Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Terminated or Complete Proceedings

Appealed
SC05-18 : JENNIFER BROOKER and ADRIENNE PIERCE vs RICHARD MUDHANDA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA JA, HLATSHWAYO JA and BHUNU JA

When one speaks of the need to discharge an onus it immediately becomes clear that there is an evidentiary burden that must be met. There is no suggestion that such burden, as required to be met, was met by documents filed of record. There were no affidavits placed before the court a quo. Neither of the parties ...

SC08-18 : MUNYARADZI HOVE vs ZIMPHOS LIMITED and REGISTRAR OF THE SUPREME COURT and SHERIFF FOR ZIMBABWE
Ruled By: ZIYAMBI AJA

The fact that the court's decision was not to the applicant's liking is insufficient to invoke the limited powers which the Supreme Court has to interfere with a judicial exercise of discretion by a primary court.

Appealed
SC11-18 : ALBAN GERARD BOWERS vs SHARIFFA PRECIOUS BOWERS
Ruled By: GWAUNZA JA, GOWORA JA and HLATSHWAYO JA

It is an established principle of the law that a higher court will not lightly interfere with the exercise of discretion by a lower court. It can only do so if it is established that the discretion was exercised capriciously or erroneously, that the lower court acted on a wrong principle, allowed extraneous or irrelevant ...

SC29-18 : RESERVE BANK OF ZIMBABWE vs T. LLOYD MUFUDZI and RICHARD USEYA and NYASHA CHIKAZAZA and WARAIDZO TANDI
Ruled By: GOWORA JA, BHUNU JA and ZIYAMBI AJA

The indulgence of condonation is granted or denied at the discretion of the court of first instance and an Appellate Court will not, except in limited circumstances, interfere with the exercise by the lower court of that discretion. See Barros Anor v Chimphonda 1999 (1) ZLR 58 (S)….,. A finding that the delay in making an ...

Appealed
SC33-18 : SMIT INVESTMENT HOLDINGS SA (PROPRIETARY) LIMITED and GENET MINING (PROPRIETARY) LIMITED vs THE SHERIFF OF ZIMBABWE and PUNGWE MINING (PVT) LTD
Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

The appellants assert that the finding of collusion by the court a quo was not supported by the evidence before the court….,. The appellants further argue that it was a misdirection on the court a quo's part to simply dismiss evidence from the agreements on the ground that they were fraudulent and executed ex post facto….,. The second respondent argues that ...

Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

In determining the issue of good cause, without resolving the dispute on the facts, the decision of the court resulted in an injustice….,. The court should either have heard evidence itself in order to determine the issues before it, or, alternatively, referred the matter to trial. It did neither. In this respect it was therefore wrong.

SC43-18 : ZIMBABWE ASSEMBLIES OF GOD AFRICA (ZAOGA) vs KASIKAI MASHONGANYIKA
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

Contrary to what is argued for the appellant in its second ground of appeal, the court neither 'misconstrued nor misapplied' the relevant provisions of the Arbitration Act vis a vis the Labour Act, on the matter in dispute. It follows from this that the appellant's contention in relation to alleged violations of section 69 of the Constitution ...

Appealed
SC44-18 : AFRICAN CENTURY LIMITED vs MEGALINK INVESTMENTS (PRIVATE) LIMITED and OWEN MURUMBI and THERESA MUSINA
Ruled By: HLATSHWAYO JA, PATEL JA and ZIYAMBI AJA

This being an application for the discretionary remedy of a stay of execution of one of its judgments, the question before the court a quo was whether the respondents had alleged circumstances which persuaded it to exercise its discretion in favour of the latter. Counsel for the respondents took the point, which was strongly resisted by counsel for ...

Counsel for the respondents took the point, which was strongly resisted by counsel for the appellant, that the appeal was invalid since it was an appeal against a decision reached in the exercise of the court's discretion and no allegation was made in the grounds of appeal that “the exercise of the discretion was so outrageous in its defiance of logic that no reasonable judicial officer applying his or her mind to the facts could arrive at such a decision.”

This point, raised in limine was, in our view, correctly withdrawn by counsel.

However, whilst a failure to allege gross error or misdirection would not, in my view, render the appeal a nullity, the substance of the application as well as the order granted was a stay of execution of a judgment of the High Court. Such an order is granted by the court in the exercise of its inherent power to suspend the execution of its orders in appropriate circumstancesHERBSTEIN & VAN WINSEN: the Civil Practice of the High Courts of South Africa 5^th ed. Vol 2….,.; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.

The decision as to what, in any given case, is an appropriate circumstance is made by the court after consideration of facts placed before it. In exercising this inherent power, the court exercises a judicial discretion. Any attack, therefore, on a decision made in the exercise of such discretion must necessarily be aimed at the manner of the exercise of the court's discretion. Thus, while I agree with counsel for the appellant that such 'incantation' is unnecessary, it must appear in the grounds of appeal that an improper or incorrect exercise of the court's discretion is what is being put in issue. None of the grounds of appeal is directed against the propriety or otherwise of the exercise of the court's discretion.

The general rule governing an Appellate Court in an appeal against an order made by a lower court in the exercise of its judicial discretion is that:

“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…,.”

Barros and Anor v Chimphonda 1999 (1) ZLR 58 (S)…,.

As already observed, it was not the appellant's case that the court had, for any of the reasons set out above, exercised its discretion improperly. The issues raised on appeal show that the appellant disagreed with the decision of the court that the money paid by the respondents, after the judgment was entered, was to be applied to the settlement of the judgment debt. But, as shown above, mere disagreement with the reasons given by the court a quo for its decision is insufficient justification for interference by this Court with the decision of the lower court made in the exercise of its discretion. Not only was no attack made by the appellant on the manner of exercise by the court of its discretion in the matter, but the learned Judge properly considered and assessed the facts placed before her before arriving at what, in my opinion, is a well-considered decision.

Accordingly, no basis having been established for interference by this Court with the judgment of the court a quo, the appeal must be, and it is hereby, dismissed with costs.

SC48-12 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

In the face of the documents, and evidence of the words and actions of Dr Kunonga and his adherents, the court is unable to uphold the learned judge's finding.

Appealed
SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD
Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

This appeal is thus directed mainly against the factual findings of the court a quo. In the case of Metallon Gold Zimbabwe v Golden Million (Pvt) Ltd SC12-15…, the court said as follows:- “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 ...

SC48-16 : ZB BANK vs MARIA MASUNDA
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

It is a trite principle of our law that 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 other words, the decision must have been irrational, in ...

SC72-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS (PRIVATE) LIMITED T/A CORE SOLUTIONS
Ruled By: BERE JA

What is most significant in the judgment of the court a quo is the undeniable fact that it made findings of fact which this court can only interfere with if it is demonstrated that such findings are coloured by irrationality or unreasonableness. This position of our law has stood the test of time. KORSAH JA put ...

View Appeal
SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

It is the Food and Agriculture Organisation (FAO) Headquarters Agreement establishing the Sub-Regional Office for Southern and Eastern Africa (the Headquarters Agreement) which the first respondent argues was not domesticated and is therefore not enforceable. This argument by the first respondent was misplaced. The judgment of the court a quo was not based on the determination of the question whether ...

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SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

In the Namibian case of Kauesa v Minister of Home Affairs and Others 1996 (4) 965 (NmS) DUMBUTSHENA AJA…, said: “The above matters are not crucial to the determination of this appeal. They are, however, important because a frequent departure from counsel's, more correctly, the litigant's case, may be wrongly interpreted by those who seek justice in our ...

In the Namibian case of Kauesa v Minister of Home Affairs and Others 1996 (4) 965 (NmS) DUMBUTSHENA AJA…, said:

“The above matters are not crucial to the determination of this appeal. They are, however, important because a frequent departure from counsel's, more correctly, the litigant's case, may be wrongly interpreted by those who seek justice in our courts of law. It is the litigants who must be heard and not a judicial officer.

It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants either in evidence or in oral or written submissions. Now and again a Judge comes across a point not argued before him by counsel but which he thinks is material to the resolution of the case. It is his duty in such a circumstance to inform counsel on both sides and invite them to submit arguments either for or against the Judge's point. It is undesirable for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.

To produce a wide–ranging judgment dealing with matters not only extraneous and unnecessary to the decision but which have not been argued is an exercise full of potential pitfalls and the judgment of the court a quo has placed this court in a difficult position.

Are we to consider every opinion expressed in the judgment, however unnecessary it was to the decision and say whether it accords with our own? Or can we leave such matters well alone until such time as they become necessary to decide and are fully argued?

In our view, the latter course is the proper one to take and in doing so we emphasize that it must not be thought that this Court in any way approves or endorses the many obiter opinions expressed in the judgment of the court a quo.”…,.

BHAGWATI J…, in M.M. Pathak v Union (1978) 3 SCR 334, in relation to the practice of the Supreme Court of India, said:

“It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case.”…,.

In Groenewald NO and Anor v Swanepoel 2002 (6) SA 724…, PICKERING J, commenting on what a judicial officer should do if he wants to take into consideration issues not covered in pleadings, evidence and submissions of the parties said:

“It was therefore the duty of the learned Judge to have informed plaintiff's counsel of the relevant point, more especially where that point was, in her view, conclusive of the matter, and to have invited him to submit argument to her. Had she done so counsel would no doubt have been in a position to address her concerns and the necessity for this appeal may well have been obviated.

Secondly, the remark made by the learned Judge concerning the alleged arrest of the defendants was not based on any averment made in either the pleadings or the evidence adduced before her at the hearing or in the course of argument by Mr Pretorius. It would appear that she must have gleaned this information from some outside source. It hardly needs stating that a judge may only have regard to the evidence placed before him or her during the course of the hearing and that a reliance on facts not averred in the pleadings or raised in court constitutes a serious misdirection.”…,.

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

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

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

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

Judicial discretion should at all times remain guided by the dictates of the law.

A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties….,.

The fact that the respondents are not taking issue with the court's mero motu decision is neither here nor there. This irregularity militates against the validity of parts of the judgment of the court a quo….,.

There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led.

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Overally, the court a quo seems to have lost track of the issues that came up at the pre-trial conference which issues it had to consider and determine. Such a consideration would have kept the court alert to what was the necessary evidence. Conscious of what had to be proven, the court would have assessed the evidence using ...

Appealed
SC42-15 : CRISPEN HATIVAGONE and AUDREY HATIVAGONE vs CAG FARMS (PRIVATE) LIMITED and DBT PROPERTIES and REGISTRAR OF DEEDS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

In Reserve Bank of Zimbabwe v Corrine Granger and Anor SC34-01…, the court held, in part, that:“An appeal to this Court is based on the record. If it is to be related to the facts, there must be an allegation that there has been a misdirection on the facts which ...

SC34-12 : MINISTER OF LOCAL GOVERNMENT, RURAL AND URBAN DEVELOPMENT N.O. and CHAIRPERSON OF THE DISCIPLINARY COMMITTEE, CITY OF HARARE, MUNAMATO MUTEVEDZI N.O. vs SILAS MACHETU and OTHERS
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

The grounds of appeal are that: 1….,. 2….,. 3….,. 4. The court a quo erred in interpreting the facts of the matter; alternatively, the facts in fact show acts of misconduct on the part of the respondents. 5. The court's finding of irrationality vis-a vis the facts and the law is incorrect. 6. The court a quo erred in not accepting that the ...

The grounds of appeal are that:

1….,.

2….,.

3….,.

4. The court a quo erred in interpreting the facts of the matter; alternatively, the facts in fact show acts of misconduct on the part of the respondents.

5. The court's finding of irrationality vis-a vis the facts and the law is incorrect.

6. The court a quo erred in not accepting that the allocation of stands to the respondents was legally irregular….,.

The issue that falls for determination by this Court is as follows:

Did the court a quo err or misdirect itself in its assessment of the evidence adduced before the Disciplinary Committee, leading to its finding that the decision to dismiss the respondents was irrational?

Put differently, the question that this Court must decide is whether the evidence before the Disciplinary Committee was sufficient to support the findings of misconduct on the part of the respondents….,.

The findings of the court a quo are at variance with the evidence before the Disciplinary Committee.

The court finds that the evidence relied upon by the second appellant adequately sustained the findings of misconduct. The second respondent's findings of guilt, in relation to all respondents, were not in any way “…, so grossly irrational in their defiance of logic that no reasonable person applying his mind to the matter could possibly have arrived at those decisions…,.”

There is no evidence of unreasonableness or irrationality in the decision of the first appellant to dismiss the four respondents. The court a quo misdirected itself in relying on a concession that the first appellant acted irrationally in relying on the second appellant's report and recommendations….,.

It is trite that an Appellate Court will not interfere with the exercise of discretion by a lower court unless there is a clear misdirection. In Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S) in dealing with the exercise of such discretion the court stated as follows…,;

“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 that it has the materials for so doing.”

In this case, there was a clear misdirection.

The court a quo erred in interpreting the evidence before the second appellant and in finding the decision of the first appellant, to dismiss the councillors, to be irrational. It also erred in relying on a concession which was improperly made by counsel for the appellants. It follows that the court a quo was not justified in making the order that it did.

Appealed
SC05-19 : TETRAD INVESTMENT BANK LTD (Under Judicial Management) vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

As noted from Mupini v Makoni 1993 (1) ZLR 80 (S), when the court a quo was called upon to determine whether the first respondent was entitled to execute its judgment against the appellant, who is under judicial management, the court was called to exercise its discretion. As such, the principles relating to interference with the exercise of judicial discretion ...

This Court, as an Appellate Court, should be slow to interfere with the exercise of that discretional power. See the case of Barros and Anor v Chimphonda 1999 (1) ZLR 58 (S)…, where the court said that:

“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.”…,.

On the basis of this position, which is settled at law, it is clear that for this Court to interfere with the exercise of judicial discretion by the court a quo, it must be proved that some error was made in the exercise of that discretion in the manner enunciated in the case authorities. In this regard, it is necessary to consider whether the court a quo grossly misdirected itself in the manner in which it exercised its judicial discretion as alleged by the appellant.

SC12-19 : ALPHA MADZIMA vs MARANGE RESOURCES (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, MAVANGIRA JA and BHUNU JA

It is settled in our law that an Appellate Court must be slow in interfering with the discretion exercised by a lower court. 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 ...

Appealed
SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL
Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

Three issues arise for determination before this Court. These are: 1....,. 2….,. 3. Whether the order of costs made by the court a quo ought to be interfered with....,. 3. Whether the order of costs made by the court a quo ought to be interfered with The appellant contends that the court a quo erred in not awarding it costs of suit. It is trite that ...

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

The court a quo stated, on page 3 of the judgment, as follows: “The respondent's witness maintained her story under cross examination. The witness gave her evidence well. Although this was a single witness case, the evidence of the witness was clear, truthful and satisfactory. Her version was corroborated by the contents of the surety document and other documents ...

SC28-19 : EMMANUEL MASVIKENI vs NATIONAL BLOOD SERVICE ZIMBABWE
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

The court a quo..., made findings that are supported by the evidence on record.

SC02-16 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs RONALD GODIDE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

For this Court to interfere with the penalty imposed by the employer in the exercise of its discretion there needs to be proof that the exercise of the discretion was impeachable based on the principle laid out in Barros v Chimphonda 1999 (1) ZLR 58…, thus:“It must appear that some ...

SC35-19 : MHLANGA MXOLISI vs MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: GWAUNZA DCJ, MAKONI JA and MOYO AJA

It is trite that an Appellate Court will not lightly interfere with the lower court's findings on the credibility of witnesses. An Appellate Court will only interfere where it finds that such findings are plainly wrong. It has not been shown, in this case, that the findings of the Labour Court were plainly wrong. Accordingly, no basis ...

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

The court, in Malimanjani v CABS 2007 (2) ZLR 77 (S)…, stated as follows; “The issue of what punishment to impose after an employee is found guilty of an act of misconduct is clearly one of discretion…,. It is trite that an Appeal Court does not interfere with the exercise of a discretion by a lower tribunal ...

The court, in Malimanjani v CABS 2007 (2) ZLR 77 (S)…, stated as follows;

“The issue of what punishment to impose after an employee is found guilty of an act of misconduct is clearly one of discretion…,. It is trite that an Appeal Court does not interfere with the exercise of a discretion by a lower tribunal unless it is shown that the discretion was improperly exercised. As contended for the respondent, the penalty imposed must show a serious misdirection to justify interference by the Appeal Court.”…,.

In the case of Zimbabwe Platinum Mines (Pvt) Ltd v Godide SC02-16 …, the Court held:

“For this Court to interfere with the penalty imposed by the employer in the exercise of its discretion there needs to be proof that the exercise of the discretion was impeachable based on the principle laid out in Barros v Chimphonda, thus:

'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…,.'”

Again, in Celsys Ltd v Ndeleziwa 2015 (2) ZLR 62 (S)…, the court held:

“The question that then arises, on the basis of the law and authorities on this matter, is whether the appellant (the employer) judiciously exercised its discretion in deciding on, and imposing, the penalty of dismissal. It is only upon a negative answer to this question, that an Appeal Court would be justified in interfering with such decision.”

From the authorities above, it is clear, therefore, that where an aggrieved employee seeks to have the penalty imposed upon him by the employer set aside, on appeal, his ground of appeal must be set out in a way that clearly shows an attack on the exercise of discretion by the employer. In performing that task, a legal practitioner would be wise to take heed and be guided by the considerations so clearly set out in Barros v Chimphonda (supra).

In his second ground of appeal the appellant did not attack the exercise of discretion by the respondent….,.

It is a requirement of law that the exercise of discretion be clearly attacked.

SSC44-19 : FEATHERS MUKONDO vs THE STATE
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

Regarding the trap, the court was of the view that the appellant's case was not one where it could be said that, but for the trap, the accused would not have committed the offence. It thus confirmed the finding by the trial court that there was other evidence, apart from the trap, that proved beyond a reasonable doubt that the appellant had committed the offence. It was during a discussion of the trial court's treatment of the evidence led by the State on how the appellant solicited the bribe that the court a quo made the following remarks:

“The evidence shows that it was the appellant who solicited the bribe. The learned magistrate demonstrated the length to which the appellant went in order to make sure that he personally received the money from the complainant. See S v Fisher 1971 (1) SA 745 (RAD); S v Katsande 1983 (1) ZLR 302. There is, in my view, no basis to interfere with the conviction by the magistrate as it is proper. The appellant, in any event, failed to discharge the reverse onus set out in section 170(2) above. Once he accepted that he received money from the suspect in a matter pending at the police station, he had to discharge the onus cast by the presumption created in the State's favour that he had received the money in contravention of the provisions of section 170. This the magistrate correctly found he failed to do.”…,.

It is clear from a reading of the record that the remarks by the court a quo were made mero motu and were not based on any submissions that had been made for and on behalf of the respondent before that court. Secondly, the remarks were incorrect as far as they purported to confirm a position that the trial court had taken on the matter. The trial court did not make any finding on the reverse onus that is created by section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Finally, and more importantly, the remarks by the court a quo on section 170(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] were made after the court had concluded that the conviction of the appellant was proper on the basis of the weight of the evidence that the State had led against him. Thus, the ratio decidendi of the court a quo was its finding that it could not interfere with the factual findings of the trial court, which findings were that the State had led overwhelming evidence against the appellant.

It is our finding that the remarks constitute an orbiter dictum and had no effect on the court's ratio decidendi. Being such, the remarks cannot form the basis of an appeal. This is the trite position at law. An appeal lies against the decision of the court. It does not lie against statements or remarks made by the court during the determination of the matter and which statements and remarks do not form the ratio of the judgment.

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision. The following facts are common cause. The respondent sued for and was awarded damages by the ...

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

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

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”

There were three issues for determination before the court a quo. These were the following:

(i) The amount in local currency to be converted into foreign currency;

(ii) The date of the prevailing rate of exchange to be applied for purposes of conversion.

(iii) The rate of exchange applicable for such conversion.

On the first issue, the court a quo found that the total amount to be converted into United States dollars was ZW$3,937,217=09. The learned judge concluded, on the second issue, that the date of rate of exchange to be applied was that rate which was prevailing on the date of judgment, being 23 January 2008.

It is this conclusion that the appellant disputes.

The appellant was aggrieved by that decision and noted this present appeal. The appellant moved an amendment to its grounds of appeal. The respondent did not object and the amendment was allowed by consent. The grounds of appeal, as amended, are framed as follows:

1. The court a quo erred at law in not finding that the ZW$ award made in favour of the respondent had, by operation of law, completely been decimated, and that, consequently, there was no ZW$ to convert to US dollars.

2. The court a quo erred in using the 23^rdofJanuary 2008 as the date of payment, and, therefore, the conversion date instead of using 24 October 2012 as the conversion date, it being the date on which the respondent demanded payment.

3. In any event, the court a quo erred in finding, as common cause, that the rate of conversion from Zimbabwean dollars to United States dollars, as at 23^rd January 2008, was USD$1: ZWD$30 contrary to the conversion rate of USD$1: ZWD$30,000= pleaded by the respondent and accepted by the appellant.

4. The court a quo erred in finding that, on the facts pleaded, the appellant was liable to the respondent in the amount of USD$131,240=56.

The respondent was also not satisfied with the determination by the court and filed a cross-appeal on the following grounds:

1. The court a quo erred in making a determination on the issue of pain and suffering which was not an issue in dispute leaving the issue of future medical expenses which was an issue in dispute.

2. The court a quo, as a result, erred in awarding the respondent the sum of US$131,240=56 instead of US$164,573=90....,.

THE CROSS APPEAL

In relation to the cross appeal, the respondent concedes that the court a quo erroneously dealt with the issue relating to pain and suffering which was not an issue for determination before it.

In my view, the matter does not arise for determination because the amounts awarded in January 2008 were not affected. The court a quo was not sitting to make new awards. All it was enjoined to do was to convert the amount awarded in January 2008 into United States Dollars. This it did.

The only question that remains is whether or not it captured the amount allowed for medical expenses correctly or not.

It must be accepted that the judgment issued by the High Court in 2008 is somewhat confusing. On page 2 of the cyclostyled judgment, the amount claimed as future medical expenses is captured as ZW$1,000,000=. In the body of the judgment reference is made to the sum of ZW$2,000,000= as being claimed for future medical expenses. The order itself however states these expenses to be ZW$1,000,000= which is the sum awarded under this head. The respondent did not appeal against this award. The court a quo, correctly in my view, considered the amount of ZW$1,000,000= under this head. No appeal can lie against its reflection of this amount as being the amount awarded for future medical expenses. Once one has regard to the judgment in terms of which damages were considered and assessed it becomes clear that any reference to ZW$2,000,000= was an error.

The ground relating to this issue is dismissed…,.

1....,.

2. The cross-appeal is dismissed.

View Appeal
SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

This is an appeal from a judgment of the High Court in which it granted an application for an eviction order against the appellant on the basis that the respondent was the owner of the property known as Stand number 3182 of Subdivision A of 159 of Prospect, Harare. The appellant was found not to ...

The appellant had challenged the vindicatory action instituted by the respondent on the basis that she had a right of occupation derived from an agreement of sale of the property entered into between her and a company called Champion Constructors (Pvt) Ltd, duly represented by one of its directors and a shareholder, Ms Elizabeth Chidavaenzi.

After hearing argument from counsel for both parties, the appeal was dismissed. It was indicated then that reasons for the decision would follow in due course.

It was not in dispute that the respondent was the registered owner of Stand number 3182 of subdivision A of 159 of Prospect, Harare. The issue before the court a quo was whether there was a binding agreement of sale which gave the appellant the right of occupation.

The court a quo found against the appellant.

The question before this Court is whether the decision of the court a quo is correct on the evidence placed before it by the parties.

The facts of this case are as follows.

The respondent issued summons for the ejectment of the appellant from Stand number 3182 of Subdivision A of Stand 159 Prospect in Harare on 9 June 2008. In her plea, the appellant sought the dismissal of the claim on the basis that she was a legitimate possessor and occupier of the property. The contention was that the right, title and interest in the property was lawfully transferred to her by a declaratory order issued by the High Court in case No. HC7594A/06.

The appellant contended that she was in occupation of the property pursuant to an agreement of sale entered into between herself and a company called Champion Constructors (Pvt) Ltd. The appellant contended that, alternatively, the respondent was estopped from denying that Champion Constructors (Pvt) Ltd was the holder of rights, title and interest in the property and was entitled to dispose of the property as it did.

The respondent, through its managing director, Mrs Elizabeth Chidavaenzi, tendered various documentary exhibits in support of its position. She denied that Champion Constructors (Pvt) Ltd had ever been authorised to dispose of the property in the manner alleged or at all.

The appellant relied on her own testimony and on the evidence of two former workers of Fingold Real Estate, which had allegedly been mandated by Champion Constructors (Pvt) Ltd to dispose of the property to her.

The court a quo accepted that the respondent was the registered owner of the property in question on the basis of irrefutable evidence - the title deeds to the property. The court also accepted that Mrs Elizabeth Chidavaenzi was the managing director and controlling shareholder of the respondent. The evidence placed before the court a quo pertaining to the relationship between the respondent and Champion Constructors (Pvt) Ltd was that the respondent company had contracted Champion Constructors (Pvt) Ltd to service the land and develop residential houses on the subdivisions. The agreement between the parties was that Champion Constructors (Pvt) Ltd would be paid in kind for its services or in the form of completed houses which it would, in turn, sell to prospective home-owners in order to recoup its expenses.

Mrs Elizabeth Chidavaenzi told the court a quo that, in the past, the respondent had mandated Fingold Real Estate to sell two of its properties but it did not sanction the sale of the property in issue. She testified, further, that this is the reason why the agreement of sale was not signed by the seller. Her testimony was to the effect that the appellant was involved in a fraudulent sale which had been masterminded by John Chagaresango of Finhold Real Estate, a close relative of the appellant.

Ms Chidavaenzi said that the first time she became aware of the purported agreement of sale of 26 September 2006, between the appellant and Champion Constructors (Pvt) Ltd, was in November 2006 when lawyers for the appellant began pestering her with demands that she sign the document. She also told the court a quo that on the two occasions that she had mandated Fingold Real Estate to sell properties on the respondent's behalf, she had given them instructions in writing, which she denied doing in this case.

The appellant admitted before the court a quo that John Chagaresango of Fingold Real Estate was a close relation of hers, her elder sister's son. She testified that she signed the agreement of sale before John Chagaresango, Mr Phiri and Faith Muzungu on 26 September 2006. Thereafter, she paid Z$32,500,000= on 28 September 2006, 9 October 2006 and 3 November 2006. The appellant's evidence before the court a quo was that the terms of the agreement of sale were not fully explained to her. She admitted that Ms Chidavaenzi had never authorised her to make improvements to the property.

The court a quo found that, despite being a major shareholder in both the respondent and Champion Constructors (Pvt) Ltd, Ms Chidavaenzi was a “focused, confident and convincing” witness whose “evidence proclaimed loudly and boldly that there was no contract to talk about between Champion Constructors and the appellant.”

The court found, further, that, Fingold Real Estate could not possibly have been mandated to sell the property in question to the appellant by Champion Constructors (Pvt) Ltd or anyone else. The estate agent failed to produce proof of its mandate to sell that particular property.

On the effect of the High Court order relied upon by the appellant as bestowing or confirming that the appellant had acquired the rights, title and interest in the property, the court a quo found that the order was made in default and was against Champion Constructors (Pvt) Ltd and Elizabeth Chidavaenzi. The court's view was that the order was not binding on Drawing Services (Pvt) Ltd or enforceable against it, because, despite being the registered owner of the property, it had also not been cited as a party to the proceedings.

According to the appellant's testimony before the court a quo, John Chagaresango, who worked for Fingold Real Estate, advised her that the property in question was for sale. Accompanied by John Chagaresango, she went to view the property. The property was in the care of Champion Constructors (Pvt) Ltd, which, together with Drawing Services (Pvt) Ltd, the respondent, were under the directorship and shareholding of Elizabeth Chidavaenzi and Keroni Tevera (according to form CR14 produced before the court a quo).

Elizabeth Chidavaenzi testified that Keroni Tevera was a passive participant in the management of the affairs of Champion Constructors (Pvt) Ltd. According to the evidence before the court a quo, after the visit to the Stand, John Chagaresango contacted Elizabeth Chidavaenzi and advised her that the appellant wished to purchase the Stand. It would appear that, upon instruction, Fingold Real Estate drew up a draft agreement, in terms of which the seller, Champion Constructors (Pvt) Ltd, held itself out as being the holder of the rights, title and interest in the property, and as agreeing to sell to the purchaser, the appellant, its right, title and interest on some of the following conditions:

1. The purchase price of the property of Z$32,000,000= (thirty two million Zimbabwe dollars) plus 15% value added tax be paid.

2. A deposit of Z$21,000,000= (twenty one million Zimbabwe dollars) to be paid in full within 48 hours of signing the agreement of sale, failing which the seller shall be entitled to cancel the agreement without further notice.

3. A cash deposit was to be paid by Bank cash transfer to Champion Constructors (Pvt) Ltd.

Clause 8 of the document of sale provided that there would be no variation of the conditions of the agreement unless the variation was in writing and signed by the parties.

In Clause 14, the parties acknowledged that the written agreement between them would be the only agreement and that no other conditions, stipulations, warranties or guarantees would be valid unless included in the agreement.

The appellant signed the proposed agreement on 26 September 2006 before two witnesses. The respondent did not sign. Champion Constructors (Pvt) Ltd did not sign. Elizabeth Chidavaenzi alleges that the estate agents drafted the document without her knowledge and consent. The appellant paid the deposit before the respondent signed the agreement of sale.

Her first instalment was paid on 28 September 2006. It took her up to 3 November to pay the deposit in full, contrary to the provisions of clause 1 of the alleged agreement of sale which stipulated that the deposit must be paid in full within 48 hours of the date of the signature of the agreement. If the appellant signed the alleged agreement on 26 September, and assumed that the seller had done the same, the deposit ought to have been fully paid by 28 September 2006.

It is not in dispute that the appellant subsequently paid the purchase price in full to Champion Constructors (Pvt) Ltd. When she sought to take occupation she was prevented from doing so by the respondent. The appellant applied to the High Court seeking an order declaring that the document she signed on 26 September 2006 constituted a valid and binding agreement of sale between herself and Champion Constructors (Pvt) Ltd. On 19 September 2007, the High Court issued an order on the following terms:

1. The provisional order in case number HC7594A/06 be and is hereby confirmed on the following terms:

(a) That the agreement of sale between the applicant and the first respondent, signed on 26 September 2006, in respect of Stand 3182 of Subdivision A of 159 Prospect be and is hereby declared to be legally binding and enforceable against the first respondent.

Armed with the order, the appellant took occupation of the property against protestation by Elizabeth Chidavaenzi. On 9 June 2008 the respondent issued summons out of the High Court claiming, by vindicatory action, ejectment of the appellant from Stand 3182 of Subdivision A of Stand 159 of Prospect Harare. It alleged that it was the owner of the property in terms of Deed of Transfer DT5668/72.

The respondent alleged that the appellant had no right to occupy the property as she had not entered into an agreement of sale with the registered owner of the property. The respondent alleged that there was no privity of contract between the appellant and the respondent.

In resisting the action, the appellant raised three points:

1. She denied that the respondent was the owner of the property and argued that the right, title, and interest in the property had been lawfully transferred to her by virtue of the declaratory order issued in her favour by the High Court order of 19 September 2007.

2. The appellant alleged that she had a right of occupation to the property by virtue of the agreement of sale with Champion Constructors (Pvt) Ltd.

3. The appellant denied that there was no privity of contract between the respondent and Champion Constructors (Pvt) Ltd as they were both under the directorship of Ms Chidavaenzi, who, according to the appellant, knew about the agreement of sale.

After hearing the evidence of the parties relating to the issues, the court a quo found that the appellant was not a credible witness. The court was not assisted by the evidence of the witnesses called by the appellant to bolster her case. It found Evis Monica Mutodi to have given “a hopelessly confusing piece of evidence”, which, under cross examination, was not consistent with that of the appellant even on the purchase price.

The court found that the appellant said that the purchase price was pegged at $32,000,000= while Evis Monica Mutodi said the purchase price was $32,000,500=. While Evis Monica Mutodi told the court that she had discussed the clauses of the alleged agreement of sale with her, the alleged appellant denied this and testified that she only discussed the agreement of sale with John Chagaresango.

On the veracity of the evidence of John Chagaresango, the court found that he testified to being given a mandate by Elizabeth Chidavaenzi to sell certain of her properties, including what he constantly referred to as Stand 1382, which, in reality, was Stand 3182. The court found his evidence at variance with that of Evis Monica Mutodi when he said that Ms Chidavaenzi had visited the site prior to the appellant doing so. The court also found that when directed to clauses that the appellant had not complied with, all John Chagaresango could say was that the agreement was not based on what the appellant and the witnesses had signed, but other verbal assurances by Ms Chidavaenzi.

In contrast, the court found the evidence of Ms Chidavaenzi to be precise and to the point. It found that the evidence was consistent with her plea and summary of evidence; and, in her evidence-in-chief, and under cross-examination, she maintained the denial that she gave Fingold Real Estate, or anyone, a mandate to dispose of the property.

Having dismissed the defence by the appellant, the court granted the eviction order. It is against the order that the appeal was instituted on the following grounds:

1. The court misdirected itself in concluding that Elizabeth Chidavaenzi was a credible witness, yet her demeanour and the inconsistencies and improbabilities in her evidence justified a finding that she lacked credibility.

2. The Judge misdirected himself by relying on what he considered as not having been put to the plaintiff's witness in cross-examination, yet, those matters related to areas where the evidence of the witnesses was mutually destructive.

3. The court misdirected itself by failing to determine that Elizabeth Chidavaenzi represented both the plaintiff and Champion Constructors (Pvt) Ltd when she sold the property in dispute to the defendant.

4. The Judge misdirected himself in his conclusion that Evis Monica Mutodi's evidence was “hopelessly confusing.”

5. The court misdirected itself in accepting, without criticism, the evidence of Elizabeth Chidavaenzi to the effect that she did not mandate Fingold Real Estate to sell the property in dispute.

6. The court misdirected itself by coming to a contrary conclusion in respect of a fact which was issue estoppel.

7. The court misdirected itself by relying on principles applicable to a lessee to conclude that the defendant, a bona fide possessor, had no right of retention pending compensation for improvements.

8. The Judge misdirected himself by failing to consider that the right of retention arises by operation of law upon the defendant showing that she is a bona fide possessor, and not upon the defendant instituting proceedings to enforce the agreement of sale.

The question whether the respondent, Drawing Services (Private) Limited, was a party to the proposed agreement of sale with the appellant must be answered in the negative. This means that there was simply no privity of contract between the appellant and the respondent. The appellant purported to contract with Champion Constructors (Pvt) Limited - a separate legal entity from the respondent.

The appellant's submission that the matter before the court a quo was res judicata must be rejected for the same reason. The respondent was not a party to the proceedings in which the High Court issued a declaratory order that the appellant could enforce her agreement of sale with Champion Constructors (Pvt) Limited.

There was no agreement between the appellant and the respondent in this case as evidenced by the fact that the respondent did not sign the proposed agreement of sale. In fact, the respondent denies offering the property for sale to the appellant.

Clause 14 of the proposed agreement of sale signed by the appellant stipulated that the agreement between the parties would only be valid and binding if reduced to writing and signed by both parties. This is intrinsic evidence of the intention of the parties. There was no binding contract between the appellant and Champion Constructors (Pvt) Ltd. If there was to be an agreement of sale, as alleged by the appellant, it would have to be evidenced by production of a written document signed by both parties.

We are of the view that there was no misdirection on the part of the court a quo for the following reasons:

1. There was no contract of sale between the appellant and the respondent.

2. The registered owner of the property, the respondent, had a right to vindicate its property against a person in occupation without its authority.

3. The appellant could not claim a right of occupation against the respondent on the basis that she was granted the right by an agreement that it entered into with another company which was not acting as an agent of the respondent to enter into the agreement on its behalf.

4. The High Court order on which it was sought to found the right of occupation did not grant the appellant such a right. That order, if it is correct, declared the validity and bindingness of the agreement purportedly entered into between the appellant and a Champion Constructors (Pvt) Ltd. Unfortunately, the order granted has no legal force or effect in the sense in which the appellant interprets it. It purports to declare the validity and bindingness of a written agreement which was signed by both parties on 26 September 2006. In fact, no such agreement exists. The proposed agreement was never signed by both parties. Only the appellant signed it. No reliance can therefore be placed on that order of the High Court.

Counsel for the appellant, having noticed the difficulty the appellant's case was meeting on appeal, argued that the parties entered into an oral agreement.

With respect, this was never alleged before the court a quo when the parties actually gave evidence and it is not alleged as a ground of appeal. It is also contrary to the clear intention of the parties as expressed in the document signed by the appellant on 26 September 2006.

For instance, in clause 14, the document declares itself to contain all the conditions and representations by which the parties wish to be bound. It goes on to exclude anything else not contained therein which is not in writing and signed by the parties. It expressly denies force to oral evidence as proof of a valid contract of sale between the parties.

The appellant accordingly paid her cash deposit when there was no obligation on her to pay. Only one party had signed the document on the dates that she paid.

In light of the evidence that there was no agreement of sale between the appellant and the respondent, the fact that both companies are under the directorship of Elizabeth Chidavaenzi does not assist the appellant's case.

It was for these reasons that the appeal was dismissed with costs.

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

This is an appeal against a judgment of the Administrative Court by which the court dismissed the appeal to that court against a decision of the Securities Commission of Zimbabwe (“the Commission”) cancelling the licences of the first and second appellants and imposing sanctions upon the third and fourth appellants.

The first appellant, Remo Investment Brokers (Pvt) Ltd (“REMO”), is one of the longest established registered securities exchanges within Zimbabwe. The second appellant, Mahomed Iqbal Mahmed (“Mahmed”), is a securities dealer and is also the Managing Director of Remo Investment Brokers (Pvt) Ltd. The third appellant, Rezana Ebrahim (“Ebrahim”), is married to Mahomed Iqbal Mahmed and is a Compliance Officer for Remo Investment Brokers (Pvt) Ltd. She and Mahomed Iqbal Mahmed are the beneficial owners of Remo Investment Brokers (Pvt) Ltd. The fourth appellant, John Motsi (“Motsi”), is a Registered Securities Dealer.

Following upon turbulence within the securities sector, the Securities Commission of Zimbabwe suspended Remo Investment Brokers (Pvt) Ltd from trading for a period of six months. After the suspension of REMO, the Commission instituted investigations, through Proctor and Associates, who compiled a report. Armed with that report, the Commission charged REMO and Mahomed Iqbal Mahmed of contravening certain specified sections of the Securities Exchange Act [Chapter 24:25] (“the Act”).

The appellants were invited to make representations to the charges. Ultimately, the Securities Commission of Zimbabwe confirmed the convictions and cancelled the licences of Remo Investment Brokers (Pvt) Ltd and Mahomed Iqbal Mahmed for a period of five years after which they could re-apply for registration. Rezana Ebrahim was advised by the Commission that she was permanently disapproved as a Compliance Officer. John Motsi was able to retain his Dealer's licence but was advised that he had to practise under a supervising senior broker for a period of one year.

Aggrieved by the decisions of the Securities Commission of Zimbabwe, the appellants collectively launched an appeal with the Administrative Court which dismissed the appeal and confirmed both the conviction and sanctions imposed by the Commission.

The appellants now appeal to this Court on several grounds.

Counsel for the Securities Commission of Zimbabwe took the point, in his heads of argument, that the grounds of appeal complain against every finding made by the court a quo. The grounds, which number thirteen, have been framed too widely. They are not clear and concise as required by the Rules of this Court.

Although the manner in which the grounds have been set out is not in itself fatal to the appeal, it would be neater to deal with the appeal on the basis of the substantive issues for resolution rather than the piece meal approach detailed within the grounds.

A preliminary point raised on the appellants' behalf was that the court a quo had erred in finding that the cancellation of the licences of Remo Investment Brokers (Pvt) Ltd and Mahomed Iqbal Mahmed was effected in terms of section 105 of the Securities Exchange Act [Chapter 24:25]. In the alternative, it was argued that the court erred in failing to find that the cancellation of the said licences was premature regard being had to the provisions of section 48 as read with section 108 of the Securities Exchange Act [Chapter 24:25].

It was contended, further, that the court a quo had erred in any event in failing to find that, contrary to the provisions of section 105(2) of the Securities Exchange Act, the appellants had not been afforded an adequate opportunity to be heard. It was argued that they did not receive a fair hearing.

It was therefore contended that on this basis the appeal should succeed.

Before the Administrative Court, the appellants had similarly argued that the cancellation of the licences had been done in breach of the quoted sections. Per contra, the respondent contends that the licences for Remo Investment Brokers (Pvt) Ltd and Mahomed Iqbal Mahmed were cancelled under section 105 of the Securities Exchange Act [Chapter 24:25].

The court a quo found that, in terms of section 48(3) of the Securities Exchange Act, the Securities Commission of Zimbabwe was not empowered to cancel a licence under section 48(1) until a period of thirty (30) days allowing for an appeal to the Administrative Court in terms of section 108 would have elapsed. The court, however, found that contrary to the contention of the appellants, the licences were cancelled in terms of section 105 of the Securities Exchange Act as opposed to section 48(1).

In the circumstances, the court a quo came to the conclusion that there had been no breach of section 48(3) and section 108 of the Securities Exchange Act on the part of the Securities Commission of Zimbabwe.

In my view, the dispute centres on the interpretation of sections 48, 49 and 105 of the Securities Exchange Act [Chapter 24:25].

The powers of the Securities Commission of Zimbabwe to cancel a licence are provided for in section 48 and section 105 of the Securities Exchange Act. It was section 105 which the court found to be the applicable section.

Section 105(1) of the Securities Exchange Act reads in relevant part:

“If, after considering an inspector's report sent to it in terms of subsection (1) of one hundred and four, together with any representations made by the person, committee or operator concerned in terms of subsection (3) of that section, the Commission is satisfied that the person, committee or operator as the case may be, has contravened any term or condition of his or her licence, registration or approved scheme, as the case may be, or any provision of this Act, or any direction, requirement or order made under this Act, the Commission may, subject to subsection (2), do any of one or more of the following -

…,.

(f) Direct the person, committee or operator to suspend all or any of his or her business;

…,.

(i) In the case of a licensed or registered person or entity, cancel the licence or registration or amend any of its terms and conditions.”

It is common cause that prior to launching an investigation into the activities of Remo Investment Brokers (Pvt) Ltd, the Securities Commission of Zimbabwe advised the former, in writing, that it intended to investigate the relationship between itself and Interfin Securities (Private) Limited (“Interfin”), and, further, that to facilitate such investigation, it was necessary to cause the suspension of Remo Investment Brokers (Pvt) Ltd.

The appellants have not challenged the propriety of the suspension.

The Securities Commission advised Remo Investment Brokers that the suspension was being effected in accordance with the provisions of section 49 of the Securities Exchange Act. The suspension was effected by a letter dated 29 March 2012, addressed to Mahomed Iqbal Mahmed in the following terms:

“An announcement was made at yesterday's trading session that your firm is suspended from trading on the Zimbabwe Stock Exchange with immediate effect.

A complaint was received from Remo Investment Brokers (Pvt) Ltd that Interfin Securities had mis-appropriated shares lodged as collateral in a loan transaction. The Zimbabwe Stock Exchange and Securities Commission of Zimbabwe have since had sight of Interfin Securities (Pvt) Ltd's response to the allegations.

Regrettably, there are serious inconsistencies in the submissions made by both parties so that it has been found necessary to suspend you from trading in terms of section 49 of the Securities Act in order to facilitate a full investigation. Amongst other issues, the enquiry will seek to establish the exact nature and terms of the transaction between two members of the Zimbabwe Stock Exchange involving such a material sum of money as well as the true beneficial owner of the shares lodged as collateral with yourselves.

The period of suspension is a maximum of 6 months but regular reviews will be carried out and you will be permitted to return to trading as soon as possible after satisfactory conclusion of the matter.

In the circumstances, we look forward to your full co-operation with the matter.”

Section 49 of the Securities Exchange Act, under which the licence was suspended, reads in relevant part:

“49 Suspension of a licence

(1) Subject to subsection (6), if the Commission considers it necessary to suspend a licence -

(a) In order to facilitate an investigation into the holder's conduct; or

(b) Pending the determination of an appeal in terms of section one hundred and eight; or

(c)…,.

the Commission may, by notice in writing to the holder, suspend the licence wholly or partially in relation to all or any of the activities authorised by the licence.

(2) A suspension in terms of subsection (1) shall last for such period as the Commission may specify, but in no case shall it last for longer than six months.”

The position of the appellants is that once the Securities Commission suspended the licence in terms of section 49, it was only logical that any cancellation subsequent to such suspension be done in terms of section 48(1), and, that consequently, the provisions of section 48(3) would apply.

The argument advanced on behalf of the appellants is that once a licence is suspended under Part V of the Securities Exchange Act, specifically in terms of section 49, then it stands to reason that any cancellation of the licence can only be effected in terms of section 48 as it is also found in Part V of the Securities Exchange Act.

As I understand the argument, section 49 must be read together with section 48 of the Securities Exchange Act.

The letter of 29 March 2012 is specific as to the intention behind the suspension; that there was need to investigate the relationship between Remo Investment Brokers and Interfin Securities. The Securities Commission did not, in the letter, specify any alleged violation on the part of Remo Investment Brokers, and, the logical conclusion is that it was intended that the investigation would reveal if there was any wrongdoing on the part of Remo Investment Brokers and Interfin Securities in their mutual dealings.

The facts considered by the court a quo were the following;

After the suspension, the Securities Commission appointed Proctor and Associates to investigate the conduct of Remo Investment Brokers and Interfin Securities. This power is derived from section 103(1) of the Securities Exchange Act which empowers the Securities Commission to direct an inspector to conduct an investigation where:

“(e) The Commission has reasonable grounds for believing that a licensed person or board of a registered securities exchange or operator of a central securities depository, or any person connected with such a person, board or operator, has committed an offence under this Act, other than an offence arising out of conduct referred to in paragraph (a) or (b); or…,.”

Upon completion of an investigation, an inspector is required, in terms of section 104(1), to forward the report to the Securities Commission. On receipt of a report from the inspector, the Securities Commission is required, under section 104(2), to forward the report to the licensee and invite the licensee to make representations to it on the conclusions of the inspector and the recommendation.

On 7 May 2012, the Securities Commission sent a copy of the report from Proctor and Associates to Remo Investment Brokers and requested a written response within a period of thirty days. Remo Investment Brokers responded by a letter dated 8 May 2012.

Section 104(2) of the Securities Exchange Act [Chapter 24:25] provides in relevant part:

“On receipt of a report in terms of subs (1), the Commission shall -

(a) Send a summary of the conclusions reached in the report, and any recommendations made therein, to the licensed person, committee of the registered securities exchange, or operator of the central securities depository, as the case may be, that was the subject of the investigation; and

(b) Invite the committee, licensed person or operator concerned to make representations on the conclusions and recommendations set out in the summary.

3. A licensed person, committee of a registered securities exchange or operator of a central securities depository that has been sent a summary of conclusions and recommendations in terms of subsection (2) may, within thirty days, submit to the Commission representations on any of the conclusions or recommendations.”

On 23 May 2012, the Securities Commission advised all the appellants, in writing, that it intended to cancel the licences of the first two and impose sanctions on the last two, and, as a consequence, all the appellants were invited to appear before the Commission in person to make representations.

Subsequent to the letter of 23 May 2012, all the appellants appeared before the full Board of the Commission and made representations on the proposed action intended by the Commission against each of them. On 7 June 2012 the Commission proceeded to cancel the two licences and imposed the sanctions which are the subject of this appeal.

Having confirmed that the cancellations were effected under section 105 of the Securities Exchange Act, the court a quo also found that the cancellations were not done in a summary manner but after due consideration of a report presented to it by Proctor and Associates following upon an investigation into the activities of the appellants and Interfin Securities.

Section 48 of the Securities Exchange Act, on which the appellants hinge their appeal, reads:

“48 Cancellation of licence

(1) Subject to subsections (2) and (3), the Commission may, by notice in writing to the holder, cancel a licence if the Commission has reasonable grounds for believing that…,.

(a) The holder has ceased to carry on business; or

(b) The licence was issued in error or through fraud or the misrepresentation of a material fact by the holder; or

(c) The holder has contravened any provision of this Act or any term of/or condition of the licence…,.; or

(d) The holder misrepresents the facilities he or she offers to the public; or

(e) The holder has become disqualified to hold a licence in terms of section thirty-nine; or

(f) The holder no longer meets any prescribed financial requirements for carrying on any activity authorised by the licence; or

(g) The holder, or any employee or agent of the holder, has been guilty of any act or omission in the conduct of the holder's business that has resulted or is likely to result in prejudice to members of the public; or …,.

(h) n/a; or

(i) n/a;

(2) Before cancelling a licence in terms of subsection (1), the Commission shall notify the holder, in writing, that it proposes to cancel the licence and of the Commission's reasons for proposing to do so and shall give the holder of the licence an adequate opportunity to make representations in the matter….,.

Provided that, if the Commission believes, on reasonable grounds, that it is not possible to notify the holder personally, the Commission shall publish a notice in the Gazette and a newspaper circulating in the area in which the holder carries or carried on business, stating that the licence will be cancelled unless the holder lodges an appeal with the Administrative Court in terms of section one hundred and eight within thirty days from the date of publication of the notice in the Gazette.

(3) The Commission shall not cancel a licence in terms of subsection (1) -

(a) Until -

(i) The period within which an appeal may be lodged in terms of section one hundred and eight has elapsed; or

(ii) The thirty day period referred to in the proviso to subsection (2) has elapsed, where a notice was published in terms of that proviso;

unless the holder has consented to its cancellation;

(b) If an appeal is lodged in terms of section one hundred and eight, until the appeal has been abandoned or withdrawn, or, where it has proceeded to finality, until the Commission is notified that its decision has been upheld.

(4)…,.”

One must look at the purpose and provisions of an Act in order to interpret the different sections forming that Act.

In construing the meaning of a section it is necessary to look at the Act generally to see what the scope of it is and whether the section accords with the scope and intention of the Act. It then becomes possible to draw a conclusion as to its meaning, considering the terms of the enactment.

The piecemeal approach advocated by the appellants does not accord with principles of construction of statutes.

In my view, it is impossible to know the intention of the legislature without enquiring further and ascertaining the context in which the Legislature intended to regulate.

In S v Fikizolo 1978 (2) SA 676, VAN RHYN J stated:

“It is a fundamental principle that the intention of the Legislature must be inferred from the words which the Legislature used, and, in Du Plessis v Joubert 1968 (1) SA 585 (A) at 595 BOTHA JA stated the following in this regard:

'Only a clear and indubitable, particular intention of the Legislature, and not merely an assumed intention can justify a departure from the usual meaning of words and then only if the words are amenable to another meaning.'”

Moreover, the whole piece of legislation must be examined to determine the intention of the Legislature. It is equally clear that one section can throw light on the intention of another section:-

“The correctness of the statement that the whole Act must be taken into account has been adopted so generally in our practice as to be a matter of course, that our courts have seldom found it necessary to stress this.” STEYN Die UITLEG van WETTE, 4th ed…,.

Stripped bare of the verbiage, the process of cancellation under section 105 of the Securities Exchange Act [Chapter 24:25] is preceded by an investigation of the licence holder. Any report from the investigation is availed to the licence holder for comment, and, in addition, the Securities Commission is obliged to call upon the holder to make representations to it before any sanction is imposed.

There is no provision for the suspension of a licence under section 48 of the Securities Exchange Act prior to its cancellation.

In fact, the provisions of section 48 do not contemplate a situation where the holder has been the subject of an investigation under section 49.

Where a licence is cancelled under section 48(1), such cancellation is made subject to the provisions of subsections (2) and (3) of section 48. Sub-section (2) enjoins the Securities Commission to notify the holder, in writing, that it proposes to cancel the licence; the reasons for proposing to do so; and, further to this, to afford the holder of the licence an adequate opportunity to make representations. In the event that the Commission believes, on reasonable grounds, that it is not possible to notify the holder personally, the Commission is permitted to publish a notice in the Gazette and a newspaper circulating in the area in which the licence resides or is situate, stating that the licence shall be cancelled unless the holder lodges an appeal with the Administrative Court in terms of section 108 of the Securities Exchange Act.

It cannot be gainsaid that all the actions by the Securities Commission, after receipt of the inspector's report, were consistent with the provisions of section 104.

All the appellants were availed the opportunities afforded to a registered person or a licence holder to be heard in terms of that section prior to the Commission taking any action subsequent to an investigation. None of the appellants have denied that the report was sent to them, that they were requested to make representations, or, further, that they appeared before the Commission before sanctions were imposed upon them on an individual basis.

The procedure adopted by the Securities Commission, in its dealings with the applicants, is more consistent with the provisions of section 105 as opposed to section 48 of the Securities Exchange Act.

The latter section envisages a situation where the licence holder is informed of the sanction that the Securities Commission intends to impose and to then avail the licensee an opportunity to make representations. Under section 105, the licensee is investigated and a report of the investigation is availed to the licence holder for comment. Over and above this, the licence holder is provided with an opportunity to be heard by the Commission.

As a consequence, the requirement in section 48(3), obliging the Securities Commission not to cancel a licence until the opportunity given to appeal to the Administrative Court becomes obvious.

Unlike the procedure provided for under section 105, a cancellation effected under section 48 is summary and the licensee is not assured of an opportunity to make representation before the cancellation. Thus, there is need for the cancellation not to be effected before the appeal process provided for under section 108 has been exhausted.

There is no such requirement under section 105.

It is also pertinent to note that under section 105, the Securities Commission is given the discretion to impose a sanction before affording the holder an opportunity to make representations if it considers that immediate action is necessary to prevent harm to the licensed person, its employees, agents, other securities, or members of the public.

In this case, all the appellants were afforded an opportunity to make representations before the cancellations were put into effect and the sanctions on the last two were imposed.

In proceeding under this section, the Securities Commission is not required to have regard to the provisions of section 48(3). The distinction is obvious. However, any powers exercised by the Commission under section 105(1) are made subject to subsection (2) of the same section which provides:

“Before taking any action referred to in subsection (1), the Commission shall -

(a) Inform the person, committee or operator concerned, in writing, of the action it proposes to take; and

(b) Afford the person, committee or operator concerned an adequate opportunity to make representations in the matter;

Provided that, where the Commission considers that immediate action is necessary to prevent irreparable harm to the licensed person, registered securities exchange or central depository or its members, creditors or participants, the Commission may take such action before affording the person, committee or operator an opportunity to make representations in terms of this subsection.”

In this Court, the appellants submitted that the Securities Commission had, contrary to the provisions of section 105(2) of the Securities Exchange Act [Chapter 24:25], not provided them an adequate opportunity to make representations as to why the licences of Remo Investment Brokers and Mahomed Iqbal Mahmed should not be cancelled.

Their contention, that the learned President in the court a quo did not address that issue, has substance.

It is trite that an appeal to the Administrative Court is an appeal in the wide sense.

The appellants could have, if they had chosen to do so, led evidence before that court in order to ensure that whatever irregularities the Securities Commission may have been guilty of were corrected.

They did not avail themselves of that opportunity.

In Watchtower Bible & Tract Society of Pennsylvania & Anor v Drum Investments (Private) Limited & Anor 1993 (2) ZLR 67 (S), GUBBAY CJ, remarked as follows…,:

“I am satisfied that the appeal from the decision of the Rural Council to the Administrative Court is an appeal in the first sense above, an appeal in the wide sense. I accept the comment of the court in the Jones case supra that we are dealing with 'not so much a re-hearing as the first full inquiry'. But that comment does not take the case out of the category; it puts it more firmly in it.

The main reasons why the appeal falls into the wide category are that the Act, in providing for the appeal, authorises the Administrative Court to 'make such order as it deems fit' (section 39(1) of Act 22 of 1976), and that evidence is, for the first time, led and examined in accordance with the rules of a court of law.

I do not think it is possible to argue that even though this is a category one appeal, an appeal in the wide sense, the onus may nevertheless be on the objector. The whole point of the formulation which I have set out is that the appellate tribunal (in this case the Administrative Court) is starting again. It is deciding afresh the merits of the application, not the merits of the Rural Council's decision. The formulation makes sense only if one accepts that the onus is where it was in the original application.”

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

However, this Court is in as good a position as the court a quo to determine the point raised by the appellants.

However, as submitted by counsel for the respondent, notwithstanding the failure by the court a quo to address this particular aspect, the record shows that the Securities Commission complied with the requirements of section 104 and 105.

The court has already dealt with the instances of the appearances by the appellants before the full Board of the Securities Commission in this judgment.

Over and above those representations, the appellants communicated with the Commission, in writing, after receipt of a letter dated 17 May to which was attached the report from the inspector and calling upon the appellants to respond to the report in writing within thirty days.

On 29 May 2012, John Motsi addressed a letter to the Securities Commission in which he stated the following:-

“We refer to your letter dated 17 May 2012 to ourselves on the above matter and advise that we have responded as per paragraph 3 of your letter. Please find attached response for your attention.”

In casu, in addition to the written responses, during the appearance of Mahomed Iqbal Mahmed before the full Board, on 29 May 2012, the record reveals that he was availed an opportunity to produce additional documentary evidence in response to the report by the inspector. The record reflects that fresh evidence was produced to the Securities Commission on 29 May and 1 June 2012. The proceedings of 7 June 2012 were at the appellants' request. There never was a complaint during the intervening period, before the cancellation of the licences, that the appellants had been denied an opportunity to be heard.

In this connection, attention is drawn to the remarks of STEENKAMP AJA in IMATU v MEC, Environmental Affairs ETC, Northern Cape 1999 (4) SA 267 to the following effect:

“Mr Van Wyk also referred to the various meetings and submitted that there was no proper consultation or negotiation with second applicant prior to first respondent's decision not to negotiate a new service framework before or on 8 September 1998.

This conclusion is not factually correct because the second applicant was invited to put forward an alternative scheme to provide primary health services and did, in fact, do so but his proposals were referred back to second applicant to put alternative models on the table because there was no duty on the first respondent to come forward with new models.

If a process for a fair hearing is set in motion then the person who is prejudiced should come forward and put his case to enable the other parties to consider these alternative proposals. See BAXTER (op cit at 546).”

I am of the view that all the appellants were given an adequate opportunity to be heard before the cancellation of the two licences and that the Securities Commission complied fully with its obligations under the Securities Exchange Act. This view is fortified by the dicta in Duly Holdings v Chanaiwa 2007 (2) ZLR 1 (S). In that matter, GWAUNZA JA stated:

“To the extent the respondent was given an opportunity to answer to the charges and present his side of the story, he should not be heard to say that there was no observance of the audi alteram partem rule. The court a quo correctly noted in its judgment that the rules of natural justice required no more than that the domestic tribunal acts according to the common sense precepts of fairness procedures followed.

Given the circumstances outlined above, I respectfully disagree with the court a quo's conclusion that it could, in casu, not be said that the rules of natural justice were observed. I am satisfied that the respondent was, therefore, not prejudiced in any way by the disciplinary procedures followed.

The appellant argues, correctly, that the adoption of the disciplinary procedures not specifically outlined in the Code finds support in ZFC v Geza 1998 (1) ZLR 137 (S) where this court emphasized the importance of flexibility in the conduct of disciplinary tribunals, and the principle that they were there to conduct an enquiry. It cannot, in my view, be said in this case that the disciplinary tribunal did not conduct an enquiry.”…,.

Those remarks apply with equal force to the circumstances of this appeal and I respectfully associate myself with them.

The Securities Commission is a disciplinary and regulatory body set up in terms of the Securities Exchange Act [Chapter 24:25]. Perforce, its procedures are less rigid and formal than would be required of a court of law. The flexibility referred to in the case of ZFC v Geza 1998 (1) ZLR 137 (S) would be a necessary feature in the conduct of its proceedings. It is not required to abide by a set of formal rules in its proceedings as is required of a court of law. The only rules provided for under the Securities Exchange Act relate to the regulation of securities and licensed persons and the conduct of their functions in terms of the Securities Exchange Act, which rules however do not prescribe the manner in which proceedings by the Securities Commission should be conducted.

A reading of the Securities Exchange Act [Chapter 24:25], however, establishes that irrespective of whether the Securities Commission cancels a licence under section 48 or section 105, the Securities Exchange Act has provided that the Commission complies with the audi alteram partem principle before cancellation of a licence or the imposition of any other sanction under the Securities Exchange Act.

Notwithstanding the failure by the court a quo to address the question as whether the Securities Commission had given the appellants an opportunity to be heard, the finding that the cancellation of the licences was effected in terms of section 105 of the Securities Exchange Act is correct and cannot be faulted. I find no basis for overturning the conclusion by the court in that regard.

On the substantive issues relating to the Securities Commission's decision to cancel the licences, the court a quo concluded that the Commission had arrived at a correct decision. The learned President of the Administrative Court, sitting with two Assessors, stated as follows:

“Part of the appellants' argument is that the cancellation of the First and Second Appellants licences is too harsh. They argue that less drastic penalties provided for in the Act would have sufficed.

Given the extent of the deviations from the expected standard of operating the registered securities exchange that have been outlined above, the court finds that the Respondent was justified in opting for cancellation of the First and Second Appellants' licences with provision for re-application after five years if the two would have been adequately rehabilitated.

Regarding the Third and Fourth Appellants, it is noted that the pronouncements made with regard to them were not sentences but inevitable pronouncements made by an administrator concerned with practical consequences of its decision.

The appeal is accordingly dismissed with costs.”

The Securities Commission preferred five (5) charges against Remo Investment Brokers and Mahomed Iqbal Mahmed. The appellants concede that they accept liability in respect of one of the charges laid by the Commission.

The first charge related to the appellants participating in non-permissible activities in breach of section 42(1) of the Securities Exchange Act [Chapter 24:25], in terms of which section a licence holder is authorized to carry out one or more of the activities specified in the definition of licensable activities.

The allegation against Remo Investment Brokers was that it borrowed money from Interfin Securities which allegation Remo Investment Brokers admitted. It was further alleged that Remo Investment Brokers had lent the money it borrowed from Interfin Securities to its own clients. This was denied when the appellants made representations to the Securities Commission. However, in a letter to the Commission, dated 12 March 2012, soon after the dispute with Interfin Securities had erupted, it was stated:-

“During the course of the last eighteen months we arranged several loans from Interfin on behalf of our clients.

As security for these loans, we lodged several share certificates with InterfIn. The share certificates in question are as follows….,.

On 23 February 2012, we settled all amounts due to Interfin and asked for the return of the securities that had been lodged with them.”

It is not disputed by any of the appellants that the lending of money is not a licensable activity as defined in the Securities Exchange Act.

The Securities Commission found that Remo Investment Brokers had lent money to Cold Power after it had borrowed from Interfin Securities. It was never disputed by Remo Investment Brokers that it gave money to Cold Power. This non permissible activity is contained in a letter dated 8 May 2012 to the Commission wherein it was stated:

“We provided documentary evidence that the funds borrowed were not lent to any of our associated companies. They were used to fund REMO, and, to an extent, one or two of our other companies.”

Remo Investment Brokers and its associated companies are distinct and separate entities. The monies were borrowed by it and any sums advanced to the associated companies could only have been availed as loans. There is no suggestion that Remo Investment Brokers was giving grants to the associated companies.

Given the admissions of the financial transactions, the conclusion by the Securities Commission that the sums in question were advanced as loans cannot be seriously impugned. In any case, the extending of loans to other persons was not one of the functions that Interfin Securities was permitted under its licence. As a consequence, Remo Investment Brokers could not legally borrow from Interfin and to that extent it participated in a non-permissible activity.

Remo Investment Brokers was convicted of contravening section 50(1) of the Securities Exchange Act [Chapter 24:25] by the Securities Commission. The conviction was upheld by the court a quo.

Section 50(1) of the Securities Exchange Act requires that a licensed person shall open and keep a current account at a Bank as a separate trust account in which he or she shall deposit any money received for or on behalf of a client.

The Securities Commission found that although Remo Investment Brokers advised the Commission of the opening of the account, there was no indication that the account in question was used solely for funds belonging to clients. It was also found by the Commission that the same account was used by Remo Investment Brokers to keep its own money, and, further, that the same account was used for channelling loans secured on behalf of Remo Investment Brokers clients.

It was argued, on behalf of the appellants, that Remo Investment Brokers was convicted on an allegation in respect of which it had not been charged.

I agree.

This particular charge is not reflected amongst the charges laid against Remo Investment Brokers in the letter of 7 May 2012. The allegations spelt out in the letter were that the borrowings and on-lending were not in the accounts of the company as required in terms of Part VI. The conviction of Remo Investment Brokers on an alleged contravention of section 50(1) of the Securities Exchange Act constitutes an irregularity and the court a quo should have set aside the said conviction.

Further to the above, the court a quo found that transactions relating to the loans sourced by Remo Investment Brokers from Interfin Securities, and its own loans to its clients and to Cold Power, were not reflected in the books of account that Remo Investment Brokers kept. The failure on the part of Remo Investment Brokers to keep a record of the transactions relating to the loans it received and lent to its clients was found by the Securities Commission to constitute a contravention of section 51(1) which requires a licensed person to keep proper books of account containing particulars and information of money the licensee has received, held, or paid for on account of any other person and money that the licensee has deposited in his or her trust account.

The report from the inspector indicated that Remo Investment Brokers did not keep a register of all the securities in which the licence holder, or any director, officer, employee, associate, or partner who is directly involved in its business had an interest as required under section 61(1). The provision is couched in mandatory terms.

It is common cause that the shares that had been pledged to secure loans were not recorded in the nominees register. In answer to queries raised by the inspector, the appellants confirmed that the shares had not been recorded because they had been paid for and delivered to the client and thus could not be part of a scrip ledger. This response would contradict the assertion now being made on behalf of the appellants that the shares pledged as security actually belonged to Mahomed Iqbal Mahmed and his wife Rezana Ebrahim.

In addition, the appellants went on to state that only those shares held by brokers in safe custody were recorded in the Scrip Ledger. They stated that the nominee shares were not in the Scrip Ledger because they were not custodial shares.

The court a quo held that the excuse by the appellants that the shares were only held for a short time did not assist because the strict requirement for their inclusion in a register is for the benefit of the public. Section 61(3) enjoins a licenced person to record any change in the interest of security to be recorded within a period of forty-eight (48) hours from the time of acquisition or change as the case may be.

On 20 May 2011, the Securities Commission requested all securities dealing firms to declare such loans as they might have obtained and a list of any clients' shares that might have been pledged as security for any loan.

Remo Investment Brokers rendered a nil return, which, as matters turned out, was false.

The appellants admitted that the return was false but gave the alleged absence of Mahomed Iqbal Mahmed from the country as an excuse. The appellants could not explain why the record was not corrected subsequent to his return.

Section 65 of the Securities Exchange Act [Chapter 24:25] reads in relevant part:

“(1) The rules of a registered securities exchange shall make adequate provision for such of the following matters as are appropriate to its functions -

(a) n/a

(b) In regard to membership of the exchange -

(i)…,.

(ii) Ensuring that -

(c) Members are of good character and integrity, or, in the case of members that are corporate bodies, that they are managed and controlled by persons who are of good character and integrity.”

The court a quo concluded that by making a false declaration as aforesaid, the first and second appellants demonstrated the absence of professionalism and integrity in their business dealings.

The Securities Commission, as the regulator under the Securities Exchange Act, is obliged to ensure that high standards are maintained by securities dealers. It did not place either the first or second appellants in good stead to claim that the return was done during the absence of Mahomed Iqbal Mahmed from the country.

As members of a registered securities exchange are required and meant to be of good character and integrity, it was the finding by the Securities Commission, which finding the court a quo confirmed, that Mahomed Iqbal Mahmed was not a fit and proper person to hold a licence as provided for in section 41(1)(c) of the Securities Exchange Act. Mahomed Iqbal Mahmed was the principal dealer in Remo Investment Brokers. The Securities Exchange Act requires that a person in that position should have the attributes of good character, honesty, and integrity in order to ensure efficiency, honesty, fair practice and fair competition in relation to dealings with other exchanges.

It was pointed out by counsel for the respondent that the appellants admitted guilt in respect of the failure to disclose the financial transactions as well as the false declaration. Having pleaded guilty to the charges before the Securities Commission, the attempt to run away from those admissions, on appeal, cannot be regarded in a serious light.

In DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S) GUBBAY JA…, when discussing formal admissions, stated:

“But, this admission in the plea is of the greatest importance, for it is what Wigmore (paras 2588-2590) calls a 'judicial admission' (of the confession judicialis of Voet (42.2.6)) which is conclusive, rendering it unnecessary for the other party to adduce evidence to prove the admitted fact, and incompetent for the party making it to adduce evidence to contradict it.

See also Phipson 7ed p18).

Wigmore loc cit, speaking of judicial admissions in general, refers to the Court's discretion to relieve a party from the consequences of an admission made in error. It does not seem to me that such a discretion could be exercised, in a case where the admission has been made in a pleading, in any other way than by granting an amendment of that pleading.

These dicta were approved by MACDONALD ACJ (as he then was) in Moresby-White v Moresby-White 1972 (1) RLR 199 (AD) at 203E-H; 1972 (3) SA 222 (RAD) at 224.”

In my view, the court a quo was correct in upholding the convictions in respect of the following charges; section 42(1), section 41(1)(c), section 51(1), section 61(1) and section 65(1)(b) of the Securities Exchange Act [Chapter 24:25].

The decision of the court a quo, in upholding the conviction of Remo Investment Brokers on an alleged contravention of section 50(1) of the Securities Exchange Act, constitutes a misdirection on the part of the court on the basis that Remo Investment Brokers was never charged of contravening that particular offence. The conviction on that charge cannot therefore stand and is accordingly set aside.

It was contended on behalf of Mahomed Iqbal Mahmed that he received a harsher sentence than what was meted to Zengeni of Interfin.

The Securities Exchange Act empowers the Securities Commission to impose any sanction from issuing a warning to the cancellation of a licence.

In imposing such sanctions, under section 105 of the Securities Exchange Act [Chapter 24:25], the Securities Commission exercises a discretionary power. Implicit in the exercise of that discretion is the fact that the Securities Exchange Act does not impose any limitations on the Commission on the extent of the duration of the period for which a licence may be suspended or cancelled as the case may be.

It is trite that the exercise of such discretion can only be interfered with in limited circumstances. See ZB Financial Holdings v Manyarara SC03-12; Malimanji v Central Africa Building Society 2007 (2) ZLR 77 (S); Barros v Chimponda 1999 (1) ZLR 58 (S).

Mahomed Iqbal Mahmed has not argued a legal basis to justify the interference with the cancellation of his licence by this court, and it is not enough to argue that he should have received a similar sentence to that imposed on Zengeni. In any case, it has not been suggested that the Securities Commission exercised its discretion improperly.

Whilst it is accepted that the period of five years for which the licence was cancelled appears a bit harsh, it cannot, by any means, be said that such penalty is irrational. For that reason, any interference with the period cannot be warranted or justified by an Appellate Court.

That said, slightly different considerations apply in respect of Remo Investment Brokers.

This Court has set aside one of the five charges that Remo Investment Brokers was found guilty of. The Securities Commission had imposed a globular penalty against Remo Investment Brokers on all the five charges in respect of which Remo Investment Brokers had been convicted. Considering, however, that the conviction on one charge is unsustainable it seems proper in these circumstances that the globular penalty be interfered with to some extent in order to reflect this finding.

In determining the extent to which this court should interfere with the globular sentence imposed by the Securities Commission, there is need to bear in mind the circumstances that gave rise to the four charges in respect of which Remo Investment Brokers was convicted.

As security for being availed loans by Interfin Securities, Remo Investment Brokers surrendered shares in negotiable form, and, as matters turned out, Interfin used the same shares as security for its own borrowings. In its letter to the Securities Commission, of 8 May 2012, Remo Investment Brokers provides a narrative of the manner in which Interfin then dealt with those shares and the efforts Remo Investment Brokers took to recover them. In cancelling the licence of Mahomed Iqbal Mahmed, the Commission made reference to the market disruptions that occurred when the Deputy Sheriff seized the shares which are the subject of the dispute between Remo Investment Brokers and Interfin Securities. It was noted that the market's integrity and investor confidence was compromised.

Some of the objectives that the Securities Commission is charged with under, section 4 of the Securities Exchange Act [Chapter 24:25], include, the promotion of high levels of investor confidence, the reduction of systemic risk, the promotion of market integrity and investor confidence. The Commission is also obliged to prevent market manipulation and ensure transparency in the market. As a consequence, in the circumstances of this case, the sanction attaching to the infractions should reflect the gravity of the proved offences and should not appear to be a slap on the wrist as it were.

The activities of Remo Investment Brokers and Interfin Securities sought to, and did, undermine the objectives of the Securities Exchange Act.

The potential prejudice to investors was found by the Securities Commission to be USD5.3 million. The Commission found that the conduct of Remo Investment Brokers and Mahomed Iqbal Mahmed went against the tenets that the Commission was supposed to uphold and regulate.

In my view, bearing in mind the mandate of the Securities Commission to protect the market and ensure the integrity of the market and regain investor confidence, the Commission was correct in finding that it was necessary that the licence of Remo Investment Brokers and Mahomed Iqbal Mahmed be cancelled.

Given the overall gravity of the transgressions by Remo Investment Brokers, and, taking into account the finding above that one of the charges in respect of which Remo Investment Brokers was convicted is not sustainable, it seems to me proper that a portion of the period of five years in respect of which the licence for Remo Investment Brokers was cancelled should be reduced by six (6) months, leaving the period of cancellation for Remo Investment Brokers at four years and six months.

The position is different when one considers the cases of Rezana Ebrahim and John Motsi.

On 24 May 2012 each of them received a letter from the Securities Commission inviting them to make representations in respect of their conduct in the affairs of Remo Investment Brokers. Rezana Ebrahim was not a licensed person under the Securities Exchange Act, but she was an approved Compliance Officer. She was not specifically charged with an offence, but, as a Compliance Officer, she confirmed that she was the ears and eyes of the Commission with Remo Investment Brokers. The Commission decided to permanently disapprove her as Compliance Officer. She was further advised that she would not be employed in that capacity in this country.

John Motsi was not charged with a specific offence nor was his licence cancelled. He was however sanctioned to work under the supervision of a senior dealer for a period of one year.

There is uncontroverted evidence that he is in fact the most senior dealer in this country.

In respect of the two, the principles relating to the audi alteram partem rule, which requires that a party be afforded a fair hearing, were not adhered to. They were sanctioned in the absence of having specific charges preferred against them.

In relation to John Motsi, he was advised that he had not committed any offence, and, that merely due to his employment with Remo Investment Brokers, it was decided to sanction him.

I find no justification for the actions of the Securities Commission against Rezana Ebrahim and John Motsi. The court a quo ought not to have confirmed the sentences against them.

The appeal succeeds, in part, to the extent that the sanction imposed on Remo Investment Brokers is reduced and, in respect of Rezana Ebrahim and John Motsi is set aside in its entirety.

In the result, the Court makes the following order:-

1. The appeal by the first appellant is allowed to the extent that the conviction on a charge of contravening section 50(1) of the Securities Exchange Act [Chapter 24:25] is set aside, and, consequent thereto, the period of cancellation is reduced to four years and six months.

2. The appeal by the second appellant is dismissed.

3. The appeal by the third and fourth appellants is allowed with costs.

4. The order of the court a quo, in respect of the third and fourth appellants, is set aside and substituted with the following:

“(a) The appeal is allowed with costs.

(b) The restrictions placed on the third and fourth appellants are hereby set aside.”

5. The first and second appellants are to pay the costs of this appeal save for the costs of the third and fourth appellants, jointly and severally, the one paying the other to be absolved.

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

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

The appellant was also ordered to pay costs of suit.

THE FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE COURT A QUO'S FINDINGS

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

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

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

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

ISSUES FOR DETERMINATION

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

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

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

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

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

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

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

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

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

I agree.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See also Nzira v The State SC23-06.

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

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

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

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

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

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

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

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

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

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

“I cannot remember.”

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

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

“In the result, it is ordered that:

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

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

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

2. Defendant shall pay the costs of suit.”

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

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

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

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

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

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

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

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

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

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

In the result, it is ordered that;

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

(a) The appeal on the merits is dismissed;

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

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

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

3. Each party shall bear its own costs.

SC05-20 : GRANDWELL HOLDINGS PL vs ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and MBADA DIAMONDS PL
Ruled By: GWAUNZA DCJ, MAVANGIRA JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 26 October 2016 dismissing the appellant's application for specific performance with costs.

The facts are that the appellant and the second respondent are each the holders of fifty percent of the issued share capital in the third respondent, a special joint venture company incorporated in terms of a joint venture agreement entered into between the appellant and the second respondent on 21 July 2009.

In terms of the Joint Venture Agreement, the appellant would provide funding for the business of mining diamonds through the third respondent. The second respondent undertook to ensure that the mining rights held under special grants at Marange existed in perpetuity.

The first respondent, which is the sole shareholder in the second respondent, guaranteed the second respondent's performance of its obligations under the agreement.

Although the appellant performed its obligations under the agreement, the second respondent did not pay the special grants' renewal fees. The second respondent let the special grants, in terms of which the mining rights existed, expire.

When that happened, the second respondent did not secure the reinstatement of the special grants. The first respondent, which had guaranteed the second respondent's performance of its contractual obligations, also failed to do anything about that breach of the agreement.

On 30 September 2015, the first respondent addressed a letter to the Permanent Secretary for Mines and Mining Development which, because of its centrality in the resolution of this case, is reproduced hereunder:

“RE: RENEWAL OF THE MARANGE DIAMOND SPECIAL GRANTS: 4718, 4719, 4720, 4765, 5244, 5247, 5249 & 5769

Reference is made to the above matter. As per attached table below, ZMDC has five diamond Special Grants (SG) which expired in October 2013 and one in December 2010. These are SG Nos. 4718, 4719, 4720, 4765 and 5769.

From this date, the Corporation has to raise the required renewal fees, and, in 2014, the Ministry of Mines and Mining Development granted a 12 month exemption on the payment of the renewal fees for the said grants. Given the fact that ZMDC's financial position has remained severely constrained, the Corporation is applying for a further exemption on renewal fees for these SGs, which have currently expired.

Further, given the fact that actual mining is now taking place in the first four of the above SGs, it is necessary for the SGs to be converted from prospecting to mining SGs, a process that also requires cash outlay by ZMDC, which funds the Corporation is currently finding difficult to raise.

In addition, Marange Resources (Pvt) Ltd, a wholly owned subsidiary of ZMDC, which is currently mining on Block B under SG4720, has requested for a valid copy of SG4720, which it requires in its application for exemption of import duty for an X-Ray Transmography Machine (XRT machine) that it intends to import. Unfortunately, the Corporation is not able to assist, given the fact that the SG has expired.

Under these circumstances, therefore, the Corporation is appealing to the Ministry, for the Ministry to reconsider its earlier position not to extend the exemption of payment of renewal SG fees, and grant ZMDC an exemption to update its diamond SGs for a further period of 3 years to 2016, to allow Marange Resources to process its application for exemption of import duty.

Sir, we are kindly requesting for your favourable consideration to our submission of renewal of the ZMDC held diamond Special Grants Nos. 4718, 4719, 4720, 4765, 5244, 5247, 5249 & 5769 and conversion of SGs Nos. 4718, 4719, 4720 from prospecting to mining.

Yours faithfully
S. Simango General Manager.”…,.

It is clear from the contents of the letter that the special grants, in terms of which mining operations were to be carried out by the third respondent, had expired in 2010 and 2013.

The respondents did not have money to pay renewal fees and were thus asking for exemptions from the Secretary. They had relied on exemptions previously to renew the special grants because they again did not have money. If they were to be granted exemptions from paying renewal fees, only then would they apply for renewal or revival of the expired special grants.

The Secretary of Mines and Mining Development was not impressed. He rejected the request for exemptions in a letter to the first respondent dated 22 February 2016. It reads:

“RE: RENEWAL OF THE MARANGE DIAMOND SPECIAL GRANTS: 4718, 4719, 4720, 4765, 5244, 5247, 5249 AND 5769

The above matter refers.

We acknowledge receipt of your letter to our Ministry dated 30 September 2015 contents of which have been noted (copy attached for ease of reference). As clearly admitted and indicated by yourselves, you have neglected or failed to renew the Special Grants that were issued to you, some expired as far back as 2010 and others in 2013. An exemption had been extended to you but there has been no commitment on your part to rectify this anomaly which is in contravention of section 293 of the Mines and Minerals Act [Chapter 21:05].

Instead, you are requesting for a further exemption.

It has also come to our attention that there are some Special Grants that are purported not to have a duration period.

It is trite law that a Special Grant is issued upon application and its issuance is done in terms of section 291 of the Mines and Minerals Act [Chapter 21:05] which demands that a period for the subsistence of the Special Grant shall be specified failure of which renders the Special Grant void. In light of this, these Special Grants shall be deemed to have been granted for the period which the applicant had requested in its application.

After serious consideration of this matter, we do hereby notify you that the Ministry is not in a position to give any further exemptions for the renewal of all Special Grants, namely, 4718, 4719, 4720, 4765, 5244, 5247, 5249 and 5769 that were issued to you and neither are we renewing the same.

Prof. P.F. Gudyanga
Secretary for Mines and Mining Development.”…,.

After the rejection of the request for exemptions, it is common cause that the respondents did not do anything. They did not challenge the Secretary's decision. Neither did they raise money to pay for the renewal or revival of the expired Special Grants.

The appellant then launched an application in the High Court seeking an order directing the respondents to pay renewal fees for the Special Grants and to file renewal applications among other ancillary relief. The application was prompted by the third respondent's inability to carry out mining operations without regularisation of the special mining grants. The application was premised on the respondents' breach of the joint venture agreement.

The first and second respondents opposed the application.

They denied breaching the agreement asserting that they applied for both exemption to pay renewal fees and the renewal of the Special grants to the Secretary for Mines.

It therefore became an issue for determination by the court a quo whether the first and second respondents breached the terms of the Joint Venture Agreement by failing to perform specific acts in pursuance of their contractual obligations.

The court a quo held that the first respondent's letter of 30 September 2015 is indeed an application for renewal of the Special Grants. The court a quo found that the response to the application by the Secretary for Mines dealt with the issues of exemption and renewal of the Special Grants which had expired. The court a quo held that the Secretary for Mines had made a decision not to renew the Special Grants. It would therefore be incompetent, so the court a quo reasoned, for the court to order the Secretary to review his own decision by granting an order for specific performance.

This appeal is the fruit of the appellant's grief with that judgment of the court a quo. The grounds of appeal are that:

1. The court a quo erred and grossly misdirected itself in finding that an application for renewal of the Special mining grants had been filed by the first and second respondents in discharge of their contractual obligations to the appellant;

2. The court a quo erred and grossly misdirected itself in limiting the first and second respondents' contractual obligations to filing an application for renewal of the special mining grants whereas their obligation was to do all that was necessary to ensure the existence, in perpetuity, of the special mining rights.

Whether or not the court a quo correctly held the letter of the first respondent to the Secretary for Mines as an act of specific performance in terms of the parties' agreement

Generally, the policy of the law is to give effect to the contracts of the parties because it is salutary in our jurisdiction to uphold the freedom of the parties to contract lawfully. This notion is embodied in the principle of sanctity of contract.

Once the parties have contracted, it is not open to the courts to rewrite the contract they have entered into. In addition, the court will not excuse any of the parties from the consequences of the contract that they freely and voluntarily entered into with their eyes wide open. This is so even if the consequences are onerous or oppressive. See Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…,.

As to the remedy of specific performance in the Law of Contract, it is accepted that it is aimed at upholding the contract and obtaining the performance of the terms of the contract as agreed. Indeed, specific performance is the primary or default remedy for breach of contract and is usually claimable.

According to the learned author I MAJA, The Law of Contract in Zimbabwe, 2015, The Maja Foundation…,:

“The general rule, under Roman Dutch Law, is that an innocent party has a right, in every case of breach of contract, to a remedy of specific performance unless there are exceptional circumstances which justify refusal of an order for specific performance.

According to Farmers Co-operative Society (Reg) v Berry 1912 AD 343 at 350:

'Prima facie, every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract. As remarked by KOTZE CJ in Thompson v Pullinger the right of the plaintiff to the specific performance of a contract, where the defendant is in a position to do so, is beyond all doubt.'”

See also Smith & Ors v ZESA 2003 (1) ZLR 158 (H)…,; Savanhu v Marere N.O. & Ors 2009 (1) ZLR 320 (S).

However, the right to claim specific performance is predicated on the concept that the party claiming it must first show that he or she has performed all his or her obligations under the contract or is ready, willing and able to perform his or her side of the bargain.

Even then, the court has a discretion, which should be exercised judicially, to grant or refuse a decree of specific performance. It follows, therefore, that the court's discretion should not be exercised arbitrarily or capriciously. See Minister of Public Construction & National Housing v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S), where…, this Court stated:

“The law is clear. This is a remedy to which a party is entitled as of right. It cannot be withheld arbitrarily or capriciously.”

It is important to consider the specific terms of the contract entered into between the parties which the appellant wishes to enforce.

Clause 6.3 of the Joint Venture Agreement provides:

“6.3 Marange undertakes that it shall forthwith after the signature date and thereafter for the duration of this Agreement –

6.3.1 Pay all necessary fees and make application for the renewal and/or continued existence and do all that may be necessary so as to ensure that the special grants and rights thereunder are in good standing and remain valid for the duration of this Agreement allowing Marange to mine and prospect the concession area in perpetuity…,.”

The appellant's case is that the respondents breached that provision by failing to pay the necessary fees and to make the requisite application for the renewal of the Special Grants. As a result, the Special Grants lapsed.

The respondents submitted that the letter written by the first respondent to the Secretary of Mines, on 30 September 2015, constituted a valid application for the renewal of the Special Grants which application was rejected by the Secretary for Mines. They therefore fulfilled their part of the bargain.

It is common cause that the appellant fulfilled its own obligations in terms of the contract and was therefore entitled to demand specific performance. The court a quo found that the letter of 30 September 2015 was “an application for renewal” and that its heading was very clear needing no further explanation. The court said at p7 of the cyclostyled judgment:

“What is clear from the above is that it is an application for renewal. The heading is very clear and needs no further explanation. The first paragraph makes reference to the heading and therefore the renewal of the special grants.

The second paragraph relates to an exemption to pay renewal fees. Paragraphs 3 and 4 are not relevant to the determination of the issue at hand. Paragraph 4, again, relates to exemptions. The last paragraph puts paid to any doubt what the letter relates to. It talks about renewal.

I agree with Mr Tsivama that there is no procedure or format laid down in JVA as to how the application for renewal is to be submitted.”

With respect, the court a quo took a very simplistic, if not pedestrian, approach to the letter in question.

Clause 6.3.1 of the Joint Venture Agreement required the respondents, first and foremost, to pay all necessary fees for the renewal of the Special Grants. It also required them to make the necessary application for such renewal. It recognised the reality that the payment of fees was a pre-requisite for a valid and successful application for renewal. Such a situation is not what was obtaining on the ground, and, as such, the letter of 30 September 2015 cannot, by any stretch of the imagination, be regarded as a fulfilment of the respondents' obligations under Clause 6.3.1 of the Joint Venture Agreement.

Clearly, it was not a valid or competent application for renewal.

It is clear from the provisions of section 293 of the Mines and Minerals Act [Chapter 21:05] that the payment of renewal fees is central to the validity of an application for renewal. Section 293 of the Mines and Minerals Act provides:

“The person to whom a special grant is issued shall pay the prescribed fee in respect of the issue of a special grant or any renewal thereof.”

It is common cause that the respondents did not pay renewal fees. In fact, all the relevant special grants were allowed to expire years before the letter of 30 September 2015 was written. The contents of that letter are clear that the first respondent was seeking an exemption from paying renewal fees because of an incongruent financial position. Without the payment of renewal fees the renewal could only be done by the benevolence of the Secretary for Mines.

The respondents could not possibly be said to have performed their obligations of ensuring the mining rights existed in perpetuity. The rights had expired.

The court a quo fell into error in that aspect. The letter of 30 September 2015 did not constitute specific performance of the respondents' obligations in terms of the contract.

Whether the respondents did all that was necessary to ensure the Special Mining rights existed in perpetuity

Counsel for the appellant submitted that the obligations of the respondents set out in the contract were much broader than merely submitting an application for renewal of the Special Grants. They were required, so the argument goes, to ensure that the mining rights existed in perpetuity. They failed to perform to such an extent that the special grants expired in 2010 and 2013 - long before the respondents even submitted the letter they relied on.

I agree.

In fact, once it is accepted that the respondents did not pay renewal fees and that they allowed the grants to expire, it cannot be said at the same time that the respondents did all that was necessary to ensure the existence of the special mining rights in perpetuity. They could only so exist if there was full compliance with renewal requirements including the timeous payment of renewal fees and submission of the necessary applications.

Repeated requests for exemptions from payment would never ensure perpetuity as that left everything in the hands of the Secretary for Mines.

Whether the court should exercise its discretion in favour of granting specific performance

Counsel for the respondents submitted that the Secretary for Mines made a decision not to renew the Special Grants which decision is contained in his letter of 22 February 2016 quoted above. He submitted that the court a quo cannot be faulted for concluding that it would be incompetent for the court to direct him to review his own decision by granting specific performance.

Counsel for the appellant, on the other hand, sharply differed with that assertion.

In his view, there was no application for renewal placed before the Secretary for Mines. He could not grant an application which was not made and his response clearly showed his disquiet about the respondents' repeated failure to pay renewal fees.

I have said that the court has a discretion whether to grant specific performance but that discretion should be exercised judicially and not arbitrarily or capriciously. This is because specific performance is a remedy to which a party is entitled to as of right. See Minister of Public Construction & National Housing v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S).

The court a quo did not consider the circumstances that are relevant in deciding whether to grant a decree of specific performance or not. In its view that was unnecessary because it had come to the conclusion that the respondent's letter to the Secretary for Mines amounted to specific performance. I therefore do not agree with counsel for the respondents that the court a quo exercised judicial discretion and refused specific performance, which discretion can only be interfered with if exercised capriciously or upon a wrong principle.

The discretion was simply not exercised by the court a quo for obvious reasons, namely, its finding that specific performance had occurred.

There is no doubt that the Secretary for Mines was called upon to decide whether or not to grant the respondents exemption from paying renewal fees. He refused to do so because, according to him, an exemption had been granted previously but the respondents showed no commitment to rectify the anomalies. The respondents were not entitled to further exemptions.

What is significant to note is that the respondents' obligations, in terms of the contract, are not to apply for exemptions but to pay renewal fees.

It is clear from the letter of the Secretary for Mines dated 22 February 2016 that if renewal fees are paid the application will be favourably considered.

In light of that, I perceive no ground whatsoever for exercising the discretion reposed upon the court against the granting of specific performance. After all, it is the primary remedy for breach of contract. The appellant has shown that the respondents breached the contract. Specific performance is possible, and, as such, it should be granted.

In the result, it is ordered that:

1. The appeal succeeds with costs.

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

“2.1. The application be and is hereby granted.

2.2. The 1st and 2nd respondents be and are hereby directed to pay renewal fees in respect of the special grants constituting the concession on which the 3rd respondent was carrying out mining operations and which mining grants are referred to in the Joint Venture Agreement and the Shareholders Agreement attached to the application.

2.3. Thereafter, the 1st and 2nd respondents be and are hereby directed to file a renewal application in respect of the said special grants and to provide the renewing statutory authority with all that is required to enable the said authority to process the renewal application including a detailed written motivation to ensure urgent renewal of the special grants.

2.4. The 1st and 2nd respondents shall provide the applicant with copies of the renewal application together with proof of payment of fees.

2.5. The 1st and 2nd respondents shall pay the costs of this application jointly and severally the one paying the other to be absolved.

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

This is an appeal against the decision of the High Court handed down under HH253-16 wherein the court a quo found the appellant liable to pay to the respondent the sum of US$847,847=65 together with costs of suit and interest at the prescribed rate from the date of the granting of the judgment to the date of payment in full.

The appellant is a statutory corporation set up in terms of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] (“the IDBZ Act”). The respondent is an oil company registered in accordance with the Companies Act [Chapter 24:03].

The background to the matter may be summarized as follows:

A company known as Wedzera Petroleum (Private) Limited (“Wedzera”) entered into a verbal agreement with the respondent wherein the respondent would sell bulk petroleum fuels to it from time to time. The respondent would supply the petroleum products on credit and raise invoices to be settled by Wedzera Petroleum. Wedzera Petroleum would, in turn, settle the invoices within ten days from the date on which the invoices would be raised.

In November 2010, the respondent sold to Wedzera, petroleum products worth US$847,847=65. The sale of the petroleum products was made on the basis of two guarantees made by the appellant binding itself to pay in the event that Wedzera Petroleum failed to honour the debt. The two guarantees were drafted on 5 November 2010 and 19 November 2010 for the sums of US$500,000 and US$450,000 respectively.

The guarantees issued by the appellant were in the form of a letter, which bore the letter head of the Infrastructural Development Bank of Zimbabwe. It was addressed to the respondent and signed by one Francis Mugwara (“Mugwara”) the Head of the Short Term Loans Unit.

Part of the first guarantee, dated 5 November 2010, read as follows:

“In consideration of Wedzera Petroleum (Pvt) Ltd…, agreeing to the submission of a guarantee for the supply of fuel products by Engen Petroleum Zimbabwe (Pvt) Ltd, we, Infrastructure Development Bank of Zimbabwe – IDBZ…, do hereby guarantee full payment of USD500,000.00…, being the total amount of the Bank Guarantee to Engen Petroleum Zimbabwe (Pvt) Limited. The payment of the USD500,000 will be after a period of 10 (ten) days from the date of fuel drawdown and is on revolving basis…,.”

The second guarantee, dated 19 November 2010, read as follows:

“In consideration of Wedzera Petroleum (Pvt) Ltd…, agreeing to the submission of a guarantee for the supply of fuel products by Engen Petroleum Zimbabwe (Pvt) Ltd, we, Infrastructure Development Bank of Zimbabwe – IDBZ…, do hereby guarantee full payment of USD450,000…, being the total amount of the Bank Guarantee to Engen Petroleum Zimbabwe (Pvt) Limited. The payment of the USD450,000 will be after a period of 10 (ten) days from the date of fuel draw-down and is on revolving basis…,.”

After the guarantees had been issued, Wedzera Petroleum failed to pay the debts arising from the petroleum products which were sold to it on credit by the respondent.

On 8 March 2011, Wedzera Petroleum wrote to the respondent informing that it (Wedzera Petroleum) was experiencing negative cash flows due to the unavailability of fuel during the months of December 2010 and January 2011 and that it was aware of its indebtedness to the respondent. Wedzera Petroleum further informed the respondent that it would pay its entire indebtedness within 14 days.

Wedzera Petroleum failed to honour its indebtedness as promised.

The respondent wrote to the appellant on 15 March 2011 informing it to liquidate Wedzera Petroleum's debt in accordance with the two guarantees.

The appellant, through a letter dated 31 of March 2011, informed the respondent that upon checking its records it found that it had not issued the guarantees in favour of the respondent against any debts incurred by Wedzera Petroleum. The appellant further informed the respondent that it was unsure of the circumstances under which the purported guarantees had been drafted and issued to the respondent on behalf of Wedzera Petroleum.

Following the failure by Wedzera Petroleum to make due payment of the debt, and the repudiation of the guarantees by the appellant, the respondent issued summons against Wedzera Petroleum and the appellant for the payment of the sum of US$847,847=65.

PROCEEDINGS BEFORE THE COURT A QUO

In the court a quo, Wedzera Petroleum, in its plea, admitted its indebtedness to the respondent but denied liability as it argued that liability had passed to the appellant who undertook to settle the debt due in terms of the two guarantees.

The appellant, in its plea, denied being indebted to the respondent at all. It indicated that according to their records there was no indication that Wedzera Petroleum had applied for, or had been granted any guarantees. It further alleged that the guarantees had been generated through fraud.

At the pre-trial conference, the main issue which was referred to trial was: whether or not the appellant was liable to pay Wedzera Petroleum's debt on the basis of the two guarantees.

At the trial, Wedzera Petroleum was in default. The court a quo, upon application from the respondent, granted default judgment against Wedzera Petroleum in favour of the respondent for the sum of US$847,847=65 together with costs of suit and interest at the prescribed rate.

The trial proceeded against the appellant.

In analysing closing submissions made by counsel, the court a quo noted that the appellant's counsel sought to introduce a new argument which had not been pleaded.

The argument was based on the fact that the appellant was a statutory corporation which derived its powers from the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] and that the provisions of the Companies Act [Chapter 24:03] (“the Companies Act”), which codified the Turquand Rule, could not be applied against the appellant in terms of section 30 of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14].

The court held that in spite of the provisions of section 30 of the Infrastructure Development Bank of Zimbabwe Act (IDBZ Act) which made the appellant immune to the provisions of the Companies Act, the actions of Francis Mugwara fell squarely within the scope of the presumptions of ostensible authority.

The court found that Francis Mugwara held a senior position in the Bank; that he had subordinate staff under him; he had access to and used the appellant's stationery. He was the Head of the Short Term Loans Unit which Unit had, amongst others, a mandate to issue guarantees.

The court further found that Francis Mugwara's job description empowered him: “…, to generate, manage and control the Bank's short-term lending portfolio as well as [to] supervis[e]…, Regional Offices.”

Further, that his key duties included decision making authority, authority to approve departmental expenses and the budgets for the Unit and the Regional Offices.

The court found that the onus was on the appellant to prove that Francis Mugwara did not have any form of authority to facilitate guarantees and to prove any form of fraud and bribery on his part.

The court found the appellant liable to the respondent for the guarantees which were issued by Francis Mugwara in respect of Wedzera Petroleums's indebtedness. The appellant was thus ordered to pay the respondent the sum of US$847,847=65, or the remaining amount after payment was made by Wedzera Petroleum, together with costs of suit and interest at the prescribed rate from the date of the granting of the judgment to the date of payment.

PROCEEDINGS ON APPEAL

Aggrieved by the findings of the court a quo the appellant noted this appeal on the basis of the following grounds of appeal:

(i) Having found, as it did, that there was no conclusive evidence to establish that one Francis Mugwara had authority to issue the two guarantees relied upon by the respondent on his single signature, the court a quo erred in law in placing a further negative onus of proof on the appellant to establish that one Francis Mugwara had no such authority.

(ii) Having found, as it did, that there was no conclusive evidence to establish that one Francis Mugwara had authority to issue the two guarantees relied upon by the respondent on his single signature, the court a quo erred and misdirected itself on the facts, and in law, in finding, as it did, that Francis Mugwara had actual and/or implied authority to issue the two guarantees relied upon by the respondent in its cause of action.

(iii) The court a quo erred and misdirected itself in law in finding the appellant liable to the respondent on the basis of ostensible authority when such was not pleaded by the respondent in the Summons and Declaration.

(iv) The court a quo grossly erred and misdirected itself on the facts in finding, as it did, or must be taken to have done that the appellant represented to third parties, in particular to the respondent, that one Francis Mugwara had authority to issue the guarantees relied upon by the respondent in its cause of action.

(v) The court a quo erred in law in failing to find that the two guarantees relied upon by the respondent were fraudulently procured and thereafter tendered to the respondent by Wedzera Petroleum (Private) Limited, and, as such, no liability could flow from such fraudulent instruments.

(vi) The court a quo erred on the facts and in law in finding, as it did, that the respondent had acted diligently in accepting the two guarantees tendered to it by Wedzera Petroleum (Private) Limited in the absence, inter alia, of any facility between the appellant and Wedzera Petroleum (Pvt) Ltd.

(vii) The court a quo erred on the facts and in law in failing to find that the conduct of Francis Mugwara, in purporting to issue the two guarantees in the absence, inter alia, of any facility agreement between the appellant and Wedzera Petroleum (Pvt) Ltd and/or the respondent not only offended the internal processes of the appellant but also the procedure set out in the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14]. Consequently, the court a quo ought to have found that his conduct was a legal nullity and no liability attached to the appellant.

(viii) The court a quo erred in law in effectively finding the appellant liable on the two guarantees on the basis of the Turquand Rule when the application of such rule is specifically ousted by the provisions of section 30 of the Infrastructure Development Bank of Zimbabwe Act.

In my view, it is apparent from the appellant's grounds of appeal that three issues arise for determination. These are the following:

A. Whether or not the court a quo erred in finding that Francis Mugwara had authority to issue the two guarantees relied upon by the respondent.

B. Whether or not the court a quo erred in finding the appellant liable to pay the respondent on the basis of ostensible authority.

C. Whether or not the appellant was liable to pay the respondent on the basis of the Turquand Rule when such was never pleaded by the respondent in its summons and declaration.

I will proceed to deal with each of these issues.

Whether or not the court a quo erred in finding that Francis Mugwara had authority to issue the two guarantees relied upon by the respondent

The appellant argued that Francis Mugwara's contract of employment did not give him authority to act on behalf of the Bank. It also submitted that the court a quo erred in its factual findings to the effect that he had implied authority to act on behalf of the appellant.

In order to fully understand the authority Francis Mugwara possessed there is need to make reference to his key duties in the Bank.

Francis Mugwara held the title of the 'Head of Short Term Loans'. Under this title, he was the second in charge after the office of the Director of Private Sector Projects as shown from the organogram of the Short Term Loans Unit. A summary of Francis Magwara's job was stated as:

“To generate, manage, and control the Bank's short term lending portfolio as well as supervision of Regional Offices.”

Among his key tasks was “marketing of Bank products to achieve bankable portfolio of clients, disbursements of funds on approved facilities, and making presentations to the Private Sector Projects Committee (PSPC) on projects for approval.”

In addition, Francis Mugwara's job description had an incidental clause on error of judgment and the consequences which would affect the Bank if the Head of Short Term Loans made a wrong decision. The clause stated as follows:

“Catastrophic as bad decisions can lead to the insolvency of the Bank through the creation of a Bad Loan portfolio. Reputation of the Bank can be on the line if prompt and correct decisions are not made.”

The court made factual findings that Francis Mugwara had authority to act on behalf of the appellant. The court a quo noted the following:

“…, notwithstanding the Bank's argument that Mugwara's power might have been limited, I find that as much as between himself and the Bank, Mugwara had actual or implied authority to issue those guarantees. I find that as between Engen and the Bank, Mugwara had ostensible authority to issue the guarantee and to bind the Bank to third party recipients.”

A clear reading of Francis Mugwara's key tasks shows that he worked under a Unit which controlled the manner in which guarantees were issued. He was the senior personnel in the Bank as he was second in command from the Director of the Unit. He had access and control of the appellant's stationery to an extent that he had business cards to identify himself. He had the task of marketing Bank products and disbursements of funds on approved loan facilities.

The court a quo found that on these factual findings the key tasks done by Francis Mugwara were enough evidence to show that he had authority to act on behalf of the appellant.

The court a quo also took into account that although criminal proceedings were instituted against Francis Mugwara by the appellant, on the basis of fraud and bribery, the office of the Prosecutor General refused to prosecute the matter on the basis that it was a labour matter. That, in any event, the appellant had failed to provide adequate evidence to sustain a conviction.

The court a quo, in determining the impact of the criminal charges laid against Francis Mugwara, found that the onus to prove fraud and bribery was on the appellant and that the prosecutor had failed to prove that Francis Mugwara had been fraudulent or had received any bribe.

The proof to be proffered by the appellant for fraud and bribery in casu would be proof on a balance of probabilities as the fraud and bribery were being alleged in a civil trial after the criminal charges had failed to materialise.

Proof in civil proceedings is always on a balance of probabilities.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC), the court stated the following:

“…, in a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims.

In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

Francis Mugwara, having admitted that he issued the guarantees and having alleged that he did so lawfully, it was for the appellant to prove all the allegations laid against him of fraud and bribery.

The appellant did not adduce any proof to the contrary, but, rather, stood on the argument that he had no authority to individually sign a guarantee.

The appellant produced sample guarantees which it alleged were lawfully facilitated for other parties. These sample guarantees were juxtaposed with the guarantees which Francis Mugwara had facilitated and affixed a single signature instead of two signatures as appeared on the sample guarantees. The appellant argued that the fact that the guarantees issued on behalf of Wedzera Petroleum were not counter-signed meant that the guarantees were fake and invalid.

Sample guarantees produced before the court a quo showed that Francis Mugwara would countersign a guarantee with other personnel of the Bank. It is of importance to note, however, that such other personnel would be junior personnel and Francis Mugwara would counter sign to give effect to the validity of the guarantee facilitated by his subordinates.

It thus could not have been extensively irregular that on the two guarantees made in favour of the respondent Francis Mugwara signed the guarantees with no other counter signature as he was the head of the Unit from which such guarantees originated.

The arguments raised by the appellant, that absence of a second signature rendered the guarantees ineffective, thus lacks merit.

The appellant did not adduce any evidence to show that the facilitation of the guarantee was not carried out in-house. The appellant's witnesses could have brought the register for credit facilities issued by the Bank to show that no entry was ever made in favour of Wedzera Petroleum to the respondent.

Francis Mugwara vehemently denied that he had not followed proper procedures in processing the guarantees and stated that records of the guarantees were with the appellant.

In examination in chief, Francis Mugwara admitted to having recorded the guarantees in the Bank's register. The court a quo, in assessing these facts, found that:

“The evidence on whether or not Mugwara could issue guarantees on his single signature was inconclusive. Mugwara said he could. The Bank said he could not. The onus was on the Bank to prove that he could not. It did not refute, satisfactorily, Mugwara's claim that it was only guarantees initiated by subordinates that required to be counter-signed for validity. I find that the Bank failed to discharge the onus on such a key aspect of defence.”

In finding that Francis Mugwara had authority to act on behalf of the appellant, the court a quo made reference to the incidental clause in his job description document. A reading of the clause shows that Francis Mugwara, as the Head of Short Term Loans, had to take due diligence and not make an error of judgment as such error in creating a bad loan portfolio would have catastrophic consequences which could lead the appellant to insolvency.

This clause, in itself, crystalizes the point that he had authority to act on behalf of the appellant in a manner which could extend to issuing guarantees. Only a senior officer of the Bank could possess authority to act on its behalf to an extent where an error of judgment would lead to catastrophic results.

It is a settled principle that this Court will not easily interfere with factual findings made by a lower court unless the findings are grossly unreasonable. See ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S); Hama v NRZ 1996 (1) ZLR 664 (S); Reserve Bank of Zimbabwe v Corrine Granger and Another SC34-01.

The lower court enjoys the opportunity to see the witnesses on the stand, assess their demeanour and credibility. Such findings of fact cannot easily be interfered with by an Appellate Court as it is limited to the record of proceedings. See Mtimukulu v Nkiwane and Another SC136-01.

It is my view that the court a quo's factual findings cannot be impugned.

Francis Mugwara was a senior employee who could carry out credit facilitation and represent the appellant.

All the above findings lead to the inescapable conclusion that the court a quo's factual findings were correct.

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

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

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

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

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

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

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

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

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

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

The document was signed by the respondent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. The Labour Court misdirected itself by coming to the conclusion that the rules of natural justice were violated in that the chairman of the disciplinary committee was both the chairman and the only witness.

3. The Labour Court misdirected itself by disposing of the matter on a technicality when it was possible for it to dispose of the same on the merits on the available evidence.

4. The Labour Court misdirected itself by finding that there was a real risk of bias in the findings of the disciplinary committee.

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

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

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

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

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

This, in my view, was a misdirection.

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

The question that necessarily arises at this stage is how the misdirection should be corrected.

The appellant has suggested that, since the facts are common cause and all that needs to be done is to determine whether, on the facts, waiver was established, this Court should itself determine the matter since all that is involved is the construction of a contract.

Unfortunately, this branch of the law is not as clear as the appellant would seem to suggest.

The position is now settled that it is not permissible for an Appellate Court to interfere with the discretionary power vested in a lower court unless it is shown that the lower court had committed such an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision – the Civil Practice of the Supreme Court of South Africa by HERBSTEIN & Van WINSEN, 4ed…,.

In the case of Johnsen v AFC 1995 (1) ZLR 65 (S)…, GUBBAY CJ further clarified the position when he remarked as follows…,:

“…, clearly, a distinction was drawn between the position of an Appellate Court where, on the one hand, the court of first instance had not exercised a judicial discretion at all, and, on the other, where it had exercised the discretion - but wrongly.

In the latter occurrence, the Appellate Court is not inhibited from setting aside the original discretion. It must examine, anew, the relevant facts and circumstances in order to exercise a discretion itself by way of review, which may uphold, reverse or vary, the order made by the court below.

In re J (an infant) 1981 (2) SA 330 (Z) at 335D-E, I ventured to state the principle, as I understood it, thus:

'If the (primary) court erred in the exercise of its discretion, and as all the facts relevant thereto are undisputed, this Court is now free to exercise its own discretion…,. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it makes mistakes of fact, if it does not take into account some material 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 doing so.'”

In Johnsen v AFC 1995 (1) ZLR 65 (S) the appellant had sought an order declaring, inter alia, that the AFC was not entitled to recover any amount claimed to be due in respect of an escalation of expense, however caused, of the equipment for the purchase of which the loans were granted.

The learned Judge who heard the application was of the view that this was not a proper case for the grant of a declaratory order because;

(a) Firstly, what was sought was a legal opinion from the Court;

(b) Secondly, that such relief, if granted, would not bring litigation between the parties to finality; and

(c) Thirdly, that there was an alternative remedy by way of an interdict.

This Court rejected that finding and came to the conclusion that the omission of the court a quo to have regard to the terms of the agreement of loan as a factor to be weighed in the exercise of its judicial discretion constituted a misdirection. This Court remarked…,:

“In my view, the failure by the court a quo to construe the agreement of loan caused it to overlook that a declarator, though not necessarily ending all litigation over the issue of liability between these parties, nonetheless would have achieved finality on the applicability of the summary execution procedures….,.”

This Court then decided to exercise its judicial discretion since the same materials that were before the court a quo were also before it.

The position was also aptly summarized by STEGMANN J in Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd & Anor 1989 (4) SA 31…, when he stated:

“1. There is no rule of law to the effect that in every appeal against the exercise of any discretionary power vested in court of first instance the Court of Appeal has no jurisdiction to interfere with the decision appealed against unless such decision is shown to have been un-judicial in one of the respects mentioned in Ex parte Neethling and Others 1951 (4) SA 331 (A) at 335D-E.

2. In an appeal against the exercise of a discretionary power by a court of first instance, the first task of the Court of Appeal is to examine the nature of the discretionary power, and to decide whether it belongs to the category of discretionary powers contemplated by the decision in Ex parte Neethling and Others.

3. If the power is found to belong to such category, the Court of Appeal has no jurisdiction to interfere with the exercise of the power decided on by the court of first instance unless such decision is shown to have been unjudicial in one of the respects mentioned in Ex parte Neethling and Others, ie that such decision was capricious; that it was based on a wrong principle; that it was not reached by unbiased judgment; or that it was not based on substantial reasons.

4. If the discretionary power is not found to belong to such category, the Court of Appeal must decide to what category it does belong.

One possibility is that it may be found to belong to the same category as the discretionary power in Mahomed v Kazi's Agencies (Pty) Ltd and Others 1949 (1) SA 1162 (N).

5. If the power is found to belong to the last-mentioned category, the function of the Court of Appeal is to hear all such arguments as may be addressed on the basis of the record before it, and to give due consideration to the decision of the court of first instance.

6. In some cases, it may be possible to conclude that the exercise of the discretionary power by the court below was 'wrong' in some sense other than the sense of 'un-judicial' contemplated by Ex parte Neethling and Others.

However, discretionary powers being what they are, there is usually no objective criterion according to which the exercise of such power can be judged to be 'right' or 'wrong'. The criteria according to which it may be judged to be 'judicial' or 'unjudicial' are dealt with in Ex parte Neethling and Others.

However, there are always criteria according to which the exercise of a discretionary power may be judged to be 'appropriate' or 'in-appropriate'. Such criteria depend upon the circumstances of the particular case. In the very nature of things, therefore, when the subject matter of an appeal is the exercise of a discretionary power of the kind referred to in para 5 above, the Court of Appeal is not bound to uphold the decision of the court below unless satisfied that such decision was 'wrong'.

7. In an appeal against the exercise of such a discretionary power, the function of the Court of Appeal is to consider whether, in the light of all relevant factors, the exercise of the power by the court of first instance was appropriate to the circumstances of the particular case. If it was, the appeal must fail. If it was not, the Court of Appeal must exercise the discretion anew, and must substitute its own discretion for the discretion of the court below.”

I am satisfied that the authorities referred to above correctly reflect the law on this aspect.

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

The Court completely ignored the issue of waiver raised and proceeded to determine the matter on the basis of procedural impropriety. There was a failure by the court a quo to appreciate that the question of waiver could finally determine the issues between the parties, depending on the interpretation that would be given to the agreement reached between the two sides.

The contents of the agreement are not in dispute.

In these circumstances, I am satisfied that no purpose would be served by remitting this matter to the court a quo for it to place an interpretation on the contents of the agreement entered into between the two parties. Since the contents of the agreement are common cause, the only issue that arises is whether the facts establish waiver.

It has never been suggested that the document was the result of duress, mistake or undue influence.

I hold the view, therefore, that this Court can properly determine the issue without the need to remit the matter to the court a quo.

The issue that arises as a result of the conclusion I have reached above is whether the respondent waived any rights he may have had to take this matter either on appeal or review.

That question necessarily raises the question: What is waiver?

“When one of the parties, by his words, actions or inaction, has evinced an intention not to enforce one or more or all of his rights under the contract we select whichever word seems most appropriate from a list which includes abandonment, acquiescence, release, renunciation, surrender and waiver. Of these words by far the most commonly used is waiver, which is regarded in many of the cases as interchangeable with any of the other words…,.” – See R H CHRISTIE, The Law of Contract in South Africa, 3ed…,.

The law is also settled that there is a presumption against waiver and that it must be clearly proved that the person who is alleged to have waived his rights knew what those rights were.

The respondent in this case was fully aware of the dispute between him and the appellant. He had filed a notice of appeal with the Labour Court seeking the review of the disciplinary proceedings. About four days after doing so he then signed the document, part of the subject of this appeal. In that document he acknowledges receipt of a sum of money in full and final settlement of any claims he may have had against the appellant. In the document he further confirms that his acceptance of the amount determines, finally, his claim and that he has no future or retrospective claims against the appellant of any nature whatsoever.

Clearly, the respondent accepted payment of a sum of money in full and final settlement of any claims he may have had against the appellant. That meant that, as at that date, he had waived any right of action he may have had to challenge his dismissal.

Having entered into this agreement, he no longer had any rights to pursue. His decision to proceed with the appeal thereafter can only be described as dishonest.

I am satisfied, in all the circumstances, that the respondent waived any rights he may have had against the appellant who was his employer. The appellant's submission in this regard must therefore succeed.

In the light of the above conclusion, it becomes unnecessary to consider and determine the other grounds of appeal raised. The appeal must therefore succeed.

It is accordingly ordered as follows:

1. The appeal is allowed with costs.

2. The judgment of the Labour Court is set aside and in its place the following is substituted:

“The appeal is dismissed with costs.”

SC01-13 : PAUL GARY FRIENDSHIP vs CARGO CARRIERS LIMITED and ACROSS ENTERPRISES (PVT) LTD
Ruled By: ZIYAMBI JA

It is now settled that an Appellate Court will not interfere with the exercise of its discretionary power by a lower court unless it is shown that the lower court committed such an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision. Halwick ...

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 20 February 2019 which granted summary judgment in favour of the respondent for the eviction of the appellant, and all those claiming occupation through her, from Stand No.3437 Highfield Township, Harare (“the property”) after dismissing the appellant's application for condonation of the late filing of heads of arguments in opposition to the summary judgment application.

The facts of the matter are these;

The respondent's father, Marimo Masawi Madzima, died at Marondera in 1985. He was the registered owner of the property. Following his death, the respondent was appointed heir to, as well as executor of, the estate. In 2001 the respondent engaged the law firm of Karuwa and Associates with instructions to dispose of the property. In due course, and entirely without the authority and consent of the respondent, that law firm sold the property to the appellant.

The appellant took transfer of the property and held title by Deed of Transfer No.1948/2007.

The respondent was aggrieved. He instituted an action in the court a quo against the appellant and others under case number HC2120/07, inter alia, for the cancellation of the sale and the return of the property to its rightful owner.

Although the action was contested, the respondent was successful.

By judgment delivered on 23 May 2012, being HH221-12, the court a quo found that the transfer to the appellant had been fraudulent and that the owner of the property was entitled to vindicate his title against any other person in possession of the property. The order which was issued included an award of costs on the legal practitioner and client scale against the law practice of Karuwa and Associates.

As the appellant remained in occupation of the property notwithstanding the judgment of the court a quo referred to above, which was only appealed against by Karuwa and Associates in respect of the award of costs, the respondent instituted action proceedings for eviction under case number HC1025/18.

The action was opposed by the appellant whose only discernible defence was that the judgment of the court a quo, in terms of which her claim was dismissed, had been taken on appeal to this Court under case number SC211/18.

As it turned out, that was an appeal lodged by Karuwa and Associates against only a part of the judgment “that granted costs” against the law firm and nothing else.

The respondent was understandably un-impressed, and, believing that the appellant did not have a bona fide defence, and that appearance to defend had been entered for dilatory purposes only, made an application for summary judgment.

Although the appellant still opposed to the application, maintaining that no relief could be afforded the respondent by summary judgment, her legal practitioners failed to file heads of argument within the time allowed by the Rules of Court. She was therefore automatically barred in terms of Rule 238(2b) of the High Court Rules, 1971.

The appellant did not file a formal application for the upliftment of the bar.

Instead, counsel for the appellant still proceeded to file heads of argument out of time in which she sought to lead evidence from the Bar on the reasons for failure to timeously file the heads of argument.

At the hearing before the court a quo, an application for condonation of the late filing of the heads of argument was then made on behalf of the appellant - from the Bar.

The application was dismissed and the court a quo proceeded to determine the summary judgment application on the merits unopposed.

It granted the application.

The appellant was not happy with that turn of events. She has noted an appeal on the following grounds;

1. The court a quo erred in dismissing the application for condonation thereby unprocedurally hearing the matter unopposed.

2. The court a quo misdirected itself in finding that the appellant did not satisfy the requirements for condonation.

3. The court a quo erred in finding that the appellant did not have a bona fide defence to the application for vindication.

4. The court a quo erred in finding that the respondent had made a case for summary judgment.

While the appellant has listed four appeal grounds, they are clearly repetitive. Only two issues have to be determined in this appeal. They are:

(a) Whether the court a quo erred in dismissing the appellant's application for condonation and the upliftment of the bar; and

(b) Whether the court a quo erred in granting summary judgment....,.

On the merits of the appeal...,., I shall first consider the issue whether the court a quo erred in dismissing the appellant's application for condonation.

It is now settled that where a party has fallen foul of the provisions of the Rules, they are generally required to purge their default by seeking condonation. Where the party has not sought condonation for failure to comply with the Rules, it must give an acceptable explanation not only for the delay, but also the delay in seeking condonation.

It means that what calls for some acceptable explanation is both the failure to abide by the Rules and the failure to seek condonation. See Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…,; Maheya v Independent Africa Church 2007 (2) ZLR 319 (S)…,.

Consideration of an application for condonation involves the exercise of judicial discretion. Simply put, the court exercising a discretion is allowed the freedom, or authority, to make judgment or to act as it sees fit. In Bonneyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd and Anor SC58-18…, this Court made the point:

“Condonation is an indulgence granted when the court is satisfied that there is good and sufficient cause for condoning the non-compliance with the Rules and good and sufficient cause is established by considering, cumulatively, the extent of the delay, the explanation for that delay, and the strength of the applicant's case on appeal, or the prospects of its success.”

When calling upon the court a quo to exercise its discretion in favour of condoning the failure to file heads of argument on time, the appellant did not make a good case at all. In fact, submissions on behalf of the appellant advancing the cause for condonation were made as if condonation was a mere formality. No attempt whatsoever was made to satisfy the basic requirements for condonation.

In written heads of argument submitted in support of the oral application, counsel for the appellant admitted that the respondent's heads of argument in the court a quo were served on her on 17 September 2018 and yet the appellant's own heads of argument were filed on 29 January 2019. It was also conceded that the appellant was served with the Notice of Set Down of the application for summary judgement on 11 January 2019 - meaning that it took the appellant, even after becoming aware of the set down date of 4 February 2019, eighteen days to file the belated heads of argument.

What is more, although the appellant had about 24 days within which to make an application for condonation and the upliftment of the bar, even from the date of service of the Notice of Set Down on 11 January 2019, she did not see the wisdom to do so. Instead, she was content to prepare to make an oral application from the Bar.

This was extremely tardy and indeed irresponsible.

As it also turns out, counsel for the appellant urged the court a quo to grant condonation while at the same time submitting that the court a quo was precluded from proceeding with the hearing of the summary judgement application by an appeal noted at the Supreme Court.

The learned judge stated…,;

“At the hearing, counsel for respondent proceeded to make submissions for condonation, advanced one main (reason) that being that applicant's claim for vindication of the property remained under (challenge) in the Supreme Court in matter number SC211/18, and that the opposed motion proceeding couldn't be heard until the outcome of the appeal was forthcoming.

Counsel for applicant opposed the respondent's application for condonation, arguing, firstly, that the appeal which had been filed by the respondent challenging HUNGWE J's determination, was a challenge on costs only and not the merits, and, secondly, that the appeal had since been determined by consent…,. Accordingly, I find there is no appeal pending in the Supreme Court which would have the effect of delaying the resolution of the present matter on this opposed roll.

In the circumstances, I dismissed the application for condonation for want of merit.”

In dismissing the application for condonation as it did, the court a quo exercised discretion dealing with the matter as it deemed fit in the circumstances. It is not correct that no reasons were given for that.

An Appeal Court faced with an appeal against the exercise of judicial discretion does not have a fresh discretion as could be substituted for the one of the court below. As stated in the case of Friendship v Cargo Carriers Limited 2013 (1) ZLR 1 (S)…,:

“It is settled that an Appellate Court will not interfere with the exercise of discretionary power by a lower court unless it is shown that the lower court committed such an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision: Halwick Investments v Nyamwanza 2009 (2) ZLR 400 (S); Sedco v Chimhere 2002 (1) ZLR 424 (S); ZFC Ltd v Geza 1998 (1) ZLR 137 (S).”

In this matter, it has not been shown that the court a quo was guilty of any of the improprieties set out by the authorities in exercising its discretion by refusing to condone the failure to file heads of argument within ten days from 17 September 2018.

In truth, there was nothing to condone at all as the appellant did not even begin to make a case for condonation. It is therefore my finding that there was no misdirection in refusing to condone the appellant's failure to file heads of argument on time.

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

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

Briefly, the background to this matter is as follows:

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

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

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

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

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

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

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

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

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

ISSUE FOR DETERMINATION

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

THE LAW

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

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

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

(i) The degree of non-compliance;

(ii) The explanation therefore;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

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

(vi) The convenience to the Court; and

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

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

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

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

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

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

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

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

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

I do not agree with this proposition of the law.

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

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

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

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

The list is not exhaustive.

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

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

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

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

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

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

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

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

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

This was not done in the application a quo.

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

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

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

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

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

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

Accordingly, it is ordered as follows:

1. The appeal succeeds with costs.

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

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

Appealed
SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE
Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

This is an appeal against the whole judgment of the High Court declaring the Agreement of Sale between the appellant and the respondents valid and binding on the basis that the appellant had the requisite mental capacity to contract and granting the consequential relief of eviction of the appellant.FACTUAL BACKGROUNDPrior ...

FACTUAL BACKGROUND

Prior to 26 January 2006, the appellant had rights and interest in a property called Flat 46, Block 13 Odzi Flats, Eastlea, Harare (“the property”). She instructed Fingold Real Estate (Fingold) to sell the property on her behalf. An advertisement of the sale of the property was published in the Herald newspaper by Fingold, prompting one Abel Murape, the first respondent's father, who acted as the respondents' agent, to engage with Fingold regarding the sale.

The respondents are husband and wife.

The engagement resulted in an Agreement of Sale between the appellant and the respondents, wherein the appellant sold her rights and interest in the property to the respondents. The Agreement of Sale was reduced to writing and duly signed by the appellant and Abel Murape before the estate agent and two witnesses on 26 January 2006.

It is not in dispute that the full purchase price of ($1,950,000,000) one billion nine hundred and fifty million Zimbabwean dollars was paid in full on the date of signature of the agreement. It was paid through Fingold Real Estate, and, of that amount, the appellant withdrew fifty million ($50,000,000).

Thereafter, the appellant, together with Abel Murape, proceeded to the Ministry of Local Government and National Housing (The Ministry) for confirmation that the purchase price had been paid in full. As the property had no title deeds, the parties proceeded to the City of Harare offices to effect cession from the appellant into the respondents' names.

A few days later, on 30 January 2006, and before the respondents had taken occupation, the appellant wrote a letter to Fingold Real Estate cancelling the Agreement of Sale. The appellant indicated that the money paid towards the purchase price was of no use to her. This was done notwithstanding the fact that the appellant had already withdrawn part of the money that had been paid for the property for her own use.

The respondents, on 5 March 2006, instituted proceedings in the court a quo seeking a declaratur that the agreement entered into between the parties was valid, the eviction of the appellant from the property, and costs of suit.

The appellant resisted the claim on the basis that, at the material time that she entered into the Agreement of Sale, she did not have the requisite mental capacity to contract. She pleaded in the following terms;

“1. At the material time, the Defendant did not have the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric problems. As such, the Agreement of Sale is null and void.”

Thereafter, the matter was referred to trial.

PROCEEDINGS IN THE COURT A QUO

One of the issues for determination at trial was whether or not the appellant had capacity to enter into a valid contract.

The appellant adduced evidence from two witnesses. The first witness was one Bothwell Tawanda Chinenguo (Bothwell), son to the appellant, and, the second witness was Dr Sekai Nhiwatiwa, a medical doctor specialising in psychiatry.

Bothwell Tawanda Chinenguo gave the following evidence;

He was appointed curator ad litem of the appellant on 22 September 2016. The appellant was mentally ill and he would occasionally take her for treatment. It was because of the mental illness that the appellant left her employment around 2001. He claimed that the respondents took advantage of the appellant's mental condition in buying the property at a value below the market price as the property was sold at a time when the country was facing hyperinflation. He could not comment on the appellant's state of mind at the time of the sale as he was at a boarding school.

Dr Sekai Nhiwatiwa testified that she treated the appellant from 2005. She found that the appellant suffers from 'bipolar affective disorder' the effects of which include impairment of judgment. She stated that if a patient takes her medicine properly, she could have lucid intervals and could work as a professional such as a lawyer or a doctor. She however conceded that she could not, with certainty, state that the appellant was not lucid in January 2006 when she sold the house as she neither examined the appellant nor stayed with her. She further highlighted that the letter she had written at the time the appellant sold her property, that she was mentally incapacitated, was at the request of the appellant's son.

No medical records were availed to the court to substantiate her averments.

The respondents' case was led by two witnesses, namely, the first respondent and Abel Murape. The first respondent was not directly involved in the transaction thus he could not comment on the mental state of the appellant as the contract was concluded by his father on his and his wife's behalf.

Abel Murape, who interacted with the appellant and with whom the appellant concluded the Agreement of Sale, gave the following evidence.

The appellant did not show any signs of mental incapacitation during and after the sale. He accompanied the appellant to the Ministry of Local Government and National Housing and to the Municipal offices in order to effect transfer of the property. The appellant wanted to opt out of the contract because she had, unsuccessfully, requested a top up of the purchase price after she had withdrawn part of the money from her estate agents.

DETERMINATION OF THE COURT A QUO

The court a quo found that the appellant had failed to discharge the onus placed on her by law to prove that she did not have the requisite mental capacity to contract. The court a quo also concluded that no evidence had been led to show that the appellant exhibited signs of mental illness at the time the agreement was signed on 26 January 2006.

It further found that the evidence of the expert witness was not sufficient to prove that, at the material time, the appellant was mentally ill. Instead, her testimony was that if the appellant took her medication daily, she would be sane. She could not dispute that the appellant might have had a lucid interval at the time the Agreement of Sale was entered into.

The court a quo found as insufficient the evidence of the appellant's son who testified that the appellant was mentally ill at the time of contracting. Its reasoning was that when the property was sold, the son was away at a boarding school and could not therefore comment, with certainty, on the mental state of the appellant at the material time.

Further, it found that there was no evidence to prove that the property was undervalued at the time that it was sold. As such, the argument advanced for the appellant that the respondents took advantage of the appellant to purchase the property for a sum less than its open market value could not be sustained.

The court a quo also reasoned that the appellant was not detained at a mental institution when she signed the agreement. Additionally, no evidence was led by persons staying with, or neighbours of the appellant from the time of advertisement of the sale to the time of signing of the agreement, on her mental state.

The court believed the testimony of Abel Murape, who interacted with the appellant at the material time, that the appellant did not exhibit signs of mental illness. Thus, the court a quo found, as a matter of fact, that the appellant had the mental capacity to contract.

GROUNDS OF APPEAL

Aggrieved by this decision, the appellant noted the present appeal on the following grounds:

1. The court a quo erred and misdirected itself by failing to appreciate that the defendant lacked the requisite mental capacity to enter into an Agreement of Sale since she suffers from psychiatric illness and does not appreciate and understand the contractual obligations (sic).

2. The court a quo erred and misdirected itself on a point of law by failing to appreciate that a contract that was entered into by a person who lacked mental capacity to transact was null and void and of no force and effect.

3. The court a quo erred and misdirected itself granting an order for ejectment against the defendant and all those claiming occupation through her despite the fact that the agreement was contracted by a person who was suffering from a mental illness or incapacity at the time of contracting.

4. The court a quo erred and misdirected itself on points of law by failing to appreciate that the defendant, at the time of the contract, did not appreciate what was going on in her world of living and could not be accountable for her action whatsoever. As such, the court misdirected that by ordering that the respondents are entitled to cession of right, title and interest in Flat No.46, Block 13 Odzi Flats, Eastlea, Harare.

5. The court a quo erred and misdirected itself by ordering that the defendant shall pay costs of suit.

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted that the court a quo's misdirection was twofold;

(i) Firstly, the court acted on a wrong principle; and

(ii) Secondly, it allowed irrelevant factors to guide it in determining whether or not the appellant was compos mentis at the time of the sale.

As regards the contention that the court a quo acted on a wrong principle, counsel for the appellant contended that the court ought to have considered the appellant's medical history in determining the appellant's mental state rather than consider external manifestations exhibited by the appellant at the time of signing the Agreement of Sale. He cited Executive Hotel (Pvt) Ltd v Bennett NO 2007 (1) ZLR 343 (S) as authority for this proposition.

He submitted that the court a quo was totally unaware of the three principles set out in Executive Hotel (Pvt) Ltd v Bennett NO 2007 (1) ZLR 343 (S). Such failure was a misdirection. It erred when it ignored the evidence of the curator and the expert witness yet such evidence was sufficient for the court to determine, on a balance of probabilities, that the appellant lacked the requisite mental capacity to contract at the time of sale.

Regarding the second contention, that the court a quo considered extraneous or irrelevant factors, counsel for the appellant stated as follows;

The court erred in relying on the outward behaviour of the appellant which was misleading because it could be an expression of delusions caused by mental illness. Compos mentis is a matter of fact and the test is subjective. The court is required to determine the condition of the state of mind of the contracting party whose capacity is at issue. That the appellant approached the estate agents and caused the advertisement for the sale of the property to be published; accompanied Abel Murape to the Ministry of Local Government and National Housing, to the City of Harare offices; and that she withdrew part of the money was irrelevant in determining the appellant's state of mind.

Similarly, the evidence of the estate agent or the two witnesses who signed the Agreement of Sale, or the persons staying with or neighbours of the appellant during the relevant time could not have been decisive of the question of fact, that is, whether the appellant was mentally incapacitated.

Per contra, counsel for the respondents argued that the court a quo took into account all relevant factors, including the appellant's medical history, in determining whether the appellant was compos mentis at the time of signing the Agreement of Sale. He argued, as a matter of fact, that no medical records were availed to the court except for the letters written by Dr Nhiwatiwa at the request of the curator to the effect that the appellant was mentally incapacitated at the time she entered into the contract. These letters could not be relied on as they were influenced by the appellant's son. In one of the letters, Dr Nhiwatiwa proceeded to comment on the circumstances surrounding the signing of the Agreement of Sale, thereby exceeding her bounds.

Counsel for the respondents further submitted that Dr Nhiwatiwa's evidence was not credible in that whilst she conceded that the appellant could have lucid intervals, she did not examine the appellant at about the time the Agreement of Sale was signed. The curator's evidence also could not be relied on as he was not present at the time the Agreement of Sale was concluded. Thus, he contended that the court was correct in relying on the evidence of Abel Murape who interacted with the appellant at the time the Agreement of Sale was signed.

Counsel also asserted that in Executive Hotel (Pvt) Ltd v Bennett NO 2007 (1) ZLR 343 (S) the court took into account several factors such as evidence adduced in a meeting in which the appellant attended, the terms of the agreement itself together with the appellant's medical history. He insisted that the decision of the court a quo could not be assailed as the court analysed the witnesses' evidence carefully and correctly applied the principles set out in Executive Hotel (Pvt) Ltd v Bennett NO 2007 (1) ZLR 343 (S) to the case before it.

ISSUE FOR DETERMINATION

Although the appeal raises various grounds, only one issue arises for determination in this appeal which is whether or not the appellant had the mental capacity to contract at the material time.

THE LAW

The law relating to whether a person has the mental capacity to contract is now settled. It was succinctly captured in Executive Hotel (Pvt) Ltd v Bennett NO 2007 (1) ZLR 343 (S) where the court quoted with approval the remarks in Pheasant v Warne 1922 AD 481…, where it was held that:

“…, a court of law called upon to decide a question of contractual liability depending upon mental capacity must determine whether the person concerned was or was not, at the time, capable of managing the particular affair in question – that is to say, whether his mind was such that he could understand and appreciate the transaction into which he purported to enter.”

At p351 A-B, the court, in that case, summarised the tests to be considered in determining the existence or otherwise of compos mentis as follows:

“1. Was the state of mind of the contracting party whose capacity is at issue such that he was incapable of estimating what was or what was not a fair and beneficial bargain?;

2. Was the state of mind of the contracting party whose capacity is at issue such as would, in common honesty, not make him liable or responsible for such act or contract?; and

3. Whether the contracting party whose capacity is at issue was of such unsound mind as to be incapable of understanding and appreciating the transaction into which he purported to enter.”

The court, further down on the same page, at para C, remarked:

“Prof Christie, in his book, The Law of Contract in South Africa 3ed, commented on these three tests for determining the capacity of contracting parties and makes the following observation:

'Remembering that the fundamental question is whether there was consensus, and that a negative answer to that question has the drastic result of making the contract void ab initio, the first of three tests – inability to weigh up a bargain – seems too lenient because such inability is consistent with mere stupidity, which is not enough.

The second test, with its reference to common honesty, is a useful reminder of the policy of the law to protect the insane at the expense of other parties to contracts.

The third test accords with that laid down by INNES CJ in Pheasant v Warne 1922 AD 481 at 488:…, [quoted above]. This is the test which, with slight variations of wording, has been applied in most of the cases. But it is not exclusive of other tests….,.'”

It follows that where these requirements are absent, no consequences flow from the purported contract. This is for the reason that where capacity to contract is lacking, the resultant transaction is void for want of capacity.

Voet, as quoted in The Law of South Africa by Sir J.W. WESSELS, Vol 1, 2nd Ed…, says:

“Every act of a lunatic is null and void as having been done by a person deprived of reason.”

See also Lange v Lange 1945 AD 332…,.

It is settled law that the onus of proving that a transaction is invalid for want of mental capacity rests on the party alleging it. See Pheasant v Warne 1922 AD 481…,.

The inquiry into the mental state of a contracting party is a matter of fact to be decided by the court. See Blamire's Executrix v Milner and Wirsing 1969 NLR 39.

It is also settled law that when a subordinate court makes a finding of fact, an Appellate Court is slow to upset that finding unless that decision is grossly unreasonable. This point was underscored in ZINWA v Mwoyounotsva SC28-15 where the court had occasion to comment thus:

“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, or that the decision was clearly wrong.”

For this Court to set aside the decision of the court a quo, the appellant must demonstrate that the court a quo made such an outrageous decision that no other right-minded tribunal in the same circumstances could have made. It is not enough to merely establish that another court would have arrived at a different conclusion on the same set of facts. One must go beyond that to prove that the court making the decision had taken leave of its senses when it made the decision.

This time honoured principle of law was ably laid down in Hama v NRZ 1996 (1) ZLR 664 (S) as follows:

“In other words, the decision must have been irrational, in the sense of being outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question could have arrived at such a conclusion.”

It becomes imperative to assess the evidence and facts placed before the court a quo to determine whether or not the decision of the court a quo, that the appellant had the requisite mental capacity to contract, was irrational.

APPLICATION OF THE LAW TO THE FACTS

The court a quo found the evidence of the two witnesses led by the appellant insufficient for it to make a determination that the appellant was not compos mentis when she concluded the Agreement of Sale. This is in light of the concession by Dr Nhiwatiwa that the appellant could have lucid intervals, if she effectively managed her medication.

It is only the persons who transacted or interacted with the appellant who could have observed the appellant's behaviour at the material time to determine whether or not the appellant was mentally capable of transacting at that time.

Abel Murape who transacted with the appellant gave evidence, which the court deemed truthful, that the appellant was compos mentis at the time the agreement was signed. This evidence was uncontroverted.

The learned author Sir J.W. WESSELS, The Law of South Africa, Vol 1, 2nd Ed…, observes:

“If a person normally a lunatic does an act, the presumption is that the act is void, but, if it can be shown that he did it during a lucid interval, it will be valid.C.4.38.2; Estate Rehne v Rehne 1930 O.P.D 80.”

The court a quo's decision cannot, therefore, be faulted.

The judgment of the court a quo reflects that the learned judge was alive to the principles that ought to be applied when determining whether a party had no capacity to contract by reason of mental illness. I do not find counsel for the appellant's contention that the court overlooked the appellant's medical history persuasive. The court considered the evidence of Dr Nhiwatiwa and correctly discounted it. It is significant to note that no medical records were placed before the court to establish the medical history of the appellant, except for letters which were drawn at the request of the appellant's son. In one of the letters dated 20 January 2010 the Doctor stated the following:

“I have been looking after the above named lady for over ten years now. When she sold her house in 2006 she was psychotic and did not know what she was doing. I believe the house was sold below market value. The buyer, at some point, knew that Muchaneta was ill but proceeded with the deal anyway. If a detailed report is needed I need time to complete it.”

She conceded, during her testimony, that she did not have independent knowledge of the facts surrounding the Agreement of Sale as she neither examined the appellant nor lived with her. The court a quo cannot therefore be faulted for discounting her evidence.

Whilst medical history is vital in determining whether or not one is compos mentis at the material time of signing of the agreement, other factors surrounding the transaction must equally be considered. R H CHRISTIE, The Law of Contract in South Africa, 3ed…, puts it this way:

“Because of the nature of the enquiry it will usually be necessary to draw inferences from the evidence, including evidence of the nature of the contract and the circumstances surrounding its making.”

One such factor is the letter written by the appellant to Fingold Real Estate purportedly cancelling the Agreement of Sale.

It is common cause that the appellant authored the letter four days after the Agreement of Sale had been concluded and after she had withdrawn part of the purchase price. Its coherence cannot be overlooked. The relevant part reads as follows:

“…,. The Manager Fingold Eastate Agent

Dear Sir/Madam

Cancellation of an Agreement of Sale

I am cancelling this Agreement of Sale because the money is of no use to me. I am cancelling the sell.

Yours faithful M Chatambudza…,.

cc: Ministry of Local Govt and Housing”

It is evident that the intention to invalidate the Agreement of Sale was clearly put across. She had the mind to even copy the letter to the responsible Ministry. It boggles the mind as to how the appellant was able to write such a logical letter if she was not compos mentis.

It appears to me that the decision by the appellant to cancel the agreement was simply an afterthought, having failed to get a top-up on the purchase price.

Further, a step by step exercise of the test laid out in Executive Hotel (Pvt) Ltd v Bennett NO 2007 (1) ZLR 343 (S) will show that the appellant's case fell short of that standard.

(a) Firstly, there was nothing placed before the court a quo to suggest that the appellant had no idea of what a fair and beneficial bargain would be.

It was incumbent upon the appellant to demonstrate that she did not have the capacity to estimate what a fair and beneficial bargain would have been in the circumstances. An estimate of the market value of the property at the time it was sold and the purchase price that was paid would be one such factor that would establish the lack of capacity to fairly bargain for herself. No evidence was led to that effect.

(b) Secondly, it was not proven that the appellant's state of mind, at that time, would, in common honesty, not make her liable or responsible for such act or contract.

She had the mind to engage estate agents. She appreciated that they had to go to the relevant Ministry and other departments to effect the transfer of the property. The appellant's conduct does not justify a finding exempting her from liability. To the contrary, her conduct reasonably suggests that she was responsible for her conduct.

(c) Thirdly, there is nothing to suggest that the appellant was incapable of understanding and appreciating the transaction to which she was a party.

None of the terms of the Agreement of Sale was criticised as being unreasonable such that it can be said that the agreement was not the kind of agreement which an ordinary mentally lucid person would have concluded. As already alluded to above, she appreciated that she had to visit various offices to effect the transfer in terms of the agreement.

DISPOSITION

In the result, I find that the decision of the court a quo, that the appellant had the requisite capacity to contract, cannot be assailed. The appellant is challenging a factual finding of the court a quo. She has not demonstrated that the court a quo acted irrationally, illogically, or unreasonably.

Accordingly, the appeal has no merit and must be dismissed.

The respondents had prayed for costs on a punitive scale on the basis that there is an element of harassment of the respondents taking into account the manner in which the appellant has conducted her case from the beginning.

However, at the commencement of the hearing, counsel for the appellant advised the court that he was representing the appellant in forma pauperis.

In view of that, counsel for the respondents did not persist with the issue of costs on the punitive scale. He proposed that each party bears its own costs.

In the result, I make the following order;

“The appeal be and is hereby dismissed with each party to bear its own costs.”

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

This is an appeal against part of the judgment of the Labour Court setting aside an arbitral award in terms of which the respondent was ordered to pay the appellant the sum of US$17,500.THE BACKGROUNDThe appellant was employed by the respondent as a Secretary General. On 2 June 2012, the ...

This is an appeal against part of the judgment of the Labour Court setting aside an arbitral award in terms of which the respondent was ordered to pay the appellant the sum of US$17,500.

THE BACKGROUND

The appellant was employed by the respondent as a Secretary General. On 2 June 2012, the National Governing Council (the Council) of the respondent held a meeting in which Council members expressed concerns regarding the performance, by the appellant, of her work. As a result, it was recommended that the appellant be suspended from work pending investigations into her conduct, or, alternatively, that she be given the option to resign.

The appellant elected to resign and did so by letter dated 3 June 2012.

On the same date the resignation was acknowledged, in writing, by the respondent's Acting President. The following was set out in the letter;

“The Board resolved that in the event of you resigning, instead of a suspension with pay, that you will be entitled to all your benefits. Outlined hereunder are all your benefits; Leave days accrued; Gratuity One month's notice salary; Toyota Prado registration number ABH3278 that you have been using; Phone handset; Laptop you are currently using.”

On 6 June 2012, the Honorary Treasurer of the respondent, one Mr Gotora, who was tasked with overseeing the handover takeover process between the appellant and the new office bearer, wrote a letter to the appellant stating that the respondent was to meet the costs related to the change of ownership of the vehicle.

As a result, the appellant made a claim of US$17,500, being the residual duty payable to ZIMRA upon the disposal of the vehicle by the respondent, that is, the cost of the change of ownership.

On 2 March 2013, the Council convened a meeting to deliberate on the appellant's claim.

Mr Gotora was reprimanded for generating the communication as he had no authority to do so. It was stated that considering the level of the employee in issue, communication was to be done by either the President or the Secretary General.

On 5 March 2013, Mr Gotora wrote a letter to the Acting President and copied same to the appellant, retracting the statement that he had made regarding the respondent meeting the change of ownership costs for the motor vehicle. He also conceded that he had acted without the mandate of the Board.

Following the retraction, the appellant referred the matter to a Labour Officer claiming the sum of US$17,500 from the respondent.

Conciliation failed and the matter was referred to an arbitrator who ordered the respondent to honour the undertaking made on its behalf by the Honorary Treasurer. The arbitrator held that the Honorary Treasurer's undertaking remained valid and binding on the respondent. He referred to the case of Royal British Bank v Turquand (1856) 6 E & B 327, ER 886 and reasoned that the appellant was not supposed to know the legitimacy of the undertaking made by the Honorary Treasurer on behalf of the respondent. As such, the Honorary Treasurer bound the respondent.

Aggrieved by the arbitral award, the respondent appealed to the Labour Court.

It challenged the decision of the arbitrator on the basis that the communication in issue had been made without the approval of the Board, and that, in any event, the communication had been retracted and could not be given effect to. The respondent further argued that there was no basis for the arbitrator to rely on the letter by Mr Gotora as it could not give benefits not outlined in the initial letter by the Acting President wherein all the benefits due to the appellant had been expressly stipulated. Further to that, the practice was that employees who received such a benefit would meet their own costs of transfer.

The respondent also expressed the view that the Turquand Rule was inapplicable because the appellant knew or ought to have reasonably known that the Honorary Treasurer was not an executive member and could not make binding decisions on behalf of the respondent.

The respondent also averred that, should the amount be due, it was payable to the Commissioner or ZIMRA and not to the appellant.

The respondent also contended that the arbitrator had cast upon it an obligation cast by law on a transferee of property.

The appellant opposed the appeal.

She contended that the respondent sought to interfere with the findings of fact made by the arbitrator. She argued that the arbitrator correctly found that the undertaking was never retracted and remained valid. The appellant further contended that the undertaking to pay the transfer costs was an employment benefit, and, as such, arguments on the law of transfer or taxation were irrelevant.

DETERMINATION OF THE COURT A QUO

The court a quo found that the appellant was not entitled to the transfer costs of the motor vehicle. It held that the communication by the Honorary Treasurer could not bind the respondent. It found that the turquand rule was in-applicable and neither could it be said that Mr Gotora had ostensible authority to bind the respondent.

The court reasoned that the appellant was not some innocent third party but occupied the highest post in the respondent and was aware or ought to have been aware of the authoritative communications in the organisation.

The court further explained that even if it was to be assumed that Mr Gotora was acting under delegated authority, there was no evidence of such delegation.

In any event, Mr Gotora had also confirmed that he had made the communication without the required authority.

The court also noted that the letter of 3 June 2012, by the Acting President, which set out all the benefits the appellant was to get, made no mention of transfer costs. As such, Mr Gotora's letter could not be read to vary or supplement the package already offered to the respondent by the Board and properly transmitted to the respondent by the Acting President.

The court further held that the transfer costs were payable to the Zimbabwe Revenue Authority and not the respondent.

It also found that there was no law that precluded parties to deviate from the provisions of the Customs and Excise Act [Chapter 23:02] by paying another's transfer costs since what the law requires is that the transfer costs be paid.

The appellant, dissatisfied with the outcome, launched the present appeal based on the following grounds:

GROUNDS OF APPEAL

1. That the court a quo erred in granting the respondent's appeal as regards the award of US$17,500 and thus upsetting, without legal basis, the arbitrator's factual finding that the evidence furnished by the respondent to prove the Treasurer's lack of authority was stage-managed.

2. That the court a quo grossly erred in interfering with the arbitrators discretion to award the appellant US$17,500 as evidence placed before him showed that there was never any valid retraction on the respondent's commitment to pay the US$17,500.

3. That the court a quo grossly erred in granting the respondent's appeal with respect to award of US$17,500 as the finding by the arbitrator that the undertaking to meet the costs of transfer was validly made cannot be faulted given that the respondent accepted provisions in the letter of undertaking by the Honorary Treasurer.

4. That the court a quo grossly erred in granting the respondent's appeal with respect to the award of US$17,500 as it erroneously made a finding that the mention of ZINARA cost instead of transfer costs in the letter of retraction by the Honorary Treasurer was an error by the respondent when no such evidence of a mistake or error was alleged or argued before it by the respondent or any of the parties.

5. That the court a quo erred by making a finding that the US$17,500 should have been paid to the Zimbabwe Revenue Authority and not to the appellant when such issue was not properly before the court a quo in terms of the grounds of appeal that were before it, and, when such issue did not affect the appellant's eventual entitlement to the benefit.

SUBMISSIONS IN THIS COURT

I now turn to the arguments of the parties on the merits.

Counsel for the appellant made the following submissions;

The court a quo dealt with the matter afresh and re-assessed the evidence and made its own determination. The court a quo, in setting aside the arbitral award, upset the arbitrator's factual findings. In particular, the arbitrator's finding that the treasurer had the authority to make the communication as the treasurer's lack of authority was stage-managed. The arbitrator's finding could only be upset on the basis of gross unreasonableness. Once the arbitrator held that the turquand rule applied in the circumstances of the matter, the court a quo was not at liberty to re-hear the matter but to assess whether the factual findings of the arbitrator were grossly unreasonable. This does not feature anywhere in the judgment of the court a quo.

In considering the turquand rule, the court a quo ignored one fundamental aspect - that the employer communicated through its Honorary Treasurer. Thereafter, the organisation was silent for a year. It then retracted the offer after a meeting where the appellant did not attend. The respondent allowed the appellant to have no doubt that the transfer costs would be met by the respondent. The turquand rule was designed to protect the appellant in the circumstances. The appellant was now an outsider on the basis of her resignation. Her ability to relate to the internal mechanism had been cut.

Counsel for the respondent, on the other hand, contended that there were no factual issues which arose in the appeal before the court a quo. She argued that the full list of benefits due to the appellant were approved by the Board and communicated by the Acting President. These benefits did not include transfer costs of the motor vehicle. She also contended that the court a quo properly identified the issue for consideration as to whether the turquand rule was applicable in the circumstances of the case. Counsel for the respondent further submitted that a person in the position of the appellant could not claim the benefits of the turquand rule since the appellant knew how the respondent was run. Had the benefits been revised, the Acting President, being the person who had communicated the benefits, was the one to communicate the change in those benefits.

ISSUES FOR DETERMINATION

From the grounds of appeal, and the submissions above, two issues fall for determination and these are;

1. Whether or not the court a quo's finding that the Honorary Treasurer lacked authority to make the undertaking unduly interfered with the arbitrator's factual findings.

2. Whether the undertaking made by the treasurer is binding on the respondent by virtue of the provisions of the turquand rule.

THE LAW

It is settled law that an Appellate Court can only interfere with the findings of fact made by a lower court in exceptional circumstances.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA remarked:

“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 that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion….,.”

In Susan Rich v Jack Rich SC16-01, EBRAHIM JA cited with approval the remarks in HOFFMAN and ZEFFERT, The South African Law of Evidence, 4th ed…, that:

“There are no rules of law which define circumstances in which a finding of fact may be reversed, but, as a matter of common sense, the Appellate Court must recognize that the trial court was in some respects better situated to make such findings. In particular, the trial court was able to observe the demeanor of the witnesses, and courts of appeal are therefore very reluctant to disturb findings which depend upon credibility.

The Appeal Court has rather more latitude in criticizing the reasons which the court a quo has given for its decision.

The reasons given for accepting certain evidence may be unsatisfactory, eg. they may involve a clear non sequitur. Alternatively, it may be plain from the record that the reasons are based upon a false premise, eg. a mistake of fact, or that the trial judge has ignored some fact which is clearly relevant. Errors of this kind are generally referred to as misdirections of fact.

Where there has been no misdirection of fact by the trial court, the Appeal Court will only reverse it when it is convinced that it is wrong.”…,.

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01…, the court held that if an appeal is to be related to the facts “there must be an allegation that there has been a mis-direction on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision; and, a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

In Zvokusekwa v Bikita Rural District Council SC44-15 this Court clarified this obvious but often misunderstood position. It said;

“[20] It is correct, as submitted by the appellant, that an appeal to this Court must be based on a point of law.

What constitutes a point of law has been stated and restated in a number of decisions of this Court. See for example Muzuva v Limited Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S); Hama v NRZ 1996 (1) ZLR 664; RBZ v Granger & Anor SC34-01.

[21] It is also correct that in RBZ v Granger & Anor (supra), this Court stated that if an appeal is to be related to the facts, 'there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who has applied his mind to the facts would have arrived at such a decision. And a mis-direction of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.'

[22] In my view, the remarks made in Granger's case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.

One must, I think, be guided by the substance of the grounds of appeal and not the form.

Legal practitioners often exhibit different styles in formulating such grounds. What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.

If it is clear that an appellant is criticising a finding by an inferior court on the basis that such finding was contrary to the evidence led, or was not supported by such evidence, such a ground cannot be said to be improper merely because the words 'there has been a misdirection on the facts which is so unreasonable that no sensible person…, would have arrived at such a decision' have not been added thereto.

If it is evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to above would not render such an appeal defective. After all, there is no magic in the above stated phrase and very often the words are simply regurgitated without any issue of law being raised. See, for example the case of Sable Chemical Industries v David Peter Easterbrook SC18-10 where it was noted that the words 'erred on a question of law' are sometimes included in grounds of appeal but without any question of law actually being raised.”

See also Kukwenge v Clan Transport Co. 2001 (1) ZLR 199 (S) and Mutsuta and Another v Cagar (Pvt) Ltd 2009 (2) ZLR (S).

APPLICATION OF THE LAW TO THE FACTS

The court a quo properly identified the issue to be determined as follows:

“The issue that falls for determination in this appeal is whether the Honorary Treasurer of the appellant had ostensible authority to bind the appellant. In other words, the issue is whether the Turquand Rule applies in the circumstances of this matter.”

This was an issue of law which the court a quo dealt with based, as it is, on facts that are essentially common cause.

In light of the authorities cited above, one can conclude that failure to appreciate a fact at all or a finding of fact contrary to evidence actually presented constitutes a misdirection which warrants interference by an appellate body.

The arbitrator found that the treasurer had authority by virtue of occupation of that post; his attendance in meetings involving important decision making by the respondent; that the authority had been delegated to him by the Acting President; and that the letter of retraction was 'stage managed', as it came nine months after the initial letter, in anticipation of a civil suit.

These findings were not based on evidence presented before him but were based on suppositions.

The fact that someone occupies what he termed an important position in the organisation does not clothe that person with authority to make decisions on behalf on the organisation. No evidence was led to confirm that the Acting president had delegated his functions to the Honorary Treasurer. His finding regarding the letter of retraction is a clear indication that he did not appreciate that the respondent was run by a Board which met when the need arose.

It is my view that the arbitrator's findings, that the treasurer had authority, in light of the evidence presented before him, was a misdirection.

In making that finding, he completely ignored the fact that it was not in dispute that “all the benefits” due to the appellant upon her resignation were outlined by the Acting President in a letter dated 3 June 2012 as follows:

(i) Leave days accrued.

(ii) Gratuity.

(iii) One-month notice salary.

(iv) Toyota Prado that you have been using.

(v) Phone handset.

(vi) Laptop you are currently using.

It is apparent that the benefits did not include the costs of transfer.

It is also not in dispute that, the letter by which the Honorary Treasurer stated that the respondent was going to meet the cost relating to change of ownership of the motor vehicle awarded to her was not authorised. This emerged from the meeting of 2 March 2013. The Honorary Treasurer acknowledged that he had no authority to do so and took “full responsibility” of the mistake.

Once the statement was duly retracted, its validity and enforceability necessarily fell away.

The communication made by the Honorary Treasurer could not bind the respondent neither could it be enforced against it.

Further to that, no Board meeting was convened neither is there a resolution on record authorizing Mr Gotora to make the undertaking he made.

The subject matter of the communication being a significant financial undertaking by the respondent, it was obligatory for Mr Gotora to obtain the approval of the Board. Further to that, Mr Gotora's letter highlighted that the communication was a “follow up” on the Acting President's letter of 3 June 2013. There was no approval by the Board or the Acting President who had initially communicated to the appellant nor was there ratification after it had been made. He also rejected the established precedent, that the respondent did not pay for such costs, without any justification.

Accordingly, it is my view that the decision of the court a quo was well founded. The arbitrator's decision was a misdirection in that he made findings contrary to evidence actually presented.

WHETHER THE UNDERTAKING MADE BY THE TREASURER IS BINDING ON THE RESPONDENT BY VIRTUE OF THE PROVISIONS OF THE TURQUAND RULE

Having found that the undertaking by the Honorary Treasurer was not binding on the respondent, it is necessary to determine whether the turquand rule can aid the appellant's case.

I am of the view that it cannot.

The arbitrator invoked the principles of the turquand rule to show that the respondent was liable to pay the costs of transfer. It is also the appellant's argument that where a person is dealing with another, in fair dealing, the turquand rule should apply.

In Mills v Tanganda Tea Company Ltd HH12-13, which is almost on all fours with this case, in the following instructive dictum, it was stated…,;

“…,. I do not think that there is any basis for invoking ostensible authority in relation to Beaumont's actions. Firstly, the fact that he was the Group Chief Executive of Meikles Limited does not mean that he had the requisite ostensible authority, by virtue of that position, to negotiate and conclude severance packages on behalf of respondent. There is nothing in the papers to suggest that he normally exercised that function in that particular capacity…, the applicant was not some third party dealing with an agent or employee of the respondent. He was its Managing Director, and, given that position, I can see no justification for extending the doctrine of ostensible or apparent authority to the facts of this case.”

The turquand rule is a company law principle emanating from the old case of Royal British Bank v Turquand (1856) 6E & B327. Simply put, the rule states that where a person conducts the affairs of the company in a manner which appears to be perfectly consonant with the Articles of Association, those so dealing with him, externally, are not to be affected by irregularities which may exist in the internal management of the company.

The turquand rule was aptly captured in the case of Victoria Falls Steam Train Co (Pvt) Ltd v Wankie Colliery Co Ltd HH03-04, where the court stated the following:

“The rule in Royal British Bank v Turquand (1856) 6E & B327, 119 ER 886, which prevents a corporation from relying on non-compliance with its internal procedures to avoid contractual liabilities towards a third party, applies only where the third party was a genuine outsider acting in good faith, and where the transaction was carried out in good faith and was a legitimate one within the powers of the corporation though lacking completeness in terms of the corporation's internal arrangements.

The rule does not apply in cases where there has been a forgery, nor should it apply in the analogous case where the transaction has been carried out in deliberate violation of the internal procedures of the corporation.”…,.

H.S CILLIERS and M.L BENADE in their book Company Law, Practitioner's edition…, state the rationale behind the rule as put across in Royal British Bank v Turquand (1856) 6E & B327 as follows:

“For third parties, it is an impossible task to investigate all the internal proceedings of a company in order to ascertain whether someone, who could potentially be a representative in terms of the Articles, in fact had the necessary authority. He would not find any prohibition of the relevant act - an authority to act subject to compliance with certain formalities but nevertheless a clear authority.”

The turquand rule has since been codified in our company law as section 12 of the Companies Act [Chapter 24:03] which provides that:

“12. Presumption of Regularity

Any person having dealings with a company or with someone deriving title from a company shall be entitled to make the following assumptions, and the company and anyone deriving authority title from it shall be estopped from denying their truth;

(a) That the company's internal regulations have been complied with;

(b)…,.

(c) That every person whom the company, acting through its members in general meeting or through its board of directors or its manager or secretary, represents to be an officer or agent of the company, has been duly appointed and has authority to exercise the functions customarily exercised by an officer or agent of the kind concerned;

(d)…,.

(e)…,.

Provided that -

(i)…,.

(ii) A person shall not be entitled to make such assumptions if he has actual knowledge to the contrary or if he reasonably ought to know the contrary.

(iii)…,.”

From the above cited authorities, it is clear that the turquand rule is meant to protect genuine outsiders who deal with a company in good faith, and where the transaction was carried out in good faith and was a legitimate one within the powers of the corporation.

In casu, the appellant was clearly not some third party dealing with an agent or employee of the respondent but occupied the highest post in the respondent as its Secretary General.

As at 6 June 2012, the appellant was still an employee given that her contract terminated on 8 June 2012. She knew how the respondent was run. She had the letter from the Acting President outlining all the benefits approved by the Board. She could not have assumed, and had no basis, for assuming that the Board had met again inside the two days to revise the benefits as already offered. Even if it did, the revision would have been communicated by the person who communicated the benefits to her in the first place.

In any event, in her position as Secretary General, she must have known that any decision in that regard would require a Board resolution from the respondent authorising the Honorary Treasurer to generate the communication to her.

Further to that, the rule does not operate where the transaction has been carried out in deliberate violation of the internal procedures of the corporation.

What can be derived from the papers filed of record is that the communication was carried out in breach of the internal procedures of the corporation in that, the Honorary Treasurer had no mandate to generate such communication, which role was the preserve of the Acting President or the Secretary General pursuant to a Board meeting.

By virtue of this, the binding nature of the communication fell away.

What further militates against the application of the rule is the fact that the Secretary General had actual knowledge, or was reasonably expected to know, that the internal procedures of the company had not been met. This is so because having worked for the respondent for a period of eleven years, the appellant was well aware of how the internal procedures of the respondent were carried out. It therefore follows that, due to the fact that the Honorary Treasurer had not been given the mandate to make the communication, there is no justification for the application of the turquand rule.

I also associate myself with the court a quo's decision that there is no basis for invoking ostensible authority in relation to the Honorary Treasurer's actions.

(a) Firstly, the fact that he was the Honorary Treasurer did not confer him with the requisite ostensible authority, by virtue of that position, to make an offer for the payment of the transfer costs on behalf of the respondent without the mandate from the Board to do so.

(b) Secondly, there is also nothing on the papers to suggest that he normally exercised that function in that particular capacity. See Mills v Tanganda Tea Company Ltd HH12-13.

In light of the above, the court a quo cannot be faulted for holding that the appellant was not entitled to the transfer costs as the Honorary Treasurer's undertaking did not bind the respondent. It had no legal effect.

Neither the turquand rule nor the principle of ostensible authority aid the appellant's case.

The appellant has failed to establish a basis for interfering with the decision reached by the court a quo. The appeal must fail.

Both parties prayed for costs but the respondent put a rider that “to the extent that the appeal is indubitably vexatious, the court is at large to consider an award of costs on the higher scale.”

The appeal cannot be described as indubitably vexatious. There is therefore no basis for awarding costs on a higher scale.

In the result, l make the following order:

The appeal be and is hereby dismissed with costs.

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

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

BACKGROUND FACTS

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

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

PROCEEDINGS IN THE COURT A QUO

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

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

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

GROUNDS OF APPEAL

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

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

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

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

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

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant made the following submissions;

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

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

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

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

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

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

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

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

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

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

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

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

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

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

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

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

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

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

ISSUES

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

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

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

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

The trial was long-drawn and judgment was only rendered on 22 September 2016. The appellant did not seek to amend the period indicated in paragraph 9 of his Declaration. The offer to pay maintenance for one year, from December 2009, was, consequently, overtaken by events.

THE LAW

The law is settled that an Appellate Court can interfere with factual findings of a lower court in very limited circumstances.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA remarked:

“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 that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion….,.”

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01…, the court held that if an appeal is to be related to the facts “there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. And a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

As regards the quantum in maintenance matters, the approach to be adopted, on appeal, was laid out in Mentz v Simpson 1990 (4) SA 455 where HEFER JA held that the approach should be along the lines adopted in compensation cases as indicated in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 where WATERMEYER JA stated…, that:

“…, a Court of Appeal should not interfere unless there is some striking disparity between its estimate of the damages and that of the trial court, and, further, unless there is some unusual degree of certainty in its mind that the estimate of the trial court is wrong.”

The position of the law, regarding post divorce maintenance, and the duration, is now well established in our law. In Chiomba v Chiomba 1992 2 ZLR 197 the following is captured in the headnote;

“Marriage can no longer be seen as providing a woman a bread ticket for life. A marriage certificate is not a guarantee of maintenance after the marriage has been dissolved. Elderly women who have been married for a long time and are too old to now go out and earn a living and are unlikely to re-marry will require permanent maintenance.”

APPLYING THE LAW TO THE FACTS

The starting point in such matters, where the lower court would have given a decision within its discretion, is to look at the power of this court on appeal. As clearly comes out from the above authorities, this Court cannot interfere with factual findings made by the trial Court except;

(a) On the basis of irrationality.

(b) Where the trial court reaches a decision which is not supported by the evidence.

(c) Where the finding is patently wrong.

The question, therefore, is whether the findings of fact made by the court a quo can be interfered with on any of the bases set out above.

The court a quo made the following factual findings;

“The facts found proved are;

1. The plaintiff is currently maintaining the defendant at US$3,000 per month.

2. He earned an average of US$12,923=81 per month in 2015 and an average of US$10,868 per month between January and March this year.

3. That salary is well able to maintain him and the defendant at US$3,000 each per month.

4. It leaves him a balance of between US$2,868 to US$4,913 per month from which he can save for the future.

5. His current means therefore enables him to continue maintaining the defendant at US$3,000 as he is currently doing. He has been able to do so, and more, since their separation.

6. The defendant is not the type of spouse who should be weaned off from her former husband on divorce. Her medical condition qualifies her for maintenance till death or when she remarries or cohabits with another man.

7. That the defendant's father's estate is still to be wound up. If the defendant's means improves from what she will get from it the plaintiff can seek variation.

8. The plaintiff's fear, that his means may come down and make him unable to maintain the defendant at US$3,000 per month, is not a bar to his maintaining her at that rate till the arrival of that eventuality, which would entitled him to seek variation of the Maintenance Order.

9. Their son has acquired his first degree and is currently staying with the defendant. This increases the defendant's expenses. The possibility of his going for further education does not presently dis-entitle the defendant from the maintenance she seeks. If those changes come they can only be relevant in an application. This also applies to the possibility of the plaintiff having to pay fees for their son's further studies.”

It then concluded as follows:-

“I am therefore satisfied that, on the present facts, the plaintiff is well able to maintain the defendant at US$3,000 per month. He has been doing so and his means enables him to do so.”

I turn to deal with the two issues that arise before this Court.

QUANTUM

Counsel for the appellant's argument was that the court a quo found, without a basis, that an award of US$3,000 was a reasonable monthly award. In doing that it committed many cardinal sins which he listed as set out below;

(a) It made an award in the absence of evidence showing her monthly requirements and how they answer to the US$3,000 awarded.

(b) It failed to factor in the respondent's income from Zvishavane.

(c) It did not consider the net effect of the award in that it left the respondent with an income of $3,800 as against that of the appellant in the sum of $700.

The court a quo reasoned that the appellant, in his evidence-in-chief, stated that he could probably afford US$3,000 per month although he could not say for how long he will be able to sustain that amount. He did not put in issue the aspect of the respondent's schedule of expenses despite the question being put to him by his counsel.

It is the figure of US$3,000 that he kept toying around with throughout the proceedings.

He also told the court that his own expenses were about US$3,000 per month.

It must be noted that due to the long drawn nature of the proceedings, the appellant successfully applied to re-open his case. This was to enable him to lead further evidence regarding his dwindling income.

Despite leading that evidence, he still confirmed, under cross-examination, that, at that moment, he could afford to pay the respondent the sum of US$3,000 per month and make provision for his own expenses in the same amount and still have an amount left over for savings.

In arriving at its decision, the court a quo looked at all the above and the appellant's average income of US$12,923=81 per month in 2012 and US$10,686 per month between January and March 2016. It went further to analyse the figures and concluded that, after paying US$3,000 to the respondent and to himself, he would remain with a balance of between US$2,686 and US$4,913 per month which he could save for the future.

I find no misdirection in the court's reasoning.

The appellant himself did not place emphasis on the absence of the schedule of expenses. His main concern was whether he could be able to pay the figure of US$3,000 per month in future in view of his dwindling income and whether he would remain with some savings for the future.

These factors were taken into account by the court a quo in arriving at the quantum it awarded.

THE ZVISHAVANE PROPERTIES

The court a quo had this say on the above issue;

“That the defendant's father's estate is still to be wound up. If the defendant's means improves from what she will get from it the plaintiff can seek variation.”

Counsel for the appellant submitted that the court asked itself the wrong question. It ought to have asked itself whether, as at the date of the trial, and subsequent thereto, the respondent was receiving income from the Zvishavane properties. He opined that what can happen in the future is immaterial. In ignoring the reality of that income from the estate, the court a quo hopelessly misdirected itself.

I am persuaded by the submission by counsel for the respondent that there was no misdirection by the court in finding that the estate of the respondent's father had not been wound up.

It would have been speculative on the part of the court to rely on the existence or otherwise of income from that estate at that stage.

In any event, the court made a finding that the evidence led from an investigator hired by the appellant was not conclusive. This was not challenged on appeal.

The court could not have been expected to take into account evidence from a report it had adjudged inconclusive.

ADULTERY

The court a quo was attacked on the basis that it failed to consider that the respondent had committed adultery which had not been condoned. Counsel for the appellant relied on section 10 of the Maintenance Act [Chapter 5:09] which provides as follows:-

“Where a spouse is proved to have committed adultery before or after the making of an order and such adultery has not been condoned, the Maintenance Court may refuse to make an order for maintenance in favour of such spouse or may discharge an order for maintenance made in favour of such spouse.”

I find merit in the submission, by counsel for the respondent, that, whilst the appellant expected the court a quo to deal with the issue, and, consequently, this court, he never pleaded that such alleged marital misconduct be used against her in his pleadings. Doing so would have been inconsistent with his prayer which offered post-divorce maintenance until the respondent remarried or cohabitated with another man.

LUMP SUM PAYMENT OF $200,000

Counsel for the appellant submitted that the judgment of the court a quo was irregular in that it ignored the lump sum payment made to the respondent in fixing the quantum of maintenance and its duration.

Again, as submitted by counsel for the respondent, this does not arise from the proceedings.

When the parties agreed on the distribution of the proceeds of the matrimonial home, they did not agree that that aspect was to be taken into account in the maintenance dispute.

DURATION

Counsel for the appellant attacked the court's findings that the respondent was incapacitated from working on the basis of her medical condition. He submitted that the court relied on a medical report prepared by a Dr Gunning which report was signed on 25 October 2015 - after the appellant had testified. It did not, at any rate, claim that the respondent could not work.

Per contra, counsel for the respondent submitted that the appellant's case, on appeal, is certainly different from his case in the court a quo.

In his declaration, he tendered maintenance until such time as the respondent cohabited with another man or remarried, whichever occurred sooner. The appellant, in his prayer before this court, now seeks an order for payment for a period of five (5) years reckoned from the date of the order of this Court. No amendment to the declaration was sought and granted.

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

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

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

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

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

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

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

The appellant is therefore bound by his pleadings wherein he offered to pay maintenance until such time as the respondent remarries or cohabites with another man.

This is the order that the court a quo granted.

In any event, even going by the appellant's own version, he still would not have succeeded on appeal.

The court did not solely rely on the report by Dr Gunning. It also took into account that the appellant, on his evidence, accepted that the respondent was of ill-health and that condition caused her to stop working during their marriage. It then concluded:-

“A spouse who may, if in good health, be expected to work and earn his or her own money and support himself/herself is entitled to maintenance if the evidence placed before the court establishes that his or her condition does not permit him/her to do so. His or her condition entitles him or her to permanent maintenance which, according to MANYARARA JA in the case of Chiomba v Chiomba 1992 (2) ZLR 198, is reserved for an elderly spouse who is too old to work. A spouse who is too ill to work is, like the spouse who is too old to work, entitled to permanent maintenance.”

From the above, it is clear that the court was alive to the legal principles to be taken into account in post-divorce maintenance claims despite the unjustified attack by the appellant that the judgment was contrary to the law.

The reasoning of the court is supported by evidence presented before it. Its findings of fact cannot be described as irrational.

In view of the above, the appeal has no merit and must be dismissed.

The respondent prayed for costs on a higher scale on the basis that the appellant sought to re-argue his case on appeal. This prayer was not persisted with in submissions before this court. Costs will be awarded on the ordinary scale.

In the result, I make the following order;

The appeal is dismissed with costs.

Appealed
SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

This is an appeal against the judgment of the High Court which dismissed the appellant's application for a declaratory order in terms of section 14 of the High Court Act [Chapter 7:06] on the basis that the appellant lacked the requisite locus standi and had no legal right to protect.FACTSThe ...

FACTS

The first respondent is the executor testamentary to the estate late Sushila Natverial Naik (“Sushila”). The estate, through the deceased, had a lease agreement which was concluded sometime in 2000, in terms which it leased Stand number 107 Salisbury Township (herein after referred to as “the property”) to Gold Pack Investment. The property was to be used as a flea market for the sale of furniture as well as office use.

The property was sold to the third respondent in September 2016.

The fourth respondent then took over the lease agreement from Gold Pack Investment as the new lessee.

In the court a quo the appellant averred that he was a sub-tenant to the property and that it was in that capacity that he was seeking a declaratur in terms of section 14 of the High Court Act.

The declaratory order sought was to the effect that the appointment of the first respondent as executor had no legal effect as he was not qualified to be appointed as such, much less to be issued with Letters of Administration in respect of the estate. The appellant further sought an order directing the fifth respondent to revoke the Letters of Administration appointing the first respondent as the executor and declaring the transfer of the property to the third respondent, to be null and void.

In support of his quest for the declaratory order the appellant, in the court a quo, submitted that for one to be appointed executor testamentary, one had to file an application with the office of the fifth respondent, while resident in Zimbabwe. Further, that as the first respondent had not complied with this requirement, it was not within the fifth respondent's power to appoint him executor in terms of section 24(2) of the Administration of Estates Act [Chapter 6:01] (“the Act”). The appellant, in addition, submitted that by virtue of that section, the first respondent could not validly be appointed executor testamentary as he had not been to Zimbabwe subsequent to the registration of the deceased's Will.

Consequently, the appellant submitted, the fifth respondent had no power to authorize the sale of the property in question to the third respondent.

As will become clear later on in this judgment, nothing turns on these submissions of the appellant, whether true or not.

The first to third respondents opposed the application and raised two points in limine;

(i) The first point related to the appellant's locus standi.

They queried the capacity in which the appellant, who was neither a relative of the deceased nor a beneficiary in the estate, was seeking a declaratory order invalidating the appointment of the executor testamentary. The respondents argued, further, that the appellant had no direct or substantial interest in the order that he sought as he was an illegal sub tenant to the property in question.

They also averred that the appellant had no right to be on the property since both the original lease agreement in favour of Gold Pack Investment and the one in favour of the fourth respondent prohibited any sub-letting of the property.

It was in view of this circumstance that all illegal subtenants, including the appellant, were duly issued with a notice of intention to sell the property to the third respondent in November 2015.

(ii) The respondents asserted, as regards the second point in limine, that the appellant, by filing an application rather than issuing summons against the respondents, had adopted the wrong procedure.

They submitted that there were material disputes of fact not capable of resolution on the papers before the court.

The respondents further asserted that the application was in effect one for a review disguised as an application for a declaratur since it sought to impugn the procedural steps that the fifth respondent took to appoint the first respondent.

The second respondent also submitted that despite the first respondent not being in Zimbabwe, he was nevertheless empowered to act on his behalf as executor testamentary since the Administration of Estates Act conferred power:-

(i) On the fifth respondent, to grant Letters of Administration but not deliver them until the executor testamentary has accepted domicilium citandi in Zimbabwe; and

(ii) On the first respondent, as the executor, to appoint, through a power of attorney, another person in Zimbabwe with full power to act for him.

As these requirements were fully met, the second respondent submitted, the sale of the property in question, to the third respondent, was valid and binding and the third respondent, as the registered owner of the property, had the right to evict anyone from it.

The court a quo held that the appellant had failed to show that he was an interested party, a condition precedent to the filing of an application for a declaratory order in terms of section 14 of the High Court Act [Chapter 7:06].

It found that the appellant had no direct or substantial interest in the administration of the estate of the late Sushila Natverial Naik, and, therefore, lacked the requisite locus standi to seek the declaratur in question.

The court found, further, that the appellant was an illegal subtenant who had brought the application for a declaratur in order to foil his threatened eviction from the property.

It noted, in addition, that the appellant was given to abusing court process and ignoring the directions of the court. Accordingly, the court a quo dismissed the application with costs on an attorney and client scale.

Dissatisfied with the judgment of the court a quo, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in law and misdirected itself in holding that the appellant had no locus standi when the appellant had proven a direct and substantial interest in the administration of the estate of the late Sushila Natverial Naik.

2. The court a quo erred and misdirected itself in awarding costs on an attorney and client scale against the appellant when the circumstances of the case did not justify costs that are punitive in nature.

These grounds of appeal, I find, aptly capture the issues that arise for determination in casu. I will consider them seriatim.

1. Whether or not the appellant had locus standi to file a declaratory order in respect of the administration of the estate of the late Sushila Natverial Naik

Before this Court, it was the appellant's contention that the second respondent illegally represented the estate of the late Sushila Natverial Naik, and that, accordingly, he illegally sold and transferred the property to the third respondent. Ultimately, he submitted that the first respondent's appointment, as the executor testamentary of the estate, was a nullity.

He further contended that he was in peaceful occupation of the property as a subtenant through the fourth respondent, by virtue of clause 1.2 of the lease agreement.

He also took the view that his locus standi arose from the fact that any person aggrieved by the appointment of an executor can approach the courts for a remedy. He wished for the estate to be lawfully wound up, a circumstance that, in his view, would enable the decision of whether or not his threatened eviction was lawful.

Counsel for the third respondent, to the contrary, contended that the appellant was an illegal subtenant and had no locus standi, nor did he have any existing, future, or contingent right in the estate of the late Sushila Natverial Naik to protect. He was neither a beneficiary, an heir, or a creditor, and, accordingly, had no legal entitlement in the administration of the deceased estate in question. That being the case, counsel argued, the application fell short of the requirements of section 14 of the High Court Act.

The appellant's application for a declaratur, in the court a quo, was made in terms of section 14 of the High Court Act [Chapter 7:06] which states as follows:-

“The High Court may, in its discretion, at the instance of any interested person, enquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

Implicit from a reading of the provision is that a declaratur is sought by a person with an interest in the subject matter of the dispute, inquiring or seeking a determination of an existing, future, or contingent right.

In Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S) GUBBAY CJ had occasion to consider when a declaratur should be granted. The learned Chief Justice remarked as follows…,:-

“The condition precedent to the grant of a declaratory order, under section 14 of the High Court of Zimbabwe Act 1981, is that the applicant must be an 'interested person', in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court.

The interest must concern an existing, future, or contingent right.

The court will not decide abstract, academic, or hypothetical questions unrelated thereto. But, the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction.”

See also Family Benefit Friendly Society v Commissioner for Inland Revenue and Anor 1995 (4) SA 120 (T).

On the basis of this authority, before a court can exercise its discretion to grant a declaratur, it must satisfy itself that the person seeking such relief has a real interest in the matter and that there is an existing, contingent, or future right to protect.

CILLIERS AC, LOOTS C and NEL HC in their book HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts of South Africa (5th edn, Juta and Co. Ltd, Cape Town 2009) state as follows in this regard…,:

“It is a trite principle of the common law that an applicant seeking a declaratur must have a direct interest in the right to which the order will relate. The right must attach to the applicant and not be a declaration of someone else's right.

It is essential for a prospective litigant to have the necessary locus standi in law when commencing proceedings…,. This requires that a litigant should be both endowed with the necessary capacity to sue, and have a legally recognised interest in the relevant action to seek relief.”

It is common cause that the dispute between the parties arises from the administration of a deceased estate and the property thereunder.

The condition precedent is therefore that the appellant must be an interested person in the sense of having direct and substantial interest in the subject matter of the litigation; in casu, the property or the administration of the estate as a whole, which interest could be prejudicially affected by a court's judgment.

The nature of the right that an applicant for a declaratur seeks to protect must clearly be articulated. This was stressed in Electrical Contractors' Association (South Africa) and Another v Building Industries Federation (South Africa) (2) 1980 (2) SA 516 (T)…, in the following words:-

“A person seeking a declaration of rights must set forth his contention as to what the alleged right is. See O'Neill v Kruger's Executrix and Others 1906 TS 342 at 344-5; Smit v Roussow and Ors 1913 CPD 436 at 441).”…,.

The appellant contended that the law allows any person aggrieved by the appointment of an executor to approach courts seeking the nullification of the appointment. He submitted that, as a sub-tenant at the property in question, he was within his rights to seek nullification of the first respondent's appointment as the executor testamentary.

This he said despite conceding that there was no sub-lease agreement between him and the fourth respondent.

It will be recalled that the lease agreement entered into between the deceased and Gold Pack Investment was taken over by the fourth respondent. The appellant took the view that, by virtue of clause 1:2 of the lease agreement, which stated that the property under lease was to be used as flea markets, subletting was inferred.

Clause 8 of the agreement, however, states as follows:-

“The Lessee shall -

8.2 Shall not allow use of the property by any person other than the Lessee…,.

8.9 The lessee shall not sub-let the whole or any part of the property without the written consent of the lessor and if the lessor consents to the sub-letting of the whole or any part of the property the Lessee shall remain liable to the Lessor for all its obligations in terms of this Lease notwithstanding such subletting.”

Clause 8, whose sub-clauses are worded in peremptory terms, clearly forbade sub letting of the property without the written consent of the landlord, that is, the deceased or her estate initially, and, later, the third respondent.

It follows that any other clause in the lease agreement that could have been read and understood to suggest that sub-letting was permitted had to be read in conjunction with clause 8 thereof.

The court finds no merit in the appellant's submissions.

There clearly is no basis for the submission that the provision in the agreement allowing the property to be used as a flea market was to be taken as a circumstance conferring sub-tenant rights onto the appellant or any other person. Such rights, according to the lease agreement, were only to be conferred by the lessee with the written consent of the owner of the property.

The appellant conceded that no sub-lease agreement was entered into between him and the fourth respondent. He did not produce the lessor's written consent to show that the fourth respondent was authorized to sublet the property to him. In the absence of this written consent, I find that the appellant does not have any legal right, current, contingent or future, to protect in so far as anything to do with the administration of the estate of the late Sushila Natverial Naik, is concerned.

He did not have any interest, much less substantial, in the matter, and was, therefore, not entitled to the declaratur that he attempted to secure.

As section 14 of the High Court Act makes clear, it is not any party that can seek nullification of an executor's appointment. Rather, only a party that has a real interest in the estate can do so.

Deceased estates are dealt with in accordance with the laws governing such matters. There are people or entities that are entitled to benefit from that estate, be it testate or intestate. These are the ones with a direct interest in the dissolution of the estate. In stating this, I am fortified by the decision in Katirawu v Katirawu & Ors 2007 (2) ZLR 64 (H)…, where MAKARAU JP…, remarked that:-

“While section 117(1) empowers the fifth respondent to approach the court for the removal of an executor for the listed grounds; in my view, such a power granted to the fifth respondent was not intended to take away the right of all those having an interest in the estate from approaching the court, at common law, to have the executor removed if they can establish, to the satisfaction of the court, that the continuance in office of the executor does not augur well for the future welfare of the estate and beneficiaries.”…,.

The appellant, not being a beneficiary, heir or creditor in the estate cannot, in my view, have an interest or legal right in issues regarding the dissolution and administration of that estate. A fortiori, the appellant did not have locus standi to claim the declaratur that he sought, which, in any case, did not deal with the rights, existing or future, that he had or may have had, which he sought to protect.

The discretion vested in the court, in issuing declaratory orders, only relates to substantive and not illusory legal rights and obligations.

The finding of the court, in Durban City Council v Association of Building Societies 1942 AD 27, to the effect that the interest of a party must be a real one, not merely abstract intellectual interest, is apposite to the circumstances in casu.

Even if the appellant had shown a valid sub-lease agreement with the lessee concerned, it is highly unlikely that he would have had the locus standi to challenge the appointment of the executor testamentary in the estate of the owner of the property in question. That appointment had no direct bearing on his supposed rights as a subtenant.

Against this background, the court a quo was, in my view, correct in finding that the appellant's intention in futilely seeking the declaratur in question was to resist eviction or postpone the day of reckoning in that respect.

He has, in short, failed to prove a case for interference, by this Court, of the exercise by the court a quo of its discretion in refusing to grant such declaratur.

Clearly, granting the relief that he sought would have been tantamount to the court sanctioning an illegality. In the result, I find that the first ground of appeal is devoid of any merit. It is dismissed.

2. Whether or not costs on an attorney-client scale were justified in the circumstances

The appellant correctly contends that courts do not lightly order punitive costs against a litigant unless it is clear that such litigant exhibited a lack of seriousness in pursuing his or her case.

He himself, he contended, was fully genuine in his quest for the declaratur sought. Accordingly, he charged, the court a quo erred in ordering punitive costs against him.

Counsel for the third respondent, to the contrary, submitted that the court a quo properly exercised its discretion by awarding costs on a higher scale. This was particularly so in view of the fact that it was not the first time the court a quo was being called upon to make a determination on the same facts and between the same parties. Reference was made to an extant judgment under HH384-17 where CHAREWA J held that the appellant was not an interested party and had no locus standi to seek participation in or review of any matter relating to the administration of the estate of the late Sushila Natverial Naik.

It is settled law that costs are at the discretion of the court. The award can only be set aside where the discretion was not exercised judiciously.

It is also settled that costs on a higher scale are granted in exceptional circumstances.

The grounds upon which the court would be justified to make an award for costs on a legal practitioner and client scale include dishonest or malicious conduct, and vexatious, reckless or frivolous proceedings by and on the part of the litigant concerned.

In justifying the award of costs on a higher scale, the court a quo reasoned that the appellant, not being an interested party in the administration of the estate, had no basis for bringing the application before the court as he lacked the requisite locus standi to do so. The court a quo further took the view that the appellant was clearly abusing court process by frustrating the administration of the deceased estate. The court also indicated that there was an extant Magistrates' Court order for the eviction of the fourth respondent and all those claiming occupation through it, which, in this case, included the appellant as a supposed sub-tenant through the fourth respondent. Another order, still extant, was obtained in the case of Newton Elliot Dongo v Bobnik Investments (Pvt) Ltd & Anor HH384-17. In that case, the court dismissed the appellant's urgent application for a stay of execution related to an order for his eviction from the same premises.

Mahembe v Matombo 2003 (1) ZLR 148 (H) where the court made reference to RUBIN L, Law of Costs in South Africa, Juta & Co (1949), the High Court dismissed the application on the basis of lack of both urgency and locus standi.

Lastly, the court found that the appellant was bent on abusing court process in situations where he ignored directions from the court.

An abuse of court process attracts punitive costs. This was stated in Karengwa v Mpofu HB56-15 where it was held that:-

“On the issue of costs, the court is generally reluctant to award costs on an attorney and client scale against a self-actor. In exceptional circumstances, however, where there is a clear abuse of court process the court is inclined, in such event, to order costs against a self actor on a punitive scale. The awarding of costs is at the discretion of the court.”

On the basis of this authority, and given his conduct as outlined, I find that the court a quo did not misdirect itself, but judiciously exercised its discretion in ordering costs on a higher scale against the appellant. Accordingly, I find that the second ground of appeal is without merit. It is also dismissed.

The appeal, as a whole, lacks merit and ought to be dismissed.

DISPOSITION

The appellant failed to establish a basis upon which this Court could interfere with the court a quo's exercise of its discretion in refusing to grant the declaratory order sought. He had no locus standi to seek such declaratur, having failed to prove any interest in the administration of the estate of the late Sushila Natverial Naik nor that he had any legal right, current, contingent or future, to protect through the medium of the said declaratur.

Costs on the higher scale were properly ordered against the appellant, given his conduct in these proceedings.

In the result, it is ordered as follows:-

“The appeal be and is hereby dismissed with costs.”

SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

On 20 December 2006 the High Court granted a decree of divorce and other ancillary relief in a divorce action in which Mr Beckford was the plaintiff and Mrs Beckford the defendant. Aggrieved by part of the Order, Mr Beckford appealed to this Court. The Notice of Appeal, in relevant part, reads as follows:

“The appellant appeals against paragraphs 2, 3, 9, 10, 12 (only insofar as it relates to the respondent), 14, 15 (insofar as the time for payment by the appellant is required), 16, 17, 18, 19 (only insofar as it imposed upon the appellant the obligation to deliver such property to the respondent at his cost), 22 and 23 of the Order given by the High Court of Zimbabwe.”...,.

The parties were married to each other in Blackpool, Lancashire, England, on 26 November 1994. Two children were born of the marriage. These are Elsbeth Bridie Beckford, born on 7 August 1996, and Theodore Hugh Beckford, born on 9 February 1999. Both children were born in the United Kingdom.

At the pre-trial conference, the issues were identified as follows –

“1. Whether it is in the best interests of the minor children that custody be awarded to (the) plaintiff or (the) defendant, or that an award of joint custody be made.

2. Dependent upon the award of custody, the quantum of maintenance payable in respect of the children.

3. What order should be made in respect of the children's schooling?

4. The quantum of maintenance payable by (the) plaintiff to (the) defendant and the period thereof.

5. What assets constitute the matrimonial estate?

6. The apportionment thereof.

7. Costs.”

After a trial which lasted eight days the learned trial Judge prepared a long judgment in which he carefully considered the issues before him. I now wish to consider those paragraphs of the order of the court a quo which are challenged on appeal, and determine whether the learned trial Judge erred in any way.

PARAGRAPH 2

In terms of this paragraph, the learned trial Judge granted the custody of the two minor children of the marriage to Mrs Beckford. In this regard, the learned Judge relied mainly on the evidence of Mrs Beckford and that of Mr Jean-Francois Desvaux de Marigny (“Mr de Marigny”), a clinical psychologist with much experience in the psychological aspects of custody of and access to minor children after divorce.

Although Mr Beckford originally sought sole custody of the two minor children, he finally sought joint custody of them. However, Mrs Beckford, who sought sole custody of the children, maintained that joint custody was a practical impossibility in this case because it would not work.

The learned Judge found that Mrs Beckford gave her evidence well and was an honest and fair witness.

In his evidence, Mr de Marigny said that although joint custody was the “first prize”, if it was a practical possibility, he did not believe that the necessary ingredients for joint custody, such as trust and the ability to communicate with each other in a mature manner, existed in this case. It was his view that Mrs Beckford was the more appropriate custodian of the two parties.

The learned Judge accepted Mr de Marigny's evidence and commented as follows at pp 38-39 of the cyclostyled judgment (judgment no. HH124-06):

“I have dealt at length on Mr Marigny's testimony because, in my view, it was delivered in a professional and impartial manner. His opinion was based on a credible methodology. He conducted in depth interviews with a wide array of collaterals, the plaintiff, the defendant, the children, and Dr Bester…,. He carried out a first class appraisal of the issues and the facts. He was alive to the thirteen criteria for custody considerations set out in McCall v McCall 1994 (3) SA 20 (C) (sic) at 204-205 and the views expressed by DE VOS J, in Krugel v Krugel 2003 (6) SA 220 (W), on joint custody. He was commissioned by the plaintiff. He conducted himself well and with dignity in the witness-box….,. I am satisfied that he told the truth. I believe his evidence in its totality.”

It is pertinent to note that, in the Heads of Argument prepared on behalf of Mr Beckford, no challenge is made to Mr de Marigny's evidence and his reports. That, in my view, supports the learned Judge's view of the manner in which Mr de Marigny gave his evidence and the substance of that evidence.

The learned Judge made adverse findings on the credibility of Mr Beckford and his two witnesses, Mr Austin and Mrs Middleton, on the issue of the custody of the minor children. Commenting on Mr Beckford's evidence, the learned Judge said…,:

“The plaintiff's conduct, after he filed for divorce, both before and after the consent order, painted him as a manipulator. He manipulated his character, his wife's character, his money, and the prevailing circumstances to his advantage. His evidence failed to convince me that the defendant was unsuitable to wear the mantle of a custodian parent.”

Mr Austin was the Managing Director of the company which operated Heritage Primary School, the school at which the two minor children were pupils. When Mr Austin was cross-examined, it emerged that Mr Beckford had provided a pavilion for the benefit of the school. It was also significant that when Mr Beckford was seeking sole custody of the children he was supported by Mr Austin, and that when he shifted his ground and sought joint custody of the children, Mr Austin similarly shifted his ground and supported him.

In the circumstances, the learned Judge concluded that Mr Austin could not escape from the criticism that he was biased in favour of Mr Beckford.

Mrs Middleton, the headmistress of Heritage Primary School, was similarly found, by the learned Judge, to have given evidence which was biased in favour of Mr Beckford. The learned Judge was of the view that Mrs Middleton had allowed herself to be “manipulated” by Mr Beckford.

It is quite clear that the learned Judge made specific findings of fact with regard to the credibility of the parties and their witnesses. As has been stated in a number of cases, an Appellate Court would not readily interfere with such findings. That is so because the advantage enjoyed by a trial court, of observing the manner and demeanour of witnesses, is very great. See Arter v Burt 1922 AD 303…,; National Employers Mutual General Insurance Association v Gany 1931 AD 187…,; and Germani v Herf and Anor 1975 (4) SA 887 (AD)…,.

It seems to me that in the present case there is no basis for interfering with the learned Judge's findings of fact on the credibility of the parties and their witnesses in respect of the custody of the minor children. There is, therefore, no basis for interfering with the order granting the custody of the two minor children to Mrs Beckford.

PARAGRAPH 3

In terms of this paragraph, the learned Judge granted to Mrs Beckford leave to remove the minor children from Zimbabwe to the United Kingdom, permanently, on or after 31 July 2007. In granting this order, the learned Judge said the following at pp 50-51 of the cyclostyled judgment:

“The defendant sought to remove the minor children, permanently, from Zimbabwe after 31 July 2007. The plaintiff, who submitted that it was premature to seek such relief, did not seriously oppose it. In her testimony, the defendant justified the need to prepare the girl for middle school in England. She demonstrated that she did not have any support system in this country. She also cited the deteriorating economic environment in this country.

In paragraph 15 of his draft order, the plaintiff postulates the possibility of either party relocating to the UK with the minor children, with the consent of this court.

It is clear to me that, at one point, the plaintiff contemplated such a move. The defendant would like to do so. She has taken into account the recommendation of the educationists and Mr de Marigny. The plaintiff has already prepared the children for relocation by showing them a house they may live in (in) the UK. That the children have lived in Zimbabwe for the greater part of their existence is not in doubt. They were both born in the UK. Indeed, after the defendant conceived the boy, the parties temporarily moved to the UK for her to be closer to both their families. Clearly, the parties have close links to the UK and have always contemplated the possibility of going back home.”

In my view, the learned Judge's reasoning is unassailable.

It was common cause that Mrs Beckford, a qualified graphic designer, did not have a work permit in respect of Zimbabwe, and could not support herself or the children in this country. The need to relocate to the United Kingdom was, therefore, obvious. Having been awarded the custody of the minor children, it followed that the children had to go with her.

PARAGRAPHS 9, 10 AND 12

These paragraphs read as follows:

“9. The plaintiff shall pay the following household and other expenses incurred in the running of 62A Steppes Road, Chisipite, Harare, direct to the suppliers thereof strictly by due date: electricity, water, rates, Tel-One telephone account, vet bills, DSTV subscriptions, insurance of house and contents, third party insurance, licensing, and reasonable maintenance and repairs costs together with the procurement and payment of 200 litres of diesel per month of the motor vehicle in the defendant's possession, security guard costs, wages of two domestic workers at the prescribed rate.

10. The plaintiff shall pay maintenance for the defendant and the children in the sum of ZW$30,000 per month (as revalued at 1 August 2006) with effect from 1 September 2005, such maintenance to be subject to review every three months by reference to the increase in the Consumer Price Index for the preceding three months produced by the Central Statistical Office.

11….,. 12. The plaintiff shall, at his cost, retain the children and the defendant on a local medical aid scheme and pay all medical and dental shortfalls incurred under such scheme, and, furthermore, the plaintiff shall be solely responsible for any emergency medical treatment the defendant and the children may require outside the country.”

Paragraph 12 was challenged by Mr Beckford only insofar as it related to Mrs Beckford.

In terms of the provisions of paragraph 14 of the order granted by the learned Judge, paragraphs 4 to 13 only applied during the period that Mrs Beckford and the children were in Zimbabwe pending their permanent relocation to the United Kingdom. Therefore, Mr Beckford's obligation to meet the expenses set out in paragraphs 9, 10 and 12 applied during that period only.

It is pertinent to note that the provisions in paragraphs 9, 10 and 12 are the same as those in paragraphs 7, 8 and 10 of the order granted by the High Court on 26 July 2005, with the consent of Mr and Mrs Beckford (“the Consent Order”), apart from the fact that in paragraph 9 of the order of the court a quo there is the additional requirement that Mr Beckford was to purchase 200 litres of diesel per month for use by Mrs Beckford.

The Consent Order regulated, inter alia, custody of, access to, and maintenance for the minor children, as well as Mrs Beckford's maintenance, until the conclusion of the divorce proceedings. In addition, the consent order provided that Mr Beckford was to vacate the matrimonial home at 62A Steppes Road, Chisipite, Harare, and that he was to continue paying all the household and other expenses incurred in the running of the matrimonial home.

In granting the orders set out in paragraphs 9, 10 and 12 the learned Judge had this to say…,:

“The defendant sought maintenance for her and the children and prayed that it be regulated in terms of paragraphs 7, 8, 9, 10 and 11 of the consent order until her departure to the UK….,. She seeks that for as long as she remains in Zimbabwe her personal maintenance should be regulated in terms similar to those found in the Consent Order.

I see no reason to discard her reasoning as it is based on a workable, tried and tested formula which has been in operation since 26 July 2005. That formula takes into account the loss in the value of our currency….,. The defendant is not able to work in this country. Throughout the greater part of her marriage she has been supported by the plaintiff. She has established the need for personal maintenance. I will thus make an order for her personal maintenance in the terms that she seeks. The plaintiff has accepted that he be bound by (the) Consent Order on the maintenance of the minor children. That concession is noted and an award along those lines will be made.

The other issues that relate to the educational, medical, and holiday needs of the children were agreed to by the parties in their respective counsels' submissions. These will be regulated, as agreed between the parties, in terms of the Consent Order of 26 July 2005.

The defendant co-joined her claim for maintenance with a prayer that the plaintiff be ordered to supply her with 200 litres of diesel every month until she relocates to the UK. The plaintiff did not seriously contest her claim in this regard. His only concern was that the cost of the diesel be incorporated into one lump sum monthly figure….,. She highlighted the agony she faces in searching for fuel and compared it with the ease with which the plaintiff manages to acquire it. She further stated that the price of fuel is always changing, hence the formulation of her claim in the manner that she did.

It seems to me that since the order of maintenance that I will make will be in terms similar to those that are found in the Consent Order, and, since the Maintenance Order and her request for fuel are for the limited duration of her stay in this country, I will accede to her prayer for the delivery of 200 litres of diesel to her every month.”

In my view, the learned Judge's reasoning is unassailable. Consequently, I cannot see any basis for interfering with paragraphs 9, 10 and 12 of the order of the court a quo.

PARAGRAPH 14

This paragraph reads as follows:

“Clauses 4 to 13 of this order shall only apply during the period that the defendant and the children remain in Zimbabwe pending their permanent relocation to the United Kingdom, and, thereafter, the plaintiff's rights of access to the minor children and the rights of the minor children and the defendant to maintenance shall be by agreement between the parties or failing which by order of a court of competent jurisdiction.”

In my view, it seems clear, from the wording of paragraphs 4 to 13 of the order, that these paragraphs were meant to be operative only during the period that Mrs Beckford and the minor children were in Zimbabwe before their permanent relocation to the United Kingdom.

Paragraph 14 merely reinforces that.

For example, in terms of paragraph 4 of the order, in respect of which there was no appeal, Mr Beckford was to vacate the matrimonial home, and Mrs Beckford and the children were to have the unfettered right to continue living in the matrimonial home.

It goes without saying that the unfettered right to live in the matrimonial home could only be exercised by Mrs Beckford, and the minor children, before their permanent relocation to the United Kingdom. By providing, in paragraph 14 of the order, that after Mrs Beckford and the minor children have permanently relocated to the United Kingdom, Mr Beckford's rights of access to the minor children, and the rights of the minor children, and Mrs Beckford, to maintenance would be by agreement, failing which by order of a court of competent jurisdiction, the learned Judge in the court a quo took into account the fact that after Mrs Beckford and the minor children have permanently relocated to the United Kingdom different considerations would apply to the issues of Mr Beckford's right of access to the children, and the rights of Mrs Beckford and the minor children to maintenance.

Once again, I find the learned Judge's reasoning unassailable. There is, therefore, no basis for interfering with paragraph 14 of the order.

PARAGRAPH 15

This paragraph reads as follows:

“Upon the permanent departure of the children and the defendant in terms of clause 3 of this order –

15.1 The house situated at 62A Steppes Road, Chisipite, Harare, or the shares in the company holding such property, shall be valued within thirty days of this order by an independent valuer to determine the likely market value of the shares or the property, and the plaintiff shall elect, within fourteen days of such a determination, whether to sell the shares or the property or to do neither.

15.1.1 If the shares (are) or the property is sold, the defendant shall receive 50% of the gross proceeds of the sale (less any assessed payment in respect of capital gains tax and the cost of the independent valuer).

15.1.2 If the plaintiff elects not to sell (the) shares or the property, he shall pay to the defendant 50% of the market value of the shares or the property within thirty days of such a determination by the valuator, whichever is the greater, as assessed by the independent valuer (less the costs of the independent valuer).

15.2 The defendant shall sell the contents of this property for their market value and the proceeds of the sale shall be divided equally between the parties.”

Mr Beckford's objection to paragraph 15 of the order was set out by his counsel…, in paragraphs 38 and 39 of his Heads of Argument, as follows:

“38. Although paragraph 15 of the order…, seems to deal with the disposal of the matrimonial property at 62A Steppes Road, Chisipite, Harare, as at the date of the permanent departure of Mrs Beckford and the children to the United Kingdom, the learned Judge directed the valuation to take place within thirty days of the order, and required Mr Beckford to make an election within fourteen days of the determination of the value as to whether to sell the shares or the property or do neither. He gave no reason for this direction, nor why (that) could not take place closer to the time of the departure of Mrs Beckford.

39. But, more importantly, the learned Judge directed, in paragraph 15.1.2…, that having made the election (in effect within forty-four days of the judgment) he then had to pay half the value of the shares or the property to Mrs Beckford within a further sixteen days if he elected then not to sell the shares or the property.

It is respectfully pointed out that this leads to the absurd position that within forty four days of the judgment, Mr Beckford must decide whether, upon the eventual departure of Mrs Beckford and the children to the United Kingdom, he is going to sell the shares or the property, and, if he made the decision at that point in time not to sell, then within a further sixteen days he must pay half the value to her, even though she continues to live in Zimbabwe and might never leave.”

In the circumstances, counsel for Mr Beckford, quite correctly in my view, submitted that in paragraph 15.1 the learned Judge should have directed that the valuation of the immovable property at 62A Steppes Road, Chisipite, Harare, or the shares in the company holding such property, was to be carried out, not within thirty days of the Order, but within thirty days of the permanent departure of Mrs Beckford and the minor children for the United Kingdom.

Counsel for Mrs Beckford, did not disagree with that submission. Paragraph 15.1 will, therefore, be amended accordingly.

PARAGRAPHS 16, 17, 18 AND 19

These paragraphs read as follows:

“16. The plaintiff shall transfer, against payment by him of the transfer costs, his rights, title and interest in the property situated at 45 Leinster Avenue, London SW14 7JW, Title Number SGL 67648, to the defendant free of any encumbrances, mortgages or other obligations duly existing or duly registered by law over the property.

17. The plaintiff shall transfer, against payment by him of the transfer costs, his rights, title and interest in the property situated at 390 Sutton Road, Sutton, SM3 9PH, Title Number SGL 637408, held under the name of Glencora Resources Limited to the defendant free of any encumbrances, mortgages or other obligations duly existing or duly registered by law over the property.

18. The defendant shall receive all the funds presently held in a Bank account in the joint names of RBM Davies and Partners, and Fladgate Fielder Solicitors, such funds being the net proceeds of the sale of the property at 265 Lonsdale Road, Barnes, London SW139QL.

19. The defendant be and is hereby awarded all the movable items that were formerly at the Lonsdale Road, Barnes, London, property and it is further directed that they shall be delivered by the plaintiff, at his cost, to such address as may be designated by her in London.”

Paragraph 19 was challenged by Mr Beckford only insofar as it imposed upon him the obligation to deliver the property to Mrs Beckford at his cost.

Thus, in terms of paragraphs 16 to 19 of the order Mrs Beckford was awarded –

(1) The immovable property at 45 Leinster Avenue, London (“the Leinster property”) free from encumbrances and mortgages;

(2) The immovable property at 390 Sutton Road, Sutton (“the Sutton property”) free from encumbrances and mortgages; and

(3) The net proceeds from the sale of the immovable property at 265 Lonsdale Road, Barnes, London, and all the movable items that were formerly at that property.

In arriving at these awards, the learned trial Judge was guided, to a great extent, by his findings of fact in respect of the credibility of Mr Beckford, on the one hand, and the credibility of Mrs Beckford on the other hand.

Commenting on the credibility of Mr Beckford on the issue of his assets, the learned trial Judge said the following…,:

“It seemed to me that the plaintiff was an evasive and dishonest witness. He simply was not prepared to disclose his assets fully. I agree with (the) observations of Mr Andersen that the plaintiff was an utter liar who manipulated the situation and avoided producing documents such as the completion statements. He appeared bent on denying the defendant her entitlement.”

On the other hand, the learned trial Judge commented as follows on the credibility of Mrs Beckford…,.:

“In my estimation, she was an honest and credible witness…,.”

It is significant that these findings were not challenged on appeal. In any event, an Appellate Court would not readily interfere with findings of fact made by a trial Judge. See, for example, Arter v Burt 1922 AD 303…,; National Employers Mutual General Insurance Association v Gany 1931 AD 187…,; and Germani v Herf and Anor 1975 (4) SA 887 (AD)…,.

In my view, there is no basis, in the present case, for interfering with the findings of fact made by the learned trial Judge on the credibility of the parties. No such basis was established by Mr Beckford.

Having rejected Mr Beckford's evidence in respect of the proprietary rights of the parties, the learned trial Judge said the following…,:

“I, however, find that the plaintiff did not disclose all his assets and income, especially after he instituted these proceedings. The consequences of his attitude are summed up in the English Court of Appeal by BUTLER-SLOSS LJ in Baker v Baker ([1995] 2 FLR 829 (CA)) at page 835, in these words:

'Mr Posnansky pointed to an utterly false case and asked us to consider why the husband was lying and what did he have to hide. If the cupboard was bare, it was in his interests to open it and display its meager contents. But, on the contrary, the husband, despite his protestations to the contrary, continued to live the life of an affluent man. I agree with the submissions from Mr Posnansky that if a court finds that the husband has lied about his means, and failed to give full and frank disclosure, it is open to the court to find that beneath the false presentation, and the reasons for it, are undisclosed assets.'

I will use this fact against him in distributing the assets that he disclosed. It is fair, just, and equitable that I award to the defendant all the money that is held in the joint account of their respective English solicitors.

I have agonized over the appropriate order to make concerning the distribution of the immovable properties that the plaintiff disclosed which are registered in England. In making the order that I have come to, I have been influenced, in great measure, by the plaintiff's failure to make full and frank disclosure, the size of the business transactions that were carried out by Coralsands and the concomitant income that must have accrued to him, the benefit that accrued to him from the disposal of 7A Granville Road to Nicky Morris, on 10 November 2005, the concerted programme that he undertook in asset stripping the matrimonial estate to his benefit and to the impoverishment of the defendant of which the registration of a charge in favour of his parents for £67,000 against 390 Sutton Common Road was part of, his financial acumen and resourcefulness, and his apparent disdain for the integrity of the legal process.

I will order that the two disclosed properties be transferred into the defendant's name while the plaintiff shall remain responsible for the discharge of all the encumbrances, such as the mortgages and restrictions registered against them.”

The issue which now arises is whether there is any basis for interfering with the proprietary awards made by the learned trial Judge in favour of Mrs Beckford in terms of paragraphs 16 to 19 of the order.

I do not think there is.

In Baker v Baker ([1995] 2 FLR 829 (CA)) OTTON LJ, who concurred with BUTLER-SLOSS LJ, who prepared the main judgment, said the following at 837:

“Accordingly, the husband cannot complain if the Judge, following authority, explored what was before him and drew inferences which may turn out to be less fortunate than they might have been had he been more frank and disclosed his affairs more fully.

Such inferences must be properly drawn and reasonable.

On appeal, it may be possible for either party to show that the inferences, or the award, were unreasonable in the sense that no Judge faced with the information before him could have drawn the inferences or awarded the figures that he did.

I am satisfied that the appellant has not succeeded in demonstrating that the figures WARD J awarded were in any regard unreasonable or unjustified.”…,.

In the present case, I am not prepared to say that no Judge could have drawn the inferences or made the awards made by the learned trial Judge. There is, therefore, no basis for interfering with the awards made.

It was submitted by counsel for Mr Beckford that the law governing the distribution of the matrimonial assets was the law of Zimbabwe, and not the law of England, and that the learned trial Judge was mistaken as to what the English Law on the distribution of matrimonial assets was.

However, this submission is at variance with the submissions made by the same counsel in the court a quo.

It was common cause in the court a quo that English Law should be applied. In fact, in his Heads of Argument in the court a quo, counsel set out what the English Law on the issue was, and made the following submission…,:

“It is respectfully submitted that if this Honourable Court decides to apply the law of England, then a 50:50 split of the value of assets shown in Exhibit 6 can be made only if this Honourable Court finds that the defendant could not have done more to create or contribute to the matrimonial estate.”

Stating the English law on the distribution of matrimonial assets, the learned trial Judge said the following…,:

“…, a spouse needs only to show that he or she could not have done more than he or she did to create or contribute to the matrimonial estate before he or she can be awarded at least a one-half share in the estate.”

In the circumstances, I am satisfied that the learned trial Judge properly applied the English Law governing the division of matrimonial assets.

PARAGRAPHS 22 AND 23

These paragraphs read as follows:

“22. The plaintiff's claim be and is hereby dismissed.

23. The plaintiff shall pay the defendant's costs of suit including any costs reserved for determination in this matter, and the qualifying fees and expenses of Mr de Marigny.”

The reasons for granting these two orders were set out by the learned trial Judge…, as follows:

“It seems to me that the two most contentious issues between the parties revolved around custody and the disclosure of matrimonial assets.

The defendant's case, on both these issues, has largely been vindicated. She has not been in employment for the past nine years and has been dependent on the plaintiff for her livelihood except for the period from April 2003 to July 2005 when she survived on the largesse of her parents and grandmother. It was also essential that she call the expert opinion of Mr de Marigny, which was invaluable to this court in the determination of the custody issue.

In my view, she is entitled to her costs of suit for both the main and counter-claims, including the qualifying expenses of Mr de Marigny.

It is for these reasons that I would dismiss the plaintiff's claim.”

In my view, the learned trial Judge's reasoning cannot be faulted. In any event, as far as the issue of the costs of suit is concerned, this is a matter within the discretion of the learned trial Judge.

In the circumstances, the following order is made –

1. Subject to paragraph 2 below, the appeal is dismissed with costs.

2. Paragraph 15.1 of the order of the court a quo is amended so that it reads as follows –

“The house situated at 62A Steppes Road, Chisipite, Harare, or the shares in the company holding such property, shall be valued within thirty days of such departure by an independent valuer to determine the likely market value of the shares or the property, and the plaintiff shall elect, within fourteen days of such a determination, whether to sell the shares or the property or to do neither.”

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

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

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

The facts of this application are common cause.

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

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

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

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

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

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

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

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

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

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

I now turn to the argument on the fourth ground.

Accepting as the correct position at law that an Appeal Court should be slow in interfering with findings of fact and the exercise of discretionary power by a lower court, counsel for the applicant submitted that this position does not hold for the Labour Court when exercising its appellate jurisdiction.

This is so, he argued, because the Labour Court is not an Appellate Court strictu sensu in that the enabling Act empowers it to hear matters brought before it on appeal, de novo. It is therefore not confined to determining the matter on the basis of the record before it but can lawfully act as a court of first instance. Further, he submitted that whilst the Labour Court has appellate jurisdiction, the Labour Act [Chapter 28.01] that grants it this jurisdiction also enjoins the court to infuse the equities of the dispute into the resolution of all matters brought before it - appeals included.

The argument by counsel for the applicant has no prospects of success on appeal.

This is so because the Supreme Court, has, in several cases, pronounced itself on the law regarding the exercise of appellate jurisdiction by the Labour Court in matters relating to penalties. This it has done notwithstanding the provisions of section 2 of the Labour Act [Chapter 28:01] which the applicant sought to rely on; see Mashonaland Turf Club v George Mutangadura 2012 (1) ZLR 183 (S); Innscor Africa (Private) Limited v L Chimoto SC06-12; Ajasi Wala v Freda Rebecca Mine SC56-16; and Tendai Tamanikwa and Another v Zimbabwe Manpower Development Fund and Another SC73-17.

BHUNU JA, writing for the court in Tendai Tamanikwa and Another v Zimbabwe Manpower Development Fund and Another SC73-17 had this to say:

“It being common cause that the respondent committed a dismissible act of misconduct, it was within the employer's discretion to terminate his employment contract. Following the exercise of that discretion, there was no proper or compelling reason advanced as to why the court a quo, or anyone else for that matter, should interfere with the exercise of that discretion. In the absence of any cogent reason for interfering with the employer's discretion, the respondent's fate was sealed.”

It was not the applicant's argument that he will seek to have this Court reconsider its decisions in the cases cited above.

In an application for leave to appeal, the judge considering the application acts as a gate-keeper. The role of the judge is to keep out appeals with no prospects of success.

It presents itself very clearly to me that an application that raises a point that has already been determined by this Court, and has been determined against the very point that the applicant seeks to argue on appeal, is one such application that should not be allowed to pass - unless the applicant shows that it intends to request the Supreme Court to reverse its earlier decision and has some prospects of success in that regard.

The applicant has not indicated an intention to request this court to reverse itself.

On the basis of the foregoing, this application cannot succeed.

Regarding costs, I see no justification for these not to follow the cause.

In the result, I make the following order:

The application is dismissed with costs.

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the decision of the Legal Practitioners' Disciplinary Tribunal handed down on 6 March 2019, ordering that the appellant's name be deleted from the register of Legal Practitioners, Notaries' Public and Conveyancers.On the day following the hearing in this matter, the court issued an order dismissing ...

This is an appeal against the decision of the Legal Practitioners' Disciplinary Tribunal handed down on 6 March 2019, ordering that the appellant's name be deleted from the register of Legal Practitioners, Notaries' Public and Conveyancers.

On the day following the hearing in this matter, the court issued an order dismissing the appeal with costs, and indicated that the reasons for the order would follow in due course. These are the reasons.

FACTUAL BACKGROUND

The respondent is a statutory body established in terms of the Legal Practitioners Act [Chapter 27:07] (the 'Act'). It is a regulator of the legal profession in Zimbabwe. The appellant is a legal practitioner duly registered with the respondent.

In 2013, the Commercial Bank of Zimbabwe Limited ('CBZ Bank') sold a certain piece of land called Stand Number 543 of the remainder of subdivision D of the Grange Township to Mr and Mrs Jambo (hereinafter referred to as 'the purchasers') for US$68,411 inclusive of value added tax (VAT). CBZ Bank appointed Messrs Muskwe and Associates ('Messrs Muskwe') as its conveyancers in the Grange Project under which Stand Number 543 fell. The appellant is the principal of Messrs Muskwe and Associates.

The purchasers secured mortgage finance from the Central Africa Building Society ('CABS Bank') in the sum of US$54,911. On 19 December 2013, through the purchasers' legal practitioners, Messrs Wintertons, the appellant received a letter of undertaking from CABS Bank for the payment of the sum of US$54,911. This amount fell short of the required total by US$9,546, which was to be paid by the purchasers. On 12 February 2014, the purchasers paid US$8,753 to CBZ Bank instead of the full balance of US$9,546. CBZ Bank sent the US$8,753 back to the purchasers, indicating it would only accept the full purchase price. After the refund, the purchasers did not transmit the money to the appellant. The latter proceeded to effect transfer and registration of the property into the names of the purchasers on 3 April 2014 under Deed of Transfer 194/2014. This was before he had received the full purchase price from CABS Bank and the purchasers. The appellant acted on the basis of the undertaking by CABS Bank to pay US$54,911 even though it fell short of the purchase price by US$9,546. On 23 April 2014 CABS Bank honoured its guarantee and paid the sum of US$54,911 into the appellant's trust account. The appellant, however, did not promptly remit the amount to CBZ Bank.

As at 9 December 2014, the purchasers had not paid the full amount required of them.

The full purchase price of US$68,411 was eventually paid into the appellant's trust account. However, it had taken the appellant two years to secure the balance from the purchasers and pay it to CBZ Bank. This process was, however, not without its own rough patches. It appears that prior to 27 January 2016 the appellant and CBZ Bank discussed the payment of the amount held in the appellant's trust account. The appellant requested a grace period of up to 31 March 2016 to effect the required payment. CBZ turned the request down. On 27 January 2016 CBZ Bank gave the appellant seven (7) days' notice to effect full payment, failing which it would register a complaint against him with the respondent. On 15 February 2016, the Bank, through its legal practitioners, wrote to the appellant indicating that consequent upon his failure to comply with the directives and the demands of the letter of 27 January 2016, it was going to register a complaint with the respondent as well as institute legal proceedings against him. Subsequently, the Bank filed a complaint with the respondent on 8 March 2016.

Before this date, the appellant made part payment of US$20,000, on 5 February 2016, leaving a balance of US$48,411. The balance was paid in instalments of US$47,000, on 29 March 2016, and US$1,411, on 22 April 2016 - both after the complaint had been registered with the respondent.

The latter then filed an application with the Legal Practitioners Disciplinary Tribunal (the Tribunal') seeking the deletion of the appellant's name from the register of legal practitioners in terms of section 28(1)(i) of the Legal Practitioners Act [Chapter 27:07]. This would, effectively, mean that the appellant would be de-registered as a legal practitioner. The respondent averred that the appellant, by his conduct, in the course of his practice as a legal practitioner, was guilty of unprofessional, dishonourable, and unworthy conduct contrary to what was expected of him in terms of the relevant provisions of the Legal Practitioners Act and related Statutory Instruments. In particular, the respondent charged that the appellant:-

“(a) Failed to pay promptly to his client, funds that had been deposited in his trust account amounting to $68,411, when the money became due and payable;

(b) Withheld payment of the funds without lawful excuse; and

(c) Failed to produce, despite demand, proof that he, at all material times, held the said funds in his trust account.”

The appellant filed a counter-statement disputing the allegations against him. However, at the hearing of the matter before the Tribunal, he pleaded guilty to all the charges against him and was duly found guilty. He thereafter proceeded to address the Tribunal in mitigation but to no avail. The Tribunal imposed the penalty of deregistration.

Aggrieved at this penalty, the appellant noted this appeal on the following grounds, that I have taken the liberty to summarise:-

1. The Disciplinary Tribunal erred and misdirected itself in taking into account, and premising its findings on irrelevant, extraneous and manufactured facts;

2. The Disciplinary Tribunal erred and misdirected itself in the outright dismissal of the appellant's mitigation, and in finding that migratory (sic) circumstances were only relevant for the purpose of making an application for re-admission to the Registrar of Legal Practitioners, Notaries Public and Conveyancers.

3. The Disciplinary Tribunal erred and misdirected itself by insisting on the ultimate penalty in the face of weighty mitigating factors pleaded by him, including his long blame-free legal career, full restitution made, and demonstrated contrition;

4. The Disciplinary Tribunal erred and misdirected itself in failing to consider the concessions made by the respondent's legal practitioner, that the facts 'squarely' before it did not warrant the ultimate penalty.

5. The Disciplinary Tribunal misdirected itself by mis-reading the facts contained in the appellant's opposing papers which clearly indicated that the full purchase was done (sic) sometime in 2015.

These grounds of appeal, in my view, raise one issue for determination, which is, whether or not the Disciplinary Tribunal erred in imposing the ultimate penalty of striking out the appellant's name from the register of Legal Practitioners, Notaries Public and Conveyancers.

The appellant avers that the Disciplinary Tribunal relied on irrelevant, extraneous and manufactured facts. It is contended, through his first ground of appeal, that the judgment of the Tribunal demonstrates that it related to another person, not the appellant. The appellant, in his heads of argument, however did not motivate this ground of appeal nor did he make any further reference to it.

Accordingly, the first ground of appeal stands abandoned and will not be considered in this judgment.

WHETHER OR NOT THE DISCIPLINARY TRIBUNAL ERRED IN IMPOSING THE ULTIMATE PENALTY OF STRIKING OUT THE APPELLANT FROM THE REGISTER OF LEGAL PRACTITIONERS

The appellant avers that the penalty imposed against him by the Tribunal, for the offences that he faced, was excessive in the circumstances. He charges that the Tribunal, in arriving at its penalty, failed to properly weigh the mitigating circumstances of the case against the aggravating factors thereof. In his view, the court over-emphasised the latter.

The respondent, to the contrary, maintains the position that the Tribunal, in imposing the penalty in question, exercised its discretion in a judicious manner and properly ordered that the appellant's name be struck out from the Register of Legal Practitioners, Notaries Public and Conveyancers.

Given that the appellant pleaded guilty to all the charges laid against him, the respondent correctly submits that the issue to be determined is whether the Tribunal was correct in finding that the appellant was not a fit and proper person to continue practising as a legal practitioner, and, therefore, imposing the penalty that it did.

The appellant effectively pleaded guilty to having mis-appropriated trust funds.

It bears mention that the amount involved, despite having ultimately been transmitted to the client, was not insignificant. A look at the relevant cases and other authorities clearly suggests that courts of law take a very serious view of the abuse of trust funds by a legal practitioner. Further, that lawyers, as a class, generally hold themselves up to very high standards of honesty, integrity, and professionalism in the discharge of their legal duties. In the case of Incorporated Law Society Transvaal v Behrman 1977 (1) SA 904 (T)…, the court unequivocally stated that a practitioner who contravened the provisions relating to his trust account was guilty of unprofessional conduct and liable to be struck off the roll or suspended from practice. The court, in Law Society, Transvaal v Matthews 1989 (4) SA 389 (T)…, expressed the same sentiments as follows:

“I deal now with the duty of an attorney in regard to trust money….,. Where trust money is paid to an attorney, it is his duty to keep it in his possession and to use it for no other purpose than that of the trust. It is inherent in such a trust that the attorney should at all times have available liquid funds in an equivalent amount. The very essence of a trust is the absence of risk. It is imperative that trust money in the possession of an attorney should be available to his client the instant it becomes payable.”…,.

Concerning the high standards that lawyers themselves have set up for themselves, this Court, in Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (SC) had this to say:

“In the first place, lawyers, as a professional class, live by their own high code of ethics and their own moral standards.

Every legal practitioner owes a duty to his colleagues to uphold those standards of the profession to which he belongs. Secondly, if legal practitioners, as a professional group, are to earn a respected position as guardians, not only of the public, but also private interest, then, every legal practitioner must live up to the principles of decency in the relationship of a trustee to the goods and monies entrusted to him by the person who has sought this protection. A legal practitioner who breaches this trust casts a shadow on the good name of the rest and also remains a danger to the unsuspecting public, unless his name is expunged from the register of legal practitioners; see, generally, in this regard, Law Society, Transvaal v Matthews 1989 (4) SA (T) at 394 B-396H.”…,.

It is therefore against the principles set out in the authorities cited above that the appellant's submissions, in impugning the 'ultimate' penalty that the Tribunal imposed on him, will be considered.

It is evident, from a reading of the judgment of the Tribunal, that it considered both the mitigating and aggravating circumstances of the case, and related to pertinent authorities, before imposing the penalty in question. The Tribunal stated as follows:-

“Turning to the sentence; in arriving at the appropriate sentence, the Tribunal takes into account the mitigating and aggravating circumstances as advanced by the respective legal practitioners.

The Tribunal takes note of the submissions by the respondent's counsel that the accused is 58 years old and was therefore 54 years old at that time of commission of the offence. He has been in practice for 33 years (29 years at the time of the commission of the offense). During this period, he has travelled the straight and narrow. He is suffering from high blood pressure and has been traumatised by the case. He paid the amount due to the complainant as far back as 2016 and there is no longer any prejudice to the complainant. The conviction should be considered as a speck on his otherwise colourless career. The respondent prayed that he be suspended from practice for a period of between 18 and 24 months wholly suspended for a period of five years on condition that he does not offend again. In addition, the Tribunal should order that the respondent does not, during the period of suspension, operate a trust account. In support of the proposed sentence, Mr Chinamora referred to The Law Society of the Cape of Good Hope v Peter 2009 (2) SA 18 (SCA), Kwazulu-Natal Law Society, Northern Provinces [2006] SCA 59 (RSA) where it was decided that the case did not warrant the ultimate sentence of de-registering the legal practitioners.

The applicant submitted, in aggravation, that the offence was a very serious one which reflects badly on the respondent's honesty and integrity and detracts from his fitness to continue practicing as a legal practitioner. The respondent's conduct has a negative impact on the integrity of the entire profession and should be visited with a befitting sanction which is de-registration. Mr Mutasa referred to the case of Chizikani v Law Society of Zimbabwe 1994 (1) ZLR 382 (SC) at 390 C-E where the apex court confirmed the decision of the Tribunal to deregister Mr Chizakini for misappropriating trust funds.

As rightly submitted by Mr Mutasa, the proper approach to be taken in arriving at an appropriate sentence is set out in the Chizikani case (supra).”

In weighing the aggravating against the mitigating circumstances argued for the parties, the Tribunal found (correctly, in my view), the following to be particularly damning of the appellant:

“(i) That the appellant's submissions in relation to his mature age, the long and unblemished career spanning 30 years in the practice of law, and professionalism during that period 'cut both ways if not sharper, in aggravation.'

(ii) That with such credentials, and being the principal of his law firm, the appellant should have been more exemplary in his conduct;

(iii) That his transgressions were 'compounded' by the fact that he proceeded to effect transfer of the property to the purchasers without securing the entire purchase price, a circumstance that jeopardised the interests of the seller, since the balance of US$54,911 was paid into his trust account well after the transfer;

(iv) That the appellant thereafter failed, and with no reason given, to remit this and the other amount paid by the purchasers to CBZ Bank, only doing so after some two years, and even then, after demand, and in instalments;

(v) That, as of 28 August, 2015, after the full purchase price was paid by CABS Bank and the purchasers, the respondent's account reflected a balance of only US$35,332=21, against the total required amount of US$68,411, which showed that he no longer had the amount in his account when payment was required;

(vi) That, in this respect, no explanation was advanced by the respondent as to what had happened to the client's funds;

(vii) That the respondent, despite pleading guilty before the Tribunal, had up to that point exhibited lack of contrition through his persistence in defending 'the indefensible until the very last minute' and;

(viii) That the amount of trust funds abused by the appellant was in no way insignificant.”

It is my view that there is little, if anything, to fault in the Tribunal's analysis of the evidence before it, nor in the manner that it weighed the mitigating factors pleaded by the appellant, against the aggravating circumstances of the case, vis a vis the appellant's conduct as a whole. I further find the reasoning of the Tribunal, as outlined above, to be unassailable. The reasoning is in tandem with the plethora of authorities in our jurisdiction and beyond (supra), that make it very clear that a lawyer who abuses a client's trust funds risks the ultimate penalty of being de-registered as a legal practitioner.

Having found that the respondent's submissions in mitigation 'overlooked the shadow' cast by his conduct on the good name and integrity of the rest of the legal profession, the Tribunal then considered the consequences of the penalty that it went on to impose on the appellant. It, in this respect, cited the following text from the headnote in Die Prokureursode van die O.V.S v Schoeman 1997 (4) SA 588 (O)…,:-

“The consequences of an order of striking off are serious and far reaching. But, the facts usually determine the punishment, and, even the making up of a deficiency in trust moneys, deep remorse, and ignorance concerning book-keeping and basic business principles are not themselves sufficient to avoid a striking off order in all cases. Those are, however, all factors in mitigation of punishment which should be placed in the scales.”…,.

In applying the above to the circumstances of the case before it, the court found that the absence of an explanation by the respondent as to what happened to his client's money, coupled with his lack of remorse, exhibited a high degree of dishonesty. It also found that his plea of guilty to all the charges levelled against him was a clear admission that he had mis-appropriated the client's funds. This conduct, the Tribunal opined, demonstrated that the appellant was not a fit and proper person to continue in the practice of law.

Before finally imposing the penalty, the tribunal was fully cognisant of the fact that it was not to be lightly imposed. It was guided in this respect by the following remarks by HOLMES J…, in Incorporated Law Society, Natal v Naunde 1959 (1) SA 2 (N)…,:-

“In matters of this sort, the Court ever seeks to blend a measure of mercy with the justice of punishment, and would readily agree, in the present case, to an adjournment, or to a suspension of the respondent instead of a striking off, if some basis for such a course could be found.

But, unhappily, the paramount factor in this case is the large amount of deficiency, and this factor overrides the element of restitution - even if made.

In the result, we are of the opinion that our duty, painfully though it may be, is plain and we grant the order sought by the Law Society for striking off of the respondent's name, leaving the matter of restitution, if made, to stand as a point in favour of the respondent, if and when he should apply for the re-instatement of his name on the roll.”

As already noted, the Tribunal in casu also found that the 'deficiency' was not inconsiderable. In the result, the Tribunal's view was that the conduct 'attracted' nothing short of the ultimate penalty, which it went on to impose. It also ordered the appellant to pay the respondent's expenses in connection with the proceedings.

I find that there is merit in the respondent's submission that the Tribunal judiciously exercised its discretion, after a proper consideration of the facts of the case and relevant authorities, in imposing the penalty that it did on the appellant. The court in Law Society of the Cape of Good Hope v C 1986 (1) SA 616 (A)…, reasoned that the exercise of the court's discretion in matters of this nature involves the weighing up of the conduct complained of against the conduct expected of an attorney, and, consequently, making a value judgment.

There is nothing, in my view, to suggest that the value judgment that the Tribunal made, against the facts and circumstances of the case before it, was flawed in any way.

It should be noted, in addition, that the discretion enjoyed by a court of first instance in relation to a penalty that it imposes in cases involving the misappropriation of trust funds by a legal practitioner, is not one that an Appeal Court may lightly interfere with…,.

The Appeal Court may only do so where it finds that the court of first instance arrived at its conclusion capriciously, exercised its discretion injudiciously, or relied upon a wrong principle of law; see Barros & Anor v Chimponda 1999 (1) ZLR 58 (S)…, where it was stated as follows:

“…,. 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 discretion in substitution, provided always (that it) has the materials for so doing.”

Taking the foregoing into account, I am satisfied that, in arriving at the penalty that it imposed, the Tribunal adopted the right approach as set out above. This was after it had properly weighed the aggravating against the mitigating circumstances of the case. The court a quo's ultimate finding, that the mitigation pleaded was outweighed by the aggravating circumstances of the case, is, in my view, not to be faulted.

DISPOSITION

In light of the foregoing, the court found that no basis had been established for interfering with the discretion exercised by the Tribunal in imposing the ultimate penalty of striking the appellant's name off the register of Legal Practitioners, Conveyancers and Notaries Public.

The appeal was accordingly devoid of merit, hence, the order made by the court dismissing the appeal with costs.

Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.BACKGROUND FACTSThe following facts are common cause;The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car ...

This is an appeal against the whole judgment of the High Court handed down on 24 September 2018 wherein it granted the first respondent's claim against the appellant.

BACKGROUND FACTS

The following facts are common cause;

The second respondent, Bernard Chiswa (“Bernard”), entered into a car hire agreement with the first respondent, Car Rental Services (Private) Limited (“Car Rental Services”), in October 2015. In terms of the agreement, he was issued with a motor vehicle, a Ford Everest, and was expected to make payments as per the vehicle hire agreement. He failed to do so until the motor vehicle was withdrawn from him.

The first respondent sought the services of the police for the second respondent to return the motor vehicle by laying criminal charges against him.

The appellant, sister to the second respondent, offered to settle the debt and the criminal charges were withdrawn. She signed an acknowledgement of debt and a payment plan. In due course, she withdrew the offer to settle the debt. The first respondent thereafter caused summons to be issued against the appellant and Bernard, jointly and severally, claiming the sum of US$13,868=90.

The appellant applied for the appointment of a curator ad litem on behalf of Bernard on the grounds that he was not of sound mind. On 17 March 2017, a provisional order was granted and a curator ad litem was appointed.

The matter was not prosecuted further.

As a result of the provisional appointment of a curator ad litem, the first respondent withdrew its claim against Bernard and proceeded against the appellant.

PROCEEDINGS BEFORE THE COURT A QUO

Car Rental Services sued the appellant, and Bernard, jointly and severally, for the payment of US13,868=90 for the rental charges due to it. The basis for the claim, in respect of Bernard, was that he had entered into an agreement with Car Rental Services for the hire of a motor vehicle and had failed to pay in terms of the agreement.

In respect of the appellant, it was averred that she had agreed “to take over the debt due by the first defendant (Bernard) and had assumed full responsibility of it which undertaking the plaintiff (Car Rental Services) agreed and accepted (sic).”

In their joint plea the appellant and Bernard disputed liability.

Bernard pleaded that he did not have the requisite mental capacity to enter into a contract. The appellant put in issue the validity of the acknowledgement of debt she signed on the basis that the initial agreement, which gave rise to the acknowledgement of debt, was void ab initio.

TWO ISSUES WERE REFERRED TO TRIAL, NAMELY:

1. Whether or not the agreement entered into between Bernard and Car Rental Services was valid.

2. Whether the obligation assumed by the appellant, in an acknowledgement of debt and payment plan, dated 2 March 2016, is valid and binding.

Regarding the first issue, the court found that the agreement of sale between Car Rental Services and Bernard was invalid for the reason that he was not compos mentis at the time he entered into the contract.

In respect of the second issue, the court a quo quoted from the declaration the basis of the appellant's liability as follows:

“The second defendant (appellant) herein agreed, on 2 March 2016, to take over the debt due by the first defendant (Bernard) and assumed full responsibility of it which undertaking the plaintiff agreed and accepted.”

The court found that the validity or otherwise of the agreement between Car Rental Services and Bernard is irrelevant.

The appellant, after being advised of how investigations proceeded in respect of mentally incapacitated persons, offered to pay the debt to avoid the incarceration of her brother.

It opined that the debtor was replaced and that it was a case of delegation. It defined delegation as a form of novation in which, by agreement between all parties concerned, a third party is introduced as a debtor in substitution of the original debtor, who is discharged. It further opined that the new agreement was not dependent on the validity of the agreement between Car Rental Services and Bernard. It, therefore, found the appellant liable and made an order that she pays the respondent the amount due in terms of that agreement.

Aggrieved by this decision, the appellant noted an appeal to this Court seeking an order reversing the decision of the court a quo.

THE APPEAL

The appellant attacks the judgment of the court a quo on the following grounds: I quote these verbatim;

“1. The Honourable court a quo erred when it found, as it did, that the second defendant was liable to the plaintiff in the sum of US$13,868=90 with interest at the rate of 3.5 percent from 1 April 2016 after having made the finding, as she did, that the agreement between the plaintiff and the first defendant was invalid due to his mental incapacity to contract.

1.1 For the stronger reason that once a finding was made that the initial agreement was null and void, the subsequent agreement, which purported to replace the non-existent agreement, was itself null and void, it being premised on a nullity.

2. The Honourable court a quo erred at law when it found, as it did, that the parties had novated the initial agreement by delegation.

2.1 For the stronger reason that novation by delegation requires agreement of all parties to the initial agreement, which the first defendant, in his mental state, could not possibly give. To that end, there was no novation to talk about.

3. The Honourable court a quo erred at law when it concluded, as it did, that the plaintiff had sued the second defendant based on the novated agreement when the summons and declaration clearly show that the defendants were sued jointly and severally with one paying the other to be absolved.

3.1 For the stronger reason that if the plaintiff was suing the second defendant based on the subsequent agreement, it would not have sued the first defendant or demanded judgment against them jointly and severally, and, more important, it would have been apparent from the pleadings.

4. The court a quo erred when it found, as it did, that the second defendant was liable for payment of anything or at all when regard is had to the fact that she unilaterally offered to pay the debt and subsequently unilaterally withdrew the offer which fact was not disputed by the plaintiff.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted as follows;

The court a quo could not competently come to the conclusion that there was a delegation. Delegation is a novation which pre-supposes that there is a pre-existing agreement which is binding - which was not the case in this matter. It found that the agreement between the respondent and Bernard was not binding. No rights or obligations could be transferred from the agreement. It could not be novated. In any event, for delegation to take place, all the parties have to agree. This could not competently take place as when the acknowledgement of debt was signed, Bernard was admitted into a mental institution. The acknowledgement of debt is a unilateral document. It cannot be an agreement which falls in the confines of delegation.

Counsel for the respondent filed extensive heads of argument where he advanced argument that there was a compromise in the circumstances of this matter. In the last paragraphs of the heads of argument, under the heading: “Whether the court order can be supported on grounds which were rejected by the trial court” he advanced argument that when the second respondent signed the Acknowledgement of Debt an expromissio occurred. He concluded by submitting that the doctrine of compromise was applicable in the circumstances of the present matter. Alternatively, the judgment of the court can be supported on the basis of expromissio.

In his submissions before this Court, he totally abandoned the argument in respect of the doctrine of compromise.

His submissions were as follows:

The appellant interposed herself as between the first and second respondents. This is where an outsider intervenes between two parties and undertakes to satisfy that which is demanded by one party from the other party. Such an undertaking is independent of the underlying obligations or issues between the parties. He relied on the authority of Baker NO vs Total South Africa (Pvt) Ltd 1990 (3) SA 159 for this proposition. It is a step through which a novation can be achieved. The one who originally owed can plead that the debt was extinguished by the interceder. This arrangement does not depend on whether the underlying agreement was valid or not.

On being engaged by the court regarding the issue of the doctrine of compromise, he conceded that there was no involvement of Bernard when the new agreement was entered into. He could not, therefore, argue, with confidence, that a proper compromise was concluded when the original debtor was not involved. He could not argue that the acknowledgement of debt was a compromise but rather that it was an expromissio.

In rebuttal, counsel for the appellant took note of the concession made that there was no compromise in the circumstances of this matter.

On the doctrine of expromissio, he relied on Black's Law Dictionary, 2nd ed, where it was defined as an act in which a creditor accepts a new debtor who becomes bound instead of the old debtor with the latter being released. It is a species of novation. The underlying agreement has to be valid. The creditor must accept the new debtor.

Nothing was advanced in this matter to show that the new debtor was accepted by the creditor. The first respondent went on to sue both the old and the new debtor jointly and severally.

ISSUE

With the argument regarding the doctrine of compromise having been abandoned, the issue for determination is whether the doctrine of expromissio applied to the circumstances of this matter.

THE LAW

An expromissio is a type of novation by which a creditor accepts a new debtor in place of a former one, who is then released; Black's Law Dictionary, 8th ed. 2004…,..

The new debtor, known as an expromissor, becomes solely liable for the original debtor's debt. Thus, an expromissio has been described as an assumption of liability for the debt of another; See Total South Africa (Pty) Limited v Bekker NO 1992 (1) SA 617.

An expromissio has the following characteristics:-

(i) It occurs with the consent of the creditor.

(ii) At the instance of the new debtor.

(iii) The effect being that the old debtor is released from the obligation.

An expromissor differs from a surety in that a surety is bound together with his principal to the creditor. See Bouvier Law Dictionary, 6th ed, CHILDS & PETERSON, Philadelphia, 1856…,. Since an expromissio is a form of novation, it is dependent on the validity of the principal agreement.

An expromissio was defined in Total South Africa (Pty) Limited v Bekker NO 1992 (1) SA 617 where the court, in contextualizing the concept of intercessio, quoted with approval the following extract from WESSELS' Law of Contract in South Africa, 2nd edition..,:

"3778. There are several ways in which a person, without being compelled to do so by law, may intervene in a contract between two parties ob maiorem creditoris securitatem. The Roman jurists called this intervention an intercessio on the part of the stranger to the contract ('per intercessionem aes alienum suscipiens' (D.14.3.19.3). 'Se medium inter debitorem et creditorem interponere' (Voet, 16.1.8)).3779.

3779. The term intercession is a convenient one to denote the intervention of one person (intercessor) in the obligation of another either by way of substituting or adding a new debtor (Nov., 4.1; C.8.40 (41).19).

3780. The stranger may either intervene by contracting with the creditor in such a way that the original debtor is completely liberated, or else he may promise the creditor to become liable for the debt, the original debtor continuing to remain bound.

In the former case, called expromissio by the glossators, there is a complete novation - the old debtor and intercessor are liable, they may either both be principally bound to the creditor or else the debtor may be principally liable, whilst the intercessor is only bound in subsidium, ie., in case the creditor cannot obtain payment from the principal debtor."…,.

An expromissio is, therefore, a form of intercessio.

Intercessio is the general act of assuming liability for another person's debt by contract with his creditor. It can either be privative or cumulative depending on the extent of intervention.

With privative intercessio, the intercessor takes upon himself an existing obligation of a debtor thereby liberating the debtor of his obligations in the principal agreement. Thereafter, the debtor can, if sued, plead that the debt was extinguished by the intercession of the third party. Such is the case of an expromissio.

While, with cumulative intercessio, the intercessor, together with the original debtor, become principally bound to the creditor as in cases of suretyship; see SMITH et AL, A Dictionary of Greek and Roman Antiquities, 1890.

Since an expromissio is a species of novation, the principles applicable to novation are apposite in determining the fate of an expromissio where the original agreement is invalid.

In Mupotola v Southern African Development Community SC07-06 ZIYAMBI JA made the following pertinent remarks regarding novation…,:

“Novation means replacing an existing obligation by a new one, the existing obligation being thereby discharged; see, The Law of Contract in South Africa, Third Ed, by R.H. CHRISTIE at p498.

The above definition pre-supposes that both the existing obligation and the new one arise out of valid contracts.

'When parties novate, they intend to replace a valid contract by another valid contract.' See Swadif (Pvt) Ltd v Dyke 1978 (1) SA 928 (A) at 940 quoted by CHRISTIE in the Law of Contract in South Africa, supra.

The starting point, therefore, in determining this issue is to consider whether the first agreement constituted a valid contract.

This being so, the first agreement was a non-event and there could be no novation of a contract which did not exist...,.”...,.

It is evident that the validity of the former obligation determines the validity of an expromissio.

In line with the reasoning adopted by the court in Mupotola v Southern African Development Community SC07-06, it would mean that the original agreement has to be valid for an enforceable expromissio to come into existence.

An expromissio cannot, therefore, stand on an invalid principal agreement.

The court, in Hamilton v Van Zyl 1983 (4) SA 379 (ECD)…, in distinguishing between novation and compromise stated:

“In pointing out the difference between novation and compromise (transactio) WESSELS on The Law of Contract in South Africa, 2nd ed. Vol. II para. 2458 states:

'There is a great similarity between transactio and novation, and, as a rule, the principles which apply to the latter apply to the former. (Voet 46.2.3).

There is, however, this difference between the two;

When parties novate they intend to replace a valid contract by another valid contract, and, if therefore the novated contract is invalid, the novating contract is, as a general rule, of no effect. If, however, a claim is made upon a contract, about the validity of which the defendant has a doubt, and a transactio follows, the defendant cannot upset the compromise on the ground that the agreement which was compromised was in fact invalid.'”…,.

Consequently, the principal agreement has to be valid for a legally enforceable expromissio to ensue. Where the initial agreement is invalid, the subsequent contract is of no force and effect.

The remarks of LORD DENNING, in MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC)…, to the effect that nothing can ensue from a nullity, apply.

ANALYSIS

The first respondent, in paragraph 36 of the Heads of Argument, sought to argue as follows:

“The undertaking by the appellant was based on the appreciation that second respondent was liable to first respondent such liability exposed the second respondent to a potential detention.

On the appellant's part, the undertaking was an overture to the first respondent to stop the process that might lead to the second respondent detention. Rather, the undertaking was made on the basis of the appellant's belief that second respondent might not survive detention in a mental institution. It was motivated by the desire to protect the second respondent; it cannot be invalidated by the same condition that motivated its being made.

What the appellant did, in her undertaking, was to independently assume an obligation for the payment of money in favour of the plaintiff. It therefore is of no consequence if the second respondent was under a mental incapacity when he took the plaintiff's vehicle in terms of the rental agreement.”

All he has succeeded in doing is clouding an otherwise very clear issue.

Once the court a quo made a finding that the agreement between the first respondent and Bernard was void, no expromissio can ensue. Expromissio is a species of novation which entails the replacing of an existing obligation by a new one.

In casu, the court a quo having found that the original agreement was void, there was no obligation in existence and therefore the appellant could not intervene or intercede in a non-existent obligation.

Further, as is clear from the summons, the second respondent was not released as a debtor by the alleged intercession by the appellant. The first respondent sued both the original debtor and the intercessor jointly and severally in terms of the original agreement and in terms of the new agreement.

In an expromissio, the debtor is liberated of his obligations in terms of the original agreement. The debt is extinguished by the intercession and he cannot, therefore, be sued on the basis of that debt. The suit against both the intercessor and the original debtor also demonstrates that the creditor, the first respondent, had not accepted the new debtor in the place of the former one.

As is clear from the above, the first respondent did not manage to establish that an expromissio ensued. He abandoned the argument regarding compromise. The appeal has merit and must succeed. There is no basis why costs should not follow the cause.

In the result, I will make the following order:

1. The appeal succeeds with costs.

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

“The plaintiff's claim be and is hereby dismissed with costs.”

SC78-20 : ADMIRE DAMANJERA vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

This is an appeal against the whole judgment of the Labour Court delivered on 14 July 2017 which dismissed with costs an appeal launched in that Court by the appellant against the decision of the respondent's Appeals Committee dated 20 July 2016.

The Appeals Committee upheld the decision of the respondent's Disciplinary and Grievance Committee which found the appellant guilty of 'deliberate misrepresentation of facts' in the declaration of assets. It dismissed the appellant from employment with effect from 31 March 2016.

BACKGROUND

The appellant was employed by the respondent as a Revenue Officer based at Beitbridge Border Post. In terms of Clause 16 of his contract of employment he was required to declare any newly acquired assets, which declaration would be verified by the respondent. A failure to declare assets or making a false declaration amounted to an act of misconduct.

Indeed, deliberate misrepresentation of facts in the declaration of assets is listed as Serious Offence number 26 under acts of misconduct carrying a maximum penalty of dismissal for a first offence in the respondent's registered Code of Conduct. The Code was registered by the Registrar of Labour Relations on 3 February 2003.

Sometime in 2015 the respondent commenced an exercise to conduct a lifestyle audit for members of staff. This was designed to fight the scourge of corruption bedevilling the organisation, creating a bad image, and undermining public confidence in the revenue collecting institution. The lifestyle audit was being undertaken by the respondent's Loss Control Division.

The appellant is one of the staff members affected by the exercise.

A Bank search resulted in the unearthing of a Stanbic Bank account in the name of the appellant in which regular deposits in varying amounts were made by different people. Between August and October 2015, twelve (12) separate deposits with a total amount of US$57,598=30 had been deposited in that account attracting the attention of Loss Control Officers. Upon being questioned about the money, the appellant gave an explanation in affidavit form.

He stated that the money constituted repayments of loans he had advanced to other people, payments for goods sold to some people, and bribes received for undervaluing certain declared goods as well as avoidance of seizure of goods as required by the respondent's procedures.

The appellant later recanted that affidavit statement insisting it had been made under duress as he was intimidated by Loss Control Officers.

Previously, on 25 October 2011, the appellant had, in accordance with his contractual obligations, completed an asset declaration form in which he declared only household effects as assets that he owned. On 11 June 2013, the appellant completed another Asset Declaration Form in which he declared a Honda CRV motor vehicle he had acquired in June 2012 and an FBC Bank account opened in 2011.

On 22 January 2014, the appellant again completed an asset declaration form in which he declared a Toyota Mark X motor vehicle acquired on 5 January 2014.

Finally, on 23 October 2015, he completed an asset declaration form which formed the basis of the misconduct charge preferred against him. In that form, the appellant repeated the declaration of the Toyota Marks X declared on 22 January 2014 and the FBC Savings account opened in August 2011 with a bank balance of $100. The bank account had also been declared previously on 11 June 2013.

As I have said, investigations by the respondent revealed that at the time the appellant made the asset declaration of 23 October 2015, he had a pre-existing Stanbic savings bank account which had an inflow of deposits. It had a balance of US$57,598=30. He had converted that account to a savings account by letter to the Bank manager dated 8 July 2015.

The appellant failed to declare that asset in the declaration form.

On 31 March 2016, the appellant was suspended from duty without pay and benefits in terms of Clause 10.1(ii) of the respondent's Code of Conduct. He was charged under the Code of Conduct, Group D, Serious Offences, Category 26; that is, deliberate misrepresentation of facts in the declaration of assets.

The Disciplinary Committee found that the appellant had indeed completed the asset declaration form in question which did not have the Stanbic account and the money declared. It found that there is no form signed by the appellant in which that asset was declared even though the account had been converted to a savings account on 8 July 2015. Accordingly, the appellant was found guilty and dismissed from employment.

The appellant appealed to the Appeals Committee which upheld the decision of the Disciplinary Committee. The Appeals Committee reiterated that the asset declaration form required employees to give a correct record of all the assets, investments, and businesses owned fully or jointly by them. The appellant had failed to do so and was therefore correctly found guilty and dismissed from employment.

Again, the appellant was aggrieved. He lodged an appeal to the court a quo on several grounds.

The essence of his appeal was that he had submitted a separate asset declaration form to the respondent's Human Resources Department in which he had declared the asset held in the Stanbic savings account. That declaration form had gone missing in that department. Both the Disciplinary and Appeals Committees had made “an unreasonable and outrageous finding of fact” that no declaration had been made because the respondent's filing system was in a state of a shambles.

The court a quo found that nothing had been advanced by the appellant justifying interference with the factual findings of the tribunal below and that the Stanbic account had not been declared by the appellant. It found that there was no basis for interference because there was nothing on record pointing to the fact that the appellant ever made a separate declaration of the Bank balance and no date of such a declaration was suggested.

In arriving at that conclusion the court a quo reasoned at p2 of the cyclostyled judgment:

“The appellant did not declare everything. The affidavit in question was made voluntarily and without any undue influence being brought to bear on the appellant. There is therefore no reason why the Bank account in question was not declared. In the result, the respondent's Appeals Committee was correct to have found that the offence against the appellant had been proved on a balance of probabilities. It upheld the dismissal.

In Barros v Chimpondah 1991 (1) ZLR 58 (S) the Supreme Court stated that a decision from a lower tribunal should only be interfered with if it is plainly wrong.

I am not able to say the decision of the Appeals Committee is 'plainly wrong'. I also find that the Appeals Committee considered all the evidence before it, before coming to its conclusion.”

Still, the appellant was not satisfied. He appealed to this Court on the grounds that follow;

GROUNDS OF APPEAL

Three grounds of appeal are relied upon by the appellant. They are:

1. The court a quo grossly erred and misdirected itself by dismissing the appellant's appeal on the basis that the appellant failed to prove he had submitted the declaration form and that he had declared all assets when evidence on record showed that the respondent's system of submitting the declaration forms had no records and/or registers of submission and had no clarity on how the forms ought to be filled which defect was conceded by the respondent.

2. The court a quo grossly erred and misdirected itself by dismissing the appellant's appeal and thus allowing the respondent to benefit from its own wrong emanating from its shambolic declaration of assets system, which it charged the appellant for failure to comply with and which system it had to adjust and amend after the appellant's disciplinary hearing.

3. The court a quo grossly erred and misdirected itself in making a finding that the respondent had proved the guilt of the appellant on a balance of probabilities as the system of submitting asset declaration forms was in shambles and had no certainty such as to prove someone submitted or did not submit a form.

I have to point out that the first ground of appeal does not raise a point of law at all.

In terms of section 92F of the Labour Act [Chapter 28.01], in terms of which this appeal is made, an appeal to this Court, from any decision of the Labour Court, lies on a question of law only.

The point was made in Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S)…, that the phrase 'question of law':

“(i) First, it means 'a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what it considers to be the truth and justice of the matter';

(ii) Second, it means 'a question as to what the law is.' Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter; and

(iii) Third, any question which is within the province of the judge instead of the jury is called a question of law. This division of judicial function arises in this country in a criminal trial presided over by a judge and assessors.

I respectfully adopt this classification, although the third sense is of no relevance to a matter such as this.”

The first ground of appeal clearly addresses factual issues and not any question of law. It falls far too short of the requirements. There is no basis for this Court to exercise jurisdiction over the issue raised in that ground which fails to raise any question of law. See Hlahla v OK Zimbabwe SC64-04.

The first ground of appeal will not be entertained because it has not been suggested nor shown that the factual findings of the lower court being contested were grossly unreasonable. Neither has it been suggested nor shown that there was such serious misdirection as to amount to a misdirection of law. It is only in such circumstances that this Court would have a foothold for interference.

As eminently articulated by this Court, with considerable eloquence, in Mazunze v Lobels Brothers SC96-02…,:

“This was quite clearly a finding of fact.

I agree with Mr Ncube, for the respondent, that it cannot be appealed against in terms of section 92(2) of the Act unless it was accompanied by a serious misdirection amounting to a misdirection in law or the decision was so outrageous in its defiance of logic that no reasonable court properly applying its mind could have come to it. The notice of appeal contains no allegation of such a misdirection in law or irrationality by the tribunal. It raises no question of law, and is, therefore, fatally defective and void.”

See also Zinwa v Mwoyounotsva 2015 (1) ZLR 935 (S); Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,.

The same applies to the first ground of appeal in the present appeal.

In fact, even the second ground could have been crafted in a more elegant manner because it also does not contain a proper allegation of a misdirection at law or the irrationality of the decision of the court a quo.

As I said, this Court will not exercise jurisdiction over the first ground of appeal as it is fatally defective. That ground therefore stands to be struck out. It is accordingly struck out.

ISSUE FOR DETERMINATION

Emanating from the remaining grounds of appeal is only one issue for determination on appeal: whether the court a quo erred in finding that the guilt of the appellant had been proved on a balance of probabilities.

SUBMISSIONS ON APPEAL

Counsel for the appellant submitted that the appellant completed a separate asset declaration form in which he declared the asset contained in the Stanbic savings account. The form in question was given to the respondent's Human Resources Department on an unknown date, two weeks prior to the submission of the declaration form of 23 October 2015. The form in question was misplaced by that department.

As to why it became necessary, if indeed the appellant had made a declaration two weeks earlier, for him to make another one on 23 October 2015, counsel for the appellant could not say.

On why the appellant did not include the Stanbic account in the declaration form of 23 October 2015, if he had included it in the missing declaration form, counsel for the appellant submitted that the appellant understood the procedure for declaring assets to mean that each declaration form was an update of new assets acquired. According to him, it was not necessary to include the Bank asset in the new form of 23 October 2015 as it had already been declared.

As to what it is that is in the declaration form of 23 October 2015 which was an update, counsel for the appellant could not say. This is so because the declaration form in question contains only a Toyota Marks X motor vehicle which had already been declared in the form dated 22 January 2014. It also contained the FBC savings account which had already been declared in the form of 11 June 2013.

Counsel for the appellant maintained that the failure to declare the Stanbic Bank account was as a result of a misunderstanding which does not constitute an act of misconduct. It cannot be said that the account was not declared because the respondent did not keep a register of the declaration forms. In fact, it's record keeping was shambolic.

Counsel for the respondent submitted that the charge of deliberately misrepresenting facts in the declaration form of 23 October 2015 was proved. In proving the charge, all the employer had to do was to show that the declaration form made by the employee did not have the correct information pertaining to his assets. That was done.

According to counsel for the respondent, the simple question to be asked is: Was all the appellant's property listed in the declaration form in question? If it was not, then the charge would be proved.

He maintained that the declaration form is very clear and there is nowhere in it where it calls for an update. All the assets of the employee must be listed. Accordingly, all the evidence presented points to a deliberate non-disclosure of the Stanbic Bank account which, admittedly, was opened in July 2014.

ANALYSIS

It is crucial to note, from the onset, that the declaration of assets by the appellant employee was a contractual obligation. This is made clear by Clause 16 of the employment letter dated 27 August 2013 signed by the parties. It states, in part:

“You will be required to declare any newly acquired assets which will be verified by the authority. Failure to declare assets, or making false declaration, amounts to an act of misconduct.”

I have said that the employment Code of Conduct of the respondent also lists “deliberate misrepresentation of facts in the declaration of assets” as a dismissible serious misconduct.

It is therefore apparent that, in the employment relationship between the parties, the declaration of assets is viewed in serious light. It has to be, given the commitment by the respondent to stamp out corruption among its employees. Life-style audits play a crucial part in that process.

The asset declaration form itself is couched in such a way that, not only does it contain specific instructions on what has to be declared by the employee, it also admits of no doubt whatsoever that all the employee's assets must be listed on the declaration form. The one that the appellant completed on 23 October 2015 has a preamble which reads:

“I, Dambanjera Admire, of Block 79/2413 Mpopoma, Bulawayo hereby declare that today, 23 day of October 2015, have the following movable and immovable properties whose detailed description is also supplied.”

The appellant was required to submit a list of all his assets. There is absolutely nothing to suggest that each declaration form completed required the employee to list only new assets not declared previously.

It does not end there.

The concluding part of the declaration reads:

“I solemnly declare that the information I have given above is a correct record of all the assets, investments, and businesses owned fully or jointly by me.

I also declare and promise to disclose, for purposes of updating this record, any immovable and/or movable assets, investments, and businesses that may accrue to me during my employment with ZIMRA.

I have signed this form out of my own will without any undue influence.”…,.

The appellant never suggested that he did not read and understand the instructions on the declaration form. He is taken to have appreciated what he was required to put in the form.

The suggestion that he was declaring his assets in instalments, in separate forms, also does not hold water. This is so because in the form giving rise to the misconduct charge, he declared both the Toyota Marks X motor vehicle and the FBC Bank accounts he had previously declared. This shows that he was aware that all his assets had to be listed on each and every form submitted.

I agree with counsel for the respondent that all the evidence presented suggests only one thing - that the appellant deliberately omitted the Stanbic Bank Savings account.

The omission is significant because a substantial amount was involved which should not have escaped the appellant's mind when making the declaration. This is an employee who had the presence of mind to declare an FBC account containing $100. Surely, had he been acting in good faith he would have declared US$57,598=30.

It may have been the paucity of the defence, that declaration forms were understood by the appellant to require only updates, that constrained counsel for the appellant to advance another argument. This relates to the claim that a separate form containing a declaration of the Stanbic Bank account was submitted but misplaced by the Human Resources Department.

I am of the view that the argument is also devoid of merit.

(a) Firstly, I have found that each declaration form, in particular the one dated 23 October 2015, was a complete instruction to be complied with, for the declaration of all the assets. A failure to declare the Stanbic Bank account in the declaration form of 23 October 2015 was a misconduct, irrespective of the existence or otherwise of another declaration form.

(b) Secondly, there is no possibility that such a separate declaration form existed at all. There are a number of reasons why this is so. The record shows that there were only four employees manning the Human Resources Department at the time. If indeed the appellant had submitted an extra declaration form, almost contemporaneously with the one giving rise to the misconduct charge, he would have remembered both the date of submission and the person he submitted it to.

Considering that a declaration form was submitted on 23 October 2015, there was no reason for submitting another one around the same time. Quite frankly, the appellant tried to take advantage of the fact that records are kept by the Human Resources Department to build a non-existent case. The whole issue about a missing declaration form is a red herring.

DISPOSITION

The court a quo cannot be faulted for upholding the employer's decision to find the appellant guilty of misconduct and dismissing him from employment. Its finding that the appellant's guilt was proved on a balance of probabilities was based on sound reason.

The appeal is without merit and ought to fail.

Regarding the issue of costs; in his heads of argument, counsel for the respondent asked for costs on the scale of legal practitioner and client because the appeal is frivolous and was noted “mala fide.”

He did not advance any further reasons for holding that view. More importantly, at the hearing of the appeal, counsel for the respondent did not motivate the prayer for costs on the adverse scale.

I am not persuaded that punitive costs are warranted in this matter. The appellant was entitled to test the correctness of the judgment of the court a quo. However, there is no reason why the costs should not follow the result given that the appeal is without merit.

In the result, it is ordered that:

1. The appeal be and is hereby dismissed.

2. The appellant shall bear the costs.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

Whether the court a quo correctly determined that the matter was urgentAs previously stated, the court a quo found that the application was urgent on the basis that it involved the welfare of minor children and that spoliation matters are generally treated as urgent.Placing reliance on the well-known case of ...

Appealed
SC87-20 : CECK ENTERPRISES PL vs MARIA SITHOLE and MATHIAS SITHOLE (represented by TAKURA MUKWESHA as Executrix Dative) and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.FACTUAL BACKGROUNDThe first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). ...

This is an appeal against the whole judgement of the High Court handed down on 14 March 2018 dismissing the appellant's counter claim against the first respondent.

FACTUAL BACKGROUND

The first and the second respondents were married and later on divorced. They owned a property, namely, Stand No.2395 Glen View (“the property”). Unbeknown to the first respondent, the appellant purchased the property from the second respondent in or about September 1997. In the court a quo, the first respondent averred that she only became aware of the sale when 'strangers came to view the house' pursuant to the offer they had received from the second respondent.

The first respondent accordingly, on 11 September 1997, successfully filed an urgent chamber application seeking a provisional order interdicting the second respondent from selling, ceding or otherwise disposing of his right, title and interest in the property pending the hearing of an appeal that she had noted in the divorce proceedings. The order, which was not opposed by the second respondent, who was then alive, also interdicted the third respondent from registering or giving effect to any sale or disposal of the second respondent's title in the said property. This was followed by a letter addressed to the Registrar of the High Court, on behalf of the first respondent, requesting that a caveat be registered over the Title Deed of the property (it is noted in this respect that this letter should properly have been addressed to the Registrar of Deeds).

The second respondent, nevertheless, proceeded to transfer the said property to the appellant on 3 November 1997, contrary to the terms of the order interdicting him from doing so. The transfer was executed through the same law firm that had failed, on his behalf, to oppose the application that culminated in the order interdicting him from effecting transfer of the property.

The appellant, thereafter, attempted to enforce its perceived rights in the property by seeking the eviction therefrom of the first respondent. The latter immediately filed an urgent chamber application and obtained a provisional order interdicting the appellant from evicting her from the property or interfering with her peaceful occupation thereof in any way.

In May 2002, the appellant filed a counter application seeking an order compelling the first respondent to deliver to it the title deeds of the property. The first respondent, in response, then filed an application a quo for confirmation of the provisional order granted in her favour in 1997. The appellant opposed the application and averred that it was not aware of the 1997 Order interdicting the second respondent from selling or otherwise disposing of the property.

The court a quo held that notwithstanding the fact that the appellant may have been an innocent purchaser, the sale and transfer were done in breach of a court order, and, therefore, of no legal force or effect. The court found the second respondent's non-compliance with the provisional order in question to have been wilful and mala fide. In the result, the counter claim was dismissed and the court confirmed the 1997 provisional order. The court also set aside the sale of the property to the appellant and ordered cancellation of the Title Deed issued in favour of the appellant pursuant to the sale to it of the property.

Aggrieved by this decision, the appellant filed this appeal on the following grounds:-

1. The court a quo erred in cancelling the title deeds in the name of the appellant notwithstanding the fact that the sale and subsequent transfer of the property to it was valid in the circumstances of the case.

2. The court a quo erred in failing to consider the position of the appellant as an innocent purchaser.

3. The court a quo grossly misdirected itself in making an order for costs against the appellant in view of the circumstances of this case.

I will consider these grounds in relation to the evidence before the court....,.

WHETHER OR NOT THE COURT A QUO ERRED IN AWARDING COSTS AGAINST THE APPELLANT

In its third ground of appeal, the appellant contends that the court a quo grossly misdirected itself in making an award of costs against the appellant 'in view of the circumstances' of the case. In particular, the appellant argues that it was an innocent purchaser of the property, as the court a quo itself found. Further, that the first respondent had exhibited lack of diligence in protecting her rights, given that she had only sought to have the 1998 provisional order confirmed after the appellant had instituted vindicatory action against her in the court a quo.

The general rule is that costs follow the cause.

In view of this, it cannot, in my view, be said that the court a quo ought not to have made an award of costs against the appellant who was the unsuccessful party in the proceedings. The cancellation of the Title Deed that was in the appellant's name was not ordered on the basis of whether or not the appellant was an innocent purchaser. There simply was no basis for the issuance of the Title Deed, since the transfer that it purported to perfect was, at law, a nullity.

There is also no evidence that the timing of the application for confirmation of the 1998 provisional order brought by the first respondent was an issue before the court a quo.

It is settled law that costs are at the discretion of the presiding officer. In Barros and Wasserman v Ruskin 1918 AD 63…, the court stated as follows:-

“The rule of our law is that all costs, unless expressly enacted, are in the discretion of the judge. His discretion must be judiciously exercised, but, it cannot be challenged taken alone and apart from the main order without his permission.”…,.

It is also a settled position of the law that a court of appeal will not lightly interfere with the exercise of discretion by a lower court unless it is shown that it was not judiciously exercised. See Barros and Anor v Champonda 1999 (1) ZLR 58 (S) where it was stated as follows…,:-

“…,. 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 discretion in substitution, provided always (that it) has the materials for so doing.”

I do not find, in view of the above, that there is anything to show that the discretion of the court a quo, to award costs on an ordinary scale, was not exercised judiciously. The appellant has therefore not proved a case for interference, by this Court, with the order of costs made against it.

In the result, the appellant's third ground of appeal is dismissed for lack of merit.

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

I fully appreciate that in making the..., findings the court a quo was engaged in the process of exercising its discretion in the matter.

It is also trite that an Appellate Court will not interfere with the exercise of judicial discretion by a lower court unless that court is found to have proceeded on some material mis-appreciation or mis-application of the law and/or the facts or where it has relied on some extraneous or irrelevant consideration or has failed to take into account some particularly relevant matter.

In casu, I am of the considered view that the learned judge a quo critically misdirected herself in the following respects;

(a) First and foremost, any proper analysis of a matter involving the possible eviction of persons necessitates, apart from the purely procedural requirement of a court order, a detailed and substantive consideration of all the relevant circumstances.

As was elaborated in Zuze v Trustees of Mlambo & Anor SC69-19…, this entails a balancing exercise between the rights and interests of all the parties involved in or affected by the eviction dispute. This would include not only the prospective evictees and the landowner but also the State and its agents and institutions.

(b) Secondly, and in any event, as was emphasised in Zuze v Trustees of Mlambo & Anor SC69-19…, the ambit of the protection accorded against arbitrary eviction is not confined to strictly legal occupants of the land or property concerned. Additionally, the rights of the landowner, whether public or private, may have to be temporarily circumscribed so as to obviate the possibility of homelessness. And, if that is found to be impracticable, the State or relevant local authority may have to be imposed upon in order to temporarily accommodate the evictees.

In casu, the court a quo appears to have concentrated on the rights and interests of the respondents and the fact that they were pursuing the legitimate aim of urban development to address the pressing social need for housing and urban development.

While these considerations are very laudable, there is very little on record, apart from bald and sketchy assertions, to substantiate the supposed housing development programme and the pressing social need therefor.

More significantly, the court paid minimal regard to the rights and interests of the appellants themselves. It focused, instead, quite erroneously, on the illegality of their occupation and their failure to regularise the same. It pointedly failed to take into account the facts that the appellants did not have the luxury of any alternative accommodation and that the minor appellants have been attending school in the informal settlement. It also disregarded the significant and critical reality that the appellants had been in occupation of their permanent homes on the farm since the year 2000, until those homes were demolished in 2005, and have since occupied their impermanent homes thereafter. Lastly, but equally importantly, the court did not consider possible alternative measures that could have been taken by the respondents to accommodate the appellants elsewhere, either temporarily or permanently.

It simply chose to distance itself from the appellants' predicament and consigned them to the ravages of impending homelessness.

HHH15-20 : MARY MUBAIWA vs THE STATE
Ruled By: KWENDA J

Counsel for the appellant argued there is a sound basis for this court to interfere with the exercise of discretion by the lower court. Barros and Anor v Chimphonda 1999 (1) ZLR 58…,:

“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 discretion. If the primary court acts on a wrong principle, or 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…, 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 is not imbued with the same broad discretion as was enjoyed by the trial court.”

Counsel for the appellant also cited RBZ v Granger and Anor SC34-01, where the apex court observed:

“Where a court makes a decision which is unreasonable; that constitutes a misdirection in the exercise of judicial function.”...,.

Counsel for the respondent argued, correctly, that this court must consider the misdirection(s) alleged and the appropriate remedy should this court find (a) misdirection(s) by the court a quo. She relied on S v Chikumbirike 1986 (2) ZLR 145;

“The Appeal Court will only interfere with the lower court's decision if it committed an irregularity or misdirection or exercise of discretion was so unreasonable as to vitiate the decision.”

See also S v Malundya 2003 (1) ZLR 275 (H); “The Appeal Court must not hear an appeal as if it is the court of first instance. The approach is whether the Court a quo misdirected himself or herself. It is the findings of the court a quo which must be attacked.”

See also S v Ruturi 2003 (1) ZLR 537.

To a certain extent, I agree with counsel for the respondent.

The misdirection must be located in the judgment of the court a quo but the Appeal Court is not confined to what the court stated in its ruling. An omission to take into account relevant factors could also constitute a misdirection.

HH755-15 : CHIKUDZA MANGWENDE vs LIBERTY MACHODO
Ruled By: UCHENA J and MWAYERA J

At the conclusion of the trial of this matter, the court a quo dismissed the claim for payment of the outstanding lobola.

The court found that there was material breach of the very tenants of lobola.

The court concluded that the appellant was not entitled to payment of the balance of lobola because his daughter, who was married to the respondent, committed adultery with multiple partners ranging from the respondent's brothers, nephews, and the herd boy. The court also found that customarily a husband is allowed to divorce an adulterous wife, and then, if he has paid lobola in full, he is entitled to a refund of the lobola from the inlaws.

The appellant approached this court seeking to have the dismissal of his claim for payment of lobola set aside. The grounds of appeal, as outlined by the appellant, are as follows:

1(a) That the appellant's daughter was acting on the respondent's, that is, her husband's instructions and was safeguarding her husband's cultural values.

(b) That it was not the duty of the appellant's daughter to research on the truth of her husband's cultural values but only to do so as per husband's instructions and demands as a respectful wife.

(c) That the appellant's daughter was forced to confess under duress from the respondent and his relatives.

(d) That the child of the appellant's daughter did not breast feed after confession but only after they had both visited a prophet.

(e) That the appellant's daughter was not in wilful wrong-doing; this is evidenced by her not being in any other affair with outsiders.

2. That the learned magistrate erred in dismissing the appellant's claim when it was clear that the parties had engaged into a lobola agreement which was not completely paid off.

3. That the trial court misdirected itself in dismissing this claim when the averments by the appellant that his daughter and the respondent's brothers had never been to any court for adultery claims.

The facts of the matter, as discerned from the record of proceedings and submissions by the parties, can be summarised as follows:

The appellant's daughter was customarily married to the respondent. The respondent and his wife, the appellant's daughter, had a misunderstanding after the birth of their child. Central to the dispute is the fact that the newly born was not breast feeding. Evidence adduced from the respondent, and the respondent's wife, is to the effect that the child started to breast feed after a confession by the respondent's wife. The confession, which was uncontroverted evidence in the court a quo, was to the effect that the respondent's wife had, during the subsistence of the marriage to the respondent, been intimate with the respondent's elder, younger brothers, nephew, and herd boy.

It was after evidence of intimate relations between the respondent's wife and multiple partners that the respondent took his wife back to her parents.

Irked by this move, the appellant then approached the court a quo claiming for the balance of outstanding lobola.

The Magistrate's Court, basing on the evidence before it, concluded that the confession by the appellant's daughter was voluntarily given. Further, the appellant and his daughter did not dispute that the daughter had intimate relations with multiple partners. The appellant sought to argue, unsuccessfully, that his daughter was wayward in line with the respondent's family custom. The herd boy and nephew were not the respondent's brothers. In any event, other than the appellant's mere say so there was no evidence to confirm the promiscuous conduct by the respondent was in accordance with custom. No one else in the respondent's family had been subjected to such custom according to the appellant's daughter.

It was with this background that the trial magistrate concluded that the appellant's daughter engaged in adulterous relationship with multiple partners and that she, by so doing, breached the marriage relationship. This conduct was ruled as not entitling the appellant to payment of the outstanding lobola.

The court a quo properly spelt out that under customary law a man who would have paid lobola is entitled to a refund if the wife engages in adultery. Further, the court a quo stated that parents whose child would have committed adultery are not entitled to payment of the balances of lobola.

The very purpose of lobola is what was flouted by the appellant's daughter thereby severing the marriage relationship. The respondent did not choose to condone the adultery but to divorce his wife for the gross misconduct.

In coming up with the disposition of the matter whereby the court a quo dismissed the claim for the balance of lobola, the trial magistrate properly exercised his discretion and we find no fault in his findings.

Accordingly, the appeal lacks merit and must fail.

It is ordered that the appeal be and is hereby dismissed with costs.

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Appeal re: Findings of Fact or Exercise of Discretion Made by Lower Court iro Terminated or Complete Proceedings

Appealed SC05-18 : JENNIFER BROOKER and ADRIENNE PIERCE vs RICHARD MUDHANDA and THE REGISTRAR OF DEEDS Ruled By: GOWORA JA, HLATSHWAYO JA and BHUNU JA

SC08-18 : MUNYARADZI HOVE vs ZIMPHOS LIMITED and REGISTRAR OF THE SUPREME COURT and SHERIFF FOR ZIMBABWE Ruled By: ZIYAMBI AJA

Appealed SC11-18 : ALBAN GERARD BOWERS vs SHARIFFA PRECIOUS BOWERS Ruled By: GWAUNZA JA, GOWORA JA and HLATSHWAYO JA

SC29-18 : RESERVE BANK OF ZIMBABWE vs T. LLOYD MUFUDZI and RICHARD USEYA and NYASHA CHIKAZAZA and WARAIDZO TANDI Ruled By: GOWORA JA, BHUNU JA and ZIYAMBI AJA

Appealed SC33-18 : SMIT INVESTMENT HOLDINGS SA (PROPRIETARY) LIMITED and GENET MINING (PROPRIETARY) LIMITED vs THE SHERIFF OF ZIMBABWE and PUNGWE MINING (PVT) LTD Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

Appealed SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

SC43-18 : ZIMBABWE ASSEMBLIES OF GOD AFRICA (ZAOGA) vs KASIKAI MASHONGANYIKA Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

Appealed SC44-18 : AFRICAN CENTURY LIMITED vs MEGALINK INVESTMENTS (PRIVATE) LIMITED and OWEN MURUMBI and THERESA MUSINA Ruled By: HLATSHWAYO JA, PATEL JA and ZIYAMBI AJA

SC48-12 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

Appealed SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

SC48-16 : ZB BANK vs MARIA MASUNDA Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

SC72-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS (PRIVATE) LIMITED T/A CORE SOLUTIONS Ruled By: BERE JA

View Appeal SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

View Appeal SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Appealed SC42-15 : CRISPEN HATIVAGONE and AUDREY HATIVAGONE vs CAG FARMS (PRIVATE) LIMITED and DBT PROPERTIES and REGISTRAR OF DEEDS Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC34-12 : MINISTER OF LOCAL GOVERNMENT, RURAL AND URBAN DEVELOPMENT N.O. and CHAIRPERSON OF THE DISCIPLINARY COMMITTEE, CITY OF HARARE, MUNAMATO MUTEVEDZI N.O. vs SILAS MACHETU and OTHERS Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

Appealed SC05-19 : TETRAD INVESTMENT BANK LTD (Under Judicial Management) vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

SC12-19 : ALPHA MADZIMA vs MARANGE RESOURCES (PRIVATE) LIMITED Ruled By: HLATSHWAYO JA, MAVANGIRA JA and BHUNU JA

Appealed SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

Appealed SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

SC28-19 : EMMANUEL MASVIKENI vs NATIONAL BLOOD SERVICE ZIMBABWE Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

SC02-16 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs RONALD GODIDE Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

SC35-19 : MHLANGA MXOLISI vs MINISTRY OF PRIMARY AND SECONDARY EDUCATION Ruled By: GWAUNZA DCJ, MAKONI JA and MOYO AJA

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SSC44-19 : FEATHERS MUKONDO vs THE STATE Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

View Appeal SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

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

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

SC05-20 : GRANDWELL HOLDINGS PL vs ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and MBADA DIAMONDS PL Ruled By: GWAUNZA DCJ, MAVANGIRA JA and MATHONSI JA

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

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

SC01-13 : PAUL GARY FRIENDSHIP vs CARGO CARRIERS LIMITED and ACROSS ENTERPRISES (PVT) LTD Ruled By: ZIYAMBI JA

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA) Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

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

Appealed SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

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

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

Appealed SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

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

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

Appealed SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC78-20 : ADMIRE DAMANJERA vs ZIMBABWE REVENUE AUTHORITY Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

Appealed SC87-20 : CECK ENTERPRISES PL vs MARIA SITHOLE and MATHIAS SITHOLE (represented by TAKURA MUKWESHA as Executrix Dative) and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

HHH15-20 : MARY MUBAIWA vs THE STATE Ruled By: KWENDA J

HH755-15 : CHIKUDZA MANGWENDE vs LIBERTY MACHODO Ruled By: UCHENA J and MWAYERA J

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Appealed
SC05-18 : JENNIFER BROOKER and ADRIENNE PIERCE vs RICHARD MUDHANDA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA JA, HLATSHWAYO JA and BHUNU JA

SC08-18 : MUNYARADZI HOVE vs ZIMPHOS LIMITED and REGISTRAR OF THE SUPREME COURT and SHERIFF FOR ZIMBABWE
Ruled By: ZIYAMBI AJA

Appealed
SC11-18 : ALBAN GERARD BOWERS vs SHARIFFA PRECIOUS BOWERS
Ruled By: GWAUNZA JA, GOWORA JA and HLATSHWAYO JA

SC29-18 : RESERVE BANK OF ZIMBABWE vs T. LLOYD MUFUDZI and RICHARD USEYA and NYASHA CHIKAZAZA and WARAIDZO TANDI
Ruled By: GOWORA JA, BHUNU JA and ZIYAMBI AJA

Appealed
SC33-18 : SMIT INVESTMENT HOLDINGS SA (PROPRIETARY) LIMITED and GENET MINING (PROPRIETARY) LIMITED vs THE SHERIFF OF ZIMBABWE and PUNGWE MINING (PVT) LTD
Ruled By: MALABA CJ, HLATSHWAYO JA and PATEL JA

Appealed
SC37-18 : TRACEY LEIGH MACKINTOSH (NEE PARKINSON) vs ANTONY WILLIAM MACKINTOSH
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

SC43-18 : ZIMBABWE ASSEMBLIES OF GOD AFRICA (ZAOGA) vs KASIKAI MASHONGANYIKA
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

Appealed
SC44-18 : AFRICAN CENTURY LIMITED vs MEGALINK INVESTMENTS (PRIVATE) LIMITED and OWEN MURUMBI and THERESA MUSINA
Ruled By: HLATSHWAYO JA, PATEL JA and ZIYAMBI AJA

SC48-12 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

Appealed
SC71-18 : CURECHEM OVERSEAS (PVT) LTD vs VADAC PROPERTIES (PVT) LTD
Ruled By: GARWE JA, GUVAVA JA and MAKONI JA

SC48-16 : ZB BANK vs MARIA MASUNDA
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

SC72-18 : MEIKLES LIMITED vs WIDEFREE INVESTMENTS (PRIVATE) LIMITED T/A CORE SOLUTIONS
Ruled By: BERE JA

View Appeal
SC73-18 : MINISTER OF FOREIGN AFFAIRS vs MICHAEL JENRICH and STANDARD CHARTERED BANK ZIMBABWE and SHERIFF OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JA, GOWORA JA, GUVAVA JA and MAVANGIRA JA

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HH166-16 : ZUVA PETROLEUM LIMITED vs S CHIRENJE
Ruled By: MWAYERA J and MUNANGATI-MANONGWA J

Appealed
SC42-15 : CRISPEN HATIVAGONE and AUDREY HATIVAGONE vs CAG FARMS (PRIVATE) LIMITED and DBT PROPERTIES and REGISTRAR OF DEEDS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC34-12 : MINISTER OF LOCAL GOVERNMENT, RURAL AND URBAN DEVELOPMENT N.O. and CHAIRPERSON OF THE DISCIPLINARY COMMITTEE, CITY OF HARARE, MUNAMATO MUTEVEDZI N.O. vs SILAS MACHETU and OTHERS
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

Appealed
SC05-19 : TETRAD INVESTMENT BANK LTD (Under Judicial Management) vs BINDURA UNIVERSITY OF SCIENCE EDUCATION and THE SHERIFF OF ZIMBABWE
Ruled By: GWAUNZA JA, GUVAVA JA and MAVANGIRA JA

SC12-19 : ALPHA MADZIMA vs MARANGE RESOURCES (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, MAVANGIRA JA and BHUNU JA

Appealed
SC17-19 : ECONET WIRELESS (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY and COMMISSIONER GENERAL
Ruled By: MALABA DCJ, GOWORA JA and MAVANGIRA JA

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

SC28-19 : EMMANUEL MASVIKENI vs NATIONAL BLOOD SERVICE ZIMBABWE
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

SC02-16 : ZIMBABWE PLATINUM MINES (PRIVATE) LIMITED vs RONALD GODIDE
Ruled By: ZIYAMBI JA, GOWORA JA and HLATSHWAYO JA

SC35-19 : MHLANGA MXOLISI vs MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: GWAUNZA DCJ, MAKONI JA and MOYO AJA

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SSC44-19 : FEATHERS MUKONDO vs THE STATE
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

View Appeal
SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

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

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

SC05-20 : GRANDWELL HOLDINGS PL vs ZIMBABWE MINING DEVELOPMENT CORPORATION and MARANGE RESOURCES PL and MBADA DIAMONDS PL
Ruled By: GWAUNZA DCJ, MAVANGIRA JA and MATHONSI JA

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

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

SC01-13 : PAUL GARY FRIENDSHIP vs CARGO CARRIERS LIMITED and ACROSS ENTERPRISES (PVT) LTD
Ruled By: ZIYAMBI JA

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

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

Appealed
SC45-20 : MUCHANETA CHATAMBUDZA vs KUDAKWASHE MURAPE and MARBEL MURAPE
Ruled By: GWAUNZA DCJ, GARWE JA and MAKONI JA

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

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

Appealed
SC52-20 : NEWTON DONGO vs JOYTINDRA NAIK and HEMENT NAIK and BABNIK INVESTMENT PL and CLINVEST INVESTMENT PL and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS OFFICE
Ruled By: GWAUNZA DCJ, GOWORA JA and MAKONI JA

SC25-09 : AIDAN BECKFORD vs ELIZABETH BECKFORD
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

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

SC72-20 : TAYENGWA MUSKWE vs LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

Appealed
SC74-20 : SHAILLON CHISWA vs CAR RENTAL SERVICES PL t/a AVIS RENT A CAR and BERNARD CHISWA
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC78-20 : ADMIRE DAMANJERA vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

Appealed
SC87-20 : CECK ENTERPRISES PL vs MARIA SITHOLE and MATHIAS SITHOLE (represented by TAKURA MUKWESHA as Executrix Dative) and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

HHH15-20 : MARY MUBAIWA vs THE STATE
Ruled By: KWENDA J

HH755-15 : CHIKUDZA MANGWENDE vs LIBERTY MACHODO
Ruled By: UCHENA J and MWAYERA J