advocated two approaches to the manner of determining the appeal. The approach favoured by counsel for the appellant is set out in Crouch v Dube 1997 (1) ZLR 427 (S). At 436d-437F KORSAH JA described it as follows:

“Learned counsel were in agreement that the remedy provided under r 359 was of a discretionary nature, but they differed as to the category of the discretion which the court of first instance exercised under r 359. The reason for their disagreement is exemplified in the following statement by STEGMAN J in Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd 1989 (4) SA 31 (T) at 351-36H:

'…, when the exercise of a discretionary power by a court of first instance is taken on appeal, the court of appeal is faced with at least two distinct tasks. The first task relates to the general characterisation of the discretionary power in question in the case. The purpose is to determine whether the function of the court of appeal is to re-examine any aspect which the parties may seek to re-argue on the existing record; or whether such court's function is limited to an enquiry into the question whether the court below exercised its discretion judicially. When that task of characterisation has been performed, the second task (if it arises at all) relates to the examination of the particular exercise of the discretionary power by the court of first instance, and the decision whether or not to interfere with it. The nature of such second task varies according to the characterisation of the discretionary power in terms of the first task. There are at least two categories to one or other of which the discretionary powers exercised by courts of first instance may be assigned.

The first of such categories relates to matters having the character of being so essentially for determination by the court of first instance that it would ordinarily be inappropriate for a Court of Appeal to substitute its own discretionary power for the exercise thereof decided on by the court of first instance. The first matters identified as falling within this category were those discretionary powers that related to a judge's control of the conduct of the business in his own court. Later, the first category was broadened to include certain other discretionary powers.

The second category relates to matters having the character of being equally appropriately determinable by the court of first instance and the court of appeal.

When a particular discretionary power has been found to be of the character which places it in the first category, the court of appeal has no jurisdiction to substitute its own exercise of discretionary power for that decided upon at first instance unless it has been made to appear that the exercise of the power at first instance was not judicial. That can be done by showing that the court of first instance exercised the power capriciously or upon a wrong principle or with bias or without substantial reasons.

When a particular discretionary power has been found to be of the character which places it in the second category, the court of appeal has jurisdiction to substitute its own exercise of the discretion for that decided upon at first instance without first having to find that the court of first instance did not act judicially. Sufficient reason for the court of appeal to do so must be shown, but the reason need not reflect on the judiciality of the decision at first instance. The court of appeal may interfere on the simple basis that it considers its own exercise of the discretionary power to be wiser or more appropriate in the circumstances.'”

Counsel for the respondent, however, has placed reliance on Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S). At p 62F-63A, the learned GUBBAY CJ stated:

“The attack upon the determination of the learned judge that there were no special circumstances for preferring the second purchaser above the first – one which clearly involved the exercise of a judicial discretion, see Farmers' Co-operative Society (Reg.) v Berry 1912 AD 343 at 350. These grounds are firmly entrenched. It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course. It must appear that some error has been made in exercising the discretion. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, it if it mistakes the facts, if it does not take into account some relevant consideration, then its determination should be reviewed and the appellate court may exercise its own discretion in substitution, provided always it has the materials for so doing.”

The substance of the principles in the authorities relied upon by both counsel is the same.

What was at issue in the lower court was whether or not the court, in the exercise of its discretion, considered the application placed before it to constitute urgency justifying the matter being heard and determined outside the normal roll.

In the case of Crouch v Dube 1997 (1) ZLR 427 (S) it was held by the court that this category of exercise of discretion by an appeal court cannot be interfered with unless it has been made to appear that the exercise of the power at first instance was not judicial.

Both counsel are agreed that the case in point is not one where the Appeal Court is in as good as the court of first instance of being equally able to determine the matter and substitute its own discretion for that of the court of first instance. An appeal court cannot interfere with an exercise of judicial discretion unless it can be shown that some error was made in the exercise of that discretion or that the court acted on a wrong principle or allowed extraneous or irrelevant material to guide or affect its decision.

Although purporting to dismiss the application on the basis that it lacked urgency, the court a quo did make pronouncements on the merits of the application. At page 2 of the judgment, the learned judge states:

“A perusal of the papers convinced me that there was no basis for granting the interim relief sought and I declined to set the matter down.”

Later on in the judgment…, the learned judge again comments on the merits of the application and states:

“I would have held the same in the present case save that the reasons advanced for seeking interim relief cannot be sustained.”

And later at page 3:

“If the respondents are owed substantial sums of money by the applicant they would be entitled to a right of retention over the applicant's goods. There is nothing unlawful about such retention as claimed by the applicant. It seems the applicant is basing illegality on the respondents' refusal of the security that is being offered. But, as contended by Mr Uriri, no adequate security arrangements have been made by the applicant. For example, he highlighted that security equivalent to the value of the goods is far less than what is owed to the respondents. He further pointed out that there has not been payment of transport costs acknowledged by the applicant.”

As a consequence of the comments by the learned judge as to the merits of the dispute, I am not persuaded by the argument advanced by counsel for the respondent that the learned judge in the court a quo did not deal with the matter on the merits. The judgment has specific findings on the merits of the application, which findings are not confined to the issue of urgency. The judgment speaks to the security being offered by the applicant being less than what is allegedly owed as transport costs. It mentions that no costs had been paid even though the sum due was acknowledged by the applicant.

Whether the court erred in finding that the purchase price of the property was paid in full to the appellant.

The court a quo made factual findings in this regard.

The general rule regarding factual findings made by a trial court is that they will not be upset by an appellate court unless there has been such a gross misdirection by that court on the facts so as to amount to a misdirection in law in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion reached by the lower court. As it was put by KORSAH JA in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,;

“…, there can be misdirection as to the law applicable to the case being tried; and there can be misdirection as to the evidence in the case. For an appellant to avail himself of a misdirection as to the evidence, the nature and the circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection. In other words, that the determination was irrational…,.

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

In the absence of such a misdirection (and none has been alleged by the appellant), it is not open to this Court, on appeal, to substitute its own findings of fact for that of the trial court.

In any event, the probabilities clearly support the factual conclusions reached by the court a quo. The respondent produced the RTGS transfer form showing the transfer of $25,000,000= into the bank account of Murenga Estate Agents; the respondent was given vacant possession of the property; four months after the Agreement was concluded, and in April 2007, the appellant approached the respondent to ask for an additional $10,000,000= for the 47 square meters which he had gained after the subdivision and received, from the respondent, payment in the sum of $3,000,000=.

It seems unlikely that the respondent would have been given vacant possession of the property by the appellant if the purchase price had not been paid as required by clause 2 of the Agreement. Further, the fact that four months later, at a time when the respondent was already in occupation of the property, the appellant claimed from the respondent only the value of the additional 47square meters and not the full purchase price of the property is supportive of the respondent's evidence that payment for the property had been made in terms of the Agreement.

This Court can take judicial notice of the fact that during that period, hyperinflation was taking its toll on the economy and it was in the interest of sellers of property to recover the sale proceeds as quickly as possible rather than await the tedious process of transfer by which time the money paid (or agreed as the purchase price) would have lost some of its value. Clause 2 of the SPECIAL CONDITIONS of the Agreement (which were to prevail over the GENERAL CONDITIONS) bears this out. The purchase price was to be paid in cash. Clause 2 reads in part:

“2. This sale is conditional upon the purchaser being able to raise cash on the property of not less than $8,000,000=…,.”

In addition to the above, the appellant's agents, on two occasions, confirmed, in writing, that the purchase price had been paid. 

In his grounds of appeal, the appellant persisted in his stance that he had raised and established a valid 'defence' in the court a quo, namely, the existence of 'a custom or practice or agreement between the parties entitling the appellant to retain possession of the vehicle in question.'

That he raised the 'defence' is apparent on the record. That he established the existence of a practice or custom or agreement is, however, not supported by the record. The court a quo made clear findings of fact that no such custom was proved to exist.

The arbitrator found that the appellant had given the respondent less than two days' notice of the hearing contrary to the requirements of S.I.323 of 1993. It was the finding of the arbitrator that the respondent had been given less than the required notice in complete disregard of the notice period required under the Code of Conduct. He had also found that the claim had not prescribed. Having found that the dismissal of Mudavanhu was unlawful, an award for his re-instatement was issued. In the alternative, if reinstatement was no longer possible, the appellant was to pay damages in United States dollars.

The Labour Court found that;

“The arbitrator made a finding that the employer had not followed the court procedures. I therefore find that the arbitrator did not err in his finding.”

The court a quo did not set out the basis upon which it found that the arbitrator had made the correct decision. Further to this, the court did not set out the facts upon which it relied in coming to the conclusion that the arbitrator was correct in finding that the Disciplinary Committee had not followed the correct procedure. It would have been in order for the court a quo to find that the evidence of Mudavanhu, that he had not been given adequate notice prior to the hearing, was confirmed by the record. The court did not do this.

It is not appropriate for an appeal court to confirm that there was no error on the part of a lower tribunal without setting out the basis for its finding of correctness on the part of the lower tribunal.

A perusal of the record, however, reveals that the finding by the arbitrator is not borne out by the facts. The dispute between the respondent and the appellant's Managing Director occurred on 7 July 2006 and it was the basis of the complaint against Mudavanhu. That altercation is given as one of the reasons for the termination of his employment contract. The disciplinary hearing was conducted on 11 July 2006.  The allegation that he was given inadequate notice is not established on the record.

As for the contention that the Disciplinary Committee was not properly constituted, there was no indication before the arbitrator, or indeed the Labour Court, as to how it was inappropriately constituted. 

The arbitrator observed that the Disciplinary Committee did not have equal representatives. In the letter of complaint, written on behalf of the respondent and his co-respondents, Mudavanhu is referred to as a “Factory Manager”. The minutes of the disciplinary hearing show that apart from two witnesses, there were also present, the Human Resources Manager and a Head of Department, the exact nature of which is not specified.

GROUND 4: FACTUAL FINDINGS

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

See HERBSTEIN and VAN WINSEN, The Civil Practice of The Superior Courts…,.; Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,.

The factual issues raised by the appellant in its notice of appeal were carefully considered by the learned Judge who gave detailed reasons for his decision on the facts. None of the established grounds for interference, as set out above, has been established. On the contrary, the judgment of the court a quo is detailed and well-reasoned and his findings accord with the probabilities of the matter. His preference of the evidence of the respondent's witnesses against that of the appellant's witnesses is amply supported by the record. No basis, therefore, has been established for interference with the judgment of the court a quo.

THE BACKGROUND TO THE APPEAL

The respondent was employed by the appellant (alternatively referred to as “the Authority”) as an accountant. On 5 January 2011, he appeared before a disciplinary hearing of the appellant on two charges of misconduct, the first being that he had committed an act or conduct inconsistent with the terms of his contract of employment, as provided in section 4(a) of the Labour Employment Code of Conduct; and the second being a violation of section 4(d) of the Code: theft or fraud. The charges arose from the following events.

On 29 May 2009, as part of his conditions of employment, the respondent signed a document entitled: ZIMBABWE NATIONAL WATER AUTHORITY: CONDITIONS OF USE OF AUTHORITY VEHICLES. Of relevance are the following clauses:

Clause 3: The vehicle shall not be used after 19.00hours during weekdays, during weekends, and holidays, except while on official duty, for which written approval will have been issued by my Head of Catchment Department.

Clause 9.0: I will not tamper with, or attempt to have the vehicle that has been involved in an accident repaired without the prior consent of management.

Clause 10:  Any breach of these Conditions of use of an authority vehicle will constitute a breach of my contract of employment which may lead to such disciplinary action as the offence warrants.

It is common cause that the respondent went to his rural home on Saturday 13 November 2010 driving a vehicle (AAA 0773) owned by the appellant. The record does not indicate whether written approval was obtained but nothing was made of it in the disciplinary proceedings.

The vehicle, being driven by the respondent, broke down a few kilometers from his destination, upon which he called for assistance from two of the Authority employees who proceeded to tow the vehicle. During the towing process, the rope broke causing the two vehicles to ram into each other. On his return, on Sunday 14 November 2010, he gave instructions to the employees assisting him that the vehicle be taken to Surprise Panel Beaters for repairs.

It was alleged that the respondent did so in the full knowledge that only the hearing committee or management could take a decision to send for repairs an Authority vehicle involved in an accident. Even then, the requirement was that there must be three quotations from the prospective panel beaters before such a decision could be taken. Further, his abuse of authority as an accountant caused the drivers of the two vehicles to disobey clause 9.0 of the Conditions of use of Authority vehicles as set out above.

In addition, in his accident report to the Catchment Manager, he gave a false report, namely, that one of the vehicles, ABA 7366, had incurred minor damage yet internal investigations revealed that the two doors of this vehicle were interchanged with those from vehicle AAA 0773 (the vehicle driven by the respondent) and that vehicle number ABA 7366 was spray painted to match the colours of the foreign doors with the vehicle body.

Regarding the second charge, it was alleged that he deliberately sent an Authority vehicle, registration number AAM 8967, to Surprise Panel Beaters for bodywork and re-spray without proper authorization 'as evidenced by the following papers on record', namely:-

“(i) Internal purchase requisition number 10090, dated 10/11/10, sought quotations for the “bodywork and re-spray” to vehicle AAM 8967 which resulted in the responses from the three companies below:

(a) Quotation number 0000462 from Surprise Panel Beaters for US$350= was dated 9/11/10.

(b) Quotation number 00423 from Cagon Engineering for US$650= dated 09/11/10.

(c) Quotation number 001228 from Perfect Panel Beaters & Spray Painters for US$1,138=50 dated 9/11/10.

The dates on the three quotations were all altered to read 10/11/10 to synchronize with the date on the internal purchase requisition purchase number 10090.

(ii) Comparative Schedule numbered 07702 was regularized by the Acting Catchment Manager on 15/11/10 to facilitate payment of US$350= only to Surprise Panel Beaters.

(iii) You passed for payment Invoice number 0000483 from Surprise Panel, dated 18/11/10, with an amount of US$650= contrary to the figure on the comparative schedule 07702. The Authority could have (been) prejudiced with an amount of US$300= for a service that was not rendered.

(iv) As the Catchment Accountant, you seriously breached the trust bestowed on you by Management when you altered the schedule. Such action now makes it difficult for Management to trust you to handle Catchment financial matters.”

The respondent was represented by a legal practitioner at the hearing. He denied both charges but was found guilty as charged and dismissed. Thereafter, internal appeals having failed to exonerate him, the matter ended before an Arbitrator who stated his terms of reference to be:

“To look into the substantive fairness of the dismissal” of the respondent from the appellant's employ.

The record contains no information as to how the matter ended up before the arbitrator. Part of the award reads:

“Appellant was dismissed and a penalty of dismissal meted out. Dissatisfied, he appealed to the respondent's Appeals Officer. His appeal was dismissed on 1 February 2011. The appellant then appealed to the Labour Court in error but only had to be referred to this Tribunal by the Registrar of the Labour Court…,. His grounds of appeal before me are as follows…,.”

In terms of the Labour Act [Chapter 28:01], the matter could have come to the Arbitrator as a dispute referred either by a Labour Officer for compulsory arbitration in terms of section 93 of the Labour Act [Chapter 28:01]; or by the Labour Court in terms of section 89. 

Neither of the two sections refers to appeals to an Arbitrator.

The Arbitrator proceeded to determine the matter as an appeal. Before him, the respondent's 'grounds of appeal' were, as to the first charge:

(a) That he had authority, as part of management, to direct the vehicles to be sent to Supreme Panel Beaters and have them repaired:

(b) That item no. 9.0 of the conditions of use of Authority vehicle did not apply to him in this case since he was not driving the vehicles. It only applied to the mechanics who were driving the vehicles that got involved in an accident.

(c) Regarding the tender procedure he is alleged to have flouted, there are exceptional situations in which discretions (sic) were used to procure services for the Authority. He submitted that a situation such as this one has been treated in the same way for countless times with no adverse consequences.

Regarding the second charge:

(d) That all the appropriate documentation supporting the transactions were available;

(e) That the alleged offence was discovered only through documents that had been sent to the Catchment Manager for seeking approval and authorization. Therefore, it was improper to charge him with an offence which had not materialized.

(f) That the alteration of dates on the quotations was done at the instance of the Catchment Manager who had insisted on it (being) done to enable him to process the transaction. He approved it thereafter.”

These 'grounds of appeal' formed the basis of his submissions. They found favour with the Arbitrator.

The Arbitrator heard no evidence but relied on that contained in the record of disciplinary proceedings before the appellant.

In respect of the first charge, he concluded that the respondent, being an accountant, was a part of management, and, as such, had a discretion to make decisions that help the authority; that the respondent's action was reasonable in that he had to use his discretion to make decisions that help the Authority; and that the vehicle which had been sent for repairs was a utility vehicle which needed immediate attention.

With regard to clause 9.0 of the Authority's Conditions of Use of Authority vehicles; since the respondent was not the driver of any of the vehicles, he had the authority, as part of management, to send the vehicles for repairs. He was “of the informed view” that there was no exclusive way of securing services to the appellant and the respondent had used his discretion 'to elect from the many ways accepted in the organization to secure service for the vehicles in this matter…,.'

Regarding the second charge, he found no evidence to support a charge of theft or fraud.

He upheld the appeal, set aside the findings made by the domestic tribunals and ordered the reinstatement of the respondent.

Aggrieved by the Arbitrator's award, the appellant appealed, unsuccessfully, to the Labour Court, contending, in the main, that the Arbitrator had no jurisdiction to set aside the factual findings of the lower tribunals.

THE APPEAL

The main issue to be decided in this appeal is whether the Labour Court was wrong in law to uphold the award of the Arbitrator in quashing the findings of the disciplinary committee as confirmed by the Appeals Officer.

A resolution of this issue depends on a determination as to the whether or not the Arbitrator, sitting as an Appeal Court, could set aside findings of fact made by the lower tribunal.

It is settled that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it (see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,; Metallon Gold Zimbabwe v Golden Million (Private) Limited SC12-15): or that the decision was clearly wrong.

Although the background of the matter is unclear, I proceed from the premise that the Arbitrator sat as an appellate tribunal. In that capacity, he could not set aside findings of fact made by the disciplinary tribunal unless such findings were so irrational that no reasonable tribunal applying its mind to the same facts would arrive at the conclusion that it did. There was no such finding by the Arbitrator or the Labour Court.  The Arbitrator's action in this regard constitutes an error of law and the Labour Court fell into the same error. In upholding the award, it said:

“Even the Arbitrator, sitting as an appeal tribunal, it cannot be said that the award was misplaced. It is accepted that an appellate tribunal/court does not lightly interfere with the decision of a lower court but it appears that this is a proper case for interfering.”

It gave no explanation as to the reason for the interference.

In the absence of a finding by the Arbitrator of irrationality on the part of the Disciplinary Committee, the Labour Court erred, in law, in upholding the award.

The Disciplinary Committee made the following factual findings:

“(i) The vehicles were towed past the Zinwa premises to the panel beaters on the respondent's instructions.

(ii) The respondent gave verbal instructions to the panel beaters to commence work on the Authority vehicles without following up with immediate documentation.

(iii) No requisitions were raised for urgent repairs in respect of the vehicles nor were quotations sought from Surprise Panel Beaters or any other service provider in that connection.

(iv) The respondent agreed that he was aware of the appellant's tender procedures but chose to ignore them.

(v) The respondent showed no signs of remorse and indicated that he would do the same thing again if he found himself in the same circumstances.”

These findings by the Committee are supported by the evidence on record. In addition, the respondent admitted that he deliberately chose to flout the Authority's service procurement procedures on the grounds that he, as part of management, could use his discretion to act in the Authority's interests. On these facts, the Committee's conclusion that the respondent committed an act inconsistent with the express or implied conditions of his employment was, in my view, unavoidable.

The respondent was the Accountant of the Authority, employed to safeguard its finances. A high degree of integrity was expected of him. The evidence showed that he ignored all procedures put in place by the appellant for the very purpose of safeguarding its finances and brazenly told the Committee that he would repeat that performance if he was retained in that position as an Accountant. The evidence also revealed that the respondent did not obtain the approval of the leader of the management team, one Juma, although he spoke to him after the accident. His actions are those of someone who had something to conceal.

The finding by the Arbitrator that there was no exclusive way of ordering services went contrary to the evidence. It was repeatedly put to the respondent at the hearing before the Disciplinary Committee that his actions ran contrary to established procedures in the company.

There is no reason apparent on the record as to why the respondent did not obtain verbal approval from Juma. If, as he repeatedly said, he was also part of management, since this was a matter concerning an accident in which he was involved, the prudent course would have been to wait for the following day to obtain the proper approval. If the matter was so urgent that action had to be taken on a Sunday he ought to have obtained verbal approval from Juma when he had an opportunity to do so, and before ordering the vehicle to be repaired in apparent violation of the Authority's rules. The evidence revealed that he saw Juma shortly after his return and advised him of the accident. He was asked, at the hearing, why he felt constrained to send the vehicle for repairs on a Sunday to which he replied that the company was short of vehicles. In my view, this presented all the more reason for urgent consultation with Juma on the matter.

Surprise Panel Beaters is apparently located beyond the appellant's premises. The respondent caused the vehicles to be towed past the appellant's premises on the way to Surprise Panel Beaters. When asked why he did not have the vehicles moved onto the appellant's premises, he gave the reply that he was considering the company's need for vehicles. Since there was no indication that the vehicles were going to be repaired that night, it was not established how his unholy haste in towing the vehicles to Surprise Panel Beaters, on a Sunday, would benefit the appellant. In any event, going by the Authority's procedures, the vehicles would have had to await a go-ahead from the Management of the appellant after quotations had been obtained - in accordance with the Authority's accounting procedures.

When the facts are examined, it becomes evident that the respondent, by sending the vehicles for repairs, was himself in breach of clause 9.0 of the Conditions of use of the Authority's vehicles. There is no provision in the document which he signed that this clause would only apply if he was the driver of the vehicle. He caused the vehicles to be driven to Surprise Panel Beaters and gave instructions for their repair without following laid down procedures and without seeking approval. Surprise Panel Beaters were the very ones whom he attempted to pay an extra $300= without supporting invoices and for no work done. (This is the subject of the second charge).

I find no irrationality in the factual findings made by the Committee or in its approach.

Regarding the second charge, the factual findings by the Committee were that:

“(i) The respondent authorized an increase in a service value without supporting documentation, namely, a requisition, comparative schedule, and order.

(ii) There was no evidence on the invoice to show that an additional service was requested; and there was no proper documentation to support an extra payment even if that were genuine.

(iii) The respondent had admitted to instructing his subordinates to process payment of an extra charge without the Catchment Manager's authority.

(iv) There was no indication on the invoice that it was an advance payment.

(v) The respondent agreed that he was aware of the tender procedures but he chose to ignore them.

(vi) By so doing, the respondent showed utter contempt for Authority procedures.

(vii) The respondent authorized payment for a service that was neither requested nor provided.

(viii) That the respondent was grossly incompetent, in that he processed a 'lot of papers' without documentation.”

And in passing verdict, the Committee said:

“After a thorough scrutiny of the circumstances surrounding all the documentary evidence, the committee regretfully noted that Mr Mwoyounotsva has no respect for the organization's policies and that he has utter contempt of the Authority. Furthermore, the panel sadly noted that because of his I know-everything attitude, it is difficult to make him follow authority policies and procedures. Despite him acknowledging that he was well aware of the appropriate procedures, Mr Mwoyounotsva deliberately chose to ignore them. The panel was convinced, beyond reasonable doubt, that Mr Mwoyounotsva was not trustworthy and unashamedly betrayed the trust bestowed upon him by the Authority. The last thing an Accountant would do, would be to deliberately authorize payment of anything without proper documentation, not to mention an attempt to temper ( sic) with dates and figures. Mr Mwoyounotsva is therefore found guilty as charged.”

In my view, there was nothing irrational about this reasoning. If anything, it was sound and did not warrant interference by the Arbitrator. The Labour Court therefore erred, in law, in failing to find that the Arbitrator had acted improperly in interfering with the findings of the Committee; which findings are supported by the evidence on record.

I would observe, though, that while the Committee Chairman explained the charge to be 'intention to defraud' the evidence would appear to support a charge of attempted theft or fraud. To obtain approval for payment of $350= and then to pass payment for $650=, without an invoice or supporting document, suggests dishonest behavior. This is moreso because the respondent's duties, as accountant for the Authority, would necessarily involve strict accounting and payment procedures. In the absence of any allegation, whatever, by the respondent, that he passed the payment in error, the Committee's assessment of the evidence against him and their consequent verdict cannot be said to be irrational.

If there was any irrationality displayed in this matter it was in the Arbitrator's acceptance of the respondent's claim that it was up to his Catchment Manager to detect the fact that the respondent had passed an overpayment to Surprise Panel Beaters.

In any event, the conviction on the first charge carried with it the penalty of dismissal.

For the above reasons, I conclude that the Labour Court erred, in law, when it upheld the award of the Arbitrator. Accordingly, the appeal is upheld with costs.

The judgment of the Labour Court is set aside and substituted with the following:

“1. The appeal is allowed with costs.

2. The award of the Arbitrator is set aside.

In any event, Rule 449 is not mandatory but confers upon the Court a discretion to act in terms thereof.

4. Whether the court erred in refraining from dismissing the appeal and bringing finality to the matter.

As submitted on behalf of the appellant, the court a quo found that there was evidence which proved, on a balance of probabilities, that the respondent had stolen the thrust bearing. In this regard, the court said:

“On the adequacy of evidence, the appellant complained about the late report and that the witness was a suspect witness. He also said that if he had stolen the bearing then it should have been recovered at the search on the way out. The main argument is on the credibility of the witness, Kenias Labani. That credibility is best judged by those who heard him give evidence of credibility. The evidence by Kenias seems to be reliable on a balance of probabilities. We are talking of an eyewitness here who was working with the appellant. Nothing has been demonstrated to show his unreliability. This evidence is otherwise acceptable but shall not make a determination on it in view of the order I shall be making.”…,.

In the light of the court's own judgment supporting the appellant's contention that the offence of theft had been proved on a balance of probabilities, the failure by the court to dismiss the appeal and its consequent order of a fresh trial on pain of reinstatement of the respondent in the event of a failure to conclude the hearing in thirty (30) days bordered on irrationality and amounted to a gross misdirection. There is no doubt that the appellant was prejudiced by this conduct of the court a quo. Quite clearly, there was sufficient evidence on record to prove the commission of the offence by the respondent. The court therefore erred in failing to bring the matter to finality.

The appeal ought to have been dismissed.

IN CONCLUSION

I conclude with two comments on the order of the court a quo;

(i) Firstly, the respondent's prayer on appeal to the Labour Court was that 'the conviction be quashed.' The Labour Court gratuitously granted the order set out above. Apart from the remarks already made in this judgment, it is clear that no purpose would be served by a hearing de novo in these circumstances where the appellant had already established, on a balance of probabilities, that the respondent had stolen the bearing.

(ii) Secondly, the order that the respondent was to remain on 'suspension' is a misdirection.

The respondent was not suspended. He was dismissed following misconduct proceedings. The only course open to the court a quo in the event of a finding that he was unlawfully dismissed, was whether to order reinstatement or damages in lieu.

DISPOSITION

It follows from the above that the appeal must succeed.

It is therefore ordered as follows:

1. The appeal is allowed with costs.

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

The appellant further challenges the Labour Court's endorsement of the disciplinary hearing's positive findings on the credibility of Eulater Makuyana as a witness. It is stated as follows in paragraph 5.1 of appellant's grounds of appeal;

“The hearing officer did not address the credibility of Eulater Makuyana at all, contrary to the comments of the appeals officer in this regard.”

A perusal of the appeal hearing officer's decision suggests that the appellant either misread, or did not read, that decision, whose paragraph 4 reads:

“4. The designated hearing official, who had the opportunity to observe witnesses giving evidence and to assess their demeanour, found Eulater Makuyana to have given evidence in a credible manner and believed her evidence. I cannot interfere with his findings. He also found Irene Sithole and Brian Craig, who corroborated the evidence of Eulater Makuyana, to have been credible witnesses.”

The correctness of this statement is beyond doubt.

This is an appeal against a judgment of the Labour Court which struck off the roll an appeal, by the appellant, against an arbitral award on the grounds that the appeal was not based on points of law contrary to the provisions of section 98(10) of the Labour Act [Chapter 28:01].

The appellant alleges, in the three grounds of appeal raised, that the court a quo misdirected itself in failing to find that the grounds of appeal before it were based on points of law.

As conceded by the appellant, all the grounds of appeal raised in the court a quo were directed against factual findings made by the arbitrator. However, nowhere in the grounds of appeal was it alleged that the said findings were irrational or grossly unreasonable. At the hearing before the Labour Court, a point in limine was raised by the respondent alleging that the appeal was invalid in that no point of law was raised in the notice of appeal. The court reasoned as follows:

“Section 98(10) of the Labour Act makes it clear that appeals against arbitral awards only lie to this court on points of law. The definition of what a point of law is contained in a number of authorities including the case of Sable Chemical Industries vs David Peter Easterbrook SC18-10. A gross misdirection on the facts, if properly pleaded and shown to exist, can entitle one to appellate relief. A reading of appellant's grounds of appeal shows that the plea is that the arbitrator misdirected himself on the facts as to constitute a point of law. There is no averment of gross misdirection on the part of the arbitrator in the grounds of appeal. The true rule of law to be determined by the court has not been identified.

Appellants, when one considers the grounds of appeal, are requesting the Court to 're-consider' the decision made by the arbitrator on the facts presented. Appellants have not clearly averred what points of law lie for determination by this court. Appellant's submissions, in the grounds of appeal, are a general 'disgruntlement' with the decisions of the arbitrator. As already stated in numerous decisions of the Supreme Court, and this court, an appeal made in terms of section 98(10) of the Act shall only be entertained if it is on a question of law or where there is a gross misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision.”

The court upheld the point in limine and struck the appeal off the roll.

Before us, counsel fo the appellants pressed his contention that the court a quo had erred in its finding that the grounds of appeal before it did not raise any point of law.

Counsel for the appellants was at pains to explain and interpret each ground by adding to each what ought to have been, but was not, stated therein. However, despite his efforts, we are satisfied that the grounds of appeal, as pleaded in the notice of appeal before the court a quo, raised merely factual issues and not points of law for determination by that court.

The Labour Court was acting in its appellate capacity.

It is settled that an appellate court will not interfere with factual findings made by a trial court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it. See HERBSTEIN and VAN WINSEN, the Civil Practice of the Superior Courts…,; Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,.

We are therefore of the view that the judgment of the court a quo was correct. On that finding alone the appeal stands to be dismissed….,.

In view of the above, we are of the unanimous view that the appeal lacks merit and ought to be dismissed.

Accordingly, it is ordered as follows:

I am aware that, in terms of section 222(3) of the Companies Act [Chapter 24:03], the court is entitled to make such order as “it thinks.” 

Section 222(3) of the Companies Act [Chapter 24:03] reads:

“(3) Any person aggrieved by any act or decision of the liquidator may apply to the court, after notice of motion to the liquidator, and therein the court may make such order as it thinks.”

The meaning of the words “as it thinks” must be ascertained from the power the High Court exercises in terms of section 222(3) of the Companies Act [Chapter 24:03].

The court cannot think anyhow. It must think judiciously.

A court thinks judiciously when its thinking is guided by the law. It must think within the parameters of the powers given to it by the law. Section 222(3) of the Companies Act [Chapter 24:03] does not entitle a court to think outside the provisions of the law as set out by statutes and common law. The thoughts of a court must be guided by the facts found proved and the law applicable to such facts.

The appellant appealed against the decision of the Labour Court which upheld his dismissal from employment.

In 2001, the appellant was employed by the respondent as a Warehouse Clerk in the Distribution Department. He rose through the ranks to the position of Distribution and Transport Manager, a position he held until 1 July 2013 when he was transferred to the post of Port Division Manager. While he was in charge of the Port Division it came to the attention of his superior that there were forty (40) containers which had been received in May 2013 which had not been invoiced. According to the record, the appellant had, by September 2013, become aware of the containers but they were not invoiced till January 2014. The appellant was asked to submit a report on why the containers had not been invoiced.  In his statement in respect of the inquiry about the containers, the appellant acknowledged having received information that there were forty (40) containers that needed unpacking and he prepared a spreadsheet to make it easy for officials under him to calculate storage charges upon dispatch and/or unpacking the containers.

However, nothing was done to invoice these containers till January 2014.

The appellant was charged with contravening section 4(f) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15 of 2006); “gross incompetence or inefficiency in the performance of his duties.” He was charged for failing to account for daily activities under his department which resulted in the non-tracking of forty (40) containers and failure to put in place a system that controlled his subordinates' daily activities; concealing information on the non-invoicing of the containers from September 2013 to January 2014; and failing to consult his superiors on issues requiring clarity.

A disciplinary hearing was conducted.

The appellant was found guilty of gross inefficiency in the performance of his duties in that he was unable to perform his duties to the best advantage resulting in targets being missed. He was dismissed from employment. Prior to his transfer to the post of Port Division Manager he had been given a final written warning for inefficiency. He appealed to the Managing Director against his subsequent conviction and dismissal for the subsequent charge of gross inefficiency. His appeal was dismissed and his dismissal from employment was upheld.

The case was referred for conciliation where a Certificate of No Settlement was issued.

From conciliation the case was referred to arbitration. The two terms of reference before the arbitrator were; whether or not the appellant was unfairly dismissed and the appropriate remedy, if any. The arbitrator found the dismissal to be unfair and ordered that the appellant be reinstated into his position without loss of salary and benefits, or, in the event that reinstatement was not tenable, to be paid damages.

The respondent was aggrieved by the arbitrator's determination. It appealed to the Labour Court. The Labour Court set aside the decision of the arbitrator and upheld the decision of the Appeals Officer. The appellant then noted this appeal against the decision of the Labour Court to this Court.

The appeal is premised on the following grounds:

1. The learned Judge in the Court a quo erred in interfering with a finding of fact by the Honourable arbitrator regarding whether or not the appellant had been guilty of gross incompetence in circumstances where that finding of fact was not so outrageous as to create a question of law for the Labour Court.

2. The distinction drawn by the Labour Court a quo between principles of law applicable to gross incompetency and those applicable to gross inefficiency does not exist at law, thereby committing an error of law.

3. Alternatively, the Honourable Court a quo, after setting aside the arbitrator's finding on the guilty verdict, erred in law in not applying section 12B(4) of the Labour Act (Chapter 28:01) to set aside the penalty of dismissal.

The issues which fall for determination are:

1. Whether the court a quo erred by interfering with “a finding of fact by the arbitrator” on whether or not the appellant was guilty of gross inefficiency.

2. Whether there is a distinction at law between gross inefficiency and gross incompetence.

3. Whether the court a quo erred in not applying section 12B(4) of the Labour Act [Chapter 28:01] to set aside the penalty of dismissal.

Whether the court a quo erred by interfering with 'a finding of fact by the Arbitrator' on whether or not the appellant was guilty of gross inefficiency

Counsel for the appellant submitted that the Labour Court erred in interfering with the factual finding of the arbitrator that the charge of gross incompetency/inefficiency was not proved. He submitted that the arbitrator made factual findings that the respondent failed to prove gross incompetency/inefficiency and by interfering with such finding of fact, where it was not so outrageous, the Labour Court grossly erred.

Counsel for the respondent submitted that the Labour Court correctly interfered with the finding of the arbitrator because it was irrational and contrary to the evidence presented before him.

The starting point on this issue is whether the arbitrator made findings of fact as to whether or not the appellant was found guilty of incompetence.

When the dispute was referred to arbitration, the issues for determination were whether or not the respondent unfairly dismissed the appellant and whether or not the penalty imposed was justified. In that regard, the arbitrator was to determine whether the respondent (employer) was correct in finding the appellant guilty and imposing the penalty of dismissal in view of the evidence filed of record. In so doing, the arbitrator was dealing with a record of proceedings. It was not the duty of the arbitrator to determine whether the appellant committed the offence; rather, the arbitrator's duty was to find, on the evidence filed of record, whether the employer was correct in its findings.

Findings of fact in any proceedings, except where an appeal is heard in the wide sense (a rehearing), are made by the initial disciplinary authority, tribunal or court of first instance. They can, except in the case of an appeal in the wide sense, only be made once by such disciplinary authority, tribunal or court. In this case, they were made by the initial disciplinary authority. Thereafter, from the respondent's internal Appeals Officer to the Labour Court, the task was not to make findings of fact, but to assess the findings of fact made by the disciplinary authority against the standard of gross unreasonableness in the circumstances they were made. The arbitrator could therefore not make factual findings. The appellant, therefore, laboured under a misconception in thinking that the arbitrator makes factual findings.

As a result, I dismiss the first ground of appeal on the ground that it proceeds on the mistaken view that the arbitrator made findings of fact.

Be that as it may, I find that the question the arbitrator had to ask himself was whether, in light of the evidence and all the circumstances of this case, the findings of fact made by the disciplinary authority were so unreasonable as to be outrageous in their defiance of logic.

The principle to apply is that when one appeals, they appeal against an order and not the reasoning. In the spirit of that principle, it is important to look at whether the decision of the disciplinary hearing was so unreasonable in its defiance of logic that the arbitrator could interfere with it.

The appellant was charged for gross inefficiency or gross incompetence in the performance of his duties.  The allegations were that the appellant failed to account for daily activities in his division. It is also important to note that the appellant was found guilty of gross inefficiency in that he failed to perform his duties to the best advantage resulting in targets being missed. It is necessary to assess the evidence led to determine whether the finding that the appellant was grossly inefficient in the performance of his duties was reasonable.

It is not in dispute that before the appellant was transferred to be a Port Manager, there were forty (40) containers which had come around May 2013. The appellant became a Port Manager on 1 July 2013, and, as the Head of the department, he was responsible for supervising the daily activities of his department. As of January 2014, these containers, which came in May 2013, were not recorded in the system. During the hearing before the disciplinary hearing, the appellant admitted having received information that there were forty (40) containers which had to be unpacked and he prepared a spreadsheet to make it easy for his staff at the invoicing desk to calculate storage charges upon dispatch and/or unpacking the containers. The spreadsheet demonstrated that the appellant knew that there were some invoices to be prepared. There also exists a manual which shows the invoicing and charging procedures to be followed at Port Bak and the appellant had attended an ISO training. In the manual with the procedure for Port Bak processes, the following was stipulated as a procedure to be followed before release of consignments:

“Once Customs has completed the examination and goods have been moved into the warehouse, the importers have to submit to Port Bak the customs clearance documents. Port Bak issue each importer a computer Dispatch Note and raise an invoice for the handling and storage charges. All payments are made before the consignments are released.”

The appellant had this manual at his disposal which should have guided him in the performance of his duties.

The preparation of the spreadsheet with two tentative ways of invoicing shows an awareness of the duty to prepare invoices. At the very least, such knowledge should have guided the appellant to ensure the invoicing of the containers. In his statement, when asked why there was non-invoicing, the appellant accused Ruth Leman of having deliberately concealed the figures relating to storage costs. At p 190 of the record, the appellant said:

“Myself (sic) and my supervisor would assume that all figures being represented concerning the unpacking of the containers cover all the charges involved since she already had or knew all the figures that were supposed to be invoiced also including the spreadsheet that I had given her for the purpose of our tracking.”

What is apparent from his response is that the appellant acted on the assumption that everything was working perfectly well. However, it is that act, of assuming, which grounds the misconduct because a Divisional Head cannot rely on assumptions without checking on actual performance of his Division for a period of almost six months.

Further, with the procedures in place and because such invoicing and charging was central to his duties, the appellant ought to have found out, even from his predecessor or the manual, what his Department should have done. It must be noted that Ruth Leman was retained to help with the appellant's orientation. He could have, sought his predecessor's assistance, or inquired at ZSS (another invoicing office), if the containers had been invoiced at that office instead of relying on assumptions. One further important point to note is that the appellant set his performance target which he took before his superior for approval. He, in that performance target, scored four out of five. This shows that the appellant had a full understanding of his role but failed to perform it efficiently.

It is apparent that the evidence led established that the appellant was guilty of the charge of gross inefficiency in the performance of his duties. It was therefore not the duty of the arbitrator to interfere with such findings where there was no misdirection.

The appellants were, according to a lease agreement they and the Estate late Givie Chizema signed, the respondents' tenants. The respondents are co- executors of the Estate late Givie Chizema.

The appellant's were sued by the respondents in the Magistrate's Court. They entered appearance to defend and pleaded against the respondent's claim leading to the case being set down for a pre-trial conference. The appellants did not attend the pre-trial conference leading to the respondents' applying for a default judgment which was granted.

The appellants applied to the court a quo for the rescission of the default judgment. The court a quo dismissed the appellant's application. The appellants appealed to this court against the dismissal of their application for rescission.

The appellants premised their appeal on the following grounds of appeal;

1. The magistrate in the court a quo erred by failing to find out that only one of the appellants was part of the lease agreement.

2. The magistrate erred by failing to find out that the matter was res judicata.

3. The magistrate erred by failing to find out that the respondents were representing a deceased estate, therefore, they had to furnish the court with properly issued out Letters of Administration.

4. That the magistrate misdirected himself by failing to find out that the appellants were not in wilful default of court and that the explanation given was reasonable, as the appellants' representative is a sole legal practitioner and was attending a matter in the High Court.

5. The magistrate misdirected himself by failing to find that the appellants had a bona fide defence to the respondent's claim.

6. The magistrate also erred by failing to find out that the lease agreement was not properly drawn out and therefore invalid.

The assessment of evidence remains the dominion of the trial court for the simple reason that the trial officer lives through the drama of the case and is better placed to determine the factual issues as well as issues of credibility.